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PRACTICE AND POLICIES OF MODERN PEACE SUPPORT OPERATIONS UNDER INTERNATIONAL LAW
ROBERTA ARNOLD OEERT .JAN ALEXANDER KNOOPS
Transn
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INTERNATIONAL AND COMPARATIVE CRIMINAL LAW SERIES
Editorial Board Series Editor
M. Cherij 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 Christopher L. Blakesley J. Y. Sanders Professor of Law Louisiana State University Law Center Baton Rouge, LA, USA Roger S. Clark Board of Governors Professor The State University of New Jersey School of Law Camden, NJ, 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
Mario Pisani Professor of Criminal Procedure Faculty of Law, University of Milan Milan, Italy William Michael Reisman Myers S. McDougal Professor of Law and Jurisprudence, Yale Law School New Haven, CT, USA Leila Sadat Professor of Law Washington University in St. Louis School of Law St. Louis, MO, USA Michael P. Scharf Professor of Law New England School of Law Boston, MA, USA Kuniji Shibahara Professor Emeritus University of Tokyo, Faculty of Law Tokyo, Japan
Albin Eser Professor of Criminal Law, Albert Ludwig University; Director, MaxPlanck Institute for International and Comparative Criminal Law Freiburg, i. B., Germany
Brigitte Stern Professor of International Law University of Paris I Pantheon, Sorbonne Paris, France
Alfredo Etcheberry Professor of Criminal Law, National University of Chile; President, Chilean Lawyers' Association, Santiago, Chile
Otto Triffterer Professor of International Criminal Law and Procedure, Faculty of Law, University of Salzburg Salzburg, Austria
Jordan Paust Professor of Law University of Houston Law Center Houston, TX, USA
PRACTICE AND POLICIES OF MODERN PEACE SUPPORT OPERATIONS UNDER INTERNATIONAL LAW
Edited by
ROBERTA ARNOLD and GEERT-JAN ALEXANDER KNOOPS
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Library of Congress Cataloging-in-Publication Data Arnold, Roberta, 1974- . Practice and policies of modern peace support operations under international law / by Roberta Arnold and Geert-Jan Alexander Knoops. p.cm. Includes bibliographical references and index. ISBN 1-57105-361-1 1. Humanitarian intervention. 2. United Nations--Peacekeeping forces. 3. Peacekeeping forces. 4. Rule of law. 5. War (International law) 1. Knoops, Geert-Jan G. J. II. Title. KZ6374.A 762006 2006040439 Copyright © 2006 by Transnational Publishers, Inc. All rights reserved. This book may not be reproduced, in whole or in part, in any form (beyond that copying permitted by U.S. Copyright Law in Section 107, "fair use" in teaching and research, Section 108, certain library copying, and except in published media by reviewers in limited excerpts), without written permission from the publisher. Manufactured in the United States of America
TABLE OF CONTENTS List ofAbbreviations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
vii
Introduction: PSOs in Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ix
Part I: General Developments of Modern PSOs
Chapter 1:
Chapter 2:
Chapter 3:
PSOs: Establishing the Rule of Law Through Security and Law Enforcement Operations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Kwai HongIp
3
Promoting and Abiding by the Rule of Law: UN Involvement in Post-Conflict Justice . . . . . . . . . . . . . . . . . . . . Noelle Quenivet
35
Military and Legal Aspects ofPSOs-The Example of Austria's Deployment With KFOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Gerhard Scherhaufer
67
Part II: Concurrence of Modern PSOs and International Law
Chapter 4:
Chapter 5:
The Applicability of the Law of Occupation to Peace Support Operations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Roberta Arnold
91
The Age of Interventionism: The Extraterritorial Reach of the European Convention on Human Rights. . . . . . . . .. Josephine Lett
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Chapter 6:
Securing Status and Protection of Peacekeepers. . . . . . . . . . . . . .. Dieter Fleck
Chapter 7:
So-Called "Non-Lethal" Weapons in Peace Support Operations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. Gergely T6th
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157
Part III: Concurrence of Modern PSOs and International Criminal Law
Chapter 8:
Criminal Liability for Contemporary International Military (Crisis Management) Operations: Towards a Refined Adjudicatory Framework. . . . . . . . . . . . . . . .. Geert-Jan Alexander Knoops
v
183
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Chapter 9:
Practice and Policies of Modern Peace Support Operations
Migration and Border Management in Kosovo 1999-2005. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. Stefano Failla
Chapter 10: Trafficking in Human Beings for the Purpose of Sexual Exploitation-Legal Challenges in the Fight Against Modern Slavery in Crisis Regions: A Case Study of Bosnia and Herzegovina Valerie Wahl Chapter 11: Detention ofIndividuals During Peacekeeping Operations: Lessons Learned From Kosovo . . . . . . . . . . . . . . . . . . . . . . . . . . .. Pascal M. Dupont Chapter 12: Accountability for the Conduct of UN-Mandated Forces Under International Human Rights Law: A Case Study Concerning Sexual Abuse of the UN Mission in the Democratic Republic of Congo (MONUC). . . . . . . . . . . . . . . . . .. Sandra Katrin Miller Conclusions and Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
203
225
249
261
289
Table of Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
293
Index... .. . . .. . .. . .... . .. ... .... . . . . . . . .. . . . . . .. . ....... . . .. . . ....
295
LIST OF ABBREVIATIONS AP I AP II BiH BWC
CIVPOL CWC
DPKO ECHR ETS EU EUFOR GA Res. ICC ICCPR ICRC ICTR ICTY IHL ILM INTERFET KFOR KLA LNTS MINUSTAH MONUC MOU MSU MTA NATO NGO ONUB ONUC
Additional Protocol I of the Geneva Conventions Additional Protocol II of the Geneva Conventions Bosnia and Herzegovina Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction International Civilian Police Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction Department of Peacekeeping Operations European Court of Human Rights European Treaty Series European Union European Union Force UN General Assembly Resolution International Criminal Court International Covenant on Civil and Political Rights International Committee of the Red Cross International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia international humanitarian law International Legal Materials International Force for East Timor Kosovo Force Kosovo Liberation Army League of Nations Treaty Series UN Stabilization Mission in Haiti UN Organization Mission in the Democratic Republic of the Congo memorandum of understanding multinational specialized unit military-technical agreement North Atlantic Treaty Organization non-governmental organization UN Operation in Burundi UN Operation in the Congo vii
viii
oseE Ptp
PSF PSO ROE SC Res. SFOR SIrUS SOFA SOMA SRSG TCC TCN TiHB TS UDHR UK UN UNAMA UNAMSIL UNFICYP UNMEE UNMIK UNOCI UNOMIG UNSECOORD UNTAC UNTAET UNTS US
Practice and Policies of Modern Peace Support Operations
Organization for Security and Cooperation in Europe Partnership for Peace Peace Support Force peace support operation rules of engagement UN Security Council Resolution Stabilization Forces in Bosnia and Herzegovina Superfluous Injury or Unnecessary Suffering Project status of forces agreement status of mission agreement Special Representative of the Secretary-General troop contributing country troop contributing nation Trafficking in Human Beings Treaty Series Universal Declaration of Human Rights United Kingdom United Nations UN Assistance Mission in Afghanistan UN Missions in Sierra Leone UN Peacekeeping Force in Cyprus UN Mission in Ethiopia and Eritrea UN Interim Administration Mission in Kosovo UN Operation in Cote d'Ivoire UN Observer Mission in Georgia Office of the UN Security Coordinator UN Transitional Authority in Cambodia UN Transitional Administration in East Timor United Nations Treaty Series United States
INTRODUCTION: PSOs IN ACTION Contemporary international peace support operations (PSO) take place in a context which has dramatically evolved during the last decade. The practical problems encountered by PSOs nowadays differ and may prove more formidable. PSOs, consequently, have developed into two directions: classical peacekeeping and peace enforcement operations. The former is based on the neutrality of the intervening peace forces, while the latter concerns a more robust enforcement of a peace mandate.! Due to the changing world order, exemplified by the emergence of politically complex international and internal armed conflicts accompanied by gross human rights violations and a multiplicity of (non-state) fighting parties, another type of PSO has arisen i.e., that of international crisis response and management operations. This form of military intervention was shaped in order to enable the international community to actively terminate, by military means and force, humanitarian catastrophes fueled by sub-regional, regional and tribal politics. 2 The responsibility of the international community to maintain international peace and security may create conflicting pressures as to the extent and scope of military interventions and the compliance with international legal norms by the intervening military forces. Given the ongoing commission of atrocities in certain regions of the world, such as Congo, Darfur and Northern Uganda, the urgent goal would seem to be the termination of these geo-political conflicts, either by military intervention or negotiation. Yet, at the same time, the urgent policy question is whether international military crises response operations should be used by the international community to resolve regional or national internal political problems. Are such interventions not deemed to fail in the event the particular state itself is not able to find a solution to the instability at hand? Are we then not simply shifting such a political or security problem to that of the international community? For instance, some questions may be: If one is to militarily intervene, how should this be done, i.e., what are the rights and duties of PSO-forces? On the basis of which legal regime should their conduct be assessed? Ultimately, the legitimacy of military crisis response operations, as mechanisms to restore and resolve international and internal (political) conflicts, will be tested by the manyfold realities of international politics and See Martin Zwanenburg, Accountability under International Humanitarian Law for United Nations and North Atlantic Treaty Organization Peace Support Operations (2004). See Geert-Jan Alexander Knoops, The Prosecution and Defense of Peacekeepers under International Criminal Law 7-9, 35-44 (2004).
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international (criminal) law, not the least of which will be their own compliance with the rule of law. In this regard, Part I of this volume, addressing general aspects of modern PSOs in view of the rule of law, delineates the formidable challenge that falls on all those who are involved in the execution of PSO mandates on the ground, especially how to set priorities among their crucial responsibilities and the inevitable political military consequences of these actions. Part II determines the magnitude of this challenge, by revealing the particular problems and implications, divided over various aspects of concern, by analyzing special topics like the issue of securing the status and protection of peacekeepers (Dieter Fleck), the legality of the use of non-lethal weapons in peace support operations (Gergely T6th), the application of human rights (Josephine Lett) and the law of occupation to PSOs (Roberta Arnold). It will further show that modern PSOs in theory and in action are different exponents calling for a more practical analysis. Henceforth, Part III of this volume manifests another dimension pressurizing the dilemmas within modern PSOs, namely the imposition of criminal law responsibilities on members of PSO forces on the ground, enforcing PSO mandates, which is a relatively new area. 3 With the development of international criminal responsibility, envisaged by the statutes of international and hybrid criminal courts, modern PSOs are faced with new legal and political challenges, especially when such forces are called to cooperate with these courts. In the manyfold of events, it may create an opposition between the PSO forces and the parties to the conflict and trigger responsibilities under international criminal law. Notwithstanding scant case law on this innovative aspect, Part III delves deeper into this type of responsibilities, based on the practical experiences of the authors, pertinent for the success or failure of future PSOs. The contributions by Stefano Failla (migration and border management in Kosovo), Valerie Wahl (trafficking in human beings for the purpose of sexual exploitation), Pascal M. Dupont (detention of individuals during PSO), Sandra Katrin Miller (accountability for the conduct of UN mandated forces) and Geert-Jan Alexander Knoops (criminal liability for crisis management operations) touch upon this intriguing interrelationship between PSOs and international criminal law aspects. Parts I-III of this volume provide a cross-disciplinary perspective on modern PSOs, i.e., contributions on the edge ofPSOs and general international law, international humanitarian law, human rights law and international criminal law. The understanding by the international community of the importance of these intersections is essential to fully comprehend the legal and social-political dynamics of modern PSOs. Parts II and III make especially clear that PSOs are governed by many and differing organizational, military-operational and
See id.
Introduction
xi
legal-political contexts. The chapters of Parts II and III illuminate a specific aspect of this larger context, whereas Part I explores the legal-political context in a broader form. After devoting so much attention to modern PSOs "in action," the book terminates with a consideration of conclusions and recommendations. Given that PSOs, in their wide inter-disciplinary manifestations, are still transforming and developing, the argument is that a variety of strategies, concepts and avenues must be pursued not only to protect those who are engaged in PSOs but also to enable them to effectively protect those they are called to protect. As mentioned, the basic tenet of this book is PSOs "in action." The applicable legal rules in the field will continue to be shaped by the policymakers and military service men and women engaged in PSOs, rather than legal textbooks. International peace and security and the endorsement of international law by peace support forces around the world will ultimately depend on the dissemination of this law within and by the PSO forces themselves. This book would like to make a small contribution to this process. It is, therefore, primarily meant for those called to apply the laws and doctrines pertaining to PSOs in the field, who shall have at their disposal the know-how acquired by eminent practitioners within PSOs. At the same time, in order to bridge the reality of theory and practice of contemporary PSOs and maximize their impact on international peace and security, it addresses also practitioners at headquarters, academics, policymakers and international lawyers. The undertaking of such an effort is especially important in order to attain unity as to the practical application of norms and doctrines that underpin PSOs. This book, therefore, is but one of the many to follow. Geert-Jan Alexander Knoops Roberta Arnold Editors January I, 2006
PART I
General Developments of Modern PSOs
CHAPTER 1 PSOs: ESTABLISHING THE RULE OF LAW THROUGH SECURITY AND LAW ENFORCEMENT OPERATIONS Kwai Hong fp*
I.
INTRODUCTION
This chapter will explore the challenges faced by military Peace Support Forces (PSF) in establishing the rule of law in post-conflict environments. The aim is to highlight legal and practical issues that impact law enforcement operations. The chapter will develop this through a brief analysis of peace support operations (PSO) authorized under UN Security Council resolutions to examine the authority to conduct law enforcement type duties and rules of engagement. It will consider how international humanitarian and human rights laws may apply to PSF, how these laws may be used as a guide during peace support operations and determine the extent that human rights obligations affect individual troop contingents. Finally, the chapter will illustrate the impact of human rights obligations on law enforcement type tasks, and the need to coordinate activity with civilian law enforcement authorities. Where appropriate, the chapter will discuss these themes with illustrations from PSOs in Kosovo from 1999 to 2005.
II. MILITARY PEACE SUPPORT OPERATIONSTHE AUTHORITY FOR LAW ENFORCEMENT OPERATIONS A. UN Security Council Resolutions 1.
General Tasks
PSOs authorized by a UN Security Council resolution will differ in terms of aims and mandate, and they may be limited in duration. It is important to acknowledge the difference between those PSOs that are authorized under UN Charter Chapter VI or Chapter VII with respect to the aims of the particular
* Kwai Hong Ip, Barrister (England and Wales), Attorney (California, USA). Senior International Legal Officer, Special Department for War Crimes, Prosecutor's 3
Practice and Policies of Modern Peace Support Operations
4
mission and the means that may be used. In general, traditional peacekeeping involves a Chapter VI mission that seeks to deal with disputes that endanger the maintenance of international peace and security. Such missions include those that rely on the consent of parties to a conflict for the peacekeeping force to monitor a ceasefire agreement or other cessation in hostilities. Peace enforcement is concerned with enforcement action under Chapter VII. The Security Council may authorize a PSF to "take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security,"! and the mandate may authorize the use of force as "necessary means" or "necessary measures" or "necessary action."2 To discern what is necessary, the Force may consider the purpose and type of tasks that have been authorized by the Security Council. The limitations and tasks from the mandate should shape PSF mission plans, directives and operating procedures.
2.
Institution Building
In recent complex and multifaceted peace-keeping and -building missions, PSOs have been authorized to establish transitional administrations or assist in institution building and regeneration in situations where there has been a collapse of law and order. The PSF's role in rebuilding wiII depend on the existence of viable police, judicial and correctional systems. The mandate generaIIy tailors tasks according to the situation. Parts of the infrastructure may still exist, albeit at a limited capacity. A civilian component of the PSO may be tasked to assume governance and nation-building duties with the military PSF providing a secure environment, and to support the work of the civilian component. In Kosovo, Security Council Resolution 1244 established an international civilian presence (UNMIK3) with the mandate to perform basic civilian administrative functions and organize and oversee the development of provisional institutions for
Office of Bosnia and Herzegovina. Former RAF Prosecutor; Assistant Legal Adviser KFOR, and Legal Officer, Criminal Division Department of Justice, UNMIK. The views expressed in this paper are the author's and should not be considered as statements of UN, NATO or UK MOD policy. UN Charter art. 42. For example, SC Res. 1244 (1999), S/Res11244, adopted by the Security Council at its 4011 th meeting, on June 10, 1999, para. II, "means" (Kosovo); SC Res. 1270(1999), S/Res11270, adopted by the Security Council at its 4054th meeting on Oct. 22,1999, para. 14, "action" (Sierra Leone); SC Res. 1575 (2004), S/Res11575, adopted by the Security Council at its 5085th meeting, on Nov. 22, 2004, paras. 14, 15 and 16, "measures" (Bosnia and Herzegovina). 3 SC Res. 1244, supra note 2, paras. 9(c) and 9(f).
Establishing the Rule of Law
5
democratic and autonomous self-government pending a political settlement. 4 KFOR (Kosovo Force) was tasked to maintain a secure environment, so that UNMIK could operate, support and coordinate with UNMIK. In other PSO missions, military and civilian components may be given the mandate to assist the existing government with the restoration of public order and safety, the maintenance of the rule of law and institutional strengthening including the re-establishment of the corrections' system. The military component may be tasked to report directly to the Special Representative through the force commander. 5 In other operations, a single nation may be tasked with a limited and short-term mission to support the UN Mission by re-establishing security and providing protection to the Mission and to civilians. 6
3.
Law Enforcement Tasking
Whether the PSF are authorized to execute law enforcement type tasks in the operation will depend on the terms of the mandate in the Security Council resolution. Particular mission mandates are often drafted in broad terms but may specifically provide for law enforcement tasks to be conducted either by the military component of a PSF, or jointly with a civilian police component or the national police force. For example, Security Council Resolution 1244 required the international security presence (KFOR) to ensure public safety and order until the international civil presence could take responsibility for this task; Security Council Resolution 1542 7 provided MINUSTAH8 with the mandate "to assist with the restoration and maintenance of the rule of law, public safety and public order in Haiti through the provision inter alia of operational support to the Haitian National Police and the Haitian Coast Guard." It may be even more specific, such as in Security Council Resolution 1577,9 where the Security Council requested "ONUBlO and MONUCII to continue to provide their assis-
SC Res. 1244, supra note 2, paras. 11 (b) and 11 (c). SC Res. 1542, adopted by the Security Council at its 4961 st meeting, on Apr. 30,2004, S/Resll542 (2004), paras. 4 and 7.I.(d). See also SC Res. 1528, adopted by the Security Council at its 4918th meeting, on Feb. 27, 2004, S/Resll528 (2004), para. 6( q)-authorizing the joint military and civilian UNOC! to re-establish the authority of the judiciary and the rule of law throughout Cote d'!voire. See SC Res. 1528, supra note 5, para. 16, where French forces were sent to Cote d'!voire to quell an escalation in violence. Supra note 5, relating to Haiti. UN Stabilization Mission in Haiti. Adopted by the Security Council at its 5093d meeting, on Dec. I, 2004, S/ResIl577 (2004), relating to Burundi. 10 UN Operation in Burundi. 11 UN Organization Mission in the Democratic Republic of the Congo.
Practice and Policies of Modern Peace Support Operations
6
tance, within their mandate, to the Burundian and Congolese authorities, with a view to facilitating the completion of the investigation into the Gatumba massacre and to strengthening the security of vulnerable populations."12
4.
Other Law Enforcement Duties-Support to International Criminal Tribunals
Some resolutions may call on parties to bring to justice those responsible for crimes of genocide, crimes against humanity or war crimes and to facilitate measures in accordance with international law to ensure accountability for violations of international humanitarian law (IHL)I3 to put an end to impunity. 14 Under Additional Protocol I of 1977 (AP I), signatory states are obliged to assist the United Nations in response to serious violations in accordance with mandates or specific requests. IS 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 (IVGC)I6 committed against protected persons (civilians) and property, military forces have an obligation to search for persons on their territory suspected of committing grave breachesP This obligation may extend to forces of a High Contracting Party that are on occupied territory, but it is debatable whether this creates a legal duty on individual states contributing troops to PSFs that are conducting enforcement operations under a Security Council resolution mandate. However, it may be followed by a troop contributing nation or the PSF as a matter of policy and as a standard of best practice. Furthermore, the two ad hoc international tribunals I8 for the prosecution of war crimes and other serious offenses were established under Chapter VII of the UN Charter by Security Council resolution. The Security Council deter!d., para. 4. See SC Res. 1291, adopted by the Security Council at its 4104th meeting, on Feb. 24, 2000, S/Res/1291 (2000), para. 15. 14 See SC Res. 1542 (2004), supra note 5, para. 8. 15 Art. 89. 16 Convention relative to the Protection of Civilian Persons in Time of War (1949), United Nations Treaty Series, Vol. 75, at 287 [hereinafter IVGC]. 17 To complement and implement the principle established in Article 146 of IVGC that the primary responsibility for the prosecution of war crimes rests with individual states. 18 E.g., International Criminal Tribunal for the Former Yugoslavia pursuant to SC Res. 827, adopted by the Security Council at its 3217th meeting, May 25,1993, S/Res/827 (1993), and the International Criminal Tribunal for Rwanda pursuant to SC Res. 955, adopted by the Security Council at its 3453d meeting, on Nov. 8, 1994, S/Res/955 (1994). 12
13
Establishing the Rule of Law
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mined that accountability for such offenses would facilitate the maintenance and restoration of international peace and security. By virtue of Article 25 of the UN Charter, all member states are obliged to "accept and carry out the decisions of the Security Council." Therefore, the resolutions create an obligation on states to support the tribunal by fulfilling requests for assistance including the execution of law enforcement tasks by the armed forces of that state. In another development of international criminal practice, the International Criminal Court (ICC) was established in an attempt to ensure that crimes would no longer be committed with impunity. States party to the Rome Statute 19 of the ICC are obliged, in accordance with Article 86 of the Statute, to "cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court."
5.
Rules of Engagement (ROE)
In line with the recommendations of the Report of the Panel on United Nations Peace Operations,20 it is becoming more evident that Security Council resolutions will specify more clearly the objectives of the mission and, in particular, describe the occasions when the PSF may use force. In complex operations, the mandate may provide specifically that the PSF is to protect civilians and property. This clears up some of the uncertainty created by the principle of neutrality, which had been interpreted as preventing military peacekeepers from using force except in self-defense of the Force. This had terrible consequences when PSF and political commanders felt constrained by the principle during the massacres in Srebrenica, Rwanda and Congo. Recent resolutions have been very specific about the tasks under the mandate. 21 Now, PSFs may be specifically authorized to use force to protect PSF mission property, UN property and personnel and civilians. This can be interpreted as authorizing the use of force in preemptive self-defense against an anticipated attack when there is compelling evidence that an attack is imminent. 22
UN Doc. A/CONF. 183/9, reprinted in 37 ILM 999 (1998). UN Doc. A/55/305-S/2000/809. 21 See specific tasks that include the protection of civilians in SC Res. 1484, adopted by the Security Council at its 4764th meeting, on May 30, 2003, S/Res11484 (2003) (Congo); 1542 (2004), supra note 5 (Haiti) and SC Res.I528 (2004), supra note 5 (Ivory Coast). 22 See the International Peace Academy (IPA)-UNDPKO Workshop Report on the Use of Force in UN Peacekeeping Operations, Feb. 6, 2004 and the UNDPKO Best Practices Unit Report, Operation Artemis: The lessons of the Interim Emergency Multinational Force, October 2004, which describe the Uruguayan Battalion's insistence that since MONUC's mandate was authorized under Chapter VI, the Force could not use force except in self-defense but a later SC Res. 1291, supra note 13, at 9, provided for 19
20
8
Practice and Policies of Modern Peace Support Operations
Therefore, the current trend may be to replace perceived constraints under the stifling principle of neutrality in peacekeeping with more robust and proactive guidance, which allows a PSF to project and use force to establish impartiality; whereas "neutrality has merely rendered UN forces impotent eyewitnesses to genocide. Impartiality implies that all who behave badly will be dealt with in the same way."23 In these circumstances, it is arguable that it is now becoming less important to interpret the difference between those PSOs that are authorized under UN Charter Chapter VI or Chapter VII to imply differences in rules of engagement for the use of force to protect civilians. Care should be taken to design ROE to defend civilians in an area where an armed conflict is taking place. Where the PSF is engaged in operations under a Chapter VII mandate, but not as a party to the conflict,24 the authorized ROE should restrict the use of force to occasions that cannot be interpreted as the PSF taking an active part in the hostilities as a party to the conflict.2s There is likely to be a fine distinction between engagement as a non-party and as a party when preemptive self-defense operations are conducted. In situations where there is no armed conflict, operation plans may include explicit orders and ROE that limit the PSF or troop contributing nation's (TCN) personnel from engaging in law enforcement operations. Nations have different, sometimes conflicting, legal or policy considerations or interpretations of international law in relation to the use of force and the weapons that may be employed in certain situations. Further, there may be restrictions when lethal force may be used for self-protection, protection of the force and its property, the protection of civilians, and MONUC's rules of engagement allowed the use of force for preemptive self-defense against an anticipated attack. 23 IPA-UNDPKO Workshop Report, supra note 22. 24 See Secretary General's Bulletin, Observance by United Nation's forces of international humanitarian law, UN Doc. ST/SGB/1999/13, Aug. 6,1999, Section 1.2, at http://www.un.org/peace/st_sgb_1999_13.pdf(last visited Aug. 23, 2005) [hereinafter Secretary General's Bulletin], explaining that the "Bulletin does not affect the protected status of members of peacekeeping operations under the 1994 Convention on the Safety of United Nations and Associated Personnel or their status as noncombatants as long as they are entitled to the protection given to civilians under the international law of armed conflict." 25 Note that the protections afforded to UN and Associated Personnel by the Convention on the Safety of the United Nations and Associated Personnel, UN Doc. A/49/49 (1994) may be lost. See Section 2.2., which provides, "this Convention shall not apply to a United Nations operation authorized by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies." The Convention came into force on Jan. 15, 1999. See http://www.un.org/law/cod/safety.htm (last visited Aug. 24, 2005).
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or protection of non-force personnel and property. PSF personnel may have to follow the domestic law of their nations that restricts the use of lethal force to protect property or the use of non-lethal weapons such as riot control agents, whether during armed conflict or not. While multinational force or lead nation ROE may allow the use of lethal force to protect property or persons when designated with special status, national constraints may mean that particular national contingents will apply the ROE more strictly.26 This will be considered further in the section dealing with the use of force and human rights obligations. More strategic restrictions may be borne of domestic legislation that either restrict the use of national forces to certain types ofPSOs and/or circumscribe the scope of their duties. 27 Some nations have posse comitatus 28 type legislation, which, in effect, prohibits the use of troops entirely, or allows only military police, to conduct law enforcement duties. It is a matter of domestic law whether these restrictions relate only to a domestic situation29 rather than where forces act under the authority of an international organization or the United Nations. Therefore, military forces engaged in peacekeeping/peace-building operations will have to explore whether domestic law allows law enforcement tasks and whether the applicable PSF, and contributing nation military plans, allow for close cooperation 30 with law enforcement and judicial authorities. If law enforcement duties are to be conducted, it is important to establish procedures for and to train personnel to comply with the applicable law, international stan-
26 These matters may have been disclosed during negotiations for troop contributions. 27 See discussion at Part III of Challenges of Peace Operations into the 21st Century, 1997-2002, ajoint study conducted by partner organizations from 14 leading peace operations countries, at http://www.peacechallenges.net/roach/CONCLUDING_REPORTS.do?pageId=52 (last visited Aug. 18, 2005). 28 Literally, the "power of the county." In this context, it is used to mean the prohibition against the use of military forces for law enforcement purposes or the execution or enforcement of civilian law by military forces of the state. The principles behind this historic division between civilian and military roles include: the maintenance of civilian superiority over the military, the enhancement of military readiness and to prohibit the use of military forces in a domestic setting where it is not warranted by the exigencies of the situation. 29 For an example of territorial limitations of the rule, see Chandler v. United States, 171 F.2d 921,936 (1st Cir. 1950), where the court held that "unwarranted to assume that such a statute was intended to be applicable to occupied enemy territory, where the military power is in control and Congress has not set up a civil regime." 30 Assuming that national caveats/restrictions do not proscribe such activity. For an open source description of the command structure and national restrictions of troop contributing nationslNATO led operations, see the European Commission for Democracy through Law (Venice Commission) Report, CDL-AD (2004)033, Opinion on Human Rights in Kosovo: Possible establishment of Review Mechanisms, paras. 16 and 79.
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Practice and Policies of Modern Peace Support Operations
dards of human rights and principles derived from international humanitarian law (IHL). Military operations and individual missions are likely to be judged against these criteria.
II. APPLICABLE PRINCIPLES OF INTERNATIONAL HUMANITARIAN AND HUMAN RIGHTS LAW A key to mission success must be the maintenance of legitimacy through the observance of international standards of human rights and the rule of law. The PSO is accountable for its actions and the behavior of its personnel. UN forces are guided by the Secretary-General's Bulletin 3 ! to apply fundamental principles and rules of IHL during armed conflict, enforcement actions and peacekeeping operations. 32
A.
International Humanitarian Law
When the PSF is engaged in operations pursuant to a Chapter VI or Chapter VII of the UN Charter, particular provisions of the Geneva Conventions33 may apply where there is an armed conflict. It is being a party to an armed conflict and not the particular mandate that is determinative. The Secretary-General acknowledged that UN forces, and those under unified command, may be deployed under UN auspices to engage in or become involved in an armed con3! Secretary General's Bulletin, supra note 24, section 1. See also SC Res. 1265, adopted by the Security Council at its 4046th meeting, on Sept. 17, 1999, relating to the protection of civilians, where the Security Council urged parties to conflicts to respect international humanitarian, human rights and refugee law. 32 Secretary General's Bulletin, supra note 24, Section 1.1. provides that "the fundamental principles and rules of international humanitarian law set out in the present bulletin are applicable to United Nations forces when in situations of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement. They are accordingly applicable in enforcement actions, or in peacekeeping operations when the use of force is permitted in self-defence." 33 Geneva Conventions, signed Aug. 12, 1949, and the two additional Protocols of June 8, 1977. Convention I, For the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, Aug. 12, 1949. Convention II, For the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, Aug. 12, 1949. Convention III, Relative to the Treatment of Prisoners of War, Geneva, Aug. 12, 1949. Convention IV, Relative to the Protection of Civilian Persons in Time of War, Geneva, Aug. 12, 1949 [hereinafter IVGC]. Protocol I, Additional to the Geneva Conventions of Aug. 12, 1949, and relating to the Protection of Victims of International Armed Conflicts, June 8, 1977 [hereinafter AP IJ. Protocol II, Additional to the Geneva Conventions of Aug. 12,1949 [hereinafter AP IIJ, and relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977.
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flict.3 4 The United Nations and regional organizations are not states and therefore are not parties to the Geneva Conventions or the Additional Protocols thereto, but TCNs may well be. The forces of individual troop contributing nations that are high contracting parties to the Geneva Conventions are bound by these provisions when party to an armed conflict, even if another party to the conflict is noPs Where the PSF or the forces of a contributing state are not involved in an armed conflict, the applicable provisions may be used as guidance when conducting PSOS.36 In particular, where the PSO is mandated to exercise the powers of a transitional authority, the situation has similarities with IHL that applies to occupying powers. It is an inescapable fact that, where an area or territory is placed under the authority of a PSO, the PSF may be empowered to exercise an element of authority over persons in that area or territory. This may suffice to trigger the application of Article 2 of IVGC and the applicable provisions relating to the law of occupation, which establishes certain rights and duties between the occupying power and the civilian population. 37 Whether in strict law the situation demands that the law of occupation applies or not, the principles derived from these provisions may serve as a guide to the minimum standards that should be applied while administering the territory and may be consulted in cases where the Force is conducting security or other operations. 38 ----
--~-.-~-.----
See Secretary General's Bulletin, supra note 24. 35 See Common Article 2 to the Geneva Conventions. Also, see Common Article 1 to the Geneva Conventions that provides that states parties "to respect and ensure respect for the present Convention in all circumstances." See J-M. Henckaerts, "Study on Customary International Humanitarian law," 87.857 International Review of the Red Cross Rule 140, at 310 (Mar. 2005). 36 Alexandre Faite & Jeremie Labbe Grenier (eds.), The Report of the Expert Meeting On Multinational Peace Operations Applicability of International Humanitarian Law and International Human Rights Law to UN Mandated Forces [hereinafter Report of the Expert Meeting-ICRC], Geneva, Dec. 11-12,2003, at 24-25, for examples of forces that have acknowledged that they were guided by international humanitarian law in the conduct of military operations. 37 Report of the Expert Meeting-ICRC, supra note 36, at 13-14, notes that the experts pointed out, regarding de jure applicability, "that international humanitarian law and the law of occupation apply independently of the legitimacy of the intervention, and drew attention to the traditional separation between jus ad bellum and jus in bello. In principle, therefore, the legal basis for the occupation is irrelevant to the question of applicability of the Fourth Geneva Convention. It does not matter whether occupation takes place by only one or several States, or withi;J- the framework of a UN mandate." Executive Summary, at .2. available at http://www.icrc.org/Web/Eng/siteengO.nsf/htmla1ll5UPD5E/$File/ReporCMultinat]eace_Ops_TOGO.pdf (last visited Aug. 26, 2005). 38 See the application of international humanitarian law to Australian Defense Force operations in East Timor as part ofINTERFET pursuant SC Res. 1264 (1999), S/RESI1264, Sept. 15, 1999, as discussed in "Legal Aspects of Australia's Involvement in the International Force for East Timor," 841 International Review of the Red Cross 101 (1999). 34
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Practice and Policies of Modern Peace Support Operations
The law of occupation is contained in the Hague Regulations of 1907,39 the IV Geneva Convention of 1949 40 (IVGC), and Additional Protocol I of 1977 (AP I). Finally, the humanitarian safeguards arising from certain provisions of Additional Protocol II of 1977 (AP II), which supplements common Article 3 to all the Geneva Conventions, should be considered for two reasons. Firstly, the situation is not one that demands the observance of any particular convention by strict application of the law, but it is intended to form the principles that may guide action. Secondly, it is Part II of AP II that is of note because that part imposes human rights provisions, namely humane treatment.
B.
International Human Rights law
International human rights law may apply both in times of war and peace. 41 These laws comprise international and regional standards that include treaties, conventions, protocols, declarations and other instruments. They articulate broad guarantees regarding the rights of all human beings and include the Universal Declaration of Human Rights42 (UDHR) (1948), the International Covenant on Civil and Political Rights 43 (ICCPR) (1966), and the European Convention on Human Rights44 (ECHR) (1950). There are a number of ways in which human rights laws may be imported into a peace enforcement operation. It has been argued that since the Security Council resolution deploys the PSO under the auspices of the United Nations, all members of the UN Mission and the associated components should comply with the purposes of the United Nations, including the promotion of human rights, whether or not the resolution provides so specifically.45 Also, the prin39 Arts. 42~56, Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, the Hague, Oct. 18, 1907 (Hague Regulations). 40 IVGC, supra note 16, arts. 27~34 and 47~78. 41 See International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. Advisory Opinion, July 9, 2004, para. 106, where the court confirmed that "the protection offered by human rights conventions does not cease in case of armed conflict." 42 Adopted and proclaimed by GA Res. 217 A (III), Dec. 10, 1948. 43 6 ILM 368 (1967). 44 GA Res. 2200A XXI, 999 UNTS 171, Dec. 16, 1966 (entered into force May 23, 1976), reprinted in Convention for the Protedtion of Human Rights and Fundamental Freedoms, Council of Europe Treaty Series No. 005 (CETS No. 005), as amended and replaced by Protocol No. II (CETS No. ISS) as from the date of its entry into force on Nov. 1, 1998. 45 See John Cerone, "Minding the Gap: Outlining KFOR Accountability in PostConflict Kosovo," 12.3 European Journal of International Law 469, 474 (2001).
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ciple of automatic succession for human rights obligations may imply that the UN Mission, which exercises the functions of a public authority in a territory, may be bound by those obligations assumed by the former government where the territory remains part of that sovereign state. This would include a PSF that is granted executive powers to maintain security.46 However, the final and more appealing argument is that troop contingents may be bound by the human rights obligations of their sending states, thus making the individual state accountable and, possibly, subject to remedy. In relation to troop contingents of states parties to the European Convention of Human Rights, the contracting state may be held responsible for acts or omissions that amount to an unlawful interference of an individual's rights and freedoms set forth in the Convention, that occur within their jurisdiction.47 As observed by the ECHR in the Issa case: State's responsibility may be engaged where, as a consequence of military action-whether lawful or unlawful-that State in practice exercises effective control of an area situated outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control, whether it be exercised directly, through its armed forces, or through a subordinate local administration. 48 The rationale is that the jurisdiction requirement under the Convention cannot be interpreted so as to allow a state party to perpetrate violations of the Convention on the territory of another state, which it could not perpetrate on its own territory.49 More importantly for present purposes, a state may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State, but who are found to be under the former state's authority and control through its agents operating-whether lawfully or unlawfully50-in the latter state. 51 46
!d. at 474.
See llascu and Others v. Moldova and Russia, [GC], No. 48787/99, § 311, ECHR 2004. 48 See Issa and others v. Turkey, Application No. 31821/96, Judgment, Nov. 16, 2004, para. 69, at http://cmiskp.echr.coe.int/tkpI97 /view.asp?item= l&portal=hbkm& action=html&highlight=bankovic&sessionid=3596766&skin=hudoc-en (last visited Aug. 26, 2005). It must be noted that this decision is criticized for imposing duties outside of the "legal space" of the ECHR and is in conflict with another decision of the same Court. See infra note 54. 49 Id., para. 71. 50 Under international law, a "State is responsible for the acts of its agents undertaken in their official capacity and for their omissions, even when those agents act outside the sphere of their authority or violate internallaw": Velasquez-Rodriguez, judgment of July 29, 1988, Inter-AmCHR (1988) Series C, No.4, at paras 169-170. 51 Issa, supra note 48, para. 71. 47
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Practice and Policies of Modern Peace Support Operations
A similar approach 52 has been adopted by the Human Rights Committee for breaches ofICCPR and the Inter-American Commission on Human Rights for obligations under the American Declaration of the Rights and Duties of Man. 53 However, the ECHR made the determinations in a European context and the ICCPR is not universally ratified. Furthermore, whether a human rights convention can reach outside its "legal space" is in question. 54 Therefore, it remains in doubt whether the extraterritorial application of human rights obligations can apply to all PSOs. Nevertheless, if it applies, the forces of a troop contributing state may be considered agents of the state, and the actions of these troops may be assessed in accordance with the obligations in the relevant human rights document wherever they are operating.
C. PSF Immunity
An enforcement operation authorized under a Security Council resolution mandate often causes controversy when the acts of the PSF are assessed against human rights obligations. The operation carried out under a Security Council resolution does not change how IHL or human rights laws may apply, though it may affect whether they are enforceable. PSFs are generally accorded the privileges and immunities from process by courts of member states and other international institutions. This may be done through the application of the UN Charter, the Convention on the Privileges and Immunity of the United Nations,55 status of forces agreements (SOFA) or memoranda. The purpose of the privilege is to ensure that the Force can perform its tasks without undue and uncoordinated interference by courts from individual states and other international institutions with their respective different legal systems. There is, however, a difference between the immunity of an international organization as such and the immunity of its individual state representatives. Individual state accounta-
52 See the views adopted by the Human Rights Committee on July 29,1981 in the cases of Lopez Burgos v. Uruguay and Celiberti de Casariego v. Uruguay, Nos. 52/1979 and 56/1979, at §§ 12.3 and 10.3; and Coard et al. v. the United States, the Inter-American Commission of Human Rights decision of Sept. 29, 1999, Report No. 109/99, Case No. 10.951, §§ 37,39,41 and 43. 53 OAS Res. XXX, adopted by the Ninth International Conference of American States (1948), at OEA/Ser.L.V/II.82 Doc. 6 Rev. 1 (1992). 54 European Court of Human Rights, Bankovic a. o. v. Belgium and 16 Other Contracting States, Dec. 12,2001, Application No. 52207/99, admissibility decision (rejected). The Court stated that: "the Convention is a multi-lateral treaty operating [... J in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States. [... J The Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States." 1d., para. 80. 55 Adopted by the General Assembly on Feb. 13, 1946.
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bility is the issue. Considering that TCNs retain significant control over their forces when placed under unified command of a lead nation or regional organisation, there is likely to be sufficient authority and control imparted by the sending state to find that they have jurisdiction over the acts committed by their forces. Even if a TCN devolves a higher degree of command and control to an international organization, it is doubtful whether the individual state can claim to be shielded from the application of enforcement provisions in human rights treaties. They may be accountable for having freely entered into a multinational operation if human rights violations result. 56 Indeed, the absence of a means to obtain remedy for any violation and a lack of accountability would contradict the aims of human rights law.
D. Derogations Individual states may enter derogations to certain human rights obligations in accordance with the provisions of the relevant treaty during times of public emergency, though certain rights are non-derogable. 57 The level of emergency required is placed at a high level.5 8 However, it is doubtful that derogations can be made by a state and be limited to the area where their troop contingent is operating during a PSO.
56 See Waite and Kennedy v. Germany (Judgment), Application No. 26083/94 Feb. 18, 1999, para. 67 where the court "is of the opinion that where States establish international organizations in order to pursue or strengthen their cooperation in certain fields of activities, and where they attribute to these organizations certain competencies and accord them immunities, there may be implications as to the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention, however, if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution. It should be recalled that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective." 57 ICCPR, supra note 43, art. 4(1); ECHRsupra note 44, art. 15(2) and American Convention on Human Rights, OAS Treaty Series No. 36, 1144 UNTS 123, entered into force July 18, 1978 (ACHR), art. 27(2). 58 See General Comment No. 29, issued by the UN Human Rights Committee in 2001, which confirmed that human rights can be derogated from only in emergency cases and placed the threshold for such emergency situations very high. Indeed, "even during an armed conflict measures derogating from the Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the nation" (General Comment 29, States of Emergency (Article 4), UN Doc. CCPRlC/211Rev.lIAdd.ll (2001».
16
E.
Practice and Policies of Modern Peace Support Operations
Justifications for Necessity
Certain rights may be interfered with in certain circumstances where the necessity to do so outweighs the right interfered with. These include justifications that are stated in various ways but include: in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of rights and freedoms of others. 59 In order to apply this reservation, the PSF should consider that the closer the situation reaches normality, the more difficult it is to justify operations that interfere with certain rights. Where the right requires that necessary interference is done in accordance with law, civilian law enforcement authorities should be encouraged to assume an increasing competence in enforcing the law and take over more of the internal security duties as their capacity and the security situation allows. In any case, the PSF should use force reasonably and to the extent necessary to complete the task.
F.
Assessment
The law of occupation provides a framework for administering a territory, establishes duties for the PSF and imposes non-derogable humanitarian safeguards. However, where IHL is in conflict with human rights law, for example the remedy of habeas corpus, IHL should outweigh human rights obligations where it applies stricto sensu. 60 Clearly, the application of human rights in the context of special situations that arise out of complex missions poses an enormous challenge for a PSF commander. The PSF may enter a theater of operations where the legal status is post-conflict and not armed conflict but the security environment is similar. The Force will have to balance the necessity to establish security by applying robust ROE bUT, at the same time, consider to what extent human rights law impacts enforcement operations in relation to the means and methods used, and under which circumstances they may be carried out. Security tasks are closely allied to the prevention and detection of crime and may involve restraint and detention operations, searches and the seizure of items in order to maintain a secure environment. How the limitations described above impact certain security operations will be discussed in the following part, which will focus on the experience in Kosovo. 59 60
See for example, ECHR, supra, art. 8. On a lex specialis application of international humanitarian law.
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III. ELEMENTS OF LAW ENFORCEMENT-A KOSOVO PERSPECTIVE
A.
Immediate Actions
After NATO's military intervention in Serbia during MarchlJune 1999, Serbian forces withdrew from the semi-autonomous province of Kosovo pursuant to a Military Technical Agreement. 61 This gave operational space for the NATO-led peacekeeping force to execute a mandate provided by Security Council Resolution 1244.62 Immediately after the withdrawal of the Serbian Forces, the Kosovo Liberation Army (KLA) assumed responsibility for internal security functions. Even while the KLA was undergoing demilitarization63 during the summer of 1999, it was the de facto body taking charge of law and order in many parts of the province. Under the mandate, the international security presence,64 known as KFOR, had the responsibility to maintain public safety and order until the international civilian presence, otherwise known as UNMIK,65 could take over. 66 Acting as a rudimentary police force, KFOR conducted law enforcement duties. It was assisted initially by a small UN Civilian Police Force (CIVPOL) detached from the International Police Task Force in Bosnia. 67 On June 30, 1999, KFOR had 23,518 troops in the province,68 and there were 38 international civilian police officers. 69 The murder rate was 50 persons per week. 70 By November 1999, of 61 Military Technical Agreement signed by the International Security Force (KFOR) and the military representatives of the Federal Republic of Yugoslavia and the Republic of Serbia on Wednesday June 10, 1999. 62 SC Res. 1244 (1999), supra note 2. 63 Undertaking of Demilitarization and Transformation by the UCK, June 20, 1999, at http://www.nato.intlkfor/kfor/documents/pdf/uck.pdf (last visited Aug. 25, 2005). 64 The term used in SC Res. 1244, supra note 2, for the PSF, more commonly known as Kosovo Force, or KFOR. 65 The United Nations Interim Administrative Mission in Kosovo established as the "International Civilian Presence" under SC Res. 1244, supra note 2 [hereinafter UNMIK]. 66 SC Res. 1244, supra note 2, para. 9(d). 67 UNMIK/PR/4: Press Release, June 28, 1999, at http://www.unmikonline. org/press/press/pr4.html (last visited Aug. 6,2005. Under SC Res. 1244, supra note 2, para. II(i), CIVPOL had executive police powers in Kosovo and were not merely police monitors. Later, CIVPOL were joined by members of the Kosovo Police Service and are known as UNMIK Police. 68 Just over half the size of Wales and around 2 million inhabitants. 69 Letter from UN Secretary-General to the President of the Security Council, UN Doc. S/1999/767,Ju\y 8,1999. 70 NATO, NATO Factsheets-Kosovo Facts and Figures, as of27 November 2000, updated on Dec. 5, 2000, at http://www.nato.int/docu/facts/2000Ikosovo-ff.htm (last visited July 27, 2005).
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Practice and Policies of Modern Peace Support Operations
the 6,000 CIVPOL requested by the Security Council, 1,900 police officers were deployed. In order to establish a sense of order, UNMIK very quickly took steps to deal with the climate of impunity and lawlessness. However, in June 1999, the applicable law was uncertain. UNMIK passed Regulation 199911 71 to vest in itself, all legislative and executive authority with respect to Kosovo, including the administration of the judiciary. It also provided that the laws enacted prior to March 24, 1999,72 would be in force so long as they were consistent with international human rights standards. This caveat heeded, in principle,73 the provisions in the IVGC of 1949 74 relating to passing penal laws, that laws may be amended that are unreasonable, cruel, inhumane or discriminate. Immediately, the majority ethnic Albanian legal community in Pristina expressed their deep concern that this body of law would include discriminatory "Serbian" laws that were passed since 1989. Unfortunately, these laws included many Serb wartime emergency powers that violated peacetime human rights standards. The few recently appointed ethnic Albanian judges and prosecutors rejected them and continued to use the Kosovo Criminal Code that was repealed in 1989, but adopted the Yugoslav Criminal Procedure Code and elements of the Yugoslav criminal code that provided for war crimes. 75 This maintained the legal confusion. 76 UNMIK issued a statement on July 4, 1999 to reiterate KFOR's mandate under Security Council Resolution 1244 to ensure public safety, civil law and order until UNMIK could take full responsibility for this and that KFOR had
71 UNMIK Regulation 1999/01, July 25,1999, entered into force July 24,1999, but deemed to have been in force since June 10, 1999, at http://www.unmikonline.org/regulations!l999/re99_0 l.pdf (last visited Aug. 26, 2005). 72 At the insistence of the Russian government, see Simon Chesterman, Report of the International Peace Academy, Justice under International Administration: Kosovo, East Timor and Afghanistan, Sept. 2002, at http://www.ipacademy.org/Publications/ Publications.htm (last visited Aug. 22, 2005). 73 As discussed above, this study takes no position whether UN peace operations involving transitional administrations should or must comply with the laws of occupation but they may serve as guidelines. 74 IVGC, supra note 16, art. 64. 75 For a report on the use of International Judges and Prosecutors to seize control of the war crimes prosecutions initiated by the ethnic Albanian judges and prosecutors, see Michael E. Hartmann, International Judges and Prosecutors in Kosovo: A New Modelfor Post-Conflict Peacekeeping, Special Report of the United States Institute of Peace, at http://www.usip.org/pubs/specialreports/srI12.pdf (last visited June 26, 2005). 76 Eventually, there was a revision of the Regulation in UNMIK Regulation 1999/24, Dec. 12, 1999, declaring that the laws in force on Mar. 27,1989 would be the applicable law in force, at http://www.unmikonline.org/regulations!l999/re99_24.pdf (last visited Aug. 25, 2005).
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the right to apprehend and detain persons suspected of offenses against public safety and order, including murder, rape, kidnapping, arson or war crimes.7 7 This message evidences the intent to fulfill the mandate and to comply with the obligation in the Hague Regulations for the occupying authorities to restore and ensure, as far as possible, public order and safety.78 To assist this aim, UNMIK passed Regulation 1999102 on August 12, 1999, to provide that the relevant law enforcement authorities: may temporarily remove a person from a location, or prevent access by a person to a location, if this is necessary in the opinion of the law enforcement authorities and in light of the prevailing circumstances on the scene, to prevent a threat to public peace and order. 79 This is within the remit of an occupying power under the provisions of IVGC to subject the population to provisions that are essential to enable it to fulfill its obligation to maintain orderly government of the territory,80 and, subject to the reservations to the minimum standards of treatment of protected persons, to take necessary measures of control and security.81 The short term of restraint provided under this Regulation, which limited it to a maximum of 12 hours, is generally consistent with what was necessary. KFOR contingents were assigned areas of responsibility and displayed force through presence on the ground. However, for a multitude of reasons, KFOR could not curb the displacement and killings of Kosovo's minorities in the first months. 82 A significant number of people disappeared, some seen to be taken by persons who appeared to be KLA soldiers. These disappeared include ethnic Albanians, purportedly for having collaborated with the Serbian Forces during the internal struggle. 83 KFOR troops were immediately involved in restraining and detaining those who destroyed homes and buildings, committed homicide, arson and rape. Where the arrest of a civilian is conducted during a post-conflict emergency situation, the obligations and standards of treatment found at Article 75 77 UNMIKlPRJ7 Press Release, July 4,1999, at http://www.unmikonline.org/press/ press/pr7.html (last visited Aug. 6,2005). 78 Supra note 39, art. 43. 79 Article 1.1., UNMIK Regulation 1999/02, at http://www.unmikonline.orglregulationsll999/re99 _02.pdf (last visited Aug. 28, 2005). 80 IVGC, supra note 16, art. 64, para. 2. 81 !d., art. 27, para. 4. 82 See Chapter 17, Human Rights Watch Report, Under Orders: War Crimes in Kosovo [hereinafter Under Orders], at http://www.hrw.org/reportsI2001/kosovo/undword2c.html (last visited Aug. 25, 2005). 83 See Amnesty International's Recommendations for UNMIK, EUR 701006/2000, Feb. 4, 2000, at http://web.amnesty.org/library/Index/engEUR700062000 (last visited Aug. 6, 2005).
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Practice and Policies of Modern Peace Support Operations
of Additional Protocol 184 may guide the actions of PSF personnel. The arrested person shall be informed promptly, in a language he understands, of the reasons why these measures have been taken and, except in cases of arrest for penal offenses, such persons shall be released with the minimum delay possible and, in any, event as soon as the circumstances justifying the arrest or detention have ceased to exist. 85 There are special provisions for the treatment ofwomen86 and children 87 in AP 1. In any event, the PSF must act humanely88 and should ensure that they respect IHL and international standards of human rights. Also, the national law of the territory should apply where it exists and the PSF should facilitate any subsequent criminal proceedings in order to comply with "the fundamental notion to respect the applicable local law: that the penal legislation in force must be respected by the Occupying Power."89 Where there is no threat to force protection or otherwise to its own security, the local penal code and rules of procedure should be applied. 90 In terms of the law of occupation, the 1VGC provides a further restriction that occupying powers may not prosecute and punish protected persons for acts, other than breaches of the laws and customs of war, that they are alleged to have committed before the territory was occupied. 91 In practice, permitting persons accused of committing offenses prior to entry to remain at large may encourage violent acts of revenge and impact the PSF's ability to maintain peace and security. Revenge occurred in Kosovo. Immediately after KFOR entered Kosovo, the ethnic Serbian and Roma minority, a large number of which were believed to have collaborated with the Serbian forces, were harassed, beaten and driven out of their homes, which were then burned.92 The Secretary-General's Special Representative93 (SRSG) reported in December 1999 that: 84 Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and relating to the Protection of Victims ofInternational Armed Conflicts (I 977) (Protocol I), UN Doc. A/321I44, Aug. 15, 1977. [hereinafter AP 1]. 85 !d., art. 75, para. 3. 86 Jd., art. 76. 87 Id., art. 77. 88 Including the standards in Common Article 3 to the Geneva Conventions 1949. 89 See Jean S. Pictet (ed.), Commentary to the Geneva Convention IV of 12 August 1949, ICRC, 1958, (first reprint, 1994, Geneva), art. 64, at 335. 90 IVGC, supra note 16, art. 64, para. I; Hague Regs, supra note 79, art. 43. 91 IVGC, supra note 16, art. 70. 92 Under Orders, Chapter 17, supra note 82, reports that the "KLA and ethnic Albanian civilians carried out widespread burning and looting of homes belonging to Serbs, Roma and other minorities, and destroyed many Orthodox churches and monasteries in the immediate aftermath of KFOR's arrival in Kosovo. Attackers combined this destruction with killings, harassment and intimidation designed to force people from their homes and communities, a pattern which continues today. Members of minority groups in Kosovo have been detained, beaten, and sometimes tortured, with as many as 1,000 Serbs and Roma reported unaccountcd for after abductions since the end of the conflict." 93 Dr. Bernard Kouchner.
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27
young people, some only 10 or 12 years old, harassing, are beating and threatening people, especially defenceless elderly victims, solely because of their ethnicity. This cruel behaviour cannot be accepted. Sometimes adults use children to commit abuses because the adults know that KFOR will not detain juveniles since there is no juvenile detention facility. 94 Where suspects were detained, most were released within a few days for there were inadequate facilities to house them. The SRSG95 stated that: killings, kidnapping, forced expulsions, house burnings and looting are a daily occurrence. These are criminal acts. They cannot be excused by the suffering that has been inflicted in the past. Kosovo's future must be built on justice, not vengeance. 96 The general population, in particular the minority ethnicities, were not "at all times protected against all acts of violence or threats thereof,"97 nor were they guaranteed the right to life, liberty or security,98 and certainly, the freedom of movement was circumscribed. 99 KFOR was greatly disadvantaged in trying to enforce the rule oflaw through justice, in part because the applicable laws were not in a language most contingents could understand. There was confusion over the legal procedure and its application was unacceptably slow as it required an investigating judge to take evidence. There were very few judges and no local police force. Prior to the conflict, most of the police, prosecutors and judges in Kosovo were Serbian, due to the purges and resignations of the ethnic Albanians in 1989 and the early 1990s. 100 When the Serbian forces left, so did the justice sector. UNMIK very quickly appointed five judges and three prosecutors on June 30, 1999, to deal with the 221 suspects KFOR had detained in the first three weeks of entry into KoSOVO IOI and to enforce the law that had recently been dec1ared. 102
94 In the forward to OSCE Mission in Kosovo Report, On the Human Rights Situation in Kosovo 1999. 95 Sr. Sergio Vieira de Mello. 96 UNMIKlPRl9 Press Release, July 24, 1999, at http://www.unmikonline.org/ press/press/pr9.html (last visited Aug. 6, 2005). 97 IVGC, art. 27. 98 Universal Declaration of Human Rights (UDHR), art. 3, adopted and proclaimed by GA Res. 217 A (III), Dec. 10, 1948; ECHR, supra note 44, art. 5 and ICCPR, supra note 43, art. 6. 99 UDHR, supra note 98, art. 13( 1). 100 Hartmann, supra note 75, at 3. JOI UNMIK/PR/5 Press Release, June 30, 1999, at http://www.unmikonline. org/press/press/pr5.html (last visited Aug. 6, 2005). 102 See UNMIK Regulation 1999/01, supra note 71.
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Practice and Policies of Modern Peace Support Operations
In relation to war crimes, there were very few KFOR personnel who could undertake the patient and detailed investigation tasks required. In the majority of cases where allegations and reports of war crimes were received, they could not be investigated. In any case, KFOR was not logistically configured for large scale investigations. This created problems for war crimes prosecutions conducted in the Kosovo courts that came later. Witnesses' memories faded, stories were embellished and some were concocted. Without a comprehensive and detailed statement taken near the time of the offense, witnesses' credibility and reliability were easily challenged. Many cases are unlikely to reach the evidentiary standard required for an indictment. A significant number of cases remain unsolved and are still under investigation. The sheer volume of reports was overwhelming. Where KFOR troops were active in conducting investigations into alleged war crimes, the statements were, in most cases, disclosed to investigating authorities including representatives from the ICTYI03 and UNMIK Police. In the circumstances, UNMIK and KFOR delegated the obligation to investigate grave breaches of the Geneva Conventions 104 to the ICTY, which was supported by investigators 105 and forensics teams seconded from national police and other forces. I06 KFOR troops were assigned to secure investigation sites and provided protection to these investigators. Numerous international and national non-governmental organizations (NGOs) began to interview the victims and their families. It was reported that: by December 1999, over 500 mass grave and killing sites were recorded by the ICTY, KFOR and other international organizations. The total number of bodies reported to the ICTY at over 500 gravesites was over 11,000. Of these 500-plus sites, the ICTY confirmed completion of field investigations at about 200 sites, as of early November 1999. International Criminal Tribunal for the Former Yugoslavia. Art. 146, para. 2, "Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to anotru:.r High Contracting party concerned, provided such High Contracting Party has made out a prima facie case." 105 For example, a team of 56 Federal Bureau ofInvestigation personnel-including Special Agents, crime scene investigators, scientists, and forensic experts-and four forensic specialists from the Armed Forces Institute of Pathology (AFIP) were sent to Kosovo to begin searching for evidence of war crimes at two sites where the bodies of victims of alleged atrocities were found. See the Press Statement of the US FBI Director, June 23, 1999, at http://www.fbi.gov/pressrellpressreI99/kosovol.htm (last visited Aug. 28,2005). 106 The teams were deployed by 15 nations: Austria, Belgium, Canada, Denmark, Finland, France, Germany, Iceland, Luxembourg, Netherlands, Spain, Sweden, Switzerland, the United Kingdom and the United States. 103
104
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Over 2,100 bodies had been confirmed to be found by investigators at over 160 sites, or an average of about 11 bodies per site. lo7 According to Carla del Ponte, the ICTY Chief Prosecutor, 526 mass graves have been identified in Kosovo and more than 4,000 bodies have been exhumed. Investigators have found evidence that, in some cases, bodies were removed from mass grave sites before the arrival of international teams. 108 Overall, KFOR and UNMIK were under-prepared to fulfill its obligations qua occupying power. 109 The armed conflict was over, and the withdrawal of Serbian forces was completed within the time frame agreed. On entry into Kosovo, there was no credible and manned police force and no functioning judicial and penal system. There was insufficient KFOR personnel to contain all the violence that erupted. There was no immediately available and dedicated law enforcement component to the UN Mission to deal with the high level of crime and public disorder directly after the cessation of hostilities, and there was a lack of appreciation of the status of the judicial sector and its capacity. The PSF was predominately a combat force ready to enforce the provisions of the MTA, not specifically configured to confront post-conflict turmoil and undertake transitional law enforcement duties.
B. Transition to Normality-Law Enforcement Activity Once the environment transitions towards normality, or at least where there is no widespread disorder or lawlessness, the PSF should routinely consider whether exigent circumstances exist to justify interfering with individual rights. There is likely to be a divergence of opinion when assessing whether the environment is secure enough so that the force should desist from exercising its authority to use all necessary means to fulfil its mandate and comply fully with international human rights standards. During the initial phases ofthe PSO, KFOR apprehended and detained persons suspected of having committed offenses against public safety and order, including serious offenses. Following the disintegration of law and order that was the aftermath of the conflict, KFOR retained the power to take action where
107 See US State Department Report, December 1999, at http://www.ess.uwe. ac.uk/Kosovo/Reports/atrocit.html (last visited Aug. 28, 2005). 108 NATO Factsheets, supra note 70. 109 R. Jeffrey Smith, "Kosovo Still Seethes as U.N. Official Nears Exit," The Washington Post, Dec. 18, 2000, at 20, reporting the departing speech of SRSG Bernard Kouchner: "peacekeeping missions need a judicial or law-and-order "kit" made up of trained police officers, judges and prosecutors, plus a set of potentially draconian security laws or regulations that are available on their arrival. This is the only way to stop criminal behavior from flourishing in a postwar vacuum of authority."
24
Practice and Policies of Modern Peace Support Operations
necessary to maintain a secure environment. I 10 After the arrival of CIVPOL and the formation of the Kosovo Police Service, primary competence for law enforcement was gradually transferred to the civilian police through a memorandum of understanding (MOU) prepared between UNMIK and KFOR Multinational Brigades. I II This satisfied the transition strategy foreseen in the Security Council resolution, it acknowledged the fundamental notion to respect the applicable local law and permitted an accountable government authority to take responsibility for conducting law enforcement duties.
C. Arrests or Restraints
When persons are observed committing criminal offenses, PSF personnel may need to conduct short-term detentions, searches and immediate investigations. These situations may arise during patrols or security operations, notably searches for weapons and explosives. Even with effective coordination, the local police forces may be delayed or absent so that the PSF may need to secure the site and restrain the suspects. In relation to apprehending criminal suspects, the PSF should consider firstly, whether there is authority under the mandate, the ROE and the applicable local law to restrain and, secondly, the level of force that is applied and how the suspect is handled. The first issue may rest on an interpretation of the mandate and the authority under local law. Security Council Resolution 1244 may be interpreted to confer on KFOR the power to conduct law enforcement tasks. In general, KFOR Commanders resisted the force being labeled a law enforcement agency for the purposes of the law on criminal procedure, as it would be inconsistent with the authority in its military plans. However, it did not prevent some UNMIK Regulations from including KFOR as a "relevant law enforcement authority" for the purposes of the regulation. II2 The applicable local criminal procedure code was silent on the question whether there was a power for individuals, who were not law enforcement authorities, to temporarily restrain those caught in delicto jlagrante. Il3 Though local practice allowed such action, KFOR seemed to rely on SC Res. 1244, supra note 2, para. 9(a). From 2000 to 200 I. 112 For example, Regulation 2000/62, On The Exclusion ofPersons For a Limited Duration to Secure Public Peace, Safety and Order, Nov. 30, 2000, at http:// www. unmikonline.org/regulations/2000/re2000_62.htm (last visited Aug. 25, 2005), conferred the power on KFOR and UNMIK Police to issue an exclusion order requiring a person to leave and/or stay away from a prescribed area and was specifically created to deal with certain individuals who were prominent instigators of violent public disorder. 113 This lacunae was filled when the law was revised and the Provisional Criminal Procedure Code of Kosovo was implemented in April 2004. 110
III
Establishing the Rule of Law
25
the authority contained in the Resolution to effect restraints, which were tantamount to being arrests, of persons observed committing crimes. However, the position is less clear when someone is only suspected ofhaving committed or planning to commit a criminal offense. In conducting peace enforcement operations, which include counter-terrorist and force protection missions, PSF personnel may engage in locating and detaining suspects that have been developed through intelligence activities, rather than catching the suspect during the commission of a crime. In these situations, the PSF should consider and apply international human rights standards and determine whether the information is sufficiently credible and reliable for a restraint operation. The UDHR,114 ICCPR,ll5 and ECHRl16 provide for the right to liberty and security of the person, including the right that no one shall be subjected to arbitrary arrest or detention. Both the ICCPR and the ECHR allow for the deprivation of liberty on grounds and in accordance with the applicable law on criminal procedure, but the ECHR enumerates a particular standard to be met before arrest. ECHR Article 5.1.(c) provides: the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so. Having a reasonable suspicion presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offense.ll7 What may be regarded as reasonable will, however, depend on all the circumstances. I 18 However, this does not mean that the suspect's guilt must be established. That is the role of the investigation to determine the reality and nature of the offenses alleged, I 19 and the sub-section does not presuppose that the arresting authority should have obtained sufficient evidence to bring charges at the point of arrest. 120 But any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very pur-
Supra note 98, art 3. Supra note 43, art. 9. 116 Supra note 44, art. 5. 117 Labita v. Italy [GC], No. 26775/95, § 155, ECHR 2000-IV 118 See Fox, Campbell and Hartley v. the United Kingdom, Judgment of Aug. 30, 1990, Series A, No. 182, at 16, para. 32. 119 See Murray v. the United Kingdom, Judgment of Oct. 28, 1994, Series A, No. 300-A, at 27, para. 55. 120 See Erdagoz v. Turkey, Judgment of Oct. 27, 1997, Reports 1997-VI, at 2314, para. 51. 114
lIS
26
Practice and Policies of Modern Peace Support Operations
poses of ECHR Article 5, and ICCPR Article 9, namely to protect an individual from arbitrary detention. 121 The relevant provisions under the ICCPR and the ECHR require that a detainee is entitled to take proceedings before a court that may decide without delay on the lawfulness of detention and order release if it is not lawful. I22 Therefore, the PSF should consider the legal authority under which the suspect will be restrained and the duration of it. If the suspect is going to be detained, the PSF should consider whether the suspect will be handed over immediately to the civilian authorities or if a joint operation can be conducted. If not, the force must consider its detention powers under the mandate and whether the situation allows for non-judicially imposed detention. 123 If the suspect is to be handed over immediately and not detained under the PSF's authority, the applicable laws in force will determine whether the suspect can be held in custody. A thorough comprehension and understanding of the applicable local legal standards, rules of evidence and witness protection measures are essential. The intelligence information that forms the basis for the operation must be releasable; human intelligence information should be converted to witness statements; human sources must be converted to witnesses; evidence collected by covert measures must be admissible. This information may be required for proceedings to determine the legality of detention and for the purposes of pre-trial detention or custody. Further, before the operation is carried out, the PSF should consider whether the force can coordinate with the judicial authorities to obtain any necessary orders or warrants to effect an arrest in accordance with the local criminal law. This may depend on a number of factors, including the level of confidence and trust in keeping the information confidential, operational security, and protecting the necessary prosecutors and judges from reprisal and intimidation. In the circumstances, the necessity for the operation may not justify the breach of an applicable human rights obligation. Subject to derogation, human rights law does not provide grounds for an arrest outside the procedure pre121 See Chahal v. the United Kingdom, Judgment of Nov. 15, 1996, Reports 1996V, at 1864, para. 118. 122 ICCPR, supra note 43, art. 9, para 4 and RCRR, supra note 44, art. 5, para. 4. 123 For a discussion on the use of Executive Detention in Kosovo, see The Report of the Legal Systems Monitoring Section, Organisation for Security and Cooperation in Europe's Mission in Kosovo, Kosovo Review O/The Criminal Justice System September 200l-February 2002, at 45-51, the report comments on KFOR Commander's Directive 42, which provides for the use of detentions, and states "OSCE understands that KFOR has assumed its detention authority from the provision of the UN SCR 1244 authorising the international security presence in Kosovo (KFOR) to use "all necessary means" to fulfill its responsibilities. Moreover, KFOR feels that it is authorised to detain people in order to maintain a "safe and secure environment" in Kosovo for as long as "civilian authorities are unable or unwilling to take responsibility for the matter," at http://www.osce.org/documents/mik/2002/04/9653n.pdf (last visited Aug. 25,2005).
Establishing the Rule of Law
27
scribed by law. Noting earlier that it is doubtful that derogations by a contracting state can be limited to its peace enforcement forces outside the state itself, a PSF may find it difficult to justify the execution of a restraint and detention operation outside a procedure provided for by law. Nevertheless, in the context ofPSOs, extrajudicial detentions have been justified on various grounds including assertions that the peace enforcement mandate specifically provides for it, or that the operation is excused by exigent circumstances such as an emergency situation evidenced by widespread violent civil disorder or where there is a real threat that this may occur.
D. Use of Force During Arrest
Every arrest implies an element of coercion and it is often necessary to use force to apprehend a suspect. The level of force used must be necessary to complete the act but military troops are not always trained to use graduated force and may not have non-lethal weapons to assist them. This has lead to grave reservations to giving military forces the power to arrest. However, by failing to demonstrate a will to exercise this power and by acceding to the threat, the credibility and authority of the force could come into question. This had dire consequences in the riots that occurred in Kosovo during March 2004.124 Between March 17-19, 2004, there was province-wide rioting and individual acts of violence targeted against the Serbian minorities and UNMIK. Nineteen deaths were attributed to the rioting, three of which were acknowledged as a result of KFOR operations. The violence was condemned in a joint statement of the Kosovo political leaders, the Quint Nations,125 the EU Presidency and SRSG Harri Holkeri: 124 See comments in the report of the International Crisis Group (lCG), ICG Europe Report No. 155, Apr. 23, 2004, at 19 which assessed that "KFOR was caught without a contingency plan. Its troops often appeared to lack a coherent use-of-force continuum, caught between ineffectively attempting to stop mobs with their bare hands and firing live rounds at them~a last resort which, again to soldiers' credit, was used sparingly. KFOR did a creditable humanitarian job, but a terrible military one. Except at Caglavica, it was defeated," at http://www.crisisgroup.orgllibrary/documents/ europe/balkans/I 5530llapse_in_kosovo_revised.doc (last visited Aug. 28, 2005). Also, see Amnesty International Report, The March Violence: KFOR and UNMIK sfailure to protect the rights of the minority communities, at http://www.amnestyusa.orgiracial_profiling/document.do?id=4070400D98F709C680256EC30052BC92 (last visited Aug. 28, 2005). 125 The term "Quint" is often used to identify the following states: U.S., Great Britain, Italy, Germany and France that formed an informal "core" group of the NATO member states that worked to ensure and fostered consensus within NATO states during the air campaign in March-June 1999. See the role of the "QUint" as described by Peter Beaumont & Patrick Wintour, The Observer, July 18, 1999, available at http://
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Practice and Policies of Modern Peace Support Operations
the police and KFOR will take care of security and they must be allowed to do their work. The events of today and the last days will be investigated, and those responsible for deaths and acts of violence will be prosecuted.
In isolated incidents, ethnic Serbian villages located outside two different KFOR bases, were allowed to be razed to the ground after UNMIK Police and KFOR troops had evacuated them. 126 In another, a historic Orthodox church was destroyed by rioters after KFOR troops left their post, which was to guard the property, after asking the mob for time to remove their possessions first. 127 Individual KFOR contingents reacted in different ways to control their areas of responsibility in accordance with their national caveats on the use of lethal or non-lethal force. Some took a more aggressive posture and prevented the loss of life and widespread crime and violence. Others allowed the mobs to rampage. Later, in a press conference, the KFOR spokesperson remarked that: we had an option either to protect the people of Kosovo or the buildings of Kosovo. We chose to protect the people of Kosovo. We only had so many soldiers here on the ground and those were our options and that is what we did. 128 While multinational force ROE authorize the use of lethal force in certain situations, commanders and national governments will control the occasions when lethal force may be used during peace enforcement operations. There is no substitute for the rigorous training of soldiers to adhere to operational procedures 129 that provide for how it is to be used. Considering that PSFs may well be tasked with law enforcement duties, it may be apt to consider the standards which civilian security forces, including police, may be assessed against. In relation to the use of force, the ICCPR provides that every "human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."130 The Human Rights Committee noted the following:
observer.guardian.co.uk/milosevic/story/O, 10639,5201 77,OO.html (last visited Oct. 8, 2005). 126 Belo Polje village, Peje/Pec Region and Svinjare/Frasher village, Mitrovica Region. 127 Prizren town. 128 KFOR Spokesperson, Jim Moran, in the UNMIK Press Briefing on Apr. 7, 2004, at http://www.unmikonline.org/press/2004/trans/tr070404.pdf (last visited Aug. 28,2005). 129 May be reduced to instructions on printed cards and issued to soldiers for that particular theater or operation. 130 ICCPR, supra note 43, art. 6, para. I.
Establishing the Rule of Law
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The protection against arbitrary deprivation of life which is explicitly required by the third sentence of article 6 (1) is of paramount importance. The Committee considers that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities. 131 As a guide, the United Nations issued a set of basic principles on the use of force by law enforcement officials,I32 which provides variously: Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life ... 133 law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms, with sufficient time for the warnings to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident. I34 ECHR Article 2, provides instances when "the deprivation of life shall not be regarded as inflicted in contravention of the article when it results from the use of force which is no more than absolutely."[Kl] These include: acts in defense of any person from unlawful violence; acts to effect a lawful arrest or to prevent the escape of a person lawfully detained; action lawfully taken for the purpose of quelling a riot or insurrection. These grounds do not expressly include the use of lethal force in defense of property, but the article may be interpreted inclusively. The UN Guidelines limit the intentional lethal use of firearms to See General Comment No.6, Article 6, l6th Sess. (1982), para. 3. United Nations, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, Aug. 27 to Sept. 7, 1990, at http://www.unhchr.ch/html/menu3/b/h_comp43.htm (last visited Aug. 30,2005). 133 Id., para. 9. 134 Id., para. 10. 131
132
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Practice and Policies of Modern Peace Support Operations
when it is strictly unavoidable in order to protect life. This is a narrower rule than provided for in the ICCPR. While multinational PSF ROE may designate certain property with a special status and authorize the use of lethal force to defend it, national contingents may apply a more restrictive application and prohibit such action. The treaty obligations of states prevail. Applicable human rights obligations fix the responsibility for producing procedural safeguards on the nation itself. Article 2 of the ECHR: does not grant a carte blanche. Unregulated and arbitrary action by State officials is incompatible with effective respect for human rights. This means that, as well as being authorised under national law, policing operations must be sufficiently regulated by it, within the framework of a system of adequate and effective safeguards against arbitrariness and abuse of force. 135 Therefore, at least on this basis, the promulgation of policy and guidelines on the use of lethal force should be an individual nation's prerogative. TCNs are likely to provide procedures for their own forces that may not correspond with another State's or with that of the lead nation or international organization. This is one reality of multinational PSF operations.
E.
Searches
KFOR conducts province-wide search operations to locate and remove unauthorized weapons from circulation. Searches of private residences occur daily. These amount to an interference with the rights to privacy 136 and, where items are seized, impact the right to peaceful enjoyment of possessions. 137 KFOR justifies this intrusion on the necessity to maintain a safe and secure area, and frequent press releases elaborate this reasoning. Where a peace support operation transitions towards normality, the PSF should state its mandated search policy clearly-that it is necessary in the interests of security and the prevention of disorder or crime. KFOR search operations are conducted w1thout judicial warrants. Under the applicable law, warrants are required unless there are exigent circumstances for the search or the home owner consents. While such searches are justifiable 135 Makaratzis v. Greece, Application No. 50385/9, Dec. 20, 2004, para. 58; see also, mutatis mutandis, Hilda Hafsteinsdottir v. Iceland, No. 40905/98, June 8, 2004, para. 56; and, Human Rights Committee, General Comment No.6, art. 6, 16th Sess. (1982), para. 3. 136 UDHR, supra note 98, art. 12; ICCPR, supra note 43, art. 17 and ECHR, supra note 44, art. 8. 137 ECHR, supra note 44, First Protocol, art. I.
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under the Security Council resolution mandate, those conducted in support of the police and, at their behest, without a warrant have prevented the admission of search evidence at trial under the exclusionary rules of evidence contained in the applicable criminal procedural law. There are procedural and criminal penalty safeguards built into the local criminal law to deter unlawful searches by police officers. But it is not unlawful for KFOR personnel to conduct searches without a warrant since KFOR have expressly reserved their security role and ensured that the amended criminal procedure code did not make them subject to the provisions that relate to safeguards against arbitrary government interference with an individual's human rights. At present, it remains unclear whether evidence uncovered by KFOR during a search, which the Force initiates and conducts without a warrant, is admissible. In some significant counter-terrorism and organized crime operations, KFOR have coordinated their activities with the relevant police departments and public prosecutors, in order to obtain judicial warrants for searches. This cooperative approach goes a long way to ensure that an individual's rights are protected and facilitates a criminal prosecution. However, this does not appear to be standard procedure. Where weapons are found, the civilian police are normally summoned to take charge of the crime scene, secure the weapons, except where they are an explosive ordnance device, and to initiate the investigation. 138 However, it is common for regular KFOR troops to leave without providing any reports or statements of the operation to the investigators. Even where the search is conducted against known criminal elements, commanders are often reluctant to involve their personnel in a criminal case and invoke their immunity from process. The individual soldiers, who conduct the search, do not assist criminal prosecutions by providing statements or appearing as witnesses. The search commander may prepare a general report, but, often, this lacks sufficient detail of the exact location of the find for prosecution purposes.
F.
Cooperation With Law Enforcement Authorities and Criminal Prosecutions-Re-Establishing the Rule of Law
In order to establish and maintain the rule of law, it is imperative that the PSF maintains close cooperation with the law enforcement authorities to facilitate prosecutions, whether by collecting evidence, producing statements or giv138 Under the Provisional Criminal Code ofKosovo, Article 328 provides that it is an offense to possess a weapon without authorization and the penalty is from one to eight years or a fine of7,500 Euro. However, in relation to the vast numbers of weapons that have been seized, a very small proportion of them result in a conviction. This is partly due to the fact that the courts are overwhelmed with cases and unlawful weapons possession cases are treated as low priority because pre-trial detention is not generally imposed for such offenses.
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Practice and Policies of Modern Peace Support Operations
ing evidence in court. It should be done as a matter of practice and out of a sense of duty. If not, the PSF jeopardizes the re-establishment of the rule of law and fosters impunity. KFOR employs specialized military/special police forces such as the Italian Carabinieri and the Austrian and French Gendarmes, to form multinational specialized units (MSU). The MSU augments and provides the force with a specialised law enforcement capability to deal with riots, targeted searches, counter terrorism and counter-organized crime operations. They are directly tasked and commanded by the KFOR Headquarters. The role played by the MSU in Kosovo demonstrates the impact and synergy of coordinated activity between military security forces and civilian police. Also, it should serve as a model for regular units to follow. 139 Relatively early on in the Mission, an understanding was reached between the MSU and UNMIK Police to improve coordination. Now MSU and other specialized units often cooperate with UNMIK Police in the fight against armed extremist elements, organized crime and in apprehending persons charged with war crimes. Joint operations have resulted in arrests of members of proscribed terrorist groups, the location of large weapons caches, persons involved in the trafficking of women and smuggled contraband. In general, UNMIK Police assume primacy for the arrest and search, and they coordinate with public prosecutors to develop the criminal case. 140 This level of coordination has also been achieved with specialized assets who assist in capturing persons wanted for war crimes investigations. Therefore, the unity of effort of military forces and the civilians in the justice system is crucial for success. Where the PSF compartmentalizes its military tasks, it destroys the synergy of coordinated action with the civilian authorities. At times, an exaggerated and excessive need for force protection has justified non-cooperation, and victims have not seen justice. In most cases, 139 In marked contrast, the level of participation of individual US troops in Iraq with the criminal justice system is illuminating. It is reported that they 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 U.S. 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 Today, Aug. 9,2005, available at http://www.usatoday.com/news/world/iraq/200 5 -08-09-troops-detectivecover_x.htm (last visited Aug. 23, 2005). 140 Where operations are in support of the judicial authorities, it is often essential for forces to consult with the competent prosecutor prior to setting a firm date and time to ensure that time-sensitive court orders are prepared in time and that preliminary arrangements are made and that courtrooms, detention facilities and security details are available.
