Protection of Civilians Symposium: Some Thoughts on Legal Obligations for UN Peacekeeping Operations to Protect Civilians

[Marten Zwanenburg is legal counsel at the Ministry of Foreign Affairs of the Netherlands. The views expressed herein are his own and do not necessarily reflect the views of the ministry of Foreign Affairs of the Netherlands.This post is a part of the Protection of Civilians Symposium.]

Let me start by saying that the publication of “Protection of Civilians” is very timely. As Ralph says in his introductory post, this topic is a well-established topic in international law but controversial in practice. The latter is particularly true in the context of peacekeeping operations.

In this post, I will focus on Siobhan’s chapter in the book. I will return to Mona’s chapter in a separate post.

Siobhan’s main proposition, with which I fully agree, is that relevant to peacekeeping operations are legal obligations to protect that are largely derived from international human rights law (IHRL), International Humanitarian law (IHL), and the law of international responsibility. I also agree with her that these obligations are relatively weak, but have important operational implications for UN missions. Siobhan’s contribution is especially important because it tries to tease out the latter, thus making the issue concrete.

One very interesting question that she raises, is whether the mandate of a UN mission creates obligations for the mission. In other words, if the mission fails to carry out its PoC task, can it be held responsible for failure to carry out the mandate?

UNSC resolutions clearly are not treaties, and thus a “breach” of a resolution is not a non-performance of a treaty obligation. An alternative could be to regard the mandate as a unilateral undertaking by the UN. Siobhan states that the majority view is that mandates provide an authorization to act but do not, in themselves, create any legal obligation to do so. However, she adds that some provisions in peacekeeping mandates do imply that at least those particular paragraphs are intended to be obligatory, such as e.g. an obligation report gross violations of human rights “immediately”. I have some doubts concerning the latter conclusion, however. For one, I would be very surprised if the drafters of the relevant resolutions considered that if e.g. UNMISS does not “immediately” report gross violations of human rights to the UNSC, this would constitute an internationally wrongful act. Another consideration is that the examples Siobhan gives all relate to things that the operations must do vis-a-vis the organization itself. In other words, they say that one part of the UN must do something vis-a-vis another part of the UN.

A very important conclusion that Siobhan draws from this is that, even in the absence of a specific task in its mandate, a UN peace operation has an obligation to protect. She does not pursue this thought further, but it is nevertheless interesting to do so. It makes me wonder whether it can be argued that this would mean that the UNSC must give every peace operation the task of protecting civilians, or that the UNSC must provide a peace operation with sufficient capabilities to enable a peace operation to carry out its PoC mandate/responsibility.

Siobhan discusses IHRL and IHL as possible sources of legal obligations on UN peace operations to protect civilians. In doing so, she focuses mostly on specific rules under these regimes and their interpretation. The legal basis for the UN being bound by these rules in the first place is discussed only very briefly, and almost seems to be taken for granted. This is of course a perfectly legitimate choice, since a book chapter does not lend itself to detailed analysis of every aspect, but it does make me interested in her underlying argumentation. This question will however probably become increasingly theoretical, as the notion that the UN is bound is increasingly accepted and the UN increasingly implicitly or even explicitly says so itself. In this sense the emphasis that Siobhan places on peremptory norms as those norms by which the UN is bound at a minimum, comes across as quite conservative.

Her reliance on articles 14 and 42 of the DARIO, on the other hand, seems somewhat too liberal. My own feeling is that state and organizational practice may not be sufficient to conclude that these articles have a customary law status (yet).

Another important question raised by Siobhan is the relationship between the obligations of the UN and those of the troop contributing states (TCC). Siobhan states that according to a number of courts, human rights violations of a UN Peacekeeping force may be attributable to the TCC, and possibly to both the UN and the contributing state. In discussing this issue, she focuses primarily on the exercise of (extraterritorial) jurisdiction, rather than on attribution issues. The attribution question is however highly interesting. Siobhan refers inter alia to the Nuhanovic and Mustafic cases. In these cases, the Dutch Supreme Court held that in the very specific circumstances of that case, conduct of Dutch peacekeepers could be attributed to the TCC. One may wonder whether courts would be willing to go even further and hold a TCC responsible for conduct that is a priori attributable to the UN. Arguably, the Bosphorus line of case law of the ECtHR could form the basis for such a finding.

The most important part of Siobhan’s contribution to me is the section on accountability. The usefulness of establishing whether or not the UN has legal obligations to protect civilians loses much of its relevance if there is no forum where a breach of those obligations can be invoked, Siobhan points to the extensive immunity of the UN, which as it is practically applied arguably goes beyond what is reasonable and necessary for the independent functioning of the organization. She rightly stresses that it is important that the Organization establishes mechanisms that promote accountability beyond legal and claims processes. This does not take away from the importance of also having adequate claims processes that take into account the human right of access to a judge. A recent statement by a UN spokesman relating to the Haiti cholera crisis might mean that the UN is looking at ways to increase its accountability but it is clear that it has a long way to go.

Without adequate mechanisms, it may be that judges will start chipping away at the immunity of the UN. Although hitherto judges have been very reluctant to set aside the immunity of the UN in particular, it may be that they will become increasingly willing to do so if the situation persists. Alternatively, claimants may try to turn to TCC, which they may perceive as easier to hold responsible than the UN itself. The Dutch Srebrenica cases could be seen as a first manifestation of this. If this would indeed become the trend, it could have precisely the result that then UNSG Kofi Annan invoked for an expansive reading an application of UN immunity and that is cited by Siobhan: “if we allowed our peacekeepers to be brought to courts and tried over matters like this, that would be the end of peacekeeping.”