PROPOSING A MODEL OF IMMUNITY FOR PEACEKEEPERS: THE SOVEREIGNTY/JUSTICE BALANCE - WHAT SORT OF IMMUNITY SHOULD PEACEKEEPERS HAVE IF JUSTICE IS TO BE ACHIEVED FOR VICTIMS OF WAR CRIMES?

• Author: Mckenzie, Caitlyn

I INTRODUCTION

The prevalence of criminal behaviour among United Nations (UN) peacekeepers is not known. (3) In particular, despite the relatively well defined obligations of jus in hello, or international humanitarian law (IHL), the enforcement of and accountability for those obligations in UN peacekeeping missions has been, to put it generously, poor. However, it is important to acknowledge that 'UN peacekeeping is a difficult task, often undertaken with limited resources in challenging environments. The expectations are high, and peacekeepers are not always well empowered to deliver.' (4)

On 31 March 2020 there were 81,370 uniformed military personnel, from 121 contributing countries, (5) deployed on UN Peacekeeping operations. This article will ask what sort of immunity these peacekeepers should have if justice is to be achieved in particular for victims of war crimes committed by peacekeeping troops while on mission. While the term 'peacekeeper' can denote a range of actors, the question at hand will limit examination to regular contingent military troops contributed by member States who do not meet the criteria for Force Commander, or a similar status, which would grant them the additional immunities of that status. This limited scope excludes civilians, consultants, police, and military members hired as individuals. In addition, the environments examined include only UN mandated peacekeeping missions, excluding UN sanctioned missions (those undertaken by coalitions of willing States) and non-peacekeeping missions (monitoring and observation missions, and other missions of differentiated purposes).

In particular, this article will address first the role of the international law applicable to peacekeeping in supporting both effective peacekeeping operations and enforcement of international criminal law. It will then move to examine the key sources of the two interacting regimes in this area: international criminal/humanitarian law; and the law surrounding the immunity of and jurisdiction over military peacekeepers. Finally, it will discuss possible options for achieving justice for victims of war crimes committed by military peacekeepers.

Throughout, this examination aims not only to address theoretical liability, but the reality of (in)effective and (in)consistent enforcement through the lens of the practical difficulties of applying justice and the rule of law to the uniquely overlaid jurisdictions present on United Nations peacekeeping missions. However, for the sake of a focused discussion, ideas of justice will be limited to those related to the individual perpetrator alone and exclude remedies which may be extracted from third parties, eg contractors, and through invocations of State responsibility.

This article will argue that any improvement in the rule of law on peace operations must openly address the impact of States' fears surrounding the relinquishment of their sovereign rights and the equal administration of justice in each other's domestic jurisdiction. It will conclude that calls in the literature for a convention governing accountability for military peacekeepers are sound, and that this would provide not only a clearer framework, but an opportunity for dialogue surrounding capacity building in State judicial systems. However, this article also concludes that other measures to provide non-judicial remedies to victims are more likely to gain traction, and therefore effectiveness, in addressing the need for accountability, patticularly where it contributes to national reconciliation.

II INTERNATIONAL LAW, JUSTICE AND EFFECTIVENESS

1. The Role of Law

   International law, hand in hand with domestic law where it is present, is the peacebuilding tool that brings the will and best practices of the international community and international organisations to bear on post-conflict States. International law has the ability to put in place bespoke programs for transition to peace, balancing political concerns with responsible divisions of power, and implementing evidence- and rule-based governance. This provides a foundation upon which international or domestic administrations should have the opportunity to improve the state of conflicts and overall governance.