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it is simply the failure to appreciate the need to safeguard evidence. For example, KFOR troops have released corpses without autopsies; they have failed to hand over physical evidence collected at crime scenes, including: shell casings needed for ballistics forensic testing, weapons seized from suspects and even balaclavas, which were recovered in circumstances linking persons to crimes, that required an examination for DNA. In most search operations, weapons and other contraband are handled without gloves and moved from their original locations. At explosive detonation crime scenes, military personnel often unnecessarily contaminate the scene by not restricting movement after searching for secondary devices, personnel move items of potential evidence unnecessarily, objects are taken away for examination without proper chain of custody procedures being followed and often never returned. A significant impediment to criminal prosecutions has been the classification of criminal evidence collected by KFOR personnel and the reluctance to share intelligence information. Operational security is crucial, but witnesses should not be classified as sources automatically. Once statements are entered into military intelligence archives, it is generally more difficult to declassify and release. In an environment where witness intimidation is rife,141 witnesses usually wish to tell their story so long as they know they will not be summoned as witnesses. This serves to protect the perpetrators of crime and lead to impunity. To the contrary, they should be encouraged to give evidence. Witness protection measures contained in the criminal procedure code are available and, in significant cases, witnesses may be entered into available witness protection programs. Intelligence information should be developed with a view to producing admissible evidence and being shared with authorized law enforcement personnel so as to be exploited to its greatest advantage. PSFs should appreciate that the only way to re-establish the rule of law is through the successful criminal prosecution of offenders. Short-term security detentions are only short term solutions.
v.
CONCLUSIONS
Whichever method of conflict resolution 142 is employed to forestall a relapse into conflict, there must be an environment secure enough to allow a peaceful 141 See Michael Farquhar, Witness Intimidation a Serious Problem in Kosovo, Institute for War and Peace Reporting, Apr. 1,2005, at http://www.globalpolicy.orglintljustice/tribunals/yugo/2005/040 I witness.htm (last visited Aug. 29, 2005); and, OSCE Mission in Kosovo, Department of Human Righ.ts and Rule of Law, Kosovo Review of the Criminal Justice System (March 2002-April 2003), Protection o/Witnesses in the Criminal Justice System, May 20, 2003, at http://www.osce.org/documents/mik/2003/ 05/8593n.pdf (last visited Aug. 28, 2005). 142 Oliver Ramsbotham (ed.), Reflections on UN Post-Settlement Peacebuilding, in Peacekeeping and Conflict Resolution, 169-189 (2000), discusses the peace support model where military forces operate under the aegis of the United Nations and labels it the "UN's post-settlement peacebuilding 'standard operating procedure'."
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Practice and Policies of Modern Peace Support Operations
resolution of disputes, for necessary governmental and democratic institutions to be built and for them to function with an acceptable level of impact in the belief that the secure environment is and can be maintained. 143 Reestablishing the rule of law and enforcing the law must be a priority in postintervention strategy along with the tasks of providing relief and humanitarian aid, development, reconciliation and re-establishing governance. It addresses the root cause of conflict and is the prerequisite for the emergence of a stable and peaceful society by the successful implementation of longer term development strategies. Therefore, it is increasingly common for Security Council resolution mandated peace enforcement operations to include law enforcement type duties for peace support forces. Combat troops may be given tasks that are more appropriate for professional law enforcement personnel. PSFs must undertake these duties because only they possess sufficient combat power to deal with postconflict turmoil. However, they have a responsibility to understand and respect relevant aspects of international humanitarian law and human rights law. In doing so, the Force will maintain legitimacy and public support that is key to mission success. While the immediate priorities may be to establish public order and security, PSF directives and policies should encourage the direct participation of force personnel in law enforcement type duties and their cooperation with criminal prosecutions. "In complex operations, peacekeepers work to maintain a secure local environment while peacebuilders work to make that environment self-sustaining. Only such an environment offers a ready exit to peacekeeping forces, making peacekeepers and peacebuilders inseparable partners."144
143 For an example of perceptions in Afghanistan on the importance of security, see A Call for Justice, 2004, Report of the Afghanistan Independent Human Rights Commission, at http://www.aihrc.org.af/Rep_29_Eng/rep29_1_0Sca1l4justice.pdf (last visited July 29,2004). 144 Report of the Panel on United Nations Peace Operations, supra, Executive Summary, at 1, UN Doc. A/SS/30S-S/2000/809, at http://www.un.org/peace/reports/peace_ operations/ (last visited Jan. 17, 2006).
CHAPTER 2 PROMOTING AND ABIDING BY THE RULE OF LAW: UN INVOLVEMENT IN POST-CONFLICT JUSTICE Noelle Quenivet*
Throughout the world [... ] the victims of violence and injustice are waiting. They are waiting for us to keep our word. They notice when we use words to mask inaction. They notice when laws that should protect them are not applied. I
I.
INTRODUCTION
The atrocities committed during the Second World War led the international community to wish for more peace and security, a task ascribed to the United Nations, which soon realized that its guidance was mostly required in states that had suffered from internal conflicts or wars of national liberation and that peacekeeping had to include peacebuilding elements. 2 In its involvement in post-conflict rebuilding of states, two concepts transcend the UN activities, namely the rule oflaw and human rights because "[t]he rule oflaw is the foundation of a civilised society."3 Hence, it quickly became a widespread tru-
* Noelle Quenivet (B.A., Strasbourg; LLM, Nottingham; Ph.D. Essex) is Researcher at the Institute for International Law of Peace and Armed Conflict of the Ruhr-University Bochum (Germany). This chapter was written in the framework of a project on "Post-Conflict Nationbuilding" led by the Law Faculty of the University of Hanover (Germany) and the Institute for International Law of Peace and Armed Conflict of the Ruhr-University Bochum (Germany) and funded by the German Foundation for Peace Research. In particular I would like to thank Bernard Dougherty, Dr. Hans-Joachim Heintze, Simon Meisenberg, Jan Wetzel and Kerstin Wirth for their valuable comments. United Nations, Secretary-General's Address to the General Assembly, New York, Sept. 21, 2004. See in this regard S. Mohamed, "From Keeping Peace to Building Peace: A Proposal for a Revitalized United Nations Trusteeship Council," 105 Columbia Law Review 810 (2005). Office of the High Representative in Bosnia, Our Reform Agenda-Rule of Law, Peace Implementation Council, Oct. 4, 2002. 35
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ism that post-conflict states in the process of rebuilding their institutions need the rule of law and that "today the rule of law is at risk around the world."4 As Kofi Annan explains "[i]t is by reintroducing the rule of law, and confidence in its impartial application, that we can hope to resuscitate societies shattered by conflict."5 The basic idea is that "[the] rule of law [is] a prerequisite for maintaining and building peace, consolidating democracy and promoting sustainable development."6 With this view, for the last few decades, the United Nations has considered itself a benevolent promoter of the rule of law, but this does not mean that it has always regarded the rule of law as a core function of all its post-conflict peace operations. Besides, as of now, the issue concerning the obligation of the United Nations to ensure that all its peace-building programs conform to the rule of law has not been raised. The logic demands that if the United Nations is to promote the rule of law it should also abide by its standards. However, this question has yet not found any definite legal answer despite the fact that undoubtedly the United Nations affects the conception as well as the implementation methods of the rule of law of the state institutions that it attempts to rebuild. It is true that "the Achilles' heel of post-conflict peace operations is that of justice/rule of law [... ]."7 Nevertheless, simply establishing programs in field of the rule of law is not sufficient as it does not necessarily foster the population's confidence in this concept. 8 In this regard it is of utmost importance that in its endeavor to set up mechanisms that comply with the rule of law, the United Nations ensures that the bodies it helped create are successful and are seen as such by the local population. The first part of this chapter briefly discusses the definition of the rule of law and in particular that espoused by the United Nations in its post-conflict rebuilding activities. The second part examines whether the United Nations is United Nations, Secretary-General s Address to the General Assembly, New York, Sept. 21, 2004. Id. ECOSOC also "[ r ]ecogniz[ es] the importance of the rule oflaw in postconflict reconstruction and the consolidation of peace." ECOSOC, The Rule of Law and Development: Strengthening the Rule of Law and the Reform of Criminal Justice Institutions, with Emphasis on Technical Assistance, including in Post-Conflict Reconstruction, Res. 2004/25, July 21, 2004. High-Level Representatives of the Council of Europe, the Organization for Security and Co-operation in Europe and the United Nations, Multilateral Organisation s Rule of Law Pledge, Strasbourg, Feb. 18, 2005. S. Darvill, The Rule of Law on Peace Operations from the Perspective of an Institutional Donor, Paper Presented at the Asia-Pacific Centre for Military Law (in association with the Department of Defence and the University of Melbourne Law School), Nov. 11,2002, at 13. S.R. Quast, "Nation-Building: Lessons from the Past and the Challenges Ahead: Rule of Law in Post-Conflict Societies: What is the Role of the International Community?," 39 New England Law Review 46-47 (2004).
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only a benevolent promoter of the rule of law or whether it is itself bound by the rule of law and must therefore in all its programs ensure that the rule of law is upheld. Finally, this article investigates whether in rebuilding judicial institutions, taking those addressing past abuses as examples, the United Nations has always promoted and abided by the rule of law. The stress is put on mechanisms supported and/or created by the United Nations to tackle past abuses of human rights and humanitarian law because, often, those who suffered during the conflict want justice to be done and they will only trust the rule of law if they are convinced that those who decide on the rules of the game also comply with them.
II. DEFINING THE RULE OF LAW
The concept of the rule of law is the focus of lengthy discussions because it may take different colors according to legal cultures and historical conditions. 9 Generally agreed upon is the Aristotelian proposition that it is better that law should rule rather than any single citizen.lo Today, confusion as to the scope of the notion of the rule of law as compared with other concepts is predominantly due to the fact that it is one of the components in the bundle "human rights, democracy, justice and rule of law" that is adopted in state-building operations.
A. The Definition of the Rule of Law
Generally, the precept of the rule of law can be placed on a continuum between a minimalist and a maximalist approach. As elements that may be incorporated in the rule of law, Peereboom enumerates human rights, economics, democracy and good governance, and geopolitical stability and global peace. I I Casper, almost in unison, considers the rule of law under four everexpanding angles: consistency of the law, economic development, human rights and democracy.12 In reality, these approaches can be splintered into those stressG. Casper, Rule of Law? Whose Law?, CDDRL Working Papers, No. 10, Aug. 13 2004, at 4. 10 This principle can be found in the Magna Charta that considered the rule of law as a means of protection from the arbitrariness of rule by man and from the abuse of power by the state. This view is also embraced nowadays. Addressing the General Assembly, UN Secretary-General Kofi Annan declared that "a vision of 'a government of laws and not of men' is almost as old as civilisation itself." Secretary-General sAddress to the General Assembly, New York, Sept. 21, 2004. II R. Peerenboom, "Human Rights and Rule of Law: What's the Relationship?," 36.1. Georgetown International Law Journal 3 (2005). 12 Casper, supra note 9.
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ing the formal or instrumental aspects of law and those referring to the existence of "good laws" which include economic arrangements, forms of government or conceptions of human rights. 13 First, at its minimum basis, the rule of law means that legislation is consistent. The rule of law hence imposes meaningful restraints on state power and the ruling elite. A second step is to perceive the rule of law as a vessel to promote and provide for sustained and viable economic growth. 14 In a third step l5 human rights and in a fourth democracy are integrated into the idea of the rule of law. For instance, the report of the Secretary-General includes principles such as "separation of powers" and "participation in decision-making,"16 thereby assuming that democracy is part of the rule of law. 17 Since this chapter focuses on the rule of law in the framework of the establishment of post-conflict judicial mechanisms for previous violations, the ensuing discussion on the definition of the rule of law concentrates on two notions, namely human rights and justice.
B.
Rule of Law and Human Rights
As broached earlier, a certain conception of the rule of law argues in favor of the inclusion of human rights within this precept. While theory argues for the distinction of the two notions, it is true that, in practice, especially in field work, the rule of law and human rights tend to overlap. Nonetheless, the two concepts are not interchangeable and their relationship must be clarified. Peerenboom, supra note II, at 16. Discussing the rule of law in Kosovo, the French representative to the Security Council explained that "[t]he rule ofIaw, economic development and the creation of an equal society for all were inextricably linked imperatives." UN Security Council, Security Council Following Briefing by Special Representative for Kosovo, Welcomes Progress, Reaffirms Importance ofRule ofLaw, Statement by J.-D. Levitte, Press Release SC/7375, Apr. 24, 2002. 15 Casper's idea of a third step on the continuum is supported by the assumption that "[r]ule of law is closely related to economic development, which in turn is closely associated with better performance on human rights measures and other indicators of wellbeing." Casper, supra note 9. 16 UN Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc. S/2004/616, Aug. 23, 2004, para. 6. 17 Mani states that "[i]n contemporary parlance, the rule oflaw embraces democracy and good governance." Irremediably the question posed relates to whether democracy and governance are two separate notions or cover the same issues. This issue can only broached here since the aim ofthis paper is to discuss the definition of the rule of law. R. Mani, "Conflict Resolution, Justice and the Law: Rebuilding the Rule of Law in the Aftermath of Complex Political Emergencies," 5.3 International Peacekeeping 10 (1998). 13
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As Louise Arbour, UN High Commissioner for Human Rights, elucidates "when I speak about the law, I do not mean of course any law. Law, as any other institution, is subject to abuse."18 Her statement does not surprise inasmuch as this agency's task is to link and frame the rule of law in human rights objectives. 19 Along this line, the Secretary-General defines in his report on The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies the rule of law as "a principle of governance in which all persons, institutions and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards."20 The definition propounded by the Secretary-General inevitably weaves together the rule of law and human rights: human rights are a component of the rule of law to the degree that the rule of law cannot exist without its human rights element. The rule of law is not merely a formal principle but also contains a substantial normative value for the best of mankind so that human rights are not a sub-category of the rule of law but stands on a par with it. Indeed certain human rights such as the tenet nullum crimen sine lege, the role of the judiciary to verify the actions of the executive, remedy to excessive detention, access to court, rights of the accused, no retroactivity of the laws etc., provide the basis for the rule of law. The independent adjudication of conflicting claims 21 or legal certainty and equality before the law 22 are also considered as human rights that are at the core of the rule of law. Generally, the right to a fair trial embraces most of the aforementioned rights. Nevertheless, the rule of law encompasses more than the aforementioned individual rights.2 3 18 L. Arbour, Security under the Rule of Law, Biennial Conference of the International Commission of Jurists, Berlin, August 27,2004, at 2. 19 "The Office of the High Commissioner has made the promotion of the rule oflaw a priority in its technical cooperation programmes, recognizing the link between the rule of law and respect for human rights." UN General Assembly, Report of the Secretary-General: Strengthening of the Rule of Law, UN Doc. Al57/275, Aug. 5, 2002, para. I. 20 UN Secretary-General, supra note 16, para. 6 (emphasis added). 21 In this regard, the United Nations developed a set of rules called the "Basic Principles on the Independence of the Judiciary." GA Res. 40/32, UN Doc. AlRES/40/32, Nov. 29,1985, and GA Res. 401146, UN Doc. A/RES/40/146, Dec. 13, 1985. See, in particular, F.B.W. Kelly, An Independent Judiciary: The Core of the Rule of Law, International Centre for Criminal Law Reform and Criminal Justice Policy, 1997, available at http://www.icclr.law.ubc.calPublications/Reports/An_IndependanCJudiciary.pdf (last visited Aug. 15,2005). 22 UN Secretary-General, supra note 16, para. 6. 23 Indeed, the rule of law also "requires professional police. It requires competent civil servants. It requires an accessible legal profession that is properly trained and that maintains the highest standards of professional conduct and integrity. It requires
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Hence, to perceive the rule of law through the lenses of human rights can only reduce one's view of the broad scope covered by this notion. Turning the relationship between rule of law and human rights law upside down, one can also argue that the rule of law is necessary for the effective protection of human rights by domestic legal systems. "The principle of the rule of law can thus also be described as an overarching principle in the field of human rights protection because, where it does not exist, respect for human rights becomes illusory."24 Human rights laws are useless if there is no effective means to enforce respect for such laws. 25
C. Rule of Law and Justice
Further, "[t]he concept of the rule of law provides a framework for the various dimensions of the legal system and the institutions, procedures and principles related to the administration of justice."26 Again in Arbour's words, "[t]he law that must guide us is that law which is capable of dispensing justice and providing remedies for grievances."27 The concept that judges and prosecutors are truly independent belongs not only to the realm of the rule of law but also to the notion of justice. Other elements are that justice be delivered swiftly and efficiently, that the judicial system ensures that crimes be investigated and those suspected of having committed these crimes be arrested and charged and, if found guilty, convicted and punished. 28 Prosecution of those who transgress the rules seems to be the keyword in the relationship between the rule of law and justice. Indeed, of major importance is the population's confidence in the judicial system and, hence, the need to show the population that justice is being done. that is fair and impartial, and that commands consent." Office of the High Representative, supra note 3. A similar opinion is propounded by the Secretary-General who declares that equally important to the independence of the judiciary "are the other institutions of the justice sector, including lawful police services, humane prison services, fair prosecutions and capable associations of criminal defence lawyers." UN Secretary-General, supra note 16, para. 35. 24 Office of the High Commissioner for Human Rights in Cooperation with the International Bar Association, Human Rights in the Administration ofJustice: A Manual on Human Rights for Judges, Prosecutors and Lawyers, Geneva, 2001 at 6. 25 See in particular the preamble of the UN Declaration of Human Rights that states "Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law." GA Res. 217 A (III), Dec. 10, 1948. 26 Mani, supra note 17, at 3. 27 Arbour, supra note 18, at 2. 28 Office of the High Representative, supra note 3. There is no doubt that these tenets are also understood as human rights. See in particular Article 6 of the European Convention on Human Rights.
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For the purpose of this study the rule of law is understood in the terms used by the Secretary-General in his report on the rule of law. Since this definition seems to be the outcome of some internal discussions within the United Nations it, thus, may be presumed to best fit the approach taken by UN bodies. Moreover, it also binds the rule of law to human rights, a notion to which various agreements, mandates and other documents refer. Besides, as the aim of this chapter is to examine whether the United Nations applied the rule oflaw in its support and creation of judicial mechanisms dealing with past atrocities, the human rights approach must be taken into account. Indeed "[t]he human rights dimension of the rule oflaw programming is [... ] apparent in the relationship between the rule of law and the principle of accountability for gross human rights violations."29 In this respect human rights and the rule of law are two sides of the same com.
III. OBLIGATIONS OF THE UNITED NATIONS IN PEACE-BUILDING OPERATIONS REGARDING THE RULE OF LAW
In past decades the United Nations got engaged in a series of peace-building operations embracing rule of law elements. Remarkably, the United Nations does not appear to be bound by general norms to set up rule of law programs when engaged in rebuilding states' institutions; rather its mandate and thereby obligation to design such programs relies on ad hoc agreements and resolutions.
A. The Role of the United Nations in Terms of Rule of Law Standards According to General Norms
Instead, the United Nations has, on several occasions, heralded that it was tasked with the promotion of the rule of law, notably basing its activities on the UN Charter and this despite any evident reference to this tenet in the said document. One of the clearest pieces of evidence is the Secretary-General's report on the rule oflaw in post-conflict societies which asserts that "[t]he normative foundation for [the] work [of the United Nations] in advancing the rule of law is the Charter of the United Nations itself"30 and further declares that "[t]he 'rule oflaw' is a concept at the very heart of the Organization's mission."3! The World Conference on Human Rights also "recommend[ ed] that a comprehensive programme be established within the United Nations in order to 29 International Peace Academy, Rule of Law Programs in Peace Operations: Toward a Conflict-Sensitive Perspective: A Concept Paper, New York, Oct. 29, 2004, at 2. 30 UN Secretary-General, supra note 16, para. 9. 3! !d., para. 6.
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help states in the task of building and strengthening adequate structures which have a direct impact on the [... ] maintenance of the rule of law."32 The United Nations is further urged to "increase considerably the resources allocated to programmes aiming at the establishment and strengthening of national legislation, national institutions and related infrastructures which uphold the rule oflaw."33 The United Nations is encouraged to not only assist countries but also expedite efforts to promote the rule of law. This means that ultimately the United Nations felt the need to develop its own legal basis for its numerous assistance programmes including elements of the rule of law. Sadly, there are few documents evidencing the UN will to be bound on a broad basis by the rule of law in its worldwide engagement. One of them is the report on the rule of law and transitional justice in conflict and post-conflict societies in which the United Nations expresses its willingness to abide by universally applicable standards adopted under its auspices. 34 Hence, the United Nations has bound itself to promoting and respecting the rule of law which includes, according to its own understanding, human rights standards. Another manner therefore to compel the United Nations to comply with rule of law standards is to do so indirectly by way of its members in a type of "functional treaty succession by international organizations to the position of their member states,"35 bearing in mind the UN claim to be entrusted by the UN Charter with the promotion of the rule of law and states' claims to comply with the rule of law standards. Consequently, according to this proposition, the United Nations cannot claim to be a leading actor in the promotion of rule of law while it is itself not bound by its standards. Further, one must examine whether the United Nations is bound by rules enshrined in international customary law as far as practice and opinio juris regarding the rule of law can be ascertained. Although countless states have endorsed the rule of law, closer scrutiny of the espoused conceptions shows that only a minimalist rule of law is universally accepted. 36 As to the opinio juris, undoubtedly the principle of the rule of law is considered by the United Nations as a fundamental precept of international law and recognized as guiding its actions. Similarly states believe the rule oflaw to be a legal norm directing their actions, for a plethora of states "express [... ] their resolve to strengthen respect for the rule of law in international as in national affairs"37 and request 32 Vienna Declaration and Programme of Action, UN Doc. AlCONF.157124, June 14-25,1993, para. 69. 33 Id., para. 31. 34 UN Secretary-General, supra note 16, paras. 9-10. 35 A. Reinisch, "Securing the Accountability of International Organizations," 7 Global Governance 143 (2001). 36 Peerenboom, supra note 11, at 14. 37 ECOSOC, The Rule of Law and Development: Strengthening the Rule of Law and the Reform of Criminal Justice Institutions, with Emphasis on Technical Assistance, including in Post-Conflict Reconstruction, Res. 2004/25, July 21, 2004.
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the technical assistance and advisory services of the United Nations in support of introducing reforms in their criminal system so as to abide by the rule of law. 38 Hence, opinio juris can be established. One may argue that if the rule of law is indeed of customary nature, only its minimalist approach is likely to have reached that status as the universality of the components of the maximalist approach, i.e., human rights and democracy, may be questioned.3 9 Should human rights and the rule of law be as closely interconnected as the United Nations pretends, then one must analyze whether customary law protects human rights. It is widely recognized that most parts of the 1948 Universal Declaration of Human Rights (UDHR) are of customary nature. 40 Further treaties can be considered as the codification of customary norms of human rights.41 Nonetheless, one must treat such comments with extreme caution inasmuch as much disagreement exists as to which human rights have reached the status of customary norms. No doubt that the right to legal personality or the right to fair trial, which are connected to the rule of law, are considered as core human rights that cannot be derogated in times of armed conflict and, hence, more likely to be viewed as of customary nature. 42 As a consequence, though we come to contradicting conclusions on the customary nature of the rule of law and human rights, the combination of a minimalist approach to the rule of law and human rights tend to demonstrate that a maximalist approach to the rule of law, incorporating a human rights element may be viewed of customary nature.
B.
Binding the United Nations by the Rule of law on an Ad Hoc Basis
Another model propounded by some authors is that under certain circumstances an analogy may be drawn between states and the United Nations. According to Eagleton, states' obligations and responsibilities are based on UN General Assembly, supra note 19, para. 4. The 1993 Bangkok Declaration challenges the universalism of human rights on the basis that it is Western-biased. Report of the Regional Meeting for Asia of the World Conference on Human Rights, Bangkok Declaration, UN Doc. A/CONF.157/ ASRM/8, Apr. 7,1993. 40 International Court of Justice, United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, 1980 ICJ para. 91 (May 24). 41 H.G. Schermers & N.M. Blokker, International Institutional Law: Unity within Diversity 824 (1995). 42 In this respect, one must sound a note of caution because the exact content of each of these rights is highly debated. That a certain right is of customary nature does not automatically mean that there is agreement on its content (see for example the right to defense incorporated in Article 14 of the International Covenant on Civil and Political Rights). On this issue, see C.lM. Safferling, Towards an International Criminal Procedure (2003). 38
39
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states' capacities to control individuals within their territory.43 Hence, some argue that should the United Nations be able to control a certain population residing in a certain portion of territory, then it acts like a quasi-state and, thus, must comply with similar rules. The latest activities of the United Nations tend to show that in some instances the United Nations has accepted taking on governance functions labeled postconflict peace building. 44 Especially in failed states or in entities with a seemingly indefinite status, the United Nations has to fill the vacuum in order to replace a non-existent government. 45 "As a result, conceptions of sovereignty and of responsibility also have transformed,"46 and so it is conceivable that the United Nations may have to abide by rules that are generally designed for states, inasmuch as the United Nations is recreating state structures and, thereby, mimicking traditional forms of governmental power. In its efforts to rebuild state structures and organs from scratch, the United Nations itself becomes the government. In reality, the United Nations is endowed with all state attributes and is effectively acting as a sovereign power.47 In some specific cases, such as East Timor4 8 and KOSOVO,49 the UN Security Council by way of a binding resolution 43 e. Eagleton, "International Organization and the Law of Responsibility," 76 Hague Recueil des Cours 386 (1951). 44 See M. Ruffert, "The Administration of Kosovo and East-Timor by the International Community," 50 International and Comparative Law Quarterly 613-631 (2001). 45 In contrast, the United Nations only "assumed the role of caretaker of a transition [... J whereas in Kosovo and East Timor it more closely resembles a midwife to new states." M. Griffin & B. Jones, "Building Peace through Transitional Authority: New Directions, Major Challenges," 7.4 International Peacekeeping 82 (2000). 46 Mohamed, supra note 2, at 835. 47 1. Chopra, "The UN's Kingdom of East Timor," 42 Survival 29 (2000); Griffin & Jones, supra note 45, at 77. It must, however, be stressed that all Security Council's resolutions pertaining to territories administered by the United Nations underlined the sovereignty of the state, e.g., of the Former Republic of Yugoslavia in the case of Kosovo. See for example the preamble of Resolution 1244 (1999) which "Reaffirm[ sJ the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other states of the region [... J." SC Res. 1244, UN Doc. S/RESIl244 (1999), June 10, 1999. 48 The UN Transitional Administration in East Timor (UNTAET) was given "the overall responsibility for the administration of East Timor" which meant that it would "exercise all legislative and executive authority, including the administration of justice." SC Res. 1272, UN Doc. S/RESIl272 (1999), Oct. 25,1999. UNTAET mandate was conceived following the interpretation and specification of Resolution 1244 (1999) concerning UNMIK's mandate. SC Res. 1244, supra note 47. 49 UNMIK is perceived as the administrator and government of Kosovo. "Justice and police powers were reserved to the United Nations, and [... J the management and control of the justice system were firmly in the hands of the international community." 1.e. Williamson, "Establishing the Rule of Law in Post-War Iraq: Rebuilding the Justice
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under Chapter VII, granted some bodies of the United Nations the powers to "reign" over a certain territory and population. From the mere responsibility to promote the rule of law, the United Nations becomes the body to guarantee this principle. 50 From the previous discussion it derives that the United Nations is, under these circumstances, obliged to abide by the rule of law. Yet, should there be some doubts about this method of binding the United Nations to the tenet of the rule of law, one must examine the wording of the Security Council resolutions. Unfortunately none of the initial resolutions relating to Kosovo or East Timor directly refers to the rule of law, albeit some do to human rights. 51 By contrast, in the case ofIraq, the Security Council empowered some UN organs to "promote the protection of human rights, national reconciliation, and judicial and legal reform in order to strengthen the rule of law in Iraq."52 Although this resolution refers to the rule of law, it only requests the United Nations to promote the rule of law, i.e. to assist the national government in its endeavors to stimulate a legal and judicial environment that conforms to this principle. The United Nations may be vested with a rule of law mandate by a peace agreement especially when the sovereignty of the state is undisputed. Given the circumstances under which a peace agreement is signed, i.e., between warring parties that finally decided to settle their dispute to build up a new future for the country, the United Nations is unlikely to be in charge of the reconstruction of the state and, therefore, of the installation of the rule of law. The newly formed government, usually composed of members of all sides of the past conflict, prefers to itself engage in this task and seeks UN assistance whenever it deems it necessary. 53 A glaring illustration is the Agreement on Provisional System," 33 Georgia Journal of International and Comparative Law 229 (2004). See also United Nations, Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc. S/1999/779, July 12, 1999, para. 35: "The Security Council, in its resolution 1244 (1999), has vested in the interim civil administration authority over the territory and people of Kosovo. All legislative and executive powers, including the administration ofthe judiciary, will, therefore, be vested in UNMIK"; and Ombudsperson Institution in Kosovo, Special Report No. 1 addressed to Mr. Hans Haekkerup Special Representative of the Secretary General of the United Nations, para. 23: "[ ... ] in Kosovo, where the interim civilian administration (United Nations Mission in Kosovo-UNMIK) in fact acts as a surrogate state." (Emphasis added) 50 It signifies that the United Nations is also obliged to ensure that the laws chosen to apply on the territory it administers comply with the principle of the rule oflaw. It is, however, not the aim of this chapter to examjne, on a general basis, which laws were retained from the past and which laws were modified. 51 See e.g., SC Res. 1244, supra note 47, para. I1G). 52 SC Res. 1546, UN Doc. S/RES/1546 (2004), June 8, 2004, para. 7(b )(iii). 53 Thus, it is recommended that "such an agreement [... ] include a strategy for building the rule of law [as well as] references to specific international human rights instruments." C. Ahlund, "Nation-Building: Lessons from the Past and the Challenges
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Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions dated May 12, 200l. In this case, although the United Nations is not in charge of the country, as Article I.3 stipulates that "the interim Authority shall be the repository of Afghan sovereignty," it is asked to shepherd the launching of "a Judicial Commission to rebuild the domestic justice system in accordance with Islamic principles, international standards, the rule of law and Afghan legal traditions."54 Further, the United Nations is requested to guide the Interim Administration in setting up an independent Human Rights Commission55 in addition to its investigative activities concerning human rights violations. 56 As an outcome, whenever the United Nations is entrusted with broad powers that transform it into a government, then one may assert that it has to comply with the rule of law in all its endeavors to rebuild the state structure. On the other hand, if the United Nations is not endowed with such competences, then it is at least obliged to promote the rule of law when setting up programs to assist in the reconstruction of a state's institutions. IV. THE PROMOTION OF THE RULE OF LAW IN SETTING UP POSTCONFLICT JUDICIAL MECHANISMS
De Mello elucidates that "[t]he best chance for preventing, limiting, solving and recovering from conflict and violence lies in the restoration and defence of the rule of law."57 Since accountability is an essential pillar to the re-establishment of the rule of law 58 there is no doubt that the litmus test, whether the Ahead: Major Obstacles to Building the Rule of Law in a Post-Conflict Environment," 39 New England Law Review 43 (2004). 54 Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions, May 12, 200 I, art. II(2). 55 !d., art. II(C)(6). 56 Id., Annex II, art. 6. 57 Sergio Vieira de Mello, Message of the United Nations High Commissioner for Human Rights on Human Rights Day, Dec. 10,2002. Concerning the case of Kosovo, the United Nations reports that "[t]he creation of [the KWEC] is a factor in the re-establishment of the rule of law, in consolidating peace through justice and in paving the way towards reconciliation." United Nations, Report of the Secretary-General of the United Nations Interim Administration Mission in Kosovo, UN Doc. S/2000/538, June 6, 2000, para. 60. In the case of East Timor, "[a] first step towards instilling the conceptual foundations for the rule of law is to ensure that justice be done in respect of the serious crimes prior to, and during, 1999." S. Marshall, The East Timorese Judiciary: At the Threshold of Self-Sufficiency? Update, Conference "Co-operating with Timor-Leste," Darwin, June 17-18,2005, at 1. 58 UNHCHR, Statement by the UNHCHR at the United Nations Security Council Presentation of the Report of the Secretary-General on the Protection of Civilians in Armed Conflict, New York, Apr. 23, 2001, para. 42.
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United Nations upholds the rule of law, is to investigate its activities in the birthing and maintenance of mechanisms dealing with past atrocities. 59 To ensure that no mass perpetrator be granted impunity, the United Nations has fostered and nurtured various kinds of tribunals and mechanisms to ensure that justice be meted out and that victims see justice being done. 60
A. Prevention of Impunity
The fundamental idea behind the establishment of various regimes dealing with crimes committed before the crisis or conflict is to curb impunity, thereby ensuring that criminals do not participate in public affairs, and to foster confidence in justice. Supposedly, such mechanisms launch a new era of justice, human rights and rule of law. 6l The High Commissioner for Human Rights declared that "[t]o end the century and the millennium tolerating impunity for those guilty of these shocking violations would be a betrayal of everything the United Nations stands for regarding the universal promotion and protection of human rights."62 Indeed, in situations of post-conflict reconstruction "we must start from the principle that no one is above the law, and no one should be denied its protection."63 Firstly, "States should abrogate legislation leading to impunity for those responsible for grave violations of human rights such as torture and prosecute such violations, thereby providing a firm basis for the rule of law."64 Parties bargaining in peace negotiations often feel the compulsion to include amnesties 59 Indeed, "[t]he process of addressing the past is important not only for itself but also for the restoration of the rule of law. Addressing the past presents a first challenge for the rule of law. It reinforces the institutions and principles of the rule of law and equally puts them to the test." Mani, supra note 17, at 19. "The manner and degree to which a justice system addresses the population's sense of vulnerability and injustice fundamentally affects the pacification and reconciliation process." W.S. Betts, S.N. Carlson & G. Gisvold, "The Post-Conflict Transitional Administration of Kosovo and the Lessons-Learned in Efforts to Establish a Judiciary and Rule of Law," 22 Michigan Journal of International Law 380 (2001). 60 UN Secretary-General, supra note 16, para. 12. 61 "The purpose of such an attempt is to impose accountability in war-torn societies and replace the 'culture of impunity' with that of the rule of law. It is an intrinsically external and even interventionary attempt." H. Shinoda, Peace-building by the Rule of Law: An Examination of Intervention in the Form of International Tribunals, Institute for Peace Science, Hiroshima University, 2001, at 2, available at http;llwww.theglobalsite.ac.uk (last visited Aug. II, 2005). 62 UNHCHR, supra note 58, para. 48. 63 United Nations, Secretary-General s Address to the General Assembly, New York, Sept. 21, 2004. 64 Vienna Declaration and Programme of Action, supra note 32, para. 60.
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and impunity in the final agreement. Whereas amnesties have been accepted, even reluctantly as part of a necessary evil in the past,65 the United Nations has recently been very vocal in condemning such pieces of legislation when they grant immunity to those who committed war crimes, crimes against humanity, genocide or serious violations of human rights.66 The UN bodies involved in peace building activities accept only amnesties for less serious crimes, conditional and limited in accordance with international law. 67 The local population, on the other hand, reacts to amnesties in various ways. For example, "after 35 years of civil war the majority of ordinary Guatemalans viewed the peace accords concluded in December 1996 as a failure of justice when the government passed a National Reconciliation Law establishing a general amnesty for the armed forces and police."68 On the other hand, the wide amnesty offered by the authorities in Mozambique to all fighters on both sides of the internecine conflict set the stage for a peaceful life. 69 A similar stance was adopted regarding the conflict in South Sudan. Secondly, new mechanisms are set up. Operationalizing the rule of law when looking for mechanisms addressing past atrocities means considering the particular needs and nature of the society shattered by years of conflict. Until recently UN intervention in response to international crimes "was restricted almost exclusively to 'criminal prosecution' ."70 Dealing with past crimes via criminal law may not always be the best solutions, all the more as "criminal law itself always consolidates some hegemonic narrative, some understanding 65 S. Chesterman, "Rough Justice: Establishing the Rule of Law in Post-Conflict Territories," 20 Ohio State Journal on Dispute Resolution 74-77 (2005). 66 See in particular C. Stahn, "United Nations Peace-Building, Amnesties and Alternative Forms of Justice: A Change in Practice," 84.845 International Review of the Red Cross 191-205 (2002). One must, however, note that the United Nations is rather inconsistent in its policies as it sometimes opines to amnesties concessions whereas it refuses them in others. An example is the protection indirectly offered to ECOMOG soldiers before the Special Court for Sierra Leone inasmuch as the Court must step over the hurdles of complementarity and the agreement of the Security Council (see Article I of the Statute). Statute of the Special Court for Sierra Leone, available at http://www.scsl.org/scsl-statute.html (last visited Aug. 28, 2005). 67 It was thus difficult for the United Nations to see how the negotiators to the Bonn agreement discussed whether or not there would be an amnesty for past abuses. N. Kritz, "Reluctant Nation Building: Securing the Rule of Law in Post-Tali ban Afghanistan: Promoting a Formal System of Justice," 17 Connecticut Journal of International Law 453 (2002). 68 Mani, supra note 17, at 10. 69 1. Baptista Lundin, The Peace Process and the Construction of Reconciliation Post Conflict-The Experience of Mozambique, International Seminar "Experiences of Penal Alternatives in Peace Processes," Centre for Strategic and International Studies, Barcelona, February 27-28, 2004. 70 R. Haveman, "The (Ir)rationality of Supranational Prosecutions," at I, available at http://www.isrc!.org/Papers/2004/Haveman.pdf (last visited Aug. 18, 2005).
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of the political conflict which is a part of that conflict itself."71 Hence, the political as well as the socio-economic aspects of the country must be assessed and put in the balance so as to prompt a rule of law mechanism tailored to the situation. Slowly, the United Nations has recognized that supplying ready-made solutions is not appropriate and that it should focus on case-specific responses. Not all conflict-wracked societies are willing to install such mechanisms; they believe that the lack of prosecution will, contrary to the now commonly held view,n foster peace and reconciliation. Mozambique decided against the setting of any mechanism to address the past7 3 probably because a "lack of a clear distinction between "good guys" and "bad guys" makes a penal approach less obvious."74 Thus, some authors contend that rule of law programs must be "demand rather than supply-driven."75 At first glance, this understanding seems however to contradict the principle of rule of law that summons the United Nations to equally apply norms of international law. In reality, it demonstrates that in UN decisions to set up new mechanisms, political considerations are of great importance, especially when these decisions are taken by the Security Council. The author therefore argues in favor of providing the United Nations with more rule of law tools so as to ensure that the principle of equality before the law is respected throughout the world.
B. Setting Up Post-Conflict Judicial Mechanisms Assuredly, by choosing a certain mechanism or body to tackle past abuses, the United Nations designs a certain path to reaching the rule of law,76 and gives its legal and judicial imprimatur. "[T]he initial choice of institutions and the way they operate and evolve over time is influenced to a large extent by a host 71 M. Koskenniemi, "International Law and Hegemony: A Reconfiguration," 17.2 Cambridge Review of International Affairs 210 (2004). Haveman also opines that "[i]t is a well-known fact that the victorious in a conflict have the power to define the situation." Haveman, supra note 70, at 3. 72 The general view is that "[ w ]ith respect to war crimes and crimes against humanity, the affected society and the international community need to have the events not only recognized, but acted on." Betts, Carlson & Gisvold, supra note 59, at 380. 73 Mani, supra note 17, at 18. 74 Haveman, supra note 70, at 3. 75 International Peace Academy, supra note 33, at 3. 76 "In those circumstances where an international justice role is seen as necessary to ensure justice for war-time atrocity crimes, the strategic planning for that role should nonetheless point toward the development of a sustainable national legal system, and not simply focus on what will suffice for near-term justice." Partnership Program on Peace-building and Rule of Law, Program on Peace-Building and Rule of Law, available at http://pbpu.unlb.org/PBPUlDownload.aspx?docid=455 (last visited Aug. 28, 2005).
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of contingent, context-specific factors"77 in addition to those dictated by the United Nations or by certain states after a political decision that is the product of a power struggle between states and institutions.7 8 The United Nations cannot afford bolstering up mechanisms that are not committed to the rule of law, human rights and a responsible public discourse.7 9 More importantly, "[i]t is not simply well articulated laws and finely conceived institutional structures that lead to a credible judicial system. The application of laws, observance of due process, and the visible functioning of the judiciary are equally imp ortant."80 Undoubtedly the United Nations has generally observed the rule of law in its peace-building operations, although unfortunately some blunders have blighted its record, sometimes to the degree that the population has lost faith in its works and in the rule of law itself.
1.
Setting Up an International or Internationalized Tribunal
In setting up international criminal tribunals or internationalized courts, the United Nations is assuredly assuming quasi-regal ian functions. 8! As explained above, since the United Nations is, under these conditions, working like a government, it is bound by the rule of law. On the other hand, when the regimes set up include more national than international components, the United Nations cannot be considered as working like a state, e.g., in Afghanistan or in BosniaHerzegovina. In this case the obligation to guarantee the rule of law is left in the hands of the state, and the United Nations is only required to promote this tenet. One of the preferred mechanisms of the United Nations to cope with past atrocities is the creation of tribunals, be they international, internationalized or embedded in the domestic system yet containing international elements.
i. The Legal Foundations of Such Tribunals
In any case, the newly created judicial structure must have the clout and support to effectively exercise the powers and competences vested in it so that Peerenboom, supra note 11, at 21. "Delicate balance of power and interests best explain why international tribunals are established in some cases but not in others." M. Othman, "East Timor: A Critique of the Model of Accountability for Serious Human Rights and International Humanitarian Law Violations," 72 Nordic Journal of International Law 455 (2003). 79 UN Secretary-General, supra note 16, para. 19. 80 Othman, supra note 78, at 460. 81 F. Megret & F. Hoffmann, "The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibilities," 25 Human Rights Quarterly 340 (2003). 77 78
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the population believes in the rule of law. The manner in which the first two international criminal tribunals were installed led to a plethora of legal literature because some argued that the Security Council was not empowered to create such an organ. At the heart of the inquiry into international criminal tribunals is whether the establishment of such institutions does not contravene the precept of the rule of law. Indeed, in pursuance of this tenet, law determines who, when and according to which criteria such bodies are built. The question therefore relates to the powers of the body, in this instance the Security Council, which institutes the international criminal tribunal. While criticism flourished in the aftermath of the institutionalization of these courts, the first opponents seem to have settled on the position that the decision to design such an international criminal court was in conformity with Article 41 of the UN Charter that empowers the Security Council to take any measures to ensure the world's peace and security. Such change in the perception of the legality of the creation of the tribunal according to the rule of law was prompted by the decision of the ICTY in the jurisdiction case on Tadic. 82 Yet the great selectivity of the UN Security Council in setting up international criminal tribunals in some countries though not in others, is questioned by many authors. No doubt that "each war crimes trial is an exercise in selective justice to the extent that it reminds us that the majority of war crimes go unpunished."83 Undoubtedly, the rule of law, and the principle of equality before the law, in particular, is paying the high price of international politics and national interests. For example, one may astutely ask why no such tribunals were ever mentioned in the framework of the conflicts in Colombia, Congo, Chechnya or South Sudan. A further ground for criticism relating to the creation of the ad hoc international criminal tribunals is that the Security Council can at any time terminate the proceedings if it believes the courts to have completed their work or forward the cases to the domestic courts. Collegiality was, however, respected in this case, and a completion or exit strategy was designed by the ICTY in collaboration with the OSCE and the Security Council. 84 A worse mechanism was put into place in the ICC Statute that allows the Security Council to stay the proceedings and thereby steer the investigations in a particular direction or simply close the case. 85 The rule of law is terribly constrained under these cir82 ICTY, Prosecutor v. Tadic (Jurisdiction), IT-94-l-AR 72, Appeals Chamber, Oct. 2 1996, para. 34 et seq. 83 G.J. Simpson, "War Crimes: A Critical Introduction," in T.L.H. McCormack & G.J. Simpson (eds.), The Law of War Crimes: National and International Approaches 11 (1997). 84 M. Bohlander, "Last Exit Bosnia-Transferring War Crimes Prosecution from the International Tribunal to Domestic Courts," 14 Criminal Law Forum 59-99 (2003). 85 For a critique, see R.C. van Ooyen, "Der Internationale Strafgerichtshofzwischen Normativitiit, Machtpolitik und Symbolik," 4 Internationale PoUtik und Gesellschaft
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cumstances. A ray of hope is that the next generation of tribunals, such as the Special Court for Sierra Leone, which was stimulated with too much impulse of the Security Council, does not face this challenge.
ii. Rule of Law and Human Rights: A Molotov Cocktail?
The path to deal with past crimes by way of criminal law is often criticized, predominantly because international criminal law incorporates human rights notions that are not widely accepted. 86 In administrating justice, the United Nations must ensure that it scrupulously complies with international standards of human rights.87 It is argued that this imposition of human rights norms is for the best of the country, for these rules "were not subject to regional conflicts [and are therefore] expected to be contributory to pinning the ethical standard of conflict-ridden areas."88 However, the international community sometimes may propound norms that are at odds with local customs and traditions and most notably with local norms for punishment. Quite illustratively the International Criminal Tribunal for Rwanda cannot condemn a person found guilty to death, while this is possible for local criminal courtS. 89 Thus, those who were in charge of or committed the most egregious crimes may not meet death whereas those who participated at the lowest levels of the hierarchy may face the death penalty. For the Rwandan population, this difference is incomprehensible inasmuch as those who devised and organised the genocide may get off lighter than those who simply carried out the orders.90 Yet, for the Secretary-General, it is clear that UN engagement in the formation of post-conflict judicial mechanisms is bound by certain rules such as the prohibition of capital punishment. 91 110-123 (2002), N. Quenivet" Who changed the Road Rules? The ICC and the Security Council Hammering in Conflicting Road Signs," 78.1 Die Friedens-Warte. Journal of International Peace and Organization 29-51 (2003). 86 Peerenboom, supra note II, at 67. 87 UN Secretary-General, supra note 16, para. 10. 88 Shinoda, supra note 61, at 9. 89 For example, "[t]he first two defendants convicted of genocide and rape were both sentenced to death by a Rwandan court, even though they were seemingly minor players in the genocide." G. Erasmus & N. Fourie, "The International Criminal Tribunal for Rwanda: Are all Issues Addressed? How Does it Compare to South Africa's Truth and Reconciliation Commission?," 321 International Review of the Red Cross (1997), available at http://www.icrc.org (last visited Aug. 18, 2005). 90 M. Bakaramusa, "IdentifYing and Prosecuting War Crimes: Two Case StudiesThe Former Yugoslavia and Rwanda," 12.3 New York University Law School Journal of Human Rights 648 (1995). 91 UN Secretary-General, supra note 16, para. 10. The lack of UN imprimatur is evident in the Iraqi Special Tribunal, since convicts may be sentenced to death.
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Further, as Peerenboom points out "the requirement of transitional justice and a [minimalist] rule oflaw are often at odds. Holding former leaders accountable may require setting aside laws that legitimated their actions ignoring amnesty agreements entered into as a condition for relinquishing power."92 In Sierra Leone, while the peace brokers in 1999 granted complete amnesty to all combatants the United Nations dismissed this clause when it set up the Special Court for Sierra Leone in agreement with the new government. Article 10 of the Statute creating the tribunal stipulates that no one can rely on the absolute and free pardon of the 1999 Lome Peace Agreements. 93 Later, in the Kallan and Kamara case, the Tribunal confirmed that amnesties are not considered as valid in international tribunals. 94 The current position of the UN SecretaryGeneral underlined in his report on the rule of law, is that the United Nations cannot and will not tolerate amnesties for genocide, war crimes, crimes against humanity and gross violations of human rights.95 Overriding an earlier national decision, the United Nations imposed its own version of the rule of law, which included a human rights component. 96
iii. The Principle of Equality Before the Law
The principle of equality of all before the law, which is at the core of the rule of law, is also strained in international criminal courts. Countless individuals, states and groups criticize the selectivity of those indicted and convicted inasmuch as, for example, more persons of Serbian than of Bosnian or Croat origin were brought before the ICTy'97 This, in their opinion, shows not only the selectivity of the Court but also of the international community that Peerenboom, supra note 11, at 75. Statute of the Special Court for Sierra Leone, supra note 67. Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, Freetown, Jan. 16, 2002, available at http://www.scsl.org. (last visited Aug. 18, 2005). 94 Prosecutor v. Kallon and Kamara, Case No. SCSL-2004-15AR72(E) and SCSL-2004-16 AR72(E), Decision on Challenge to Jurisdiction: Lome Accord Amnesty, Mar. 13,2004. See also S. Meisenberg, The Lome Amnesty Decision of the Special Court for Sierra Leone, Bofax No. 274, Institute for International Law of Peace and Armed Conflict, June 28, 2004. For a discussion on this case and amnesties in Sierra Leone see S. Meisenberg, "Legality of amnesties in international humanitarian law The Lome Amnesty Decision of the Special Court for Sierra Leone," 856 International Review of the Red Cross 837-851 (2004). 95 UN Secretary-General, supra note 16, para. 10. 96 Nonetheless, one must bear in mind the previous comments pertaining to UN ambivalence towards the adoption of amnesties. See in particular its position regarding Afghanistan. 97 K. Chiedu Moghalu, "Image and Reality of War Crimes Justice: External 92
93
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created and is financing this body. Rapidly, the idea of victors' justice came to the mind of those who considered themselves as victimized by the policy of the Tribunal. Yet, this criticism is seriously flawed because it is a fact that the majority of the crimes perpetrated during the armed conflicts on the territory of the Former Yugoslavia were perpetrated by persons of Serb origin. Besides, in order to compensate this imbalance the ICTY indicted some Bosnian Muslims who had committed less violent crimes than Serbian indictees. As Jones explains, this can be regarded as prosecution to establish a moral equality.98 Moreover, illustratively, detractors of the ICTY also claim that the decision not to prosecute the leaders of the countries that carried out the March-April 1999 bombings in Kosovo was not based on legal but on political grounds. This choice, however, was taken on the basis of other grounds such as the lack of criminal intent. 99 Victors' justice is also reflected in the national prosecution of mainly Serb defendants in Kosovar courts, which are overwhelmingly manned by Albanians. 100 "Evidence of bias on the part of the local judiciary against minorities-both as victims of crime and as defendants" was indeed found by a report of the OSCE in 2000. 101 Further, as the Kosovar Serb defendants refused to be defended by Kosovar Albanians, UNMIK appointed international lawyers to satisfy the need for credible neutrality in the proceedings. 102 To ensure that judges were available in areas widely inhabited by Serb and other minorities, where civil unrest was preponderant and the judicial response inadequate, UNMIK appointed international judges 103 hoping to build public confidence in the judicial Perceptions of the International Criminal Tribunal for Rwanda," 26.2 Fletcher Forum of World Affairs 38 (2002). 98
J.R.W.D. Jones, "The Gamekeeper-Turned-Poacher's Tale," 2 Journal of
International Criminal Justice 486-494 (2004). 99 See, e.g., N. Quenivet, "Report of the Prosecutor of the ICTY Concerning NATO Bombing against the FRY: A Comment," 41.3 Indian Journal of International Law 478-495 (2001); P. Benvenuti, "The ICTY Prosecutor and the Review of the NATO Bombing Campaign against the Federal Republic of Yugoslavia," 12.3 European Journal
of International Law 503-530 (2001). 100
EM. Lorenz, "The Rule of Law in Kosovo: Problems and Prospects," II
Criminal Law Forum 133 (2000). The United Nations acknowledges that "Kosovo Serbs
comprise about 5 per cent of all judges and 4 per cent of all prosecutors." United Nations, Report of the Secretary-General on the United Nations Interim Administration Mission to Kosovo, UN Doc. S/2004171, Jan. 26, 2004, para. 25. 101 OSCE, Oct. 17, 2000, reported in United Nations, Report of the SecretaryGeneral on the United Nations Interim Administration Mission in Kosovo, UN Doc. S/200071196, Dec. 15,2000, para. 44. Similar problems were pointed out in Bosnia
where trials were considered as opportunities for dispensing ethnic justice. Consultants' Report to the OHR, The Future of Domestic War Crimes Prosecutions in Bosnia and Herzegovina, May 2002, Annex 5, at 5-7. 102 Betts, Carlson & Gisvold, supra note 59, at 381. 103 UNMIK, Regulation 200016 On the Appointment and Removal from Office
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system. I04 Later these judges were dispatched to other districts, but their role was not limited to examining past abuses. Although in 2000 the United Nations reported that they were involved in war and ethnically related crimes,I05 this was not the case anymore in 2003 when it declared that they worked as normal lawyers and were not particularly entrusted with sensitive cases l06 as the ability of the local judiciary to take on sensitive cases improved. lo7 Besides, the Kosovo War and Ethnic Crimes Court was promoted as an interim tribunal to tackle, among others, war crimes, crimes against humanity and genocide. Yet, in September 2000 the United Nations discarded the idea, preferring to rely on international staff placed in the five judicial districts in KosOVO.I0 8 Selectivity is more generally present in the prosecutorial policies of the international criminal tribunals, which are slated for charging those against whom it is easy to find evidence I09 or those who can easily be physically brought to justice. For instance, one may rightfully ask whether alleged perpetrators of crimes committed in Kosovo, who are residing outside the province, will even be brought to justice. 110 UN lack of will to put pressure on the government of Serbia and Montenegro impairs its credibility and effectiveness in the administration of Kosovo according to the rule oflaw. In contrast the ICTR is hailed of International Judges on International Prosecutors, UN Doc. UNMIKIREG/2000/6, Feb. 15,2000. See United Nations, Report of the Secretary-General of the United Nations Interim Administration Mission in Kosovo, UN Doc. S/2000/1n, Mar. 3, 2000, para. 110. For an excellent analysis of the role of international judges in the promotion of the rule of law in Kosovo, see A. Schroder, Der Beitrag internationaler Richter und Staatsanwiilte zur Entwicklung der Rechtsstaatlichkeit im Kosovo, Zentrum fUr Internationale Friedenseinslitze, Aug. 2004, available at http://www.zif-berlin.org/ Downloads/Internationale_Richter_und_Staatsanwaelte.Kosovo.pdf (last visited Aug. 19,2005). 104 United Nations, Report of the Secretary-General of the United Nations Interim Administration Mission in Kosovo, UN Doc. S/2000/538, June 6, 2000, para. 60. 105 !d., para. 60. The same is declared in United Nations, Report of the SecretaryGeneral of the United Nations Interim Administration Mission in Kosovo, UN Doc. S/2003/113, Jan. 29, 2003, para. 33. 106 "There are also 17 international judges and 10 international prosecutors placed at the District and Supreme Courts of Kosovo and the Office of the Public Prosecutors. They handle approximately 3 per cent of criminal cases considered as sensitive." United Nations, Report of the Secretary-General on the United Nations Interim Administration Mission to Kosovo, UN Doc. S/2003/421, Apr. 14,2003, para. 16. 107 United Nations, Report of the Secretary-General of the United Nations Interim Administration Mission in Kosovo, UN Doc. S/2003/996, Oct. 15,2003, para. 23. 108 International Crisis Group, Finding the balance: The scales ofjustice in Kosovo, Balkans Report No. 134, Sept. 2002, at 20. 109 D. Pankhurst, "Issues of Justice and Reconciliation in Complex Political Emergencies: Conceptualising Reconciliation, Justice and Peace," 20.1 Third World Quarterly 249 (1999). 110 Betts, Carlson & Gisvold, supra note 59, at 387.
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as a triumph: the general population has an increasingly positive image of the work carried out by the Court because of the "tribunal's successes in apprehending the 'big fish,' accused persons whom most Rwandans knew were effectively beyond the reach of the domestic judicial system."111 Selectivity can also be enshrined in the peculiar choice of the international community which, in the case of East Timor, preferred to approve a two-track, both national (one in East Timor and one in Indonesia), approach to bringing perpetrators to justice. 112 However, this decision left free from prosecution all alleged wrongdoers of Indonesian origin who had to be hauled into an ad hoc Human Rights Court in Jakarta, which, unfortunately, acquitted most suspects. It is incontrovertible that the Indonesian judicial system is unwilling to dispense justice in this regard. Although the Special Panels for Serious Crimes in Dili could prosecute any person suspected of genocide, crimes against humanity, war crimes and torture, as well as murder and sexual offenses, 113 their work was severely hampered by the inability of the prosecutor to obtain the extradition of nationals of East Timor who had found refuge in Indonesia. I14 Inevitably the viability and credibility of an accountability mechanism, which claims to be based on the rule of law, depends on whether it can summon perpetrators to justice. The number of expectations were very high, victims felt that justice had not been meted out and "concern [was expressed] about the performance of UNTAETI15 and the East Timorese judicial system in delivering justice,"116 which led various associations of Timor Leste to call for the establishment of war crimes trials. ll7 As soon as 2001 118 a group ofNGOs lobbied for the birthing III K. Chiedu Moghalu, "Image and Reality of War Crimes Justice: External Perceptions of the International Criminal Tribunal for Rwanda," 26.2 Fletcher Forum of World Affairs 28 (2002). 112 UN Security Council, Report of the Security Council Mission to East Timor and Indonesia, UN Doc. S/2000/l105, Nov. 20, 2000, para. 28. 113 UNTAET, Regulation 200011 IOn the Organization of Courts in East Timor, UN Doc. UNTAET/REG/2000111 (2000), Mar. 6,2000. 114 Concerning the lack of cooperation between Indonesia, the government of East-Timor and the United Nations, see more generally L. von Braun, "Die Strafverfolgung von Menschenrechtsverbrechen aus der Praxis: Entwicklung, Struktur und Leistungsrahigkeit des Sondergerichts in Osttimo~" 2 Journal ofInternational Law of Peace and Armed Conflict 102-104 (2005). 115 One should not forget that Security Council Resolution 1272 bound UNTAET to hold accountable those responsible for serious international humanitarian law violations. See SC Res. 1272, UN Doc. S/RES/l272 (1000), Oct. 25,1999, para. 17. 116 S. Pritchard, "United Nations Involvement in Post-Conflict Reconstruction Efforts: New and Continuing Challenges in the Case of East Timor," 24.1 University of New South Wales Law Journal 186 (200 I). See also s. Linton, "Prosecuting Atrocities at the District Court of Dili," 2 Melbourne Journal ofInternational Law 456-458 (2001). 117 Marshall, supra note 57, at 11. 118 See, for example, Justicefor East Timor, June 13,2001, at http://www.globalpolicy.org/intljustice/tribunals/200 1/07 I 3intlcall.htm (last visited Aug. 18, 2005).
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of an international tribunal for East Timor to bring to justice perpetrators of crimes against humanity and gross violations of human rights. As a partial answer to these calls, on February 18, 2005 the UN Secretary-General announced the establishment of a commission tasked to review the prosecution of serious human rights breaches committed in Timor-Leste in 1999. 119 It thereby recognised UNTAET's failure in prosecuting perpetrators of past abuses and delivering justice according to the rule of law.
iv. The Independence of the Judicial Apparatus
The question of the independence of judges and, more generally, of the personnel employed in tribunals addressing past crimes must be raised. First, legal personnel must be free from corruption. Nonetheless, due to realities on the ground, national personnel are often linked to particular factions or families who are in power in political institutions. Second, in the particular context of prosecuting those involved in past atrocities, the United Nations must ensure that judges, prosecutors and lawyers alike are free from bias regarding the past. In Bosnia "[0 ]ne serious mistake was to retain the old judicial system more or less intact for several years, which, to a high degree, helped preserve the strong ethnic tensions long after the war was over. It is not until the last few years that a major overhaul of the judiciary has been carried out, which has proven to be a major step forward."I20 In contrast, Geoffrey Robertson, one of the judges of the Special Court for Sierra Leone had to resign after the defense argued that his opinion was biased, inasmuch as he had depicted Sierra Leone's rebels as bloodthirsty criminals in a book.l2l In Kosovo, a further hurdle emerged notably that national judges might be appointed on a short-term contract subject to periodical renewal by the international administration. I22 In this context, one may legitimately raise the issue of the independence of judges who may wish to see their contracts renewed and, therefore, do everything in their power to please the international admin119 UN Security Council, Letter dated 26 January 2005 from the President of the Security Council addressed to the Secretary-General, UN Doc. S/2005/97, Feb. 18, 2005. 120 Ahlund, supra note 53, at 40. 121 Special Court for Sierra Leone, Prosecutor v. Sesay, Decision on defense motion seeking the disqualification of Justice Robertson from the Appeals Chamber, SCSL-04-15-PT-058, Mar. 13,2000 and Special Court for Sierra Leone, Prosecutor v. Sesay, Decision on defense motion seeking clarification of the decision on the disqualification of Justice Robertson from the Appeals Chamber, SCSL-04-IS-PT-140, May 25, 2004. 122 C. Stahn, "Justice under Transitional Administration: Contours and Critique of a Paradigm," in H. Fischer & N. Quenivet, Post-Conflict Reconstruction: Nationand/or State-Building? 157 (2005).
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istration. International judges there are also bound to the United Nations as they enjoy the status of UNMIK civil employees and, hence, their contract is in the hands of the UN administration. 123 "Non-extension [of contracts] may, in particular, be a means of holding judges accountable for specific conduct undertaken within the term of their offices, which is manifestly incompatible with the independence of the judiciary."124 Removal is also a fairly quick affair since the United Nations is allowed to dismiss international and national judges for "serious misconduct" or "failure in the due execution of office," grounds that may be viewed as rather indeterminate. 125 Further, according to Regulation 2000/64, cases are assigned to international judges by the Special Representative of the Secretary-General and not in a random fashion. 126 This situation undoubtedly questions the independence of the judicial system that addresses past abuses. In contrast, in international criminal courts, prosecutors and judges are nominated by the United Nations. For example, judges of the ICTY are nominated and elected by the UN General Assembly on the basis of a list approved by the UN Security Council. The Chief Prosecutor is appointed solely by the Security Council on the recommendation of the Secretary-General. "To avoid drawing criticism that the chief prosecutor merely serves the interests of the powerful, council members have carefully selected 'neutral' parties for this position."127 Further, the independence shown by certain prosecutors, such as Carla del Ponte, unassailably proves that they act free of political pressure. This system seems to be firmly grounded in the rule oflaw. Nevertheless, in Rwanda, the events following the release of Barayagwiza tend to demonstrate the contrary. The Prosecutor managed to reverse the decision of the Appeals Chamber after the Rwandan authorities announced the suspension of its cooperation with the ICTR. The suspect was eventually tried but Barayagwiza and several other detainees went on strike claiming that this was victor's justice coming from Kigali. 128 However, the prosecutor's act must be understood in the light of Rwanda's duty to cooperate fully with the international tribunal. Inevitably,
123 OSCE, Review o/the Criminal Justice System, Sept. 2001-Feb. 2002, at 25 and OSCE, Review o/the Criminal Justice System, Mar. 2002-Apr. 2003, at 28. See also Schroder, supra note 103, at 14. 124 Stahn, supra note 122, at 157. 125 Id. 126 UNMIK, Regulation 2000/64 On Assignment 0/ International Judges/ Prosecutors and/or Change o/Venue, UN Doc. UNMIKlREGI2000/64, Dec. 15,2000. See also Schroder, supra note 103, at 14. 127 C. Rudolph, "Constructing an Atrocities Regime: The Politics of War Crimes Tribunals," 55.3 International Organization 663 (2001). 128 1. Metcalfe, "The Politics of Justice at the ICTR," Internews, Mar. 1,2000, available at http://www.allafrica.com/storiesI200003230064.html(lastvisitedAug.II , 2005); ICTR, "ICTR Detainees Announce 'Strike' ," Press Release, ITR/INFO-9-2246.EN, Arusha, Oct. 26, 2000.
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such pressure on the ICTY would have been useless, inasmuch as non-cooperation meant that Rwanda was violating the Security Council's resolution that created the tribunal and that, inevitably, the Security Council would have summoned Rwanda to resume its cooperation with the tribunal.
v. The Right to a Fair Trial Generally it can be asserted that all those hauled into court for crimes against humanity, genocide and breaches of international humanitarian law are given a fair trial. However, some specific points need to be raised, which shows the deficiencies of favoring certain types of judicial mechanisms over others. The East-Timorese judiciary was plagued by a lack of qualified personnel, as a result of which some defendants were not aware of their rights or understood little of the proceedings in which they were involved. 129 The dearth of proficient translators also impeded communication between the defendant and the international staff. Slowly, legal aid services were established, and all accused received legal representation so that "the requirements of fair trial and due process [were] being modestly met."\30 Undoubtedly this demonstrates that should the United Nations choose to set up a court ensconced in the national judicial system, albeit composed of mixed international and national staff, it must ensure that it also provides adequate training for the national legal and translating personnel, or, otherwise, the rule of law may be violated. Another human rights guarantee intertwined with the rule of law is the right of the defendant to be charged within an appropriate time period. From the outset, the ICTR was reprimanded for excessive delays in bringing suspects to trial. In the Appeals Chamber, the judges found that the infringements of the defendant's right to freedom from arbitrary detention and to be tried within a reasonable time were so egregious and detrimental to the Court's integrity that the indictment had to be dismissed and the accused released. l3l This position was however abandoned in later cases. In another case, the ICTR, in contravention of human rights best practices, refused to indemnify a person wrongly detained, as he was mistaken for another person. 132 The situation in the national Pritchard, supra note 116, at 187. Othman, supra note 78, at 465. 131 ICTR, Prosecutor v. Barayagwiza, Case No. ICTR-97-19-1, Appeals Chamber, Nov. 3, 1999. See also W. Schabas, "Barayagwiza v. Prosecutor," 94 American Journal of International Law 638---ti45 (2000). In East Timor due to the slow pace taken by the Special Panels and the failing detention capacities, some alleged perpetrators were released. Ie. Beauvais, "Benevolent Despotism: A Critique of UN State-Building in East Timor," 33 New York University Journal of International Law and Politics 1155 (2001). 132 Amnesty International, United Nations International Criminal Tribunal for Rwanda: Trials and Tribulations, AI Index lOR 40103/98, Apr. 1998. 129 130
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judicial system of Rwanda may be qualified as worse, as, burdened with processing some 120,000 suspects who had been arrested in 1994, it only decided in 200 I to surrender some of them to the Gacaca courts, realizing its inability to cope with the monumental task of hauling them into court. Yet, despite this release en masse, some suspects have been held for years without being formally charged. Although the United Nations may not be directly blamed for this calamity, there is no doubt that it could have been a guiding hand in the process, inasmuch as it was already involved in the prosecution of genocide suspects in Rwanda by an international ad hoc court and it had pledged its support in rebuilding and reinforcing the legal system. 133 These cases inevitably demonstrate the current constraints of international law, inasmuch as it allows for the United Nations to be involved in certain activities as far as state sovereignty allows it.
2.
Setting Up a Domestic Mechanism
As Kritz explains "[i]t's fine to talk about the establishment of an international criminal court. It's fine to establish tribunals for Yugoslavia or for Rwanda. The fact is, those institutions serve important functions. But they don't change the fact that societies, locals, need to come to terms with problems in their own societies."134 In reality, the incapacity of the United Nations to mete out justice in all cases is one of the most significant reasons for turning towards the domestic realm; the United Nations cannot accept impunity and, therefore, must consider domestic judicial or traditional mechanisms. 135 Such mechanisms, revived and given a new meaning or maintained with even more legitimacy, are built either instead of criminal prosecution or concurrently. In any case, the international community identifies them as more or less ideal conduits for delivering justice and reconciliation. In addition, the national judicial system may be used to address crimes that occurred during the conflict. In the beginning, the United Nations was skeptical as to the viability of such a solution but the idea gained momentum when 133 Pankhurst, supra note 109, at 252. In addition, the ICTR has recently decided to forward some cases to the national level in Rwanda. S. Maupas, "Le TPIR veut transferer des detenus au Rwanda," Le Monde, Mar. 3,2005, at 4. 134 Kritz, supra note 67, at 452. 135 "The pervasive culture of impunity so prevalent in contemporary armed conflicts has challenged the international community to find more immediate 'rule oflaw' solutions and new ways to interact with the perpetrators of genocide, ethnic cleansing and other atrocities collectively referred to as 'crimes against humanity.' It has also raised the prospect of some perpetrators being held to account through traditional systems of justice." Darvill, supra note 7, at 6.
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the United Nations realized that it would not be able to install international mechanisms everywhere.
i. Truth and Reconciliation Commissions and Traditional Institutions Away from criminal proceedings, Truth and Reconciliation Commissions are employed by post-conflict societies to come to terms with past atrocities. Although it is true that the first commissions were ensconced under national procedures away from the eyes of the United Nations, their future existence is likely to be influenced by international organizations. I36 For instance, even though the Commission for Reception, Truth, and Reconciliation of East Timor was an original idea of the National Council of Timorese Resistance, it formally came into being by a UNTAET regulation. I37 On the other hand, the United Nations hindered the creation of such a commission in BosniaHerzegovina, claiming its own right to decide on the most appropriate fashion to handle past crimes. I38 In particular, the ICTY, in the belief that it was the sole guarantor of justice, peace and reconciliation in Bosnia-Herzegovina, rejected any attempt to design a domestic reconciliation regime since that would, in its opinion, impede the work of the ICTYI39 Should such a commission be set up, that could only be done on the basis of its subordination to the international judicial body. As a result "the interests and wishes of the people living in Bosnia are difficult to discern-all as a consequence of the international community's own preferential policies."I4o This shows that, in some instances, the United Nations was instrumental in installing such institutions; yet, as the example of the Gacaca illustrates, the United Nations simply had to admit their
136 For example, in El Salvador, the government refused to acknowledge the findings of the UN truth commission, although it committed itself under the peace agreement to abide by its conclusions. Indeed the commission found that the political party, which supported the government, had been involved in past atrocities. As a result the rule of law was trampled from the very outset of the new era under the "rule oflaw." 1. Johnstone, Rights and Reconciliation: UN Strategies in the Transition in EI Salvado (1995). 137 UNTAET, Regulation 2001110 On the Establishment o/a Commission/or Reception, Truth and Reconciliation in East Timor, UN Doc. UNTAET/REG/20011J0, July 13,2001. 138 Kritz, supra note 67, at 454. 139 M. Bohlander, "Last Exit Bosnia-Transferring War Crimes Prosecution from the International Tribunal to Domestic Courts," 14 Criminal Law Forum 63 (2003). 140 T.W. Waters, "Contemplating Failure and Creating Alternatives in the Balkans: Bosnia's Peoples, Democracy, and the Shape of Self-Determination," 29 Yale Journal 0/ International Law 430 (2004).
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existence. Indeed, the Gacaca 141 are working besides the ICTR and national criminal courts, providing a third and non-legal forum to investigate the past without any relation to the United Nations. As to the procedural and substantial work of these commissions and traditional mechanisms, the United Nations is unable to have any leverage on them since "[t]here is no role for outsiders except supporting their spiritual efforts toward reconciliation behind the scene."142 An exception to this rule is the Truth and Reconciliation in Sierra Leone, as several of its members were not citizens from this country (but from Canada, the Gambia and South Africa) and, thereby, provide an outsider's view on the conflict in this part of Africa. 143 This reluctance to tolerate foreigners is due to the fact that the primary aim of such commissions is to uncover truths in order to achieve national reconciliation. The United Nations can only be a mediator in the creation of such institutions and not a party to the debate since it would then impose its own perception of the conflict. In this case the United Nations is unable to instil the rule of law in the proceedings of such mechanisms. However, since these mechanisms do not prosecute and punish offenders, violations of the principle of rule of law and the consequences thereof may be of lesser gravity. Yet, it can also, e contrario, be argued that such mechanisms breach the rule of law because they foster impunity. On the other hand, by carefully considering the history, culture and development of the society disturbed by a conflict, the United Nations may be put in a position where it may support a traditional system that does not abide by the rule of law and human rights standards as defined by the United Nations. Not only "[s]imply because [these mechanisms] exist outside the control of the state does not guarantee that they embody any qualities of morality or concern for the greater good"144 but also they might work in gross contravention of the rule oflaw as understood by the United Nations. Drumbl poignantly shows that traditional systems of settling disputes in Afghanistan not only violate the rule of law in terms of procedure and substantial issues but may also lead to gross
141 The Gacaca, though called courts, have little to do with the Western understanding of this term. They are, in fact, a traditional communal dispute resolution mechanism stressing dialogue, reconciliation, confessions, and leniency. On the Gacaca, see, e.g., J. Sarkin, "Promoting Justice, Truth and Reconciliation in Transitional Societies: Evaluating Rwanda's Approach In the New Millennium of Using Community Based Gacaca Tribunals To Deal With the Past," 2.2 International Law FORUM du droit international 112-121 (2000), and A.E. Tiemessen, "After Arusha: Gacaca Justice in PostGenocide Rwanda," 8.1 African Studies Quarterly 57-76 (2004). 142 Shinoda, supra note 61, at 8. 143 Further, one notes also that Tomuschat (Germany) was a member of the Truth and Reconciliation Commission in EI Salvador. 144 Pankhurst, supra note 109, at 247.
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violations of human rights with regards to reparation and punishment. 145 Consequently it is hoped that the United Nations will not support initiatives to employ such mechanisms to tackle past abuses.
ii. National judicial System Most truth commissions operate as an alternative to criminal prosecutions. Nonetheless the national judicial system should also be considered as an alternative venue for tackling past abuses all the more as these courts will, in the future, be the only ones to which the local population will be able to turn. Unfortunately, a recurrent failure of the international community is to believe that states emerging from years of conflict are able to come to terms with the past without any support at all. The Secretary-General also recognized this mistake: "Restoring the capacity and legitimacy of national institutions is a long-term undertaking. However urgent action to restore [... ] rule oflaw cannot be deferred. Thus, United Nations peace operations are often called upon to help fill this rule of law vacuum."146 Cambodia and Afghanistan are two tragic illustrations of the UN gullibility towards national goodwill with regard to the creation of legislation dealing with past atrocities, the implementation of such rules by national courts and the arrest of suspects. For example, due to its limited if not non-existent mandate in terms of rule of law, the United Nations was not heavily involved in such programs in Cambodia. Although "UNTAC [... ] had its own prison, prosecutors, and judges, and it participated in drafting new laws for Cambodia,"147 it refused to be involved in the prosecution of past atrocities because a tribunal was not in the strategic interests of many states. 148 Moreover, the performance of Cambodian courts failed to attract the population's support in the judicial system and in the rule of law, 149 and Cambodia broke its engagement laid down in the Paris agreement to abide by human rights law. In retrospect, the UN Mission in Cambodia should have been endowed with a broader mandate and the means to establish genuine institutions abiding by the rule of law or provide extensive financial, material and vocational support to those in charge of the legal and judicial system. Years later, the local Cambodian population "continue[ d] to demand jus-
145 M.A. Drumbl, "Rights, Culture, and Crime: The Role of Rule of Law for the Women of Afghanistan," 42 Columbia Journal of Transnational Law 349-390 (2004). 146 UN Secretary-General, supra note 16, para. 27. 147 w.G. O'Neill, "Gaining Compliance without Force: Human Rights Field Operations," in S. Chesterman, Civilians in War 100 (2001). 148 Rudolph, supra note 127, at 675. 149 K.E. Neilson, They Killed all the Lawyers Rebuilding the Judicial System in Cambodia, Occasional Paper No. 13, Centre for Asia-Pacific Initiatives, Oct. 1996, at 17.
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tice [... ] for the past"ISO so that in 1997 Cambodia requested the assistance of the United Nations in relation to past crimes committed by the Khmer Rouge. IS I Subsequently the United Nations, in agreement with the Cambodian government, in March 2003, decided in favor of the launching of the Extraordinary Chambers in the Courts of Cambodia that will prosecute breaches of international humanitarian law, crimes against humanity as well as genocide. A decade later the United Nations is in a similar position in Afghanistan despite several warnings. IS2 Having left the leading role in the process of judicial reconstruction to the Afghan Interim Administration, the United Nations was confined to assuming a role of technical assistance. ls3 UNAMA's mandate is interpreted as requiring the United Nations to facilitate rather than lead in the state-building process. Ahlund complains that "[t]he nebulous nature of that formula [used in Article 1.3 of the Bonn agreement] explains at least some of the disarray, which today characterizes the Afghan judicial system."IS4 The judicial reform is running slowly. As a result of the reality on the ground, very few officials implicated in past human rights abuses have been brought to justice. ISS What is more, former leaders implicated in past abuses are now holding official positions in Afghanistan's ministries while others are running for election.ls6 The outgrowth of this policy, wanted or not, is that total impunity in the name of national reconciliation is considered as an insult to victims and an affront to justice. IS7 Whereas straight after the Bonn agreement the government could have established a judicial mechanism when the various orchestrators of massive breaches of international law were not yet formally involved in governmental structures, the time lapse played in favor of those suspects who managed to gain key positions in the meantime. Leaving too much time IS8 to the Mani, supra note 17, at 7. For a historical view on the process, see B. Rajagopal, "The Pragmatics of Prosecuting the Khmer Rouge," I Yearbook ofInternational Humanitarian Law 189-204 (1998). 152 Kritz warned in 2002 that "the Afghan criminal justice system will be incapable, at least in the short term, and I would argue for the medium term probably as well, to take on many of these difficult and politically very sensitive cases in terms of prosecuting past major abuses." Kritz, supra note 67, at 454. 153 See Stahn, supra note 122, at 161-162. 154 Ahlund, supra note 52, at 44. 155 Human Rights Watch, An Open Letter to President Hamid Karzai, Dec. 3, 2004. 156 Human Rights Watch, Afghanistan: Bring War Criminals to Justice. Special Court Neededfor Past Atrocities, Press Release, July 7, 2004; and F. Chipaux, "Kaboul joue la carte de la reconciliation nationale avec les talibans," Le Monde, May 25, 2005, at 2. 157 Human Rights Watch, supra note 156. 158 The Secretary-General notes that "rule of law reforms and transitional justice activities often occur simultaneously with post-conflict elections, as well as with 150 151
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new government was evidently detrimental to the rule of law in Afghanistan. Now more and more claims stemming from various NGOs active in human rights request the establishment of some type of mechanism tackling past crimes, notably encouraging the Afghan Independent Human Rights Commission to suggest an appropriate institution that would hold accountable those having committed war crimes and crimes against humanity,159 as well as the establishment of a Special Court to try offenders. 160 In 2004 the Commission set up a division to investigate possible transitional justice mechanisms, a creation complicated by the official positions held by those who are likely to be indicted by the judicial system. 161
V. CONCLUSION The imposition of a certain type of rule of law in peace-building missions has been slightly counter-productive; it has not necessarily imbued the confidence of the local population in the rule of law as the example of SerbiaMontenegro shows. "The view has to be considered that, where the international community, and particularly the UN, implements international laws, it is imposing inappropriate values on societies which had no say in their design, and is furthering a project of oppression, of imperialism, or some other form of global dominance."162 Consequently, solutions suggested by the United Nations must be anchored in local views and accepted by the population who is going to build upon the institutions and rules created under the auspices of the international community. On a more general tone, the Secretary-General clearly recognized this necessity in the report A More Secure World: Our Shared Responsibility as he declared that "the core task of peacebuilding is to build effective public institutions that, through negotiations with civil society, can establish a consensual framework for governing within the rule of law."163 At the end of the continuum, leaving responsibility for the institutionalization and implementation of the rule oflaw in local hands has proved to be disastrous. Yet, I do not argue in favor of a steady and almighty intervention of the United Nations in designing post-conflict mechanisms. There is no need to devise the unfolding of fragile peace processes. Careful sequencing of such processes is vital to their success and legitimacy." UN Secretary-General, supra note 16, para. 21. 159 Human Rights Watch, supra note 155. 160 Human Rights Watch, supra note 157. 161 R. Garrison, Rebuilding Justice: The Challenges ofAccountability in Policing in Post-Conflicting Afghanistan, Conference of the International Society for the Reform of Criminal Law, Montreal, Aug. 8-12, 2004, at 8. 162 Pankhurst, supra note 109, at 254. 163 United Nations, A More Secure World: Our Shared Responsibility, Report of the High-level Panel on Threats, Challenges and Change, 2004, para. 229.
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ambitious schemes for international justice in all post-conflict situations. The United Nations should leave to the government and the local population the right to decide upon which regime best fits, yet be a guiding hand. If the choice is settled for a national mechanism, and it is evident that neither the legislation nor the judicial institutions are adequate, the United Nations should assist the government in this regard. The most significant contribution may be in providing vocational training,164 as well as financial and material support, for those who will prosecute, adjudicate and defend an alleged perpetrator's case. The United Nations could adopt a two-track approach based on the sovereignty of the states in which it is intervening and on the capacity of the new government to fulfill its international obligations according to the rule of law. If the United Nations is administering a certain population and territory, it is its duty to ensure that wrongdoers be punished according to the rule of law; if the United Nations is assisting a state in rebuilding its legal and judicial system, it should ensure that its guiding hand directs the state towards an effective rule of law. In both cases communication with local actors must be reinforced so that the adopted mechanisms instil general trust in the rule of law, and, further, judicial and legislative institutions can build upon this newly acquired and ingrained principle of law.
164 Strohmeyer believes that vocational training also gives a voice to the local population. H. Strohmeyer, "Making Multilateral Interventions Work: The UN and the Creation of Transitional Justice Systems in Kosovo and East Timor," 25 Fletcher Forum o/World Affairs 124 (2001).
CHAPTER 3 MILITARY AND LEGAL ASPECTS OF PSOS-THE EXAMPLE OF AUSTRIA'S DEPLOYMENT WITH KFOR Gerhard Scherhaufer*
The decisive requirements for the success of a peace support operation (PSO) are the legal basis and the political will to enforce it. Somalia, the UN Missions in Bosnia and Herzegovina (BiH) and the March riots in 2004 in Kosovo are examples of cases in which UN missions almost failed, particularly due to the lack of will of the political authorities or the impossibility for the peacekeeping troops-dictated by the lacking legal authority-to resort to the use of force. Contingents deployed abroad need to be entrusted with sufficient powers, adapted to the circumstances, in order to guarantee reliability and solidarity for their international partners. The aim of this chapter is to illustrate the relationship between the military-political goals 1 and the legal framework ofPSOs.
I.
INTRODUCTION: THE RELATIONSHIP BETWEEN THE POLITICO-MILITARY AND LEGAL FRAMEWORK
The Austrian Armed Forces' (AAF) participation in international missions has general international politico-military reasons. An important objective in foreign politics, of both a military and political nature, for instance, is the showing of solidarity within the international community in keeping international peace and security.2 By increasing its participation in PSOs, Austria will be
* Legal Adviser in the Austrian Armed Forces, former Legad ofKFOR in Kosovo (2001-2005), and Legad of EUFOR in Bosnia (2005-2006). Particular thanks go to Col (GS) Christian Platzer, who, in 2004, was deployed with the author to Kosovo (KFOR). "Bundesverfassungsgesetz tiber Kooperation und Solidaritat bei der Entsendung von Einheiten und Einzelpersonen in das Ausland (KSE-BVG)," 6BGBl. I No. 38/1997 in the version 6BGBl. I No. 3011998, 3511998 (original version): § 1. Einheiten und einzelne Personen kiinnen in das Ausland entsandt werden 1. zur solidarischen Teilnahme an Ma13nahmen der Friedenssicherung einschlie13lich der Fiirderung der Demokratie, Rechtsstaatlichkeit und Schutz der Menschenrechte im Rahmen einer internationalen 67
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increasingly accepted and well-reputed by its international partners, particularly other troop contributing nations (TCN). The more "caveats" (reservations) Austria places on its participation in these missions, be these of a political or legal character, the less it will be credited. The political profit Austria and its armed forces are going to gain depends on the scope and amount of these reservations. From the international community's perspective, in particular that of the multinational command, these kinds of reservations are particularly cumbersome because they limit the options to use the contingent, thereby reducing its value to the mission. On the other hand, purely administrative reservations, such as financial restrictions, are less important. A loss of profitability of the contingent is perceived in particular when the TCN does not provide its own troops with the rules of engagement (ROE) of the mission-leading organization, which are based on international law. This aspect becomes particularly relevant in relation to the possibility to resort to force (e.g., use of lethal weapons). The deployment of the Kosovo Force (KFOR) was based on a Security Council resolution based on Chapter VII of the UN Charter,3 namely Resolution 1244 (1999), authorizing NATO to organize and lead the Force. It was then necessary to frame KFOR's powers and rights accordingly.4 Reference was made Organisation oder der Organisation fUr Sicherheit und Zusammenarbeit in Europa (=OSZE) oder in Durchfiihrung von Beschliissen der Europaischen Union im Rahmen der Gemeinsamen AuBen- und Sicherungspolitik oder. ... Dabei ist auf die volkerrechtlichen Verpflichtungen Osterreichs, die Grundsatze der Satzung der Vereinten Nationen sowie der SchluBakte von Helsinki und auf die Gemeinsame AuBen- und sicherheitspolitik der Europaischen Union auf Grund des Artikels V des Vertrages tiber die Europaische Union Bedacht zu nehmen. Unofficial translation: § 1. Units as well as single persons can be sent I. to jointly participation on a) measures ensuring peace including the promotion of Democracy, Rule of Law, Protection of Human Rights within the frame of an International Organization or the OSCE or in execution of resolutions of the EU within the ESDP or ... Within that there have to be considered the international obligations of Austria, the principles of the Charta of the UN, the Final Acts- of Helsinky, and the ESDP as given in art. V of Treaty on European Union. 3 San Francisco, June 26, 1945, oBGBl. No. 12011956 in the version oBGBI. No. 633/1973. 4 SC Res. 1244 (1999), para. 9 decides that the responsibilities of the international security presence to be deployed and acting in Kosovo (KFOR) will include, inter alia, the deterring of 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 (of the Former Federal Republic of Yugoslavia and now Federation of Serbia and Montenegro), the demilitarizing of the Kosovo Liberation Army (KLA) and other armed Kosovo Albanian groups and the ensuring of public safety and order until the international civil presence can take responsibility for this task.
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to NATO Directive MC 36211, which catalogues several ROE, according to different thinkable types of operations. This catalogue was dictated by the diversity of the several legal systems within the Euro-Atlantic space, which had to be coordinated at the political level. The ROE are constructed in a modular way, with each module detailing specific rights (especially the right to arrest). Therefore, when framing a mission, a political and military decision-making process is initiated choosing the relevant modules from the MC 36211. The single rule of engagement may only need to be further substantiated according to the specific needs of the mission. Thanks to the existence of this catalogue of rules, which has been agreed upon by NATO members when coordinating the different legal systems, the political discussion can focus on the specific powers to be granted to a specific mission. If it is accepted that NATO did sensible work in compiling this menu catalogue, it can be assumed that each right contained therein can be attached to a mandate in conformity with international law. It is a well-accepted principle of the law applicable to international armed conflicts, as well as to police forces or in case of self-defense, that the rights provided for in the ROE need to be applied in accordance with the principles of proportionality and necessity. In many deployments, life-threatening force will only rarely be used to accomplish the mission, but still the use of lethal force should be authorized. This applies also to Chapter VII missions, particularly those based on Article 42 UN Charter. In most dangerous situations, a solution may be to resort to the principle of self-defense (ordinary and extended). 5 However, a more comprehensive legal basis is necessary to grant the right to resort to the lethal use of force, when it is required to enforce a mandate established by a Security Council resolution. The notions of self-defense and extended self-defense are defined in Part II of MC 36211. However, MC 36211 itself does not provide for authorization. The domestic legal provisions of the respective national contingents apply. This is stated explicitly in MC 36211. The members of the Austrian Armed Forces, e.g., are subject to Article 3 of the Austrian Criminal Code. In order to solve the material differences between the notions of self-defense and extended selfdefense in the different domestic legal systems of the TCN, MC 36211 provides for specific ROE regulating situations of "hostile act" and "hostile intent." It is evident that the doctrine of self-defense per se does not provide a sufficient legal basis for the conduct of robust peacekeeping operations. This holds true for all those missions that are authorized under Chapter VII of the UN Charter, in particular peace-making missions, as mentioned in the "Petersberg tasks."6 Peacekeeping missions mandated by a Security Council resolution based In German there is a difference between irresistible compulsion "Not stand" (when the defensive act is directed towards a third person or an object differing from the aggressor) and self-defense "Notwehr" (when the defensive action is directed at the aggressor). In this chapter the term "self-defense" will include both options. In 1992 the WEU Council took a historic decision in Petersberg when it defined
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on Article 42 UN Charter are legitimate even if the parties to the conflict have not consented to their presence. But precisely these missions require more extensive rights of intervention: in case of necessity, the troops shall be allowed to resort to the force necessary to restore and keep international peace and security even if the parties to the conflict resist. In this respect it is particularly important for Austria to have symmetry between its politico-military objectives, on the one hand, and the legal framework, on the other hand, in order to minimize the likelihood of reservations as a TCN. If the legal framework for participation in international missions-and thus for adherence to their political aims-is insufficient, it must be adapted or completed. Otherwise, reservations to the mission may be required. If the legal framework is not adapted, and reservations are not declared, the commander on the field will have enormous difficulties when faced both with the international community's expectancy to act and with the impossibility to do so due to conflicting national legal provisions.
II. THE RIGHT OF INTERVENTION UNDER ARTICLE 42 UN CHARTER
TCNs to a multinational mission mandated under Article 42 UN Charter usually submit their troops either to a command established directly by the United Nations or the command of an international organization (10) entrusted by the United Nations. In order to guarantee cooperation between different national troops in a multinational operation, ideally uniform ROE are required. Their scope and content must be clearly understood by the members of these troops. If a TCN does not allow its troops to perform certain types of intervention, the com-
the scope of the crisis-management operations to which the governments wished to respond. These include humanitarian and rescue missions, peacekeeping and missions of combat forces in crisis management (now known as the "Petersberg tasks"). The Petersberg concept still provides the guidelines for today's ESDP crisis-management missions. The revision of the Treaty on European Union in Amsterdam in 1997 brought the "Petersberg missions" into the Treaty. In Article 17, the expression "peacekeeping" (in German version "friedensschaffend") is used to describe these military tasks, In the Agenda for Peace (UN Doc. A!47!277-S!24I 11, June 17, 1992). on the one hand, the heading of "peacemaking" is used several times. The expression "peace enforcement" (in the German version "friedenserzwingend") is used, when referring to scenarios where military force shaH be applied. These terms describe the character of such missions more precisely. After 1992 WEU set about acquiring the necessary operating structures, and, in the years that foHowed, its new structures were put to the test when it undertook a number of missions in connection with the conflict in the Former Yugoslavia. For more details, see http://www.assembly-weu.org/en/presentationlhistorique.html.
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mander of the international peacekeeping force in charge of these troops will need to know these limitations (caveats) in detail. Under international law, a Security Council resolution may authorize multinational troops to infringe state sovereignty or third parties' rights. However, it is necessary to clarify the extent and the circumstances in which the rules of the laws of armed conflict or humanitarian law (IHL) apply to these troops. On the other hand, it is necessary to clarify the extent to which a Security Council resolution may lawfully mandate these infringements. Its authority does not include breaches of non-derogable rights of international law. The applicability of IHL depends on whether the contingent troops retain their national identity in missions based on Article 42 UN Charter or whether they acquire the status of UN troops. Unless the United Nations will become a party to IHL treaties,? their direct applicability to UN troops will be excluded. 8 On the other hand, troops retaining their national identity in missions based on Article 42 UN Charter and qualifying as international armed conflicts will be considered combatants under IHL. In both cases, however, it is necessary to distinguish between the-generally-unlawful political decision to attack, by military force, the members of a peacekeeping mission and the lawful conduct of military warfare operations under IHL. Otherwise, the difference between the law regulating the right to go to war (ius ad bellum) and the law regulating conduct in warfare (ius in bello) would be thwarted. 9 Although the application of customary rules, like Article 3 common to the four Geneva Conventions of 1949, will be undisputed, an analogous reasoning cannot be made for the other provisions. 8 It is questionable whether troops provided on the basis of Article 43 UN Charter lose their nationality and, therefore, their submission to the IHL obligations ratified by their state of nationality. There is no doubt that such forces are acting for the United Nations and, on that basis, are limited by their authorization. But even when, on request of the United Nations, another 10 employs an international force for that purpose, that force is bound and limited in the same way. A different legal status of forces, depending on whether they are employed in an unlawful attack or employed for self-defense of a state under Article 51 UN Charter (and must be regarded as combatants under 1HL), on the one hand, or within the system of individual or collective self-defense under Chapter VII of the UN Charter, on the other hand (and-for lack of a more precise determination of the status of peace keeping forces-do not qualify as combatants), would be in accordance with the principles of the theory of bellum iustum, which has been given up for good reasons. Under this doctrine, the extermination of the (evil) enemy was authorized without any legallimitations of methods and means. An attack with military means of an international person by another international person, and the defense of the attacked person with military means, constitute, without doubt an international armed conflict. Such an international armed conflict changes its character when forces mandated and authorized by a Security Council resolution, based on Article 42 UN Charter, intervene (the armed forces of the defending party can either continue to participate in the conflict on their own or as a part of or allied with the peacekeeping force, or abstain from any further action).
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On the other hand, it is necessary to determine the extent to which, under international law, a Chapter VII Security Council resolution may entrust an international peacekeeping force with the right of intervention. The United Nations has the monopoly on the lawful use (or authorization) of military force. By joining the United Nations, states have partly renounced their sovereignty. They have accepted that, on the basis of Chapter VII, military force may be used against them and against their will. Only within the framework of the right to self-defense are states allowed to resort to military force. This right, however, pursuant to Article 51 UN Charter, is only available until the United Nations decides to resort to collective security measures. Under Article 39 UN Charter the Security Council is vested with the authority to determine whether there has been a breach of international peace and security or an act of aggression. It further has the right to decide on necessary measures under Articles 41 or 42. Under Article 42, the Security Council can entrust the right to resort to military force to maintain international peace and security, when, in its opinion, measures under Article 4 I (i.e., those in which the use of armed force is not allowed) are no longer sufficient. A threat to international peace and security can originate from a lack of international or external security, or a combination of the two. 10 The use of military force on the basis of a Security Council Resolution shall be the ultima ratio, because otherwise the Security Council would restrict the "inherent right of individual and collective self-defence" of states under Article 51 UN Charter. In theory, therefore, no authorization to resort to military force can have a wider scope, in terms of lawfulness of intervention, than under Article 42 UN Charter. Thus, the authority vested in a peacekeeping mission will probably lie below the threshold set by Article 42. This applies, in particular, when less dramatic forms of intervention could achieve the mission established in the Security Council resolution. This assessment is for the Security Council to make. I I Only when the authority, vested in a speAccording to Article 103 UN Charter, obligations arising from the Charter shall prevail over any other treaty obligations, and, hence, even members of a peacekeeping force that is mandated by a Security Council resolution based on Article 42 UN Charter, engaged in an international armed conflict, would not be obliged to obey the rules of IHL (with the exception of ius cogens) insofar as these rules contradict the mandate. Such a change of the legal regime because of a change of the legal quality of conflicts would be a big step back on the road to implementing the principles of humanity in armed conflict. It is inadequate not to apply the rules of IHL even in such modern conflicts to all armed forces deployed, because, on the one hand, the number of military missions mandated by a Security Council resolution under Article 42 UN Charter increases, and, on the other hand, in modern conflicts, the distinctions between international armed conflict and non-international armed conflict, as well as between defense and internal security, tend to fade. 10 Bruno Simma (ed.), Commentary to UN Charter Nos. 5-8, on art. 39 UN Charter (1991). II The jurisdiction of an international criminal court over persons who represent
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cial peacekeeping mission, falls below the threshold set by Article 42 can the authorization of force (at the same time or at another time) be more permissive in other missions mandated by a Security Council resolution under Article 42 or, in the case of self-defense, under Article 51 UN Charter. If an Article 42 mandate authorizes a peacekeeping force, Article 51 remains applicable only insofar as such authorization of the use of force is insufficient to maintain international peace and security. This would imply that the Security Council resolution either has not made a proper assessment of which authorization is required or that the Security Council deliberately does not give the necessary authorization, presumably for political reasons. The former would contradict the principle of the monopoly of the United Nations on the lawful use and authorization of military force. But even in both kinds of missions, the above-mentioned limitations cannot be legally infringed. Therefore, there is no legal way to extend an authorization to use military force beyond a Security Council resolution based on Article 42. This special status of military forces deployed on the basis of a Security Council resolution is justified, since, under Articles 39 and 42 UN Charter, the Security Council can mandate troops with these tasks only if the measures under Article 41 can be expected to be, or have proven to be, inadequate. Since this rule aims at protecting international peace and security, it prevails over other provisions of international law, as established by Article 103, with the only exception being the rule of ius cogens. 12 Other rules can be derogated from, as long as these are inconsistent with the Security Council resolution. the members of the Security Council would be an adequate correction to the problem that the freedom of action of the Security Council is not subject to any other form of judicial review under the UN Charter. 12 So even Robert Kolb, 64.1 ZaoRV HJIL 21 et seq. and Heinz Schilling, 64.2 ZaoRV HJIL 343 et seq. Schilling however does not assume such a supremacy of SC resolutions in respect of nations, who, as a member of Security Council, vote for the adoption of a SC resolution, which contradicts their international treaty obligations, the reason for this being the principle that one must not frustrate personal obligations in this way (estoppel). But he does not sufficiently take into account that rules of internationallaw (as well as rules of national law) can always be changed in accordance with the respective rules on lawmaking. Such rules may be found both in customary international law and in general principles of international law. In theory only ius cogens could be excluded. This, in turn, would presuppose the eternal validity of such rules due to their supposed unchangeable character, which is at variance both with Article 53 of the Vienna Conventions on the Law of Treaties (as far as international law is concerned) and with practice concerning the history and development oflaw. Creation of new legal rules is possible, provided the rules on lawmaking are being observed, e.g., every nation can validly enter into international obligations when these contradict national law. It does not matter whether that nation harmonizes national law with such international obligations by adapting national law. The national legislator, in turn, can create valid national law that contradicts existing international obligations of this nation. It is possible to create law that interferes with existing contractual rights, as well as obligations
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Such Security Council resolutions usually relate to a specific conflict or crisis situation. Therefore their temporal and geographical scope of application is limited. Measures listed by Article 42 can be enforced only in the region posing a threat to international peace and security and only as long as the threat persists, as determined by the Security Council on the basis of Articles 39 and 42 UN Charter. International peace and security are important, not only for subjects of international law, but also for every individual person. 13 Their importance is universal. Article 1, paragraph 3 UN Charter also establishes that a Security Council resolutions based on Article 42 must observe and guarantee the respect of human rights. The Security Council, therefore, has to find a balance between the duty to guarantee international peace and security and the respect of human rights, according to the principle of proportionality. Such a balance depends on the circumstances. Taking into account the danger posed by the situation, it must be decided whether, and for how long, a partial or total derogation from human rights may be required and whether this would be proportionate, necessary and adequate. If Security Council Resolution 1244 (1999) did not sufficiently grant the observance of human rights, it would conflict with the UN Charter and would therefore be unlawful. But even without Article 103, it would be clear that Chapter VII resolutions providing for measures under Article 42, the latter being universal international law, prevailed over regional instruments like the European Convention on Human Rights. 14 In this case, the application of these treaties may be suspended by a Chapter VII Security Council resolution as long as required by the situation. The precedence of international rules, aimed at protecting international peace and security, over other provisions, aimed at protecting other values, may be inferred from the importance of the protected objectives. The legal effect of Article 42 UN Charter can be compared with the possibility, provided by most domestic legal systems, to derogate from certain of international persons, natural and legal persons. There is no doubt that law thus adopted is applicable to persons who, as members of the legislative organ, took part in the abovementioned legislative act, even when the treaty obligation concerned referred to them. Once the possibility to create contradicting rules of equal hierarchic rank is accepted, it remains to be considered whether one should take precedence over the other. 13 Even when admitting precedence of the legally protected interest of international peace and security to all other legally protected interests, every infringement in human rights, in order to protect international peace and security, has to be considered on the basis of the principles of necessity, proportionality and adequacy, even when that fundamental right is not a precondition for the protection of human rights, as well as all individual legally protected interests. See, for example, the German law on aviation security, Luftsicherheitsgesetz (Gesetz zur Neuregelung von Luftsicherheitsaufgaben vom Jan. 11, 2005, dBGBI. I 2005/78), which shows an increased awareness of this ambiguity together with the softening of the border between internal security and defense (external security). 14 Rome, Nov. 4, 1950.
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human rights in times of state emergency. Also in this case, however, these measures need to be necessary, proportionate and adequate.
III. RESERVATIONS BY AUSTRIA TO RIGHTS OF INTERVENTION AUTHORIZED BY THE SECURITY COUNCIL
Security Council resolutions provide for certain rights of intervention in state sovereignty and third parties' rights. This is possible as long as no hierarchically superior norms are being infringed. Customary international law, IHL customary provisions, the International Covenant for Civil and Political Rights (ICCPR), the contents of which may also be regarded as customary internationallaw l5 and the European Convention on Human Rights limit the use of force by states. As previously mentioned, however, under Article 103 UN Charter, a Chapter VII Security Council resolution has the authority to entrust troops with this right of intervention only if no higher norms are being infringed (e.g., ius cogens). For example, a Chapter VII Security Council resolution may authorize a state to intervene in the internal affairs of another state. Domestic law can lawfully authorize the intervention of forces outside the territory of their nation only on the basis of international law authorizing such intervention, and within its limitations. Any intervention without such legal basis would violate the sovereignty of the nation concerned and constitute a breach of international law. Security Council Resolution 1244 (1999) provides the legal basis for the intervention (e.g., use of military force) ofKFOR. In point 7, it authorizes UN member states and the competent 10 (NATO, according to attachment number. 2 of this Resolution) to organize the international security presence (KFOR) with "all necessary means" to fulfill the tasks set forth in point 9. If these rights were inconsistent with ius cogens provisions of international law, the Security Council would require unlawful action. This must not be assumed. The scope of KFOR's rights of intervention, framed by the formula "all necessary means," has not been clarified by the Resolution. This provision, however, has a normative effect only if it is assumed that, except for ius cogens provisions, it has precedence over other international law norms and that it authorizes intervention with all necessary and adequate means, which do not infringe ius cogens. If it were assumed that not only ius cogens but also other provisions of universal and regional international law could limit this authorization' it would be impossible for Security Council Resolution 1244 (1999) to grant rights and powers, rendering it meaningless. The European Convention on Human Rights (ECHR), as discussed above, does not conflict with Security Council resolutions providing for the right of intervention under Article 42 UN Charter. Moreover, the ECHR itself provides 15
New York, Dec. 19, 1966, 5BGBl. 1978/591.
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for the possibility to derogate from specific human rights under certain circumstances. Pursuant to Article 2, paragraph 2 ECHR, deprivation of life shall not be regarded as inflicted contrary to Article 2, paragraph I ECHR when it results from the use of force that is no more than absolutely necessary, either in defense of any person from unlawful violence or in order to effect a lawful arrest or to prevent the escape of a person lawfully detained or in action lawfully taken for the purpose of quelling a riot or insurrection. The right to liberty and security is enshrined in Article 5, paragraph I ECHR. According to its sub-paragraphs (a)-(f) no one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offense or when it is reasonably considered necessary to prevent his committing an offense or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition. A literal interpretation of Article 2, paragraph 1 ECHR does not suggest that a person's right to self-defense, if necessary by resorting to the lethal use of arms, is identical to the right of self-defense in the Austrian legal system or that such use of firearms is limited to the cases mentioned in Article 2, paragraph lea) ECHR. The literal content of this norm can be read as permitting self-defense, even when it will not only affect the aggressor, if this is necessary to prevent a danger. 16 Again, the principles of proportionality and adequacy must be observed. The possibility to use force only against the aggressor, however, has its limits, particularly in the context of riots and insurgencies as referred to in Article 2, paragraph 2( c) ECHR. It is certainly forbidden to interpret a norm in such a manner to fully deprive it of its content and objectives. Article 2, paragraph 1(c) and Article 2, paragraph 2(b) would be totally deprived of their content if the use of deadly force was lawful only when pre-suppositions of Article 2, paragraph lea) were completely fulfilled. It is evident that a 16 Otto Lagodny, in Wolfram Karl et al. (eds.), Internationaler Kommentar zur EMRK No. 83 et seq. On Article 2, ECHR, see Karl Doehring, in Liber Amicorum Mosler 146 (1983).
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targeted use of lethal weapons against a person who is not the aggressor is unlawful. The use of such weapons in the context of a riot or an insurrection, under Article 2, paragraph 1(c) ECHR, is allowed both to quell these situations and to defend a person from unlawful violence. Taking a sensible approach to this provision, in such extreme situations, sometimes even the mere presence of persons in riots or insurrections, because of the danger they represent, must be interpreted as allowing the use of force, since such persons may directly instigate the aggressor to act or may express their consent to his actions through their mere presence and thus instigate the aggressor or protect him so that he is enabled to act. In such cases, there is a high risk of escalation of violence. Article 2, paragraph 1(c) ECHR does not exclude defense of property, by the use of lethal weapons, when required to sedate a riot or insurrection. This aspect, however, must be discussed in more detail. Again, the principles of necessity, proportionality and adequacy must be observed. Pursuant to Article 15 ECHR, also in: time of war or other public emergency threatening the life of the nation any High Contracting Party any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. This provision applies to Article 2 ECHR, only in respect of deaths resulting from lawful acts of war. This exception, however, does not apply to Article 3 ECHR (prohibition of torture), Article 4, paragraph 1 ECHR (prohibition of slavery) and Article 7 ECHR (nullum crimen sine lege, nulla poena sine lege). When the UN Charter and the ECHR came into force, a threat to international peace was only conceivable within the context of an international armed conflict. Given the development and changing nature of conflicts and threats to subjects of international law, this will have to be considered also in relation to serious threats to the internal security of states. It has become clear thatnot only as a consequence of the coming into existence of the concept of noninternational armed conflicts but also of the new reality and relevance of threats posed by terrorism, particularly after the September 11 th attacks-threats to the internal and external security are getting increasingly mixed and are set on an equal footing, in many cases. Article 15, paragraph 2 ECHR, therefore, is going to be considered as an exception applicable also in the event of threats to the internal security of a state, if a SecuritY Council resolution considers these to pose a threat to international peace and security. Reference shall be made to Article 2, pararaph 2(c) ECHR. Moreover, Article 15, paragraph 1 ECHR applies not only in times of war but also in cases of "other public emergency threatening the life of the Nation" and provides for the suspension of other rights enshrined in the Convention, as well as the limits thereof.
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Article 15, paragraph 3 ECHR requires every high contracting party, availing itself of this right of derogation pursuant to Article 15 paragraphs 1 and 2 ECHR, to keep the Secretary-General of the Council of Europe fully informed of the measures taken and of the reasons for those. Regardless of the precedence over the ECHR of a mandate based on Article 42 UN Charter as discussed above (Article 103 UN Charter), the universality and publicity of the determination, by a Security Council resolution, of an exceptional case so grave as to pose a threat to international peace and security, requiring the intervention of international troops, and the declaration of high contracting parties, certainly constitute such information. The ECHR does not specify the form in which this information shall be given. By having renounced part of their sovereignty in the event of an intervention based on Article 42 UN Charter within their territory, states will have to tolerate more than the exercise of military force, even without their consent. Even if a Security Council resolution, giving a mandate on the basis of Article 42, did not take precedence over the ECHR such nations would, nevertheless, because of their renouncement of sovereignty, the publicity of the mandating resolution and the declaration of other nations to contribute by sending troops, have to accept that the issuing of the resolution by the Security Council, in conjunction with the aforementioned declaration of these other nations, constitutes a declaration in accordance with Article 15 ECHR, although directed to the Secretary of the Council rather than to them. For the same reasons, a separate declaration by TCNs to an international peacekeeping mission, on the basis of Article 15 ECHR, would likewise be superfluous. Apart from this, there is also the question of the difference between the liability of national contingents, contributed by states parties to the ECHR to multinational forces mandated by a Security Council resolution based on Article 42 UN Charter, and the liability of those states (or organs) in whose territorial sovereignty such a mission is being conducted. The liability of the state concerned by a mission on its territory does not imply liability of the national contingents of the international peacekeeping mission, although the application by analogy of the rules of ECHR may be agreed upon in a Status of Force Agreement (SOFA). This obligation would derive from the SOFA, not from the ECHR, and, consequently, the procedural mechanisms of the ECHR would not come into play. Such an obligation of the TCNs, however, will only be lawful if it does not conflict with the Security Council mandate that, as we have shown, takes precedence over the ECHR by virtue of Article 103 UN Charter. The tasks and rights of intervention of KFOR are set out in more detail by operational plans (OPLAN), military orders and directives of the competent political and military organs of NATO. Again, to assume that these are in breach of ius cogens would imply that NATO's organs act unlawfully. However, the mere fact that Austria has not declared a reservation to them would seem to indicate that it had not determined a breach of ius cogens by these directives. The rights of intervention exercised by KFOR on the basis of Security Council Resolution 1244 (1999) are conferred upon the troops by the mili-
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tary orders of the different command levels. From the point of view of the principle of certainty, these orders, especially those given as ROE, as long as they substantiate the right to use force contained in this Security Council resolution, assume the function of a general and abstract rule of law (law, directive) that is binding upon persons in Kosovo who are neither KFOR nor UNMIK (United Nations Mission in Kosovo) personnel and who, therefore, do not enjoy immunity. The mandate enacted by Security Council Resolution 1244 (1999) will remain legitimate only as long as the Security Council considers that there is a threat to international peace and security still present in Kosovo, requiring a military intervention on the basis of Article 42 UN Charter. In Austria, there are no specific domestic provisions regulating, in particular, the use of force by Austrian military forces deployed abroad on the basis of Section 2, paragraph 1(d) of the Army Law (Wehrgesetz 2001-W G 2001) 17 in an intervention authorized by an Article 42 Security Council resolution. The provisions of the Army Authorization Law ("Bundesgesetzes iiber Aufgaben und Befugnisse im Rahmen der militiirischen Landesverteidigung"-MBG)I8 are not applicable to all types of deployment of the Austrian Armed Forces. In particular, they do not apply to foreigners (combatants as well as non-combatants) in deployments on the basis of Section 2n paragraph 1(d) of the Army Law. In the event of an aggression on Austria, which would lead to an international armed conflict, such rights would derive from international humanitarian law (IHL). Moreover, in this case, the provisions of the MBG apply on both combatants and non-combatants. Thus, should Austrian soldiers, deployed to a mission in the sense of Article 2, paragraph 1(d) Army Law 2001, mandated by the Security Council Council on the basis of Article 42 UN Charter, be authorized to use lethal weapons in situations other than self-defense (and it has already been said that this may be necessary as ultima ratio in peace enforcement missions), this authority shall derive either directly from the mandate, IHL (even ifby analogy) or from any other Austrian legal provision. In any event, it is necessary to implement the international mandate (in casu UN Security Council Resolution 1244 (1999), the agreement between Austria and NATO regulating Austria's participation in the KFOR Mission and the rules enacted by NATO (in particular ROE) in an adequate manner. If the relevant international legal provisions (concerning both the right to use force and the status of the troops) were not considered to have become an integral part of the Austrian legal system, each action by Austrian soldiers within KFOR, as well as their permanence in Kosovo, a territory belonging to Serbia17
WG 2001, 6BGBI. I No. 146/2001 in the version 6BGBI. I No. 103/2002,
137/2003. 18 Militarbefugnisgesetz-MBG, 6BGBI. I No. 86/2000, in the version 6BGBI. I No. 10312000, 137/2003, 1612004, 11912004. Unofficial translation: Federal Law on the Tasks and Rights of the Military State Defense.
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Montenegro, would not have a legal basis. It would further mean that there would be no justification, under the Austrian legal system, for infringements of rights vested in third parties that may constitute a crime under the penal code, since international law, which has not been incorporated into the Austrian legal system, cannot constitute a justification before an Austrian court. Security Council Resolution 1244 (1999) cannot be part of the Austrian legal system at the same time. If this resolution is part of the Austrian legal system, it must own such hierarchic rank. Otherwise the resolution would-in part or as a whole-be inapplicable or breach Austrian constitutional law, insofar as its rules contradict Austrian law without a derogation. However, as far as the Resolution is applicable, it constitutes a justification under Austrian criminal law. With regard to those rights of intervention of KFOR, which conflict with Austrian domestic non-derogable legal provisions, Austria must declare reservations. The reservation not to participate in peace-enforcement operations was withdrawn by Austria. The mere reference to the fact that members of the Austrian KFOR contingent will not participate in peace-enforcement operations which conflict with Austrian law, does not change the situation, since this reference, in the general declaration made to NATO, is too undefined and unspecific and therefore does not constitute a reservation.
IV. LIFE-THREATENING USE OF ARMS TO PREVENT ATTACKS ON PROPERTY On the basis of Security Council Resolution 1244 (1999), the NATO ROE authorize KFOR the "use of minimum force." According to MC 36211 this includes the right to use "deadly force." The use of "deadly force" to protect property, under specific circumstances, has been regulated by NATO in the documents defining the Mission, since the beginning of the latter. Austria got acquainted with these documents when it accepted its international obligation to participate in KFOR on their basis. Since its withdrawal from the above-mentioned reservation Austria has not made any reservation to NATO concerning the manner or scope of the rights entrusted to KFOR in the ROE. The Austrian national legal system, concerning the authorization of the forces deployed, has not changed. There is no doubt that the life-threatening use of arms to protect property can be authorized only in observance of the principles of necessity, adequacy and proportionality and, therefore, only in exceptional circumstances. If it were to be assumed that such use is absolutely unlawful, then also those provisions contained in the ROE, which authorize the use of "minimum force' to protect property, would be contrary to the law. Extreme situations cannot be excluded. For example the theft of armored vehicles, weapons or other means of combat, or the burning of a facility can constitute an extreme situation posing threat to life and physical condition,
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which, at the time of their occurrence, may not be fully assessed, especially as far as the precise time and the specific persons being endangered are concerned. Even if it is the only means to prevent the theft of an armored vehicle or weapons or other means of combat, the use of life-threatening weapons will not be legitimate, if it is clear that, on the basis of the given circumstances, the resort at a later stage to other means not posing a threat to life and physical integrity will suffice to prevent the dangerous effects of these acts. In the event of the burning down of a building by a violent crowd (as well as in a situation in which such an intention is evident), it cannot normally be excluded with 100 percent certainty that this act constitutes a danger to the life and physical integrity of persons. Moreover, this escalating situation may destabilize the public order and security, thereby posing a general threat to the internal security and, as a consequence, to the life and personal security of a group of people that, at this stage, may not yet be identifiable. The theft of weapons, means of combat and vehicles does not only constitute a direct attack on property but also a "hostile intent" posing a threat to life and physical integrity of persons within the meaning of KFOR's ROE (based on MC 36211). More details will follow in Section VI. The Security Council usually authorizes a military intervention on the basis of Article 42 UN Charter to stop a threat to international peace when a region appears to be extremely unstable and dangerous for the internal and external security. Under these circumstances the international peacekeeping force cannot tolerate this kind of attack but has to prevent it with all possible means, subject to the principle of proportionality. This is required not only by the accomplishment of the mission in a strict sense, but also by the need, for the latter to be accepted and, thereby, to be able to fulfill its tasks. In this kind of unstable region, the use of average force, which would be sufficient in stable democratic states to prevent a threat, is inappropriate to guarantee the accomplishment of the mission and the acceptance of the international peacekeeping presence. In regions with intensive conflicts (this applies also to those periods in which movements toward riots and pogroms may be stopped by the deployed peacekeeping troops), in particular historical buildings may, for emotional, religious or ethnical reasons, have a very important political meaning. In Kosovo this holds true, e.g., for the Monasteries of Pec and Decani. The destruction of these symbolic assets does not just constitute the destruction of objects or things but may ignite violent disorders leading to civil war. Therefore, in light of the proportionality of measures aimed at protecting this type of monuments, it is necessary to adopt a different standard. In conclusion, in order to assess the measures to be undertaken to protect property; it is also important to consider the possible consequences resulting from their damaging or destruction. However, the prevention of the destruction of valuable property is to be assessed under a different standard in times of civil war than it is in peacetime. In civil war scenarios the containment of violence is very important. In this type of situation, violence is usually indiscriminately directed at people and
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things, resulting in a general threat to general order and security,19 to be fought with proportionate means. Often it cannot even be sufficiently assessed whether the destruction of things is going to threaten specifically and directly also the life and physical integrity of people. In particular, the burning of houses poses a serious threat when it has to be expected that the fires will affect other areas that cannot be isolated. This is often the case in villages. In these situations, the commander on the scene will rarely know for sure whether there are still people in the buildings and whether they will be able to leave them in time. In the examples mentioned above, the use of "deadly force," if proportionate and adequate, will be the only necessary, and not just adequate, means to efficiently repress the attack. In this case-not even mentioning cases previously referred to requiring the right to intervention in missions authorized on the basis of Article 42 UN Charter-the mere right of self-defense cannot be sufficient, because being realistic, it can be expected with a very high probability that peacekeeping troops, in casu KFOR, will be entrusted with the protection of an object, which has already been attacked or will be attacked soon. In this sort of a developing situation, further tasks and missions of this kind must usually be expected. If the troops entrusted with the protection of these objects first of all have to reach the area by fighting their way through the rioting crowds, they will not be able to fulfill their mission by resorting to the rights granted merely under the doctrine of defense (self-defense and extended selfdefense). The Austrian legal system includes the right to use force to protect property. Self-defense and extended self-defense pursuant to paragraph 3 of the Austrian Criminal Code justifY also the use of necessary force to prevent unlawful attacks on property. This rule does not exclude the use of life-threatening arms for this purpose but authorizes its proportional use. Article 19, paragraph 5 MBG, in extreme situations, allows a resort to these measures in military operations for the defense of the country according to Article 2, paragraph l(a) of the Army Law 2001. Only those provisions of the MBG applicable to situations other than the defense of the Austrian state and its territory by the Austrian Armed Forces (which are not applicable in international missions mandated under Article 42 UN Charter) exclude the use of life-threatening arms to protect property in peacetime.2°
19 Even in this context, the determination of the relationship between the legally protected fundamental interest of international peace and legally protected interests of individuals, by a balance of legally protected interests and proportionality, is essential. 20 Once national law authorizes use of deadly force to defend property as part of self-defense and extended self-defense when in accordance with the principles of necessity, proportionality and adequacy, a prohibition for executive (police) to do so too does not make sense under the political aim to minimize self-redress.
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USE OF (LIFE-THREATENING) WEAPONS, PARTICULARLY AGAINST CROWDS
The Austrian legal system contains rules concerning the use of arms against violent crowds. Article 33, paragraph 8 of the "Verordnung der Bundesregierung vom 9. Janner 1979 fiber die Allgemeinen Dienstvorschriflen for das Bundesheer'21 provides for the use of arms by military troops when required as a consequence of the use of violence, particularly if a call to re-establish the legal order was left unanswered. Pursuant to Article 7 of the "Bundesgesetz vom 27. Marz 1969 fiber den Waffengebrauch von Organen der Bundespolizei, der Bundesgendarmerie und der Gemeindewachkorper (WaffGebrG},"22 a resort to life-threatening use of weapons to repress a riot or insurrection is permitted. Under Articles 11-14 WaffGebrG, the use of arms by closed formations is permitted if done in pursuance of the objectives listed in Article 7, and if repeated calls for the re-establishment of the legal order under the menace of the use of arms have been in vain. Moreover, Article 19, MBG deals with this issue in its specific rules which are only applicable in the case of the defense of the country as well as IHL (concerning combatants). Particularly during darkness, it is difficult to identify the single perpetrators from violent crowds as well as the threat that these groups, as a whole, may pose. Thus, also in this case, the right to resort to force under the doctrine of self-defense is insufficient to efficiently fulfill the mission. In particular when considering proportionality, it is very difficult to assess the specific danger posed by violent agents (e.g., snipers), who act from within crowds, especially during darkness, to attack peacekeeping troops or third parties. Even the identification of such sources of danger within rioting crowds is very difficult. Obviously these are extreme situations, but, nevertheless, even in such situations, the application of the principle of proportionality cannot be questioned. However, due to the peculiarity of this situation, under such circumstances proportionality will have to be assessed by standards different to those in peacetime, when, e.g., confronted with a demonstration. Likewise, the arrest of people (e.g., persons indicted by the international criminal tribunal established by Security Council Resolution 808 (1993) in order to try suspects of serious violations of international humanitarian law during the conflict that affected the territory of the Former Yugoslavia from 21 "ADY," oBGBI. No. 43/1979 in the version oBGBI. II No. 7/1998, 134/2001, 31012002. Unofficial translation: Directive of Jan. <}, 1979, on the General Service Regulations of the Federal Army; this piece of subordiiiate legislation transposes the legal rules of the Austrian Army Law ("Wehrgesetz 2001-WG") at the administrative level. 22 "Waffengebrauchsgesetz 1969 (WaffGebrG)," oBGBI. No. 149/1969 in the version oBGBI. No. 422/1974, oBGBI. I No. 146/1999. Unofficial translation: Federal Law of Mar. 27,1969, on the use of arms by members of the Federal Police, the Federal Gendarmerie and the Communal Police.
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1991-ICTY23) implies the serious possibility of giving rise to disturbances and insurgencies. Their prevention and repression will be necessary to maintain public order and security and to prevent other violence resulting from such disorder. Another negative aspect of the restriction of the use of life-threatening measures to the sphere of self-defense results from the fact that soldiers in these types of missions are exposed to a much higher level of danger. Only with extensive powers of intervention will these forces be able to act, not only defensively, but also-as required by the circumstances and by NATO-sufficiently offensively.
VI.
"HOSTILE INTENT"
According to MC 36211, the ROE on "hostile intent" complement the ROE on "hostile acts." Both should complement diverging national provisions on selfdefense, so as to provide uniform powers to the members of a multinational force. Processes defined as "hostile intent" by MC 36211 constitute a highly dangerous potential, of which only the target and the moment of enactment cannot yet be clearly identified. Therefore, the possibility to fight people who qualify as having a hostile intent is very important to fulfill the tasks entrusted on the basis of Chapter VII of the UN Charter. Obviously these ROE must conform with the international provisions binding upon NATO member states; otherwise they would be meaningless. Each theft of weapons or means of combat can come under the definition of hostile intent in the sense ofKFOR's ROE and the MC 362/l. Likewise, the deployment of a mortar or a high-angle firing weapon and its ammunition fulfills this qualification. People suspected of owning these kinds of weapon, who refuse to surrender them can, by their action, trigger a necessity to resort to deadly force to prevent further threats. Preventing the resort to such measures, because an attack does not pose an imminent threat yet or because it has not started yet, means to reduce the options of a commander to merely reacting. One, then, has to take into account not only a lower efficiency of the fulfillment of the mission, but also the risk of higher numbers of casualties (both among the troops and among the civilian population). It has already been mentioned that the essence of the hostile intent lies in the creation of a potentially dangerous situation, which will come into effect by measures that may, at any time, cause damage to the troops or to third parties and of which only the target and the moment of enactment is unsure. This is the only reason that prevents the qualification of a hostile act under MC 36211 as an imminent threatening danger or an already perpetrated unlawful attack under Article 3 Austrian Criminal Code. 23
6BGBI. III No. 3611995.
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The fact that a situation may not be fully assessed yet does not make it any less dangerous and, therefore, cannot justify a commander's failure to do what is required within his legal responsibilities to fulfill the mission on the basis of information available to him.
VII.
EXTRAJUDICIAL DETENTION
On the basis of Security Council Resolution 1244 (1999), KFOR commanders, by directives enacted by the competent NATO command on the right to detain, are authorized to order "extrajudicial detention." This measure is based on a military rather than a judicial decision. On this basis, people may be arrested upon order of the Austrian commander of the multinational Task Force, provided that this order is legitimate under the ROE. KFOR documents do not state that the period of detention shall be limited to a maximum of 48 or 72 hours, during which a specific charge shall be brought against the detainee, or the latter shall otherwise be released. If the Austrian commander entrusted foreign (i.e., non-Austrian) KFOR troops with the internment of the arrested for more than 48 or 72 hours, respectively, this would raise the question of international acceptance of this procedure and also the issue of command responsibility as instigator or accomplice (Article 12, Austrian Criminal Code) to "extrajudicial detention," if the latter were considered a crime under the Austrian legal system. It cannot be ruled out that Austrian soldiers (the military police as well as other soldiers) will be entrusted with the surveillance of detainees. Their detention for more than 48 or 72 hours, respectively, cannot be ruled out either, since members of a multinational guarding troop may not be able to discern between the detainees. In fact, more and more persons are being arrested by KFOR on this basis. These include mainly persons suspected of having committed crimes, in particular the illegal possession of arms, membership in terrorist organizations or participation in the crimes committed during the combat operations around 1999, and also persons who have violated KFOR's curfew. When Austria decided to participate in the KFOR mission in Kosovo, thereby assessing the legal implications of this deployment, the Federal Constitutional Law of November 29, 1988, on the protection of personal freedom (BundesverJassungsgesetz vom 29. November 1988 fiber den Schutz der personlichen Freiheit),24 had been an integral part of Austrian law for ten years. However, until now, Austria has never declared any reservation to the powers of intervention mentioned in the ROE and other military directives by NATO. This Federal Constitutional Law, according to Article 3 of the Austrian Constitution,25 is not applicable abroad. 24
25
6BGB!. No. 684/1988. B-VG, 6BGB!. No. 1/1930 latest amendment by 6BGB!. I No. 118/2004.
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The surrender of arrested persons to KFOR's military police (MP) does not constitute a surrender to a legitimate judicial authority in the sense of the above-mentioned law. Moreover, members of the Austrian contingent are deployed as members of KFOR's MP, with no difference in legal status and powers from those of other members of KFOR. They are vested with the same powers of intervention. In particular, due to the lack of a legal basis (i.e., an agreement between NATO and TCN to KFOR), they do not have the executive powers of an "international MP." The legitimacy of KFOR to apply measures restricting liberty, including the extrajudicial detention, which has never been questioned by other TCN to KFOR, such as the US, Germany, Italy or France, can be argued as follows: arrests that are not being made as a measure to ensure criminal proceedings amount to the direct use of force, which is an adequate and proportionate measure to enforce powers required by an international force to fulfill its mission. The arrest shall be revoked as soon as it is no longer required to prevent the dangers posed by the detained person. This measure to restrict liberty is, therefore, a milder solution in the catalogue of measures to the exercise of the direct use of force if compared to the use of weapons. In Kosovo, KFOR, like UNMIK, has not only executive but also legislative and judicial powers. Details were discussed in Section III. Particularly at the beginning of the deployment in 1999, on the basis and within the framework of Security Council Resolution 1244 (1999), aimed at guaranteeing the internal security, KFOR arrested persons suspected of having committed crimes. This function has temporarily lost its importance, since it has been taken over by civilian agencies (international and local). Should the situation escalate again, it cannot be ruled out that KFOR will have to engage in this role again. Even the international civilian presence ofUNMIK considers the extrajudicial detention (based on executive orders) as possibly lawful. Reference is made to UNMIK Regulation No. 2001118, which has the status oflaw in Kosovo, and which introduced, in 2001, rules on this administrative detention, which are not regulated elsewhere.
VIII.
CONCLUSIONS
The importance of the legal aspects dealt with in this chaper is not to be limited to the KFOR deployment, but applies to all international PSOs. Most of them have been dealt with by reference to the particular case of the Austrian contingent, but the observations and conclusions may be applied, by analogy, to other TCNs. The international community will continue to operate Chapter VII operations, as in Kosovo. The measures and tasks will be decided by the political instances, but their fulfillment will be in the hands of the military. The clarification of the arising legal aspects is therefore crucial.
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Legal advisers often are confronted with these legal aspects once they are already in the field, without the chance of having prepared themselves properly. The aim of this chapter was to provide an overview of the problems they may encounter and, together with the other contributions, to provide the basis for a future discussion among experts and those concerned.
PART II
Concurrence of Modern PSOs and International Law
CHAPTER 4 THE APPLICABILITY OF THE LAW OF OCCUPATION TO PEACE SUPPORT OPERATIONS Roberta Arnold*
I.
INTRODUCTION
The occupation ofIraq by the US-led coalition has raised many legal questions, some of which are still unanswered. It has opened endless discussions not only about its legality, be this either the need to eradicate the new "global threat of terror" or to prevent former President Saddam Hussein from using weapons of mass destruction, but also about the legal qualification and legal regime applicable to the international military presence in the area. The issue has arisen, in particular, after the end of the first invading phase and the flourishing of suicidal terrorist attacks, against both military and civilian targets. A highly debated event, for instance, has been the attack on the installations of the Italian Carabinieri in Nassiriya, considered by some as unlawful, since it was directed against a force entrusted with pure civilian, "peacekeeping" tasks, and as a regular warfare operation by others, since it was directed against a military target, i.e., the Carabinieri, which are affiliated to the Italian armed forces. According to some, after the initial phases in the spring of 2003, when the United States and the United Kingdom intervened in Iraq in the absence of a Security Council resolution,l the conflict came to an end, thereby opening the chapter of "peace building," in which only "peacekeeping forces" were to be involved. The other possible view, however, in light of the numerous attacks and the civil war scenario currently characterizing Iraq, is that the international military presence there has the character of an invading enemy force. This aspect was recently raised in Switzerland, in relation to the question whether to sell tanks to Iraq.2 According to whether the international troops qualify as peace-
* Ph.D. (Bern), LLM (Nottingham), Former Legal Adviser to the Staff of the Chief of the Swiss Armed Forces, currently with Riva & Felder solicitors, Lugano (Switzerland). See Geert-Jan Alexander Knoops, The Prosecution and Defense of Peacekeepers Under International Criminal Law 42 (2004). Had there not been any conflict in Iraq, the question would not have arisen. 97
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keeping/peace-building forces, or as occupying enemy forces, the law of occupation mayor may not apply. The aim of this chapter is not to discuss the legal status of the international military presence in Iraq, where the application of the law of occupation wascorrectly-recognized by UN Security Council Resolution 1483 of May 22, 2003, but to discuss whether, in particular, UN-led peace support operations (PSO), which are often entrusted with peace-building tasks, shall be subject to the laws of armed conflict (also called international humanitarian law, IHL) and, in particular, the law of occupation. This specific legal branch sets several obligations on the occupying forces, which is one of the reasons why the United States is not going to be able to withdraw from Iraq before 2009. Unlike occupation, simple invasion does not require the armed forces to take care of the well-being and development of the invaded country. The difference is due to the fact that in the case of occupation, when the defeated government is de facto replaced, the occupier must take care of the legal vacuum it has created and, therefore, overtake the responsibility of governmental functions. This is what the United States was unprepared for, certainly not expecting to have to stay in Iraq and realize its citizens' hopes of a new democracy and functioning state. The chapter will be structured as follows. After the introduction, Section II will explain the different types of peace support operations, including peacekeeping, peace enforcement and robust peacekeeping operations. Section III will define the law of occupation, with the deriving rights and duties of the occupying power (OP). Section IV will discuss the applicability of the law of occupation as part of IHL to UN-led PSOs, and Section V will come to the conclusions.
II. THE VARIOUS TYPES OF psoS There are several types of PSOs, the two principal ones being those of peacekeeping and peace enforcement. The Review of United Nations Peacekeeping defines peacekeeping as follows: As the United Nations practice has evolved over the year, a peacekeeping operation has come to be defined as an operation involving military personnel, but without enforcement powers, undertaken by the United Nations to help maintain or restore international peace and security in areas of conflict. These operations are voluntary and are based on consent and cooperation. While they involve the use of military personnel, they achieve their objectives not by force of arms, thus The politicians' view, however, was that the Iraqi scenario is a conflict one, so that to provide one party with military equipment would have infringed the law of neutrality. See Swissinfo, "Swiss tanks still waiting to be delivered," July 15,2005, at http://swissinfo.org/seniswissinfo.html?siteSect= 106&sid=5946612&cKey= 1121454633000.
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contrasting them with the "enforcement action" of the United Nations under Art. 42.3 As pointed out by Bialke,4 "Peacekeeping operations loosely developed out of the UN Charter, specifically, Chapter VI, entitled "Pacific Settlement of Disputes." In fact, there is nothing in the UN Charter clearly referring to the existence or authorization of peacekeeping forces. 5 According to Article 24 of the UN Charter on the Functions and Powers, in order to ensure prompt and effective action by the United Nations, the Security Council shall be conferred with "primary responsibility for the maintenance of international peace and security" by its member states. Paragraph 2 states that the Security Council, in discharging these duties, "shall act in accordance with the Purposes and Principles of the United Nations." The specific powers granted to the Security Council, for the discharge of these duties, are laid down in Chapters VI-VIII and XII of the Charter. Therefore, resort to the use of peacekeeping forces is implicitly authorized under this provision and the norms contained in Chapter VI, in particular Article 33. According to this, the Security Council may call upon the parties to any dispute to settle this by different peaceful means. The requirement, however, is that all the parties to the dispute consent to the means chosen. In sum, as observed by Knoops: Peacekeeping is the deployment of a United Nations presence in the field, this with the consent of all the parties in question and normally involving the United Nations military and/or police as well as civilian personnel. Its ultimate goal is both the prevention of conflict and the endorsement of peace. The two main principles are: a) Consent of the host-state to the deployment of the peace-keeping force; b) impartiality of this force and non-intervention in state sovereignty 6 Impartiality means that the United Nations must treat all the parties to a conflict equally, without supporting one over the other. Consent of the host country lies at the basis of a peacekeeping mission, which means that the parties are not involved in any conflict and that the "Blue Helmets" shall have non-belThe Blue Helmets, A Review of United Nations Peacekeeping 4, (2d ed. 1999). See also Nigel D. White, Keeping the Peace 207 (1997). 4 Major Joseph P. "Dutch" Bialke, "United Nations Peace Operations: Applicable Norms and the Application of the Law of Armed Conflict," 50 Air Force Law Review 1,4(2001). White, supra note 3, at 227; Bialke, supra note 4, at 4. Knoops, supra note 1, at 37.
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ligerent status. Problems may arise in particular after a country withdraws its consent. The latter, in fact, might no longer recognize the UN personnel as having privileges and immunities while in the territory, and the situation could soon escalate to that of a peace enforcement operation under Chapter VII of the Charter. In order to avoid the risk that, in classical peacekeeping missions, there may be forces that, although wearing the UN badge, own the nationality of one of the parties to the conflict or who may have any interest in the conflict (especiaIly during the Cold War), the United Nations generaIly excludes permanent Security Council members (PM) from direct participation in these type of operations. Nevertheless, there have been some occasions in which these have been involved. 7 Another very important aspect of classical peacekeeping operations is that force is used only in self-defense. In fact, although peacekeeping forces are composed of military personnel, their aim is not to accomplish the mission by the use of arms. To do so would give the impression to the civilian population of the parties trying to peacefully solve their dispute, that the United Nations is "taking sides," therefore jeopardizing not only the safety and immunity of the Blue Helmets, but also the whole PSO. As will be discussed later, this is also proven by the content of the 1994 UN Convention on the Safety of UN and Associated Personnel (1994 UN Convention). According to Article 2(2) this instrument, the primary aim of which is to protect UN personnel, shall: not apply to a United Nations operation authorized by the Security Council as an enforcement action under Chapter VII of the United Nations in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies. As soon as peacekeepers get engaged in combat-like actions beyond the use of arms in self-defense, the situation may be subject to the laws of armed conflict, and peacekeepers may be viewed as a third party to the conflict and, thus, as a legitimate target. This, however, does not occur when peacekeepers use force in self-defense, as this action is aIlowed by ordinary criminal law. Every civilian, and common citizen, if his or her life is threatened, has the right to react in self-defense. The same applies to peacekeepers not involved in any combat operations, who have the right, just like every other common citizen, to defend themselves by the use of force. More complicated, instead, is the case of hybrid operations-so caIled robust peacekeeping-which combine both peacekeeping and enforcement mandates, as occurred in Bosnia and Somalia in the early 1990s. 8 According to E.g., the United Kingdom in Cyprus and the United States in Egypt. For more details, see Bialke, supra note 4, at 9. For details, see the preface note to Ch. 33, in Adam & Richard Guelff, Documents an the Laws afWar 625 (3d ed. 2000).
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Adams and Guelff, however, since UN personnel may not be keen to be viewed so easily as a party to the conflict "the threshold for determining whether a UN and or UN-authorized force is a party to an armed conflict may be higher than the threshold for parties involved in inter-state conflicts." Thus, peace enforcement operations, unlike those of a peacekeeping type: involve the application of the use of force beyond self-defense. The criterion for distinguishing enforcement from peacekeeping is, according to the International Court of Justice, whether the measures were taken against a state. In the Certain Expenses case, the International Court of Justice held that, presupposing peacekeeping forces are engaged with the consent of the host state, they do not constitute enforcement action. However, any action directed against a non-consenting state amounts to enforcement action and requires compliance with Chapter VII of the United Nations Charter. According to the International Court of Justice, the principle of impartiality distinguishes peacekeeping from enforcement measures under Chapter VIP The final, and most problematic type of PSO, is so-called "robust-peacekeeping," often referred to also as a "Chapter VI and a 1/2" mission. These usually take place in an environment where much violence may be encountered and aims at the tactical use of force for the purposes of defending the mission to which the UN force has been assigned, aside from allowing for self-defense. This is particularly true when peacekeepers must resort to force to protect the delivery of humanitarian aid or civilians in conflict areas. According to some, this type of PSO shall be qualified as peace-enforcement, although this would be particularly problematic for neutral countries like Switzerland, which, under its national legislation, is only allowed to participate in peacekeeping operations. Problems arise, in particular, when confronted with riots and demonstrations, as happened in March 2004 in Kosovo. Peacekeeping forces shall be allowed to resort to use force to protect the mission, without thereby being considered as a party to the conflict exercising peace enforcement. Therefore, the author's view is that "robust-peacekeeping" still falls under Chapter VI (and a 1/2) and, as such, is subject to the "laws of peacetime." Obviously, also Chapter VI and a 1/2 operations may convert into peace enforcement operations, when the peacekeepers become engaged in sustained conflict and can no longer act strictly in self-defense. In this case, they become combatants and lawful military targets. 10 In this event, it is very important to have a legal adviser on site, to advise on the applicable legal regime, in particular whether ordinary human rights law or already the lex specialis of humanitarian law (and the specific branch of the law of occupation) shall apply.
to
Knoops, supra note 1, at 37. Bialke, supra note 4, at 11.
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III. THE LAW OF OCCUPATION
The law of occupation is a specific branch of international humanitarian law (IHL, also called the "laws of armed conflict"), which is primarily codified in the Hague Conventions of 1907, the four Geneva Conventions of 1949 (GCs) and their two Additional Protocols of 1977 (APs). Occupation is prevalently regulated in Part III of the IV GC.II As such, it only applies to cases of armed conflict or occupation, even if the latter is not followed by any hostilities under Common Article 2 to the four GCs. As will be discussed later, one of the major difficulties is to establish when the threshold of an armed conflict is trespassed, particularly when peacekeeping forces are involved. First of all, however, it is important to understand the notion of "occupation" and of the deriving obligations.
A. The Definition of "Occupation"
Situations of occupation are explicitly referred to in Article 2(2) common to the four GCS.12 Those followed by resistance or occurring during an armed conflict are covered by paragraph 1,13 whereas those that do not face any armed resistance are covered by paragraph 2.14 This provision was introduced after the experience of World War II and the occupation of many territories, e.g., the Czech Republic in 1939,15 by Germany without any hostilities. 16 But the rights and duties of the occupying power (OP), with special attention to the needs of the population of the occupied territory, are addressed in Part III of the IV GC. The first question to be answered is whether the concept of "occupation" in Common Article 2 is synonymous to the one used in Part III of the IV GC.17
II
And by the Hague Regulations of 1907 and Part III of the Fourth Convention and 27~34). 12 "The convention shaIl also apply to all caseiNlf partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance." 13 See Jean Pictet, Commentary to the IV Geneva Convention 21~22, 59~60 (lCRC 1958). 14 On this, see IC] Advisory Opinion of July 9, 2004, General List No. 131, "Legal consequences of the construction of a waIl in the occupied Palestinian Territory," para. 95, at http://www.icj-cij.org/icjwww/idocketlimwp/imwpframe.htm. 15 Eric David, Principes de Droit des Conflits Armes 100 (1994). 16 Pictet, supra note 13, at 21~22. 17 See also the Hague Regulations of 1907 and Part III of the Fourth Convention (arts. 47~ 78 and 27~34). (arts.
47~78
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1.
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Univocal Meaning?
The question whether the definitions provided in Article 2 and Part III of the IV GC are equivalent is not of purely academic interest. In the 1980s the State of Israel denied the existence of an armed conflict in Southern Lebanon with the argument that it had not been its intention to attack the Lebanese government. Its "presence" in the "security zone" along the Southern Lebanese border was to be qualified as a "police operation" aimed at eradicating the terrorist cells that had been threatening Israel's security from there. As such, this operation was not subject to IHL. The argument was that even if it did, it did so restrictedly, excluding the application of the law of occupation. 18 The reasoning was that even if the Israeli government accepted the de facto application of the IV GC, as a gesture of good will, notwithstanding the fact that it had launched no "war" against the Lebanese government (which, in fact, had not reacted to the occupation), certainly the situation could not be considered an "occupation" bringing into play the obligations deriving from Part III of the IV GC. However, according to Common Article 2, the Geneva Conventions shall apply either to declared cases of war, armed conflicts (questionable here, since there were no clashes between the Israeli and the Lebanese armed forces) and cases of total or partial occupation, even if not met by any armed resistance (applicable in casu). The Israeli government's intention to apply, de facto, the IV GC implied its recognition of the applicability of Article 2 by virtue of their occupation of the Lebanese soil, but at the same time its refusal to abide by the obligations set forth by Part III suggested that the meaning of occupation under these provisions may be different. States, in fact, are very reluctant to recognize a state of occupation under Part III of the IV GC, as it occurred following the US invasion of Iraq, since these provisions, as will be discussed later, more than any other within IHL, are rather cumbersome. By adopting the methods of interpretation under Articles 31-32 of the Vienna Convention on the Law ofTreaties,19 it seems that occupation has a univocal meaning within IHL. The application of the "literal method," by referring to the definitions provided by international law dictionaries, clearly provides for the same meaning under Common Article 2, Part III of the IV GC and Article 42 of the 1907 Hague Regulations. 20 The "systematic method" leads to the same 18 !d. The issue was discussed in details in Roberta Arnold, "The applicability of the Geneva Conventions to the Southern Lebanese Conflict," 1999 (unpublished), available at the library of the ICRC in Geneva. 19 Literal, systematic, historical and teleological methods. The historical method is only subsidiary. 20 Michael Bothe, in Encyclopedia ofPublic International Law, at 64: "Occupation in the sense of international law is ... the holding of possession in the sense of actual control of the territory of another State (or of parts of it). If ... gained by the use of
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result. Part III of the IV GC was only drafted to enact already existing rules on occupation contained in other Conventions,21 and thus Common Article 2, by giving particular attention to the needs of civilians. Thus, there is a systematic link between all these provisions, including Articles 27 and 34 IV GC, although they are located "beyond" Section IIp2 From a teleological point of view, all these norms pursue the common goal of protecting persons and goods subject to a state of occupation, with no distinctions between different types and degrees of occupation.23 Section III was merely drafted to complete the Hague Regulations of 1907, taking particular care of the status of the civilian population of occupied territories. Finally, common practice also leads to the same conclusion. The report of the "Commission to enquire into reported violations of International Law by Israel during its invasion in Lebanon"24 and the jurisprudence of the Israeli High Court of lustice25 support this view. But when does the "presence" of military forces on foreign soil amount to "occupation"? force, the occupation is ... belligerent. If the state to which the territory belongs agrees to the occupation, it is ... pacific occupation. [§1]. Efforts to regulate the laws of war ... have produced the rules for belligerent occupation .... Important parts ... have been codified in the Hague Regulations on Land Warfare annexed to Conventions II of 1899 and IV of 1907 respecting the Laws and Customs of War on Land (art. 42-56). This law was considerably developed by the Geneva Convention IV [§2, page 65]. The Geneva Conventions apply to all cases of partial or total occupation ... (Art. 2(2) common to the four conventions) ... the occupying power is allowed to enforce obedience of its orders within the limits of the Geneva Convention IV and the Hague Regulations." A.H. Erster Band, in K. Strupp & H.J. Schlochauer (eds.), Worterbuch des Volkerrechts, 195 (1960): "Die heute fUr die Besetzung wichtigste Rechtsquelle ist die vierte Genfer Konvention .... Das in seinem dritten Teil enthaltene System von vierzig Artikeln stellt eine ... Weiterentwicklung der erstmals in der Anlage zum Haager Abkommen vertraglich niedergelegten, bis dahin als Volkergewohnheitsrecht geltenden Regeln und Gebriiuche dar. Die durch die Zivilkonvention nicht ersetzte, sonder ergiinzte Landkriegsordnung bleibt daneben als wichtige Quelle." Ignaz Seidl-Hohenveldern, Lexikon des Rechts: Volkerrecht 27 (1985). 21 Such a conclusion can be derived reading Pictet's commentary on Article 6 in the IV GC, supra note 13, at 59-60, in which he makes a link between Article 42 of the Hague Regulations, Common Article 2 and the Third Part of the Fourth GC. 22 See Pictet, supra note 13, at 272. 23 Bothe, supra note 20, at 65: "The unclear status of an occupied territory does not prevent the applicability of belligerent occupation." 24 Sean McBride et aI., Israel in Lebanon, The Report of the International Commission to enquire into reported violations of International Law by Israel during its invasion of Lebanon, at 114 (1982) (The Kahan Commission Report). 25 HC] Petition 102/82 and HC] Petition 593/82, respectively. Advocate Tsemel and others v. Minister ofDefence and Commander of the Anzar Camp. Both cited cases dealt with the issue of the application of the IV GC in cases of non-durable military occupation and in the absence of a military administration. A summary of the case can be found in 13 Israel Yearbook on Human Rights (1983).
Applicability of the Law of Occupation to PSOs 2.
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Requirements
Taking the example of Southern Lebanon, notwithstanding the opposite view of its Supreme Court,26 the Israeli government, for many years, held that its "presence" in Lebanon from 1982 onwards did not amount to an "occupation under internationallaw."27 This position, as seen previously, was primarily supported by the Israeli government with the argument that its operations in the "safety zone" were not directed against the Lebanese authorities and that it had no intention to set up an administration therein. The Israeli Defense Forces (IDF) were merely "present" in the area, with no intention of stable duration, as instead required for the application of Part III of the IV GC.2 8 This position somewhat recalls the one held by the US troops after the invasion of Iraq. Under international law, invasions are characterized by the intervention of the army in a foreign territory, without the establishment of de facto control over that area. 29 At this stage the invading troops are merely engaged in "acquiring effective control by assaulting the defending enemy forces, but the outcome is still uncertain."30 The installation of a military autonomy is still temporary,3! and the outcome is still uncertain. It is the preceding phase of occupation. Success in establishing substantial control and firm possession are the key distinguishing elements. 32 According to Articles 42-43 of the Hague Conventions of 1899 and the Hague Regulations of 1907,33 which amount to customary law,34 instead, a territory is occupied "when it is actually placed under the authority ofthe hostile army. The occupation extends only the territories where such authority has been established and can be executed." This was reconfirmed by the International Court of Justice in its advisory opinion on the legality of the construction, by Israel, of a wall in the occupied Palestinian 26 27
HCJ Petition 102/82 and HCJ Petition 593/82, id. See Section II.A.l. 28 Dieter Fleck (ed.), Handbuch des humanitiiren Volkerrechts in bewafJneten Konflikten para. 528(1/3), at 196~197 (1994). 29 Id. at para 528 (1), at 197. 30 Myres S. McDougal & Florentino P. Feliciano, The International Law of War 734 (1994). 3! Charles Rousseau, Le Droit des Conflits Armes 134 (1983). This distinction was used also in the American Military Tribunal at Nuremberg in "List and others" on Feb. 19, 1948 (AD 1948, Case No. 215, at 637~640). 32 McDougal & Feliciano, supra note 30, at 732~733. 33 Regulations concerning the Laws and Cu~toms of War on Land: Annex to the II Hague Convention of 1899 and Annex to the. IV Hague Convention of 1907. Since the IV GC draws from these regulations, the definition of occupation given in Article 42 is applicable to the Conventions. See Pictet, supra note 13, at 272. 34 Pictet, supra note 13, at 614.; ICJ Advisory Opinion, July 9, 2004, General List No. 131, "Legal consequences of the construction of a wall in the occupied Palestinian Territory," para. 78, at http://www.icj-cij.org/icjwww/idocketlimwp/imwpframe.htm.
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territory.35 The British Army Manual 36 refers to the following criteria to determine this type of situation: The legitimate government should be rendered incapable of publicly exercising its authority within the occupied territory; The invader should be in a position to substitute his own authority for that of the legitimate government. Thus, de facto control over the territory of a foreign state is sufficient to constitute occupation.37 No reaction is required. 38 The same conclusion was reached by the Israeli High Court of Justice. 39 The motives that led to such presence are irrelevant, even when the occupation is not targeted to control such territory, but merely to defend the state territory'S borders from attacks. 40 It is not necessary that the "invader" established a military administration, and the duration of the "occupation" is irrelevant. 41 It is sufficient that the armed forces are "in a position" to establish authority. It does not have to station troops in every corner of the occupied area. It is sufficient that it is able to exercise such control and supervision from some bases so that the population can be kept in hand, and "the enemy cannot recover the territory without fighting."42 The authority may be exercised by "flying columns, beyond the places in which his forces are actually present, or in which the inhabitants have been disarmed."43 Other elements that can be relevant are: the presence of a fixed garrison of occupation troop in a city/town involved;
ICJ Advisory Opinion, id. Fleck, supra note 288, at para. 527 (Gasser); McDougal & Feliciano, supra note 30, at 751; HCJ Petition 102/82 and HCJ Petition 593/82, supra note 25. 37 Fleck, supra note 28, at para. 527(4); Erik Castren, The Present Law a/War and Neutrality, (Helsinki, Suomalaisen Tiedeakatemian toimituksia, Sarja-Ser.B Nide Tom. 85), at 213 (1954). 38 Hans-Peter Gasser, Ein/iihrung in das humanitiire Volkerrecht 29 (1995). 39 HCJ Petition 102/82: "the ability to substitute his own authority for that of the legitimate government, does not require that the army has actually substituted ... moreover, the application of the Third Chapter. of the Hague Regulations and parallel provision of the Fourth GC, are not dependent on the construction of a military administration. The obligations commence due to the actual control over a territory, even if the military force is practising its control only with its regalia fighting units, without setting up administrative military bodies." 40 Fleck, supra note 28, at para. 527(4), at 196. 41 Id. HCJ Petition 102/82. 42 Castren, supra note 37, at 215. 43 Thomas Erskine Holland, The Laws a/War an Land 52 (1908). 35
36
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the capability to dispatch within reasonable time forces able to take control in any particular area; and the presence of organized guerrilla movements in the areas concemed.44 The law of occupation shall end when the conflict ends. 45 The cessation of military operations alone, however, does not necessarily lead to its termination. Article 6(3) IV GC, in fact, provides that: In the case of occupation, the application of the IV GC shall cease to apply one year after the general close of military operations. However, the occupying power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the IV GC. If the occupation continues, the OP is bound by the fundamental provisions contained in the IV Gc. Otherwise, it ends when the actual control is no longer exercised, for example when: The OP retreats voluntarily (for example, following a peace treaty or Security Council Resolution); Control is regained by the adversary; Debellatio. The doctrine of debellatio asserts that if the enemy state has totally disintegrated, and no other power is continuing the struggle on behalf of the defeated sovereign, then occupation transfers sovereignty. As stated by Ernst Feilchenfeld: "If one belligerent conquers the whole territory of an enemy, the war is over, the enemy state ceases to exist, rules on state succession concerning complete annexation apply, and there is no longer any room for the rules governing mere occupation."46 The ratio behind Article 6 IV GC is that, in some cases, occupation lasts for very long after the cessation of hostilities, when the application of the GCs is no longer justified. This permits the applicability of some humani-
McDougal & Feliciano, supra note 30, at 754. On the problem of the end of occupation, see D. Alonzo-Maizlish, 'When does it end? Problems in the law of occupation," in R. Arnold & P.A. Hildbrand, International Humanitarian Law and the 21st Century's Conflicts: Changes and Challenges 97-116 (EDIS: Lausanne, Bern, Lugano, 2005). 46 Referred to by Eyal Benvenisti, 'The Security Council and The Law on Occupation: Resolution 1483 on Iraq in Historical Perspective,' 2003(1) Israel Defence Forces Law Review 19, available at http://www.tau.ac.illlaw/members/benvenisti/articals/amos.doc. 44 45
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tarian provisions, even though other ones contained in the GCs, which may have stringent effects on the local population, shall cease to apply. The applicable provisions are Articles 1-12, 27, 29-34 of the IV Gc. The other provisions related to the conduct of military operations or internment shall no longer apply.47
B. Duties of the Occupying Power The law of occupation aims at regulating the relationship between the occupying power and the occupied state-the inhabitants thereof. Due to the sensitivity ofthe situation of occupation, which can never be used to alter a country's regime, strict provisions regulate the rights and duties of the occupier and those of the inhabitants of occupied territory. Not everybody, however, is subject to these provisions: for instance, the nationals of the OP, a neutral state or a cobelligerent state are not covered, since their interests are already protected by diplomatic representatives. Thus, the primary goal is to provide protection to the inhabitants of occupied territory who find themselves in a "legal vacuum." In order to avoid the exploitation of the occupied territory by the invader, the OP is not sovereign and simply exercises temporary control. The sovereign rights of the occupied power are suspended and the occupying power is not successor in right of this sovereignty. This legal status can be altered only through a peace treaty or debellatio. Thus, all the measures taken by the occupier should affect only the administration of the area, avoiding far reaching consequences to the pre-existing order. Pursuant to Article 42-43 of the Hague Regulations of 1907, occupation extends only to the territory where authority has been established or can be exercised. The occupying power has several obligations. The OP must change the rules administering the occupied area as little as possible. 1. 2.
3.
It shall not impose its constitutional rules. It shall not deport or transfer part of its own civilian popula-
tion into the occupied territory (Article 49(6) IV GC), e.g., by creating settlements. It shall leave the legal and sociological structures of the local population as unchanged as possible.
Two exceptions apply: where international standards are not met by the existing rules, and where the OP is absolutely prevented from enforcing or applying the existing rules. Otherwise, it shall permit and ensure the functioning of the administration of the territory as it was prior to occupation.
47
Pictet, supra note 13, at 64.
Applicability of the Law of Occupation to PSOs
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The first obligation is to restore and ensure law and order while respecting the laws of the occupied country (Article 43 Hague Regulations). With regard to criminal affairs, Article 64ss IV GC provides that local criminal laws shall remain in force, except when they pose a threat to the security of the OP and/or an obstacle to the application of the IV Gc. New penal provisions may be enacted, when essential to enable the OP to fulfill its IHL obligations, to maintain the orderly governance of the territory and to ensure the security of the protecting power. General applicable principles are that these new provisions shall have no retroactivity. Sanctions shall be proportionate, and the death penalty may be introduced only for espionage, serious sabotage of the military installations of the OP, intentional offenses causing death. However, all these offenses must have been punishable with death under the law of the occupied area in force already prior to the occupation. Further duties are the assistance of the evacuation of nationals of third states, the assistance to the local population in providing, as far as possible, food and medical supplies, spiritual assistance, relief schemes (if needed), activities of the International Committee of the Red Cross (ICRC) and the education of children. Particular attention is devoted to the right to humanitarian assistance of the local population. For example, Article 30 IV GC provides that: Protected persons (i.e. civilians( shall have every facility for making application to the Protecting Powers, the International Committee of the Red Cross, the National Red Cross (Red Crescent, Red Lion and Sun) Society of the country where they may be, as well as to any organization that might assist them. These several organizations shall be granted all facilities for that purpose by the authorities, within the bounds set by military or security considerations. Apart from the visits of the delegates of the Protecting
Powers and of the International Committee of the Red Cross, provided for by Article 143 the Detaining or Occupying Powers shall facilitate as much as possible visits to protected persons by the representatives of other organizations whose object is to give spiritual aid or material relief to such persons. This provision applies both to the population of a belligerent party and of occupied territory, and shall be read in conjunction with Article 142 IV GC, on the status of relief organizations. 48 It provides for the right of communication to the ICRC and Red Cross National Societies. 49 Paragraph 3 of Article 30 IV GC places an active duty upon the parties to the conflict to provide for the required 48 49
Pictet, supra note 13, at 557. !d. at 215.
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facilities. These shall not simply authorize relief organizations to carry out their work but also facilitate and promote their work. This obligation may, however, be limited by military or security reasons. The belligerent, in any event, shall make a moderate use of the right to refuse consensus. 50 Another very important provision is Article 55 IV Gc. This holds that the occupying power shall ensure, to the fullest extent possible, the food and medical supplies of the population. It should, in particular, bring in the necessary foodstuffs, medical stores and other articles, if the resources of the occupied territory are inadequate. Next to this positive obligation, it has further the duty not to requisition foodstuffs, articles or medical supplies available in the occupied territory, except for use by the occupation forces and administration personnel, and then only if the requirements of the civilian population have been taken into account. Specific provisions on (collective) relief in occupied territories are contained in Articles 59-61 IV GC. According to these, if part or the totality of the inhabitants of occupied territory is inadequately supplied, the occupying power shall agree to relief schemes and facilitate them. 51 This, however, does not relieve the occupying power of its responsibilities under Articles 55,56 and 59 IV GC.52
C. Rights of the Occupying Power
Although it might seem that the OP is severely burdened, at the same time it has also extensive rights within the occupied area. It may introduce, e.g., nec50 !d. For details on this aspect, see R. Arnold, "The legal implications of the military's "humanitarisation," 43(3-4) The Military Law and the Law ofWar Review 2 I (2004). 51 Art. 59 IV GC: If the whole or part of the population of an occupied territory is inadequately supplied, the occupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the means at its disposal. Such schemes, which may be undertaken either by states or by impartial humanitarian organizations such as the International Committee of the Red Cross, shall consist, in particular, of the provision of consignments of foodstuffs, medical supplies and clothing. All contracting parties shall permit the free passage of these consignments and shall guarantee their protection. A power grantingfree passage to consignments on their way to territory occupied by an adverse party to the conflict shall, however, have the right to search the consignments, to regulate their passage according to prescribed times and routes, and to be reasonably satisfied through the protecting power that these consignments are to be used for the relief of the needy population and are not to be used for the benefit of the occupying power. 52 I.e., duties regulating food and medical supplies for the population, hygiene and public health and collective relief.