   By way of example, the UN peacekeeping mission in Sierra Leone, UNAMSIL, demonstrated some of these strengths. The Security Council mandated peacekeepers to assist with the implementation of the Lome Peace Accord, (6) which outlined a power sharing arrangement between the leaders of the Sierra Leonean government and the Revolutionary United Front of Sierra Leone (RUF). The mandate also outlined a path to elections under a process agreed by the parties and guided by the national constitution. (7) Finally, Security Council Resolution 1270 also made specific provision for the disarmament and care of child soldiers, (8) a specific attribute of the Sierra Leonean conflict, and the implementation of child and gender-related provisions of human rights and refugee law. (9)

   In addition, the collective will of the international community was brought to bear on breaches of the Peace Accord during the implementation process. In 2000, the RUF kidnapped members of the peacekeeping force and renounced the agreed ceasefire. In response, largely led by the United Kingdom, the global community put in place sanctions against the rebels' supporters and used military and political pressure to return the parties to mediation, resulting in a successful resumption of the ceasefire and the eventual disarmament of 75,000 ex-fighters, including child soldiers. (10)

   However, alongside acting as a tool for peacekeepers to use, international law must also act for the population of the host State, to protect them when those mandated to do so fail. IHL, in particular, was agreed to try to limit the effects of armed conflict, including the deterioration of the rule of law, and to establish an international criminal law to hold those in breach of the rules accountable. This not only provides justice for individual victims, but in turn contributed to the reconstitution of the rule of law and sets conditions more favourable to reconciliation between parties to the conflict. (11)

2. Immunity and Accountability--Sides of a Coin

   Both the immunity and accountability of peacekeepers are important to success in achieving lasting peace and stability in the fragile environments to which UN peacekeeping missions are deployed. To say that there should be no immunity for those carrying out such work is to misunderstand the nature and character of these tense and adversarial environments. While legal immunities have a number of underlying rationales, the most salient for those in conflict situations is the protection of personnel from indirect (via burdensome or obstructive legislation or regulations), or symbolic (via administrative or physical personal persecution) acts of political protest. (12) Further, Freedman cites consistency of interpretation by national courts as a motivation for maintaining immunities for international organisation personnel. (1?) These protections also maintain the will of the international community, by which, under the Security Council, the mission was established, as superior to that of a single State. This thwarts any attempts to obstruct international collective action by potentially uncooperative host governments.

   Correspondingly though, accountability is a central component of justice and reconciliation in post-conflict environments, without which stability cannot be achieved. (14) The process of working towards justice in post-conflict environments may be termed 'transitional justice', denoting the processes of transition between conflict and peace. As Wendy Lambourne puts it:

   Transitional justice is implemented in the context of a process of transition from violence or mass violation of human rights to some more peaceful and democratic state. From the perspective of civil society recovering from mass violence, justice may be sought as a redress for crimes, but also as a way of coming to terms with the past and building a new future. (15)

   So, peacekeepers need to be protected from ill will by their host State to perform their day to day functions maintaining and strengthening stability. Equally though, host States, civilians and civil society should not be expected to participate and invest in the success of UN missions where they too are operating under high levels of risk. In post conflict environments, these actors work with little that they can afford to lose: few resources, little social cohesion. Without avenues of redress to potentially regain lost capital, be it social or financial, the impacts of a breach of trust by those mandated to protect are too severe to be tolerated, let alone supported.

   Ill INTERNATIONAL HUMANITARIAN LAW AND SOURCES OF IMMUNITY: COMPLETE AND CONTESTED

1. Applying IHL to Peacekeepers

   The laws of war were not drafted with peacekeeping operations in mind, but nonetheless where peacekeepers operate in conflict environments IHL applies. (16) This is evident from the multiple legal aspects of peacekeeping operations which reference and annex IHL provisions, including:

   1. the direct application of Geneva and Hague law from the provisions of relevant treaties and customary international law, as interpreted by the International Committee of the Red Cross (ICRC); (r)

   2. UN Security Council Resolutions which establish peacekeeping mandates; (18)

   3. UN administrative directions to specific missions, (19) and peacekeepers as a whole; (20)

   4. Memoranda of Understanding between the UN and Troop Contributing Countries (TCCs), (21) in combination with the domestic law of TCCs incorporating their obligations under IHL.

   To examine these layers respectively, the ICRC's Peacekeeping Operations: Statement to the United Nations 2014 reflects ICRC's view of direct application:

   The applicability of international humanitarian law (IHL)...