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essary security measures, such as broad search and seizure powers, censorship, collection of private weapons, curfews, control of access and movements, enactment of criminal laws, internment and assigned residence, evacuation. It may further exercise judicial power, if the local courts do not function. It may also requisition medical personnel, establishments, transports and supplies, both for its own forces and the administration personnel, with the caveat that the needs of the occupied population must first be satisfied. It may control property to prevent its military use, take possession of state properties and collect taxes. All these measures, however, shall be enforced with the guiding principle of the well-being of the occupied population. The collection of taxes, for instance, shall not be viewed as a measure of the OP to enrich itself, but as a measure to keep the functioning of the governmental institutions for the final benefit of the population. In fact, Article 48 of the Hague Regulations (HagReg) states that the OP may impose taxes, tariffs, on the basis of the local existing laws. Other monetary contributions, instead, must be levied only to meet the requirements of the occupational forces or to cover its administrative costs (Article 49 HagReg). A payment in kind (requisitions) may be requested to meet the needs of the occupational forces (Article 52 HagReg). This must be in proportion to the capabilities of the country. Requisitions shall be paid, where possible, in cash. If not possible, a receipt shall be given. Typical cases in which this may occur is for feeding, sheltering, clothing and transportation. Such benefits may never be asked for the needs of the OP's civilian population. If necessary to meet the needs of the population of the occupied territory, compulsory labor may be requested, too (Article 51 HagReg). Movable governmental properties, which may be used for military purposes shall become spoils of war. Upon seizure, they shall become the property of the OP, on condition that the needs of the local population are met first. In doing this, however, the local population is entitled to respect for their person, honor, family rights, religious convictions, manners and customs. Its private property is protected (Article 27(1) IV GC, Articles 48ss and 75 AP I, Article 46 HagReg). Its human rights must be respected under all circumstances, although only to the extent permitted by the special conditions of belligerent occupation. The IV GC does not provide for a universal guarantee of property rights. However, Article 46 of the Hague Regulations states that this cannot be confiscated. The fixed state assets do not become property of the OP, which only becomes a beneficiary owner. As such, it must maintain the assets. Since the state can no longer exercise control, it shall administer it under the rules of usufruct. In sum, occupation shall be only a temporary situation, during which the OP shall maintain, as far as possible, the status quo ante. It may pass new laws required for security reasons, and it may use resources of the occupied territory for its military needs, but only if the needs of the local population are met first.
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D. Applicability to PSOs 1.
Applicability of IHL to PSOs
As previously seen, there are prevalent operations of a peacekeeping and enforcement type. However, the two categories are not black and white and can no longer be determined on the sole basis of whether the Security Council resolution legitimating them draws from Chapters VI or VII of the UN Charter. There is a grey zone in-between, one example of which is robust peacekeeping or so-called Chapter VI and a 1/2 operations. It will, therefore, depend very much on the details of the specific mission to assess the applicability of international humanitarian law. But the first aspect to be determined is whether UN peacekeeping forces, i.e., representatives of an international organization, may be bound by IHL. As to the question, whether representatives of an international organization may be bound by an international convention, there are different views. The first issue is whether peacekeepers, who are not involved in any armed conflict, may be bound by provisions of international humanitarian law. As said, the United Nations, not being a state, is not a signatory to the four Geneva Conventions of 1949 or any other international treaty. It is up to its own single member states to sign and ratify these conventions, in order to subject their citizens thereto. The case of the 1949 Geneva Conventions, however, is particular, in that its provisions, particularly those on occupation, have acquired customary law status. Due to their universal application, it may be assumed that, indirectly, when, e.g., a Swiss or Nepalese soldiers performs peacekeeping or peace enforcement tasks under a UN mandate, in reality it fulfills two functions: that of a UN blue helmet and that of a state representative of his/her own country. The United Nations, notoriously, does not have its own troops and must therefore rely on the good will of its member states (troop contributing nations). Thus, ultimately, even when wearing the UN badge, a Swiss soldier will remain a Swiss citizen bound by the international obligations applicable in his country. This, obviously, may create problems in mixed contingents, in that military personnel coming from one country,may be bound by provisions that are not in force in the home country of military personnel of a different nationality within the same contingent. This problem appears, in particular, in relation to disciplinary and criminal proceedings in regard to international crimes like human trafficking, which may not have reached customary law status, yet. For this reason, NATO has adopted a directive requiring all member states to take and enforce appropriate measures. However, these directives tend to have simply a political value, as policy statements. 53 However, as said, this 53 See R. Arnold, "NATO und Peacekeeping: neue Direktive zur Bekampfung des Menschenhandels," 7/8 Allgemeine Schweizerische MilitiirzeitschriJt 48-49 (2005);
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issue does not arise in relation to the law of occupation, since this is incorporated in the IV GC, which amounts to customary law and is applicable universally. Thus, soldiers still remain personally bound to comply with the provisions of IHL that bind the state whose nationality they are and under the command of which they remain during the whole mission. 54 As noted by Daphna Shraga and Ralph Zacklin: The argument that the United Nations cannot become a party to the Geneva Conventions because their final clauses preclude participation by the Organization, although still valid, is largely irrelevant to the question of applicability of these conventions to UN operations. The Geneva Conventions which have now been widely recognized as part of customary international law are binding upon all States, and therefore, also upon the United Nations, irrespective of any formal accession. 55 Interestingly, however, Maj. Bialke observes that, notwithstanding the ICRC's position that peace enforcement forces shall be bound by the whole body of IHL, the UN official position has been that peacekeepers are obligated to follow only the "principles" and "spirit" of the international law of armed conflict. 56 In his view: The UN, as a "non-party" to the Geneva Conventions, sought to ensure the peacekeeping operations, both in theory and in practice, were entirely distinct from peace-enforcement combat operations. Applying the law of armed conflict to peacekeeping operations could ultimately lead to tragic consequences. 57 However, in 1991 the United Nations drafted its Model Participation Agreement to be used in peacekeeping operations. Before commencing a peacekeeping operation, the United Nations and troop contributing nations agree to the following:
R. Arnold, "Missioni di pace e tratta umana: la NATO corre ai ripari." 55 Analisi Difesa (2005), at http://www.analisidifesa.it. 54 Knoops, supra note 1, at 80. 55 Daphna Shraga & Ralph Zacklin, "Tl],e Applicability of International Humanitarian Law to United Nations Peace-keeping Operations: Conceptual, Legal and Practical issues," in International Committee of the Red Cross Symposium on Humanitarian Aaction and Peace-Keeping Operations 45 (Umesh Palwankar (ed.), 1994); Bialke, supra note 4, at 17. 56 Bialke, supra note 4, at 18. 57 /d.
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[The UN peacekeeping operation] shall observe and respect the principles and the spirit of the general international conventions applicable to the conduct of military personnel. The international conventions referred to above include the four Geneva Conventions of 12 August 1949 and their Additional Protocols of 8 June 1977 and the UNESCO Convention of 14 May 1954 on the Protection of Cultural Property in the event of Armed Conflict. [The Participating State] shall therefore ensure that the members of its national contingent serving with [the United Nations peacekeeping operation] be fully acquainted with the principles and spirit of these Conventions. 58 As observed by Knoops, moreover, Common Article 1 to the four Geneva Conventions, which requires the high contracting parties to respect and ensure compliance with IHL in all circumstances, remains a source for UN peacekeepers in that: when states' armed forces participate in a force under United Nations command and control, each particular state remains under an international obligation to ensure that its forces respect the provisions of the relevant conventions in any armed conflict or operation in which they become engaged. This, however, shall only be true for personnel engaged, as it will be discussed later, in peace enforcement operations or peacekeeping operations with characteristics of occupation, since IHL's material scope of application is restricted to armed conflicts or, as said, cases of occupation, even if not met by any armed resistance. Crisis response interventions, like in Indonesia after the tsunami of December 2004, would not bring into play the application of IHL. It is therefore contested, not completely in the conclusions, but rather in the reasoning, that "the mandate of the United Nations force, including whether it is classified as an enforcement, peace enforcement or peacekeeping operation is not decisive of whether international humanitarian law is applicable."59 In the author's view it may not be relevant where peacekeeping forces perform the role and tasks of an occupier. Otherwise, all norms of IHL, including Article 1, are subject to the material scope provision of{he four Geneva Conventions of 1949, i.e., Common Article 2, according to which either an armed conflict or a situation of occupation is required.
58 Comprehensive Review of the Whole Question of Peacekeeping Operations in All Their Aspects, Model Agreement Between the United Nations and Member States Contributing Personnel and Equipment to United Nations Operations, Report of the Secretary-General, U.N. GAOR, 46th Sess., Annex, para. 28, UN Doc. A/46/185 (1991) (emphasis added). 59 Knoops, supra note 1, at 82.
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Nevertheless, the 1991 Model Agreement is very important, and the United Nations first assumed responsibility for ensuring that its forces would be fully acquainted with the relevant humanitarian conventions in the 1993 mission to Rwanda. 6D Another very important instrument, although it may be qualified as a policy statement, rather than as a legally binding instrument, is the UN Secretary-General's Bulletin regarding UN forces and international humanitarian law. In that instrument, Secretary-General Kofi A. Annan, implied that UN forces, at times, may be actively be engaged as combatants. 61 Conversely, as long as the peacekeepers do not become parties to the conflict, they are noncombatants, i.e., civilians. The Secretary-General also envisaged that certain circumstances and peacekeeper actions could cause the loss of non-combatant status, making the peacekeeping forces parties to the conflict. In such a case, the international law of armed conflict would apply.62 Another "proof" that UN personnel engaged in PSOs may be bound by IHL, is that under Article 8(2)(b)(3) of the Rome Statute for an International Criminal Court (ICC), it is a serious violation of the laws and customs applicable in international armed conflict to: Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict. The possibility of benefitting from the protected status granted by IHL to civilians (to which peacekeeping forces are equated to, in that they perform tasks as non-combatants), implies also the duty to abide by obligations imposed by IHL. The elevated number of ratifications of the ICC Statute (over 100 states) and the fact that the Statute was prevalently based on customary law suggests that also the position holding that military personnel engaged in PSOs shall be bound by the laws of armed conflict may constitute customary law.
2.
Applicability of the Law of Occupation to PSOs i. Applicability to Peace Enforcement Operations
Recent UN practice is to consider its personnel bound by IHL. However, the first requirement for its applicability, pursuant to Common Article 2 to the !d. at 94. Secretary-General's Bulletin: Observance by United Nations Forces of International Humanitarian Law, § l.1, ST/SGB11999113 (1999), available at http://www.un.org/peace/sCsgb_1999_I3.pdf. 62 Id., § 1.2. 60
61
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four Geneva Conventions, is the existence of an armed conflict, a declared war or a case of partial or total occupation, even if not met by any armed resistance. As already argued, only peace enforcement troops may be deemed to be a party to a conflict. Peacekeepers, instead, may only intervene with the consent of the parties intending to solve their dispute and their presence; therefore, they will not be interpreted as being belligerent. Their status will be regulated by a status of forces agreement (SOFA), and jurisdiction will be in the hands of the sending state. These troops, thus, are normally subject to ordinary domestic (civilian or military) laws. The laws of armed conflict do not normally playa role in these type of situations (e.g., KFOR's current presence in Kosovo), unless something different was expressly provided in the SOFA.63 Under such circumstances, peacekeepers generally enjoy immunity under the 1994 UN Convention and are not to be considered military targets. 64 In the event of a Chapter VII Security Council resolution calling for peace enforcement, the matter differs, since the peace enforcers are sent to the conflict scenario with the authority to use force beyond self-defense, notwithstanding the lacking consent of the "host" state. In this situation, the "Blue Helmets" are combatants. This view is confirmed by the Secretary-Generals Bulletin. Paragraph 1.1. provides that: 1.1 The fundamental principles and rules of international humanitarian law set out in the present bulletin are applicable to United Nations forces when in situations of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement. They are accordingly applicable in enforcement actions, or in peacekeeping operations when the use offorce is permitted in selfdefence. This means, therefore, that PSOs of an enforcement type, in which the Blue Helmets are combatants, are clearly subject to the laws of armed conflict, whereas those engaged in classical peacekeeping are to be considered non-military targets, since the situation does not reach the level of an armed conflict and is therefore subject to the rules applicable in peacetime. However, a somewhat confusing statement is contained in paragr~ph 1.2. of the Bulletin: 1.2 The promulgation of this bulletin does not affect the protected status of members of peacekeeping operations under the 1994 Convention on the Safety of United Nations and Associated Personnel or their status as non-combatants, as long as they are entitled to the protection given to civilians under the international law of armed conflict.
63 64
On this see Knoops, supra note 1, at 92. See Bia1ke, supra note 4, at 17.
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As mentioned, if a black and white approach were taken, only peace enforcers shall be deemed to be involved in armed conflict. Consequently, no peacekeeper shall need to enjoy non-combatant (i.e., a civilian) status under IHL, since the latter shall not apply at all. So which cases are referred to, in paragraph 1.2? A similar contradiction arises under Article 8(2)(b )(iii) of the ICC Statute, which considers it a war crime by: [i]ntentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict. According to Frank's commentary, the combatant status of a person does not depend on whether the PSO was based on a Chapter VI or Chapter VII resolution of the Security Council. The only relevant criterion shall be the notion of "combatant status" under IHL, as well as the actual conduct of the members of the respective mission. 65 This, however, is highly problematic, as it may create confusion about the status of the individual Blue Helmet andjeopardize a mission's safety. Classical peacekeepers shall abstain from any belligerent act and, as such, be granted full immunity, whereas peace enforcers shall be considered as combatants subject to the laws of armed conflict. To mix the two categories may create serious problem for the safety of those engaged purely in classical peacekeeping,66 and also for those states that may only be engaged in this type of operations due to their constitutional limitations (e.g., Switzerland, which is bound by the principle of neutrality and which cannot participate in peace enforcement missions). The reality, however, is that the two "boxes" (peacekeeping and peace enforcement) have not been kept strictly separated. There have been situations of armed conflict in which also Chapter VI peacekeeping missions-which may enjoy protection-were engaged. An example is UNPROFOR I, established in 1992 as a UN peacekeeping measure to broker a cease-fire between Croatian forces and Serb-led JNA forces in the Krajinja region of Croatia.67 The aim of this chapter, however, is not to discuss the individual legal status of a peacekeeper, but whether he shall be subject to the laws of armed conflict and, in particular, the law of occupation. In the author's view, only PSOs of an enforcement type shall be subject to the laws of armed conflict. A further confusing element is contained in the final sentence of paragraph 1.1 of the Secretary-General's Bulletin. According to it, troops engaged in peace65 D. Frank, "Article 8(2)(b)(iii)," in Roy S. Lee (ed.), The International Criminal Court. Elements of Crime and Rules of Procedure and Evidence 145-147, at 146 (2001). 66 On this problem, see Arnold, supra note 50, at 42 . 67 For further details, see id. at 33.
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keeping operations shall be bound by IHL when resorting to force in self-defense. As previously argued, however, these situations should not be confused with those of an armed conflict, since self-defense is allowed under ordinary criminal law. Therefore, if a peacekeeper uses force to protect his or her own life, this shall not be considered an act of hostility or belligerency. Similarly, a selfdefense reaction by a common citizen or a policeman, whose lives are under threat, would not be deemed to be subject to the laws of armed conflict! These are "peacetime" situations, and the same holds true when, during classical peacekeeping, some force may need to be used to sedate riots that do not reach the level of armed conflict. This is clearly stated in Article 1(2) of Additional Protocol II to the four Geneva Conventions of 1949, which establishes the lowest threshold for the applicability of IHL, excluding from its scope "situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts." Some authors even argue that: 68 the threshold for determining whether a force has become a party to an armed conflict [is] somewhat higher in the case of UN and associated forces engaged in a mission which has a primarily peace-keeping or humanitarian character than [is] the normal case of conflicts between states. This, in fact, would allow the United Nations more flexibility and options during robust peacekeeping operations. 69
ii. Applicability to Peacekeeping Operations Although, it may be generally concluded that only peace enforcement operations shall be subject to IHL, there may be one scenario in which peacekeeping forces may have to observe it. This is where the law of occupation comes into play. As seen, the law of occupation applies also when the (partial or total) occupation is not met by any armed resistance. Thus, there is no need for the existence of an armed conflict. This is particularly true in the case of debellatio, when the old regime is no longer able to publicly exercise its authority, and the foreign military presence is in a position to substitute its own authority for that of the legitimate government. It may be argued, therefore, that, in those cases where a government decides to call for the intervention of peacekeeping 68 Christopher Greenwood, "International Humanitarian Law and United Nations Military Operations," in Horst Fischer et al. (eds.), 14 Yearbook of International Humanitarian Law 24 (1998); Roberts & Guelff, supra note 8, at 625; Bialke, supra note 4, at 27. 69 Bialke, supra note 4, at 27.
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forces to take control over an area in which it has lost authority, as long as the peacekeeping force fulfills the criteria of occupation, it shall be subject to the obligations set forth in Part III of the IV GC. As said, these norms are brought into play by de facto occupations, irrespective of the motives, as occurred in Southern Lebanon or Iraq. Also in these cases, the invading forces were unwilling to recognize the status of occupation, by arguing their lack of intention to establish an administration in these areas. But their intentions are irrelevant. The norms contained in the IV GC were drafted for the benefit of the population of these occupied territories, to prevent them from being disadvantaged by the legal vacuum that usually follows an occupation or a debellatio. It shall further be recalled that these situations do not need to occur on a wide scale: occupation may be partial, i.e., it can take place in a country in which the state still exercises its authority, except for some specific regions. It is therefore possible in a situation in which a government gives consent to UN intervention. If the UN peacekeeping forces end up performing the role of an administrative authority, in the author's view, they shall be bound by the provisions of the law of occupation. This would reflect the spirit of the SecretaryGeneral s Bulletin and the 1999 Model Agreement calling for peacekeepers to be fully acquainted and to act in respect of the principles and the spirit of humanitarian law. The law of occupation, under such circumstances, shall provide guidance to the activities of the peacekeeping mission. This shall hold particularly true for those "peacekeeping" forces that do not act under the aegis of the United Nations, but under that of a regional organization or a military alliance like NATO,70 especially if they receive UN approval only after deployment.71
V. CONCLUSIONS Classical peacekeeping has undergone dramatic changes during the last 50 years. With the end of the Cold War, there has been a flourishing of PSOs of different types, ranging from classical peacekeeping, to peace enforcement and the somewhat grey area of robust peacekeeping (or Chapter VI and a 1/2 mis70 On this see, Maj. J.D. Godwin, "NATO's role in peace operations: re-examining the treaty after Bosnia and Kosovo," 160 Military Law Review 1 (1999). 71 On this problem, see Bialke, supra note 4, at 28, according to whom the Secretary-General s Bulletin, unfortunately, does no~ apply to military forces authorized by the United Nations, but under the contr()l 6fregional military alliances. The guidelines would not apply, for example, to the NATO-led Stabilization Force (SFOR) in Bosnia-Herzegovina, forces in West Africa led by Nigeria, or the NATO-led Kosovo Force (KFOR). These forces are authorized by the United Nations, but are not under its command and control. However, as observed by Bialke, these forces would be bound by customary law (e.g., the law of occupation) and their own respective national laws. c
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sions). The roles are no longer clearly distinguished in black and white. There may be situations of armed conflict in which classical peacekeeping forces are engaged, and there may be operations, like in Kosovo, based on a Chapter VII resolution that, however, perform classical Chapter VI peacekeeping tasks. This blurry situation creates several problems from a legalistic point of view, in that it becomes increasingly difficult to asses the legal regime applicable to these forces. Peace enforcement missions, where force may be used beyond needs of self-defense, convey combatant status to the Blue Helmets. Logically, being combatants, it shall be assumed that these forces shall enjoy the benefits and fulfill the duties set forth by the laws of armed conflict, including the law of occupation. On the other hand, classical peacekeeping forces, which are normally called to act in a post-conflict scenario, i.e., in a peacetime framework, shall be deemed to observe international law applicable in peacetime, i.e., prevalent human rights provisions, rather than humanitarian law. However, due to the blurry situation previously referred to, the 20th and 21 st centuries have witnessed several instances in which classical peacekeeping forces have been called to perform so-called "peace building." In this context, considering, in particular, the letter and the spirit of the 1999 Model Agreement, it would be logical to conclude that when called to perform these type of functions, "replacing" a government that has been defeated or which is no longer capable of exercising its authority within a specific area, the peacekeepers shall be bound by the provisions on the law of occupation contained in Part III of the four Geneva Convention of 1949. This shall hold particularly true for those "peacekeeping" forces that are not acting under the "aegis" of the United Nations, even though the focus of this chapter was on UN forces. In regard to the latter, however, one of the problems is the fact that that the United Nations, not being a state, is unable to become a signatory to the 1949 Geneva Conventions. To overcome this problem, however, the argument made is that a soldier, wearing the badge of the United Nations, carries at the same time the badge of his or her own nation. The Geneva Conventions have been ratified almost universally and have acquired customary law status. Therefore, the conclusion is that UN military personnel are indirectly bound by these provisions. This will have several consequences for the whole PSO. The law of occupation, as seen, is rather cumbersome on the Q<:;cupying power. Although the position of a UN PSO cannot be equated to that of an occupying "enemy" power, the letter and the spirit of the law of occupation shall provide guidance in the reconstruction of a state, for as long as the foreign presence will be required. As mentioned, however, considering that the UN forces will intervene on the basis of a Security Council resolution, thus with a wide legitimacy and public scrutiny and as guarantor of international human rights, most of the provisions contained in the IV GC to protect the rights of the population of occupied territories will be automatically enforced. The application plays a more important role, particularly in those cases where the peacekeeping forces are called in under the aegis of a regional organization or international alliance like NATO.
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In the first case, thanks to the wide net of the United Nations and its agencies, provisions for the welfare, humanitarian assistance and education of the local population shall be easily put into place, as required by the law of occupation. But once again, these rules become crucial where other types ofPSOs are sent into an area where no government is exercising authority, particularly following a debellatio.
CHAPTER 5 THE AGE OF INTERVENTIONISM: THE EXTRATERRITORIAL REACH OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS Josephine Lett*
J.
INTRODUCTION
Physical control of a territory, and not sovereignty or legitimacy of a title, is the basis of State liability for acts affecting other States l Multinational forces are finding themselves increasingly faced with situations in which international humanitarian law (IHL) does not, or no longer, applies. Conflicts come to an end, and mandates of peace operations shift from providing assistance and support to exercising varying levels of control over a territory.2 Such new mandates bring with them new challenges. The experiences of the UN Interim Administrations in Kosovo (UNMIK) and East Timor and, more recently, the experience of the United Kingdom in Iraq highlight the complexity of such evolving mandates. The question this chapter seeks to answer is whether a country may be held responsible under the European Convention on Human Rights 3 (ECHR) for violations committed by its forces taking part in operations abroad. Responsibility under the ECHR is defined in Article 1, which states that "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention." Responsibility, then, necessar-
*
LL.M. in International Human Rights Law, National University of Ireland,
Galway. Namibia,1971 ICJ 44. Jeremie Labbe Grenier, "Extraterritorial applicability of human rights treaty obligations to United Nations-mandated forces," ifdCRC, Report of Expert Meeting on Multinational Peace Operations: Applicability of International Humanitarian Law and International Human Rights Law to UN Mandated Forces 79 (2004). European Convention for the Protection of Human Rights and Fundamental Freedoms, signed Nov. 4, 1950, entered into force Sept. 3, 1953, 213 UNTS 221, ETS No.5. 117
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ily hinges on the interpretation of the concept of jurisdiction. This has been addressed in a number of cases dating back to Xv. FRG in 1965 and most recently in Al-Skeini in 2004. A chronological approach to the jurisprudence might lead one to believe that there is a logical development inherent within the jurisprudence. The principle of evolution, however, has ensured that interpretation has varied significantly over time and across cases. The Court's stated lack of adherence to precedent similarly dismisses such a conclusion. Consequently, each case must be read alone. Nevertheless, this chapter will attempt to derive some principles from the existing jurisprudence. It will be divided into three sections. After the introduction in the first section, Section II will focus on actual interpretation by the Court. An element of realism and recognition of the importance of extraterritorial jurisdiction is injected as relevant cases since 1965 are reviewed. It becomes clear that jurisdiction is not merely an academic debate but is rather the lynchpin on which remedies to serious violations may be sought. Section III draws out some of the outstanding issues and identifies the questions that remain to be answered. Section IV presents the conclusions.
II. ACTUAL INTERPRETATION BY THE EUROPEAN COURT: A REVIEW OF THE RELEVANT JURISPRUDENCE
The case law on extraterritorial jurisdiction will be reviewed by taking a chronological approach. Since the significant number of cases demands some classification, these will be presented pre- and post- the watershed authority of Bankovic. 4
A. Pre-Bankovic Cases 1.
The Earliest Authority
The earliest case addressing the extraterritorial conduct of states was Xv. FRG5 in 1965. The Commission considered X's claim to be ill-founded based on the merits. The applicant, an Austrian citizen by birth, who later acquired Czech nationality, in 1938 acquired German nationality. Expelled from
R (AI-Skeini and others) v. Secretary of State for Defense, EWHC 2911 (2004), Judgment Dec. 14, 2004, para. 268. This most recent judgment concluded that "Bankovic is a watershed authority in the light of which the Strasbourg jurisprudence as a whole has to be re-evaluated." ECommHR, Sept. 25, 1965, Xv. FRG (App. No. 1611162), 8 Yearbook ECHR 158 (1965).
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Czechoslovakia in 1945, he then moved to Morocco with a Spanish refugee passport. Claiming to be a German citizen, his complaint was that the German consular officials in Morocco asked the authorities to expel him. The Commission however was prepared to treat the applicant as a German citizen in Morocco observing that "in certain respects, the nationals of a Contracting State are within its 'jurisdiction' even when domiciled or resident abroad."6 The Commission continued that: the diplomatic and consular representatives of their country of origin perform certain duties with regard to them which may, in certain circumstances, make that country liable in respect of the Convention. 7 This was the earliest acceptance of extraterritorial application of the ECHR.
2.
The Beginning of the Control Test Cases
The Turkish invasion of Cyprus in 1974, and the continuing presence of its armed forces there, sparked a number of interstate complaints to the European Commission in the 1970s and 1980s. 8 Both Cyprus and Turkey were parties to the ECHR. Nonetheless, Turkey, in 1975 (Cyprus v. Turkey),9 disputed the admissibility of Cyprus's application by reference to Articles 1 and 63 (now 56). Turkey denied the Commission's jurisdiction rationae loci, as Cyprus did not fall under Turkish jurisdiction, pointing to the fact that it had neither extended its jurisdiction there, nor had it annexed it or established a government there. Cyprus, relying on a linguistic and purposive approach, retorted that "it was clear from the language and object of Art. 1 and from the purpose of the Convention as a whole that the High Contracting Parties were bound to secure the rights and freedoms defined in the Convention to all persons under their actual and exclusive authority, whether that authority was exercised within their territory or abroad."lo It was argued that Turkey represented the actual and exclusive authority in Cyprus. Relying on its decision in X v. FRG and embracing Cyprus's linguistic and purposive approach, the Commission interpreted Article 1 and the term "within their jurisdiction" as follows: this term is not, as submitted by the respondent Government, equivalent to or limited to the national territory of the High Contracting Party See id. See id. ECommHR, May 26, 1975, Cyprus v. Turkey (App. Nos. 6780/74 and 6950/75), 2 DR 136. See id. 10 See id.
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concerned. It is clear from the language, in particular of the French text, and the object of this Article, and from the purpose of the Convention as a whole that the High Contracting parties are bound to secure the said rights and freedoms to all persons under their actual authority and responsibility, whether that authority is exercised within their territory or abroad. [... ] authorised agents of a State, including diplomatic and consular agents and armed forces, not only remain under its jurisdiction when abroad but bring any other persons or property 'within the jurisdiction' of that State, to the extent that they exercise authority over such persons or property. Insofar as, by their acts or omissions, they affect such persons or property, the responsibility of the State is engaged. I I While it is significant that both applicant and respondent were parties to the Convention, what is interesting is the test formulated regarding jurisdiction. Clearly it is not territorial but one of "authority and responsibility." The threshold was simplified further when the Commission continued that agents of the state bring persons and property within its jurisdiction "to the extent that they exercise control over such persons or property."12 Control was the defining element of extraterritorial jurisdiction at this point. 3.
Personal Jurisdiction
Rudolf Hess, was the sole remaining Nazi war criminal detained in Spandau, in 1973, when his wife brought a complaint against the United Kingdom regarding his continued detention and alleged violations of Articles 3 and 8 of the Convention. I3 While the prison was administered by the four allied powers, the United Kingdom was the only one who had accepted the right of petition and, hence, the complaint was directed against it alone. Clearly the detention was outside the territory of the United Kingdom. This was not necessarily a problem, however, as the Commission noted that "there is in principle, from a legal point of view, no reason why the acts of the British authorities in Berlin should not entail the liability of the United Kingdom under the Convention."14 Theoretically, the United Kingdom could be held liable. Ultimately, however, the application was ruled inadmissible rationae personae. Failure hinged on
11 See id. Confirmed inXv. UK, Dec. 15, 1977, (unreported, App. No. 7547176), quoted in AI-Skeini, supra note 4. 12 Cyprus v. Turkey, supra note 8. 13 ECommHR, May 28,1975, Use Hess v. UK (App. No. 6231173), 2 DR 73; 8 Yearbook ECHR 174 (1975). 14 See id.
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the fact that the prison was under the joint responsibility of the four powers and not the United Kingdom alone. The Commission noted that the "administration and supervision is at all time quadripartite' and could not be 'divided into four separate jurisdictions."15 This case bears the closest resemblance to the recent Baha Mousa case in Iraq.16 It is confusing, however, as it states clearly that jurisdiction is not bound by territory and that extraterritorial jurisdiction is theoretically possible. The floundering point seems to be the issue of shared control. While control had already been established as the test in the earlier Cyprus case, shared control seems to have been a step too far.
4.
Acts With Extraterritorial Consequences
An interesting case is X and Y v. Switzerland, 1977, due to the fact that jurisdiction was found, but ultimately, the case was held to be inadmissible. 17 X was prohibited from entering Liechtenstein for two years for a violation of the regulations applicable to foreigners. X, a German citizen, and Y, his lover, alleged breaches of Articles 2, 3, 5, 6 and 8 of the Convention. Liechtenstein was not at that point a party to the ECHR. The crux lay in a bilateral treaty between Switzerland and Liechtenstein under which Switzerland had competence in matters of regulation of foreigners in Liechtenstein. Based on this, the Commission concluded that the breach of the prohibition had not occurred in Liechtenstein but in Switzerland. Only its effect was felt in Liechtenstein by virtue of the treaty between the two states. Jurisdiction was therefore found on the basis that Switzerland had acted with extraterritorial consequences or effects. Soering v. UK (1989), instead, provides the classic example of engagement of responsibility under the Convention for the extraterritorial consequences of acts committed within the territory of a state party. IS This case concerned the issue of extradition of Soering, a West German national, from the United Kingdom to the United States to face capital murder charges. If convicted he would have faced the "death row phenomenon." The Court noted that Article 1: Sets a limit, notably territorial, on the reach of the Convention. In particular, the engagement undertaken by a Contracting State is confined to 'securing' the listed rights and freedoms to persons within its own 'jurisdiction.' Further, the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States. 19 15
See id. Al-Skeini, supra note 4. 17 X and Yv. Switzerland, July 14, 1977, (unreported, App. No. 7289/75), quoted in AI-Skeini, supra note 4. 18 Soering v. UK, 11 EHRR 439 (1989). 19 See id., para. 86. 16
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This was the first clear and authoritative statement on the territorial nature of Article 1.20 However, given the fact that the case hinged on a possible Article 3 violation, the Court concluded that an act conducted within a state's territory but with extraterritorial consequences could engage the state's responsibility under the Convention. 21 While extraterritorial jurisdiction is permitted under the Soering principle, it should be noted that given the fact that the act takes place on the state's territory, this exception is implicitly anchored in the territorial principle. 22 Similarly, there must be a "sufficiently causal connection" between the act of the respondent state and the potential conduct abroad for this principle to apply.23 In Drozd and Janousek v. France and Spain (1992), the applicants were Spanish and Czech citizens who had been convicted in Andorra and imprisoned in France. 24 An alleged violation of Article 6 of the ECHR was levied against France and Spain as they occupied the unique position of administering Andorran Courts. The question was "whether the acts complained of by Mr. Drozd and Mr. Janousek can be attributed to France or Spain or both, even though they were not performed on the territory of those States."25 Did the Andorran Courts act as organs of France or Spain? The respondents submitted that the Court lacked jurisdiction both rationae loci and personae. While admitting that "the term 'jurisdiction' is not limited to the national territory of the High Contracting Parties; their responsibility can be involved because of acts of their authorities producing effects outside their own territory" the Court upheld both objections. 26 Andorra was an autonomous province, not party to the Convention, and the French and Spanish judges sitting in Andorran Courts did so in a private, autonomous capacity, not as judges of their respective countries. 5.
The Effective Control Doctrine
Loizidou v. Turkey (1995) was the first case to come before the European Court of Human Rights as opposed to the Commission. It originated in an application against Turkey by a Cypriot national, Mrs. Titina Loizidou.2 7 Living in Nicosia, but a native of Kyrenia in Northern Cyprus, Loizidou claimed that she 20 Al-Skeini, supra note 4, para. 153. It was relied upon in Bankovi c to support its conclusion that jurisdiction is essentially territorial. 21 See id., para. 152. 22 See id., para. 189. 23 See id., para. 189. In Al-Adsani v. UK, for example, the application failed due to lack of a sufficiently causal connection. Al-Adsani v. UK, 34 EHRR 34, para. 40 (2002). 24 Drozd and Janousek v. France and Spain, 14 EHRR 745 (1992). 25 See id., para. 91. 26 See id., paras. 91-97. 27 Loizidou v. Turkey, (preliminary objections) Feb. 23, 1995, para.!.
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was prevented by Turkish forces from returning to and enjoying her property. 28 She alleged a number of violations of the Convention, the most important of which, in this case, were Articles 8 and 1 of Protocol 1 in relation to the refusal of access to her property.29 The question before the Court was clear: was her application capable of falling within Turkish jurisdiction under Article I? Turkey challenged Loizidou's complaints on three grounds. Firstly, it argued that the Court did not have jurisdiction rationae loci. Denying that it exercised overall control of the border areas, it argued that "the mere presence of Turkish armed forces in northern Cyprus was not synonymous with jurisdiction."30 Turkey claimed to share control with the authorities of the Turkish Republic of Northern Cyprus (TRNC). Secondly, Turkey's recognition of the competence of the Strasbourg organs was firmly grounded in the territorial limitations it had included in its Article 25 and 46 declarations. These limitations were later declared invalid. 3l The third challenge related to the jurisdiction rationae temporis, with Turkey alleging that the acts complained of had occurred prior to Turkey's recognition of the European Court's jurisdiction. 32 It went on to suggest that it was not the correct respondent, appearing simply as amicus curiae on behalf of the real respondent, the TRNC. 33 This contestation was rejected by the Court. The Applicant shifted the focus away from the direct involvement of the Turkish forces and concentrated on the issue of the local administration which, acting on behalf of Turkey, is what the TRNC amounted to. Such a scenario could not be permitted to shield states from responsibility. If it were permittee!, abuses could take place with ease and impunity through the establishment of puppet governments. Secondly, Loizidou relied on the principle of effectiveness to assert that if Turkey were not found responsible, a legal lacuna would have crept into the system leaving her without an effective remedy.34 The Court addressed the issue of jurisdiction at the preliminary objections stage but reserved the issue of responsibility for the merits. In limiting itself to the issue of jurisdiction, the Court noted that "the concept of 'jurisdiction' under this provision is not restricted to the national territory of the High Contracting Parties."35 It cited Soering and the Drozd and Janousek cases, the two existing instances in which extraterritorial jurisdiction was engaged to support the assertion that jurisdiction is not restricted territorially.36 It 28
See id., para. 11. See id., para. 34. 30 See id., para. 56. 31 See id., para. 89. 32 See id., para. 36. 33 See id., para. 47. 34 See id., para. 57. 35 See id., para. 62. 36 See Soering v. UK, 11 EHRR 439 (1989) and Drozd and Janousek v. France and Spain, 14 EHRR 745 (1992). 29
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further constructed a third doctrine supporting state responsibility under the Convention: Bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party may also arise when as a consequence of military action-whether lawful or unlawful-it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration. 37 Adopting a broad interpretation of jurisdiction, the Court had built on the control test promulgated in the original Cyprus case in 1975 to establish a doctrine of effective control. There were now three situations in which the responsibility of states acting extraterritorially could be engaged. It was held by 16 votes to two that the acts complained of were capable of falling within the jurisdiction of Turkey. The next question, whether these acts were imputable to Turkey, was reserved for the merits.38 Once again Turkey argued the question of jurisdiction. The Court held firm in its response. It recalled its earlier judgment at the preliminary objections stage and its doctrine of effective control.3 9 It noted that obligations arise when a state has effective control of an area through military action. The legality of the action has no bearing on the responsibilities engaged. Such control might be through a local administration. 40 Clearly this was the case in Northern Cyprus. The Court did not consider it necessary to determine whether "Turkey exercises detailed control over the policies and actions of the authorities of the 'TRNC' ."41 More than 30,000 Turkish soldiers were stationed in Northern Cyprus on a continual basis since 1974.42 The Court deduced effective overall control of the area from the number of troops stationed there and the considerable time frame in question. Consequently, the acts complained of were imputable to Turkey.43 Loizidou is a crucial case in the extraterritorial debate as it confirmed the extraterritorial reach ofthe Convention. It justified this conclusion advancing the doctrine of effective control. It must be remembered, however, that effective control is not a requirement for extraterritorialjurisdi~tion.44 Previous case law attests to the fact that other scenarios can invoke extraterritorial responsibility.45 See id., para. 62 Loizidou v. Turkey, (merits), Nov. 28, 1996. 39 See id., para. 52. 40 See id. 41 See id., para. 56. 42 See id., para. 16. 43 Sec id., para. 57. 44 Rick Lawson, Life After Bankovic: On the Extra- Territorial Reach of the ECHR 10 (Jan. 2003) (on file with the author). 45 See Soering v. UK, supra note 18 and Drozd and Janouse, supra note 24. 37
38
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A third round of cases arising out of the situation in Northern Cyprus was decided in late 1996 (Cyprus v Turkey). 46 Cyprus complained of continuing human rights abuses taking place with the support and knowledge of Turkey. At the preliminary stages, the Commission followed the approach adopted in Loizidou addressing only the issue of jurisdiction and reserving the issue of responsibility for the merits.47 Its conclusion and rationale mirrored those reached in Loizidou, finding that the acts complained of were capable offalling within Turkey's jurisdiction. Again, at the merits stage, Loizidou featured strongly in the Court's reasoning. On the question of imputability, the Court noted: Having effective overall control over northern Cyprus, its responsibility cannot be confined to the acts of its own soldiers or officials in northern Cyprus but must also be engaged by virtue of the acts of the local administration which survives by virtue of Turkish military and other support. 48 The Court then described the "special character of the Convention as an instrument of European public order for the protection of individual human beings."49 Cyprus, a state party to the ECHR, was being prevented from exercising her rights and obligations under the Convention. Consequently, had Turkey not been found responsible, "a regrettable vacuum in the system of human rights protection" would have emerged. 50 Relying on the doctrine of effective control, the public order nature of the Convention and the desire to avoid any vacuum, the acts complained of were found imputable to Turkey. This case strengthened the effective control theory, extending it beyond the acts of state agents to include acts of local administration that had survived by virtue of Turkish support. In sum, the, pre-Bankovic cases invoked a broad interpretation of jurisdiction, concluding that extraterritorial jurisdiction is a normal consequence of a state's conduct abroad or of acts that, no matter where they have been conducted, have consequences abroad. The Court's practice clearly demonstrates that jurisdiction is inherently linked to states responsibility.51
46
Cyprus v. Turkey, 23 EHRR 244 (1997). See id., para. 13. 48 Cyprus v. Turkey, 35 EHRR 30, para. 77 (2002). 49 See id., para. 78. 50 See id. 51 Alexander Orakhelashvili, "Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights," 14 European Journal of International Law 3, 545 (2003). 47
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Bankovic and the Doctrine of Espace Juridique
The next case dealing with jurisdiction under Article I was Bankovic v. Belgium. The significance of interpretation was underlined during the proceedings when the Court defined the scope of Article 1 as being: determinative of the very scope of the Contracting Parties' positive obligations and, as such, of the scope and reach of the entire Convention system of human rights' protection. 52 The applicants were all citizens of the Federal Republic of Yugoslavia (FRY). They applied on their own behalf and in their capacity as relatives of the deceased. The background to the case lies in the NATO bombing of the Radio and Television Station (RTS) building in Belgrade during Operation Allied Force. Air strikes resulted in the death of 16 people. 53 The applicants alleged a violation of Articles 2 (right to life), 10 (freedom of expression) and 13 (right to an effective remedy) of the ECHR. As the impugned act was performed, or had effects, outside the territory of the respondent states, the first question was whether the applicants and their deceased relatives came within the jurisdiction of the respondent states according to Article 1 ECHR. The respondent governments denied jurisdiction over the applicants and their deceased relatives and claimed that their application was incompatible rationae personae with the ECHR.54 Reminiscent of the Northern Cyprus cases, they maintained that the exercise of jurisdiction should be taken to involve: the assertion or exercise of legal authority, actual or purported, over persons owing some form of allegiance to that State or who have been brought within that State's control.' It should also entail some form of 'structured relationship normally existing over a period of time. 55 The cases of Issa and Ocalan, described as "a classic exercise of such legal authority or jurisdiction over those persons by military forces on foreign soil" were drawn upon to substantiate the government's arguments. 56 The applicants, conversely, argued that the application was compatible rationae loci with the ECHR. They claimed that they were brought within the Bankovii:: et at. v. Belgium et al., Judgment Dec. 12,2001, para. 65. The legality of the use of force or the legitimacy of RTS as a military objective is beyond the scope of this article.For more details on this aspect, see Human Rights Watch, Civilian Deaths in the NATO Air Campaign (2000); Amnesty International, NATO/Federal Republic of Yugoslavia 'Collateral Damage' or Unlawful Killings? Violations of the Laws of War by NATO during Operation Allied Force (2000), AI Index: EUR 701018/2000; ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia. 54 Bankovii::, supra note 52, para. 35. 55 See id., para. 36. 56 See id., para. 37. 52
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jurisdiction of the respondent states by the NATO air strike. 57 The applicants' submission relied on a modification of Loizidou s effective control doctrine, an adaptation that led them to suggest that obligations under the Convention should be proportionate to the level of control exercised. 58 Accordingly, they held that the respondent states should not be obliged to secure the full range of Convention rights as in Loizidou. They admitted that airspace control could not be equated with ground control-as was the case in Cyprus-but contended that as an example of modern precision warfare, such a distinction was unrealistic. 59 While the respondent state's airspace control was more limited than the Turkish troops' ground control, it should not have precluded accountability. They argued that respect for Articles 2 and 10 was the least they could expect. They compared their case to that of Soering, highlighting that, in both cases the decisions were taken on the territory of the respondent states while the effects had been felt abroad. The Court concluded that the "ordinary meaning" of the term in Article 1 is "primarily territorial."60 It did not dismiss the possibility of extraterritorial jurisdiction outright, however, preferring to outline the bases of such jurisdiction-nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality.6l It noted that in international law: "a State's competence to exercise jurisdiction over its own nationals abroad is subordinate to that State's and other States' territorial competence."62 It further held that "a State may not actually exercise jurisdiction on the territory of another without the latter's consent, invitation or acquiescence, unless the former is an occupying State."63 It concluded that: "Article 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification."64 State practice was examined to assess whether any state had anticipated the possibility of extraterritorial effects of its actions. The absence of derogations pursuant to Article 15 was taken to mean that states did not consider their extraterritorial actions to involve an exercise of jurisdiction within the meaning of Article 1. 65 As dramatically stated by one author, "it is fallacious logic to infer a belief from a state's silence on an issue."66 There are several reasons See id., para. 46. See id. 59 See id., para. 52. 60 See id., para. 59. 61 See id. 62 See id., para. 60. 63 See id. 64 See id., para. 6l. 65 Article 15 permits derogations within a state of emergency. 66 Francisco Forrest Martin, "Colloquy on the Law of Armed Conflict: The Unified Use of Force and Exclusionary Rules: The Unified Use of Force Rule: 57
58
128
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why a state might not enter a derogation, not least because it does not wish to attract attention to its actions. The Court did not look beyond Article 15. If it had, it would have discovered the Turkish declarations accepting the right of individual petition in 1987 and recognizing the Court's jurisdiction in 1990. Both declarations were highly controversial, limiting judicial review to acts or omission "performed within the boundaries of the national territory of the Republic of Turkey." Declared invalid by the European Court in Loizidou, surely these declarations reflect a highly evolved appreciation of the extraterritorial application of the ECHR on Turkey.67 To say that states lacked such an understanding is simply untrue. The Court relied on the travaux preparatoires and state practice to reach its conclusions. It is interesting that the travaux were held not to be "decisive" and yet were relied on heavily throughout the case. 68 In keeping with the territorial -exceptional notion of jurisdiction, the Court proceeded to review its earlier decisions, reframing them as examples of exceptional jurisdiction. It reviewed Soering Drozd and Janousek and Loizidou and concluded that: The case-law of the Court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a Contracting State is exceptional: it has done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all of some of the public powers normally to be exercised by that Government. 69 Existing case law reframed as exceptional, the question before the Court then was whether the bombing of the RTS constituted a fourth exception. Ultimately this case did not reveal a comparable level of control by the respondent states. The material difference between military occupation and air superiority was not elaborated on, however. The Court addressed each of the specific challenges presented to it. The applicant's proportionality approach to the effective control doctrine was rejected by the Court. Agreeing with the government's dismissal of this cause and effective approach to jurisdiction, the Court held that the positive obligations contained in Article 1 could not be "divided and tailored in accordance with the particular circumstances of the extra-territorial act in question."70 It considered the applicant's submission as: Amplifications in Light of the Comments of Professors Green and Paust," 65 Saskatchewan Law Review 451, 466 (2002). 67 Lawson, supra note 44, at 18. 68 Bankovic, supra note 52, para. 65. 69 See id., para. 71. 70 See id., para. 75.
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tantamount to arguing that anyone adversely affected by an act imputable to a Contracting State, wherever in the world that act may have been committed or its consequences felt, is thereby brought within the jurisdiction of that State for the purpose of Article 1 of the Convention."7l Such an approach would render the relevant term "within their jurisdiction" in Article 1 "superfluous and devoid of any purpose."72 Similarly, the applicant's comparison with the Soering case was rejected, as the Court remained unconvinced of the similarities between the cases. 73 Neither was it persuaded of the usefulness of reference to cases of the InterAmerican Commission or the UN Human Rights Committee. Adopting an intentional approach to Article 2 of the International Covenant on Civil and Political Rights (ICCPR) the Court maintained that: as early as 1950 the drafters had definitively and specifically confined its territorial scope and it is difficult to suggest that exceptional recognition by the Human Rights Committee of certain instances of extraterritorial jurisdiction displaces in any way the territorial jurisdiction expressly conferred by that Article. 74 The Court's approach to the US jurisprudence echoed its earlier review of the Strasbourg jurisprudence: essentially jurisdiction is territorial. This was the intention of the drafters and any deviation from this is purely exceptional. The applicant's contestation that a failure to recognize jurisdiction in this case would defeat the public order mission of the Convention, leaving the applicants without an effective remedy and contributing to a regrettable vacuum in the system of human rights protection, was also rejected by the CourUs Reaching back to its judgment in Cyprus v. Turkey, the Court reasoned that its finding in that case was inherently different to this, due to the fact that: the inhabitants of northern Cyprus would have found themselves excluded from the benefits of the Convention safeguards and system which they had previously enjoyedJ6 This decisive factor was underlined in the following passage: In short, the Convention is a multi-lateral treaty operating, subject to Article 56 of the Convention, in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States. The FRY clearly does not fall within this legal space. The Convention 71 72
73 74 75 76
See See See See See See
id. id. id., id., id., id.,
para. 77. para. 78. paras. 79-80. para. 80.
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was not designed to be applied throughout the world, even in respect of the conduct of Contracting States. Accordingly, the desirability of avoiding a gap or vacuum in human rights' protection has so far been relied on by the Court in favour of establishing jurisdiction only when the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention. 77 This passage is perhaps the most insightful passage of the entire decision. The earlier reframing of the Court's previous jurisprudence as exceptional examples is cemented here in the notion of an espace juridique into which the applicants obviously do not fall. It highlights that, subject to the express case of extension pursuant to Article 56, the Convention was not designed to be applied throughout the world, and its public order objective should not be used to universalize its aims.7 8 The admissibility decisions in Issa and Ocalan, both cases outside the espace juridique described here, are skimmed over by a weak reference to the fact that the government in those cases, Turkey, simply failed to dispute the issue of jurisdiction. 79 This seems like weak juridical logic. The fact that jurisdiction was dealt with in Bankovic in admissibility but reserved for the merits in Issa was not addressed. Ultimately, the Court was not persuaded that there was any jurisdictional link between the victims and the respondent states and the application was unanimously dismissed. Bankovic is interesting not only for its interpretation of the meaning of jurisdiction within Article I of the Convention but also for its reinterpretation of previous cases. Whereas previous jurisprudence accepted extraterritorial jurisdiction as an inevitable consequence of their actions, Bankovic reframed those examples as exceptions. Accepting the possibility of extraterritorial jurisdiction through effective control as was held in the Cyprus cases, Bankovic declared that this was not enough. A new threshold was silently created. Relying on Loizidou s effective control theory, Bankovic introduces a new requirement in the last line when it talks of the exercise of "all or some of the public powers normally to be exercised by that Government."80 Effective control is no longer enough. It must be accompanied by the exercise of public powers in order to engage responsibility under the Convention. In the practical sense, such a requirement could prove to be a disincentive for military forces. 81 The territory concerned must also fall within the espace juridique of the Convention in order for it to apply. This concept would be addressed again. See id., para. 80. Al-Skeini, supra note 4, para. 190. 79 Bankovi C, supra note 52, para. 81. "However, in neither of those cases was the issue of jurisdiction raised by the respondent government or addressed in the admissibility decisions." 80 Bankovic, supra note 52, para. 7l. 81 Rick Lawson, supra note 43, at 19. 77 78
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C. Post-Bankovic
The first important post-Bankovic case is Ocalan v. Turkey (2003).82 A Turkish national and leader of the Workers Party of Kurdistan, Ocalan was captured by Kenyan authorities, handed over to Turkish security forces and arrested on board an aircraft in the international zone in Nairobi airport. Tried, convicted and sentenced to death, Ocalan complained of several violations of the ECHR. The core question was however, since the arrest had taken place on an aircraft in Nairobi and had occurred outside Turkey's territorial jurisdiction, was Ocalan within Turkey's jurisdiction at the moment of his arrest? There was no extradition treaty in place between Turkey and Kenya. Turkey claimed, however, that while the arrest was informal, it was lawful and had not infringed Kenya's sovereignty. Relying on Bankovi c, Turkey maintained that its responsibility was not engaged by the arrest of the applicant abroad. The Court saw things quite differently however replying that: In the instant case, the applicant was arrested by members of the Turkish security forces inside an aircraft in the international zone of Nairobi Airport. Directly after he had been handed over by the Kenyan officials to the Turkish officials the applicant was under effective Turkish authority and was therefore brought within the 'jurisdiction' of that State for the purposes of Art. 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory. The Court considers that the circumstances of this case are distinguishable from those in the aforementioned Bankovic case, notably in that the applicant was physically forced to return to Turkey by Turkish officials and was subject to their authority and control following his arrest and return to Turkey. 83 The Court clearly distinguished itself from Bankovi c, stretching back to earlier concepts of effective authority and control. It seems that what was important was not so much the arrest as the events that followed. Responsibility was engaged by virtue of the control subsequently enjoyed by Turkey. In Jla!jcu v. Moldova and Russia (2004), the events took place in the Moldovian Republic of Transdniestria (MRT) where a separatist regime prevented Moldova from exercising authority over the area. 84 Moldova, when ratifying the Convention, included a declaration to this effect. It sought to exclude its responsibility based on lack of control. The Court anticipated the fact that such legal reasoning could result in anarchy, as states may deny responsibility C)calan v. Turkey (2003) 37 EHRR 238. See id., para. 93. 84 Ila~u v. Moldova and Russia (unreported, App. No. 48787/99, July 8, 2004) reprinted in AI-Skeini, supra note 4, para. 197. 82 83
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due to lack of control of various areas. It presumed that jurisdiction is normally territorial, although there may be exceptional circumstances "where a State is prevented from exercising authority in part of its territory."85 One such circumstance included the actions of a separatist regime. In this case, Moldova, like Cyprus, had been prevented from exercising its authority. Russia then took on the role of Turkey, as the Court concluded: All of the above proves that the 'MRT,' set up in 1991-1992 with the support of the Russian Federation, vested with organs of power and its own administration, remains under the effective authority, or at the very least under the decisive influence of the Russian Federation, and in any event that it survives by virtue of the military, economic, financial and political support given to it by the Russian Federation."86 This case does little to advance our understanding of effective control other than to demonstrate that separatist regimes are another vehicle through which effective control may be exercised. In Issa and Others v. Turkey (2004), the applicants were six Iraqi nationals who complained about the alleged unlawful arrest, detention, ill-treatment and subsequent killing of their relatives in the course of a military operation conducted by the Turkish army in Northern Iraq in April 1995. 87 The Turkish government confirmed that a military operation had indeed taken place in Northern Iraq on these dates. The purpose was the pursuit and elimination of terrorists seeking shelter in the area. Turkey, however, denied the presence of its troops in the area indicated by the applicants. It further denied that any complaints had been made by the Kurdistan Democratic Party (KDP) to its military.88 Rejecting the applicant's contention that the Court had accepted Turkish jurisdiction when it ruled on the admissibility of the application, the Court held that the "issue is inextricably linked to the facts' and 'must be taken to have been implicitly reserved for the merits stage."89 Admissibility alone did not constitute recognition of jurisdiction. Following Bankovi c, Turkey took the opportunity to question the issue of jurisdiction at the merits stage. The government relied chiefly on Bankovi c"which confirmed the exceptional recognition extraterritorial jurisdiction. It pointed to the regional nature of the ECHR and the legal space doctrine espoused in Bankovic, highlighting that jurisdiction could only be established when the territory in question was 85
86 87
See id., para. 198. See id., para. 200. Issa and Others v. Turkey, Judgment Nov. 16, 2004 (App. No. 31821196), paras.
1-4. 88
89
See id., para. 25. See id., para. 55.
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one that would normally be covered by the Convention anyway.90 Iraq clearly did not fulfill such criteria. Recalling its positive track record in dispensing compensation for such cases of misconduct, Turkey intimated that the case at hand may have been the result of confrontations between the KDP and the PKK.91 Ultimately it contended that "[t]he mere presence of Turkish armed forces for a limited time and for a limited purpose in northern Iraq was not synonymous with 'jurisdiction.' Turkey did not exercise effective control of any part of Iraq."92 The applicants denied the relevance of Bankovic, preferring earlier jurisprudence. Drawing on Loizidou, they claimed that Turkey's ground operations constituted "effective overall control" of the area where the breaches had allegedly occurred. 93 They maintained that Turkey enjoyed de facto as opposed to de jure authority over the area. 94 They stressed the location of the decision-making process that, in their view, added further weight to their submission. 95 Taking that "jurisdictional competence is primarily territorial," the Court recognized that "in exceptional circumstances the acts of Contracting States performed outside their territory or which produce effects there ('extra-territorial act') may amount to exercise by them of their jurisdiction." It continued that responsibility may be engaged where "that State in practice exercises effective control of an area situated outside its national territory." Elaborating on the decision in Loizidou, the Court explained that obligations derived from control in such circumstances. 96 Unlike Bankovic, which dismissed its importance in Issa, the Court examined the US jurisprudence on accountability. The question was whether the applicants' relatives were under the authority and/or effective control of Turkey and therefore within its jurisdiction as a result of its extraterritorial acts. It found firstly that Turkey did not satisfy the effective overall control test. It was different than the Cyprus cases on a number of points. While the number of troops stationed in Northern Iraq was broadly similar to those in Cyprus, the key difference lied in the time factor. The troops in Northern Cyprus were present over a much longer period of time, were stationed throughout the whole of the territory and had communications, patrols and check points established. 97 Having failed the effective overall control test, the question was whether the relatives of the applicants came within the personal jurisdiction of the Turkish troopS.98 The applicants, however, failed to
90 91 92
93 94 95 96 97 98
See id., para. 56. See id., paras. 59-60. See id., para. 58. See id., para. 63. See id. See id. See id., paras. 67-69. See id., para. 75. See id., para. 76.
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establish beyond reasonable doubt that the Turkish troops had conducted operations in the area at stake at the time and place where their relatives had been killed. Therefore, they could not fall within their personal jurisdiction. Issa is significant because it involves a state not party to the Convention, and because it failed on the merits rather than on jurisdiction. What is particularly relevant is not the decision itself but the reasoning behind it. Despite the European Court's stated adherence to lack of precedent, Issa is nonetheless difficult to reconcile with Bankovic. One of the inconsistencies stems from its refutation of the espace juridique doctrine developed in the latter case. In its examination of Turkey's possibility to exercise overall control in Northern Iraq, it held that "if there is a sufficient factual basis for holding that, at the relevant time, the victims were within that specific area, it would follow logically that they were within the jurisdiction of Turkey."99 The implication is that had the necessary facts been proven, the applicants would have fallen within Turkey's jurisdiction. 100 This is despite the fact that Iraq is not a contracting state and that it is clearly outside the espace juridique of the contracting states. What is most interesting is that as Turkey was found not to exercise effective overall control, the Court seems to have made a special effort to refute the espace juridique theory. The second interesting point in Issa is that it raises the possibility of personal jurisdiction, a concept not examined in detail since the World War Two case of Hess. 101 Another interesting case is R (Al-Skeini and others) v. Secretary ofDefense (2004). The six claimants were relatives ofIraqi citizens who had died during the period when the United Kingdom was recognized as an occupying power in Iraq. The first five claimants' relatives were shot in separate armed incidents involving British troops. The sixth claimant's son, Mr. Baha Mousa, had died in a military prison in British custody. The claimants alleged violations of Articles 2 and 3 of the ECHR.l02 The judgment was concerned with two issues: firstly, whether the deaths had taken place within the jurisdiction of the United Kingdom so as to fall within the scope of the ECHR and, hence, the Human Rights Act of 1998; and secondly, whether there had been a breach of the procedural requirements under Articles 2 and 3 regarding enquiries into deaths. Both parties agreed that the Convention's reach is essentially territorial, and that there are exceptions. The crux lay in the width, nature, rational and applicability of these exceptions. 103 The claimants held that two, in particular, See id., para. 74. Nuala Mole, "Issa v. Turkey: Delineating the Extra Territorial Effect of the European Convention on Human Rights," I EHRLR 90 (2005). 101 Personal jurisdiction was addressed in the early Commission cases of Hess v. UK and Stocke v. Germany. Subsequent Court cases beginning with Loizidou focused on jurisdiction over territory. 102 Al-Skeini, supra note 4, paras. 2 and 3. 103 See id., para. 109. 99
100
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were relevant in this case. They argued that Bankovic approved the personal jurisdiction and effective control exceptions under the umbrella of control over either persons or land. 104 The state disputed the relevance of both exceptions. It denied, firstly, that occupancy amounted to effective control of an area, maintaining that the Strasbourg understanding of this concept was inherently linked to the espace juridique doctrine. The existence of a personal jurisdiction doctrine was denied, as the state maintained that examples of such cases were truly exceptional. l05 It went so far as to suggest that "there were territories in the world, such as Iraq, for which the Convention was not designed and for which they might not be ready."106 The critical question was whether the doctrine of effective control applies to territories outside the regional sphere of the party states of the Convention. l07 Actual application has only occurred in two cases-Cyprus and Moldovaboth parties to the Convention at the relevant time. Although not applied in practice, it was mentioned obiter in Issa where the Court held that had the facts been proven, the Convention could have applied in Northern Iraq.l08 In other words, the first two cases limit the territorial sphere of the Convention, while Issa supports its extension throughout the world. Dismissing Issa, the Court found that since Iraq was outside the regional sphere of the ECHR it could not fall under the jurisdiction of the United Kingdom pursuant to Article 1 on the basis of the effective control doctrine.109 While recognizing the UK's role as occupying power in Iraq, the Court concluded that the level of control exercised did not amount to effective control of the area within the meaning of that doctrine. 110 The total military and civil control exhibited in Northern Cyprus and secessionist MRT was contrasted with the dangerous and volatile situation in the British-administered provinces of Iraq.lll Having concluded that the effective control doctrine was not applicable, the Court examined other exceptions such as personal jurisdiction. 112 A narrow construction of personal jurisdiction led the Court to conclude that there was no extraterritorial jurisdiction in the first five cases. The sixth case, that of Mr. Baha Mousa, was different as his death had occurred "not in the highways or byways of Iraq, but in a military prison under the control of British forces." 113 The Court held that "a British military prison, operating in
104
105 106
107 108 109
110 111
112 113
See id., para. 110. See id., paras. 112-113. See id., para. 279. See id., para. 249. /ssa, supra note 87, para. 74. AI-Skeini, supra note 4, para. 281. See id., para. 282. See id. See id., para. 284. See id., para. 329.
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Iraq with the consent of the Iraqi sovereign authorities, and containing arrested suspects, falls within even a narrowly limited exception."114 Hence, the claim of the sixth applicant was held to fall under the personal jurisdiction of the United Kingdom. The Royal Military Police investigation was found to fall below the procedural standards set out in the ECHR. What was the significance of AI-Skeini? Did it change the rules of engagement (ROE) of war? The ruling was, in fact, more nuanced. Like many cases before it, AI-Skeini reaffirmed the primarily territorial nature of the ECHR. Its task was to examine the breadth of the exceptions to the territorial principle. On this it is notable for two reasons. Firstly, it took the concept of personal jurisdiction raised in Issa and built on it. Jurisdiction, in the case of Mr. Baha Mousa, was founded on the basis that the soldiers had personal jurisdiction over him during his detention. Secondly, it addressed the controversial espace juridique argument. Dismissing the obiter comments in Issa, it reconfirmed Bankovic. The Court held that the Convention "does not apply to the territory of another state which is not itself a party to the Convention, even if that territory is in the effective control of the first state."115 The case of Mr. Baha Mousa was exceptional because, like embassies and consulates, the military prison in Iraq constituted an "outpost" of the UK's authority abroad. 116 It is not unusual for the European Court to offer two conflicting judgments as appears to be the case of Issa and AI-Skeini. The five unsuccessful families will take their cases to the Court of Appeal. Phil Shiner, lawyer acting on behalf of the Mousa family, noted that a positive ruling by the Court of Appeal would "change the face of future conflicts, peace keeping operations or occupations involving European members of NATO. Once one of those states alone, or with others, can be said to have effective control of another territory-anywhere in the world-the European convention will apply." I 17 He further held, however, that a negative ruling would allow the United Kingdom to "create its own Guantanamo Bay. As long as it was outside Europe the Convention would not be in play." I IS This case has not closed the door on this issue. The principle of evolutiveness and the lack of precedent within the European system permit future applicants from Iraq to query jurisdiction. That effective control cannot apply outside Europe is an issue that will most definitely be revisited.
114 115 116 117
See id., para. 287. See id., summary, para. 3 See id., summary, para. 4. Julie Hyland, "Britain: High Court clears way for investigation into troop killing ofIraqi citizen," Dec. 18,2004, available at www.wsws.org. 118 See id.
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III. EXTRATERRITORIAL JURISDICTION: WHERE TO NOW? What should be clear, at this point, is that the most consistent factor in the jurisprudence of the European Court of Human Rights is its lack of consistency. Clearly the extraterritorial application of the ECHR remains a contentious issue. A number of outstanding issues deserve attention.
A. Question of Interpretation
The basic question this chapter seeks to answer is whether the ECHR applies to the troops of states parties stationed abroad. The answer lies in the interpretation of Article 1. Early cases, such as Loizidou, focused on the object and purpose of the Convention, relying heavily on the principles of evolutiveness and effectiveness. Extraterritorial jurisdiction was seen as a normal consequence of a state's actions beyond its territory. 119 More recent interpretations, such as the one provided in Bankovi c, have relied on the "ordinary meaning" of the term "jurisdiction." Taking a restrictive approach, Bankovi c demanded "exceptional circumstances" for the Convention to apply.120 The question is whether such a restrictive approach is compatible with the ECHR's character. The answer may lie in Bankovi cs reasons for adopting such a restrictive interpretation. It marked a reversal in the Strasbourg jurisprudence, which traditionally supported the rights of the individual against the state. Dinah Shelton contends that such a view is understandable because the Court "would seek to limit its jurisdiction to exclude the extra-territorial military operations of its contracting states."121 That the Court did not wish to engage in humanitarian law is a weak argument. After all it had already done so in the Northern Cyprus cases. One might ask whether it is less important to regulate the conduct of troops abroad. A speech by the President of the Court, Mr. Wildhaber, offers some insight into the motivation behind Bankovic. In early 2002 he warned that "the European Convention should not be applied in such a way as to prevent States from taking reasonable and proportionate action to defend democracy and the rule of law." He further observed that "the Convention was never intended to cure all the planet's ills."122 Contextualizing the decision, one can appreciate that events like September 11 th, combined with a burdensome case load and the Court's Orakhelashvili, supra note 51, at 545. See id. 121 Dinah Shelton, "The Boundaries of Human Rights Jurisdiction in Europe," 13 Duke Journal of Comparative and International Law 95, 128 (2003). 122 Speech of the Court's President, Mr. Wildhaber, on the occasion of the opening of the judicial year 2002 of the European Court of Human Rights, reprinted in Lawson, supra note 44, at 22. 119 120
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unwillingness to engage in a remote and politically-sensitive case, led to the highly controversial and much disputed decision in Bankovic. The Court was aware of the consequences of the extraterritorial application of the ECHR and the effect of exposing military operations to judicial review by the European Court. It would have opened a Pandora's Box. The governments in this case had given an ominous warning of the consequences of exposing military missions to the Court's review and supervision. They had anticipated that such a decision would undermine participation in operations and result in increased derogations pursuant to Article 15. 123 Therefore, a restrictive approach was favored. Relaxed briefly in Issa, Al-Skeini, marked a definite return to a restrictive policy. At first glance, adherence to such narrow constructions seems to be at odds with the Courts guiding principles of evolutiveness and effectiveness, leading one to question who exactly it is purporting to protect.
B. A Regional Legal Space It is uncontested that jurisdiction is primarily territorial. There are a number of exceptions to this rule, and they have all been outlined above. The outstanding question, however, is whether the ECHR can apply outside the territory of states parties. Bankovi c introduced the doctrine of espace juridique. With this concept, the Court seems to be saying that troops may act with impunity once their actions are outside the geographic territory of the Convention. Could this really be the intention of the ECHR's drafters? It is questionable whether such an approach is consistent with the object and purpose of the ECHR, as it seems to reduce the protection of human rights to a matter of reciprocity, a theme that has no place in the European public order. 124 In essence Bankovi c is suggesting that individuals deserve protection if, and only if, their state offers such protection. Such an approach must surely run counter to the aim of the Convention. The rationale behind this doctrine lies in the Court's fear of universalizsing the ECHR. However, as one learned author has rebutted "it is not a question of Europe legislating for the world, but of the accurate assessment of the conduct of contracting states in the light of requirements imposed on them by the Convention."125 True, the Convention may not have been specifically designed for extraterritorial application outside of the Council of Europe. However, should this excuse be used to restrict the protection of human rights and shield solBankovic, supra note 52, para. 43. Speech of the Court's president, Mr. Wildhaber, on the occasion of the opening of the judicial year 2002 of the European Court of Human Rights, reprinted in Lawson, supra note 44. The non-reciprocal nature of the Convention was established in Austria v.Italy, 4 YearbookofECHR 136-138 (1961). 125 Orakhelashvili, supra note 51, 551. 123
124
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diers from accountability? Could such an approach really be said to be taken in the spirit of human rights protection? As Theodor Meron noted in his examination of US humanitarian intervention in Haiti "[i]n view of the purposes and objects of human rights treaties, there is no a priori reason to limit a state's obligation to respect human rights to its national territory."126 After all, human rights are universal .If the function of human rights is to check the exercise of public power, why should it matter where that power is exercised?I27 Accountability is required regardless of location. Commenting on this doctrine, Hurst Hannum put it very succinctly when he stated that: Given the limited number of forums where human rights and humanitarian law can be clarified and enforced, and given the centrality of human rights as a kind of secular unifying ideology for the global order, and, above all, given the centrality of human rights as the ideological glue of European peoples and institutions, the Court should find jurisdiction over all actions in which states subject to the Court's jurisdiction are arguably complicit. 128 Clearly Hannum is against the current trend, which seems to be to avoid responsibility through recourse to technical interpretation. The debate surrounding extraterritorial jurisdiction provides Europe with the opportunity to do the right thing. While the recent cases of Issa and Ocalan undermined the doctrine, unfortunately Al-Skeini reconfirmed Bankovic. Ultimately, the issue is unresolved and much debate has yet to occur.
IV. CONCLUSION
The question that this article set out to answer is whether a country may be held responsible under the ECHR for violations committed by its forces taking part in operations abroad. The answer was presented in a technical manner focusing on the interpretation of jurisdiction within the meaning of Article I of the European Convention. In reality, the relevance of this debate goes far beyond any technical musings. We live in an interventionist age. 129 The events of September 11, 2001, seemed to confer a veil of legitimacy on Western nations to engage in military operations in other countries to eradicate Al Qaeda and other elements of terrorism. Armed intervention under the guise of hum ani tar126 Theodor Meron, "Extraterritoriality of Human Rights Treaties," 89 American Journal of International Law 78, 80 (1995). 127 Lawson, supra note 44, at 3. 128 Hurst Hannum, "Remarks on 'Bombing for peace: Collateral damage and human rights'" 2002 American Society of International Law Proceedings 95, at 106. 129 Lawson, supra note 44, at 1.
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ian necessity, the spread of democracy, the war on terrorism or whatever reason, highlights the critical importance of accountability and transparency. Shielding military action from scrutiny by the Convention, once it crosses a border, is not the way forward. Guild was very observant when she noted that "the borders of European human rights are now under construction." 130 The reality is that the ECHR may travel with troops. As mandates shift and become peace enforcement, missions exercise a certain level of control over areas. In certain instances this may invoke responsibilities under the ECHR. Detainees in military prisons may engage the jurisdiction of the state party under Article 1. Whether victims in countries not party to the Convention can invoke its protection remains to be answered. Bankovic and Al-Skeini did not really close the door on this debate. The recent war in Iraq will undoubtedly present plenty of cases ready to address this question. A distinction will probably be drawn between aerial versus ground control. However, such technical distinctions fail to miss the point. The objective of a human rights treaty must be to protect the human rights of individuals not to develop mechanisms for circumventing its obligations.
130 Elspeth Guild, "The Borders of Legal Orders: Challenging Exclusion of Foreigners," available at www.errc.org.
CHAPTER 6 SECURING STATUS AND PROTECTION OF PEACEKEEPERS Dieter Fleck*
I.
INTRODUCTION
The status of peacekeepers and their protection is often neglected, both in the planning process and during the performance of their mission. In recent years military peace operations were started and conducted without much consideration for the legal status of the personnel to be deployed in the receiving state. The consent of the parties concerned was related to the mission as such and its mandate, but personal rights and obligations of the military and civilian members of the mission have often neither been discussed nor negotiated in detail. This is still the case today. Deployments of military personnel into peace operations must often be made with limited advance notice. Even where there is time for negotiation of status issues with the receiving state, there may be a lack of experts and effective organs to deal with them in a professional and result-oriented manner. Sending states tend, at least in the early phases of an operation, to be more concerned with operational efficiency rather than the regulation of rights and duties of their forces within the receiving state. Both the sending and the receiving state might even be unable to develop shared opinions on the contents of immunities and their limitation. Neglecting this topic has serious disadvantages for all parties concerned. Over the past decade, threats against the safety and security of UN and associated personnel have escalated, while receiving states have failed to exercise their responsibility to ensure protection; the perpetrators of acts of violence
* Formerly, Director International Agreements & Policy, Federal Ministry of Defence, Germany; Senior Vice-President, International Society for Military Law and the Law of War; Member of the Council of the International Institute of Humanitarian Law. The author wants to express his gratitude to Lieutenant-Colonel J. A. Mario Leveillee, Canadian Forces, Assistant Judge Advocate General Europe, for critical comments on an earlier draft of this contribution. All views and opinions are personal. 141
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against peacekeepers and humanitarian personnel remained widely unpunished. l Effective measures to increase protection require intensive cooperative efforts of all parties concerned. They should start with a clear understanding of respective rights and obligations and focus on day-to-day implementation and control. Peacekeepers must have a precise and correct view of their legal position in missions that are more and more dependent on civil-military cooperation. The receiving states would be well advised to insist on the application of legal norms on their territory and to cooperate in a faithful and effective implementation of those norms. Also, sending states might wish to turn to the law for support to promote effective cooperation rather than act unilaterally. A more precise description of the status of personnel deployed in the receiving state remains necessary. It is the purpose of this chapter to discuss the relevant principles and procedures and to develop policy proposals for improving the legal status of peacekeepers and their protection. In this context, different forms of peace operations must be considered. A decade ago, the Agenda for Peace defined peacekeeping as "the deployment of a United Nations presence in the field, hitherto with the consent of all the parties concerned, normally involving United Nations military and/or police personnel and frequently civilians as well," to implement or monitor the implementation of arrangements relating to the control of conflicts and their resolution and/or to protect the delivery of humanitarian relief.2 This definition was intended to distinguish peacekeeping from peace enforcement operations carried out under Chapter VII mandates. The Brahimi Report,3 while categorically stating that "consent of local parties, impartiality and the use of force only in self-defence" should remain "the bedrock principles of peacekeeping," recognized that adherence to these principles should not permit its exploitation by the parties to the conflict. The Report also underlined that impartiality should not be confused with neutrality. UN missions must be prepared to use force not only to defend themselves, but also to protect other mission components and the mandate of the mission. 4 Consequently, the Security Council should give appropriate mandates and ensure that necessary resources are provided.
Safety and Security of humanitarian personnel and protection of United Nations personnel, Report of the Secretary-General, UN Doc. A/S9/332 (Sept. 3, 2004). An Agenda for Peace. Preventive diplomacy, peacemaking and peace-keeping, Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security Council on Jan. 31, 1992, UN Doc. A/4 71277 -S/24111 (June 17, 1992), at http://www.un.orglDocs/SG/agpeace.html. paras. 20, 46-S4. See also Supplement to An Agenda for Peace: Position Paper of the Secretary-General on the Occasion of the Fiftieth Anniversary of the United Nations, UN Doc. NSO/60-SI199S/I (Jan. 3, 1995), at http://www.un.org/Docs/SG/agsupp.html. paras. 33-46. Report of the Panel on United Nations Peace Operations, UN Doc. A/SS/30SS/2000/809 (Aug. 21, 2000), at http://www.un.org/peace/reports/peace_operations/. 4 !d., paras. 48, SO, SI.
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Today, peace operations have undergone a qualitative transformation. They comprise all peacekeeping and peace enforcement operations conducted in support of diplomatic efforts to establish and maintain peace. The strict division between traditional peacekeeping and enforcement operations has been blurred. This has practical consequences for the personnel involved, and it may make a strict definition of the term "peacekeeper" rather difficult. More and more, the presence of peacekeepers is required in conflicts of doubtful nature, size and duration. The tasks of peacekeeping forces have become more complex, as they include non-consensual (peace enforcement) operations and a wide range of civilmilitary cooperation with many different players in the field. 5 In such operations, the United Nations lead may take different forms, and very often it is difficult to ensure that peacekeepers start on the right track from the very beginning. 6 Legal efforts to improve the protection of peacekeepers must start with an assessment of their functional immunity within the host country and an assessment of practical problems of application ( Section II). To avoid any misunderstandings, it must be considered that immunities and privileges of peacekeepers solely apply to the performance of their mission in the receiving state, and that they do not affect individual and collective responsibilities for wrongful acts (Section III). As status of forces or status of mission agreements (SOFAs or SOMAs) are useful to specify rights and obligations of the parties concerned and to improve the protection of members of a force and its civilian component, ways and procedures of enacting such agreements in time must be given more attention in the international community (Section IV). Even beyond SOFA or SOMA implementation, distinct efforts remain necessary to support and apply practical measures to ensure safety and security (Section V). Based on these considerations, some conclusions shall be drawn (Section VI).
II. THE FUNCTIONAL IMMUNITY OF PEACEKEEPERS WITHIN THE RECEIVING STATE In the absence of relevant treaties, the status of peacekeeping contingents can best be described by the principle of functional immunity of foreign military forces. This principle has often been discussed, seldom challenged, but not always fully implemented. Lazareff, in his seminal treatise on the status of forSee Ralph Zacklin, "United Nations Management of Legal Issues," in: Jessica Howard & Bruce Oswald CSC (eds.), The Rule of Law on Peace Operations. A Challenge of Peace Operations' Project Coriference, Asia-Pacific Center for Military Law 115-126, at 116 (2003). Ben F. Klappe, "Acting Under Chapter VII of the Charter of the United Nations," in Horst Fischer, Ulrike Froissart, Wolff Heintschel von Heinegg & Christian Raap (eds.), Krisensicherung und Humanitiirer Schutz-Crisis Management and Humanitarian Protection: Festschrift fur Dieter Fleck 329-343 (2004).
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eign military forces, was reluctant to confirm an unqualified principle of immunity of the sending state, but he supported the "theory of the restricted territorial sovereignty which is precisely applied by [the NATO] SOFA." He expressly maintained that there are limits of territorial sovereignty, "precisely when a serviceman is acting in the performance of his duty."7 Sinclair has provided abundant material on state practice, which reveals that there is hardly any criminal case where a receiving state had claimed criminal jurisdiction on a member of visiting forces outside agreed SOFA provisions. He also refers to a continuing trend "in the direction of recognising and applying the restrictive theory" on state immunity, considering "a functional need to maintain a measure of jurisdictional immunity for foreign States."8 In the absence of state practice, however, it remains difficult to confirm and exactly describe this situation. It has been observed by Brownlie that "[r]ecent writers emphasize that there is a trend in the practice of states towards the restrictive doctrine of immunity but avoid firm and precise prescriptions as to the present state of the law."9 Still doubts prevail whether and to what extent limitations of immunity might have developed by custom. Even those limitations provided by treaty law are not free from misunderstandings. lO Hence, in the absence of clear treaty provisions, core rules of functional immunity continue to apply to members of sending states' forces. Yet there are different perceptions as to the validity of state immunity and its practical results in different situations. The Operational Law Handbook published by the US Judge Advocate General's Legal Center and School states that the general rule of international law is "that a sovereign has jurisdiction over all persons found within its borders' and that 'there can be no derogation of that right without the consent of the receiving state, and, in the absence of agreement, U.S. personnel are subject to the criminal jurisdiction of the receiving state,' except during 'deployment for combat."ll This reveals a certain distrust in general principles of international law and custom and perhaps also a lack of readiness to honor similar principles of protection for foreign military forces Serge Lazareff, Status of Military Forces under Current International Law 17 (1971). II Ian Sinclair, The Law ofSovereign Immunity: Recent Developments, Hague Academy ofInternational Law, Collected Courses 113-284, at 216-217 (1980). Ian Brownlie, Principles of Public International Law 325-348,371-383, at 332 (5th ed. 1998). 10 See Hazel Fox, The Law of State Immunity 467 (2002), suggesting that NATO SOFA observes a principle of "equivalence, by which the host State is only obliged to extend to visiting forces the privileges and benefits that it extends to its own forces." It should be noted that such equivalence may be existing for support services for these forces, but certainly not with respect to their legal status, as a receiving state does not provide its own forces with privileges or immunities. 11 Operational Law Handbook (2004), available at www.jagcnet.army.mil [JAGCNet, Operational Law sub-directory], Ch. 16, Section IV A.
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temporarily deployed on US territory. Hence, Senate advice and Department of Defense (DoD) policy is to maximize US jurisdiction over US personnel by agreements. 12 Where uncertainty on the existence and precise meaning of general principles of international law prevails, clear treaty provisions are essential. Even NATO SOFAl3 rules, although they are widely acceptable as a model for a balanced and convincing solution even beyond the North Atlantic Alliance, cannot be considered as being customary law today in toto. In many situations a new assessment of the given situation and of the national interests involved remains necessary. This is particularly true for the cooperation in jurisdiction, where NATO SOFA rules have been supplemented by additional agreements. 14 The functional immunity of foreign military forces is important to ensure an unimpeded cooperation between sovereign states. It is designed to protect the official functions of the personnel involved and is limited accordingly. As states are independent and free to direct their affairs, no government is obliged to accept outside interference with respect to its own organs by another state. Sovereign functions of the sending state are protected under international law, in order to exclude harassment or interference from the receiving state. Organs of a sending state, which have abused their immunity, may be required to leave, but the immunity itself will not be narrowed. 15 This applies to members of armed forces in the same way as to members of government or diplomats. Where crimes are committed by persons enjoying such immunities ratione materiae, they may not be prosecuted by a foreign state, except under agreed rules or with the consent of their sending state allowing for the execution of jurisdiction. 16 These principles may be generally accepted, but their implementation in peace operations is not without difficulties, misunderstandings and controversies. To make use of accepted treaty provisions as widely as possible, UN peacekeeping operations have long been considered by the Secretary-General as subsidiary organs of the United Nations, established pursuant to a resolution of the Security Council. As subsidiary organs, they enjoy the status, privileges and immunities of the Organization provided for in Article 105 of the UN Charter and the UN Convention on the Privileges and Immunities of the United Nations of February 13, 1946. 12
DoD Directive 5525.1 Status of Force Policies and Information, w/Cl (Apr.
9,1985). 13 Agreement Between the Parties of the North Atlantic Treaty Regarding the Status of Forces (NATO SOFA) of June 19, 1951 (199 UNTS 67), reprinted in D. Fleck (ed.), The Handbook o/the Law o/Visiting Forces Annex A (2001). 14 Fleck, supra note 13, at 6-7. 15 Rosalyn Higgins, Problems and Process. International Law and How We Use It 78-94, at 94 (1993). 16 D. Fleck, "Are Foreign Military Personnel Exempt from International Criminal Jurisdiction under Status of Forces Agreements? ," 1.3 Journal 0/ International Criminal Justice 65\-670, at 662-663 (2003).
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Under Article 105(2) of the UN Charter, representatives of the members of the United Nations and officials of the Organization enjoy "such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization." This rule, generally referred to as the "functional necessity" principle, was enunciated in Article 105 of the Charter for the first time. It points to the fact that the purposes of the privileges and immunities are not to benefit individuals but to ensure the efficient performance of their functions. The "functional necessity" principle was repeated in the 1946 UN Immunities Convention and later it entered into the 1961 and 1963 Vienna Conventions on Diplomatic and Consular Relations. Subject to further specification, the core elements of functional immunity regulate not only the general principle of immunity for UN personnel and institutions, but also the exemption of such personnel from criminal and civil jurisdiction of the receiving state, their immunity from detention by the authorities of the receiving state, their freedom of movement and their right to maintain communication lines. It should no be overlooked that the 1946 Convention was designed in the first place to protect diplomatic functions of UN personnel and does not cover all the needs arising in connection with the deployment of military forces. Its authors would have been surprised to see some of its provisions applied to military personnel involved in peace operations which were quite unknown at that time. This is especially true for the term "experts on missions for the United Nations" (Article. VI of the UN Immunities Convention), a term that was used, nevertheless, to describe the status of peacekeepers. So far, attempts to find generic solutions in treaty law to define the status of peacekeepers have been unsuccessful. Under the 1994 UN Safety Convention,I7 states parties shall take all appropriate measures to ensure the safety and security of United Nations and associated personnel. The Convention, which entered into force on January 15,1999, has some 70 parties, many of them troop contributors to UN peacekeeping, but still today none of them is a host state to a peace operation. I8 Its scope is limited to operations under UN command and control; it applies to other operations only if the Security Councilor the General Assembly has "declared" an operation to be of exceptional risk. I9 No such declarations have been made so far.20 The Security Council has recently stated its determination to issue such a declaration and invited the SecretaryGeneral to advise the Council, where in his assessment circumstances would support this.21 In view of the defects of the Convention, proposals have been 17 United Nations Convention on the Safety of United Nations and Associated Personnel of Dec. 9, 1994, available at http://www.un.org/law/codlsafety.htm. reprinted in Adam Roberts & Richard Guelff(eds.), Documents on the Laws a/War 627 (2000). 18 Zacklin, supra note 5, at 122. As a host state to a peace operation, Sierra Leone signed the Convention in 1994, but has not yet ratified it. 19 Art. I (c)(ii) of the Convention. 20 Zacklin, supra note 5, at 122. 21 UN Doc. SC/Resl1502 (2003), Aug. 26,2003, para. 5(c).
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made to solve certain problems by interpretation22 and, in particular, to initiate a declaration by the General Assembly or the Security Council, making the Secretary-General a risk-certifying authority. But even if such solutions were accepted, it may be questioned whether the UN Safety Convention will have any protective effect. As long as the Convention is not legally binding to host states of peace operations, its significance may best be seen as a source of generic principles. It must also be considered that the substance of its provisions hardly complies with the reality of modern peace operations. Article 2(2) expressly provides that it shall not apply to a UN operation authorized by the Security Council as an enforcement action under Chapter VII of the UN Charter in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies. This provision, intended to draw a clear line between the application of the Convention and the applicability of international humanitarian law (IHL) in armed conflicts, may lead to the termination of protection under the Convention when it is most critical. Under IHL enemy combatants may be detained and kept as prisoners of war until the end of hostilities. For personnel engaged in normal peace operations, this is not an acceptable solution and clearly Article 8 of the Convention provides that captured or detained UN or associated personnel shall not be subject to interrogation and shall be promptly released and returned. It is unfortunate that an exemption from this rule appears to be tolerated under Article 2(2). As the intention was not to deprive all Chapter VII operations from special protection under the Convention, it would have been preferable to include a clear prohibition to kidnap peacekeepers and to ensure that peace enforcement authorized under Chapter VII may not be misunderstood as waging war. Any exception to that general rule must be confined to extreme situations and should have been drafted with much greater care. Since 2002, an Ad Hoc Committee on the Scope of Legal Protection under the Convention is working with a mandate to expand the scope of protection, including by means of a legal instrument. A possible outcome might be an additional protocol that would supplement the Convention without disrupting any process of its ratification, but would be binding only on those states that so agreed. 23 None of the legal sources described above are fully sufficient for a convincing practical solution: the customary principle of functional immunity is not specific enough, the UN Immunities Convention is not tailor-made for peace operations, and the UN Safety Convention has too many defects. A number of 22 See Antoine Bouvier, "'Convention on the Safety of United Nations and Associated Personnel': Presentation and Analysis," IRRC No. 309 (Dec. 1995), at 638-666; Ola Engdahl, Protection of Personnel in Peace Operations: The Role of the 'Safety Convention' against the Background of General International Law (2005). 23 Report of the Ad Hoc Committee on the Scope of Legal Protection under the Convention on the Safety of United Nations and Associated Personnel, Apr. 11-15,2005, UN Doc. A/60/52 (Apr. 15, 2005).
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issues, such as the practical consequences of functional immunity of peacekeepers, their right of carrying arms and of wearing their national uniforms, the acceptance of permits and licenses for vehicles and aircraft, freedom of entry and exit and the use of identity cards of their sending state and/or the United Nations, tax and customs exemptions, logistic support and the entitlement to recruit local personnel in the receiving state, still require regulation.
III. STATE RESPONSIBILITY AND INDIVIDUAL RESPONSIBILITY FOR WRONGFUL ACTS
Before discussing proposals to strengthen the legal status and protection of peacekeepers in the field, a general observation seems appropriate: legal immunities in the receiving state should by no means be misunderstood as offering impunity for any crimes or inhibiting claims in the event of wrongful acts committed by members of a mission. Crimes must be brought to national courts of the sending state or to a competent international court. The obligation to make full reparation for any loss or injury caused must be observed as an essential part of an effective peace operation. For this purpose both the international responsibility of sending states and international organizations and the responsibility of individual actors must be ensured. State responsibility has been reaffirmed and further developed by the International Law Commission 50 Draft Articles on the Responsibility of States for Internationally Wrongful Acts (DARS),24 without affecting the lex specialis character of relevant provisions of IHL.25 International organizations participating in peacekeeping and peace enforcement activities bear a coordinate responsibility with troop contributing states for ensuring compliance with the applicable rules of IHL in operations conducted under their control or authority. This principle is now part of the Recommended Rules and Practices (RRPs) developed by the ILA Committee on Accountability of International Organizations. 26 It should be confirmed and further developed by the International Law Commission's forthcoming Draft Articles on the Responsibility of International OrganizationsP 24 Draft Articles on Responsibility of States for Internationally Wrongful Acts (DARS), United Nations, International Law Commission, Report on the Work of its 53d Sess. (Apr. 23-June I and July 2-Aug. 10, 200 I), General Assembly, Official Records, 55th Sess., Supplement No. 10 (UN Doc. A/56/l 0), at http://www.un.org/law/ i1clreports/2001/200Ireport.htm; James Crawford, The International Law Commission S Articles on State Responsibility (2002). 25 See DARS, art. 55. 26 Final Report of the Committee on Accountability of International Organizations, Section IV, Peacekeeping and peace enforcement activities, in The International Law Association, Report of the Seventy-first Conference (Berlin, Aug. 16-21, 2004), at 164-241,195 (2004). 27 United Nations, International Law Commission, Report on the work of its
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Where peace operations are conducted as subsidiary organs of the United Nations, as in the cases ofONUC or UNFICYP, liability of the United Nations may arise, provided that the latter have effective control over the conduct in question. 28 On the other hand, when the Security Council authorizes states to take necessary measures of peacekeeping and peace enforcement outside a UN chain of command, conduct of these forces is attributable exclusively to the states. 29 The responsibility of states is most important for the settlement of claims. In practice, it will hardly be replaced by a responsibility of international organizations. Responsibility of states also prevails in joint operations within a regional organization, or NATO,3o as the latter, although they have legal personality and may exercise a coordinating role including operational command, generally do not have full legal authority and competence for the conduct of operations, and they still depend on sovereign decisions taken by their member states. 31 In most cases they do not even have the budget and organizational means to process claims. Yet, there may be misunderstandings as to their coordinating role and responsibility. Under the Dayton SOFAs, claims for damage or injury caused by SFOR (Stabilization Forces in Bosnia and Herzegovina) shall be submitted through governmental authorities "to the designated NATO Representative."32 But, in fact, such claims are processed and settled by the respective national contingents; NATO as an organization is not involved more than in a capacity of supporting coordination between these national contingents. 33
56th Sess. (May 3-June 4 and July 5-Aug. 6, 2004), General Assembly, Official Records, 59th Sess., Supp. No. 10 (UN Doc. A/591l0), Ch. V: Responsibility ofInternational Organizations (Special Rapporteur: Mr. Giorgio Gaja); Third Report on responsibility of international organizations, UN Doc. A/CNA/553 (May 13,2005), at www.un. org/law/ilc/sessions/57 /57 sess.htm. 28 See the above-mentioned 2004 Report of the International Law Commission, supra note 26, at III, 112. See also Report of the Secretary-General on financing of United Nations peacekeeping operations (UN Doc. A/51/389), paras. 7-8, at 4. 29 Id. at 102, 111, 122. 30 See Torsten Stein, "Kosovo and the International Community. The Attribution of Possible Internationally Wrongful Acts: Responsibility of NATO or of its Member States?"; contra Alain Pellet, 'Timputabilite d'eventuels actes illicites-Responsabilite de rOTAN ou des Etats membres, "both in Chr. Tomuschat (ed.), Kosovo and the International Community 181-192, 193-202 (2002). 31 See Sascha Rolf Liider, Volkerrechtliche Verantwortlichkeit bei Teilnahme an "Peace-Keeping "-Missionen der Vereinten Naiionen 37ff, 165ff, 200-204 (2004). A different view is taken by Marten Zwanenburg, "Accountability of Peace Support Operations," 9 International Humanitarian Law Series 51ff, 338-340 (2005), based on a more general notion of international legal personality of the organization concerned, but not excluding concurrent or secondary responsibility of states. 32 See infra note 45, para. 15. 33 Jody M. Prescott, in Fleck, supra note 13, at 177-180.
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IV. STATUS OF FORCES AGREEMENTS AS TOOLS TO IMPROVE PROTECTION Special agreements concluded for each single mission would contribute to clarity, avoid misunderstandings and provide accepted terms for solving conflicts. Decades ago, the United Nations elaborated a Model Status of Forces Agreement for Peacekeeping Operations34 and also a Model Agreement between the UN and Member States Contributing Personnel and Equipment to United Nations Peace-Keeping Operations. 35 But, although both texts had been prepared with great care, they were never adopted in treaty form. For UN-led peace operations, SOFAs or SOMAs should be concluded between the United Nations and states on whose territory peace operations are deployed. For operations not under UN command and control, such agreements should be concluded between the sending and the receiving state. But practice shows that normally, in the preparation of peace operations, there was not enough time for complex treaty negotiations in which more than one department (foreign affairs, defense, interior, justice, finance) would be affected on the side of states. States prefer to provide their contingents on an ad hoc basis, thus maintaining full command and control and the authority to withdraw their personnel at short notice whenever they would consider it necessary. At least on the side of the receiving state, there was and will be a notorious lack of professional expertise on status issues. In failing states, negotiations will be altogether impossible.3 6 Occasionally, the Security Council has drawn attention to the need of a SOFA for peace operations. In 1993 the government of Georgia was called to conclude expeditiously a SOFA with the United Nations to facilitate deployment of the UN Observer Mission in Georgia (UNOMIG).J7 For the UN Mission in Ethiopia and Eritrea (UNMEE), the Security Council requested both governments to conclude, "as necessary," SOFAs within 30 days; pending conclusion, the Model SOFA of October 9, 1990, should apply provisionally.38 Ethiopia did conclude a SOFA, but Eritrea did noP9 Similar requests were made with respect to other missions, e.g., the UN Missions in Sierra Leone (UNAMSIL)40 and the Democratic Republic of Congo (MONUC).41 The language used in all these resolutions shows certain interesting deviations between the English 42 34
UN Doc. A/45/594 (Oct. 9, 1990), reprinted in id., Annex F. UN Doc. A/461185 (May 23, 1991), reprinted in id., Annex G. 36 For a general overview of existing regulations of the status of peace operations, see A.P.v. Rogers, "Visiting Forces in an Operational Context," in Fleck, supra note 13, at 533-557. 37 SC Res. 858 (1993), Aug. 24, 1993, para. 8. 38 SC Res. 1320 (2000), Sept. 15,2000, para. 6. 39 Zacklin, supra note 5, at 119. 40 SC Res. 1270 (1999), Oct. 22, 1999, para. 16. 41 SC Res. 1291 (2000), Feb. 24, 2000, para. 10. 42 "[P]ending the conclusion of such an agreement the model status-of-forces agreement dated 9 October 1990 (A/45/594) should apply provisionally." 35
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and the French 43 texts. But it appears that, in practice, it does not really make a difference whether the UN Model SOFA "should" or "will" or even "shall" apply. It is essential to have clear provisions being implemented, and this requires explicit efforts undertaken by responsible authorities. For UNMEE the Lessons Learned Report recorded a requirement to negotiate SOFAs as early as possible to secure the mission's full legal rights and protection, even recognizing that political exigencies may militate against such negotiations. The Report underlines that: whether there be a specific agreement with the host country or the imposition of the Model SOFA, it is suggested that greater efforts could be made to ensure that there is a meeting of minds between the host country and the mission on the legal rights and protection to be afforded to the mission and its staff.44 This reveals that the conclusion and joint implementation of SOFAs, although they may not be considered "necessary" within the meaning of the relevant SC resolutions, could have facilitated operations and improved cooperation with competent authorities of the host country. For peace operations conducted outside a UN chain of command, such as the larger operations in the Former Yugoslavia and Afghanistan, SOFAs have been concluded more frequently.45 States participating in these missions obviously preferred to set up clear regulations rather than applying general principles. This process was influenced by the normal NATO practice to conclude SOFAs for peacetime deployments. But the provisions of the NATO SOFA and its extension to the new partners of the Alliance, the PiP SOFA,46 should be considered as illustrative examples rather than exact guidelines for regulations 43
"[Crest Ie modele d'accord sur Ie statut des forces en date du 9 octobre 1990
(A/45/594) qui s'appliquera provisoirement."
44 United Nations Mission in Ethiopia and Eritrea (UNMEE) Lessons Learned Interim Report: Updated Plan of Action (Nov. 24, 2004), at http://www.un.orglDepts/ dpko/lessons/, at 36. 45 See the two similar SOFAs for SFOR, concluded between the North Atlantic Treaty Organization (NATO) on the one side and the Republic of Croatia and the Republic of Bosnia and Herzegovina on the other side, Dayton Accords, Appendix B to Annex 1A (Nov. 23, 1955), 35 ILM 1, at 102 (1996); Military Technical Agreement between the International Security Force (KFOR) and the government of the Federal Republic of Yugoslavia and the Republic of Serbia (June 4, 1999), UNMIKlKFOR Joint Declaration (Aug. 17, 2000) and UNMIK Regulation No. 20QO/47 On the Status, Privileges and Immunities of KFOR and UNMIK and their Personnel in Kosovo (Aug. 18, 2000), all reprinted in Fleck, supra note 13, Annexes p and E; Military Technical Agreement Between the International Security Assistance Force (lSAF) and the Interim Administration of Afghanistan (Jan. 4,2002), at http://www.operations.mod.uklisafmta.doc, Annex A. 46 Agreement Among the States Parties to the North Atlantic Treaty and the Other States Participating in the Partnership for Peace Regarding the Status of their Forces (PfP SOFA) of June 19, 1995, reprinted in Fleck, supra note 13, Annex B.
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on peace operations. The close cooperation between sending and receiving states within NATO and its Partnership for Peace Program includes shared responsibilities between sending and receiving states, e.g., for the exercise of jurisdiction and also for the settlement of claims, which, in the case of peace operations, may be impossible or even unacceptable. Quite different from allied training exercises, a receiving state should not have concurring jurisdiction on members of a peace operation and, in most cases, it will also be unable to participate in the settlement of claims. The UN Model SOFA provides acceptable solutions for peace operations both within and outside UN command. The freedom of entry and exit, the sending state's exclusive jurisdiction and its responsibility for the settlement of claims, the right of wearing uniforms and carrying arms, the acceptance of permits and licenses for vehicles and aircraft, tax and customs exemptions, the receiving state's commitment to facilitate support and the entitlement of the sending state to recruit local personnel in the receiving state, which then also enjoy certain privileges and immunities: these issues are all appropriately regulated in the UN Model SOFA, even if certain supplementary provisions may be recommendable for specific missions. A binding multilateral convention using the provisions of the UN Model SOFA would be a good solution, one that deserves strong efforts by many players in the international community. There would still be the cumbersome process of collecting ratifications by all potential receiving and sending states. States parties to an armed conflict should be given an opportunity to formally adhere to the new instrument even before their decision on ratification or accession can be finalized. For non-international armed conflicts, special provisions should be made to the effect that armed opposition groups undertake to follow the rules without such undertaking in any way implying a formal recognition of such groups by any state. As a viable alternative to ratification or accession, rules and regulations applicable to a peace operation could be made mandatory by a Security Council decision that UN members, pursuant to Article 25 of the Charter, shall accept and carry out in accordance with the Charter. 47 The Security Council has not taken such decision so far, but it has created an interesting precedent in a related matter by adopting, under Resolution 827 (1993). the Statute for the International Criminal Tribunal for the FormerYugoslavia48 and, under Resolution 955 (1994), the Statute for the International Criminal Tribunal for Rwanda. 49 In the case of 47 D. Fleck & Michael Saalfeld, "Combining efforts to improve the legal status of UN peace-keeping forces and their effective protection," in International Peacekeeping 82-84 (1994). 48 Statute for the International Criminal Tribunal for the former Yugoslavia, UN Doc. S125704 (May 3, 1993), at 36--40; 32 ILM 1192-1195, available at www.un.orglicty. 49 Statute for the International Criminal Tribunal for Rwanda, reprinted in Adam Roberts & Richard Guelff(eds.), Documents on the Laws of War 615 (2000), available at www.ictr.org.
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the Special Court for Sierra Leone, created pursuant to SC Resolution 1315 of August 14,2000, it took more than a year to conclude the relevant agreements between the United Nations and Sierra Leone. 50 Such time would normally not be available for deployments in peace operations. It is true that in the cases of the two tribunals for the Former Yugoslavia and Rwanda the Security Council confined itself to establishing procedural statutes, not the law to be applied. The applicable rules of national criminal law and IHL were just referred to, not created by the Security Council. But SOFA provisions, too, are generally confined to procedural issues. The settlement of substantial law issues in a SOFA would be an exceptional case and could be accepted considering the necessity of such regulation and the fact that neither national law nor international customary law provides adequate solutions in this respect. 51 Where an agreement on the status of an operation cannot be concluded expeditiously, there is no authority other than the Security Council to put appropriate provisions into effect. The recent practice, to request the receiving state to conclude, "as necessary," a SOFA within 30 days (otherwise the Model SOFA would apply provisionally52), is not sufficient for an effective legal protection of the military and civilian personnel involved. Legal clarity and the interest in the effective performance of a UN operation call for a more precise solution. Hence, the Security Council, when authorizing a peace operation or renewing its mandate, should clarify the status situation of the personnel involved and should not hesitate to enact appropriate SOFAs, duly bearing in mind its responsibility for the status and protection of peacekeepers.
V.
PRACTICAL MEASURES TO ENSURE SAFETY AND SECURITY OF PEACEKEEPERS
UN policy on the security and safety of peacekeeping personnel is stated in the Handbook on UN Multidimensional Peacekeeping Operations. 53 While admitting that, in UN terminology, references to safety and security are sometimes used interchangeably, 54 the Handbook defines security issues as comprising external threats ranging from military assault to petty crime, and safety 50 Agreement between the United Nations and Sierra Leone on the Establishment of the Special Court for Sierra Leone and Statute of Jan. 16,2002, at http://www.sierraleone.org/specialcourtagreement.html. 51 See supra note 14 and accompanying text. 52 See supra notes 38, 40-43 and accompanying text. 53 Handbook on United Nations Multidimensional Peacekeeping Operations, Peacekeeping Best Practioce Unit, Department of Peacekeeping Operations, United Nations, December 2003, at http://pbpu.unlb.org/pbpu/handbook/START-Handbook.html, Ch. XI. 54 The 1994 UN Safety Convention, supra note 17, is, in fact, dealing with security rather than safety.
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concerns as dealing with occupational hazards of any field deployment, including, e.g., the handling of equipment or exposure to tropical diseases. It recommends to detail the primary responsibility of the host government for the security and protection of UN staff members, their spouses, dependants, property and the property of the Organization, and to layout relevant provisions in SOFAs or SOMAs. Close cooperation between the Department of Peacekeeping Operations (DPKO) and the Office of the United Nations Security Coordinator (UNSECOORD) is described. As explained in the Handbook, UNSECOORD's guidelines and procedures for security management cannot fully accommodate peacekeeping operations, as the latter have special mandates and are often deployed in situations where other activities must be suspended. Nevertheless, support provided by UNSECOORD, in particular in terms of advice and guidance on the security and protection of UN personnel, security assessment missions, the management of hostage incidents, training and reviewing mission security plans, may foster cooperation. The current Web site of the UN Peacekeeping Best Practice Unit,55 rather than providing specific legal information on status of forces issues, deals with important efforts, at the strategic and tactical levels, to increase the protection of personnel. In the light of recent terrorist attacks against peacekeepers in Iraq, the Democratic Republic of the Congo and other countries, the United Nations is reviewing its systems and procedures for security and safety both at Headquarters and in the field. 56 Current efforts in the General Assembly are designed to enhance security and protection of personnel involved in humanitarian assistance and peace operations. 57 The General Assembly urges states to take necessary measures to ensure full and effective implementation of the relevant principles and rules of international law and to consider becoming parties of the relevant international instruments. It strongly condemns all threats and acts of violence against humanitarian personnel and UN and associated personnel and calls upon states to provide adequate and prompt information in the event of the arrest or detention of such personnel. Special attention is drawn to security training and the need for a strengthened and unified security management system for the United Nations, both at Headquarters and field levels, the need for enhanced coordination and cooperation and the urge to allocate adequate resources, including telecommunication resources and contributions to the Trust Fund for Security of Staff Members. The Secretary-General is requested to submit an updated report at the 16th session. See http://www.un.org/Depts/dpko/lessons/. Implementation of the recommendations of the Special Committee on Peacekeeping Operations. Report of the Secretary-General, UN Doc. A/58/694 (Jan. 26, 2004), at http://www.un.org/Depts/dpko/lessons/. 57 GA Res. A/Res/59/211 (Feb. 28, 2005)-Safety and security of humanitarian personnel and protection of United Nations personnel. 55 56
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As a credible military deterrent to attacks against the security and safety of peace operations beyond best-case planning, a strategic reserve for the Secretary-General has been proposed. 58 It might be held in one ore more troop contributing states, with a pre-approved mandate to deploy to established missions within seven days' notice. 59 While this could enable the SecretaryGeneral to react more quickly to new challenges, both troop contributing countries and the Security Council might prefer to take ad hoc decisions on the basis of current assessments rather than approving any automatic decision-making process beforehand. Yet the political authority of the SecretaryGeneral and the ability to react more quickly against threats to peacekeepers and the civilian population must be strengthened, if member states want to take their responsibility serious.
VI. CONCLUSIONS The protection of peacekeepers is an ever growing issue in modern peace operations, in which traditional peacekeeping is increasingly mixed with peace enforcement elements. Effective measures must be based on clear legal provisions and their full implementation. Still today, many peace operations are conducted without agreed status regulations. But general principles of international law and custom are not precise enough to ensure unequivocal implementation of functional immunity of peacekeepers within a receiving state. In the interest of both the effectiveness of peace operations and the individual protection of the military and civilian personnel deployed or recruited in the host country, the present situation must be improved. For this purpose legal immunities and privileges for UN and associated personnel must be clarified, fully respected and effectively implemented. This should not be misunderstood as providing impunity in the event of wrongful acts. For UN and associated personnel, sending states have the primary responsibility to ensure criminal jurisdiction and the settlement of claims. Where peace operations are conducted under UN effective control, liability of the United Nations may arise. International organizations participating in peacekeeping and peace enforcement activities bear a coordinate responsibility with troop contributing states for ensuring compliance with the applicable rules of international humanitarian law in operations conducted under their control or authority. 58 Report of the Secretary-General to the Special Committee on Peacekeeping, UN Doc. A/59/608 (Dec. 15,2004). 59 David Harland, United Nations Peacekeeping Today: Current Challenges and Required Responses, UNITAR/IPS Conference "United Nations as Peacekeeper and Nation-Builder: Continuity and Change-What Lies Ahead?," Hiroshima, Japan, Mar. 28-29,2005, at http://www.un.org/Depts/dpko/lessons/.
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On the basis of existing models, a Status of Forces Agreement for Peace Operations should be adopted. Considering the different size, duration and mission of current peace operations, supplementing provisions may be necessary for particular cases, but this does not exclude the need and possibility to achieve a generic solution of most issues. Where the SOFA is not in force in a given situation, yet, it should be enacted by the Security Council, when an operation is authorized. The enactment of status provisions by the relevant SC resolution would be far more appropriate than leaving the matter to negotiation between participating states when operations are being planned or relying on customary law and general principles altogether. SOFAs cannot replace practical measures of protection, but clear provisions may help to avoid misunderstandings. They would underline the shared responsibilities for security and protection of peacekeepers and facilitate the cooperation between the peacekeeping force and competent authorities of the host country.
CHAPTER 7 SO-CALLED "NON-LETHAL" WEAPONS IN PEACE SUPPORT OPERATIONS Gergely T6th*
I.
INTRODUCTION
There are many misconceptions regarding non-lethal weapons. Some believe that they offer the choice of bloodless war, while some consider them as means of enslavement of the domestic/occupied population. While, in some circumstances, they may allow for a gradual use of force, in others they may be used to facilitate the killing of combatants incapable of defense. Still others point out the excessive pain and suffering such devices can cause, together with the risk of escalation of conflicts in which these are being used and a lowering of the standard of the use of armed force. I Nevertheless, they are being introduced to the arsenals of the most developed nations. Given the fact that these very same nations are engaged in various peace support operations (PSO), there is a high probability of them being used in these circumstances too. Before providing a legal overview of this very complex and insufficiently discussed topic, some terminology and basic concepts need to be clarified. As usual with new and quickly evolving technological items, there is neither an agreed terminology for this class of weapons, nor an agreed definition. In fact, there is not even a commonly accepted name. Some call these weapons "low lethal," "non-lethal," "mission kill," "soft kill" or "less than lethal."2 While the phrase "non-lethal" hides the fact that these systems indeed can be lethal, and that fatalities are inherently caused by their design,3 "non-lethal" is so widely used and accepted, that it will be used as a working definition through-
* Ph.D. Candidate, Eotvos Lonind University of Sciences, Faculty of Law, Doctoral School. See, for example, 28-05-2003 Audio Collection Coping with the weapons of tomorrow: LSE 2003 debate, at http://www.icrc.org/Web/eng/siteengO.nsf/iwpList74/ FF565 EEA 7979351 AC 1256D3400525EEF. LtCol Alan W. Debban "Disabling Systems-War-Fighting Option for the Future," Airpower Journal (Spring 1993). See the arguments made by Robin Coupland, supra note 1. 757
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out this chapter. The weapons program of the United States, the country mostly interested and most advanced in the field of non-lethal weapons, needs the closest examination, as it is most likely the one to be made practical use of in the near future. Although there is no agreed definition to cover these systems, there are several common elements trying to circumscribe them. Due to the many technologies involved, it is impossible to coin a "technical" definition. The problem should rather be approached considering the intention of the user of these weapons and the result generated by use thereof. Hence, it is possible to find definitions like "the application of technology that allows force to be projected while minimizing the potential lethal consequence,"4 or, as the US Department of Defense (DoD) Directive 3000 puts it: "Non-lethal weapons that are explicitly designed and primarily employed so as to incapacitate personnel or materiel, while minimizing fatalities, permanent injuries to personnel, and undesired damage to property and the environment."5 NATO uses a very similar-however, more accurate and realistic-definition: Non-lethal weapons are weapons which are explicitly designed and developed to: incapacitate or repel personnel, with a low probability of fatality or permanent injury; disable equipment, with minimal undesired damage or impact on the environment. 6 As evidenced by NATO's definition, there are two broad categories of nonlethal weapons: anti-personnel and anti-materiel. While there is a slight possibility of anti-materiel weapons being used in PSOs, since they are mostly weapons of the strategic domain, aimed at large-scale disabling of vital infrastructures, most anti-personnel weapons have been designed for peace support operations-their aim being the neutralizing of hostile persons or crowds, without causing politically sensitive casualties. Therefore, observations in this chapter will be restricted to the latter category, although the use of anti-material weapons in PSOs (particularly peace enforcement operations, without the consent of parties) cannot be excluded a priori. In order to analyze anti-personnel weapons from the legal standpoint, two fundamental questions need to be answered: firstly, whether their usage con4 John B. Alexander, "Putting Non-Lethal Weapons in Perspective," at http:// www.dtic.mil/ndia/nld4/alexander.pdf. Defense Joint Non-Lethal Weapons Program Home Page, at http://iis.marcorsyscom. usmc.mil/jnlwd/. RTO Technical Report, TR-SAS-040, "Non-Lethal Weapons and Future Peace Enforcement Operations," available at http://www.rta.nato.int/Main.asp?topic=sas.htm#.
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forms to the principles of proportionality and distinction under the laws of armed conflict? and to specific treaty law forbidding or restricting the use of certain means and methods of warfare. The second cluster of questions involves political and military problems, namely whether the use of non-lethal weapons helps save lives in combat, or, to the contrary, whether it opens up a Pandora's Box by loosening legal prohibitions on certain classes of weapons. These questions will be examined only to the extent that they have legal implications. But before venturing into answering them, an overview of the technologies currently used or being developed will have to be provided. Since, as pointed out, actual systems are rather divergent in their nature, the above-mentioned questions will be addressed separately, with a focus on the effects of these systems rather than on their technology. Another aspect to be recalled is that many of them can be used both in a legal and illegal way. Then, the existing legal framework will be examined. While so far (except for the CCW 1995 Additional Protocol on Blinding Laser Weapons 8) there has been no treaty specifically dealing with so-called non-lethal weapons, existing treaties contain several provisions that have an effect on these weapons systems. The final section will try to assess the legality of some of the existing or planned weapons by applying the existing legal framework and, in the affirmative case, under what circumstances they can be applied.
II. TYPES OF NON-LETHAL WEAPONS Non-lethal weapons can be classified according to their functions or technology. This study will focus on the functional elements of non-lethal weapons, since the intent is to give a practical overview and assessment of the legality of these new technologies, rather than their technology. The US Joint Concept for Non-Lethal Weapons established six functional areas, divided into two broad categories: counter-personnel and counter-materiel weapons. 9 Counter-personnel weapons include the following sub-categories of capabilities. 10 Throughout this chapter, I will use both "international humanitarian law" and "law of armed conflict" as interchangeable terms. Additional Protocol to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (Protocol IV on Blinding Laser Weapons), Oct. 13, 1995, reprinted in 35 ILM 1218. Joint Concept for Non-Lethal Weapons, Jan. 1998, at 7, available at http:// iis.marcorsyscom.usmc.miiljnlwd/Documents/JointConceptforNLWJan98.PDF. 10 NATO doctrine uses different methods: they draw up six likely operational
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Crowd Control: This capability consists of the means to influence the behavior of a potentially hostile crowd, as well as the capability of controlling a rioting mob, two scenarios widely encountered in peace support operations. Incapacitation of Personnel: This capability is intended to provide for a means to capture specified individuals, such as those hiding in a crowd, without harming individuals nearby. "Incapacitation" is achieved if the weapon's effects result in either physical inability (real or perceived) or mental disinclination to act in a hostile manner. The effects should be reversible, in accordance with the guiding principles. They should be able to be directed either at a group or at individuals. Area Denial to Personnel: This capability can include physical barriers or systems that cause discomfort (or pain) to those who enter the denied area. It may provide alternatives to anti-personnel landmines. 11 However, their drawbacks seem similar to those of mines, as they do not distinguish between civilians and combatants and, as it will be clarified later, probably they are also not completely harmless as claimed by they developers. Clearing Facilities of Personnel: This could facilitate military operations in urban terrain (MOUT), by reducing the risks of non-combatant casualties and collateral damage, while simultaneously minimizing the advantages accruing to an enemy defending a built-up area. By looking at the technologies available to provide the above-mentioned effects, it may be concluded that some of these already exist, some are close to being realized, whereas others belong still to the domain of science fiction. Counter-personnel Non-Lethal Weapons can be described as follows: TECHNOLOGY
DESCRIPTION, EFFECTS
Kinetics/Mechanical Entanglement munitions
Mainly nets.
Non-penetrating projectiles
Stinger grenades, wax, wood and plastic bullets.
Water cannons
May be used with chemical additives.
Acoustics Audible sound
Low level annoying sounds to disperse crowds.
Infrasound
Incapacitation, disorientation, nausea, vomiting, bowel spasms; effects stop when generator is turned off, no lingering physical damages. 12
scenarios, and then examine the needs of each. However, the doctrine also lists "basic capabilities" (16 of them), mostly answering to those required by the US doctrine. RTO Technical Report, TR-SAS-040, supra note 6, at 2-4. II James F. McNulty, "A Non-Lethal Alternative to Anti-Personnel Land Mines, Non-Lethal Defense III," Johns Hopkins Applied Physics Laboratory, Feb. 25-26 1998, available at http://www.dtic.mil/stinet/ndiaINLD3/nulty.pdf. 12 H. Edwin Boesch, Christian G. Reiff & Bruce T. Benwell, "A Prototype HighInfrasonic Test Chamber," available at http://www.dtic.mil/ndia/nld4!boesch.pdf.
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Infrasound from non-linear superposition of two ultrasound beams (tested by the UK)
Intolerable sensations.
Very Low Frequency noise
Disorientation, vomiting fits, bowel spasms, uncontrollable defecation.
Chemicals Adhesive agents
Quick-setting polymer foams. Immobilize targets and require special solvents to remove. Mainly sticky foams.
Barriers
Dense, rapidly expanding aqueous bubbles. Isolates and immobilizes to control evacuation or escape. May be used with odors, dyes, irritants etc. 13
Calmative agents
Temporarily incapacitate personnel, changes behavior.
Hallucinogens
Narcotics that disorient, confuse and incapacitate.
Irritants
Pepper spray, gases, etc. Causes temporarily but intense and debilitating pain.14
Lubricants
Turns dirt into chemical mud and makes surfaces slippery. Also possible to use in anti-material role.
Neuroblockers
Tranquilizers darts and anesthetic bullets. Causes incapacitation.
Neuro-inhibitors
Loss of neurological control. The nervous system "overheats" and gets out of control.
Taggants
Tracks personnel
Directed energylelectromagnetics Electronic rifles
Includes Taser, electronic/chemical darts and stun guns. Debilitates central nervous system, short-circuiting human synoptic pathways. Causes incapacitation. 15
Pulsed High Power Microwaves (HPM)
Induces confusion, stupor or coma.
Low energy lasers
May be used to temporarily blind personnel. 16
Optical munitions
Flash bang grenades, pulsing light, etc.
Obscurants
Inhibits observation.
Strobe lights
Pulsed high-intensity light. Disorients.
Plasma Weapons
Produces mostly kinetic effects.
13 Larry Bickford, "Odorous Substances forNon Lethal Applications," available at http://www.dtic.mil/ndia/nld4lbickford.pdf. 14 Robert 1. Kaminski, Steven M. Edwards & James W. Johnson, "Assessing the Incapacitative and Deterrent Effects of Oleoresin Capsicum During Resistive Encounters with Police," available at http://www.dtic.miJ/ndia/nld4/kamin.pdf. 15 "M26 Less-Lethal EMD Weapon," at http://www.dtic.mil/ndia/nld4/smith.pdf. 16 However, see Louise Doswald-Beck (ed.), Blinding Weapons, 22-23 (ICRC 1993).
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It is next necessary to examine the existing legal framework, namely, international humanitarian law (IHL), imposing limits-among other things-on means and methods of warfare. Most of these rules are a legacy of the international system of the Cold War, designed principally to counter a large-scale all-out war, but that, nevertheless, continue to be binding in today's new international context.
III. THE LEGAL FRAMEWORK
For any legal regime to function, it is imperative that it is implemented by states. The obligation to review the legality of new weapons was agreed on by states only in 1977. Article 36 of Additional Protocol I to the Geneva Conventions l7 stipulates that high contracting parties have the obligation to assess the legality of weapons systems before their introduction. But what kind of rules do they have to take into account when conducting such a review? Article 35 of the same Protocol formulates the maxim, long considered a customary rule ofIHL,18 that arms that cause unnecessary suffering or superfluous injury are prohibited: (1) In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited. (2) It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. Even states that unfortunately did not ratify Additional Protocol I recognize it as a customary principle of the laws of armed conflict. 19 The International Court of Justice confirmed this in its advisory opinion on nuclear weapons. 20 This principle dates back to the 1868 St. Petersburg Declaration21 and is present in most of what is called the "Hague Law," including the Hague Regulations of 1907. 22 17 Protocol Additional to the Geneva Conventi(jns of Aug. 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts (AP I), 1125 UNTS 3. 18 1 Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law 237 (2005). 19 Ch. 7, The Law a/War, serving as a framework for U.S. Judge Advocates, available at http://ogc4.hq.dla.millhtmllpractice/contingency/manual/chap07.htm. 20 Legality of the Threat or Use of Nuclear Weapons, General List No. 95, Advisory Opinion of the International Court of Justice, July 8, 1996, paras. 78-79,35 ILM 809 (1996). 21 Declaration Renouncing the Use, in Time of War, of certain Explosive Projectiles, 18 Martens Nouveau Recueil (ser. 1) 474, 138 Conso!. TS 297. 22 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulation concerning the Laws and Customs of War on Land, 3 Martens Nouveau Recueil (ser. 3) 461, 187 Conso!. TS 227.
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But what is "superfluous injury" and "unnecessary suffering"? Treaty law does not give a definition-and rightly so, as with emerging new technologies, the types of injuries and associated suffering change, too. However, there is a very interesting and useful approach to this problem, undertaken by the JCRe's SIrUS (Superfluous Injury or Unnecessary Suffering) Project,23 initiated in March 1996. Unlike previously, when arguments to determine whether a weapon was designed to cause such effects were mainly political/philosophical (a weapon being "abhorrent" or "inhumane"), the SIrUS project describes effects in medical terms, thereby providing a much more objective basis. The Hague Regulations also make an important link between law and ethics, particularly needed in areas where technology develops more rapidly than the law. They state that: Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience. 24 This provision is called the Martens Clause, and it greatly enhances IHL's ability to keep up with new developments. As it will be shown, its application has a great effect on the regulation of non-lethal weapons. Another important principle to be borne in mind is that of distinction. This forbids the use of weapons that do not discriminate between legitimate military objectives and civilian personnel or property. It means that strikes can only be directed against specific military objectives, and that the nature of the attack cannot treat military and civilian persons or objects alike. 25 As for specific international legal instruments, the following treaties need to be taken into account: Treaty relating to the Use of Submarines and Noxious Gases in Warfare,26 and the Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or Other Gases, and of Bacteriological Warfare of June 17, 1925.27 23 The SIrUS Project and Reviewing the Legality of New Weapons, at http:// www.redcross.int/en/conference/ws_reports/ws_report9.asp. 24 Convention (IV) respecting the Laws Customs of War on Land and its annex: Regulation concerning the Laws and Customs of War on Land, 3 Martens Nouveau Recueil (ser. 3) 461, 187 Conso!. TS 227, art. 22. 25 AP I, supra note 17, para. 4. 26 Treaty relating to the Use of Submarines and Noxious Gases in Warfare, Washington, 25 LNTS 202 (1922). 27 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Geneva, 94 LNTS 65.
ana
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Biological Weapons Convention of April 10, 1972. 28 Chemical Weapons Convention of January 13, 1993. 29 CCW Protocol IV on Blinding Lasers.30 The 1922 Washington Treaty relating to the Use of Submarines and Noxious Gases in Warfare and the 1925 Geneva Protocol were generally understood as a prohibition on the first use of the named weapons. However, they do not prohibit the development and stockpiling of such agents and development of their means of delivery. The Biological Weapons Convention goes much further, banning virtually all activities associated with programs using biological or toxin agents. What is important is that it makes no difference whether the intent of the user is lethal or not. 3! The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction of January 13, 1993. Chemical Weapons Convention (CWC) prohibits "under any circumstances" almost all activities connected to chemical weapons. 32 Prohibited agents are those are "specifically designed to cause death or other harm," resulting in "death, temporary incapacitation or permanent harms to humans and animals." Also this makes no distinction on the basis of the intent of the user. According to its definition, "toxic chemicals" are not only lethal ones, but also "those that which through its chemical action on life processes can cause ... , temporary incapacitation or permanent harm to humans or animals."33 Moreover, each state party undertakes not to use riot control agents as a method of warfare. 34 Riot control agents are "any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure."35 Its restrictions on non-lethal weapons are therefore twofold: they prohibit incapacitating agents and the use of riot control agents in combat.
28 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (BWC), of Apr. 10, 1972, reprinted in 11 ILM 3320. 29 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC) of Jan. 13, 1993, reprinted in 32 ILM 800. 30 Additional Protocol to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (Protocol IV on Blinding Laser Weapons) of Oct. 13, 1995, reprinted in 35 ILM 1218. 31 BWC, supra note 28, art. 1. 32 CWC, supra note 29, art. 1, para.!. 33 !d., art. 2, para. 2. 34 Id., art. 1, para. 5. 35 Id., art. 2, para. 7.
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Protocol IV of the CCW is the first legal instrument of IHL specifically adopted in response to non-lethal research. It bans laser weapons specifically designed to cause permanent blindness. It also requires states to adopt measures to protect unenhanced vision of persons against other sources of lasers in armed conflicts. It is evident from the documents leading to the adoption of this Protocol that states considered the consequences of such laser weapons so abhorrent (and lasting after the end of the conflict) that, even though they are not lethal, their employment would most likely violate the standard set by the Martens Clause.
IV. EXAMINATION OF DIFFERENT WEAPONS SYSTEMS IN THE LIGHT OF IHL
Weapon systems have to undergo legal review throughout the world before being fielded. 36 One good example is the US. Defense Department's regulation requiring that any new weapon shall undergo a legal review by the Judge Advocate General (JAG) of the military department involved, to ensure that the weapon's intended use is consistent with the "obligations assumed by the United States Government under all applicable treaties, with customary international law, and, in particular, with the laws of war."37 Further, the acquisition and procurement of weapons must be consistent with all applicable treaties and customary internationallaw. 38 Each service of the US. armed forces is also to ensure that any planned activities, which could reasonably generate questions concerning compliance with arms control agreements to which the US is a party, must first be cleared by the Under Secretary of Defense for Acquisition and Technology, in coordination with the Office of the Secretary of Defense General Counsel and the Under Secretary of Defense (Policy). According to the rules, a legal review must take place before the award of the engineering and manufacturing development contract and before the award of the initial production contract. 39 Other states developed more or less corresponding systems, usually with the requirement of legal review at each turning point in the development program. 40 36 "New weapons and the law," ICRC News 01/0, at http://www.jcrc. org/Web/Eng/siteengO.nsfliwpList7 4/E452B60D56294122C 1256B66005F50DD. 37 Army Regulation 27-53, Review of Legality of Weapons Under International Law, at http://www. fas.org/irp/ doddir/ army/ ar2 7-5 3. pdf. 38 Isabelle Daoust, Robin Coupland & Rikk~Jshoey, "New wars, new weapons? The obligation of States to assess the legality of means and methods of warfare," 846 International Review o/the Red Cross 345-363 (2002). 39 The Department of the Navy Judge Advocate General (JAG) conducts this review ofNLWs for the Navy and the Marine Corps. 40 For comparison of different national regimes, see Justin McClelland, "The review of weapons in accordance with Article 36 of Additional Protocol I," 850 International Review a/the Red Cross 397--405 (2003).
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A. Kinetic Energy Weapons
Kinetic non-lethal weapons, especially those using blunt force, are among the oldest and still most widely used systems. They have been used in many countries, especially by law enforcement agencies, since the mid-20th century. Their introduction to military arsenals is a fairly new development, but, due to their domestic use, there is a large database on their effects, which simplifies legal review. There are already several non-lethal weapons systems that have been examined in the United States according to the described procedure, including stinger grenades, "bean bags" (shotgun ammunition that folds out after leaving the barrel, thus making the surface of impact much bigger, avoiding penetration of the body), and rubber pellets.41 All these have been found in line with legal requirements. However, the outcomes of these assessments are not available to the public. So, whereas it can be assumed that most of the above-mentioned devices are probably legal-given that they used in the their intended way-the diversity of the targets (size, weight, gender, age, health) and the distance between the target and the operator needs to be taken into account, too. Most of these weapons can indeed be quite lethal if used below ten meters of distance. While in principle, most kinetic energy weapons do discriminate (allowing the operator to aim at individuals), with distance their accuracy is greatly reduced. Therefore, their possibly indiscriminate nature must be taken into account, too, especially if the operator is under severe stress, as occurs in most situations involving the use of weapons. An interesting insight into the practical applicability of such systems can be gained from their use in detention operations in Iraq, at Camp Bucca. 42 While the M 10 12 beanbag round 43 of the 12-gauge shotgun was effective for its use by the Military Police, in that it delivered the "most punch," its short range greatly limited its effectiveness in that prisoners learned to avoid areas of the detention camp that were in range of the weapon. Rounds (M 1006 sponge round, 44 M 1029 area round) from the M203 grenade launcher were much more 41 US Navy Dept., Judge Advocate General [hereinafter JAG], memoranda: "Legal Review of Stinger Grenades," Jan. 25,1995; "Legal Review of 12 Gauge Shotgun Bean BaglRubber PelletIWood Baton Rounds," Jan. 30, 1995; "Legal Review of 40 mm Rubber Pellet/Foam Rubber Multiple Baton/Bean Bag/Wood Multiple Baton Rounds," Jan. 30, 1995; see http://www.pica.army.mil/orgs/fsac/aiCmo/xm9311html. 42 Neil Davison-Nick Lewer, "Bradford Non-Lethal Weapons Research Project (BNLWRP)," Research Report No.7, May 2005, at 23, available at http://www.bradford.ac. ukl acad/nlw /research_reports/ docs/BNLWRPResearchReportN 0 7_May05. pdf. 43 "MI012 12-Gauge Nonlethal Point Target Cartridge Round," at http://www. globalsecurity.org/military/systems/munitions/m I OI2.htm. 44 "MlO06 Sponge Round (Point)/40MM Non-Lethal Round," at http://www.globalsecurity.org/military/systems/munitions/40-nl.htm.
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effective, but when riots broke out, restoration of order was only possible by resorting to lethal rounds, killing four prisoners. The M 1029 area round also posed the problem of affecting surrounding prisoners; therefore, could not always be used in a discriminate way. Finally, a general observation was that non-lethal weapons were best used as a "compliance tool" rather than an effective replacement for traditional, lethal weapons. In conclusion, it can be said that kinetic energy weapons pose the least challenge from the legal point of view: their effects are well known, and, with proper rules of engagement (ROE) and training (regarding targets, proper range, etc.), most of them can be used in a manner consistent with IHL. However, even in these cases, it has to be kept in mind that sometimes these weapons inherently cause fatalities, as experienced by law enforcement agencies. 45 Changes in the design (such as the new Attenuated Energy Projectile, replacing the L21Al baton round in the UK)46 may mitigate some effects, but no break-through in this area should be expected: kinetic energy weapons, as they stand today, have almost reached the limits of their capabilities. Inherently indiscriminate systems, such as the above-mentioned MI029 or the M5 Modular Crowd Control Munition (MCCM, also in use in Iraq)47 pose greater challenges for the operator, as they can be used only when the risk of "collateral injury" is excluded. The other problem is that, in most circumstances, it is difficult to determine how to avoid injury to sensitive parts of the body (eyes, neck, etc.).
B. Acoustic Weapons Acoustic weapons are close to becoming a reality, both on the battlefield and elsewhere. The idea to use them is not new. Already in the 1940s Germany experimented with such instruments. "Flash-bang" grenades have been in use for decades, mostly by Special Forces. Their aim is to distract enemy personnel, thereby making it easier to neutralize them. An example is the M84 Stun Grenade. 48 However, these grenades are based on the same principles as conventional, lethal weapons, and their effects are also very similar, except fragmentation. Therefore, their use does not pose a great challenge to IHL. Currently 45 CNN.com (2004), "Boston police accept 'full responsibility' in death of Red Sox fan," Oct. 22, 2004, available at http://www.cnn.com/2004/US/l0/22/fan.death/. 46 Ireland Online (2005), "New plastic bullet wins approval in principle," Mar. 24, 2005, available at http://breakingnews.iol.ie/news/story.asp?j= 13 7798492&p =y37799y98. 47 M5 Modular Crowd Control Munition, at http://www.defense-update.comlproducts/m/mccm.htm. 48 M84 Stun Grenade, at http://www.globalsecurity.org/military/systems/munitions/xm84.htm.
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the United States is building two prototype acoustic weapons. It is field testing weapons of at least two companies, and may soon move from research and development to production. It has been reported that US forces use the Long Range Acoustic Device (LRAAD) in Iraq, as a device for crowd control and area denial. There have been no reports on its effectiveness yet, but since its sound can be directed, it is probably possible to use it in a discriminate way. Other nations reported to be (or to have been) involved in research on acoustic weapons include Russia, China, France, the United Kingdom, and Israel. Sweden, Japan, Poland, Yugoslavia, and Denmark are reported to have acoustic weapons effects research programs. 49 Israel is also developing a system to deter crowds by acoustics: a tank shell that produces the noise when a live round is fired from the main gun is planned. The problem with such weapons can be that the firing of the main gun generates great overpressure in front of the tank, likely to not only deafen, but to permanently damage ears. 50 The effects of these "simple" acoustic weapons are mostly psychological, in that they disturb concentration and make the target feel uncomfortable. However infrasound emissions-that have deafening effects, to()-{;an cause permanent injury to senses, and have a much more severe effect than simple noise-producing devices. 51 There is a very high variation depending on individuals; therefore, effects are also hard to predict. Even more sophisticated are designs that do not simply emit high-decibel sound waves, but can specifically point them, using a technology called HiperSonic Sound (HSS), developed by American Technology Corporation (ATC).52 This system directs sound as a laser beam directs light. Moreover, the sound is only audible at a specific distance and, with a new improvement, it will be possible to project it like a bubble instead of a continuous wave. According to testers, the sound is like "inside their skulL" It will probably be introduced to the US arsenal as High Intensity Directed Acoustics (HIDA), as a warning/area denial weapon. When used with high volume, it causes loss of equilibrium, vomiting, and migraines. 53
49 Arms Division of Human Rights Watch Dec. 16, 1999, at http://www.geocities.com/ Area51 /Shadowlands/6583/project456.htm1. 50 FM 90-10-1. An Infantryman s Guide to Combat in Built-up Areas, Ch. 3, available at http://www.globalsecurity.org/military/library/policy/army/fm/90-10lIch3.pdf. 51 Michael R. Murphy, "Biological Effects of Non-Lethal Weapons: Issues and Solutions, Directed Energy Bioeffects Division, Human Effectiveness Directorate, Air Force Research Laboratory, Brooks Air Force Base, Texas," available at http://www. dtic.miIlndiaINLD3/murp.pdf. 52 Gary Eastwood, "Perfect Sound from Thin Air," New Scientist, Sept. 7, 1996. 53 Marshall Sella, "The Sound of Things to Come," New York Times, Mar. 23, 2003.
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Another technology researched for more than a decade is the Vortex ring generator, which emits a circular "sound bubble," capable of not only deafening a person, but striking him down by kinetic energy. Specific designs have not been revealed yet, but there are serious doubts on whether this weapon can be used effectively (with energy high enough) without causing permanent damage or fatalities. 54 Moreover, this device will be capable of transmitting chemicals, making a combined effects (sound, kinetics, chemical) weapon. Therefore its evaluation must take into account all these three elements. Given the current paucity of available information, it is an open question whether some or all acoustic weapons (or specific uses of acoustic weapons) can be considered inhumane and illegal under IHL due to: their potential to cause unnecessary suffering to combatants and non-combatants; their potentially excessively injurious character (which may cause permanent damage );55 their potential for indiscrimination, that is, inability to be restricted to lawful targets; and their potentially disproportionate impact on civilians compared to their military utility. After the banning of blinding laser weapons by the international community in 1995, acoustic weapons are the next new antipersonnel weapon to emerge based upon novel and/or unconventional physical principles. While analogy can be drawn with blinding laser weapons, even the effect of causing deafness cannot be compared to the multiple disadvantages caused by blindness. 56 Nevertheless, the indiscriminate nature of these systems is very troubling, and it can be the greatest legal obstacle before fielding such weapons.
C. Chemicals The use of chemical agents as non-lethal weapons is probably the most complicated issue of all-not only because there are many ways to employ chemical material on the battlefield, which are perfectly legal (explosives, for example), but precisely because, due to this, there is no general ban, covering, for example, the use of microbes. 57 There are certain-if very narrow-"loop54
Vortex Ring Gun, at http://www.defense-update.com/products/v/vortex-
ring.htm. 55 As an example, see Robin M. Coupland, "Peter Herby: Review of the legality of weapons: A new approach 'The SIrUS Project,'" 835 International Review of the Red Cross 583-592 (1999). 56 Doswald-Beck, supra note 16, at 258-306. 57 Peter Herby, "Chemical Weapons Convention enters into force," 317 International Review of the Red Cross 208-209 (1997).
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holes" in the CWC that allow for at least considering some possible uses. States developing non-lethal weapons are aware of the "problems" posed by the Convention, therefore they try to widen the interpretation of these loopholes. For example, the American interpretation of the prohibition of weapons, "which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure"-that defines riot control agents not specifically listed in a Schedule-seems very lax, allowing, e.g., for neuro-inhibitors.58 The following sub-categories may be set up within this very diverse group of technologies and weapons: Pepper spray: This has been used by domestic law enforcement agencies for decades. Today the main ingredient is oleoresin capsicum (OC), the same natural chemical found in chili pepper. Another agent is PAVA, which is the synthetic version ofOC. It is currently being assessed by the US DoD's Human Effects Center of Excellence (HECOE),59 and it is being testedlintroduced in numerous law enforcement agencies around the world. Both have similar effects to "old-fashioned" tear gases (CN and CS-l -2), but on a higher level. Tested on animals, even prolonged, whole body exposure did not result in death. 60 However, there may be technical or user-related problems. When used together with Taser electrical stun-device (see later), there is a risk of ignition. With PAVA, since flames are blue, the operator may not even be aware that the target is on fire. 61 There have been reports of pepper spray being used as a "punishment" tool, especially in detention operations. 62 This problem is not exclusive to pepper spray, since almost all non-lethal weapons can be used as punishment or even torturing tools. The use of pepper spray or tear gas against crowds can have a profound impact on crowd dynamics, causing panic and hysteria. Cross-contamination is also a problem; it can affect bystanders, therefore escalating the situation.63 Since it is a riot control agent by its effects, its use is only legal in non-combat situations. It is particularly worrying that when seeking a manufacturer for the reintroduced M7 A3 CS grenade, the project description stated: "CS filled burning 58 Tradoc Pamphlet 525-73, "Military Operations: Concept for Nonlethal Capabilities in Army Operations," Appendix C. 59 For an insight into the different characteristics of CS and PAVA, see G. Smith, M. Macfarlane & J. Crockett, "Comparison of CS and Pavao Operational and toxicological aspects. Police Scientific Development Branch," PSDB Ref: 882004 (2004), available at http://publications. psdb.gov. uk/publications/publications.asp. 60 David K. Dubay, "Health Risk Analysis of First Defense(r) Pepper Spray Using an Acute Whole Body Inhalation Exposure, Defense Technology Corporation," available at http://www.dtic.millndia/NLD3/dubay.pdf. 61 See supra note 59. 62 Associated Press, "Report: Video Shows Gitmo Abuse," Feb. 1,2005, available at http://www.cbsnews.com/stories/2005/02/04/terror/main671682.shtml. 63 Lewer, supra note 42, at 51.
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type grenade, used to control counter-insurgencies and other tactical missions."64 Such use would be probably be prohibited by the CWC Convention. Nevertheless, it is a common phenomenon, not restricted to CS, to find in the inventory of an institution, such as the military, the almost irresistible temptation to use such weapons not only in permitted, but also non-permitted situations. Barrier foam: Due to its irritant (CS-based) ingredients, it is considered a riot control agent under the CWC. Therefore, it may not be used against combatants. However, its use for crowd control is legal. It was in the arsenal of the US forces in Somalia during Operation United Shield. Somalia also demonstrated one of the practical problems that may arise when employing non-lethal weapons. Before the US landing, a Defense Department official gave a detailed account of the characteristics of barrier foams. Therefore, by the time the US forces landed, they found that Somalis had already developed some countermeasures. 65 Many of the novel technologies may prove to be useless after their first use, simply because the adversaries have learned how to defeat them. It is questionable, whether it is militarily and economically feasible to develop systems with such a short (a few times of use only) lifespan. Another problem with barrier foam is, like in the case of OC and CS, its availability and the temptation to expand its use to other situations. 66 Sticky foam: Unlike barrier foam, sticky foam does not rely on toxicity but on its physical properties to constrain the enemy. Therefore, it does not fall under the CWC. Its delayed effects are unknown. One of its components, butadiene, was shown to be a carcinogen in animals. 67 Similar to the problem of depleted uranium, it could not only lead to political problems, but it was likely to violate the "no unnecessary suffering/superfluous injury" rule of IHL. Proper use is also necessary, as it can lead to suffocation when sprayed on the face of the victim, turning it into a lethal weapon. Current versions of sticky foam further pose questions under environmental law: 30 percent of its material is Freon12, one of the substances virtually outlawed by the Montreal Protocol on Substances that Deplete the Ozone Layer.68 It is to be seen whether a substitute will be found.
/d. at 54. P.M. Lorenz, "Non-Lethal Force: The Slippery Slope to War?," Parameters 52-62 (Autumn 1996). 66 Ltc Margaret-Anne Coppernoll, "Legal and Ethical Guiding Principles and Constraints Concerning Non-Lethal Weapons TechnJ}logy and Employment, Defense Manpower Center, DoD Center-Monterey Bay," at http://www.dtic.mil/ndia/NLD3/ copp.pdf. 67 Michael R. Murphy, "Biological Effects of Non-Lethal Weapons: Issues and Solutions," at www.stormingmedia.us/94/94411A944153.htm!. 68 See http://www. unep. orgl ozone/Montreal- Protocol/Montreal-Protoco 12000. shtm!. 64 65
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Slippery foam: There is a program known as Mobility Denial System,69 aimed at developing an anti traction material, enabling area denial. It would be especially useful in blocking access to buildings or other protected structures. Delivery is possible both by man-pack device or by vehicle-mounted dispenser. As there has been no reported use of this weapon yet, it is hard to judge its utility or legality. One thing must be noted: some kind of decontamination must be available, not only because of the possible need of movement of friendly forces through the contaminated area, but also because denying access to areas necessary for the continuation of normal civilian life would violate the principle of military necessity. Taggants: These materials are used to mark persons, allowing identification later. It enhances law enforcement capabilities in PSOs, making it easier to later capture them. The variety of other uses is illustrated in a document released by the US Marine Corps,7° which identifies the following possible uses: Personnel using known infiltration routes to an operations' area could be sprayed and identified later, if the material used for marking is long-lasting. Such material should annoy the person and those around him. Similar use is possible as a perimeter defense system. A variation of the above system is that affected personnel can only seek treatment at US forces, giving a chance to separate combatants from civilians. It is possible to use materials that are only visible by special equipment, making it harder to counter the use of such taggants. From the legal point of view, these material and equipment will most likely be similar to already existing dyes and their markers, such as paintball markers. Their use and the problems associated with it are therefore similar to those of blunt impact weapons. Distance and accuracy are the key elements securing that these weapons remain truly non-lethal. The other method of application is through sprayers: while these will not cause the problems of blunt impact weapons, they raise the problem of distinction. Practical and legal problems would mosriikely rise not at the moment of marking (provided that the material used is not toxic/harmful by itself), but later, when action is taken against the marked individual. First, if used on crowds, their effects are indiscriminate. The key working element of these weapons, i.e., the fact that those affected can only seek treatment from the forces that 69 Mobility Denial System (MDS), at http://www.globalsecurity.org/military/systems/munitions/mds.htm. 70 "Harassing, Annoying, and 'Bad Guy' Identifying Chemicals," (redacted) US Air Force Wright Laboratory, Wright-PattersonAFB (OH), June 1994, at http://www.sunshine-proj ect.org/.
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deployed these chemicals, makes, per se, the weapons a violation of IHL. Moreover, if forces have to assume that every marked individual is (was) an enemy combatant-or at least participated in an act deemed hostile-it is very likely that without considering its current behavior or status, they will resort to the use of (sometimes probably deadly) force. This raises serious doubts about the fate of persons marked by mistake. This is in violation of the customary rule of IHL,71 holding that civilians shall lose protection from hostile acts only as long as they directly participated in the hostilities. (although, after capture, they may be tried for alleged hostile acts by a properly constituted tribunal.) Malodorants: These weapons are not entirely new. Since the Second World War, special operations' soldiers have been using them for various purposes. For the aim of PSOs, there are two possible uses: As taggants. However, since their presence is very obvious when used, they are probably not the best candidates for this purpose. As area denial. This use is more promising, since a potent foulsmelling material would probably greatly reduce the resoluteness of a hostile crowd. This second option, however, is very close to breaching the Chemical Weapons Convention, in that, in practice, it is an incapacitating (if it causes severe and long-lasting nausea or similar symptoms) or a riot-control (if it causes rapid sensory irritation) agent. Therefore, its use, in the first case, should by banned, whereas, in the second, it should be guided by the same principles underlying the use of pepper spray and tear gas. Even if the CWC is not violated, other practical and legal problems need to be taken into account. Firstly, there is the risk of escalation as in the case of riot control agents, which may be mistaken for lethal chemicals. Secondly, some of the most potent malodorant materials are produced by microbes. Therefore, their employment would violate the absolute ban of the Biological Weapons Convention (BWC). Thirdly, devices designed for dispersion may as well be used to deliver biological or chemical payloads. Therefore, their development and employment would violate the BWC and the CWC.7 2 The research on "culturally specific" malodorants, dating back to a 1966 DARPA project, raises legal, political and ethical questions, since its research is deeply imbued with racist ideas. 73 Henckaerts & Doswald-Beck, supra note 18, at 19. "US Army Patents Biological Weapons Delivery System, Violates Bioweapons Convention," The Sunshine Project News Release, May 8, 2003, at http://www.sunshineproj ect.org/. 73 "Non-Lethal Weapons Research in the US: Calmatives and Malodorants," at http://www.totse.com/en/bad_ideas/guns_and_weapons/J65949.html. 71
72
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Incapacitating agents: These have similar effects to anesthetics, blocking the signals between nerve cells. The problem with their use is similar to anesthetics, too. Proper dosage is a must; otherwise, they may not function, or have lethal consequences.7 4 Considerations of personal differences come into play, and in a crowd control situation it might be impossible to administer a dose that fits everyone's endurance. This was amply demonstrated in the Moscow theater hostage drama. 75 But even if this technical aspect may be overcome, the main problem-and a very serious one-is legal, as they act as "temporary incapacitants," thereby falling under proscribed chemical weapons according to the CWC.76 (This restriction has very long-standing roots in customary IHL, prohibiting the employment of poison in warfare.?7) Unlike riot control agents, under the CWC these agents have no place in armies' arsenals, and activities related to them are regulated in the same manner as lethal agents. When such chemicals are used, especially at the beginning, it is not obvious for the enemy what these are, and their effects sometimes are easily misunderstood for the use of lethal chemicals, inviting a retaliation in kind (although such retaliation would indeed be illegal as well). Therefore, under this logic, non-lethal weapons can reach exactly the opposite intended effect: instead of lessening the violence and destruction applied in the conflict, they exacerbate it. 78 While such instruments can be very attractive in hostage-taking situations and other law-enforcement type missions,79 their use is most likely to be limited: after the first few uses, a wise enemy would surely learn how to counter these agents. On the other hand, their appearance in the inventory of armed bodies would do more harm by undermining the restrictions placed on them by the CWe. Contrary to this, the US legal review only found vomiting agents contrary to international law. Since details of these reviews are classified, it is impossible to tell the basis upon which it was decided. 80 74 Brian D. Anderson & Patrick M. Grant, "Dose Safety Margin Enhancement for Chemical Incapacitation and Less-Than-Lethal Targeting," NIl Final Report and Recommendations, Jan. 1997, at http://www.sunshine-project.org/incapacitants/jnlwdpdflllnidose.pdf. 75 Daniel Kimmage, "Moscow Hostage Drama-The Cruelest Question," CDI Russia Weekly, available at http://www.cdi.org/russia/242-15.cfm. 76 Murphy, supra note 51. 77 Henckaerts & Doswald-Beck, supra note 18, at 251. 78 Mark Wheels, "'Nonlethal' Chemical Weapons: A Faustian Bargain," Issues in Science and Technology Online, Spring 2003, at http://technologyonline.com/ 2003/spr/wheels.html. 79 See supra note 70. 80 "Legal Review of Sticky/Restraining Foam," Feb. 6, 1995; "Legal Review of Barrier Foam," Feb. 6, 1995; and "Legal Review of 40 mm Practice M781 Round Modified with Foam Rubber Projectile," Feb. 7, 1995. For the M781, see "Mortar Systems Information (M931)," FSAC Mortar Office Home Page, at http://www.pica.army.mil/ orgs/fsac/aiCmo/xm931/html.
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It is worth noting, that "incapacitation" today can take many forms, not only the traditional "sleep-inducing" way. According to some plans, the victim of such weapon should not even notice that he is influenced. Advances in science, regarding chemistry of the human brain make it possible to influence only behavior, without causing the loss of conscience. 8l However, if we look at the effect of such weapons in terms of armed struggle, it is clear that their effect is indeed incapacitation, rendering the victim incapable to continue his hostile activities. Therefore, they would still fall under the prohibition articulated in the CWC. Moreover, chemicals specifically aimed at changing behavior (causing hallucinations or the "gay bomb" described in a document from US Air Force Wright Laboratory in Dayton, Ohio, from 1994)82 would violate human dignity. Therefore, their employment would be banned both under IHL and applicable human rights law.
D. Directed-Energy Weapons Directed-energy weapons cover a wide variety of technologies, involving lasers, electromagnetic weapons, microwaves and plasma weapons. Their common feature is that depending on the level of energy used, their consequences can be lethal or non-lethal (in this sense they are similar to kinetic energy weapons). While this feature makes them perfect for gradual and controlled escalation of force as necessary dictates, it also inherently carries the possibility of fatal or permanent injuries. Lasers: One of the first concepts for non-lethal weapons was a technology involving lasers that would blind personnel, therefore putting them hors de combat from a long distance, causing very specific, but permanent injury to the eye's retina. Fortunately, the international community reacted in advance, without such weapons being fielded. Eighty states had already ratified Protocol IV to the CCW, and, so far, there has been no such blinding laser weapon fielded. Imagining the possible consequences of such weapons on individuals and societies, this decision has to be regarded as an important victory for humanity. 83 However, other applications are not prohibited: "Fazzling" lasers 84 can be used to temporarily blind persons and put them out of action. They have the same design as blinding 81 "Antipersonnel Calmative Agents," Apr. 27, 1994, at http://www.sunshineproject.org/. 82 BBC News, World Edition, "U.S. military Pondered Love not War," Jan. 15, 2005, at http://news.bbc.co.ukl2/hi/americas!4174519.stm. 83 Robert J. Matthews & Timothy L.H. McCormack, "The influence of humanitarian principles in the negotiations of arms control treaties," 834 International Review of the Red Cross 331-352 (1999). 84 RTO Technical Report, TR-SAS-040, supra note 6, at 3-9.
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weapons, with the only difference being the energy used. Since individual sensitivities, as with other weapons, also playa role, it is probably impossible to design such a weapon with 100 percent effectiveness and safety. The legality of such weapons, therefore, could be questioned. Using a different configuration, similar lasers can be employed to generate pain on the cornea or even the skin. Such systems may even have blinding effects, especially if the individual at stake is unable to move out of the beam quickly enough. A different option is to use ultraviolet laser beams to create channels of ionized air, capable of transmitting energy, creating a weapon very similar to a Taser, but without the wires and barbs needed for its function. 85 Such lasers, according to developers, will be sufficiently weak to cause only slight skin or eye irritation. Otherwise, as the working mechanism is very similar to electrical stun devices, they are best examined according to the criteria used for those devices. Microwaves: The US Marine Corps developed a non-lethal weapon that uses electromagnetic energy to heat but not to permanently burn human skin. The weapon could help soldiers to control unruly crowds and to defend airfields and ships. The weapon concentrates energy into a beam of micro-millimeter waves that penetrate clothes to rapidly heat moisture particles in the outermost layer of flesh, supposedly without going deep enough to damage organs. The device is claimed not to cause permanent damage to the body or to electronic devices such as pacemakers. Called the Vehicle-Mounted Active Denial System, detailed information about the weapon's design remains classified, but it is stated that the weapon would heat a target's skin in about two seconds. Soldiers could fire the weapon from distances exceeding 750 meters (2,250 feet) from their target-a range that would allow them to remain outside the reach of most aimed small arms fire, but would also make it very difficult, if not impossible, to distinguish between targets. The weapon could be mounted atop a military vehicle or on an aircraft. 86 A vehicle-mounted version of this system, called the "Sheriff," is due to beJielded in Iraq in the first half of 2006. Final tests are underway.87 This device raises some very important questions. First, would it be possible to differentiate between targets in a crowd? If not, the principle of distinction would be violated, or the use of the system would have to be limited to precious few scenarios. It is also unclear what effect 85 David Mulholland, "Laser Device May Provide U.S. Military Nonlethal Option," Defense News June 14, 1999, at 6. 86 Kelly Hearn, "New Non-Lethal Energy Weapon Heats Skin," United Press International, Feb. 26, 2001, at http://www.vny.comlcf/News/upidetail.cfm?QID= 163207. 87 David Hambling, "Details of US microwave-weapon tests revealed," 2509 New Scientist, July 23, 2005, at 26.
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this device would have on sensory organs, such as the eyes. It might be possible that while not injuring the skin, it could cause permanent damage to the eyes. If so, it would certainly be analogous to blinding lasers, and, although the Protocol IV to the CCW Convention only mentions laser weapons, since its aim was to protect vision of combatants (and non-combatants), it would certainly pose some problems. The general question raised by non-lethal weapons, i.e., whether they are capable of causing more serious injuries than intended, depending on the target's features, is certainly a valid one here. It is almost sure that permanent burns would be created on persons that are more sensitive than the average, or who, for some reason, cannot escape the radius of the weapon in time. It is telling that during tests, one tester suffered burns because of wrong power adjustment on the device. For example, such a device would be dangerous when turned on to personnel hors de combat, whose mobility is limited. It would clearly violate a number of IHL regulations, including Article 3 Common to the Geneva Conventions, paragraph 1 ("Persons taking no active part in the hostilities, including ... those placed 'hors de combat' ... shall in all circumstances be treated humanely."), one of the most fundamental provisions of IHL. Moreover, it is not clear whether such devices have yet unknown, longerterm consequences. Soviet studies, conducted more than 30 years ago, show that microwaves can effect white blood cells before the subject feels heat-so it is an open question whether such weapons have non-thermal effect.88 Electromagnetic Weapons: These-in an antipersonnel role-are used to "stun" a person, disabling him/her by causing loss of muscle control. In their simplest form, they are hand-held electric shocking devices, but development focuses on both improving their ranges, as well as making their effects more sophisticated and variable by the user. As electronic shocking devices are in the arsenal of many law enforcement agencies, similar to blunt energy weapons and riot control agents, there is a large database available about their effects. While generally they have no lasting consequences, it was found that, in some cases, they may cause heart attack to victims with an unstable medical condition. The greatest problem could be that soldiers--especially in detention operations-may use them as compliance/punishment tools, well beyond their intended and authorized rules of operation. However, this is a question of discipline rather than design. Tasers (which shoot small barbs with wire traveling behind them to transmit the electric shock)89 or the laser devices mentioned above, raise more or less the same questions, so reference can be made to what has been said previously. More interesting is the trend towards wewons that generate electromagnetic waves, affecting the human brain. While these weapons are less advanced and still several years from fielding, their use will indeed pose serious ques88 "Non-Lethal and Directed Energy Weapons," at http://www.datafilter.com/ mc/nonlethaIWeapons.html. 89 For more information on Taser's working mechanism, see http://www.taser.coml.
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tions-not only from a legal, but even more from an ethical and political point of view. Research indicates that certain electromagnetic frequencies, even when transmitted with low energy, can have a serious impact on the brain. Very low frequency electromagnetic radiation could be used to make chicken brains release 80 percent of their natural opioids: such device would effect the person very much like a high dose of opium or heroine, making him/her incapable to act. Yet, other waves could be used to release histamine, producing instant flulike symptoms. 90 Even more sophisticated uses are possible, as microwaves can be used to transmit sounds, and even speech, into the brain, causing the feeling of "hearing sounds inside." Science fiction as it sounds, such experiments were successfully concluded as early as 1975. 91 High-frequency radiowaves, on the other hand, can cause hallucinations and aggression in subjects. 92 While these devices are not in the process of fielding or weaponization yet, they certainly deserve attention, as their successful incorporation into arsenals would dramatically change all military operations, including PSOs. Russia, China, Ukraine, Australia, France, and the United States reportedly have such programs, while Germany, Sweden, South Korea, Taiwan, and Israel are said to have emerging programs. 93 As today, only general principles of IHL (such as distinction, or the Martens Clause) can be invoked to limit their use: but it is possible that upon initial tests on humans, or after the first deployments, the international community would decide that, like blinding lasers, these weapons are too inhumane to be used (discussion has taken place in the UN Committee of Disarmament from 1975 to 1998, but without conclusions).94 Plasma Weapons: These cannot be used directly against humans, as their energy would evaporate the people it touches. However, indirect effects may be used. Pulsed Energy Projectile (PEP), as the device is called, is under development. An invisible plasma beam will be used to produce a flash-bang effect. The beam vaporizes the first thing it hits. This creates a plasma that heats the surrounding air so fast that, basically, the air explodes. The resulting shock wave knocks the target to the floor. The PEP is now in the late stages of development and should be deployed by 2006. The current plan is to mount the laser on a truck, plane, or helicopter. 95 There is no publicly available data about its 90 Douglas Pasternak, "Wonder Weapons The Pentagon's quest for nonlethal arms is amazing. But is it smart?," at http://www.datafilter.com/mc/c_usNewsWonder Weapons.html. 91 Don Justesen, "Microwaves and Behavior," American Psychologist, Mar. 1975. 92 Tom Jaski, "Radio Waves & Life," Popular Electronics, Sept. 1960, available at http://www.datafilter.com/mc/jaski.html. 93 "Emerging Threat: Radio Frequency Weapons," 19 Defense Week, Mar. 2, 1992. 94 Cheryl Welsh, "Nonlethal Weapons, A Global Issue," at http://www.raven!. netlwelshnlw.htm. 95 Pulsed Energy Projectile (PEP), at http://www.globalsecurity.org/military/systems/groundlpep.htm.
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exact effects: it can probably be used both in a legal (very much like a flashbang grenade) or an illegal way (targeting people directly, using it indiscriminately, using energy so high that effects create permanent disabilities).
V. CONCLUSIONS Although there is no definite answer to the problems posed by non-lethal weapons, especially in the complex environment of PSOs, when we consider the variety of proposed principles and mechanisms, some of them already under development, some of them existing only as ideas for the future, it is clear that these will require a lot of attention in the future. There is a great chance that developed nations-making up a large proportion of peacekeeping/peace enforcing contributing nations worldwide-will resort to such systems in their conflicts with less developed adversaries, who will hope for a "politically correct" outcome, both in term of casualties and other political considerations. While these systems may mitigate suffering by offering a grade in the escalation of violence between no use of force and the use of lethal force, the risks shown in this chapter may outweigh this uncertain gain. Nevertheless, it is almost certain that we will have to witness the proliferation of such systems. To illustrate this, apparently the United States is currently undertaking one of the most sophisticated non-lethal weapons program in the world, with the view of arming its forces with the entire spectrum of such weapons. 96 While these will enhance the commander's ability to deal with all the situations that may arise, and give adequate, measured answers, there will be many new circumstances arising from the use of these novel technologies that he/she will have to measure against the possible gains. There is also a danger that the development of weapons based on novel technologies will generally undermine the effectiveness of the prohibition on certain means and methods of warfare, and may tempt other states to develop similar equipment, with more deadly intentions. The very reason for these absolute bans is that, otherwise, the temptation is too great, and it is too hard to verify developments. This, among others, is one of the reasons for making the use of riot control agents unacceptable as a method of warfare. The development of these devices might dramatically change the way military operations are conducted and perceived by the society. In today's asymmetric conflicts, Western powers can capitalize politically on the achievement that there is no longer a need to cause mass casuilties to reach objectives, while they can disarm political opposition usually fueled by casualties, friendly and hostile alike. Nevertheless, exactly this "revolutionizing" of warfare cannot 96 A good collection of related documents can be found at http://www.sunshineproject.org.
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only open the way for easier and careless use of armed force, but it may also jeopardize the very principles guiding warfare today-if there is no irreparable damage, then there is no need for regulations to avoid mistakes. In the end, it can easily negate the famous words said by Confederate General Robert E, Lee: "It is well that war is so terrible-we should grow too fond of it."97
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The Quotations' Page, at http://www.quotationspage.com/quotes/RoberC
PART III
Concurrence of Modern PSOs and International Criminal Law
CHAPTER 8 CRIMINAL LIABILITY FOR CONTEMPORARY INTERNATIONAL MILITARY (CRISIS MANAGEMENT) OPERATIONS: TOWARDS A REFINED ADJUDICATORY FRAMEWORK Geert-Jan Alexander Knoops*
I.
INTRODUCTION
Over the last decade, the traditional nature of military operations outside the Netherlands has shifted from peacekeeping missions to multiple forms of crisis control and crisis management operations executed by troops on an international level. Crisis management operations can be seen as interventions aimed at stabilizing conflict regions, restoring the disrupted legal order, reforming the police and military units, providing for humanitarian and civil assistance during reconstruction and other tasks that exceed the traditional functions of peacekeeping operations. l An implication of this shift is that the relatively neutral, independent and passive deployment and position of peacekeepers is often abandoned. 2 The question is whether the consequences of this changed role oftraditional peacekeeping can sufficiently be accommodated under national criminal and military laws, in particular the Dutch (DMCL), and other procedures. This is particularly important to determine the criminal liability of military commanders and to approach the criminal investigation and prosecution of military criminal cases that may arise from these military crisis management operations. This chapter focuses on the question whether domestic military criminal law systems, i.e., the DMCL, can accommodate these international military
*
Professor (international) criminal law at Utrecht University, lawyer at Knoops
& Partners Amsterdam; the author is also officer (reserve) with the Royal Netherlands
Marines Corps. See M.e. Zwanenburg, Accountability under International Humanitarian Law for United Nations and North Atlantic Treaty Organization Peace Support Operations 19-29 (2004). See further Marc Houben, No blanket Cheque (2003), dissertation Free University, Amsterdam.
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developments and operations. Illustrative for these developments is the judgment of May 4, 2005, of the Military Appellate Court of the Netherlands in the case of Eric 0., a sergeant-major of the Royal Netherlands Marines Corps, who was charged with the alleged violation of the British rules of engagement (ROE) during the international stabilization operation in South-Iraq on December 27, 2003, and then acquitted. These ROE were applicable in Southern Iraq to military operations falling under the authorization of the United Kingdom. The importance of this case for the future of military criminal liability for international operations is twofold: firstly, this case reveals the relevance of the legal interaction between national and international criminal law; secondly, it may be of assistance in determining a more uniform model of judicial review to assess military criminal liability during international missions. 3 This chapter will delve deeper into these two issues.
II. THE NEW FACE OF INTERNATIONAL MILITARY OPERATIONS AND ITS TRANSPOSITION ONTO MILITARY CRIMINAL LIABILITY
A. Changed Perspectives of (International) Military Operations In order to answer the above-mentioned questions, the example of the Dutch military criminal law system will be of guidance. The determination of these answers, based on the Dutch criminal law system can be of relevance also for other domestic military criminal law jurisdictions considering the fundamental nature of the principles that will underlie this research. The DMCC4 came into force on January 1, 1923, and was revised in 1990. 5 It was not developed with a view to potential crimes committed by Dutch military personnel on international peacekeeping missions, let alone during crisis management operations. In the past, the DMCC has always focused on armed conflicts. Although the aspect of international cooperation was added during the 1963 amendment,6 it was not until its revision in 1991 that attention was given to the aspect peacekeeping operations. Since 1991, the Netherlands and nonEuropean countries have been confronted with a change in the nature of peacekeeping operations. An example is NATO's armed humanitarian intervention in Kosovo in 1999, a type of operation not even anticipated in the UN Charter. 7 Although the DMCC is also applicable to Dutch military personnel engaged in international military operations exceeding the territory of the Netherlands,8 See Section III. Dutch Military Criminal Code (DMCC). See, for the history of this law, G.L. Coolen, Militair Stral- en Strafprocesrecht 2-3, 15-16 (2004). See id. at 15-17. See Zwanenburg, supra note 1, at 19. See art. 2 Sr. jo artikel 4 WvMS.
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its drafters could not have anticipated this change in character of international military missions. This new face gives rise to the following two judicial consequences for military personnel: (1) Since the principle of neutrality is abandoned in this type of complcx military intervention, the potential criminal liability of military personnel is likely to increase. (2) The internationalization and altered nature of military missions exposes military personnel to internationalization, modernization and contextualization of military criminal norms (i.e., the interpretation of rules within the specific context of a particular military operation). The consequences under (l) will be addressed in the next two paragraphs, while the consequences under (2) will be described in Sections 2.3 and 2.4, respectively.
B. Military Crisis Management Operations: Consequences for Military Criminal Liability Contemporary military interventions can no longer rely on the traditional concept of peacekeeping. Notwithstanding the fact that the classical peacekeeping model is still in function and applied, the emphasis has, and is still, shifting towards a more robust and multifunctional form of military intervention. The international arena, within which military personnel are currently engaged, especially within the framework of the United Nations and NATO, is that of unstable countries or regimes, like Somalia and Afghanistan, where political, humanitairian and economic factors are increasingly initiating military interventions. The chaotic and explosive situations in many of these and others regions, such as Somalia, Haiti, East-Timor, Congo, Sudan, Ivory Coast and Iraq, have shown that peacekeepers are exposed and SUbjected to new forms of threat and asymmetric warfare, which require an increasing safeguard of the security interests of the peacekeepers themselves. The growing economic, political and social instability in many parts of the world, including the endangerment of judicial systems, not only has had an impact on military personnel engaged in classical peacekeeping operations but also on the international community. With the advent of transnational criminal and rebel factions, extremist organizations and war lords, in various regions, a new threat to world peace has emerged, which, in the past, manifested itself only at interstate level.9 Examples are provided by those regions where access to sources like energy, water, fuel, gems and metals, etc., are an increasingly important cause for domestic conflict and political destabilization. The position of the diamond mines during the war in Sierra Leone from 1991 until 1999 is one of these. See also Zwanenburg, supra note 1.
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This emerging complexity is accompanied by an increase in actors and risks with considerable ramifications for military personnel during international humanitarian missions, confronting them with greater operational dilemmas. One such dilemma is the choice between taking pro-active military action in situations where their own safety is at stake, running the risk of being criminally prosecuted in case of incorrect assessment of the situation or of non-military action for fear of criminal liability. The latter option can result in a total paralysis to act or to use force in the military operational sense, particularly against unanticipated threats that can arise from this new type of crisis management operation. This paralysis can be accompanied by military powerlessness, subsequently creating considerable and even potentially deadly risks. In both scenarios military personnel can be exposed to military criminal liability standards. Notably, neither the DMCC nor any other European criminal code specifically accommodate for this type of dilemma. One solution may be that contemporary international military operations should increasingly contextualize the military criminal liability concept based upon the specific nature of military crisis management operations. The traditional principles underlying the DMCC, including those relating to criminal responsibility, still rely on a rather archaic perspective of military operations and are not adapted to such operations. It is a world where military personnel are confronted with armed factions that do not conform to traditional warfare rules. Mindful that international military operations, either within or outside the UN context, nowadays have to deal with a growing number of nontraditional threats and areas of conflict, the question arises whether the current criminal military liability system, formulated in the DMCC in 1923, needs to be revised. The earlier-mentioned case against Eric 0., which will be discussed in more details next, shows that by not revising the DMCC, there is the risk of creating an insurmountable gap between the army and the civilian society (including the judiciary), which may undermine the legitimacy of the military criminal law system, in general and alienate the army's perception of the rule of law. If the basis for these liabilities no longer runs parallel with the new face of international military interventions, modernization an~ internationalization of the traditional military criminal justice system is required.
C. Towards Contextualization and Internationalization of the Military Criminal Justice System Military personnel need a code of conduct that is comprehensible and provides proper guidance for military operations in balance with compliance to the rule of law. Every military criminal justice system, therefore, should be capable of taking into consideration the dilemmas and split-second decisions
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that military personnel face during military crisis management operations. As the latter cannot automatically be equated with military actions during combat, per se, one could argue that other dilemmas are involved. A soldier in a crisis management operation faces different considerations than during combat. Attention should be drawn to the judgment of the Dutch military Court of Appeal of May 4, 2005, in the case of Eric O. In this judgment the Court specifically held that "the Public Prosecutor should, just like a soldier who is sent on a mission to a conflict area abroad, develop the necessary 'situational awareness."'IO Undoubtedly, with "conflict area," the Court refers to the shift of traditional peacekeeping operations into crisis management operations in unstable regions like Iraq, where Eric O. was serving. Inherent in this is a shift in the military criminal judicial system for assessing military actions during international missions. The complexity of such missions involving intricate command structures, which are part of multinational operations, call for a judicial framework that should not be founded solely on national norms like the DMCC. In addition to national justice systems, international norms and military operational guidelines drafted by international coalitions or organizations, such as the United Nations, usually govern international crisis management operations. Most constitutions in Europe ensure that international norms have a direct effect on national norms also for military criminal law matters. Articles 93 and 94 of the Dutch Constitution, in relation to Article 5 and 50 (et seq.) of the Statute of the Kingdom of the Netherlands,II ensure that international norms supersede national military regulations in the event of a conflict. This hierarchy of military legal norms was acknowledged in the Eric O. case. Despite the existence of other military criminal cases in the Netherlands involving an international dimension, the Eric O. case concerned specific and unique aspects of international criminal law, such as the legal qualification of the rules of engagement within military criminal law. I2 In its judgment, the Court of Appeal considered that "the actions of Dutch military personnel in Iraq are legitimized by Resolutions 1483 and 1511 of the Security Counsel of the United Nations," adding that "in the latter Resolution, which was ratified on 16 October 2003, it is unequivocally stated that the Security Counsel 'authorizes a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq."'13 This ruling shows that certain national military rules or regulations can be superseded by international norms and guidelines, or at least should be inter10 See Judgment, May 4,2005, of the Military Chamber of the Court of Appeal in Arnhem, Parket No.-006275-04, at II. II See, for this, Section III. 12 See, for other military matter involving international rules, HR Jan. 11, 1994, MRT 1994, at 182. I3 See id. at 6.
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preted within their context. The implications of this observation will be discussed next.
D. Internationalization of Military Criminal Jurisdiction and Military Liability The impact of international military (operational) norms and guidelines on national military criminal law was visualized in the case of Eric O. where the Court was confronted with the interpretation of the doctrine of superior orders pursuant to Article 135 of the DMCC. The relevant facts of this case were the following. Sergeant-major Eric 0. (a member of the Royal Netherlands Marines Corps) was specifically charged with violation of national instructions for soldiers, derived from the British ROE applicable within Southern Iraq as to the use of force (hereinafter "soldiers' card"). These instructions were qualified by the public prosecutor as "military orders" and, accordingly, the indictment against Eric O. was issued. 14 The alleged violation of this soldiers' card was based upon his firing of two warning shots on December 27, 2003, during the participation of the Royal Netherlands Marine Corps in SFIR (i.e., the Stabilization Force in South Iraq). The warning shots, which allegedly killed or seriously injured an Iraqi civilian, were said to be in violation of the national soldiers' card and punishable under Article 136 of the DMCC and Articles 307-309 of the Dutch Criminal Code (DCC). The relevance to review these national norms, based upon overarching international military and/or criminal norms, presented itself as follows. Article 135 of the DMCC provides that a military order should be defined as a directive issued by or on behalf of the Dutch government and fulfill the following criteria: (1) (2) (3) (4)
be issued in a written form; be of general nature; serve a military purpose; and imply an imperative rule directed at' military personnel.
The Court of Appeal faced, in an unprecedented way, the question whether international ROE, specifically the provisions regulating the use of force by military personnel during international military operations (including crisis management operations), fall under the term "military order" pursuant to Article 135 oftheDMCC. The Court of Appeal gave an afffirmative answer on the following basis: 14 Literally these soldiers' cards are called "SFIR Geweldinstructies" decreed by the Chief Defense Staff on July 24, 2003.
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The engagement of SFIR is based on UN Security Counsel Resolutions 1483 and 1511; (2) On this basis, a number of states, such as The Netherlands, have entered with the United Kingdom (UK) as "lead nation" a memorandum of understanding (MOU) with respect to their participation in this stabilization operation as part of the Multinational Division South East (MND SE). (3) The Netherlands has acceded to this agreement (MOU); therefore the ROE drafted by the United Kingdom form an integral part of this agreement. IS
(1)
Led by these observations, the Court of Appeal concluded that these international ROE, which were specifically drafted for the Iraqi mission, were indirectly embedded within the term "military order" pursuant to Articles 135-135 of the DMCC by fulfilling the above-mentioned four criteria of Article 135. They could be qualified as deriving from a general written directive unequivocally related to an imperative military purpose. 16 Therefore, the Court of Appeal held that Eric O.'s actions had to be adjudicated on the basis of these international ROE. According to the Court, the mere fact that "the ROE were drafted in English does not alter its character as military order" now that "the international nature of this type of mission ... necessitates the predominant use of the English language."17 Importantly, these British ROE provided for "provision 151," which was not incorporated in the Dutch soldiers' card. This authorized an extensive and independent use of warning shots permitting the soldier to fire such rounds to demonstrate resolve or to convice persons to stop, by any means, in order to secure the mission. 18 This judgment, therefore, accepts that while a soldier may have acted in violation of his/her national soldiers' card, 19 he/she may be exonorated when his/her actions fall within the broader scope of the overarching international ROE. In addition, according to the Court, the latter scope should be interpreted in light of the "commanders intent."2o Consequently, the Court of Appeal concluded that "use of force which is not anticipated in the AM or GI does not constitute a violation when this use See Judgment of May 4, 2005, supra note 10, at 6-7. !d. at 7. 17 [d. 18 ROE 151 states: "passing of warnings to any person, aircraft, vehicle or vessel by any means in circumstances where MND(SE)' forces or elements under MND(SE) protection or the mission are threatened or where the passing of warnings is necessary for purposes of execution of the mission is authorized." 19 Soldiers' cards are often extended for the sub-commissioned officers through a so-called Aid Memoire, which has the same status as these cards. 20 See Judgment Court of Appeal, supra note 10, at 10, under d. 15
16
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of force is applied within the boundaries of ROE."21 As a result, Eric O. was not held criminally accountable for having fired two warning shots and was subsequently acquitted.
E.
Consequences of (International) Criminal Characterizations of ROE and Soldiers' Cards: Fundamental Reflections
This judgment appears to have provided, for the first time, some clarity regarding the (international) criminal law status and qualification of ROE and soldiers' cards. Yet, this judgment deserves some nuances. Should one interpret the judgment of the Arnhem Court of Appeal of May 4, 2005, as encompassing all ROE, irrespective of the underlying operation and origin? Should all ROE, from now on, be qualified as "military orders"? Firstly, a legal qualification of ROE, in absolute terms, bears the danger of distracting from the primary function of ROE as a predominantly military operational document, rather than a legal guideline for commanders. It could be debated whether ROE is a military order stricto sensu and therefore eligible as justification or excuse within (international) criminal law. Attention should be drawn to Article 14 of the U.K. Compendium of National ROE of 2002 22 providing in this compendium "is a guidance document and should not be viewed as a substitute for legal advice." This status could also be derived from the introductory Article 3 stating that "ROE exist only to give guidance and cannot by themselves guarantee lawfulness of any action." If this is true, the question is whether by qualifying, a priori, all ROE as military orders, irrespective of their contents and purposes, an unjustifiable status is adjusted to them, namely that of international criminallaw justifications or excuses. Secondly, in relation to the above-mentioned, it can be concluded that ROE or soldiers' cards do not automatically fulfill the fourth condition of a military order pursuant to Article 135 of the DMCC (i.e., that it should be an imperative order). Consensus exists that the primary function of ROE is "to provide general guidelines on self-defense and specific guidance governing the use of force consistent with mission accomplishment:"23 Similarly, Article 2 of the British Compendium characterizes ROE as "directions for operational commanders that set out the circumstances and limitations under which armed force may be applied." This means that the legal connotation of any individual ROE can differ depending on whether it is an imperative directive, or it merely serves 21 22
See id. This document was passed in 2000 by the British Ministry of Defense under the title Joint Service Publications 398. 23 This definition is derived from the UN Standing Rules of Engagement for Peace Enforcement Operations.
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as an instruction for the soldier. In the latter case, such an order cannot qualify as a military order.24 Therefore, the conclusion is that since the primary character of ROE and its derivative soldiers' cards is to govern the military operational actions of military commanders and individual soldiers, it is questionable whether an absolute legal qualification of ROE, as military orders per se pursuant to Article 135 of the DMCC or any other domestic legal provision, is warranted. Closely connected to this analysis forms the question whether, and if so to which extent, ROE can function as justifications or excuses under contemporary (international) criminal law (an aspect addressed under Section IV).
III. TOWARDS A MORE CONTEXTUALIZED FRAMEWORK ON MILITARY CRIMINAL RESPONSIBILITIES
The importance of the Eric O. judgment also lies in its contribution to the development of a more uniform judicial review framework and model for assessing military criminal liabilities during international missions. This framework is based on the following pillars.
A. The Direct Effect of UN Mandate and Security Council Resolutions on Military Commanders
The primary basis for such judicial review model rests on the doctrine of direct effect of a UN mandate and Security Council resolutions and its consequences for military commanders who are criminaly charged. Pursuant to Articles 25 and 103 of the UN Charter, Chapter VII, Security Council resolutions are binding on UN member states, provided that these resolutions are not ultra vires. This means that UN member states must endorse them.2 5 The question arises whether this binding power also applies to individual forces. An affirmative answer can be argued based on the following reasons: (1) The direct effect of these instruments does not depend on whether military personnel are "organs of the Security Council." Decisive is whether such resolutions concern the operation as a whole. The fact that military operational responsibility may lie with the United Nations, or any other international organization, does also not hinder this effect.
See also Coolen, supra note 5, at 123. See, for this, Susan Lamb, Legal Limits to UN Security Council Powers, in the Reality of International Law 366-367 (Guy S. Goodwin-Gilland (ed.), 1999). 24 25
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(2)
Contrary to certain decisions of the General Assembly, the binding power of Chapter VII resolutions (based on Article 39 of the UN Charter) is undisputed. This is enshrined in Article 25. 26 Franck points out that: Failure to adhere to this new law was to be met by decision of the SC acting, first as a jury to determine whether there had been a breach of the peace ( ... ) and then deciding what collective measures might appropriately be taken, to put matters right. 27 This system of mandatory (international) law applies, "even if they [the resolutions] are enforced by voluntary 'coalitions of the willing' ."28 In other words, this post-war Charter-based system to activate military intervention in international affairs places primacy not with the Security Council but rather with the member states. It would therefore be contrary to this system's ratio to prevent the individual military person engaged in a Security Council-mandated operation to rely on this system to legally protect him-/herself, provided that he/she has acted within the boundaries of the mandate. Hence, this direct effect may follow from the UN Charter system itself, even within the framework of justifications and excuses. 29 (3) There is another precedent supporting the direct effect of a Security Council resolution on individual military persons. In 1999, the public prosecutor to the District Court of Arnhem (the Netherlands) published a report as a result of a criminal investigation into the alleged criminal offenses committed by members of the Dutch UNPROFOR battalion (Dutchbat) in Srebrenica. Accusations included threatening and abuse of civilians. The public prosecutor opined that there was no basis for criminal prosecution of Dutch military personnel. He argued that international humanitarian law (IHL) did not apply, since Dutchbat had not becn a party involvcd in the conflict. Furthermore, it was argued that the combat operations Dutchbat had been involved in were not in violation of the UN mandate formulated in Security Council Resolution 836. According to the public prosecutor, the latter would imply that members of Dutchbat could not commit war crimes. 30 Thus, the fact that judicial authorities reviewed the actions of members of a UN peacekeeping force in light of a 26 See Thomas M. Franck, Recourse to Force. State Action Against Threats and Armed Attacks 20 (2004). 27 /d. 28 See id. at 27. 29 See id. 30 See Memorandum Public Prosecution to the District Court of Arnhem (Netherlands), TK 1999-2000,26122, No. 17; see, for a discussion, Zwanenburg, supra note 1, at 243-244.
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Security Council resolution, to assess their criminal liability, supports the acceptance of the direct effect of this type of resolution on individual military persons.
1.
Effects of Security Council Resolutions on National Level: Constitutional Basis
Having addressed the question whether Security Council resolutions can affect the position of a military individual, the question arises as to the legal basis. Can Security Council resolutions affect the domestic judiciary by providing legal protection to military personnel facing a criminal prosecution during an international mission? An affirmative answer can be drawn from Articles 93 and 94 of the Dutch Constitution and analogous provisions in other domestic constitutions. From these articles, it follows that norms contained in international treaties and resolutions (e.g., Security Council resolutions), which have binding character, can have a direct effect on civilians to the extent that they can prevail over Dutch law (DMCC). It will, however, depend on the nature, scope and formulation of the particular resolution whether this will, in concreto, affect the legal position of an individual military in the context of a criminal case. This will have to be determined on a case-by-case basis. The above said also implies that the question whether an international military mission occurs during "wartime," in the classic wording,3! is not decisive. 32 To assess the relevance of the judicial impact of Security Council resolutions on military individuals, the primary concern is an assessment of the factual circumstances at the scene of the operations, which often also form the basis of the particular mandate or resolution, rather than the legal qualification of a certain situation in terms of Realpolitik. 2.
Direct Effect Based Upon a Teleological Interpretation of Security Council Resolutions
It should be stressed that a Security Council resolution should always be analyzed in terms of goal and scope (teological interpretation) when determining its effects on criminal proceedings. If one considers, e.g., Security Council Resolutions 1483 and 1511, which were the ones establishing SFIR, the mission during which the Eric O. case occurred, several parameters can be determined. First of all, it should be considered whether the military action was administered pursuant to Chapter VI or VII of the UN Charter. The above-mentioned See, for example, DMCC, art. 71. See, for the contemporary meaning of the term "tijd van oorlog," G.L. Coolen, "Ret OM en de Krijsmacht," in Ars Aqui 358-360 (2005). 31
32
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SFIR resolutions were founded on Chapter VII, meaning that their binding power on all UN member states is based on Article 25 of the Charter. This observation forms an important interpretative factor for evaluating criminal liability of military servicemen engaged in a Chapter VII operation. By way of preliminary conclusion, it can be said that Security Council resolutions that underly a military operational mission can: have a direct impact on individual operating commanders by granting them specific rights that may influence their criminalliability;33 qualifY as a superior regulation (i.e., a Chapter VII Security Council resolution) and thus lay a foundation for superior orders pursuant to Article 42 of the DCC.34 Therefore, a first priority is to carefully examine how the particular Security Council resolution is formulated in relation to military operations and identify the possible underlying interpretative frameworks. Again, SC Resolutions 1483 and 1511 are illustrative. SC Resolution 1483, on page 2, states that: determining that the situation in Iraq ( ... ) continues to constitute a threat to international peace and security" it "Appeals to Member States ( ... ) to assist the people ofIraq in their efforts to reform their institutions ( ... ) and to contribute to conditions of stability and security in Iraq in accordance with this resolution. This phraseology unambiguously creates the international legitimized foundation for the actions of military commanders in stabilization operations. At the same time, this part of Resolution 1483 may serve as an interpretative guideline vis-ii-vis the actions of a commander accused of, for example, violating a military order pursuant to Article 136, DMCC or other national regulations. The functioning of such resolutions as interpretative guidelines for assessment of criminal liability may also follow from paragraph 4 of Resolution 1483, where explicit mandate is given "to promote the welfare of the Iraqi people through (... ), including in particular working towards the restoration of conditions of security and stability." Finally, support for this effect can be found on page 3 under (i), which includes a sub-task of SFIR 2, namely "encouraging international efforts to promote legal and judicial reform." From the words "legal and judicial reform," it can be concluded that the military actions in stabilization operations should be interpreted within this context. Usually Security Council resolutions should be read in conjunction with consecutive Security Council resolutions. Therefore, the combination of the res33 See G.J. Alexander Knoops, The Prosecution and Defense of Peacekeepers under International Criminal Law ch. III, para. 4 (2004). 34 See also Section IV.
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olutions should form the adjudicatory basis. In the case of SFIR, Resolution 1483 was followed by Resolution 1511. The latter set forth two additional and important interpretative facts to assess international military (commander) action. Firstly, it concluded that "the situation in Iraq ( ... ) continues to constitute a threat to international peace and security." This may form the international legal basis for actions based on "Force Protection" and thus legitimize actions like the one undertaken by Eric 0. 35 A second interpretative and adjudicatory relevant factor can be drawn from paragraphs 13 and 14 of Resolution 1511, which say: 13. Determines that the provision of security and stability is essential to the successful completion of the political process as outlined in paragraph 7 above and to the ability of the United Nations to contribute effectively to that process and the implementation of resolution 1483 (2003), and authorizes a multination force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq, including for the purpose of ensuring necessary conditions for the implementation of the timetable and programme as well as to contribute to the security of the United Nations assistance Mission for Iraq, the Governing Council ofIraq and other institutions of the Iraqi interim administration, and key humanitarian and economic infrastructure; 14. Urges Member States to contribute assistance under this United Nations mandate, including military forces, to the multination force referred to in paragraph 13 above; These paragraphs seem to aim at military individuals. Particularly the words "authorizes a multination force under unified command" and "including military forces" justify this direct effect vis-a-vis military service personnel. It is important, therefore, that such resolutions are scrutinized by the public prosecutor, the defense and the judiciary, when dealing with an alleged criminal offense committed by a military person in the context of a Security Council resolution based operation. Particular attention should be paid to two factors: (1) The question whether such resolution is explicitly directed at individual military persons. For example, paragraph 13 of Security Council Resolution 1511 "authorizes a multinational force under unified command" and "to take all necessary measures." Particularly these last words address operational military personnel. (2) The question whether such resolutions additionally aim at specific groups of individuals under the protection of the particular multinational force in question. In the case of Resolution 35
See Judgment in Eric O. case, supra note 10, at 1.
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1511, paragraph 13 seems to direct military personnel "to contribute to the security of the United Nations assistance Mission for Iraq," thus manifesting such direct effect. These types of parameters are, therefore, of eminent importance to explain, for example, the function of ROE and soldiers' cards in the regulation of the use of force and the notion of "force protection." B.
Relevance of National Instruments for Implementation of Security Council Resolutions and International ROE
The binding powers of Security Council resolutions and the direct effect on individual military persons can also be derived from national instruments aimed at implementing them. The following documents are e.g., relevant: (I) a specific operation instruction by, e.g., the Chief of Defense Staff; (2) operational commands by unit commanders, which are usually issued on the spot. (3) the memorandum of understanding (MOU).36 These kinds of national instruments ensure the implementation of said Security Council resolution and ROE into domestic law. Once again, the Eric O. case is illustrative. Apart from the operational orders of the batallion commander, the so-called Operation Instruction No. 100 of the Chief of Defense Staff as to the SFIR the operation was attributed judicial relevance with respect to the question whether ROE had a binding effect on the individual military serviceman. On page 2 under paragraph 6 of this instrument one of the "critical success factors" included the factor to "act within the mandate according to the ROE, the national soldiers cards, the SOFA, [and the] MOU." Consequently, the earlier-mentioned British ROE immediately applied to the single military. At the same time, national instruments of this type can shed light on the familiarity of other ranks of the army with the ROE. This aspect was raised by the public prosecutor in the appeal case against ~ric 0,37 holding that sub-commissioned officers were deemed not to be familiar with ROE, so that they could not rely on them. This argument was rejected by the Court of Appeal on the basis that the Batallion Operation orders openly referred to the applicable ROE. In conclusion, it can be said that Security Council resolutions do not exist in isolation; the assessment of their immediate effect will also depend on the documents used to execute the resolution at national level. 36 See for the relevance of MOU as interpretation factor for ROE, J. Voetelink, "Legal consequences of MOU," 9 Militair Rechtelijk Tijdschrift 343-350 (2005). 37 The public prosecutor held, inter alia, that the international (British) ROE had no binding force in the context of the national criminal case against Eric O. because it was assumed that lower-ranked military personnel were not familiar with these ROE.
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C. National Judicial Implementation The third pillar of the outlined adjudicatory model consists of specific criteria stemming from the aforementioned two pillars ensuring the transposition of the international instruments underlying military operations into national law. The Eric O. judgment of May 4, 2005, sets forth several adjudicatory parameters for this transposition. First is the fact that international military operations have a totally different nature compared, e.g., to police operations. According to the Court of Appeal, a consequence is that the judicial assessment of warning shots fired during a military operation or a police operation may have a different outcome. Secondly, the overarching ROE framework should be taken into account when determining military criminal liability. Thirdly, the Court of Appeal, on page 11 of its judgment under (d.), introduced that "the Public Prosecutor, similarly as a military person sent on a mission to conflict areas, needs to develop the necessary situational awareness." With this third factor, the prosecutorial powers of the public prosecutor regarding military persons in this type of situation are curtailed. The question arises as to what juridical sanctions could be applied if the public prosecutor failed to have this "situational awareness" in a specific case and whether, in particular, this could undermine the admissibility of the public prosecutor's case. It is imaginable that, in retrospect, a particular prosecution of a military person is in blatant conflict with the concept of "situational awareness" as a result of which the entire investigation has been improperly carried out, thus making a fair trial pursuant to Article 6(1) of the European Convention on Human Rights (ECHR) de facto impossible. 38 A fourth factor, one closely connected to the third, the Court of Appeal emphasized that a military commander on scene cannot properly act without discretionary military powers, particularly when facing situations that potentially require the use of force. Military discretionary powers can thus be determinative when assessing criminal liability. They, inevitably, call for an assessment based on the reasonableness of the action in question.
IV. THE ROLE OF ROE WITHIN THE ADJUDICATORY FRAMEWORK OF (INTERNATIONAL) CRIMINAL LAW DEFENSES
An under-developed subject concerns the potential status of ROE within the system of (international) criminal law defenses. The question arises whether, 38 Provided the criteria of the Dutch Supreme Court in the Zwolsman and Karman cases have been met; see Supreme Court Rulings NJ 1996,249 and NJ 1999,56,7 respectively; see, for an analysis of these judgments G.J. Knoops, "Ret Zwolsman arrest vanuit rechtsvonnend perspectief: de opkomst van de moreel-ethische dimensie van de (niet-) ontvankelijkheid van het Opcnbaar Ministerie in de vervolging wegens onbehoorlijk overheidsoptreden," Ars Aequi 386-393 (May 2005).
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and to what extent, the use of force by military personnel, in observance of ROE and soldiers' cards, can be a justification or excuse under national and international criminal law.
A. ROE and the National Judicial System of Legal Defenses
A question, which did not need to be addressed by the Military Court of Appeal in the Eric o. case-although raised by the defense counsel-concerns the potential exculpatory nature of ROE and soldiers' cards. Can these instruments be considered as superior orders pursuant to Article 43 of the DCC? It can be argued that such instructions might fall under the notion of superior order.39 The text of Article 43 of the DCC does not contain a limitative list. More so, official orders are not necessarily issued for concrete instances but can also consist of general, written instructions on how to deal with a specific manner in particular situations. 40 Further, military orders can be deemed to have been properly passed in accordance with constitutional requirements based on a UN mandate, such as in the case of the multinational stabilization force in Iraq, where SC Resolution 1483 formed the political and legal basis for participation of the Dutch Batallion. 41 Importantly, and this reinforces a case-by-case approach, military operational situations dictate that strict compliance with ROE, in some circumstances, is not always justifiable, especially in cases where adherence would jeopardize the lives of others or create risks to goods. This observation could thus form an argument as to the relativity of the binding power of ROE, both with respect to their foundation for criminal liabilities as well as defenses. Hence, their juridical effect has to be assessed on a case-by-case basis, and criminal liability cannot be derived in a general manner from every ROE or soldiers' card as such. The adoption of a case-by-case approach to military orders still leaves open the possibity of the scenario that a military order may function as a criminal law defense when the military action falls within the limits of ROE.42 Furthermore, a general qualification of military orders carries the risk that the importance of a teleological interpretation in criminal matters may be overlooked. An additional pitfall is that no appeal is made on a military commander's own responsibility, which afterall controls the practical application of 39 See also G.G.J. Knoops,"De (inter)national strafrechtelijke betekenis en implicaties van geweldsinstructies voor buitenlandse militaire missies," 6 Delikt & Delinkwent 602-621 (2004). 40 See also Wemes, in Tekst & Commentaar Strafrecht 286 (4th ed. 2002). 41 For this, see also the letter of the Ministers of Foreing Affairs and Defense to the Chairman of the Dutch Parliament (TK) of Nov. 28, 2003, at 2. 42 See also publication in Defensiekrant, Mar. 4, 2004, at 1.
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these instructions on the field. This, of course, cannot be the intention of the existing criminal law defenses; after all, a superior order does not take away the military commander's own moral and ethical responsibility. Indeed, a military person is "no longer regarded as an unthinking automaton."43
B.
ROE Within the System of International Criminal law Defenses
To what extent can ROE or soldiers'cards can be designated a role within the doctrine of "superior orders"? This doctrine is jurisprudentially circumscribed and developed within international criminal law. Although the exoneration based on "superior orders" has been excluded in certain international instruments, such as the Charter of the Nuremberg Tribunal and the Statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), Article 33 of the Statute of the International Criminal Court (ICC Statute) leaves open the possibility that, under given circumstances, this defense may be raised, on condition that the following three requirements are cumulatively met: (1)
The accused (commander) was legally obliged to follow particular orders; (2) The accused was not familiar with the fact that the order concerned was unlawful; and (3) The order concerned must not have been "manifestly unlawful."
These criteria are in line with the case law, inter alia, the Llandovery Castle case 44 and, the landmark case against the American lieutenant Calley in connection with the "My Lai"massacre in Vietnam. 45 "Superior orders" as a defense, therefore, cannot be invoked in cases of manifest unlawful orders. Article 33(2) of the ICC Statute codifies the existing jurisprudence by establishing that orders to commit genocide or crimes against humanity are automatically considered manifestly unlawful. The question remains, however, how to proceeed in the remaining other instances; this will also strongly depend on the particular circumstances of a case. As to whether ROE or soldiers' cards can be brought within the scope of Article 33, it can be argued that the use, by the military, of force, which does not exceed the margins of the ROE and the soldiers' cards but which may result in a violation of international criminal norms, is not automatically manifestly unlawful. After all, the individual commander shall be able to rely on the legit-
43 44 45
See Leslie C. Green, The Contemporary Law of Armed Conflict 306 (2000). 1923-1924,2 Ann. Dig. 436, German Reichsgericht Leipzig. United States v. Calley, 22 U.S.M.C.A. 534 (1973).
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imacy of the ROE or soldiers' cards. Additionally, if the latter have been issued by international authorities, it appears that criteria (1) and (2) are met. However, it should also be noted that, from a doctrinal perspective, objections may be raised against a qualification in absolute terms of ROE or soldiers' cards as potential defenses within international criminal law. These, as discussed above, are primarily focused on military operational goals, for which the use of force has a distinct character. 46 Rather than qualifying ROE in a general sense, it would be preferable to determine both the direct effect and potential exonerative effect of these documents on a case-by-case basis. This also goes for the intriguing question whether a military commander is legally exempted from criminal liability in the following situation. Suppose that in a particular instance he or she has requested his or her superiors to alter the prevailing ROE in order to anticipate a new operational situation. Yet, the request is refused. Subsequently, due to the lack of a ROE change, a conflict of norms emerges. Can the commander, when charged, raise the defense that because of the refusal of his or her ROE request, he or she did not have the proper mandate to act? Or can he or she claim that he/she did everything in his/her power to act but was prevented from acting in the absence of the proper ROE? All these questions are still unanswered.
v.
CONCLUSIONS: APPLICATION OF THE PRINCIPLE OF "A REASONABLE OFFICER ON THE SCENE"
Military criminal responsibilities that can arise during international crisis management operations remain controversial, especially in light of the discretionary powers of a commander.47 This certainly goes for situations in which commanders are charged with violations of military orders, as it occurred in the Eric O. case. Particularly in the course of (international) military operations within or outside the UN context, when these violations are based, in turn, on alleged infringements of the ROE or the national soldiers' cards, these controversies emerge. This chapter shows the complexity and diversity of situations that military servicemen can be confronted with during international crisis management operations. Hence, as shown, the (international) criminal qualification of ROE and military soldiers' cards is complex, too. Preferably, such qualification should not be based merely on a grammatical interpretation of these documents, but rather on a systematic interpretation, taking into account the context and other (military) documents. 48 46 47 48
See also Knoops, supra note 39, at 619. Judgment Court of Appeal Arnhem, supra note 10, at 10, under d. See also Knoops, supra note 39, at 620.
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Additionally, it was established that in order to qualify or translate ROE and soldiers' cards in criminal law terms, their nature and meaning shall be interpreted from a teleological point of view, taking into account their evidentiary connotation and potential exculpatory effect. The various moral-ethical dilemmas, as well as responsibilities for military commanders during the missions, described in this chapter seem to support this approach.49 The interpretation of the Fourth Amendment of the American Constitution by the American judges 50 could be of guidance. Within the American system, the decisive criterion, when adjudicating the use of force, is whether the actions of a military commander were "objectively reasonable." Also, in this case, a very important aspect is the determination of the circumstances the commander concerned was confronted with.51 In that case, the legal qualification of ROE and soldiers'cards should be adjudicated from the perspective of the "reasonable officer on the scene" whereby "the officer's subjective motivation, the subject's state of mind, and facts (un)known to the officer"52 could be considered, too. This approach, as set forth by American judges when applying the Fourth Amendment, would indeed suit the proposed teleological approach with respect to the phenomenon of ROE and military soldiers' cards. Moreover, the "reasonable soldier" criterion creates sufficient adjudicatory leeway to look into each ROE and determine, per se, its direct effects. 53 After all, the international context and the underlying international instruments of the particular military operation should play an important interpretative role in establishing liabilities of military commanders. In this sense, internationalization of military-criminal liabilities at domestic level is inevitable in order to achieve justice for those commanders who are subjected to criminal prosecution related to ROE.
49 See also Ted Westhusing, "Taking Terrorism and ROE Seriously," 2( I) Journal of Military Ethics 218 (2003). 50 This Amendment concerns the injunction on unreasonable seizure which provides that deadly violence in this context is only permissible in certain instances. 51 See Graham v. Connor, 490 U.S. 386 (1989) 52 These factors are derived from several American judgments, namely Bell v. Wolfish, 441 U.S. 520, 59 (1979), Pen a v. Leombrune, 200 F.3d 1031 (7th Cir. 1999), Reese v. Anderson, 926, F.2d 494 (5th Cir. 1991); see also Ted Westhusing, supra note 49, at 15. 53 See also Green, supra note 43, at 308.
CHAPTER 9 MIGRATION AND BORDER MANAGEMENT IN KOSOVO 1999-2005 Stefano Failla*
I.
INTRODUCTION
Since the UN Interim Administration in Kosovo (UNMIK) took responsibility to govern the once Yugoslav-ruled province in 1999, the issue of border and migration management in Kosovo has not been adequately considered, assessed or addressed with a comprehensive legal and operational policy. Things have changed only since 1995, when UNMIK issued an ad hoc regulation. This situation has not only had negative effects on crime and public order in Kosovo, but it has further provoked a series of collateral effects in the neighboring regions and Western Europe. The lack of appropriate and timely action by the UN administration has encouraged organized smugglers and "independent" groups of migrants to target Kosovo as one of their favorite bridgeheads towards further immigration into other countries, mostly Western Europe (although North America appears to have been targeted, too). Criminal networks tend to use Kosovo as a transit area to Eastern and Northern Europe, mainly for the following factors: the permeability of the borders and boundaries; the lack of a policy and the legislative unclarity on incoming migration flows; the presence of a poorly managed and dishomogeneous international police force, with few specialized officers, a chronic lack of basic instruments and facilities, and a very young and still inexperienced local police service;
* The author, after serving in the Italian national police (1993-200 I), was assigned to UMMIK (2001-2005) as Chief of Intelligence/Investigations for the Border Police and as Head of the Counter-Trafficking Unit of UNMIK police. He currently serves in the International Organization for Migration as Law Enforcement Advisor on counter-trafficking capacity-building projects in Kosovo and Macedonia. 203
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the elapsed absence of a system of registration for incoming foreigners and of a permit of stay system, as well as inadequate border management mechanisms. Various techniques are used to avoid or deceive the action of police authorities with respect to migration control. These methods range from false employment or invitation letters issued to foreign immigrants, to unreliable and pretestuous airline ticket and reservations and so on. The widespread use and commerce in false documents that is ripe in the whole Balkan area, especially in Kosovo, worsens the situation. It would appear that UNMIK has neglected this huge problem for several years. While the previous Serbian law on movement and residence of foreigners has been declared inapplicable (or rather, has been simply disregarded), little or no instruments at all have been put in action to address the problem posed by the management of the movement of persons across the borders of an extremely unstable region on the outskirts of the European Union. While there are reasons to understand the extreme difficulty, for an interim administration, to regulate an issue that belongs to the heart and soul of state sovereignty, no adequate justification seems to apply for avoiding consideration of the topic and not giving it the attention it deserves, along with the almost complete absence of attempts to provide even temporary solutions to the problem. At the heart of this contradiction lies some of the UN's most troubled and problematic aspects: on one side, the complex and controversial relation between the emergency-based operational philosophy of the organization and its wide institutional mandate in Kosovo; on the other side, the lack of accountability and proactive management and the bureaucratization that plagues the organization, thereby affecting the action of the United Nations on the ground. Migration management is at the heart of the world's political agenda. Its implications, related to state security, domestic and international organized crime, the protection of human rights, world poverty and the overall quest for a wider range of economic and social opportunities in an era of globalization, show that effective and democratic institutions are needed to govern the worldwide migration process. Moreover, the enormous institutional experiment that has taken place in Kosovo since 1999 shows that the relation between migration, security and effective sovereignty is fundamental for the correct development of national and international relations, particularly in the course of a nation-building operation, such as those undertaken by UNMIK and other international missions that are currently taking place in many different areas of the world. Regardless of whether the United Nations, in the future, will be called to manage huge institutional enterprises, such as the peace operations in East Timor or Kosovo, the lessons learned from the organization's latest experiences will be paramount to remaining a leading and effective actor in international cooperation.
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II. THE LEGISLATION IN FORCE BEFORE NATO ENTERED KOSOVO (1999)
The provisions of the Yugoslavian Law on Movement and Stay of Foreigners, which are relevant for the present discussion on Kosovo, were progressively created in the course of two decades, from 1980 to 1996. The law itself consisted of a fairly simple set of regulations that defined the notion of foreigners, their obligations and rights, the rights and competences of the federal state, the republics and the autonomous provinces with regard to their entry, exit and stay while in the territory of the Former Yugoslavia. Its 110 articles disciplined, among others, the visa and immigration regime, the issue of asylum and refugees and the issuance of travel documents and residence permits to non-citizens. Part I, or the chapter on general provisions, defines the concept of a foreigner as "any person who is not a Yugoslavian citizen."! Articles 3 and 4 respectively state that the "related bodies or republics and autonomous provinces execute the procedures related to movement and stay of foreigners"2 and that "foreigners may bc prohibited [from entering] ... as well as [that] their residence may be revoked for reasons of maintaining law and order, in the interest of the defense of the state or for reasons arising from international relations."3 Part II deals with passports and visas. It states that: "A foreigner may enter the territory of the Federal Republic ... and stay in its territory ... if he/she is in possession of a valid foreign passport ... with a Yugoslav visa."4 Visas were issued by the competent bodies (inside the territory of the Federation or abroad), 5 and, in principle, they were required for all foreigners, except for those nationalities for which the Federal Executive Council had decided otherwise, based on the principle of reciprocity. 6 Citizens of countries that did not require Yugoslav citizens to obtain an entry visa could be exempted from the visa regime. Transit visas were issued under the condition that the foreigner held a visa "that granted him/her entry to a neighboring country where he/she intends to travel or continue his/her travel over its territory, if ... not relieved ... to obtain such visa by an international agreement."7 Refusal of entry or denial of visa was envisaged in case a foreigner had: committed a crime against humanity; been sentenced and imposed the security measure of expulsion, or the protective measure of removal for a period of time; Part I, art. 1. Id., art. 3. Id., art. 4. 4 Part II, art .. 5 Id., arts. 21 to 23; under certain circumstances, the foreigner was required to obtain an exit or a return visa as well. Id., art. 18. Id., art. 20.
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had his permit of stay in the SFRY revoked; been registered as an international criminal by the SFRY authorities; been in possession of the passport of a country that was not his country of residence, except if the passport contained an explicit note that allowed the foreigner to return to that particular country. In addition, the SFRY authorities could deny entry or issuance of a visa for "other reasons, including ... preserving law and order, protection of ... the country's defense ... or protecting international relations."8 Other provisions stated that visas or entry could be denied in case a foreigner had been convicted in Yugoslavia for a mandatory offense, a customs or currency offense or, more generally a violation oflaw and order.9 A foreigner was required to possess adequate financial means to support himself, either autonomously or with the support of others in the SFRY. Failure to demonstrate financial means could result in the denial of the visa or refusal of entry. 10 The issuing or authorizing body had no obligation to justify the denial of entry or the refusal to issue a visa when the decision was based on grounds of public order or national security. The decision could not be appealed. 11 Part III dictated the regime of permits to stay in the federation. Again, a series of provisions parallel and similar to those regulating the entry visa were applied to foreigners who intended to transit, settle or extend their stay in the SFRy'I2 The issue of refusal to issue a permit to stay was regulated in two articles; the criteria included, among others, the usual grounds of public order and state security, the imposing of security or protective measures, the lack of financial means, illegal entry, supplying false information on personal identity or using fake documents, assisting in illegally crossing the border and, interestingly, soliciting or asking for charity. Appeal was allowed only against a decision based on grounds oflack of financial means. 13 Decisions based on public order, national defense or security could not be appealed and did not need a justification. 14 Part III, sub. 2 analyzed the conditions under which a foreigner could apply for permanent residence, which was allowed normally to a foreign citizen "whose close family members ... had been Yugoslav residents, who has been married to Yugoslav citizens, who were Yugoslav by origin, who invested in the SFRY ... and exceptionally permitted to other foreigners." The foreigner had to provide evidence of financial means. IS The decision to grant permanent residence
10 11
12 13 14
15
Id., art. 25. Part II, art. 26 Id. Id., art. 27. Part III, arts. 31-32. Id., arts. 34 to 36. !d., art. 37. Id., art. 39.
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status was given by the federal body in charge for internal affairs. 16 The permanent residence status could be revoked by the same federal body on the following grounds: exit from Yugoslavia; continuous residence in a foreign country without authorization for more than a year; withdrawal of funds originally invested or end of the economic activity; the imposition of a security or protective measure. 17 The decision did not need any justification. Appeal to the federal executive council was allowed except when the decision had been taken on grounds of continued residence abroad. 18 Further reasons for discontinuing the permanent residence permit were also the lack of financial support, the commission of serious criminal acts or acts against the security and foundations of the selfmanagement system of the federation and the preservation of law and order or the interests of state defense. 19 Part III, sub. 3 highlighted the right to seek asylum, rooted on the persecution of a foreigner "due to his/her pleading for democratic views and movements, social and national liberation, civil freedoms and human rights" and others. The federal council decided on the granting or revoking of asylum. Once the status had been recognized, the foreigner received permanent resident status and an adequate financial support from the federal budget. Appeals had to be directed to the federal council. 20 Refugee status was regulated in Part III, sub. 4. Among these provisions were the classic criteria of the Geneva Convention on Refugees of 1951, including the provisions on temporary permits to stay of refugees and their families, financial support and assistance, and the criteria for the loss or revocation of refugee status. Expulsion was disciplined by sub. 3 of the chapter, and was imposed on the basis of illegal stay or the imposing of a protective or security measure. 21 Part IV22 imposed the obligation for all foreigners, including permanent residents, to notify the relevant authority of any change of address or residence in a rather short time; permanent residents had to notify their departure, too. Public entities, private citizens renting accommodations, tourist or labor associations 16 17
18 19 20 21 22
Id., Id., Id., !d., !d., !d., Id.,
art. 40. art. 4l. art. 42. art. 43. arts. 46 to 49. art. 6l. arts. 78 to 82.
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had to notify the presence of foreigners within 12 hours, while a Register of Foreigners had to be kept by public entities and private citizens renting accommodations; it had to be kept for a period of three years after closure, and it had to be exhibited upon request of the authority. Fines and other penal provisions, for those who violated the provisions of the law with regard to the registration of foreigners or the information on their movements within the SFRY,23 and similar sanctions were provided to foreigners who broke the law. Foreigners who permanently resided in the SFRY, or were granted temporary stay without being in possession of a foreign passport, were issued an identity card. Other foreigners had to carry an identification document. All records concerning foreigners (crossing records, visas, residence, etc.) had to be kept by the relevant authority.
III. THE KOSOVO LEGAL FRAMEWORK WITH REGARD TO BORDER SECURITY AND PUBLIC ORDER-SECURITY COUNCIL RESOLUTION 1244 AND THE UNMIK REGULATIONS A. The Legal Framework
The legal grounds for the UNMIK administration have been provided in UN Security Council Resolution 1244/99, which stated, among others, that the international security presence and the civilian component should be in charge of the preservation of law and order. More precisely, the international security presence (that later took the name of KFOR) was entrusted with the following tasks: 24 ensuring public safety and order until the international civil presence can take responsibility for this task; conducting border monitoring duties as required. Border control therefore, was initially undertaken as a military task, with KFOR establishing its presence all along the borders of the province with static or mobile checkpoints. It would have taken months for the international police (CIVPOL) to take control of the international crossing points, and years to relieve KFOR of most of the responsibility for ,Qorder security and for the direct responsibility of the internal boundary lines with Serbia. 25 The international civil presence, which was formed under the auspices and the authority of the United Nations, had the following responsibilities with respect to law and order: maintaining civil law and order, including the establishing of local police forces and the deployment of international police personnel to Kosovo; Part VIII, arts. 104 and 105, As stated in SC Res. 1244, June 10, 1999 25 The first CIVPOL station at the boundary with Serbia was taken over from KFOR during of 2002; border police thus had to change its name to Border and Boundary Police. 23
24
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performing basic civilian administrative functions where and as long as required. On July 25, 1999, the first Special Representative of the Secretary-General (SRSG), Bernard Kouchner, issued UNMIK Regulation 99/1, which set the basic legal principles for the authority of the UN administration, and identified the law applicable in KoSOVO: 26 The laws applicable in the territory of Kosovo prior to 24 March 1999 shall continue to apply in Kosovo insofar as they do not conflict with standards referred to in section 2, the fulfillment of the mandate given to UNMIK under United Nations Security Council resolution 1244 (1999), or the present or any other regulation issued by UNMIK ... In the performance of the duties entrusted to the interim administration under United Nations Security Council resolution 1244 (1999)), UNMIK will, as necessary, issue legislative acts in the form of regulations. Such regulations will remain in force until repealed by UNMIK or superseded by such rules as are subsequently issued by the institutions established under a political settlement, as provided for in United Nations Security Council resolution 1244 (1999). In October 2000, SRSG Kouchner promulgated UNMIK Regulation 2000/59, which modified the applicable law in Kosovo. It stated: 1.1. The law applicable in Kosovo shall be: (a) The regulations promulgated by the Special Representative of the Secretary-General and subsidiary instruments issued thereunder; and (b) The law in force in Kosovo on 22 March 1989. In case of a conflict, the regulations and subsidiary instruments issued thereunder shall take precedence. 1.2. If a court of competent jurisdiction or a body or person required to implement a provision of the law, determines that a subject matter or situation is not covered by the laws set out in section 1.1 of the present regulation but is covered by another law in force in Kosovo after 22 March 1989 which is not discriminatory and which complies with section 1.3 of the present regulation, the court, body or person shall, as an exception, apply that law. 1.3. In exercising their functions, all persons undertaking public duties or holding public office in Kosovo shall observe internationally recognized human rights standards, as reflected in particular in: (a) The Universal Declaration on Human Rights of 10 December 1948; (b) The European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and the Protocols thereto; 26
UNMIK Regulation 199911, §§ 3 and 4.
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(c) The International Covenant on Civil and Political Rights of 16 December 1966 and the Protocols thereto; (d) The International Covenant on Economic, Social and Cultural Rights of 16 December 1966; (e) The Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965; (f) The Convention on Elimination of All Forms of Discrimination Against Women of 17 December 1979; (g) The Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment of 17 December 1984; and (h) The International Convention on the Rights of the Child of 20 December 1989. The logic legal consideration would be that the existing legislation on travel and movement of foreigners, where compatible with the UN mandate, the SRSG's regulations, the international recognized standards and not in conflict with any subsequent legislative determination by UNMIK, should have been applicable law. UNMIK had different options when deciding to address the issue. It could have patiently reviewed the law, issued clarifications on the applicable parts and the bodies or agencies to be responsible for the administrative tasks related to it and removed from it those parts that recalled memories of a "police state." Alternatively, it could have issued a different discipline for the matter, bearing in mind its sensitivity, the post-conflict chaotic situation across the borders with the flows ofrefugees/returnees and the need to balance the territorial and sovereign prerogatives of Yugoslavia with the fact that UNMIK was actually exercising over a part of the Yugoslavian territory both sovereignty and basic civilian functions, as stated in Resolution 1244. The international administration chose to do nothing until mid-2005. Surely the idea of setting up a border and immigration control system must have looked like an administrative nightmare in the first months of UNMIK's existence, especially having in mind the total disruption of public structures and records that the Serbs' withdrawal left in Kosovo. But the actual choice of not regulating the subject for the years to come has probagly created an even worse nightmare, the consequences of which deploy their effects today. The choice of UNMIK was instead that of sporadic interventions in the areas related to civil registration, border crossing and public order.
B.
The UNMIK Regulations on Exclusion, Prevention of Access and the SRSG's Decision on Refusal of Entry
UNMIK has indeed done much for the recovery and progress of Kosovo, and for the building of functioning, democratic institutions where democracy
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had always been a distant echo. Unfortunately, and the topic will be examined in more details further on, its limits lie mostly in the quality and durability of the provisional institutions it created and to an even greater extent in the fact that UNMIK seldom distanced itself from the emergency-driven approach that characterizes international peacekeeping operations. While such an approach is valid for classic peacekeeping and peace enforcement operations, reality shows that it is far less desirable an approach when it comes to an enormous institution and nation-building enterprise like UNMIK. In the case of migration management and border control mechanisms, the international administration has shown an incoherent approach. On August 12, 1999, the SRSG promulgated UNMIK Regulation 199912, which attempted to regulate the prevention of access by individuals and their removal to secure peace and order in Kosovo. Section 1 of the regulation stated: 1.1. The relevant law enforcement authorities may temporarily remove a person from a location, or prevent access by a person to a location, if this is necessary in the opinion of the law enforcement authorities and in light of the prevailing circumstances on the scene, to prevent a threat to public peace and order. 1.2. A threat to public peace and order may be posed by any act that jeopardizes: (a) the rule oflaw; (b) the human rights of individuals; (c) public and private property; (d) the unimpeded functioning of public institutions. 1.3. The relevant law enforcement authorities may temporarily remove a person from a location, or prevent access by a person to a location, if this is necessary in the opinion of the law enforcement authorities and in light of the prevailing circumstances on the scene, to prevent interference with the carrying out of the duties of the fire department, the delivery of first aid, or any other emergency activity. The regulation seems to be applicable primarily to persons who are already in the territory of Kosovo. The possibility of applying it to cases of refusal of entry cannot be ruled out, but the border police statistics show that it has never been used in such cases. The regulation, therefore, cannot be considered a border control measure but rather a public order measure. UNMIK Regulation 2000/62 presents, instead, a clear example of legislation that recalls the previous SFRY codification, including international standards and innovating the law at the same time. It deals with the exclusion of persons for a limited period from certain areas of Kosovo, for the purpose of securing public peace and order. The regulation does not seem, once again, to provide useful tools to border police for justifying a refusal of entry, at least not primarily. Statistics seem to confirm that the regulation is directed towards
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persons that are either resident in Kosovo or have already entered the territory. It is nevertheless interesting to note that the regulation recalls that: When reviewing the order, the judge ... whether the order requiring the person to leave and/or stay away from the specified area may subject him or her to persecution within the meaning of the 1951 Convention on the Status of Refugees. 27 It further states that: For the purposes of the present regulation the provisions of articles 183 and 281 of the FRY Code of Criminal Procedure are modified ... The present regulation shall supersede any provision in the applicable law which is inconsistent with ip8 Another UNMIK legislative act that is relevant for this discussion is the SRSG's Executive Decision Number 2000/4. Its importance lies in the fact that on one hand, it is the only act ever issued by the international administration dealing with refusal of entry; on the other hand, it shows that the previous Yugoslav law on the matter is considered expired or obsolete and inapplicable. 29 Once more the decision focuses on the maintenance of law and order and does not carry any of the typical instruments of border or immigration services in order to evaluate the administrative position of an individual attempting to enter a country or territory:
Section 1 A law enforcement officer may refuse entry into the territory of Kosovo if he or she is of the opinion that an individual: (a) is or has been involved in the commission, preparation or instigation of acts directed against the public safety and order and to the civil law and order in Kosovo; or (b) is attempting to enter Kosovo with a view toward being involved in the commission, preparation or instigation of acts directed against the public safety and order and to the civil law and order in Kosovo. Section 2 of the decision states that in order to decide whether to allow or deny entry, a law enforcement officer may check the identification documents of a person or may photograph a person who enters Kosovo without an identification document. 30 UNMIK Reg.2000/62, para. 3.3. [d., paras. 4 and 6.1. 29 As a matter of fact, the decision does not even quote the Yugoslav law on travel and residence of foreigners. 30 Executive Decision 2000/4, paras. 21 and 2.2. 27 28
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Section 3 of the decision deals with the appeals mechanisms: Section 3 3.1 An individual whose entry into the territory of Kosovo has been refused by the law enforcement authorities may file a petition with Ad Hoc Commissioner against the refusal. 3.2 When reviewing the petition, the Ad Hoc Commissioner shall consider whether the individual sought entry into the territory of Kosovo for a legitimate purpose, such as for the purpose of visiting family, conducting legitimate business, or providing humanitarian assistance. 3.3 The Ad Hoc Commissioner may reject the petition or recommend that the individual be allowed entry into Kosovo.
The executive decision, as specified in its text, expired in November 2000. Since then, no other instrument (such as an Administrative Directive) has been emanated by UNMIK on the matter. Again, official records show that no person has been ever subjected to a refusal of entry decision based on this regulation, and no appeal has ever been filed.
c.
Citizenship Versus Habitual Residence Status: The Regulations on the Central Civil Registry and on Travel Documents, and Its Practical and Perspective Implications
Citizenship is defined as the status of a citizen and denotes a special relation of loyalty and mutual obligations between a particular individual and the state in which that individual is entitled to e~oy the protection of the state itself, and the privileges and rights accorded to him as a consequence of the special relation. In Kosovo, due to known political and historical events and its current non-statehood, the concept of citizenship (still formally belonging to the natural heir of the SFRY, Serbia and Montenegro) has been supplemented with the notion of habitual residence status. The applicable law on residence (UNMIK Regulation 2001 /l3 on the Central Civil Registrary and subsequent amendments) covers only those individuals that are eligible to have the status of permanent residents of Kosovo. Briefly, this consists of people that have resided in Kosovo for at least five years and persons either born in Kosovo or who have at least one parent born in Kosovo. Towards this end, witness statements or virtually any official document are considered acceptable proofs in establishing one's identity or previous residence in Kosovo. In addition to these already "flexible" mechanisms, a series of other criteria were introduced in the occasion of the first elections in Kosovo. Though it is clear that UNMIK had to fill the void left by the evacuation of the Serbian administration and had to cope with a massive number of persons whose documents had been withdrawn or destroyed by Serbian forces, the possibility that the system could be abused to create new identities is far from
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being realistic. There are multiple sources of criminal intelligence that have indicated that a vast number of foreigners have entered or have attempted to enter and stay in the Schengen area and Western Europe by producing identity documents that attest their Kosovar origin. On the other hand, the problem of vast numbers of citizens, without citizenship documentation (especially in the Gjilane-Preshevo-Kumanovo-Trgoviste region 3!), has surely contributed to the abuse of the system. It would appear that, in the case of Macedonia, resident ethnic Albanians, who were not registered or did not register as citizens, have resorted to some of the methods described above in order to obtain documents issued by UNMIK. In perspective, this has the potential to ignite conflicts in border areas, especially in view of the discussions on Kosovo's status and possible statehood. IV. UNMIK REGULATION 2005/16 ON THE MOVEMENT OF PERSONS IN AND OUT OF KOSOVO
The regulation was launched in mid-200S in order to introduce "measures aimed at improving the border controls primarily directed at combating organized crime operations and human trafficking"32 and to formalize the procedure so far adopted by UNMIK police. It consists of two major components, one related to the procedures and requirements for entering and exiting from Kosovo, the other dealing with the sensitive issue of refugees. Though the efforts undertaken, in particular, by the UNMIK Department of Justice to address this issue have to be praised, the regulation is far from responsive to Kosovo's needs of border management. Nor, to be fair, is the regulation aimed at that particular scope. In fact, in terms of pure migration elements, it only aims at defining the classes of persons who can enter Kosovo and sets simple standards for refusal of entry. The regulation states that the following categories of persons can enter and remain indefinitely in Kosovo: 2.1 A person has the right to enter and remain indefinitely in Kosovo if such person: (a) holds an UNMIK travel document; (b) holds an identity card indicating that the bearer is a habitual resident of Kosovo; (c) is a dependent family member under the age of eighteen (18) years or the spouse of a person who falls under any of the above categones; or 3! See Henry Bolton, "Border Management in the Kosovo-Southern Serbia-FYR of Macedonia Vortex: a local perspective," East West Institute Policy Brief, Feb. 2005. 32 UNMIK Special Press Briefing, June 22, 2005. The regulation contains actually ony one sub-paragraph stating that a person shall not be denied entry ifhe/she provides reasonable evidence of being a victim of trafficking (paragraph 23.3).
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(d) Is authorized to reside indefinitely in Kosovo by the relevant governmental authority based on guidelines and rules established by the Government in coordination with UNMIK. 2.2 A person who does not meet the conditions of section 2.1 shall not be required to obtain authorization to enter and remain in Kosovo, if such person holds a travel document or identity card of the State Union of Serbia and Montenegro. Members of the international civilian and military presence, including members of established liaison offices, shall not seek authorization to enter and remain temporarily in Kosovo (2.3). Visitors are simply defined as persons who do not belong to the categories mentioned in pargraphs 2.1, 2.2 and 2.3 and are subjected to the authorization to enter and remain in Kosovo up to ninety (90) days. Such an authorization, accompanied by a stamp in the travel document (paragraph 6.1), can be renewed at any UNMIK police station and is granted if the person seeking entry (paragraph 4): (a) is visiting Kosovo for the purposes of recreation or tourism; (b) is enrolled in a study program in Kosovo; (c) is employed or has legitimate business interests in Kosovo or is visiting Kosovo in the course of his or her employment or business; (d) is a family member of a person who is in Kosovo on the basis of section 4(b) or 4( c); (e) is a family member of a person who is in Kosovo on the basis of sections 2.1, 2.2 or 2.3; (t) is in immediate and continuous transit to and from Kosovo; (g) is invited to Kosovo by a competent authority; or (h) meets the requirements of section 16, section 17.1 or section 18."33 Refusal of entry can be enforced, and must be issued in writing, if (paragraph 5): 5.2 Notwithstanding section 4, an officer may deny a person authorization if the officer has reasonable grounds to believe that such person: (a) Is suffering from a serious communicable disease likely to endanger public health or public safety, as confirmed by a medical doctor competent for public health in Kosovo; (b) Will engage or has engaged in terrorist acts; (c) Is or has been a member of an organized criminal or terrorist organization; (d) Will engage in acts of violence that would or might endanger the lives or safety of persons in Kosovo; 33 Provisions related to situations of mass influx, the principle of non-refoulement, and temporary stay.
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(e) Has previously been removed from or denied authorization to enter and remain in Kosovo and the grounds for removal or denying authorization still apply; (t) Is transiting through Kosovo in order to enter a country illegally; or (g) Is entering Kosovo in order to undermine the purposes and principles of United Nations Security Council resolution 1244 (1999), including the maintenance of civil law and order, the protection and promotion of human rights and assuring the safe and unimpeded return of all refugees and displaced persons to their homes in Kosovo. Measures to secure the presence of persons include detention of up to 72 hours (which can be extended) when there are reasonable grounds to believe that (paragraph 19.3): 19.3 ( ... ) there are reasonable grounds to believe that such person may abscond during his or her temporary stay in Kosovo and the measures provided for in section 19.1 or, in the case of minors, section 19.2 will be insufficient to guarantee the presence of such person or if there are reasonable grounds to believe that such person would endanger security in Kosovo or that he or she is entering Kosovo in order to undermine the purposes and principles of United Nations Security Council resolution 1244 (1999), including the maintenance of civil law and order, the protection and promotion of human rights and assuring the safe and unimpeded return of all refugees and displaced persons to their homes in Kosovo. Appeals against such decisions can be presented to the competent District Court, which is also in charge of deciding on denials of refugee status (paragraph 22). In sum, the regulation does offer, for the first time, generic standards to the border police, especially with regard to entry refusal. Refusals of entry (Refoulement) had been enforced by the UNMIK border police since the start of the mission in 1999, however without any clear guidelines or official procedure to determine the criteria for enforcing such acts. This resulted in the border authorities taking decisions in a decentralized manner, judging on a caseby-case basis. The further result has been that certain border crossing points such as Pristina Airport, which were equipped with a greater number of specialized officers and better facilities, enforced several hundreds of refusals of entry and initiated an equally large number of prosecutions. In contrast, those border locations, which were not adequately staffed, equipped or trained, had a much lower statistic of refusals and, overall, a much lesser number of open criminal cases. The regulation also obliges visitors (a euphemism for the word "foreigners," not used in the document for its implications towards statehood) to regis-
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ter at a local police station. However, the document does not provide for adequate implementation mechanisms to cope with situations arising from illegal entry or stay (apart from detention in the available facilities, i.e., holding cells or detentions centers), or for the determination of refugee status. With regard to the latter, the regulation simply refers to the "competent authority within the Police and Justice Pillar of UNMIK" (paragraph 1.1) without actually naming such authority. While it is understandable that such a sensitive regulation might need a separate administrative direction to set up its implementation mechanisms, there are doubts that such administrative direction will be implemented in a timely manner, thus leaving the issue of overall border management and migration virtually unregulated.
v.
BORDER MANAGEMENT MECHANISMS
Border management can be defined as an ensemble of legal and operational tools that regulate the inflows and outflows of persons and goods through territories. In democratic states, the state border services, the immigration departments or the regular police forces are in charge of monitoring the movement of foreigners across national or supranational spaces (such as the Schengen Area) and to verify that the citizens of their respective countries have the necessary requisites to travel abroad. Primarily, border controls aim at ensuring a higher level of checks towards incoming foreigners. Past international experiences of mass influx, as well as the recent experiences of war in Afghanistan and Iraq, have proven that the importance of border management in post-conflict situations is paramount. Post-conflict, chaotic borders can, in fact, provide the ideal grounds for infiltrations of armed groups or criminal organizations, favor their growth by fueling cross-border crime and enable such groups to develop time-resisting roots within a territory. In contrast with the above-mentioned principles, until very recently, the primary concern of the border police has been to monitor the movements of Kosovar residents towards third countries. While this was justified by the high risk (and high statistics) of outgoing illegal migration towards Western Europe primarily, there has been much less attention to monitoring movements of foreigners entering or transiting through Kosovo in order to, presumably, reach the same final destination. The fact that the offense of smuggling of migrants was formally introduced within the Kosovo Provisional Criminal Code34 as late as April 2004 has indeed created an additional window of opportunity for organized criminal groups. Among the operational mechanisms used for border control, states avail themselves of increasingly sophisticated information technology (IT), biomet34 The offense featured in Article 138 ofthe Code fully reflects the text of the definition of smuggling of migrants featured in the Protocol against the Smuggling of Migrants by Land, Air and Sea (UN Convention Against Transnational Organized Crime, 2000).
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ric tools and new technologies; the data of border crossers are usually collected into databases such as, for example, the Schengen Information System (S.LS). In Kosovo, until late 2003, there were no such mechanisms. The only form of registration of foreigners was the compilation of a paper logsheet ( apparently an inheritance of the Former Yugoslavian practice), at the discretion of the local officer-in-charge, in which data of border or boundary crossers was inserted. No particular distinction was made between Kosovo residents, citizens of Serbia proper and foreigners. The log usually contained data related to vehicles and the driver/owner, seldom including data related to passengers. The introduction of the Personal Identification Secure Comparison and Evaluation System (PISCES) system was a major innovation. PISCES is primarily a counter-terrorism tool that the United States founded under the Terrorist Interdiction Program (TIP), placed at key transportation points or otherwise important international crossroads that have been identified by intelligence analysis and interagency assessment. The system is capable of recording biometric data, has scanning capabilities and compares the inserted data against a central database, enabling officials to identify, monitor and/or detain individuals of interest. While PISCES can be indeed categorized as a border management tool, the system has been conceived primarily as a Watch List, the main aim of which is to intercept and monitor movements of persons relevant to US interests in the first place. The system is equipped to store sensitive data (the so-called Stop List), which can be compared with the data of border crossers. In case of a match, the system blocks itself and a "flag" appears, indicating the action to be undertaken towards the person under examination. Currently, no clarity exists as to the criteria for the insertion of data into the Stop List, as UNMIK's leadership never specified such criteria. No clarity exists as of the treatment of personal data. The administration of the system and the policy for its functioning and management has been entirely delegated to the border police; the highest normative source concerning PISCES is an Operational Bulletin signed by the Police Commissioner in 2003. While arguably the European border management system (SIS) is currently at the center of serious discussions concerning the access to and editing of the data, together with its general purpose, especially in the aftermath of Sept. I I , there are nevertheless mechanisms to discuss the way in which _the system is or will be utilized in the future. The use of a much less accountable system such as PISCES in a territory, which is a potential candidate for EU accession, should therefore be carefully reviewed.
VI.
MANAGEMENT OF THE CIVILIAN POLICE COMPONENT
The overall inefficiency ofUNMIK in addressing border management challenges is also a reflection of an obsolete concept of peace operations, especially with regard to the importance of criminal justice and policing in peace operation theaters.
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In post-conflict situations, it is necessary to provide those immediate measures that can help restore basic public peace and order and ignite the start up of institutional rebuilding. Hence, policing primarily is a public order task, where literally a gun and a badge can make a police officer. During these phases, the use of constabulary or special police units such as the french Gendarmerie or the Italian Carabinieri is more than a valid alternative to the non-recommendable use of the military for the performance of police functions. 35 However, in complex peace operations, even constabulary police forces are not a reccomended long-term solution, as policing (regardless of where it is performed), remains a social function to be performed from within society, not from the outside. In peace operation theaters, where linguistic and cultural barriers add to the difficulties of the job itself, the use of highly specialized personnel is of capital importance. Unfortunately, this golden rule seems to be seldom applied in any CIVPOL operation and has greatly affected the CIVPOL component of UNMIK not only with regard to the deployment of specialized personnel to the border police (which is composed in minimal part from border guards or immigration officers, Germany being the only Western country regularly supplying officers from the ad hoc agency for deployment along Kosovo's borders and boundaries), but to UNMIK police in general. The role of CIVPOL within peace operations can be discussed from many perspectives. Here, it will focus on the recruitment of civilian police officers and on the overall management of the Civpol component. The United Nations does not have the capacity of deploying civilian police officers at short notice to peace operations and relies on member states to supply such officers. The existing Stand-By Arrangements System (a roster of police personnel available for rapid deployment) maintained by the UN Department of Peacekeeeping Operations (DPKO) has, so far, proven ineffective in providing leadership and skilled personnel to missions. This results in member states deploying those officers who are available, rather than those who are qualified for the job. This has resulted in the deployment of, at best, generalists rather than specialized police officers like community policing specialist, criminal and financial investigators, intelligence officers or other professional figures that UNMIK was and still is much in need of. Thanks to national contingents' dynamics wi thing the mission, specialist or command positions within UNMIK police are often filled by non-qualified personnel, resulting in inadequate guidance for the Kosovo police officers who should have, in theory, benefited from the experience of their international colleagues. In the case of UNMIK, over 1,3000 CIVPOL officers have rotated to the mission. Of these, a vast majority of officers came from developing countries. However, the obvious difference in professional standards between contingents is not limited to the nationality of the officers as one might initially tend to think. US CIVPOL officers, for example, are recruited through a private agency contracted by the State Department. 35
2002).
See Rachel Bronson, "When Soldiers become Cops," Foreign Affairs (Nov.lDee.
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The United States is the only country to use contractors, as opposed to police officers in national service, for UN and other international missions. US CIVPOL officers come from state and local agencies of widely varied size and character and from regional law enforcement sub-cultures that often do not prepare them for the unique challenges faced in peace operations. In addition, recently retired officers or military officers are often deployed to the mission. Because of their status, unless they are criminally charged according to the law applicable in the mission area and their immunity is waived by the United Nations, US CIVPOL officers are virtually immune from prosecution by their domestic courts. As for Great Britain, the UK contingent was originally divided into three different components, one being the former Royal Ulster Constabulary (now Northern Ireland Police Service), which was initially deployed to the most troubled spots of Kosovo, such as Mitrovica or to operational assignments, such as the close protection units. The second component was the Central Intelligence Unit contingent (CIU), composed of a very small number of intelligence officers seconded from the National Criminal Intelligence Service (NCIS), while the third (and most numerous) is the Ministry of Defense (MOD) police, a former semi-military national police force whose institutional mandate is to protect ministry of defense personnel and assets in Britain and overseas, with a very limited CID capacity. Though equipped with some officers of indubitable value, the fact is that most of its personnel is absorbed by guard and security duties. This includes the majority of those officers deployed to the mission. While the MOD police is a national and routinely armed police force ready to be deployed abroad in numbers, its characterization as a civilian police force is quite recent. Home Office police forces, more directly involved in civilian policing, are, by contrast, sent to other missions such as Bosnia-Herzegovina and Macedonia (both managed by the EU) but are not represented in the UNMIK police except by recently retired officers. In terms of management, the issue is the lack of a coherent mission strategy both at headquarters and at mission level, which highlights a lack of coordination. Again, while in the first phases of any post-conflict civilian police operation the primary task is to rebuild minimal conditions of law and order, the mission focus will then have to shift to building the capacity of the local police forces. In Kosovo, due to the enforcement nature of the mission, this should have been accompanied by an emphasis on those specialized areas of policing that require additional in-depth efforts, capacity, vision and commitment, such as organized crime (including smuggling of drugs, illegal migration, trafficking in human beings) corruption, criminal intelligence and others. Four different Police Commissioners have led the UNMIK police since 1999. Even though the visibility of the local police force, the KPS, grew progressively until the point that, as early as 2003, the vast majority ofthe "uniformed" duties (patrols, traffic police, station duties and border policing) were actually performed by the KPS, the transition of functions within the crime pillar started
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very late. In the meanwhile, a myriad of different units and offices were created according to the needs and the will of the moment, thus making it very difficult for UNMIK police to function properly, not to mention the almost totally neglected attention towards building the capacity of the KPS to counter organized crime. The years between 2002 and 2004 saw a sort of biblical multiplication of offices, positions and competences, with many of these offices reporting directly to the Police Commissioner, circumventing mission plans and procedures and functioning according to national dynamics rather than mission-established priorities. In contrast, little attention was given to developing existing units such as the Border Police Intelligence/Investigations Unit, which was never put in a position to function properly in spite of the incredible potential of the border/boundary related intelligence it could generate. UNMIK police was originally divided into CIVPOL (tasked with "regular"police duties, SPU (the Anti-Riot Units) and border police (in charge of the management of checkpoints on the international borders). It was directed by a Police Commissioner and two deputies (Operations and Administration); at the regional level; a Regional Commander was the highest local police authority. Policing functions, including serious and organized crime, remained decentralized until late 2002. The crime pillar of UNMIK police, tasked with the fight against serious and organized crime, was established only in late 2003 with the appointment of one ad hoc Deputy Police Commissioner, and included little or no KPS36 management component until late 2004. The border police, which initially constituted one of the three pillars of UNMIK police, was transformed into a Regional Headquarters in 2002, in spite of the fact that its stations were disseminated all over the territory of Kosovo. This situation stayed the same even when the border police was tasked to take over the Administrative Boundary Line Checkpoints with Serbia, thus absorbing personnel of over 1,000 police officers. The ideal placement of the border police within the UNMIK police organigram would have been as a pillar of the Police Main Headquarters, lead by a Deputy Commissioner for Border Police. This would have ensured the appropriate level of authority to its leadership, and would have facilitated the management of border-related issues at the HQ level. Overall, it is the whole concept of the rule of law component in peace operations that has to be rethought within the UN DPKO. Even though a complex, executive operation, such as UNMIK, may not be repeated, the capacity to steer away from the emergency-based approach is a must. The priorities identified in two of the most recent key documents on peace operations, the so-called Brahimi Report and the US Presidential Decision Directive PDD-71 ,37 calling 36 KPS, the local police force organized by UNMIK, started promoting and incorporating senior management officers in "shadow" functions as late as 2004. 37 As a result of recommendations by the UN Experts Panel on UN Peacekeeping (the Brahimi Commission), the UN CIVPOL Unit was upgraded to a Division, afford-
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for the establishment of a permanent rule of law capacity, which included legal officers, judges and prosecutors as well as the civilian police, must be further developed. The creation of a core group of international, multidisciplinary police experts working exclusively for the United Nations, with the capacity of providing field leadership to missions and ensuring strategic coordination, is an option to be closely looked at. The recent experience of the UN CIVPOL components in Bosnia and Kosovo should also have been a "lessons learned" exercise for the newly formed (and expanding) civilian police capacity of the European Union, who took over the monitoring duties from the United Nations in Bosnia (EUPM), and established a monitoring/capacity-building mission in Macedonia. It is essential, in fact, that capacity-building, monitoring and mentoring duties are conducted with the same high standards that would be required for executive missions. However, it would appear that the capacity of the European police suffers from most of the problems that the UN CIVPOL experienced. 38
ing it equal status with the military in DPKO, and its staffing was increased. No judges or prosecutors are appointed to the Division. Though seconded civilian police officers holding UN contracts are appointed to the Department (mainly as desk officers), the deployment ofCIVPOL personnel to field missions, including leadership and decisionmaking positions, is still delegated to member states. The Clinton Administration directive PDD-71 stated that "In addition to helping bring peace operations to successful completion, an effective and just criminal justice system in countries emerging from conflict serves other very important u.s. interests. In particular, it helps to deter the presence of criminals who seek to base their operations in areas where they can operate without fear of arrest and prosecution. Such wrongdoers often include organizers of terrorism, illicit drug and arms trafficking, and international criminal syndicates." Admitting that "the current process used by our Government to recruit, prepare, train, and deploy civilian police officers to CIVPOL operations is not adequate," the Directive also highlighted that "Within the UN Secretariat staff, greater emphasis should be placed on matters related to the criminal justice system during peace operations. The current staff devoted to CIVPOL matters in DPKO is insufficient to accomplish the planning, coordination, and conduct of these operations. The United States shall advocate that DPKO strengthen its capabilities by installing an appropriate, senior-rank individual, with appropriate staff support, to oversee criminal justice matters. Furthermore, criminal justice functions should be fully integrated with other peacekeeping functions in DPKO. Adequate planning capacity within DPKO should account for CIVPOL requirements, including a criminal justice element, before a new operation is initiated or a mandate renewed. Criminal justice planners should be integrated into UN assessment teams that deploy to sites of potential peacekeeping operations and CIVPOL capabilities of more member states should be entered into the UN Standby Arrangements system." 38 See, inter alia, ICG's Bosnia s stalled Police Reform: No Progress, No EU, Europe Report 164, Sept. 6, 2005.
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CONCLUSIONS
Borders are a rather new notion in the area known as the Former Yugoslavia. The establishment of borders within what once was a united country has surely caused political, legal and social consequences. A border should not be considered as a barrier to separate countries, but as a means of facilitating the lawful exchange of people and goods. A border, without institutions supporting it, is usually felt by the people as a mere barrier and does not serve its purpose. Modem and effective border management mechanisms both at the operational and legislative level, addressing the demilitarization of borders, effective intelligence sharing within the region and effective mechanisms to manage returns, reintegration and orderly migration, are therefore necessary throughout the whole Balkan region, especially in view of the ongoing European integration process. In the case of Kosovo, they must be at the heart of any institutional arrangement that will substitute for UNMIK. Failure to do so may extend the situation of instability, caused by the improper management of borders and boundaries experienced since 1999, and may even fuel further instability.
CHAPTER 10 TRAFFICKING IN HUMAN BEINGS FOR THE PURPOSE OF SEXUAL EXPLOITATIONLEGAL CHALLENGES IN THE FIGHT AGAINST MODERN SLAVERY IN CRISIS REGIONS: A CASE STUDY OF BOSNIA AND HERZEGOVINA Valerie Wahl*
I.
INTRODUCTION
Being a global phenomenon, Trafficking in Human Beings (TiHB), as a rule, occurs in regions in political-economical transition, where the inhabitants are attracted by the chance to improve their living conditions in wealthier countries. Difficult socio-economical factors, weak civilian structures, corruption, the lack of the rule of law and, possibly, post-conflict stress in the countries of origin and transit allow traffickers to build up effective networks that comply with the demand for cheap labor and sexual services. After the breakdown of the communist and socialist regimes in the early 1990s, a large trafficking market developed throughout Europe, starting from Eastern European countries as main countries of origin and involving Central, Southeastern and Western Europe as countries of transit and destination. Whereas TiHB can imply different forms of serious human exploitation! affecting both genders, TiHB for the purpose of sexual exploitation of girls, women and boys has become the prevailing one in Europe, especially in the Southeast. A new form of organized crime developed for which Europe did not have adequate legal responses. The trafficking networks dealing with sexual exploitation follow a certain basic pattern. Traffickers deceive the potential victims in their home countries
*
Legal Advisor, EU Police Mission in Bosnia and Herzegovina. According to the definition of Trafficking in Human Beings as established by the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children from 2000, the exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs.
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by falsely promising them jobs in a wealthier country and thereby lure them into the trafficking circle. Occasionally victims are simply abducted. At an early stage, the victim is deprived of his/her identity documents and, as a rule, is repeatedly beaten up and raped by the traffickers. Once control over the victim is established, the latter is sold from one "owner" to another, from one establishment to another and from one country to another. The victim is forced to regularly provide sexual services and often finds him-/herself in inhumane living and "working" conditions that seriously affect his/her physical and psychological integrity. In some cases, the victims are forced to "work" around 20 hours a day. Some situations faced by trafficked victims amount to slavery.2 As a rule, the victim is forced to work without or hardly being paid, whereas the traffickers receive important financial gains through the victim's services. Trafficked victims hardly have any chance to escape from their situation. Regular intimidation and physical violence against them or their relatives, as well as fictive debt bondage and drug addiction, are regular means used by the traffickers to keep the necessary control over them. Especially vulnerable are poor, undereducated and under aged females. As a rule TiHB is exercised in the form of organized crime and is of cross-border nature. In Southeastern Europe it seems to have become one of the most lucrative businesses apart from drugs and weapons trafficking. The root causes ofTiHB, its complexity, a lack of awareness, legal responses and harmonized legal standards throughout the region have made it, however, a very difficult type of organized crime to combat. Over the past years, different legally or politically binding international universal and regional instruments have been developed that tackle the phenomenon of Trafficking in Human Beings from different perspectives. Whereas the human rights angle plays an important role, recent documents further try to find an approach on how to tackle TiHB as a serious crime and fight it effectively on an international level. International and regional organizations active in Southeastern Europe identified the urgent need for developing legislation in accordance with international and regional standards in order to effectively prevent and prosecute this crime and provide adequate protection and assistance to the victims. 3 During the past years, Southeastern European countries have increasingly made efforts to implement the relevant international and regional instruments and standards within their national legal frameworks. Despite all international and national legal achievements in the fight against TiHB for the purpose of sexual exploitation, there are still shortcomings that In accordance with the definition as outlined by relevant UN conventions, slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised. See, for example, the Reference Guide for Anti-Trafficking Legislative Reviewwith particular emphasis on South Eastern Europe, OSCE! ODIHR, 2001; more recently, the Legal Manual on Protection of Victims of Trafficking in Persons in BiH, UN OHCHR, 2005.
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need to be addressed and analyzed more thoroughly. Organized criminals have proven to be effective in identifying the shortcomings and using them for their benefits. This very nature might be the reason for the criminal system still to function and survive the way it does. Major legal challenges exist in the scope of criminal and criminal procedural law affecting all judiciary and prosecutorial bodies as well as police and other law enforcement agencies. The experience from the Southeastern European region shows that these challenges include the insufficient identification of the victim, the constantly changing modus operandi of the traffickers, the criminalization of prostitution and the lack of criminalization of the client of the trafficked victim. Another problematic aspect is the possible involvement of international peacekeeping personnel in TiHB. International peacekeeping missions are increasingly recognizing the importance of the phenomenon ofTiHB. Depending on their mandate, they might be directly involved in supporting the fight against trafficking,4 but, at the same time, their own staff might be potential clients or even become traffickers themselves. International presence, especially international military forces in crisis or post-conflict regions play an important factor with regard to the criminal business ofTiHB for the purpose of sexual exploitation, if not in number of clients, certainly in terms of financial contribution. This aspect provides huge challenges to the mission or troop contributing countries, not only in political but also in legal terms. The following chapter will outline important legal achievements in the fight against Trafficking in Human Beings at the international level and within Southeastern Europe. It will focus on trafficking for the purpose of sexual exploitation and outline different substantive and procedural criminal legal aspects that key players involved in the investigation encounter. The study will look specifically at the situation in Bosnia and Herzegovina (BiH) where there has been an international presence for more than ten years and where TiHB for the purpose of sexual exploitation, has become one of the major crimes. BiH has not only turned out to be an important country of transit and destination but has also revealed an increasing number of cases of national victims, thus becoming also a country of origin. Many aspects analyzed in this chapter are exemplary for other countries in the region and might even be considered relevant for further potential conflict regions. This chapter will focus on those legal aspects that are related to the criminal investigation of trafficking cases. It intends to raise awareness and give a thorough understanding of the problematic aspects. Based on practical experiences, it might provide some input for peacekeeping personnel involved in monitoring and assisting the law enforcement agencies in their investigations. The 4 International peace support missions in BiH such as the UN International Police Task Force operating between 1995 and 2002 and the European Union Police Mission, mandated with monitoring mentoring and inspecting the BiH police between 2003 and 2005, put a special focus on Trafficking in Human Beings as an increasingly important major crime.
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chapter will not cover the wide range of human rights aspects of TiHB and the related necessity to further develop and improve the relevant legal framework. s Sections II and III will briefly look at the international universal and regional instruments dealing with TiHB, whereas Section IV will analyze the national legislative efforts and developments in Southeastern Europe with a focus on the example of BiH. The fifth and conclusive section will outline the role played by international peace support operations with regard to the phenomenon ofTiHB.
II. INTERNATIONAL UNIVERSAL INSTRUMENTS DEALING WITH TRAFFICKING IN HUMAN BEINGS A number of international universal instruments relate to the problem of TiHB. They include legally or politically binding instruments adopted by the relevant bodies and organs of the United Nations and the International Labor Organization and touch on various aspects of the problem.6 Whereas many international documents focus on the human rights aspect, recently adopted international instruments provide a universal framework on how to fight TiHB as a serious crime of organized and cross-border nature. BiH, just as most Southeastern European countries, is bound by a range of international instruments related to trafficking and is therewith bound to harmonize its legislation with the standards the documents provide.?
A. The UN Convention Against Transnational Organized Crime
The UN Convention against Transnational Organized Crime 8 entered into See Legal Manual on Protection of Victims of Trafficking in Persons in BiH, UN OHCHR in BiH, 2005. For the various relevant conventions, resolutions, declarations and recommendations on international universal and regional level, see Council of Europe, Trafficking in Human Beings, Compilation of the main legal instruments and analytical reports dealing with trafficking in human beings at international, regional and national levels, in I International and regional texts 2 (2000); for a human rights orientated overview over the international and regional instruments, see further Legal Manual on Protection of Victims of Trafficking in Persons in BiH, UN OHCHR in BiH, 2005. A wide range of UN instruments related to human rights have constitutional rank in BiH. The country ratified further international documents relevant for the fight against Trafficking in Human Beings and is a member state of the Council of Europe and the Stability Pact for South Eastern Europe. GA A/RES/55/25, Nov. 15, 2000; the UN Convention and its protocols as well as signatories and ratification status can be found at www.unodc.orglunodc/en/crime_ cicp_signatures.htmi.
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force in September 2003 and was ratified by BiH in March 2002. 9 lt deals with the prevention of and the fight against crimes committed by organized criminal groups where either the crimes or the groups that commit them have some element of transnational involvement. State parties commit themselves to take a series of measures against transnational organized crime. These include the adoption of domestic legislation and measures to establish certain criminal offenses; measures to assist and protect victims and witnesses; frameworks for mutual legal assistance; extradition; law enforcement cooperation; technical assistance and training. As supplements to the UN Convention against Trans-national Organized Crime, two protocols tackle specific types of transnational organized crime related to the phenomenon ofTiHB. Whereas the Protocol against the Smuggling of Migrants by Land Sea and Air deals with the problem of organized criminal groups smuggling migrants across state borders, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children deals with TiHB as a specific phenomenon of modern slavery.
B. The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children came into force in December 2003 and was ratified by BiH in March 2002.lO It aims at preventing and combating TiHB, protecting and assisting victims and promoting international cooperation. Most important, the state parties commit themselves to criminalize TiHB and define it as a distinct crime. A clear definition of the crime commonly used by all states will make it possible to effectively engage in the necessary cross-border cooperation. With Article 3 of the Protocol the following first comprehensive definition of Trafficking in Human Beings was reached on international level: (a) "Trafficking in persons" shall mean ... the recruitment, transportation, transfer, harboring or receipt of persons by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or All Southeastern European countries have ratified the UN Convention against Trans-national Organized Crime. 10 All Southeastern European countries have ratified the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children.
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services, slavery or practices similar to slavery, servitude or the removal of organs; (b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used. (c) The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall be considered "trafficking in persons" even if this does not involve any of the means set forth in subparagraph (a) of this article; (d) "Child" shall mean any person under eighteen years of age. The UN Protocol definition does not restrict itself to one specific form of exploitation, "at a minimum" meaning that Trafficking in Human Beings might include any other form of exploitation. As a matter of fact, in Southeastern European countries, organized child begging as one possible form ofTiHB also plays an important role. In BiH, recent events further indicate possible cases of trafficking in organs. The definition further does not focus on one gender but recognizes that also men and boys are being trafficked. According to the UN Protocol definition, every person under 18 years of age who is subjected to one of the trafficking acts, such as recruitment, transportation, etc., is, per se, a victim. He/she is considered a victim regardless of whether a means of force, coercion, etc., has been used by the perpetrator and, thus, regardless of the possible consent of the victim to the trafficking act. In line with international human rights standards protecting children's rights, this aspect of the definition takes into consideration the specific vulnerability of minors. It is important with a view to the considerable percentage of minors among the trafficked victims. It has to be noted that the UN Protocol does not provide any explanations of specific terms used in the trafficking definition and gives no guidelines for the severity of the sanctions envisaged.
III. REGIONAL INSTRUMENTS DEALING WITH TRAFFICKING IN HUMAN BEINGS A number of regional initiatives, agreements, declarations and recommendations dealing with TiHB are applicable to the Southeastern Europe region.)) )) A series of documents exist in the scope of the Stability Pact for South Eastern Europe, the South Eastern European Co-operative Initiative (SECI), the Organization for Security and Cooperation in Europe (OSCE), the Council of Europe (CoE) and the European Union (EU). For an overview, see Trafficking in Human Beings in South Eastern Europe, UNICEF/ UN OHCHRI OSCE-ODIHR, 2003.
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With time, definitions of trafficking used by regional documents developed further. One important regional convention is in the drafting stage within the Council of Europe. The draft Council of Europe Convention on Action against Trafficking in Human Beingsl2 aims at preventing and combating TiHB, providing victim protection and promoting international regional cooperation. It further intends to set up a specific convention monitoring mechanism. The draft Convention takes up the definition ofTiHB established by the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children. But, contrary to the UN Protocol, the Council of Europe Convention shall apply to all forms of trafficking, whether national or transnational, whether related or not to organized crime. The drafting process of the Convention is intended to be finalized in 2005.
IV. NATIONAL LEGISLATIVE EFFORTS AND DEVELOPMENTS IN SOUTHEASTERN EUROPE-THE EXAMPLE OF BiH In the late 1990s the Southeastern European countries, including BiH, still did not have any significant legislation related to TiHB in place. Neither did their state structures include any relevant bodies responsible for coordinating efforts in the fight against trafficking. However, within the past years, these countries have made important efforts to implement international standards within their national legislation and harmonize the latter legislation with relevant international documents. Importantly, they started to reform their criminal and administrative legislations related to trafficking. In accordance with the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, most Southeastern European countries criminalize TiHB and adopt National Plans of Action providing series of measures related to different prevention, prosecution and protection aspects. The various Plans involve measures such as the establishment of special state bodies tasked with the implementation of the Action Plans, reform of the relevant legal framework, specific measures related to the border control, measures on victim protection and assistance, sheltering and repatriation as well as on prevention, training, education and awareness raising. 13
12 Council of Europe Ad Hoc Committee on Action Against Trafficking in Human Beings, CAHTEH (2004) INFO 4. I3 For an overview, see National Plans ofAction to Combat Trafficking in Human Beings, current status in the countries concerned, Stability Pact for South Eastern Europe, Nov. 2001; Trafficking in Human Beings in South Eastern Europe, UNICEF/ UN OHCHRI OSCE-ODIHR,2003.
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A. National Plan of Action of BiH
BiH adopted its first National Plan of Action in October 2001 and issued a reviewed version in April 2005. The latter puts a special focus on aspects of prevention, protection and support of victims and witnesses, prosecution and international cooperation and further improvement of the legal and institutional framework. 14 The function of a BiH State Coordinator for Combating Trafficking in Human Beings and Illegal Immigration was established in July 2003. 15 Hislher role is the coordination of the bodies, institutions and organizations active in the area of suppressing TiHB and illegal immigration. The State Coordinator is responsible for following up the implementation of the National Plan of Action and, for this purpose, elaborates yearly Plans of Activities.
B.
Substantive Criminal Legal Aspects in BiH
Due to the specific state structure of BiR, its criminal jurisdiction system is a rather complex one. The state consists of two entities and one special district, one of the entities further being divided into ten cantons. 16 All different state levels imply distinct and complex internal administrative structures, and also the judicial system is decentralized. As BiH is still in the process of centralization aimed at fostering sustainable state structures, most of the state competences are still granted to the entity, district and cantonal levels. Until 2003 the criminal jurisdiction was exclusively in the hands of the entity and district levels, each of which provides its own Criminal and Criminal Procedure Code. In 2003, however, a first Criminal Code and Criminal Procedure Code were adopted on the national level. The new BiH Criminal Code defines criminal offenses within the criminal jurisdiction of the new BiH State Court and includes criminal offenses defined by international law. 17 Newly established national 14 State Action Plan for Combating Trafficking in Human Beings 2005-2007, State Coordinator for Combating Trafficking in Human Beings and Illegal Migration, Jan. 2005. 15 Established by the Decision on the procedures and ways of coordination of the activities to suppress trafficking in human beings and illegal immigration in BiH and appointment of the function of National Coordinator for BiH, BiH Council of Ministers, July 17, 2003. 16 The two entities are the Republica Srpska and the Federation of BiH that includes the ten cantons. The special district is the District of Brcko. 17 The new BiH Criminal Code entered into force in March 2003 Gust as the BiH Criminal Procedure Code) and was last amended with effect as of January 2005; Official Gazette of BiH Nos. 3/03, 54/04, 61104. The existing entity and district criminal codes and criminal procedure codes were harmonized within the same year in accordance with the national codes.
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police bodies deal with the investigation of the crimes defined by the BiH Criminal Code, including the BiH State Investigation and Protection Agency with full criminal investigation competences and the BiH State Border Service acting within their specific border control related mandate. BiH complied with its international legal obligation to criminalize Trafficking in Human Beings. The BiH Criminal Code provides in its chapter "Crimes Against Humanity and Values Protected by International Law," in Article 186, the criminal offense of Trafficking in Persons. It is the first time that TiHB as a distinct and comprehensive criminal offense is defined within the BiH criminal law system. The definition of Article 186 BiH Criminal Code follows the core definition stipulated by the UN Protocol. In the scope of the latest amendments, it has been fully harmonized with the content of the UN Protocol definition, including its specific principles related to the consent of the victim and the child aspect. Apart from the basic criminal act, 18 the Article considers the following acts as containing aggravating circumstances: the perpetration of the criminal offense against a child or juvenile 19 and organizing or directing a group of people with the aim of perpetrating the criminal offense of trafficking. 20 It is important to note that-beyond the scope of primary application of the UN Protocol-Article 186 of the BiH Criminal Code does not restrict its application to transnational organized trafficking. Furthermore, the application of the definition of the criminal offense is not restricted toforeign victims. The criminal act can thus also be committed within BiH without having a transnational element, the perpetrator can be acting alone and the crime can be committed against a national victim. The last aspect is very important with a view to the increasing number of cases within BiH involving Bosnian victims. The practical implementation of the BiH Criminal Code provision defining Trafficking in Persons as a serious criminal offense, however, reveals some problematic aspects. It has to be noted that no further harmonized definitions or interpretations regarding the terms "exploitation," "exploitation of prostitution," "sexual exploitation" or "consent" and their various aspects exist yet. Significant case law analyzing the different terms of the UN Protocol's definition and their exact scope of application is still lacking. Interpretation guidelines would, however, be of crucial support for the law enforcement agencies in their practical investigation. They would help enabling to assess appropriately the various complex trafficking cases involving so many different indi18 For the basic criminal act a punishment 9i imprisonment for a term between one and ten years is prescribed by the BiH Criminal Code. 19 For the perpetration against a child or juvenile, a punishment of not less than five years imprisonment is prescribed by the BiH Criminal Code. 20 For the act of organizing or directing a group of people, a punishment of not less than ten years or long-term imprisonment (maximum 45 years) is prescribed by the BiH Criminal Code.
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vidual human fates. In some cases of Trafficking in Human Beings, for the purpose of sexual exploitation, the victim-while being recruited in her home country-knew beforehand that she would work in the prostitution business. However, she might have been deceived and, finding herself in the country of destination, she may not agree with the final "working" conditions or financial arrangements dictated by the traffickers. In other cases, the victim that was first forced into the trafficking circle or lured through deception regarding the promised job has given "consent" to the prostitution activities at a later stage. The motivation might be purely a financial one, the victim simply comparing her situation in the destination country with the hopeless situation she would have to face in the country of origin. An important implication is that more and more trafficker circles provide smaller amounts of money to victims that were not given any financial payment before, or they slightly increase already existing "salaries" of the victims. In some cases, they might also grant more physical freedom to the victim. In this way, the traffickers hope to reach the "consent" of the victim in order to facilitate control over the victim and/or to pretend non-exploitative working conditions. The calculation, thereby made by the traffickers, is a pure cost-risk calculation with a view to a possible prosecution. Judiciary and law enforcement agencies involved in trafficking cases need to thoroughly analyze what the term "exploitation" exactly contains and implies, what its limits of application are and to what extent it should be measured in financial terms, if at all. They further need to analyze how the "consent" of the victim relates to and possibly affects the legal assessment of the term "exploitation." Only then a harmonized substantive-legal approach to the various cases will contribute to effectively fighting Trafficking in Human Beings. The child aspect also implies practical problems. As explained, the specific vulnerability of underage persons is covered by the UN Protocol definition and the BiH Criminal Code. Within BiH the different organizational and non-governmental organizations dealing with the problem of children's rights provide different figures as to what percent of the trafficked victims are underage. The figures vary between 5 and 10 percent. 21 However, as pointed out by the European Union Police Mission in BiH, the grounds on which the local police estimate the age of the victims are unClear, as most of them have falsified documents or no valid documents at all. Further problems in the scope of the application of the BiH Criminal Code exist because of unclear distinction between the crime of Trafficking in Persons and other crimes that might occur in the same context of the act of trafficking. The BiH Criminal Code defines, in Article 187, the crime of International Procuring in Prostitution. Whereas Trafficking in Persons focuses on the exploita21 Compare the references made in Trafficking in Human Beings in South Eastern Europe, UNICEF/ UN OHCHRI OSCE-ODlHR, 2003. According to 10M statistics, the youngest victim found within BiH was 12 years old.
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tion of the victim and might relate to the exploitation of prostitution as just one possible form of human exploitation, Article 187 deals with procuring in prostitution, in general, as well as the aspect of forced prostitution and provides a transnational element. Article 187 penalizes: (1) Whoever procures entices or leads away another person to offer sexual services for profit within a state excluding the one in which such a person has residence or of which he is a citizen. It further punishes: (2) Whoever, by force or threat to use force or deceit, coerces or induces another person to go to the state in which he has no residence or of which he is not a citizen, for the purpose of offering sexual services upon payment. 22
The criminal acts described in Article 187 of the BiH Criminal Code correspond to definitions used in earlier international documents trying to tackle the problems of trafficking in persons and the exploitation ofprostitution. 23 As for the second criminal act described in Article 187, it might overlap with the scope of application of Article 186, as both articles involve elements of the use of force or coercion. Both crimes, however, have a different nature in terms of violation of rights and interests. Whereas Trafficking in Persons is exclusively focusing on the aspect of exploitation and aims at protecting the rights of any victim, International Procuring in Prostitution seems to primarily aim at preventing international circles of (forced) prostitution without providing for the element of exploitation. The Article excludes the cases in which the "victim" has a legal residence status within BiH or is a Bosnian national. In case Articles 186 and 187 overlap, in practice the investigative focus should be put on establishing grounds for suspicion of the crime Trafficking in Persons, being the more serious crime. If grounds for suspicion of Trafficking in Persons cannot be established due to lack of evidence-for example concerning the element of exploitation of the victim-International Procuring in Prostitution might be an important substitute offense. Potential trafficking cases within BiH have revealed difficulties for the investigators to clearly distinguish between the two. As Trafficking in Human Beings is a newly defined crime for which there is still a lack of legal understanding and social acceptance, investigators tend to focus their efforts on the aspect of prostitution as the more familiar one. Another difficulty seems to be the distinction between Trafficking and Smuggling of Persons. BiH has defined the crime of Smuggling of Persons in Article 189 of its Criminal Code, which was thoroughly amended 24 to comply 22 For both criminal acts, the BiR Criminal Code prescribes an imprisonment term of between six months and five years. 23 Compare for example the UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others from 1949. 24 The amendments entered into force in January 2005.
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with international standards. 25 Smuggling involves the factual transfer of a person across an international state border or the enabling of a person to remain within the territory of the state, in case the person in question does not comply with the requirements for legal entry or stay. The intent or consent of the person smuggled is irrelevant. Smuggling is a crime committed against the territorial integrity of the state. In cases involving Trafficking in Human Beings, not the territorial integrity of the state but the integrity of the person trafficked plays the crucial role. Important is the exploitative situation of the victim. TiHB is a crime committed against the free will and the physical and psychological integrity of the victim. In practice, however, it is possible that a person commits both crimes in one act, as many foreign trafficked victims are smuggled across the border. Also, an organized criminal group or an organized chain of perpetrators might intentionally focus on both crimes as being two linked lucrative "businesses." The practical experience in BiH shows again that investigators within BiH tend to focus on the smuggling aspect as the more familiar crime element rather than on the trafficking aspect. Further substantive criminal legal issues are to be considered during the investigation ofTiHB. In addition, the BiH Criminal Code penalizes other serious crimes defined by international law such as Establishment of Slavery and Transport of Slaves, as well as Torture or Other Cruel, Inhuman or Degrading Treatment that are possibly relevant in cases involving TiHB. The trafficking cases likely imply further common crimes such as murder, homicide, rape, sexual abuse, abduction, bodily injury, illicit abortion, unlawful deprivation of freedom, abuse of office and other crimes. Within BiH, criminal jurisdiction over these common crimes is still at entity and district levels. The BiH Criminal Code furthermore newly defines Unlawful Withholding of Identity Papers, a crime the definition of which corresponds to the practical circumstances in which a trafficked victim finds herself in most cases. If the grounds for suspicion of Trafficking in Persons cannot be established because of lack of evidence, the investigators should focus on subsidiary less severe crimes. In practice, however, these crimes are often disregarded or neglected by law enforcement agencies. Furthermore, it has to be taken into consideration that TiHB may not only be committed through positive act by the main perpetrator, but also through omission to act,26 in the form of an attempt, by accomplices, through incitement, accessory, abetting or in the form of conspiracy. The different forms of perpetration are important to effectively fight the well-organized trafficking structures. TiHB, as a rule, is a well-organized type of crime involving huge international networks of criminals benefiting from high profits. In BiH, the organ25 Article 189 of the BiH Criminal Code is in line with the UN Protocol Against the Smuggling of Migrants by Land Sea and Air from 2000. 26 The omission to act becomes relevant in cases in which border police officials are intcntionally passive while traffickers pass the border.
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ized networks do not provide a country-wide pyramid structure but are rather organized in smaller networks linked with each other and each specialized in certain aspects of the crime. To fight it effectively, further major crimes should play an important role in the scope of the criminal investigation. In accordance with the UN Convention Against Trans-national Organized Crime, the BiH Criminal Code newly defines, in Article 250, Organized Crime as an individual criminal offense. Organized Crime in terms of the Code involves a structured group of three or more persons existing for a certain period of time and acting in concert with the aim of perpetrating a crime for which an imprisonment of three years or more may be imposed. As Trafficking in Persons is a criminal offense, for which the BiH Criminal Code imposes a punishment of imprisonment of three years or more,27 it can therefore be committed in the form of Organized Crime. Article 250 of the BiH Criminal Code further penalizes the person for only becoming a member o/the organized criminal group. It also defines the act of organizing or directing of a group of people, which is, however-as explained earlier--defined as an aggravated form of Trafficking in Persons in Article 186 of the BiH Criminal Code. It has to be recognized that organized crime and other major crimes important in the context of Trafficking in Persons, such as Money Laundering, do not have a legal tradition in BiH yet. For this reason, and since special investigative skills and technical investigative means necessary to effectively tackle these types of crimes are still underdeveloped within BiH, investigators and prosecutors do not perform their tasks satisfactorily yet. In the context of the organized crime aspect of TiHB, the criminal liability of legal persons plays an important role. Traffickers often act through legal persons, including travel agencies, employment agencies, marriage brokers, sex shops or establishments providing prostitution facilities. The BiH Criminal Code has taken this aspect into consideration by providing the criminalliability of legal persons to be established without prejudice to the criminal liability of physical persons acting on behalf of the legal entity. The Code further provides a specific sanction system including fines, seizure of property and the dissolution of the legal person. One important legal aspect should be considered while assessing the success of the fight against this crime and searching for further legal solutions: the still prevailing lack of criminalization of the clients of the trafficked victim. So far, no national criminal legal system stipulates a criminal sanction for the client of a trafficked victim. As this aspect still seems to be a legal taboo in most societies, so far no serious initiative for analyzing a possible criminalization has been performed within Southeastern Europe, including BiH-apart from single recommendations expressed by organizations or individuals. However, it has to be recognized that the client is the main factual supporter of the criminal system. Without demand, there simply would be no business and 27 BiH Criminal Code, Article 186, prescribes a term between one and ten years of imprisonment for the basic crime.
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thus no crime. It is argued that the client, as a rule, is not capable of distinguishing between the trafficked victim and the non-trafficked prostitute. This argument, however, is not sustainable considering the practice. Taking the example of BiH, prostitution is illegal in most parts of the country in terms of public order and peace. At the same time, it is known that most establishments providing illegal prostitution are likely to involve trafficked victims. A client visiting such an illegal club or brothel therefore acts, at least, with gross negligence. In other cases, additional factors, such as the nationality or age of the victim or possible obvious drug addiction will indicate the identity of a trafficked victim. In the same context, there might be a need in the future to discuss the aspect of general legalization of prostitution, as legalization could possibly destroy the black market of illegal prostitution and therewith its linked phenomenon of trafficking. However, the necessary analysis needed to assess this aspect cannot be covered by this chapter.
C. Procedural Criminal legal Aspects in BiH In the scope of criminal investigations against major and organized crime, most post-conflict countries in transition, including BiH, have to cope with practical-technical problems affecting their investigative capacities. These include a lack of skilled investigators, appropriate equipment, technical means and financial resources. In addition, the law enforcement agencies are likely to encounter problems in implementing criminal procedural legal provisions. One important aspect in the effective fight against major and organized crime is the financial investigation and possible measures targeting property and assets of the suspect. The new BiH Criminal Procedure Code28 introduces measures such as the seizure of illicitly gained property or court orders issued to a bank or another legal person aiming, for example, at a turnover of financial information or a temporarily suspension of a financial transaction. As Trafficking in Persons is a highly lucrative business and is likely to be closely related to economic crimes including money laundry, police investigators and prosecutors should always take these possible-seizure measures into consideration. The new law thus provides all the necessary tools to target the property and financial assets of the suspect or convicted person, including possible closure of establishments associated with criminal activities and possible ban on carrying out a certain occupation. However, law enforcement agencies within BiH still hesitate to take advantage of these new and unfamiliar measures. 29 As 28 The BiH Criminal Procedure Code entered into force in March 2003. Official Gazette ofBiH No. 3/03. 29 Example: In the famous Trafficking in Human Beings case ofM. Milakovic, which involved a large network of organized crime and resulted in convictions of sev-
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a rule, money derived from confiscated assets should be used to compensate trafficked victims, to financially support awareness raising projects or victim reintegration programs in the countries of origin. The BiH Criminal Procedure Code further provides special investigative measures that might be requested by the prosecutor and ordered by a court against a person against whom there are grounds for suspicion that he or she has committed a certain offense. 3o These measures include surveillance and technical recording of telecommunications, access to the computer systems and computerized data processing, surveillance and technical recording of premises, covert following and technical recording of individuals and objects, use of undercover investigators and informants, simulated purchase of certain objects and simulated bribery, as well as supervised transport and delivery of objects of a criminal offense. The criminal offenses for which the special investigative measures can be applied include all the offenses defined under the BiH Criminal Code chapter on Crimes Against Humanity and Values Protected by International Law, thus including Trafficking in Persons, Procuring into Prostitution and Smuggling of Persons. The measures will only be ordered if evidence cannot be obtained in another way or would be accompanied by disproportional difficulties. Apart from the fact that the special investigative measures require specialized and mostly expensive equipment for which few financial resources are available in BiH, the measures further require effective communication and cooperation between the police and the prosecutor's offices. In the former BiH's criminal procedural system, the investigative judge was the main player in the investigation, whereas the prosecutor played a minor role. Intensive regular contact and cooperation between the prosecutor and the police was not important and thus does not have any legal tradition within BiH yet. Within the new criminal procedural system, the function of the investigative judge was abolished and the prosecutor now leads and supervises the investigation. The BiH police should, however, be proactive in their role with regard to the prosecutor including recommending investigative measures deemed promising with a view to the success of the investigation. In practice, the BiH police, but also the prosecutors, have important difficulties to adapt to the new procedural system and their newly defined investigative functions. The police hesitate to take the investigative responsibility and initiatives the law allows for-to the obvious detriment of the investigations. As mentioned earlier, the law enforcement agencies in BiH have difficulties distinguishing between the crime of TiHB and prostitution as illegal phenomenon. The criminal investigation of a trafficking case, however, requires a certain professional attitude and a specific investigative approach. This includes a sensitive and differentiated treatment of the potential trafficked victim, espeeral accomplices in 2004 and 2005, still no measures have been undertaken to tackle the fortune of the main perpetrator. 30 BiR Criminal Procedure Code, art. 116 et seq.
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cially during the conduct of an interview or while examining the potential victim as a witness. Unfortunately, in many cases, it is rather the victim that is treated as the perpetrator. As prostitution is still a minor offense in most parts of BiH, investigators tend to focus on the prostitution rather than the trafficking aspect. As a consequence, the victim is "criminalized." This is, however, counterproductive for the investigation of Trafficking in Human Beings. Often the victim is the only evidence available. As the "criminalization" by the police likely intimidates the victims, they often refuse to give their statement or to cooperate with the law enforcement agencies. In order to enhance the effectiveness of identifying trafficked victims, specially trained and equipped investigation teams need to be established within the police and the prosecutor's offices. 3l Another important aspect is the constantly changing modus operandi of the traffickers. Business requires adaptation to the circumstances. The criminals swiftly respond to legal developments or trends in the criminal investigation. In BiH, as a result of an increase of raids conducted by the police until 2002 in bars, clubs, hotels and brothels,32 the number of those establishments easily accessible to the public rapidly decreased. Instead, the sexual services are increasingly being offered in private places, primarily houses, apartments and other premises, through escort services, advertisements in newspapers and the Internet. Cases brought to the attention of the BiH police and the European Union Police Mission even involved ships operating on rivers that are exactly located on the BiH border in order to escape the jurisdiction of the bordering states and minimize the chance of being investigated. Traffickers further managed to increase their own protection by installing, for example, sophisticated observation equipment on their premises. Whereas it was difficult enough for the investigators to perform successful investigative measures within the establishments accessible to the public, it has become even more difficult with regard to these "hidden" places. This changing modus operandi of the traffickers requires important additional efforts by the police to gather the necessary intelligence about the suspects, their networks and their ways of operating. The lack of appropriate intelligence gathering by the BiH police seems to be a general problem in the scope of the investigations of major and organized crimes. An intelligence lead investigative approach does not seem to have any tradition within the crime investigation system of BiH. Under the mandate of the UN International Police Task Force the investigations ofTiHB cases were not sufficiently intelligence led. Raids were performed more or less deliberately without collecting the necessary intelligence beforehand. Also the raids 3l Training modules for police officials should already be included in the curricula of the police academies. 32 The raids were increasingly performed by the so-called STOP-teams under the mandate of the UN International Police Task Force operating between 1995 and 2002. As the UN Police Force had investigative powers, its investigators were leading the raids and local police was merely assisting.
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were tipped off through leaking channels involving the police. After 2002, the European Union Police Mission mentoring the local crime police assisted in developing crime intelligence concepts enabling the performance of intelligence-led investigations. The concepts include appropriate systems of informant and undercover agent handling that were not in place before. It has to be recognized, however, that most special investigative measures that relate to intelligence gathering-such as the use of informants and undercover investigators-are still in the process of being implemented. Appropriate legal provisions regulating the practical handling of the investigative measures within the law enforcement agencies are still lacking.
D. Witness Protection Legislation Within BiH
Within BiH, special provisions related to victim and witness protection are objects of new special laws. The BiH Law on Protection of Witnesses under Threat and Vulnerable Witnesses 33 provides two categories of witnesses. A witness under threat is a person whose personal security, or that of his family, is endangered through participation in the proceeding. The status is relevant in the general context of organized crime. A vulnerable witness is a person who has been severely physically or mentally traumatized by the events of the offense or who is otherwise unusually sensitive. Children and juveniles are considered per se as vulnerable witnesses. This legal status is most important in the scope of any Trafficking in Human Beings case. The law provides different procedural measures that can be taken during the process or trial to protect the witness and his/her identity and keep his/her statement confidential. Furthermore the BiH Witness Protection Program Law 34 regulates the protection of endangered witnesses during and after the criminal proceeding. It refers to criminal proceedings before the Court of BiH and mainly addresses the Witness Protection Department of the BiH State Investigation and Protection Agency,35 providing for different measures including data protection and temporary cover identity. However, delays still exist regarding the implementation of the laws for reasons of lack of financial resources and skilled personnel.
33 The BiH Law on Protection of Witnesses under Threat and Vulnerable Witnesses came into force in March 2003. Official Gazette ofBiH Nos. 21/03, 61104. 34 The BiH Witness Protection Program Law came into force in 2004. 35 The BiH State Investigation and Protection Agency is the national police body competent to investigate criminal offenses defined in the BiH Criminal Code.
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E.
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Cooperation in Criminal Matters Between Administrative levelsThe Problem of the Fragmentizing of BiH
As explained earlier, within BiH, the criminal jurisdiction regarding the criminal offense of Trafficking in Persons is exclusively granted to the state level. This implies that the Office of the State Prosecutor will lead, and the state-level police bodies 36 will assist the criminal investigations. However, as the offices of the state-level police bodies do not have overall field coverage within BiH, first intelligence in a potential trafficking case is likely to be collected at lower police administrative level-meaning entity, cantonal or district level. It is crucial for the successful investigation that professional assessment with regard to the crime of Trafficking in Persons is already being made at that lower administrative level. Most importantly, this includes the necessary professional and well-trained identification of the trafficked victims. The BiH state level will then have to be informed as soon as the grounds for suspicion of Trafficking in Persons are established, and cases will have to be transferred to the state level as appropriate and without delay. In individual cases, the statelevel prosecutors and police might then still depend on the practical investigative assistance of the lower administrative level. Practice, however, shows that the BiH fragmentized structure is far too complex, compared to the size of the state, and therefore ineffective in law enforcement matters. Criminal jurisdictions are more or less clearly defined for all the different administrative and judicial levels. However, legal insufficiencies and voids exist within the relevant legislation as for the question of effective cooperation and mutual assistance in criminal matters between the law enforcement agencies at the different levels. As there is no hierarchy involving both the state and entity levels, and possible legal obligations on cooperation and assistance cannot be mutually enforced, investigations are often obstructed by the unwillingness of authorities to exchange information or cooperate with authorities of another level. After the establishing of the state-level police bodies, many initiatives on different levels aimed at adopting regulations, agreements and memorandums of understanding between different law enforcement agencies in order to overcome the legal shortcomings. As a result, a number of documents have been signed and are in the process of being signed.37 In order to further improve cooperation and assistance between the agencies, standardized databases and a central database need to be established.
36 The BiH State Investigation and Protection Agency, as well as the BiH State Border Service. 37 The aspect of the fragmentizing of BiH and the lack of effective cooperation and assistance between the different police levels is one of the driving elements of an extensive structural reform of the BiH police as currently promoted by the international community within the country.
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Regional Cooperation in Criminal Matters and Cooperation With International Police Organizations
Further obstacles affecting law enforcement in criminal matters within BiH stem from the weak regional legal framework regarding cooperation and mutual assistance in criminal matters between the different Southeastern European countries. Relevant documents dealing with various cooperation and mutual assistance aspects, including bi- and multilateral agreements on extradition, are still in the process of being developed and improved. Further efforts have to be made in different areas including the consideration of joint regional investigation teams, a harmonized standardized exchange of information systems and standardized central databases. Also, the cooperation of the Southeastern European countries with international police organizations such as Europol and Interpol has to improve further.
G. Public and Administrative Legal Aspects Within BiH
Certain provisions deriving from the public and administrative legal framework within BiH have an impact on aspects that are relevant for the fight against Trafficking in Human Beings. The entity, cantonal and district Laws on Public Order and Peace define certain activities related to prostitution as minor offenses, depending on the concrete involvement of the offender. The laws define violations of the public order and peace, the leasing or giving of premises for carrying out prostitution, inciting or mediating in prostitution differently; but some laws also still punish the person engaging in prostitution. 38 That means that the trafficked victim, who is exploited as a forced prostitute, might be punished for a minor offense. To criminalize the victim of trafficking is, however, counterproductive for the investigation of the crime. As mentioned, the investigators tend to focus on the prostitution rather than on the trafficking aspect. In the past, this resulted in a number of cases in which all efforts were focused on charging potential victims for prostitution. At the same time, foreign victims without legal residence status, were charged for illegal stay, and the competent authorities initiated the procedures of expulsion from the country. The further result was that no appropriate statements of potential victims were obtained, and some of them were found back again in the circle of (forced) prostitution within BiH at a later stage. The mentioned Laws on Public Order and Peace therefore urgently need to be subjected to further revision.
38 The engaging in prostitution is still a minor offense in parts of the Federation of BiR and in the District of Brcko.
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The new BiH Law on Movement and Stay of Aliens and Asylum entered into force in October 2003. 39 It regulates conditions and procedures for entry of aliens into BiH and establishes provisions that are relevant for potential victims of trafficking. In line with the recommendations of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Article 35 of the BiH Law on Movement and Stay of Aliens and Asylum grants a temporary residence status, on humanitarian grounds, for up to three months to an alien who has been a victim of an organized crime and/or trafficking of human beings. Its application is not limited to victims willing to take part in criminal proceedings. The status serves for providing protection and assistance for the rehabilitation of the victim and for repatriation to the country of residence. But the status will also allow additional time for the police and the prosecutors' offices to conduct investigations. It is important that, within the mentioned time frame, the adequate identification of the victims is performed in order to obtain the necessary victim statements. If the victim is willing to cooperate, the temporary residence permit may be granted for up to one year and may be extended until the termination of the court procedure. In accordance with the required procedure of Article 74 and the following articles of the BiH Law on Movement and Stay of Aliens and Asylum, the alien victim of Trafficking in Human Beings-just as any other alien-may lodge a request for asylum. The BiH police often refer to the asylum request status as being obstructive to the investigation of trafficking, as the asylum seeker cannot be targeted for illegal stay. However, the legal status of the alien victim, subjected to a purely administrative procedure, should, in no way, influence the criminal investigation of Trafficking in Persons. It is not the victim who should be targeted for possible illegal stay, but it is the suspect who has to be targeted for committing the serious criminal offenses of Trafficking in Persons and Smuggling of Persons. It is important to note that in accordance with UNHCR guidelines, the situation of a trafficked person in the home country can be considered as "persecution" in terms of refugee status and thus provide grounds for a right to asylum. 40 A bylaw of the BiH Law on Movement and Stay of Aliens and Asylum was adopted by the new BiH Ministry of Security in 2004 and defines rules and standards related to the procedure of reception, recovery and repatriation of alien victims of trafficking in order to ensure their protection. 4 ! In accordance with this bylaw, competent authorities are obliged to treat persons as victims ofTiHB, as long as there are grounds to believe that the persons are such victims. However, the bylaw, as based on the BiH Law on Movement and Stay of
Official Gazette of BiH 29/03. Guidelinesfor International Protection, UNHCR, May 7, 2002. 41 The BiH Ministry of Security Book of Rules on the Protection ofAlien Victims of Trafficking in Persons, 2004. 39
40
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Aliens and Asylum, only applies to alien victims. There is still a legal void regarding the protection of national victims. A legal implication important for the investigation of a trafficking case derives from Article 4 of the bylaw, protection of victims of trafficking: According to this provision: Authorities in charge will not initiate proceedings against victims of trafficking for their illegal entry or stay in the country or for the act of prostitution or for possession or using of forged documents when such acts were committed as a consequence of trafficking in persons. In accordance with this provision, authorities involved in the mentioned administrative, criminal or minor offenses procedures have to refrain from initiating the proceedings against the alien victim. This means that an alien will not be punished, e.g., for the minor offense of engaging in prostitution, for illegal stay or for use of forged documents, as long as there are grounds to believe that she/he is a victim of trafficking. Unfortunately this provision is not properly taken into consideration in practice yet, and similar provisions applicable to national victims are still missing.
v.
THE INTERNATIONAL FACTOR: PEACE SUPPORT OPERATIONS AND TRAFFICKING IN HUMAN BEINGS
A. International Peace Support Operations and the Fight Against Trafficking in Human Beings
International peace support missions may be key players in the direct fight against Trafficking in Human Beings. In the example of BiH, the UN International Police Task Force, within its executive mandate, performed leading roles in different crime investigations including TiHB cases. As the phenomenon of trafficking became increasingly important, the UN police force put a special emphasis on this crime with the establishment of the so-called STOP teams. As a follow-up mission to the UN Police Force, the European Union Police Mission is mandated, since January 2003, with monitoring, mentoring and inspecting the BiH police at the different levels. The EU Mission has established, as one of its strategic priorities, the fight against major and organized crime including a special emphasis on TiHB. Within the relevant projects, EU trafficking experts promoted the establishment of special investigation teams, the so called FIGHT teams, within the lo'cal crime investigation departments. They further promoted the establishment of special equipment, such as special hearing rooms designated for professional questioning and examination of victims and witnesses. The EU experts are further involved in-among other
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aspects-promoting special police training and legal awareness related to trafficking. After the expiration of the mandate of the European Union Police Mission in December 2005, another EU follow-up mission will take up its activities in 2006 and it is likely that further emphasis will be put on the fight against major and organized crime, including TiHB. The European Union Force (EUFOR), the international military force responsible within BiH to guarantee peace and security, has followed up the NATO-based Stabilization Force (SFOR) in December 2004. EUFOR has declared to assist the local police in their fight against major and organized crime. Practice still has to show to what extent EUFOR will contribute to the fight against major and organized crime, including TiHB. To be in the position to monitor or support the local law enforcement agencies successfully in the fight against TiHB, it is advisable for all international key players to carefully follow up all legal and practical developments and the traffickers' changing modus operandi. One problematic aspect is that trafficking is a newly defined crime for all states, including those contributing to peace support missions. International experts will sometimes lack sufficient experience from their own home countries or will be unable to agree on common standards within one mission.
B.
Peace Support Operations and Potential Clients of Trafficked Victims
International peace support operations' personnel might become potential clients of trafficked victims. In most countries, where trafficking has become a problem, international presence was assessed as being one factor of the criminal business. According to earlier estimates within BiH, around 30 to 40 percent of the clients were internationals, but they were contributing up to 60 to 70 percent in financial terms. International clients include peace support mission personnel, especially military, but also diplomats and businessmen. Occasionally internationals within BiH have been identified as performing as traffickers themselves. A specific problem was revealed to be the status of foreign private companies providing support services to international missions or forces. The staff of these companies may enjoy diplomatic immunity but are not directly responsible to the management of the missions they are supporting, and therefore they are not directly responsible to their home countries. As a consequence, the staff neither fears criminal investigative nor disciplinary measures. It is up to the management of each peace support mission and the contributing countries to deal appropriately with the problem. Several aspects can be taken into consideration that are likely to contribute to a significant decrease in the number of clients and therefore to enhance the fight against the crime. A first important base is the awareness of the phenomenon of trafficking. As a rule, peace mission staff not directly involved in the fight against trafficking lack the specific knowledge of the problem and is not adequately sen-
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sitized. This affects primarily military staff that, as a rule, rotates on a short term basis. Staff newly deployed within a mission should be thoroughly briefed and trained on the problem. As an example, the European Union Police Mission in BiH, from the beginning of its mandate, has organized special briefings on TiHB in the scope of the regular introductory training offered to new mission staff. However, none of the international military forces that have so far operated in BiH, including EUFOR, have provided a specific awareness raising briefing system for its own staff. It is, furthermore, essential for every international peace support mission to provide for adequate internal control and disciplinary mechanisms to effectively respond to possible involvement of their staff in the trafficking business. As a rule, international mission staff enjoys diplomatic immunity within the mission area. The main mission internal regulating mechanism remains thus the internal disciplinary procedure. Most missions have inserted relevant provisions into their standing operation procedures, code of conducts or similar internal regulations, which could apply to cases where staff is involved in trafficking-be it as client or trafficker. Most missions provide for disciplinary procedures including repatriation as ultimate sanction. As a rule, it will be, however, up to the sending state to take the ultimate decision on a disciplinary sanction. In practice, disciplinary violations related to trafficking cases are not sanctioned in an effective manner. Cases tend to be neglected within a mission for the alleged sake of the mission's reputation, or the sending countries do not assume the responsibility they should. Diplomatic immunity within the mission area does not imply immunity from the criminal jurisdiction of the sending state. Many states provide for the principle of extraterritorial jurisdiction regarding serious crimes such as trafficking. However, there are still only few cases where former peace mission staff has been disciplined or convicted in their home countries because of involvement in trafficking. Most cases are not followed up properly in the sending states. Mission contributing states should make common efforts to review their approach to the phenomenon and to recognize that international presence in a mission area is likely to be an important contributing factor to the criminal system involving trafficking. The states should find harmonized solutions on how to reform the current system and how to deal with cases of possible involvement of their mission staff. Solutions to consider include: enforcing the severity of disciplinary sanctions within missions, strengthening the decision-taking mechanisms within the mission disciplinary systems by further delegation of power from the sending state to the mission management, obligatory briefings of mission staff, change of the legal status of the private companies that are supporting international missions or forces and that are acting beyond the law in the mission areas. And, finally, military missions or forces should also take into consideration the introduction of a system oflegalized and controlled sexual services within their mission in order to channel and control the demand of their mission staff.
CHAPTER 11 DETENTION OF INDIVIDUALS DURING PEACEKEEPING OPERATIONS: LESSONS LEARNED FROM KOSOVO Pascal M. Dupont*
I.
ABSTRACT
The legal framework for the international intervention in Kosovo allows the NATO-led security presence deployed under Security Council Resolution 1244, within its mandate and, where appropriate, in coordination with competent civil authorities, to carry out detentions in order to maintain a safe environment. Appropriate policies and procedures have been established for the exercise of the Kosovo Force's powers and, with respect to detention, these place proper emphasis upon the need for correct treatment and the necessary compliance with intemationallaw and human rights standards. The aim of this chapter is to discuss the legal aspects related to the detention of individuals during peacekeeping operations, drawing from the experience learned with the Kosovo Force (KFOR). After a brief introduction, Section III will describe the characteristics of the international presence in Kosovo and the need for detentions. Section IV will look at the special requirements under human rights law for the detention of individuals and the specific case of Kosovo, whereas Section V will draw the conclusions.
II. INTRODUCTION Since 1995, military forces led by the North Atlantic Treaty Organization (NATO) have played an expanding role in international peacekeeping operations in different countries and most especially in the Balkans. The first such
* Dr. iur, Commissaire de I'air in the French Air Force and Law Assistant at the University of Paris 2 Pantheon-Assas. Since 2002, he has been deployed twice to the Balkans, firstly to ensure the legal part of the handover of Sarajevo Airport between SFOR and the Republic of BiR and then as KFOR's Chief Legal Adviser. The views expressed in this chapter are solely those of the author who can be reached at the following address:
[email protected]. 249
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deployment was in Bosnia-Herzegovina (BiH) following the signing, by all parties concerned on December 14, 1995, at the Paris Peace Conference, of a General Framework Agreement for Peace in Bosnia and Herzegovina. This agreement invited the UN Security Council to adopt a resolution to establish a peacekeeping force in BiH composed of units from NATO and non-NATO nations. The second NATO-led peacekeeping operation began in 1999 in Kosovo and was sanctioned under Security Council Resolution 124411999 of June 10, 1999. 1 In both instances, the peacekeeping operations were seen as being of limited durations and aimed to be progressively scaled down with the expected stabilization of the respective security situations. Basic differences between the peace established respectively in Bosnia and Kosovo need to be underlined. In Kosovo the peace resulted from the military defeat of the Serbian forces. This territory remained technically part of the Former Federal Republic of Yugoslavia, but its government had been totally destroyed during the conflict so that the UN civilian presence had to start from scratch to form the civilian structure needed for the restoration of order and humanitarian services. A Status of Forces Agreement (SOFA) was never negotiated. This is most probably due to the difficulty of negotiating a SOFA with a defeated government that was forced to cooperate with the peacekeeping mission against its will. Nevertheless, the Kosovo Force (KFOR) and the UN Interim Administrative Mission in Kosovo (UNMIK) jointly recognize that the military peacekeeping forces and international civilian personnel are not subject to the jurisdiction of Yugoslavia and that they have authority to keep the peace and re-establish a civilian regime. The particular difficulty is that, without a SOFA, many things that have been clearly settled in Bosnia still need to be worked out in Kosovo. 2 Detention is a serious legal matter for KFOR that, from 1999 until 2004, was not always able to hand offenders over to a civilian government. Although this power resulted from its mandate, extra-judicial detention remains one of the most criticized aspects of peacekeeping operations in the Balkans. Is there any justification, at the beginning of the 21st century, for such prerogative and how can the military comply with the international law and human standards? "
III. THE INTERNATIONAL PRESENCE IN KOSOVO AND THE NEED FOR DETENTIONS Protecting individuals from gross human rights violations was the proclaimed purpose and justification of NATO's intervention in Kosovo in March Resolution 1244 (1999), adopted by the Security Council at its 401lth meeting, in June 1999. James A. Burger, in Dieter Fleck (ed.), The Handbook of the Law of the Visiting Forces 526-528 (2001).
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1999. In the aftermath of the armed conflict, violence continued to plague the territory and required a firm response by KFOR, i.e., the NATO-led security presence deployed under Security Council Resolution 1244.
A. Kosovo: A UN Protectorate
By the summer of 1998, the internal armed conflict between the ethnic Albanian Kosovo Liberation Army (KLA; in Albanian UCK) and the Serb authorities escalated from isolated incidents of violence to a full-fledged armed conflict. The Serbian regime and the Yugoslav army orchestrated a widespread campaign to "ethnically cleanse" Kosovo of the Albanian community. The NATO air campaign starting on March 24, 1999, initiated a concurrent armed conflict between Serbia and NATO. With the advent of peace, the NATO-Serbian Military Technical Agreement signed on June 9 called for the withdrawal of the Serbian military and police from Kosovo within 111 days. Since most members of the police, prosecutors and judges were Serbian, due to purges and resignations of the ethnic Albanians in 1989 and the early 1990s, a power vacuum was left. The United Nations believed that it could rapidly deploy to Kosovo an international civilian police (CivPol) to take over the Serb policing functions, which, in the meantime, could be undertaken by NATO and other international military forces. Since 1999, Kosovo has been administered by UNMIK. UNMIK promulgates regulations to address the civil and legal responsibilities of governmental entities and private individuals and ratifies laws passed by the Kosovo Assembly. UNMIK promulgated the Constitutional Framework for Provisional Self Government in Kosovo, which defined the Provisional Institutions of SelfGovernment (PISG). Kosovo has a multiparty political system with four dominant ethnic Albanian parties and several minority parties and coalitions. The head ofUNMIK is the Special Representative of the Secretary-General (SRSG) for Kosovo. As the most senior international civilian official in the area, he presides over the work of the pillars and facilitates the political process designed to determine Kosovo's future status. Four "pillars" were initially set up by UNMIK. Pillar I, Police and Justice and Pillar II, Civil Administration, both under the direct leadership of the United Nations, Pillar III, Democratization and Institution Building, led by the Organization for Security and Cooperation in Europe (OSCE) and Pillar IV, Reconstruction and Economic Development, led by the European Union (EU). In accordance with Chapter 2 of the Constitutional Framework (Principles to be observed by the Provisional Institutions of Self-Government), PISG officials must: (a) Exercise their authorities consistent with the provisions ofUNSCR 1244 (1999) and the terms set forth in this Constitutional Framework; (b) Promote and fully respect the rule of law, human rights and free-
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doms, democratic principles and reconciliation; and (c) Promote and respect the principle of the division of powers between the legislature, the executive and the judiciary. 3 KFOR is a NATO-led international force responsible for establishing and maintaining security in Kosovo. It is mandated under Security Council Resolution 1244 to establish and maintain a secure environment in the region, including public safety and order, to monitor, verify and, when necessary, enforce compliance with the agreements that ended the conflict and to provide assistance to UNMIK, including core civil functions, until these are transferred to UNMIK.4 KFOR contingents are grouped into several multinational brigades. Its troops come from more than 30 NATO and non-NATO member states. 5 Although brigades are responsible for a specific area of operations, they all fall under the "unified command and control" (UN Security Council Resolutions 1244, Annex 2, paragraph 4) ofKFOR from NATO. "United command and control" is a military term of art that only encompasses a limited form of transfer of power over troops. Troop contributing states have therefore not transferred "full command" over their troops. When states contribute troops to a NATO-led operation, they usually transfer only the limited powers of "operational control" and/or "operational command." These powers give NATO commanders the right to give orders of an operational nature to the commanders of the respective national units. The national commanders must implement such orders on the basis of their own national authority. Under Security Council Resolution 1244, the roles of KFOR and UNMIK police are distinct and independent. UNMIK police are responsible for ensuring the maintenance of civil law and order and public tranquillity, the prevention of crime, the apprehension of those committing crimes and the gathering of evidence when crimes are committed. KFOR's presence is to ensure and maintain a safe and secure environment. Therefore, pursuant to Security Council Resolution 1244, there is a clear division of responsibilities. The police have operational and tactical primacy in relation to civil law and order, civil public disturbances and riots. KFOR has operational and tactical primacy to create a safe environment in the event of public disturbances and riots of a nature that could be a threat to-overall security. Furthermore,
Constitutional Framework for Provisional Self-Government in Kosovo signed on May 15,2001. See M. Guillaume, G. Marhic & G. Etienne, "Le cadre juridique de la KFOR au Kosovo," Annuaire Fran(:ais de Droit International 292-307 (1999). The NATO members participating in KFOR are: Belgium, Bulgaria, Canada, Czech Republic, Denmark, Estonia, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Turkey, United Kingdom and United States. The non-NATO participating countries are: Argentina, Armenia, Austria, Azerbaijan, Finland, Georgia, Ireland, Morocco, Sweden, Switzerland, Ukraine and United Arab Emirates.
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joint operations may be conducted when there is a threat to both forces. KFOR's authority to ensure "security in Kosovo" includes measures that, under regular circumstances, would be exercised by police forces, as weIl as extraordinary military measures in emergency situations. In practice, KFOR has, since 1999, graduaIly reduced its involvement in maintaining security in Kosovo in favor of UNMIK police and the Kosovo Police Service (KPS). Currently KFOR troops largely limit themselves to the maintaining checkpoints-where persons may be searched-the search of houses and the occasional detention of persons. Although these activities only represent a smaIl part of the overaIl police functions in Kosovo, these are sufficiently sensitive, in human rights terms, as to warrant reflection. The sudden outburst of violence in March 2004 demonstrates that it is not impossible that KFOR may need to exercise its continuing residual responsibility for the overaIl security situation more broadly again. Detention was specificaIly referred to in UNMIK Regulation 1999/2 of August 12, 1999. Acting pursuant to the authority given to him under Security Council Resolution 1244, the Secretary-GeneraI's Special Representative clearly agreed to temporary detention. According to Article 2.1: The relevant law enforcement authorities may temporarily detain a person, if this is necessary in the opinion of the law enforcement authorities and in the light of the prevailing circumstances on the scene, to remove a person from a location, or to prevent access by a person to a location within section 1 of the present regulation. The same Resolution added in its Article 2.2: The detention may last only so long as necessary to carry out the actions specified in section 1 of the present regulation and in any case no longer than 12 hours. 6 B.
The 1999-2005 Period and the Numerous Inter-Ethnic Incidents
When KFOR began to enter Kosovo in June 1999, there was no police or functioning courts, and the penal system had coIlapsed. The Serbs, who had exercised most of these functions during the old regime, had fled, and by October the seven Serb judges and prosecutors serving in the Emergency Judicial System set up by the UN in July had resigned complaining about lack of security, the application of the wrong law by their Kosovar Albanian counter-parts, the discrimination against Serbs in the administration/of justice and insufficient payment. Most Kosovar Albanian judges and prosecutors appointed to the emergency system had not served for ten years7 and were biased against Serbs. See www.unmikonline.org. Only 30 of the 756 judges and prosecutors serving in Kosovo when the war began were Kosovar Albanians. See UN Doc. S/1999/779, July 12, 1999, para. 66.
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With the Serbs forces gone, the Kosovo Albanian majority unleashed a wave of revenge attacks on the remaining Serbs, Roma and other minority groupS.8 In most municipalities, the Kosovo Liberation Army (KLA) quickly moved to assume control by appointing "mayors" and other administrators, but its leadership did little to curb revenge killings, lootings, the torching of houses and the intimidation of the minorities, particularly the Serbs and Roma. KFOR and UNMIK thus faced the challenge of rebuilding the entire public security framework starting from scratch in an environment characterized by ethnic violence and rampant crime and active opposition from the Albanians and the remaining Serbs at all levels of society to any initiative deemed contrary to their ethnic group interest. 9 The violent events in Kosovo from March 17-19,2004, saw extra NATO troops reinforcing the 17,000 ones already deployed there. The authorities estimated that the violence had involved more than 50,000 people in scores of inc idents throughout Kosovo with Albanians attacking Serb enclaves and communities, but also involving Albanians attacking other minorities, notably the Ashkali community in Vushtrii. There were also reports of Albanians forced to flee the Serb majority areas of North Mitrovica. The inter-ethnic violence resulted in at least 19 dead-II Albanians and eight Serbs-and over 900 civilians injured, 22 seriously. Over 100 international and domestic police officers and 61 KFOR troop members were injured. In addition the violence resulted in over 4,000 internally displaced people and widespread destruction of houses. Thirty-five Serbian churches and monasteries were damaged or totally destroyed within a few days. One year later, 348 perpetrators of the March violence were brought to justice, and cases against 179 individuals have been completed. While the prompt action taken by UNMIK police to investigate these cases must be emphasized, nearly 3,000 cases of missing persons, which took place before the arrival ofUNMIK and KFOR in 1999, remain to be resolved. 10 In the context of riots, and especially in March 2004, KFOR has been criticized for not being able to sufficiently stem the violence. However, it must be accepted that although soldiers can patrol the streets and arrest people they witness breaking the law, conduct weapons searches, disarmament and riot control, they are not trained to contain crowds, conduct criminal investigations and fight organized crime. It is also clear that KFOR's involvement, not just in public security activities, but also in other "non-military" tasks, went much further than in the early phase of Implemented Force in Bosnia, when such involvement was regarded as mission creep. The Development of the Kosovo Judicial System (10 June through 15 December 1999) in OSCE Mission in Kosovo, Department of Human Rights and Rule of Law Division, Pristina, 17, 1999. Peter Viggo Jakobsen "The Role of Military Forces in Managing Public Security Challenges: As Little as Possible or Filling the Gap?," International Studies Association 43rd Annual Convention, Mar. 27, 2002, New Orleans. 10 Misha Glenny, "The UN and NATO are failing Kosovo," International Herald Tribune, Mar. 22, 2004.
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IV. THE USE OF DETENTION AND THE RESPECT OF HUMAN RIGHTS NGOs' criticism about KFOR has to be noted, too. Amnesty International, in its October 10,2003, Memorandum, referred to the apparent lack of accountability of international peacekeeping forces in Kosovo and Bosnia-Herzegovina stating that: There is no legal basis for ( ... ) KFOR detentions. The organization has also repeatedly expressed its view that the detention of people by KFOR without review by any judicial body violates national and international law and standards. Amnesty International understands from previous correspondences with both KFOR and the SRSG that KFOR considers that their authority to arrest derives from UNSC resolution 1244/99, which at Paragraph 9(d) charges the international security presence in Kosovo with responsibility for "ensuring public safety and order until the international civilian presence can take responsibility for this task." Amnesty International believes that, given the progress made by UNMIK in establishing the rule of law in Kosovo over the past three year-and in particular, the existence of a fully-functioning international (UNCIVPOL) and domestic (KPS) police service-this justification is no longer applicable. In this period, Kosovo has seen the development of a comprehensive body of applicable law and UNMIK Regulations with regard to arrest and detention and the establishment of a functioning judicial system. According to Amnesty International, similar arrest and detention cases by SFOR troops have occurred in Bosnia-Herzegovina in the past. Although KFOR is not a law enforcement body, it has to face public order matters and, sometimes, make arrests in order to maintain a safe environment. Since 1999, KFOR has tried to ensure that its powers of detention comply with human rights standards. Many efforts have been undertaken to respect both national and international law and to avoid criticisms from the international community and NGOs. Before reviewing KFOR detention policy, it is essential to scrutinize the legal standards applicable in Kosovo.
A. The Human Rights Instruments Applicable in Kosovo
In his July 1999 Report, which detailed the authority and competences of the UNMIK mission, the UN Secretary-General interpreted UNMIK's obligation under Security Council Resolution 1244 to protect and promote human rights as requiring international human rights standards as guidance and basis
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for the exercise of its authority. The first UMMIK regulation made domestic law applicable only insofar as it was compatible with human rights standards and required all persons undertaking public duties or holding public office to observe these in the course of their functions. Moreover, it mandated non-discrimination in the implementation of public duties and officials' functions. However, international human rights law in Kosovo is in force through different modalities. Firstly, human rights law is incorporated into the mandate of the actors deployed under UN auspices, as set forth in Security Council Resolution 1244. Secondly, the human rights obligations of the Federal Republic of Yugoslavia remain in force throughout the territory and may be said to be binding by reasoning of established principles of the law of state succession. Thirdly, the human rights obligations of KFOR's troops contributing nations apply to their troops abroad. I I The new Criminal Code and Criminal Procedure Code were promulgated in 2003 under UNMIK authority and came into force on April 6, 2004. One of the core principles in their framing was the protection of international human rights. These codes incorporate provisions from international instruments like the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Convention Against Human Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of December 14, 1984, and others. UNMIK Regulation 38/2000 of June 30, 2000, instituted the figure of an Ombudsperson in Kosovo According to Section 1.1: The Ombudsperson shall promote and protect the rights and freedoms of individuals and legal entities and ensure that all persons in Kosovo are able to exercise effectively the human rights and fundamental freedoms safeguarded by international human rights standards, in particular the European Convention on Human Rights and its Protocols and the International Covenant and Political Rights. Similar concerns have arisen in Bosnia-Herzegovina (BiH), although the situation there is somewhat different. The Dayton Agreement of November 10, 1995, ended the hostilities that had begun in 1992. Following this, on December 14, 1995, at the Paris Peace Conference, a General Framework Agreement for Peace in Bosnia-Herzegovina (Framework Agreement) was signed by all the parties concerned. This, in Annex 6, included an Agreement on Human Rights, which guaranteed all people in BiH the highest level of internationally recognized human rights and fundamental freedoms, including those provided in the European Convention of Human Rights (ECHR), the International Covenant on Civil and Political Rights (lCCPR) and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. 11 John Cerone, "Minding the Gap: Outlining KFOR accountability in PostConflict Kosovo," 12(3) European Journal of International Lawyer 472 (2001).
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Both the European Convention of Human Rights (ECHR) and the European Court are important in Kosovo. In 2004 Serbia and Montenegro signed the 1950 European Convention on Human Rights. The extra-territorial competence of the European Court over military personnel from ECHR contracting states has been the subject of significant rulings by the European Court. This may imply that cases involving members of national contingents of ECHR contracting states deployed to the Balkans are admissible to judgment by the European Court. One of these was the Loizidou case, in which the European Court ruled that Turkey was in breach of the ECHR in connection with the Turkish army's occupation of Northern Cyprus. 12 According to Article 5 of the ECHR and its Five Protocols: 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) The lawful detention of a person after conviction by a competent court; (b) The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after done so; ( ... ) 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph l(c) of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation. The same principles are contained in Article 9( 1) of the ICCPR, stating that "[ e]veryone has the right to liberty and security of person. No one shall be deprived of his liberty except of his liberty on such grounds and in accordance with such procedures as are established by law" 12 Loizidou v. Turkey, Judgment of Mar, 23, 1995 (Preliminary objections), Ser. A, No. 310, Loizidou v. Turkey Judgment of Dec. 18, 1996 (Merits), 1996-VI Reports
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B.
KFOR's Detention Policy
The improvement of detention conditions and compliance with human rights standards is at the core ofKFOR's detention policy. It now seems obvious that the detentions ordered by the multinational force are only of temporary nature and in compliance with most human rights standards. I3
1.
KFOR Detentions Are Temporary and Not Arbitrary
The basic principle is that detention, for the shortest time possible, is justified when it is unpractical to await intervention from a law enforcement authority such as UNMIK justice or police and where inaction may allow the individual to escape detention. Consequently, KFOR detention is the exception and is to be decided by the chain of command when necessary. Once again the midMarch 2004 riots are the example of a very difficult situation to manage. Normally, detained persons should be transferred to UNMIK as soon as possible, and detention is not supposed to exceed one month. Detention grounds are limited. The first condition is that individuals may be detained under the authority of the Commander of the Kosovo Force (COMKFOR) because they constitute a threat to KFOR or the safe environment in Kosovo. The second is that the civilian authorities are unable or unwilling to take responsibility for the matter and that the threat posed cannot reasonably be addressed by any lesser means than detention. The International Committee of the Red Cross (ICRC) is normally informed about the arrival at the detention facility of a person within a day. It must be noted that KFOR's detention policy does not apply to prisoners of war or persons indicted for war crimes by the International Criminal Tribunal for the Former Yugoslavia (lCTY) or other lawfully constituted international tribunals.
2.
Conditions of Treatment and the Human Rights Standards
Detainees are rapidly informed of the reason for their detention in writing, in their native language. Treatment of detainees is without distinction of race, color, sex, language, political or other opinion, national or social origin. Detainees receive food and clothing in sufficient quantity and quality to be kept in a good ofJudgements and Decisions No 26. See also Frederic Sudre, La Convention Europeenne des Droits de I 'Homme 94-96 (2004). 13 This recommendation was made by Alvaro Gil-Robles, in his October 18, 2003, report to the Parliamentary Assembly and the Committee of Ministers of the Council of Europe. See CommDH(2002) I I, at www.coe.int.
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state of health. Diets are consistent with their religious tenets, customs or traditions, unless operationally impossible. All reasonable efforts are made to support the detainees' religious worship requirements. They have access to free medical treatment and are separated by clan membership, religious belief, age, gender or any other relevant factor. They may submit petitions regarding their detention and are to be informed of this right upon arrival at the detention facility. They have access to a legal advisor or a representative and are allowed to receive visits from family members at least once a week. Upon delivery to a KFOR detention facility, the detainee will be informed, in writing and in his native language, of his rights therein. Receipt shall be documented by KFOR personnel. Military police, detention and military intelligence personnel have to conduct all interviews and questionings in strict accordance with the standard operating procedures (SOPs), which are compliant with international law. Resort to inhumane or degrading treatment or punishment is absolutely prohibited. To ensure transparency and facilitate the verification of compliance with internationally recognized human rights norms, detention facilities have to establish and publish an independent inspection mechanism. International humanitarian agencies, like the International Organization for Migration (10M), the UNHCR and the ICRC, are given regular access to the detention facilities and may schedule visits to the detainees.
v.
CONCLUSIONS
KFOR is not a law enforcement body. Detention by its forces is extra-judicial in nature. The armed forces are increasingly being required by their civilian authorities to engage in operational activities that are at odds with the traditional concepts of the law of armed conflicts and international law. Peacekeeping operations, post-conflict interim administration and anti-terrorist operations all bring armed forces into contact with the civilian populations in new ways, with sudden operational challenges and, inevitably, significant human rights concerns. It is imperative, in such circumstances, that the civilian authorities requesting the military engagement, whether individually or collectively through international mandates by the United Nations, NATO or the European Union, clearly define both the ends for which the military forces are to be deployed and the means that may be used. Indeed, the assumption of this responsibility is an important corollary of the civil control of the armed forces. Detention of individuals by the military, in the author's view, should be strictly monitored by the international community, ana all cases should be submitted to an independent panel of experts, 14 includOing some international prosecutors who are serving in Kosovo's judicial system. 14 See Council of Europe's Parliamentary Assembly Res. 1417, text adopted by the Assembly on Jan. 25, 2005.
CHAPTER 12 ACCOUNTABILITY FOR THE CONDUCT OF UN-MANDATED FORCES UNDER INTERNATIONAL HUMAN RIGHTS LAW: A CASE STUDY CONCERNING SEXUAL ABUSE OF THE UN MISSION IN THE DEMOCRATIC REPUBLIC OF CONGO (MONUC) Sandra Katrin Miller*
I.
INTRODUCTION
Peacekeepers involved in post-conflict peace operations have been accused of serious human rights abuses, such as sexual exploitation and abuse committed by military, civilian police and civilian peacekeeping personnel. However, this is not a new phenomenon. Starting in the UN missions in Bosnia and Herzegovina and Kosovo in the early 1990s, to Cambodia and Timor-Leste in the early and late 1990s, to West Africa in 2002 and the Democratic Republic of Congo in 2004,1 peacekeepers committing these crimes have escaped with impunity, returning to their home countries unpunished. Immunities attached to the peacekeepers create problems and raise the question of jurisdiction. The UN mission in the Democratic Republic of Congo (MONUC) serves as an example to show accountability mechanisms under international human rights law, reflected in MONUC's mandate, its own Code of Conduct but also
* B.A. and M.A. in Political Science and Communication (1991-1998), LudwigMaximilians-University, Munich, Germany, Master Degree in Human Rights and Democratization, European Inter-University Centre for Human Rights and Democratisation (EIUC), Venice (I) and Galway (EIRE) (2004-2005). The author has worked as a journalist in various conflict situations such Kosovo and South Africa and with an NGO in the Middle East. In 2004, the Department of Peacekeeping Operations (DPKO) received 16 allegations against civilians, nine against civilian police and 80 against military personnel. The majority related to sex with persons under 18 (45 percent) and sex with adult prostitutes (31 percent). AIIegations of rape and sexual assault comprised 13 percent and 5 percent, respectively. The remaining 6 percent of aIIegations related to other forms of sexual exploitation and abuse defined in the 2003 Secretary-General's BuIIetin. See UN Doc. A/591710, Marc. 24, 2005. 261
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the different accountability mechanisms provided by the United Nations in cases of sexual abuse committed by UN peacekeepers. Ultimately, this chapter suggests alternative means to hold peacekeepers accountable by examining possibilities of jurisdiction such as UN on-site courts martial, model memorandum of understanding and model criminal codes for post-conflict states. This chapter, therefore, will be structured as follows: Section II will look at facts and figures of MONUC and the problems this mission faces; Section III will discuss the accountability mechanisms under international human rights law. Section IV will focus on the legal obligations of troop contributing countries (TCC), state responsibility (due diligence) and recommendations for future missions to hold peacekeepers and their countries accountable for their misconduct. Conclusions are made in Section V
II. UN PEACEKEEPING MISSION IN THE DEMOCRATIC REPUBLIC OF CONGO (MONUC)
To provide a better understanding of the complicated task that MONUC has to face in the Democratic Republic of Congo (DRC), a brief outline of the dramatic situation that exists in the country will show the problems the UN peace operation is confronted with. According to a UN country profile of the DRC: the Congolese conflict has been the most deadly in the world since the Second World War, leaving an estimated 3.8 million people dead between August 1998 and April 2004; the current death toll is about 1,000 persons a day, which adds a further 280,000 victims for the period between May 2004 and January 2005. 2 The history of the DRC3 has been one of civil war and corruption. After independence from Belgium in 1960, the country immediately faced an army mutiny and an attempt at secession by its mineral-rich province ofKatanga. Neighboring states were active participants: Zimbabwe, Angola and Namibia backed the DRC government, while Rwanda, Uganda and Burundi supported anti-government rebels and invaded the North and East'ofthe DRC. On July 10, 1999, the DRC along with the neighboring states, with exception of Burundi, signed in Lusaka, Zambia, a ceasefire agreement to end hostilities. It also provided for a Joint Military Commission (JMC) composed of two representatives from each party under a neutral chairman appointed by the Organization of African UN Doc. E/CN.4/20051120, Feb. 7,2005. 54.4 million people live in the DRC (UN, 2004), a country larger than Western Europe (2.34 million sq km). The main exports are diamonds, copper, coffee, cobalt. The growth national income (GNI) per capita is US $100 (World Bank, 2003) and the life expectancy is 41 years.
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Unity (OAU). In January 2001 President Laurent Desire Kabila was assassinated. His son Joseph Kabila was chosen by close collaborators of his father to succeed as President and Commander-in-Chief of the Armed Forces. Currently, he heads an interim government, formed in June 2003, which includes members of former rebel groups, opposition politicians and Kabila loyalists. Eastern regions are still plagued by militia violence and, thus, the threat of civil war remains. Rwanda still plays a key role to the extent that Kabila has accused the Rwandans of attempting to keep control of Eastern DRC, in order to loot its mineral resources. Such illegal exploitation of the country's natural resources is closely linked to arms trade and illegal trafficking, which must be brought to an end. Particularly alarming are the crimes committed against Congolese women and their children, who are the main victims of the violence. Rape of women, girls and children has reached truly genocidal proportions. 4 Due to continuous instability and violence, the first democratic elections in over 40 years supposed originally to be held in June 2005, have been postponed. The International Criminal Court (ICC)5 has begun investigations of grave violations of international humanitarian law in Ituri, which could potentially lead to the indictment of one or more of the militia's commanders. Since the Congolese war is closely tied to conflicts in Rwanda, Burundi and Uganda, the conflict in the DRC will continue to affect and limit the social, political and economic development of Central and Southern Africa in the coming years.
A. Facts and Figures
The challenges facing MONUC are immense. 6 The mission has been asked to support a fragile peace process in which at least five other armies are involved.7 The complexity of this conflict and also the vast territory of the country has turned MONUC into one of the most complicated and expensive UN missions ever. 8
See UN Doc. E/CN.4/20051120, Feb. 7,2005. On April 19, 2004, President Kabila formally requested the ICC's help in investigating and prosecuting those responsible for committing atrocities in the DRC, which is an ICC member. The reason for the choice of MONUC is not solely due to its size and complicated task. Since the African continent is haunted by many armed conflicts, most of the UN peace operations are currently deployed there: In the Western Sahara (MINURSO), in Sierra Leone (UNAMSIL), in Eritrea and Ethiopia (UNMEE), in Liberia (UNMIL), in Cote d'Ivoire (MINUCI), in Burundi (ONUB), in the Democratic Republic of Congo (MONUC) and most recently in Sudan (UNMIS). Available at www.un.orglDepts/dpko/dpko/index.asp. Approved budget from July I-June 230, 005: $709,123,200 a year.
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B. Mission The mission began on November 30, 1999, and has its current authorization until October 1,2005. While the administrative headquarter is in Kinshasa, each sector of MONUC possesses its own headquarter. As of March 14,2005, the strength of the military was 16,177 men. The main troop contributing countries (TCCs) are: Pakistan, India, Uruguay, South Africa, Bangladesh and Nepal. European countries such as France, Belgium, Spain or the United Kingdom have only between two and nine military members deployed in MONUC. The civilian component of MONUC is substantially smaller. It consists of international staff (972), volunteers (490) and national staff (1 ,354). The civilian police encompass 182 police officers mainly from Nigeria, Guinea and Senegal. The only European police officers are from Turkey, France, Portugal, Sweden, Switzerland, Portugal and Romania.
C. Mandate MONUC's mandate is defined by Security Council resolutions. The current mandate is provided by Resolution 1493, dated July 28,2003, whereby the Security Council, acting under Chapter VII, authorized MONUC to use force for the protection of civilians. According to this resolution, MONUC shall "take the necessary measures in the areas of deployment of its armed units and as it deems necessary within its capabilities ( ... ) to protect civilians and humanitarian workers under imminent threat of physical violence."9 Subsequently several other resolutions have been adopted by the Security Council, which will be mentioned in the following sections.
D. Problems As one of the largest UN peacekeeping missions worldwide, many grave incidents have occurred. UN troops killed an e~timated 50 militias during a raid on March 1, 2005. But the United Nations has also suffered casualties-nine Bangladeshi were killed in an ambush in February of the same year. Some peacekeepers have been accused of sex exploitation oflocal girls and women. I 0 As a result, MONUC has lost much of its credibility. Nevertheless, there have been some positive impacts of MONUC, such as strengthening the judicial system in Ituri, bringing the human rights situation UN Doc. S/ResI1493, July 28,2003, para. 25. See UN Doc. A/59/71O, Mar. 24,2005; See also James Bone, "Peacekeepers in sex abuse scandal face paternity tests," The Times, Mar. 25,2005, at 46. 10
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to the attention of the UN Security Council and DRC government, through its human rights unit, and bringing people together through the first ever national radio station Okapi accessible to nearly every household. But strong criticism remains. MONUC has been continuously criticized for failing to protect civilians, particularly in the East where tribal-based militias have wrecked havoc and are accused of killing tens of thousands of civilians. Since December 2004, fighting has displaced more than 80,000 people. Additionally, the UN's abysmal response to an attack in Bukavu in June 2004 was analyzed by the organization. II A militia under the command of General Laurent Nkunda descended upon Bukavu, killing over a hundred civilians, while MONUC forces passively looked on. As a consequence, parts of MONUC's senior officials responsible for the Bukavu disaster left, while the Special Representative of the Secretary-General (SRSG), the American William Swing, remained in office. In the Eastern town of Bunia in May 2003, the United Nations did not intervene to stop renewed conflict either. Furthermore, the UN response to allegations of sexual abuses by its staff in the DRC was slow. MONUC is now interpreting its mandate more aggressively, trying to pursue groups threatening civilians. This could take MONUC to the borderline between peacekeeping and combat operations. It is rather peace enforcement than peacekeeping, especially at present, where the deadline of Aprill, 2005, for guerrilla factions to disarm is seen as a test of the mission's credibility. The aforementioned March 1 raid was seen as an example of the UN mission's new "no-nonsense" approach, which could take peacekeeping to new limits.I2 The task will not be easy and MONUC peacekeepers could find themselves confronted with human rights defenders as many of the militiamen are child soldiers. The reputation of MONUC has been severely damaged by acts of sexual exploitation and abuse committed by some peacekeepers against the local population. I3 But it has also raised the following question: how can the United Nations and its personnel be held accountable for human rights abuses, given its role in promulgating human rights standards and the fact that implementation of human rights protections is one of the main rationales for UN intervention? The application of human rights law to UN peacekeeping operations only makes sense when accountability is also guaranteed. The recently published UN report of Prince Zeid I4 identified loopholes in the legal regime governing UN missions that frequently allow UN personnel to escape prosecution II
See UN Doc. S/2004/650, Aug. 16,2004. See Andrew England, "UN soldiers talk tough in attempt to pacify Congo" and "UN learns hard lesson from 'organised' milita's tough response," Financial Times, Sept. 3, 2005, at 9. \3 Widespread sexual abuse by UN personnel is also known from the peace operations in Liberia, Sierra Leone and Guinea as the "food for sex" scandal. \4 See UN Doc. A/591710, Mar.24, 2005. 12
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for sex crimes. IS The United Nations received a total of 96 allegations (19 civilians, 77 military) against personnel in 2004. Three UN staff of MONUC have been dismissed, six are undergoing the disciplinary process and three had been cleared. On the military side, 66 persons were repatriated, and a French logistic expert prosecuted in France. 16 A country as large and as devastated as the DRC poses a real challenge to MONUC and its mission. The magnitude of the human, social and economic consequences of the conflict in the DRC requires a comprehensive approach to an almost unprecedented degree. The effects of the war afflict the whole African continent. These factors lead to the conclusion that the DRC constitutes a litmus test for the current peacemaking, peacekeeping and peace-building capacities of the United Nations. While MONUC has evolved into a multifunctional peace operation, with the main task to assist the country towards its first democratic elections in 2005, its military component remains essential to its success. The responsibility of MONUC to protect the local population is of utmost importance. MONUC was mandated, under Chapter VII, to avail of the use of force to protect civilians for the first time in February 2000.17 Since then, the UN mission has been authorized to use force for this specific purpose on several occasions.
III. ACCOUNTABILITY UNDER INTERNATIONAL HUMAN RIGHTS LAW The mechanisms of accountability, both legal and otherwise, governing peacekeeper misconduct have not been adjusted to the changing nature of peace operations, which are more and more multidimensional and require the deployment of civilians, like police officers and aid workers, in addition to military troops. Peacekeepers involved in post-conflict peace-building operations have been accused of serious human rights abuses such as sexual exploitation. 18 However, the allegations of sexual abuse by UN peacekeepers last year in the 15
!d.
16
Jd.; see also Bone, supra note 10.
See UN Doc. S/RESI129I, Feb. 24, 2000, para. 7. March 11,2005: The UN mission in Burundi (ONUB) announced an inquiry into alleged sexual abuse; May 20, 2005: The French peacekeeping force in Cote d'Ivoire has opened an inquiry into allegations that four of its soldiers sexually abused a young girl in the rebel-held North of the divided country; Allegations of sexual misconduct by UN peacekeepers serving in Liberia (UNMIL) have been substantiated in four incidents and investigations launched at the UN Mission in Liberia on May 3, 2005; UN and NATO peacekeepers in Kosovo are fueling a human trafficking industry that sexually exploits women and girls as young as 11; UN peacekeepers were involved in the sex trade in Bosnia in 2003; several Jordanian soldiers attached to the UN peacekeeping force in East Timor might face charges over alleged sexual misconduct, August 3, 200 I. 17
18
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DRC seem to constitute, in conjunction with the allegations in Rwanda, Somalia and Srebrenica, some of the biggest scandals in UN history.
A. Sexual Abuse of Congolese Women and Girls by MONUC19 1.
Background
According to the UN report of the Office of Internal Oversight Services (OIOS),20 acts of sexual exploitation and abuse of Congolese women and girls by UN peacekeepers serving with MONUC in Bunia indicated a pattern of widespread sexual abuse. Bunia is situated in the Ituri District in the far Northeastern part of the DRC and serves as the headquarters and logistics base of MONUC, sector 6. Between May and September 2004, MONUC and the Department of Peacekeeping Operations (DPKO) conducted investigations in Bunia. At the time of the investigations, nearly 11,000 military personnel were deployed by MONUC in the DRC, and, of that number, some 4,500 were deployed in Ituri. Many of the 72 allegations originally reported to MONUC could not be substantiated or even fully investigated because of their non-specific nature. Nevertheless, OIOS was able to compile 20 case reports. One case that was substantiated involved an international civilian post. The remaining 19 cases involved peacekeepers from 3 contingents. Of those, six cases were fully substantiated. In another two cases, the identification of the perpetrators was not fully corroborated. In the remaining 11 cases, the victims and witnesses were unable to clearly identify the perpetrators. 21 Interviews with Congolese women and girls confirmed that sexual contact with peacekeepers took place regularly, usually in exchange for food or small sums of money. The majority of the victims identified in the investigation were between 12 and 16 years old. They had been raped during the conflict, and the trauma of their lives made the taking of evidence a delicate process. To increase the difficulties, many girls could not identify the perpetrator either (1) by never seeing their faces (2) not being able to differentiate among non-Congolese, or (3) due to the fact that the rape happened while it was dark. Therefore, a general lack of corroboration in the identification of perpetrators existed. 19 See UN Doc. SC/8400, May 31, 2005. The Security Council condemns, "in the strongest terms," all acts of sexual abuse, exploitation by UN peacekeeping personnel. 20 UN Doc. A/59/661, Jan. 5, 2005. 21 !d.
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The girls were poor village children whose lives had been significantly affected by civil war, and most were illiterate. OIOS had difficulties gaining full access to most of the young victims, some of whom were under care and receiving psychological counseling, while others lived outside Bunia's secure zone. The local boys, mainly aged eight to 18, were used as "pimps" who arranged the sexual misconduct, also in return for food and/or $1 for each girl brought to the peacekeepers. Some of them were former child soldiers from the Congolese militia. While a few of the boys attended school, the rest had stopped because of a lack of funds for school fees or a lack of interest. Some of the older men, aged 20 to 25, did manual labor at the military camps and were therefore familiar with the peacekeepers. The venues for the sexual activities were identified in various places such as inside the guard posts, in rundown shelters, in the bush near the military camps, at rented or abandoned accommodations or even on bare ground behind buildings, under mango trees. The encounters usually took place just after dark, between 7 and 10 P.M. The peacekeepers involved in the allegations were not officers but rather enlisted or non-commissioned personnel serving at guard posts or at the camps. They were between 24 and 45 years old. For most of them, MONUC was their first mission assignment. Very few of the allegations involved civilian personnel, and, in three of the four cases, the allegations were not substantiated. The fourth and most infamous case is that of a senior French official, Didier Bourget,22 who was accused of running an Internet pedophile ring. He is currently in jail in his home country facing charges. In February, the Moroccan government arrested six of its soldiers accused of sexual abuse in the DRC. However, the OIOS also stated with concern that two contingents were not willing to cooperate during the investigation. OIOS identified some environmental factors contributing to the problem of sexual abuse of the local people: Poverty affecting the general population, especially the internally displaced persons at the camp; food insecurity of the general population; idleness among non-school-going children; the erosion offamily and community structures; discrimination against women and girls; insecurity of the perimeter fencing, encouraging interaction between the military and the general population; inadequate patrols by military police and insufficient enforcement of military discipline; the absence of any programmes for off-duty peacekeepers; the lack 22 See Report "Un Agent de la MONUC viole une fillette de 12 ans a Goma" by the Comite des Observateurs des Droits de I'Homme (CODHO), Feb. 3,2005. The Congolese NGO, named CODHO, is based in Kinshasa and member of the Reseau OMCTISOS Torture a Geneve, Coalition mondiale contre la peine de mort and Federation internationale des /igues des droits de l'homme aParis.
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of a sexual harassment and abuse prevention programme in MONUC; and a lack of facilities or programmes aimed at protecting the vulnerable population. 23 The troop rotations have also prevented many of the peacekeepers from having to account for their actions. OIOS stated with great concern, that despite knowledge of the ongoing investigation, sexual activities between the military and the local population apparently continued. This was evidenced by the presence of freshly used condoms near military camps and guard posts and by the additional allegations of recent cases of solicitations brought to the OIOS team during the last days of the investigation. This leads to the conclusion that peacekeepers are not aware of the severe penalties for engaging in such conduct. Strong reinforcement of the legal requirements and prompt sanctions for violations are necessary. Furthermore, the prevention program required by the Under-SecretaryGeneral for Peacekeeping Operations and the Special Representative of the Secretary-General for MONUC has not been implemented in the mission. Only few military or civilian staff seemed aware of the directives, policies, rules and regulations governing sexual contact that they were obligated to abide by. Mr. William L. Swing, Special Representative of the Secretary-General for MONUC, provided the following comments: I firmly believe that emphasis needs to be placed on the accountability of the officers of contingents to which the perpetrators belong, from contingent to company and platoon commanders. It is clearly evident that while there has been no shortcoming insofar as disseminating the code of conduct and the Secretary-General's zero-tolerance policy on matters of sexual exploitation and abuse, the same cannot be said for the enforcement of this. ( ... ) it is apparent that the feeling of impunity is such that not only have the policies not been enforced, but the command structures have not always given investigators their full cooperation. I also consider it imperative that the results of Member States' actions against the perpetrators of these abuses be made available to the United Nations and that the Mission highlight to incoming commanders the gravity and extent of the problem and underscore the commanders' responsibility to prevent similar acts during their mandate. 24
23 24
UN Doc. A/59/661, Jan. 5, 2005. Id.
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2.
Definition of Sexual Abuse
The Secretary-General's Bulletin, Special Measures for Protection from Sexual Exploitation and Sexual Abuse defines "sexual exploitation" in the following terms: any actual or attempted abuse of a position of vulnerability, differential power, or trust, for sexual purposes, including, but not limited to, profiting monetarily, socially or politically from the sexual exploitation of another. Similarly, the term 'sexual abuse' means the actual or threatened physical intrusion of a sexual nature, whether by force or under unequal or coercive conditions. 25 The definition of rape draws from many sources, including human rights treaties, but was strongly influenced by the statutes of the International Criminal Tribunal of Rwanda (ICTR) and the International Criminal Tribunal of Yugoslavia (ICTY). Cases such as Akayesu,26 Celebici,27 Furundzija,28 Kvocka et al. 29 and Foca 30 have all dealt with sexual offenses. Akayesu was the first case to develop a definition that did not previously exist in international law. The indictment included charges of sexual violence 3! and defined acts of sexual violence to "include forcible sexual penetration of the vagina, anus or oral cavity by a penis and/or of the vagina or anus by some other object, and sexual abuse, such as forced nudity."32 Akayesu33 was also the first case in history in which someone was charged and tried for the crime of genocide. In September 1998, Akayesu was found guilty by the Trial Chamber of the crime of genocide. In its judgment, the ICTR made some historic pronouncements concerning gender-based crimes that were 25 26
UN Doc. ST/SGB/20031l3, Oct. 9,2003. Prosecutor v. Jean Paul Akayesu, Case No. ICTR-96-4-T, Judgment, Sept. 2,
1998. 27 Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Case No. IT-96-21-T, Judgment, Nov. 16, 1998 (Appeal Judgment Feb. 20, 2001). 28 Prosecutor v. Anto Furundzija, Case No. H-95-17/1-T, Judgment, Dec. 10, 1998. 29 Prosecutor v. Miroslav Kvocka, Milojica Kos, MIano Radic, Zoran Zigic & Dragoljub Prcac, Case No. IT-98-301l-T, Judgment, Nov. 2, 2001. 30 Prosecutor v. Kunarac, Kovac & Vukovic, Case No. IT-96-23 & IT-96-231l-A, Judgment, Feb. 22,2001 (Appeal Judgment June 12,2002). 3! See also the definition of sexual violence in Antonio Cassese, International Criminal Law 78-79 (2003). 32 Prosecutor v. Jean Paul Akayesu, Case No. ICTR-96-4-T, Judgment, Sept. 2, 1998, para. lOA. 33 See also Diane Marie Amann, "International Decisions: Prosecutor v. Akayesu. Case ICTR-96-4-T," 93(1) American Journal ofInternational Law 195-199 (Jan. 1999).
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recognized as an integral part of the genocide. This was the result of evidence that Tutsi women were systematically raped with Akayesu's "tacit encouragement."34 Moreover, rapes and other acts of sexual violence were recognized as crimes against humanity. Rape might include "acts which involve the insertion of objects and/or the use of bodily orifices not considered to be intrinsically sexual."35 Furthermore, the Tribunal found sexual violence, including rape as "threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion."36 The Kunarac 37 judgment of February 22, 2001, was the first conviction by the ICTY of rape as a crime against humanity. The Trial Chamber of the ICTY in the Furundzija case found that the following may be accepted as objective elements of rape: (i) the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; (ii) by coercion or force or threat of force against the victim or a third person. 38 As pointed out above, international criminal rules punish not only rape but also any serious sexual assault falling short of actual penetration. It would seem that the prohibition embraces all serious abuses of a sexual nature inflicted upon the physical and moral integrity of a person by means of coercion, threat of force or intimidation in a way that is degrading and humiliating for the victim's dignity.
B. Applicable Human Rights Provisions In the case of the sexually abused women and girls in the DRC by the UN peacekeepers, the following international human right treaties could apply: Particular care to the child has been stated in the Universal Declaration of Human Rights (UDHR, Article 25.2.),39 the 34 Prosecutor v. Jean Paul Akayesu, Case No. ICTR-96-4-T, Judgment, Sept. 2, 1998, para. 708. 35 Jd., paras. 708, 686. 36 !d., paras. 708, 688. 37 Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Case No. IT-96-23, Judgment, Feb. 22, 2001. 38 Prosecutor v. Anto Furundzija, Case No. IT-95-l711-T, Judgment, Dec. 10, 1998, para. 185. 39 Article 25.2 "Motherhood and childhood are entitled to special care and
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International Convention on Civil and Political Rights (ICCPR, Articles 23 and 24) and the International Convention on Economic, Social and Cultural Rights (ICESCR, Article 10); Child Rights Convention (CRC, Articles 1940 and 3441); Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (CRC-OP-SC, Articles 1,2,3,4);42 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, Article 6);43 Declaration on the Elimination of Violence against Women, Article 244 and Beijing Platform for Action. Under national law of the DRC, international conventions have primacy over national laws. The DRC, on June 9, 2004, ratified the following human rights treaties of relevance in relation to sexual exploitation by UN forces: Child Rights Convention (CRC), Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (CRC-OP-SC), Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (CRC-OP-AC), ICCPR and its Optional Protocol (ICCPR-OPl), ICESCR (International Convention on Economic, Social and Cultural Rights) and Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). As a party to these treaties, DRC is bound to take steps to ensure that these instruments are not violated by anyone, including UN personnel. In addition to its prohibition under human rights treaties, the abuse and sexual exploitation of women is considered a serious crime under international assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection." 40 State parties are obliged under Article 19(1) of the eRe to: "take all appropriate (... ) measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse." 41 Specific obligation regarding sexual exploitation continues in Article 34 of the eRe: "States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. (... ) States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent (a) The inducement or coercion of a child to engage in any unlawful sexual activity (b) The exploitative use of children in prostitution or other unlawful sexual practices (c) The exploitative use of children in pornographic performances and materials." 42 See UN Doc. A/RES/54/263, May 25, 2000. 43 Article 6 "States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women." 44 See UN Doc. A/RES/48!l04, Dec. 20, 1993.
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criminal law. Under Article 5(g) of the ICTY and Article 3(g) of the ICTR, rape is considered a crime against humanity. The Rome Statute of the International Criminal Court (ICC) goes one step further.45 It states in Article 7(l)(g) that "Crimes against humanity" are: "Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity." While human rights treaty provisions discussed above are generally only applicable to states that have ratified them, UN Charter-based mechanisms are available to address sexual abuse within member states. Various UN bodies have condemned the sexual abuse of women and girls, including the General Assembly and the Security Council46 and the High Commissioner for Human Rights. 47 The Special Rapporteur on violence against women has a particular important role to play in this regard. Since 2000 an annual report has been presented to the Sub-Commission on the Promotion and Protection of Human Rights, outlining new developments in international criminal, human rights and humanitarian law on the issue of systematic rape, sexual slavery and slavery-like practices in situations of armed conflict.48 Finally, customary international law is also an important source of international law of prohibition of sexual violence that binds all states.
45 See also William A. Schabas, An Introduction to the International Criminal Court 38 and 43 (2003). 46 UN Doc. A/59/695-S/2005172, Feb. 9, 2005. This report mentioned not only that rape and other acts of grave sexual violence were committed against children in the DRC with impunity (paragraph 21), it was also reported in paragraphs 54-56 that, in 2004, the number of allegations of sexual misconduct against UN peacekeeping personnel increased significantly. In the DRC a larger number of allegations of sexual exploitation of Congolese women and children were made against civilian and military peacekeepers. See also UN Doc. S12004/814, Oct. 13,2004, para. 77: "States on whose territory conflict and its resulting evils of war crimes, genocide, sexual violence and gender-based crimes occur have the primary responsibility for the protection of women and children. Where a State is unable or unwilling to provide protection and assistance to its citizens, the United Nations system is increasingly called upon to work with Member States to develop an integrated response." 47 UN Doc. E/CNAISub.212002/28, July 18,2002. This report of the High Commissioner for Human Rights is about "Systematic rape, sexual slavery and slaverylike practices during armed conflicts." 48 UN Doc. S/2004/814, Oct. 13,2004, para. 78.
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C. Applicable Legal Provisions of MONUC While the United Nations is working to educate peacekeepers regarding its zero-tolerance policy on sexual abuse, to strengthen its prevention programs and to investigate allegations, it faces legal limitations with regard to prosecuting peacekeepers accused of sexual abuse. In the case of MONUC, several legal provisions, outlined below, have been violated by the peacekeepers.
D. Security Council Mandates MONUC's mandate is defined by the Security Council's resolutions. In its first Resolution 1234 of April 9, 1999, the Security Council expresses concern at all violations of human rights and international humanitarian law in the territory of the DRC and calls upon all parties to the conflict to protect human rights and respect international humanitarian law. Consequently, the mission started on November 30, 1999. The current mandate is mostly provided by Resolution 1493, dated July 28,2003, whereby the Security Council, acting under Chapter VII, authorized MONUC to use force for the protection of civilians. Concerning human rights and the protection of the most vulnerable groups like women and children, a growing concern from the Security Council can be found: "Human Rights are mentioned in 16 of the 26 Council resolutions adopted since April 1999 and they are gradually referred to in increasingly strong language."49 The most relevant resolutions for MONUC concerning human rights and protection of women and children are the following ones. In Resolution 1291 of February 24, 2000, the Council expresses deep concern at all violations and abuses of human rights. Therefore, MONUC is authorized to facilitate human rights monitoring with particular attention to vulnerable groups including women, children and demobilized child soldiers. The Council expresses its alarm and deep concern at all violations of human rights in the Eastern part of the DRC. Resolution 1291 highlighted the importance of a human rights component within MONUC and decided that human rights monitoring was part of the mission's mandate. 50 In paragraph 15 of Resolution 1332 from December 14,2000, the Council stressed the need to strengthen the human rights component of MONUC. This entails cooperation with the Special Rapporteur on the Situation of Human Rights in the DRC51 but also with the Commission on Human Rights. 49 Katarina Mansson, "Use of force and Civilian Protection: Peace Operations in the Congo," 12(4) International Peacekeeping 503-519 (Winter 2005). 50 See UN Doc. S/RES/1291, Feb. 8,2000, paras. 4 and 7(g). 51 See Report on the situation of human rights in the Democratic Republic of
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According to the resolutions from lJune 15 and from February 22, 2001, the Security Council is "deeply concerned at the increased rate of HIV /Aids infection, in particular amongst women and girls as a result of the conflict." Firstly, Resolution 1445 from December 4, 2002, recognizes "the importance of a gender perspective in peacekeeping operations ( ... ) and the importance of protection of children in armed conflict, in accordance with resolution 13 79 (2001)." Secondly, further resolutions indicate the increased significance attached to human rights by the Security Counci15 2 such as Resolutions 1468 from March 20,2003, and 1493 from July 28,2003, which made particular reference to "sexual violence against women and girls as a tool of warfare and atrocities." Finally, Resolution 1493 (2003) reinforced the 2002 resolution, which stressed the need for gender perspective. In paragraph 9 the Council "reaffirms the importance of a gender perspective in peacekeeping operations in accordance with resolution 1325 (2000), recalls the need to address violence against women and girls as a tool of warfare, and in this respect encourages MONUC to continue to actively address this issue."53 As a possible solution, Resolution 1493 calls on MONUC to increase the deployment of women as military observers as well as in other capacities. 54 Further adopting the theme of protection of vulnerable groups, Resolution 1656 from October 1,2004, decides, in paragraph 5, that MONUC will also have the following mandate in support of the government "to assist in the protection and promotion of human rights, with particular attention to women, children and vulnerable groups" with the objective of ending impunity by investigation and cooperation to increase accountability. In paragraph 25, the Council expresses "grave concern" at the allegations of sexual exploitation and misconduct by civilian and military personnel of MONUC. It requests the Secretary-General to (1) investigate these allegations and take action in accordance with the Secretary-General's Bulletin for protection from sexual exploitation and sexual abuse, (2) to keep the Council informed, (3) to encourage MONUC to conduct training in compliance with its Code of Conduct regarding sexual misconduct, and (4) to urge troop contributing countries to take disciplinary action to ensure full accountability in cases of such misconduct involving their personnel. When analyzing the resolutions on MONUC, the Security Council gradually adopts a more resolute position in this respect. The mandate of Resolution 1291 evolved to an extent where human rights were taken into account with the Congo, submitted by the Special Rapporteur, Ms. Iulia Motoc, in accordance with Commission on Human Rights resolution, E/CNA12003/43, Apr. 15,2003, para. 76(a). 52 Available at www.peacewomen.org/un/pkwatch/SCrescompilation.html (last visited June 18,2005). 53 Id. 54 Id.
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more concern paid to vulnerable groups like women, children and child soldiers. However, the human rights situation gradually deteriorated. The focus of MONUC to Eastern DRC was closely interlinked to the region's difficult human rights situation. These developments suggest that there is a system-wide recognition today within the UN that human rights protection is intrinsically interconnected to peace and security. They highlight the importance of close co-ordination between the Security Council, OHCHR, the UN Secretariat and the Human Rights Commission in order to provide effective human rights protection in a situation of armed conflict or post-conflict reconstruction. 55
E.
MONUC Code of Conduct 56
In paragraph 1, the Code of Conduct describes the general obligation that the MONUC mission "must respect and abide by the established rules and regulations of the organization, including the UN Charter, Staff Rules and Regulations, Ten Rules (Code of Conduct for Blue Helmets), Status, Basic Rights and Duties of UN members."57 In addition, the specific obligation provides that MONUC personnel must be sensitive to local traditions and demonstrate respect for local population, in particular, vulnerable groups. Consequently, any act of sexual abuse or exploitation by civilian or military members of MONUC is strictly prohibited. 58 Paragraph 2 of the MONUC Code of Conduct specifically defines an act of sexual abuse and/or exploitation. 59 Paragraph 5 reminds all the personnel, civilian as well as military members of MONUC, that the Secretary-General has the right and duty to waive the immunity that is provided under the relevant convention and the host country agreement where this immunity would impede the course of justice. The question is: What legal force has the MONUC Code of Conduct? Should peacekeeper sign when they enter 'a mission that in a case of a breach, certain action can be taken against them? How far can you 55
Mansson, supra note 49. Available at www.monuc.org. 57 !d. 58 Id. 59 Id., para. 2(a): "Any exchange for money, employment, goods or services for sex, including sexual favours or other forms of humiliating, degrading or exploitive behaviour." Para. 2b: "Any sexual activity with a person under the age of 18. The mistaken belief in the age of the person cannot be considered as a defence." 56
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interfere with personal life? Is it possible to have a policy of non-fraternisation with the population which means that you shouldn't engage with any kind of situation with the population? It is good, because things are clear; it is bad because you don't integrate. 6o
In practical terms, the implementation of the codes of conduct is not so obvious.
F.
UN Rules of Conduct: "Ten Rules: Code of Personal Conduct for Blue Helmets" and "We Are United Nations Peacekeepers"
Article 101(3) of the UN Charter states that UN staff shall have the highest standards of integrity. Expected standards of behavior of UN staff are set out in the codes of conduct. Rule 4 of the "Ten Rules" prohibits the indulgence in "immoral acts of sexual, physical or psychological abuse or exploitation of the local population or United Nations staff, especially women and children."61 It then continues in Rule 5 with "Respect and regard the human rights of all. Support and aid the infirm, sick and weak."62 "We Are United Nations Peacekeepers" refers in its first paragraph to the "Universal Declaration of Human Rights as the fundamental basis of our standards."63 Furthermore it states that peacekeepers will never "commit any act that could result in physical, sexual or psychological harm or suffering to members of the local population, especially women and children"64 and that they will never "become involved in sexual liaisons which could affect our impartiality or the well-being of others."65 These documents are general in nature, and they do not give specific instructions on precisely what acts of sexual exploitation and abuse are prohibited. The "Public Information Guidelines for Allegations of Misconduct Committed by Personnel of United Nations Peacekeeping and Other Field Missions"66 refers, in cases of misconduct by military observers and civilian officers, to the "Directives for Disciplinary Matters Involving Civilian Police
60 Roberto Ricci, Former Head of Human Rights Section MONUC, Interview in Geneva at the Office of the High Commissioner for Human Rights (OHCHR) on May 24,2005. 61 Available at www.genderandpeacekeeping.org. 62 Id. 63 Id. 64 Id. 65 Id. 66 DPKO/MD/03/00996 DPKOICPD/DPIG!2003/001, available at www.peacewomen.org/un/pkwatch/discipline/DPKODirectivescompilation.htm (last visited June 25,2005).
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Officers and Military Observers."67 In addition, the "Directive on Sexual Harassment in United Nations Peacekeeping and Other Field Missions for Military Members of National Contingents, Military Observers and Civilian Police Officers"68 provides guidance on dealing with sexual harassment complaints. Military members of a national contingent, who are alleged to have committed an act of serious misconduct, are subject to the procedures set out in the "Directives for Disciplinary Matters Involving Military Members of National Contingents."69 For civilian staff, the Administrative Instruction entitled "Revised Disciplinary Measures and Procedures"7o entails the disciplinary process for all UN staff, local and international. In addition, the Administrative Instruction entitled "Procedures for Dealing with Sexual Harassment"7! provides guidance on dealing with sexual harassment allegations. However, no specific mention is made of trafficking or prostitution. Clarity on these issues appears to be important. Peacekeepers must know what is classified as unacceptable behavior while on a mission and what, specifically, constitutes criminal behavior. While the Codes of Conduct and Directives issued by the United Nations, or those by the sending states, impose expectations of appropriate and acceptable behavior, these are not legally binding. Thus, they constitute "soft law." Furthermore, the UN Code of Conduct fails to note that sexual abuse is considered a crime under international law, as well as under most domestic laws, and, thus, peacekeepers could be subject to criminal prosecution in their home countries. Thus, peacekeepers lack the awareness of the gravity of their misconduct.72 It is important to examine what laws peacekeepers are bound by, an issue that is linked to the jurisdiction, the classification and mandate of the peacekeeping operation.
67 DPKOICPD/DDCPO/2003/00 1 DPKO/MD/03/00994, available at www.peacewomen.org/un/pkwatch/discipline/DPKODirectivescompilation.htm (last visited June 25,2005). 68 DPKO/MD/03/00995 DPKOICPDIDSHCP0I2003/002, available at www. peacewomen.org/un/pkwatch/discipline/DPKODirectivescompilation.htm (last visited June 25, 2005). 69 DPKO/MD/03/00993, available at www.peacewomen.org/unlpkwatch/disciplinelDPKODirectivescompilation.htm (last visited June 25, 2005). 70 UN Doc. ST/AII371,Aug. 2,1991. 71 UN Doc. ST/AII379, Oct. 29, 1992, available at www.peacewomen.org/un/ pkwatchidisciplinelDPKODirectivescompilation.htm (last visited June 25, 2005). 72 See Jennifer Murray, "Who will police the peace-builders? The failure to establish accountability for the participation of United Nations Civilian Police in the trafficking of women in post-conflict Bosnia and Herzegovina," 34 Columbia Human Rights Law Review 475-527 (2002-2003).
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G. Secretary-General's Bulletins The Secretary-General published several Bulletins that should provide guidelines for peacekeepers while on a mission. In the following, the most relevant, in the context of sexual abuse, are mentioned. The Secretary-General's Bulletin on Status, Basic Rights and Duties of United Nations Staff Members 73 contains several provisions that would prohibit staff from engaging in acts of sexual abuse and exploitation. Regulation 1.2(b) requires staff to uphold the highest standards of integrity, Rule 10 1.2(c) requires staff to observe local laws and honor their private obligations, and Rule 10 1.2(d) prohibits any form of sexual or gender harassment. The Secretary-General's Bulletin entitled Special Measures for Protection from Sexual Exploitation and Sexual Abuse74 applies to all UN staff, "including staff of separately administered organs and programmes of the UN."75 It specifically prohibits forces conducting UN commanded operations from committing acts of sexual exploitation and sexual abuse. 76 These forces "have a particular duty of care towards women and children, pursuant to section 7 of Secretary-General's bulletin ST/SGBI1999113, entitled 'Observance by United Nations forces of international humanitarian law' ."77 However, despite the Department of Peacekeeping Operations' (DPKO) statement that military personnel are expected to abide by these standards, the Bulletin is a UN regulation, and consequently applies only to UN staff. Thus, the situation of military members of contingents is unclear. Rules can be made binding on military members of contingents only with the agreement of and action by the troop contributing country concerned. Section 3 declares that: Sexual Exploitation and sexual abuse violate universally recognised international legal norms and standards and have always been unacceptable behaviour and prohibited conduct for United Nations staff. Such conduct is prohibited by the United Nations Staff Regulations and Rules. 78 The Bulletin states that commission of the prohibited acts constituting serious misconduct will lead to disciplinary measures, including summary dismissa1. 79 There is a blanket prohibition on sex with children under 18 as well 73 74 75
76 77
78
79
UN Doc. ST/SGB/2002/13, Nov. 1,2002. UN Doc. ST/SGBI2003/13, Oct. 9, 2003. Id., § 2, art. 2.l. !d., § 2, art. 2.2. Id. !d., § 3, art. 3.l. !d., § 3, art. 3.2(a).
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as exchange of money, employment, goods or services for sex, including sexual favors or other forms of humiliating, degrading or exploitative behavior. 80 Therefore, use of prostitutes is prohibited by the Secretary-General's Bulletin. Importantly, the Bulletin recognizes the aspect of the inequality of relationships involving peacekeepers with the local community. Women in these areas are usually poor, uneducated, unemployed and vulnerable to a man that will provide them with support, both emotionally and financially. Even The Peacekeeping Handbook for Junior Ranks warns against this situation: "Be forewarned of facing long sexual abstinence. Do not involve yourself in any sexual relationship, which may create long-lasting complications for you and others. Do not involve yourself with a sexual affair with any member of the local population."81 Furthermore, it says that personnel must be "aware of the human rights of women and children and never violate them."82 Unfortunately the Handbook does not touch upon the negative consequences that may arise from situations of involvement with local women. The Secretary-General's Bulletin on Observance by United Nations Forces ofInternational Humanitarian Law83 applies to UN "forces when in situations of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement."84 Thus, the bulletin applies to enforcement actions or peacekeeping operations where the use of force is permitted in self-defence. However, it does not cover UN authorised enforcement operations which are not under UN command and control. On the other hand the forces are obliged to respect the fundamental principles and rules of international humanitarian law whether or not a status of force agreement (SOFA) is in place. 85 Pursuant to Section 7, United Nations forces are prohibited from committing acts of sexual exploitation and sexual abuse, and have a particular duty of care towards women and children. 86 Thus, peacekeeping forces are obliged to protect civilians, and this includes, specifically, prohibition of violence to life or physical integrity, cruel treatment, such as rape, torture, enforced prostitution, any form of sexual assault and humiliation and degrading treatment, and enslavement. The fundamental principles and customar.y rules of international humanitarian law are applicable and obligatory for UN forces. They are found in the !d., § 3, art. 3.2(c). UN Peacekeeping Handbookfor Junior Ranks, ch. 3, Code of Conduct, Gender Issues 37 (1997). 82 Id. 83 UN Doc. ST/SGBI1999113, Aug. 6, 1999. 84 Id., § 1, art. 1.1. 85 !d., § 3. 86 !d., §§ 7.3. and 7.4. 80
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four Geneva Conventions of 1949 (GCs) and their two Additional Protocols of 1977 (AP I and AP II). However, the United Nations is not a party to these Conventions. Thus, the broad application of the entirety of these treaties to the members of peacekeeping forces depends upon which treaties the troops' sending state is party to. The reality of peacekeeping operations is that each contributing state has ratified different international instruments; some may have specific reservations or declarations concerning the application of those instruments. Practice has shown that international humanitarian law (IHL) is, in fact, applied, and states indicate a general acceptance that UN forces shall be bound by it.
IV. TROOP CONTRIBUTING COUNTRIES (TCC) AND STATE RESPONSIBILITY (DUE DILIGENCE)
While the United Nations has operational command of peacekeeping personnel, it is in the end the sending state that has jurisdiction over its peacekeepers, military observers or civilian police officers. This is based on the fundamental international legal principle of state sovereignty. Thus, the United Nations has responsibility for conduct such as issuing codes of conduct, rules and bulletins whereas the responsibility for holding the troops accountable to these codes and standards of behavior rests with the sending state. Unfortunately, this has led to the vacuum of accountability that can be stated today: vague codes and standards and investigations rarely undertaken. The troop contributing countries should discuss this issue within the sovereignty and they should not only pay lip service to this issue. A lot of pressure should be put on them. At the General Assembly member states should be asked and this should be followed by concrete actions. Definitely, the TCC should contribute, make a commitment. They should be held accountable when they don't prosecute people who have been sent home. It is okay that peacekeepers don't get prosecuted in the country, but in the home country. There should be a system whereby the UN observes, if there is prosecution when people come home. Why not create a certain structure in New York? Why not having an office that follows every single case of civilian?87 The contention that the TCC, with too many restraints, will not send anymore troops to the conflict region is very unlikely, according to Roberto Ricci,
87 Roberto Ricci, Former Head of Human Rights Section MONUC, Interview in Geneva at the Office of the High Commissioner for Human Rights (OHCHR) on May 24,2005.
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former MONUC Head of Human Rights Section. "Some countries may do it out of the willingness to contribute to peace and stability. Some others might do it out of a financial nature and image."88 According to Mr. Ricci, TCCs do not send selected troops. "We have to get away from the idea that these people are highly selected. If you look at their human rights record, you will see that they know very little about human rights."
A. Model Status of Forces Agreement
"The participating State agrees to exercise jurisdiction with respect to crimes or offences which may be committed by its military personnel serving with the UN peace-keeping operation."89 This standard allocation of jurisdiction exists throughout all UN operations.
B.
Secretary-General's Bulletin on Observance on International Humanitarian Law
The 1999 Secretary-General's Bulletin on Observance on International Humanitarian Law also makes references to the application of national law. 90 This allows for the application of any treaty obligations binding on sending states and therefore for the sending state's troops.
C. Secretary-General's Bulletin for Protection from Sexual Exploitation and Sexual Abuse
Similarly the Secretary-General's Bulletin for Protection from Sexual Exploitation and Sexual Abuse states, in Section 5, that cases of sexual abuse "may upon consultation with the Office of Legal Affairs, be referred to national authorities for criminal prosecution."91 The main weakness of this section is that cases "may" be referred to national authorities. There is no obligation from this Bulletin for UN investigators to bring the cases to national authorities.
88
/d.
89
UN Doc. A/45/594, Oct. 9,1990. See UN Doc. ST/SGB11999/13, Aug. 6,1999, § 2. UN Doc. ST/SGB/2003113, Oct. 9,2003, § 5.
90 91
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D. The Directives for Disciplinary Matters Involving Military Members of National Contingents These confirm the legal status of troops, as subject to the exclusive jurisdiction of their respective participating states in respect of any criminal offenses that may be committed by them in the mission area.92 The legal status of civilian police officers and military observers is somewhat different to that of military troops as such officials are subject to the jurisdiction of the host countrylterritory.93 This "host state" jurisdiction extends over criminal offenses and civil disputes not related to performance of official duties. Once the United Nations sends the files to the individual countries, it is up to these governments to take action. The United Nations is no longer involved. E.
Due Diligence
The "due diligence" standard has been generally accepted as a measure of evaluating a state's responsibility for violation of human rights by private actors.94 But the obligation of states to undertake investigations results also from relevant duties under human rights treaties and customary international law to prevent, investigate and punish human rights abuses. The malfunction of peace-contributing countries to investigate and follow-up the misconduct of their peacekeepers causes serious doubts on their membership in an organization such as the United Nations, which is promoting universal respect for human rights. Under international law, a state is clearly accountable for violations committed by or attributable to it. However, its inaction or omission may "lead to legal responsibility." This refers to a general duty of due diligence. Due diligence constitutes the level of effort a state must take to fulfill its responsibilities to protect individuals from human rights abuses. 95 In the Velasquez Rodriguez case it is stated: The State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a seri92 DPKO/MD/03/00993, para. 8, available at www.peacewomen.org/un/ pkwatch/disciplinelDPKODirectivescompilation.htm (last visited June 25, 2005). 93 DPKOICPD/DDCP0/2003/001 DPKO/MD/03/00994, para. 8, available at www.peacewomen.org/unipkwatchidiscipline/DPKODirectivescompilation.htm (last visited June 25, 2005). 94 See John Cerone, "The Human Rights Framework Applicable to Trafficking in Persons and Its Incorporation into UNMIK Regulation 2001/4," in 7 Michael Bothe & Boris Kondoch (eds.), International Peacekeeping: The Yearbook of International Peace Operations 43-98 (2002). 95 Murray, supra note 72.
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ous investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation. 96 International human rights treaties rarely provide a mandate that states should prosecute violations of human rights.97 However, it is a growing recognition that states parties have the duty, cited in the UDHR,98 to protect and promote human rights as well as obligations in the human rights treaties to punish and investigate misconduct. The ICCPR requires each state party to "respect and ensure" the rights recognized herein. 99 Further, not only the duty to punish but also to provide an effective remedy is important. The ICCPR, the American Convention on Human Rights, and the [European] Convention for the Protection of Human Rights and Fundamental Freedoms all require States Parties to guarantee victims effective recourse to a competent tribunaJIoo while CEDAW mandates that States Parties 'ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination. 101
F.
Recommendations
Alternative means are suggested in the Report of Prince Zeid in March 2005 after he has followed the investigations of sexual abuse of Congolese girls by MONUC peacekeepers in the DRC. He recommended that TCCs should hold "on-site courts martial." This would afford immediate access to witnesses and evidence in peacekeeping area. It would also demonstrate to the local community that there is no impunity for acts of sexual abuse by members of military 96
Velasquez Rodriguez case, Judgment of July 29, 1988, Ser. C, No.4, 1988,
para. 172. 97 Exceptions are the Convention on the Prevention and Punishment of the Crime of Genocide, Jan. 12, 1951, and the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, requiring states parties to prosecute conduct that violates its provisions. 98 While the UDHR was not seen as imposing legal obligations upon states at the time of its adoption in 1948, it is commonly accepted that it now constitutes, at a minimum, "significance evidence" of customary international law. See footnote 218 of Murray, supra note 72. 99 ICCPR, art. 2. 100 ICCPR, art. 2(3); American Convention on Human Rights, July 18, 1978, art. 25; ECHR, art. 13. 101 CEDAW, art. 2(c) as cited in Murray, supra note 72.
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contingents. The holding of an on-site court martial would require the permission of the host state. But such permission is implicit in paragraph 47(b) of the model SOFA,102 which provides that members of the military component of a UN peace operation shall be subject to the exclusive jurisdiction of their participating states in respect of any criminal offense committed in the host state. Therefore, all TCCs should hold on-site courts martial. The newly created, but not yet established, "Model Criminal Codes for post-conflict states"l03 could, as well, be applied when it comes to establishing the UN on-site courts martial in the cases of sexual abuse to investigate and prosecute the peacekeepers in the host state. 104 TCCs, whose legislation does not permit these on-site courts martial, should consider reforming their legislation. Specialized expertise is required for investigations into allegations of sexual exploitation. The establishment of a permanent professional mechanism to investigate such complex cases of serious misconduct is recommended. Furthermore, Prince Zeid's Report suggests that an expert in military law, preferably a prosecutor, from the TCC concerned should participate as a member of any investigation of members of its contingent. That would ensure that the investigation gathers evidence in a manner that satisfies the requirements of national law, so that further action can be taken if it is concluded that misconduct has occurred. Of course, it should be assured that such a lawyer, who is part of the national contingent, will not be biased. In addition, the Report stresses the need to have access to modern scientific methods of identification, such as fingerprinting, fiber analysis and blood and DNA testing, which could help to establish culpability or eliminate false accusations. Another possibility to increase the accountability ofTCCs could be through the model memorandum of understanding" (MOU). As the MOU is the "bridge" between TCCs and United Nations, it is an appropriate way to put more pressure on the TCC concerning accountability of their peacekeepers. As proposed in the Prince Zeid Report,105 the "Ten Rules: Code of Personal Conduct for Blue Helmets" and "We Are United Nations Peacekeepers," should be included in each MOU signed by the Organiszation with each TCC, and the TCCs ought
UN Doc. A/45/594, Oct. 9,1990, para. 47(b). See Vivienne O'Connor, "Traversing the Rocky Road of Law Reform in Conflict and Post Conflict States: Model Codes for Post Conflict Criminal Justice as a Tool of Assistance," 16(2) Criminal Law Forum (forthcoming). 104 There are four annotated model codes: a draft penal code, the Transitional Criminal Code (TCC), a draft procedure code, the Transitional Code of Criminal Procedure (TCCP), the Transitional Detention Act (TDA), a body of law that regulates procedural and substantive issues relating to pre-trial detention and imprisonment, and finally, the Transitional Law Enforcement Powers Act (TLEPA), a draft Police Act. See O'Connor, id. 105 UN Doc. A/59/71O, Mar. 24, 2005. 102 103
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to be obligated to ensure that they are binding on the military members of their national contingents. The rules should be issued in card form to the contingents in their language and published at UN costs. Furthermore, it is recommended in the Prince Zeid Report that the MOU should provide, if a DPKO investigation in which the TCC participate concludes that a member of their contingent committed an act of sexual exploitation and abuse, the country must agree to forward the case to its competent national or military authorities to be considered for prosecution, in accordance with its laws, and to report the results to the Secretary-General. As a result, the TCC should report on any action taken by it on any cases. Prince Zeid's Report recommends that in the future, clauses should be inserted in the MOU to ensure that TCC's have a legal obligation to prosecute acts of sexual abuse committed by military personnel that constitute crimes under the laws of the TCC or the host state.
V.
CONCLUSIONS
Since the end of the Cold War, the United Nations has assumed an increasingly important role in promoting peace and human rights in the world. Unfortunately, with the rising number of peace operations, the number of allegations of sexual abuse and exploitation by UN personnel has increased as well. 106 The sexual abuse cases that occurred in MONUC are only one example of sexual infractions occurring during UN missions. The case study of MONUC and the misconduct committed by UN peacekeepers in the DRC show that there is a legal vacuum in holding peacekeepers accountable for sexual abuses. Legal provisions and clear definitions of what constitutes sexual abuse exist. These have been developed by the jurisprudence of the ICTY, ICTR and ICC and may help future prosecutions of sexual abuse and exploitation committed by UN peacekeepers. Furthermore, the analysis of the evolution of Security Council mandates concerning MONUC shows that there is awareness within the United Nations to better incorporate human rights aspects, especially those concerning vulnerable groups such as women and children, into the missions. The problem is that the applicable human rights provisions are insufficient. The UN Codes of Conduct, the Security Council mandates of MONUC, the missions' Codes of Conduct and the Secretary-General's Bulletins on sexual abuse and exploitation supply guidelines and rules that are neither legally bind106 Complaints of sexual infractions at the United Nations doubled from 2003 to 2004. However, the recorded increase may result in part from the newly implemented measures to prevent and respond to sexual abuse. This was stated by Kofi Annan on May 5, 2005, in a Report to the General Assembly, available at www.peacewomen. org/un/pkwatch/News/05/compJaints.html.
Accountability for Conduct of UN-Mandated Forces: Case Study-MONUC
287
ing nor have any enforcement or follow-up mechanisms that would prevent peacekeepers from future misconduct. Without an enforceable code of conduct, immunity often means impunity. The accountability of misconduct remains, first and foremost, within the troop contributing countries. The United Nations, the TCCs, the host state and the peacekeepers are possible subjects of obligations under international human rights law. The United Nations, as a subject of international law, can be bound by customary internationallaw. Since the promotion and protection of human rights belongs to the UN purposes, it is clear that UN peacekeepers are bound by international human rights law. The same applies to the host, sending or seconding state. Mandates and UN mission regulations may include human rights law. The current vacuum of legal accountability of peacekeepers accused of misconduct is of grave concern. There is no institutional organ that can periodically address accountability over UN peace operations. The accountability process is mainly based on the jurisdiction of the sending states and not in the judicial process of the host state under the principle of territoriality. This minimizes the credibility of the mission in the eyes of the local people but also in genera1. Shielded from criminal liability in the host state by a web of privileges and immunities and protected from prosecution in their own countries by a lack of political will, peacekeepers will hardly be held accountable. Such a systematic failure to prevent, investigate and prosecute acts constitutes a violation of states' relevant duties under human rights instruments and customary international law. The United Nations has failed to create a culture of human rights accountability in peace operations. Peacekeeper impunity for acts of violence against women is a significant failure to fully incorporate international human rights law into peace operations. Individual peacekeepers, TCCs and the United Nations must be held accountable for human rights violations that threaten the lives and security of the people they are called to protect. An effort has to be made to extend the obligations under international human rights law when peace operations are undertaken. Since most of the rules and regulations and codes of conducts are not legally binding for the peacekeepers on mission, there is a pressing need for the United Nations to develop mechanisms of political and legal accountability to protect and promote human rights, in particular in cases of sexual abuse and exploitation. However, there are alternative means of obtaining jurisdiction over peacekeepers to hold them accountable. A UN on-site court martial, as proposed by Prince Zeid, in combination with Model Criminal Codes for post-conflict states, should be created. In the future, clauses should be inserted in the memorandum of understanding (MOU) to ensure that TCCs have a legal obligation to prosecute acts of sexual abuse committed by military personnel that constitute crimes under the laws of the TCC or the host state. If they do not agree to that, they should not be permitted to participate in UN peace operations.
288
Practice and Policies of Modern Peace Support Operations
The failure of peacekeeper-contributing countries to effectively address crimes perpetrated by their peacekeepers leaves serious doubts on their membership in an organization dedicated to promoting universal respect for human rights. 107 Furthermore, such failures comprise the duties of the states under human rights agreements and customary international law to prevent and punish human rights abuses.
107
See UN Charter, art. 55.
CONCLUSIONS AND RECOMMENDATIONS A fundamental objective of PSOs is to contribute to global humanitarianism. That ambition sets a formidable task for members of PSO assignments. As the empirical causes of armed conflicts remain difficult to assess, PSOs have to resort to practical solutions in order to influence a particular conflict. This volume presents two strategies to achieve this: promotion of the rule of law and contextualization of norms of international (criminal) law by interpretation of these norms within the specific PSO context. The identification of the context is essential to design a coherent and, above all, effective international regime for PSOs. As shown by the contributions to this book, a rigid application of international law may paralyze or stifle the geo-political aims (humanitarianism) of modern PSOs. The authors, therefore, have developed several conclusions and recommendations. The first part of this book drew conclusions on the link between the rule of law and PSOs. 1.
2.
Kwai Hong Ip clarified that whichever method of conflict resolution is employed to forestall a relapse into conflict, there must be an environment secure enough to allow a peaceful resolution of disputes, for necessary governmental and democratic institutions to be built and for them to function with an acceptable level of impact in the belief that the secure environment is and can be maintained. Therefore, re-establishing the rule of law and enforcing the law must be a priority in postintervention strategy, along with the tasks of providing relief and humanitarian aid, development, reconciliation and re-establishing governance. Therefore, it is increasingly common for Security Council resolution mandated peace enforcement operations to include law enforcement type duties for peace support forces, which are the only ones possessing the required capabilities. However, they need to be trained to understand and respect relevant aspects of international humanitarian law and human rights law. Only in doing so, will the force maintain legitimacy and public support, the key to mission success. The second conclusion, drawn by Noelle Quenivet in Chapter 2, is that the imposition of a certain type of the rule of law in peace-building missions can be counter-productive: Serbia-Montenegro, e.g., shows that the local popUlation may not have necessarily been imbued with confidence in the rule of law. There is no need to devise ambitious schemes for international justice in all post-conflict situations. The United Nations, retaining its guiding role, should leave to the govern289
290
3.
Practice and Policies of Modern Peace Support Operations
ment and the local population the right to decide the best suitable regime to be adopted. In doing so, the United Nations could adopt a two-track approach based on the sovereignty of the states in which it is intervening and on the capacity of the new government to fulfill its international obligations according to the rule of law. If the United Nations is administering a certain population and territory, it is its duty to ensure that wrongdoers will be punished according to the rule of law. If the United Nations is assisting a state in rebuilding its legal and judicial system, it should ensure that its guiding hand directs the state towards an effective application of the rule of law. The conclusion, illustrated in Chapter 3 by Gerhard Scherhaufer, is that the legal issues emerging in international PSOs often need to be solved by the military in the field. The problem is that the measures and tasks to be undertaken are usually decided by the political instances, whereas their fulfillment is in the hands of the military. Legal advisers, moreover, are often confronted with the practical legal aspects of PSOs only once they have been deployed to the mission, without having had the chance to prepare themselves properly in advance. The clarification of the arising legal aspects at headquarters and cooperation between the strategic and tactical level is therefore crucial, particularly when drafting memoranda of understanding, SOFAs and rules of engagement. The latter aspect is particularly important when contingents of troop contributing nations engaged in an international mission may have different political positions on certain types of intervention, particularly in relation to Chapter VII peacekeeping missions and legal requirements under their domestic provisions.
Conclusions on the international legal responsibility of peacekeepers were drawn in the second part. 4.
5.
Roberta Arnold, in Chapter 4, concluded that UN military personnel may be indirectly bound by international humanitarian law and, in particular, the law of occupation. Although the position of a UN PSO cannot be equated to that of an occupying "enemy" power, the letter and the spirit of the law of occupation shall provide guidance in the reconstruction of a state for as long as the foreign presence will be required. Considering that the UN forces will intervene on the basis of a Security Council resolution, thus with a wide legitimacy and public scrutiny, and as guarantor of international human rights, most of the provisions contained in the Fourth Geneva Convention to protect the rights of the population of occupied territories shall be automatically enforced. As illustrated by Josephine Lett in Chapter 5, the European Convention on Human Rights (ECHR) "may travel with troops." It is to be accepted that as mandates shift and become peace enforcement, missions exer-
Conclusions and Recommendations
6.
7.
291
cise a certain level of control over areas. As a result, therefore, in certain instances, this may invoke responsibilities under the ECHR. In Chapter 6, Dieter Fleck recommended that on the basis of existing models, a SOFA for peace operations should be adopted in order to secure the status and protection of PSO forces. SOFAs cannot replace practical measures of protection, but clear provisions may help to avoid misunderstandings. They would underline the shared responsibilities for security and protection of peacekeepers and facilitate the cooperation between the peacekeeping force and competent authorities of the host country. In Capter 7, Gergely T6th established that there is a great chance that developed nations-making up a large proportion of peacekeeping/peace enforcing contributing nations worldwide-will resort to such nonlethal weapons in their conflicts with less developed adversaries, who will hope for a "politically correct" outcome, both in term of casualties and other political considerations. While these types of weapons may mitigate suffering by offering a grade in the escalation of violence between no use of force and the use of lethal force, the risks thereof may outweigh this uncertain gain and undermine the effectiveness of the interdiction of other means and methods of warfare.
Part III of the book, provided several conclusions and recommendations on the interrelationship of PSOs and international criminal law. 8.
9.
Geert-Jan Alexander Knoops, in Chapter 8, analyzed the complexity and diversity of situations that military servicemen may be confronted with during international crisis management operations. These raise complex questions as to the (international) criminal qualification of ROE and military soldiers' cards. Preferably, such qualification should not be based merely on a grammatical interpretation of these documents, but rather on a systematic interpretation, taking into account the context and other (military) documents. The international context and the underlying international instruments of a particular PSO should play an important interpretative role in establishing liabilities of military commanders. In Chapter 9, as pointed out by Stefano Failla, border management within PSOs is also a crucial element for security. A border should not be considered as a barrier to separate countries, but as a means of facilitating the lawful exchange of people and goods. A border without institutions supporting it is usually felt'by the people as a mere barrier and does not serve its purpose. Modern and effective border management mechanisms both at the operational and legislative levels, addressing the demilitarization of borders, effective intelligence sharing within the region and effective mechanisms to manage returns,
292
Practice and Policies of Modern Peace Support Operations
reintegration and orderly migration are therefore necessary throughout the whole Balkan region, especially in view of the ongoing European integration process. 10. In Chapter 10, Valerie Wahl showed how essential it is for every international peace support mission to provide for adequate internal control and disciplinary mechanisms to effectively respond to possible involvement of their staff in the trafficking business. To this end, states should find harmonized solutions on how to reform the current system and how to deal with cases of possible involvement of their mission staff. Solutions to consider include: enforcing the severity of disciplinary sanctions within missions, strengthening the decision-taking mechanisms within the mission's disciplinary systems by further delegation of power from the sending state to the mission management, obligatory briefings of mission staff, change of the legal status of the private companies that are supporting international missions or forces and that are acting beyond the law in the mission areas. And finally, military missions or forces should also take into consideration the introduction of a system of legalized and controlled sexual services within their mission in order to channel and control the demand of their mission staff. 11. Pascal Dupont, in Chapter 11, highlighted how the detention of individuals by the military should be strictly monitored by the international community, this being a responsibility of the civil control on armed forces, including PSO forces. All cases should be submitted to an independent panel of experts, including some international prosecutors who are serving in the particular state's judicial system. 12. Sandra Katrin Miller, in Chapter 12, showed that there is a legal vacuum in holding peacekeepers accountable for sexual abuses. Definitions developed by the jurisprudence of the ICTY, ICTR and ICC may help future prosecutions of sexual abuse and exploitation committed by UN peacekeepers. An alternative mechanism of obtaining jurisdiction over peacekeepers to hold them accountable for human rights violations may be a UN on-site court martial as proposed by Prince Zeid in combination with Model Criminal Codes for post-conflict states. In addition, clauses should be inserted in the MOU to ensure that troop contributing countries have a legal obligation to prosecute acts of sexual abuse committed by military personnel, which constitute crimes under the laws of the troop contributing country or the host state. If they do not agree to that, they should not be permitted to participate in UN peace operations.
TABLE OF CASES AI-Adsani v. UK, 122
Ocalan v. Turkey, 131 et seq.
Baha Mousa case, 121 Bankovic v. Belgium, 126 et seq., 137 et seq., 140 Bell v. Wolfish, 201
Pena v. Leombrune, 201 Prosecutor v. Akayesu, 270, 271 Barayagwiza,59 Delalic et ai, 270 Furundzija, 270 Kallon and Kamara, 53 Kunarac et aI, 270, 271 Kvocka et ai, 270 Tadic,51
Celiberti de Casariego v. Uruguay, 14 Chandler v. U.S., 9 Cyprus v. Turkey, 120 et seq. Drozd and Janousek v. France and Spain, 122 et seq.
Graham v. Connor, 201
R (AI-Skeini and others) v. Secr. Of State for Defense, 118 et seq., 134 et seq., 140 Reese v. Anderson, 201
Hess v. UK, 134 Hilda Hafsteindottir v. Ice.and, 30
Soering v. UK, 121 et seq. Stocke v. Germanmy, 134
Ilascu and Others v. Moldova and Russia, 13, 131 et seq. Issa and others v. Turkey, 13, 132 et seq.
United States v. Iran, 43
Eric O. (DMCL), 184, 187 et seq.
Karman, 197 Laizidou v. Turkey, 122 et seq., 137,257 Llandovery Castle case, 199 Lopez Burgos v. Uruguay, 14
Waite and Kennedy v. Germany, 15 Xv. FRG, 118 et seq. X v. UK, 120 X and Y v. Switzerland, 121 Zwolsman, 197
Makaratxia v. Greece, 30
293
INDEX Acoustic weapons, 167-169 See also Non-lethal weapons Crowd deterrence, 168 High Intensity Directed Acoustics (HIDA),168 HiperSonic Sound (HSS), 168 Long Range Acoustic Device (LRAAD) Use in Iraq, 168 Vortex ring generator, 169 Additional Protocol I of the Geneva Conventions (AP I), 6, 96 Article 35, 162 Article 36, 162 Additional Protocol II of the Geneva Conventions (AP II), 12, 96 Afghanistan, 46, 64-65 Al Qaeda, 139 American Declaration of the Rights and Duties of Man, 14 Arnold, Roberta The Applicability of the Law of Occupation to Peace Support Operations, 91-115 Arrests or restraints, 24-27 Use of force during arrest, 27-30 Assessment, 16 Austrian Armed Forces (AAF) See also Military and legal aspects Austria's deployment with KFOR, 67-87 Border management mechanisms, 223 Kosovo experience, 217-222 Bosnia and Herzegovina (BiH), 67 Southeastern Europe Example ofBiH, 231-245 Trafficking in human beings, 225-247
See also Trafficking in human beings Cooperation in criminal matters, 242 Central data base, 242 Financial aspects of traffickers, 238 Modus operandi of traffickers, 240 National plan of action, 232 Organized crime, 237 Procedural criminal legal aspects, 238-241 Public and administrative legal aspects, 243-245 Alien victim, 244 Regional cooperation 243 Substantive criminal legal aspects, 232-238 Witness protection, 241 Cambodia, 63 Capital punishment, 52 Chemicals Barrier foam, 171 Malodorants, 173 Non-lethal weapons, 169-175 See also Non-lethal weapons Pepper spray, 170 Slippery foam, 172-173 Sticky foam, 171 Ozone layer and, 171 Taggants, 172 Child Rights Convention, 272 Citizenship Habitual residence status and, 213-214 Congo See Democratic Republic of Congo Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), 272
295
296
Practice and Policies of Modern Peace Support Operations
Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (ewC), 164, 165, 171 et seq. Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (BWC), 173 Convention Relative to the Protection of Civilian Persons in Time of War (IVGC), 6, 11, 12, 20 Council of Europe, 230-231 Court martial, 284-285, 287 Criminal law Changed perspective of international military operations, 184-185 Domestic criminal law systems (DMCL) International military developments and operations, 183-201 International rules of engagement, 196 Military commanders UN mandate and SC Resolutions on, 191-196 Military criminal justice system Internationalization of, 186-188 Military liability, 188-190 Rules of engagement and Soldiers' Cards, 190-191 Military crisis management operations Consequences for military criminal liability, 185-186 National judicial implementation, 197 Reasonable officer on the scene, 200-201 Rules of engagement Criminal law defenses and, 197-200 Superior orders, doctrine of, 199 Crowds See also Non-lethal weapons Use of weapons against, 83-84 Cyprus, 149
Debellatio, doctrine of, 101, 115 Declaration on the Elimination of Violence against Women, 272 Democratic Republic of Congo, 5 See also United Nations Mission in the DCR (MONUC) Accountability of peacekeepers for sexual exploitation, 261-288 Human rights issues and, 271-273 Department of Peacekeeping Operations (DPKO),154 Derogations PSOs and, 15 Detention Abstract, 249 Conclusions, 259 Extrajudicial detention, 85-86 Individuals during peacekeeping operations Lessons learned from Kosovo, 249-259 Conditions of treatment, 258-259 Human rights instruments applicable, 255-258 Human rights standards, 258-259 KFOR's detention policy, 258-259 Need for detentions, 250-254 Temporary and not arbitrary, 258 Introduction, 249-250 Use of detention and the respect of human rights, 255-259 Directed-energy weapons, 175-179 Electreomagnetic weapons, 177-178 Lasers, 175-176 Microwaves, 176 Plasma Weapons, 178-179 Dupont, Pascal M. Detention of Individuals During Peacekeeping Operations: Lessons Learned from Kosovo, 249-259 East Timor, 56-57, 61 El Salvador, 61 Equality before the law, 53-57 Espace juridique, doctrine of, 126-130 Ethiopia and Eritrea, 150-151
Index
European Commission on Human Rights See also TABLE OF CASES; see also European Convention on Human Rights European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 256 European Convention on Human Rights (EConvHR), 75, 256 See also TABLE OF CASES; see also Jurisdiction Article 5, 257 Bankovic and the doctrine of espace juridique, 126-130, 136, 138 Impunity issue, 138 Post-Bankovic,131-136 Control test cases Beginning of, 119-120 Extraterritorial reach of, 117-140 Acts with extraterritorial consequences, 121-122 Effective control doctrine, 122-125, 135 Introduction, 117-118 Personal jurisdiction, 120-121 European Court of Human Rights (ECHR), 12-14,25,29, 75-78, 117,256,257 European Union (EU), 230 European Union Force (EUFOR), 246 Extraterritoriality See European Convention on Human Rights Failla, Stefano Migration and Border Management in Kosovo, 203-223 Fair trial Delays in, 59 Right to, 59-60 Fleck, Dieter Securing Status and Protection of Peacekeepers, 141-156 Gacaca, 61-62 Geneva Conventions, 96 et seq.
297 Genocide, 270 Georgia, 150
Habeas corpus, 16 Hague Convention of 1907, 96, 162, 163 Martens Clause, 163 Haiti, 5, 139 Hess, Rudolph, 120 Hostile intent, 81, 84-85 Human rights Applicable principles of, 12-14 Kosovo situation and, 256 Rule of law and, 38-40 Sexually abused women Applicable human rights provisions, 271-273 Human Rights Committee Use of force and, 28-29 Immunity, 14-15,48 See also Peacekeeping U.S. "deployment for combat" exception, 144 Immunity of peacekeepers within the receiving state, 143-148 Trafficking in human beings and, 247 United Nations immunities, 145 et seq. Impunity, 60 Jurisdiction and, 138 Prevention of, 47-49 Individual responsibility Wrongful acts, for, 145-149 Indonesia, 56 Institution building, 4-5 Inter-American Commission on Human Rights, 14 International Civilian Police (CIVPOL), 17etseq. Law enforcement in Kosovo, 17 International Committee of the Red Cr.oss (ICRC), 103, 107 International Convention on Economic Social and Cultural Rights (ICESCR),272 International Covenant on Civil and Political Rights (ICCPR), 12-14, 25-26,28,75,256,272,284
298
Practice and Policies of Modern Peace Support Operations
International Criminal Court (ICC), 7, 51 International Criminal Tribunal for Rwanda (ICTR), 52, 55, 58, 59, 62,152 International Criminal Tribunal for the Former Yugoslavia (ICTY), 51, 53-54,58,59,61,152 International Force for East Timor (INTERFET) See East Timor International humanitarian law (IHL), 6 See also Occupation, law of Applicable principles of, 10-16 Armed intervention under guide of IHL, 139-140 Intervention and, 71 Non-lethal weapons See, in general, Non-lethal weapons PSF and, 10-12 Intervention Reservations by Austria's TCN as to, 75-80 Right of under Art. 42 of UN Charter, 70-75 Ip, Kwai Hong PSOs: Establishing the Rule of Law Through Security and Law Enforcement Operations, 1-34 Iraq, 166, 184 United States military presence in, 91-92,99,140 Use of U.S. troops to gather evidence, 32 Israel, 97 et seq., 168 Italian Carabinieri, 91 Judiciary Bias, free from, 57 Corruption and, 57 Independence of, 57-59 Jurisdiction See European Convention on Human Rights Extraterritorial jurisdiction, 137-139 Interpretation and, 137-138 "Primarily territorial," 127
Regional legal space, 138-139 Justice Rule of law and, 40-41 Khmer Rouge, 64 Kinetic energy weapons, 166-167 See also Non-lethal weapons Knoops, Geert-Jan Alexander Criminal Liability for Contemporary International Military (Crisis Management) Operations: Towards A Refined Adjudicatory Framework, 183-201 Kosovo, Bias in courts against Serbs, 54 Detention of individuals during peacekeeping operations, 249-259 See also Detention Ethnic cleansing issue, 251 Inter-ethnic incidents, 253-254 Law enforcement example, 17-34 See also Law enforcement Migration and border management in, 203-223 See also Migration and border management in Kosovo UN protectorate, 251-253 Violence, 254 Kosovo Force (KFOR), 5, 17-34 Border security and public order, 208 et seq. Detention and, 250 et seq. Detention policy, 258-259 Military and legal aspects of PSOs afId, 67-87 War crimes and, 22 Kosovo Liberation Army (KLA), 17 et seq., 254 Law enforcement Arrests or restraints, 24-27 Use offorce during, 27-30 Conclusions, 33-34 Cooperation with law enforcement authorities, 31-33 Criminal prosecutions, 31-33 Immediate action, 17-23
Index
Re-establishing the rule of law, 31-33 Searches, 30-31 Tasking, 5-6 Transition to normality, 23-24 Lett, Josephine The Age of Interventionism: The Extraterritorial Reach of the European Convention on Human Rights, 117-140 Memorandum of understanding (MOU), 24,285 Migration and border management in Kosovo, 203-223 Border management mechanisms, 217-222 Citizenship versus habitual residence status Regulations on, 213-214 Conclusions, 223 Introduction, 203-204 Kosovo legal framework, 208-214 Legislation in force before NATO entered Kosovo, 205-208 Movement of persons in and out of Kosovo, 214-217 Nation building and, 204 Regulations on exclusion, prevention of access SRSG's decision on refusal of entry, 210-213 Military and legal aspects, 67-87 Attacks on property Life-threatening use of arms to prevent, 80-82 Conclusions, 86-87 Crowds Life-threatening weapons against, 83-84 Extrajudicial detention, 85-86 Hostile intent, 84-85 Intervention Reservations as to, 75-80 Right of, 70-75 Politico-military and legal framework Relationship between, 67-70
299
Miller, Sandra Katrin Accountability for the Conduct of UN-Mandated Forces Under International Human Rights Law ... MONUC,261-288 Multinational specialized unit (MSU), 32 National judicial system Need for, 60-65 Necessity Justification for, 16 Netherlands Dutch Military Criminal Code (DMCC), 184 et seq. Military crisis management and, 183-201 See also Criminal law Non-governmental organization (NGO), Non-lethal weapons, 157-180 Acoustic weapons, 167-169 Area Denial to Personnel, 160 Certain Conventional Weapons (CCW),159 Chemicals, 169-175 Clearing Facilities of Personnel, 160 Conclusions, 179-180 Counter-personnel Non-Lethal weapons Chart of, 160-161 Crowd control, 160 Definition, 158 Directed-energy weapons, 175-179 Incapacitation of personnel, 160 International humanitarian law and, 165-179 International legal instruments protecting civilians, etc., 163-164 Introduction, 157-159 Kinetic energy weapons, 166-167 Legal framework, 162-165 Military operations in urban terrain (MOUT),160 Riot control agents, 164 Specific military objectives issue, 163 Superfluous injury, 163 Types of, 159-162 Unnecessary suffering, 163 Various names for, 157
300
Practice and Policies of Modern Peace Support Operations
North Atlantic Treaty Organization (NATO), 17,68-69, 106,250 Bombing of Radio and Television Station in Belgrade, 126 Directive MC 36211, 69 et seq., 84-85 NATO SOFA rules, 145 Occupation, law of Applicability of PSOs to, 91-115 Peace enforcement operations, 109-112 Peacekeeping operations, 112-113 Conclusions, 113-115 Definition, 96-102 International humanitarian law Applicability of IHL to PSOs, 106-109 Occupying power, 102-104 Duties of, 102-104 Rights of, 104-105 Introduction, 91-92 Requirements, 99-102 Univocal meaning, 97-98 Office of the UN Security Coordinator (UNSECOORD),154 Optional Protocol to the Convention on the Rights of the Child on the sale of Children, Child Prostitution and Child Pornography (CRC-OP-SC), 272 Organization for Security and Cooperation in Europe (OSCEO,51,54,230 Partnership for Peace (PfP), PfP SOFA, 151 Peace enforcement operations, 109-112 Peace Support Force (PSF), Institution building, 4-5 Peace support operation (PSO), CCC:See also Occupation, law of Authority of, 3-10 Challenges faced by, 1-34 Conclusions and recommendations, 289-292 Review of chapters, 289-292 Force, use of, 7 General tasks, 3-4
Immunity of, 14-15 Institution building, 4-5 International criminal tribunals, support of, 6-7 Law enforcement tasking, 5-6 See also Law enforcement Military and legal aspects of See also Military and legal aspects Austria's deployment with KFOR, 67-87 Non-lethal weapons, use of, 157-180 See also Non-lethal weapons Preemptive self-defense, 7 Types of, 92-95 Peacekeeping and peacekeepers Accountability of Sexual abuse in MONUC, 261-288 Different types of, 113-115 Force and, 94 Iraq and, 91-92 Measures to ensure safety and security of,I 53-1 55 Military crisis management and, 185 et seq. PSOs and, 91 et seq. Robust peacekeeping, 94, 113 Bosnia and Somalia, 94 Secretary-General's Bulletins Guidelines for proper conduct, 279-281 Sexual exploitation and abuse, 279 Securing status and protection of peacekeepers, 141-156 Conclusions, 155-156 Immunity issue, 143-148 Introduction, 141-143 State and individual responsibility for wrongful acts, 148-149 Status of forces agreements to improve protection of, 150-153 UN Rules of Conduct, 277-278 Police Civilian police component, management of Kosovo experience, 218-222 International police force, 251 Politico-military and legal framework Relationships between, 67-70
Index
Posse comitatus, 9 Post-conflict justice Introduction, 35-37 Post-conflict judicial mechanisms, 49-68 Tribunals, setting up, 50-60 Legal foundation of, 50-52 UN involvement in, 35-66 Property Use of arms to prevent attacks on, 80-82 Prostitution See Trafficking in human beings Quenivet, Noelle Promoting and Abiding by the Rule of Law: UN Involvement in Post-Conflict Justice, 35-66 Quint nations, 27 Rape, 270-271 Rule of law, 37-41 Definition, 37-38 Domestic mechanism, 60-65 Equality before the law, 53-57 Fair trial, 59-60 Human rights and, 38-40, 52-53 Independence of the judicial apparatus, 57-59 International judges to insure fairness, 54-55 Justice and, 40-41 National judicial system, 63--65 Promoting and abiding by Truth and reconciliation commissions, 61-63 UN involvement in post-conflict justice,35-66 Ad hoc basis, 43-46 Obligation of UN to peace-building, 41-46 Promoting and abiding by, 35-66 Re-establishing,31-33 Setting up post-conflict judicial mechanisms, 46-65 Rules of engagement (ROE), 7-10,16,28 See also Criminal law Proportionality and necessity, 69
301
Scherhaufer, Gerhard Military and legal aspects of PSOs Austria's deployment with KFOR, 67-87 Searches, 30-31 Self-defense, 69 et seq. September 11,2001, 139 Sexual abuse Definition, 270-271 Sexual exploitation See Trafficking in human beings;' see also MONUC Sexual harassment, 278 Sierra Leone, 53, 150 South Eastern European Co-operative Initiative (SEC I), 230 Special Representative of the SecretaryGeneral (SRSG), Stabilization Forces in Bosnia and Herzegovina (SFOR), 149, 246 State Responsibility Wrongful acts, for, 145-149 Status offorces agreement (SOFA), 14, 143 See also Peacekeeping Dayton SOFA, 149 Improving protection through SOFA, 150-153 Model SOFA, 150-153 Status of mission agreements (SOMA), 143, 150 Superfluous Injury or Unnecessary Suffering Project (SlrUS), 163 Toth, Gergely So-Called 'Non-Lethal' Weapons in Peace Support Operations, 157-180 Trafficking in Human Beings (TiHB) See also Bosnia and Herzegovina Client Criminalization issue, 237-238, 246 efinition, 225 International instruments dealing with, 228-230 International peace support operations and, 245-246
302
Practice and Policies of Modern Peace Support Operations
International peacekeepers and, 227 Introduction, 225-228 Luring the defenseless, 225-226 National legislative efforts-example of BiH, 231-245 Potential clients of trafficked victims, 246-247 Regional instruments dealing with, 230-231 Sexual exploitation (Bosnia and Herzegovina), 225-247 Tribunals Legal foundation of, 50-52 Selectivity of UN in setting up, 51 Setting up an international or internationalized tribunal, 50-60 Troop contributing country (TCC) Court martial, 264-265 Discipline for misconduct, 263 Due diligence, 263-264 Guidelines for conduct of troops, 281-286 Memorandum of understanding, 265 Model Status of Forces Agreement, 272 Secretary-General's Bulletin as to International humanitarian law, 262 Sexual exploitation and sexual abuse, 262 State responsibility, 281-286 Troop contributing nations (TCN), 8, 68 See also Intervention Reservations by, 68 Truth and reconciliation commissions, 61-63 United Kingdom (UK), 01 United Nations (UN) Ad hoc justice by, 43-46 Post-conflict justice and, 35-66 Quasi state and, 43-44 United Nations Assistance Mission in Afghanistan (UNAMA), 64 United Nations Charter, 41-42 Article 42 Right of intervention under, 7-75 eacekeeping and, 93 et seq.
United Convention Against Transnational Organized Crime, 228-229 United Nations Convention on the Privileges and Immunities of the UN, 145 United Nations Convention on the Safety of UN and Associated Personnel, 146 United Nations General Assembly Resolution (GA Res.), United Nations Interim Administration Mission in Kosovo (UNMIK), 4-5, 18 et seq., 54, 58, 117, 251 et seq. Law enforcement and, 18 et seq. Migration and border management in Kosovo, 203-223 United Nations Mission in Ethiopia and Eritrea (UNMEE), 150, 151 United Nations Missions in Sierra Leone (UNAMSIL), 150 United Nations Observer Mission in Georgia (UNOMIG), 150 United Nations Operation in the Congo (ONUC), 5, 149 United Nations Organization Mission in the Democratic Republic of the Congo (MONUC), 5, 8, 150 Accountability for the conduct of un-mandated forced International human rights law, 261-288 Applicable legal provisions of, 274 Conclusions, 286-288 Critique of, 264 et seq. Facts and figures, 263 Introduction, 261-262 Mandate, 264 Mission, 264 MONUC Code of Conduct, 276-277 Problems, 264-266 Security Council Mandates, 274-276 Sexual abuse of Congolese women and girls by, 267-271 Sexual exploitation and abuse by peacekeepers, 265 et seq. Situation in the Democratic Republic of Congo (DRC), 262-266
Index
United Nations Peacekeeping Force in Cyprus (UNFICYP), 149 United Nations Protocol to Prevent, Suppress and Punish Trafficking In Persons, Especially Women and Children, 229-230 United Nations Security Council, 51 United Nations Security Council Resolution (SC Res.), Military commanders and, 191-196 PSOs and, 3-10 Resolution 827 (1993),152 955 (1994),152 1234 (1999), 274 1244, 24, 68, 74 et seq., 255-256 1315 (2000),153 1332 (2000), 274 1493 (2003),274 1542,5 1577,5 United Nations Stabilization Mission in Haiti (MINUSTAH), 5 United Nations Transitional Administration in East Timor (UNTAET), 56, 61
303
United Nations Transitional Authority in Cambodia (UNTAC), 63 United States (US) See also Iraq Non-lethal weapons development, 179-180 Universal Declaration of Human Rights (UDHR), 12,25,43,271 Victor's justice, 54 Vienna Convention on the Law of Treaties, 97 Vienna Conventions on Diplomatic and Consular Relations, 146 Wahl, Valerie Trafficking in Human Beings .. 225-247 War crimes, 48, 52 Weapons Non-lethal weapons, 157-180 See also Non-lethal weapons
