Violations of IHL committed during peace operations and individual criminal responsibility

Mme. Maria TELALIAN : “Violations of IHL committed during peace operations and individual criminal responsibility”

Working Group 4 (transcribed from audio by Amy Iberg, IIHL Genève)


Thank you Madame Moderator,

And allow me to start by saying that the very academic and thorough analysis that was made earlier about the responsibility of the international organizations is also relevant to the question of the individual criminal responsibility which is a thing that has been developed through the statutes of the ad hoc tribunals and also through the new ICC, the new permanent court.

However I would like to focus my presentation on more practical measures and mainly on what the United Nations are doing presently in order to confront this question of individual criminal responsibility. This being the case I will focus mainly on peace operations in the large sense with special attention of course to operations that are United Nations led operations and which are controlled by the United Nations itself.

Now with this introduction, I’d like to say that the previous analysis by Professor Klein allows us to agree that international organisations are responsible for wrongful acts of their organs much in the same way as States are. Of course the rules on international responsibility of international organisations have not yet been defined and there is a process going on in the United Nations right now in the context of the international commission, however I would feel safe to say that by analogy we can apply the rules of state responsibility also to international organisations. Now one of the consequences of the responsibility of international organisations and hence of the UN is the question of criminal reparation of violations of IHL committed by their agents within the context of peace operations. One should also envisage a joint responsibility for the same conduct of course between the UN and the states participating in the force if they both share the control over the said military operation. And here I agree with the analysis made earlier concerning the criteria of effective control which is a determinant factor in saying whether States in parallel with international organisations can exercise such control.


It is important to note, however, that whereas the UN as an international organisation will be certainly attributed the violations of international humanitarian law committed by its agents in the context of peace operations, the execution of the criminal reparation as a general rule should be guaranteed by states. This is understandable since as Dr. Shraga mentioned yesterday, the UN does not dispose the necessary legal and material capacity to this effect. This means that the UN can not hold the person accountable and does not have the legal capacity to conduct criminal investigations where it is alleged that the conduct engaged in by persons participating in UN operation may amount to a crime. The UN as the organisation that has the management and the responsibility for peacekeeping personnel can only conduct administrative investigations as part of the disciplinary process. Of course the organisation can not exercise executive powers as we call them, except if such executive mandate is given to it by the Security Council as is the case for instance in Timor l’Est and Kosovo where the Security Council explicitly gave the UN the capacity to exercise enforcement powers and prosecutorial powers. This being the case the exercise of criminal jurisdiction for criminal acts committed by peacekeepers at their duty station remains the responsibility of member states. As to which state is entitled to exercise such jurisdiction, the prevailing rule is that where the offender of the alleged criminal conduct is a national, and particularly a member of the security or armed forces of the state participating in the UN force, he will be exempt from the criminal jurisdiction of the state where the criminal act was committed and will be subject to the exclusive jurisdiction of the sending state. Only the latter can invest and prosecute that person either through ad hoc action of its judicial organs which are accompanying the force, or through action of its national tribunal situated on its territory. And of course if there is a referral to an international penal court. Likewise the sending state has also the ability to exercise law enforcement functions including arrest, search and seizure and conducting interviews for the said conduct. All the above rules regarding the exemption of criminal jurisdiction of the host state are clearly reflected in status of forces and status of nations agreements. Somas and sofas as the military call them

And according, of course, to these agreements the members of the military personnel of the force are subject to the exclusive jurisdiction of the state of their nationality in conformity with the criminal laws and regulations of that state. It is important to note that these agreements – the SOFAs and SOMAs - also specify that the care to exercise jurisdiction rests with the authorities of the interested state including the military commander of the national contingents. It’s important also to note that these SOMAs and SOFAs are codified by the UN in a model status of forces agreement which was drafted upon the mandate of the General Assembly. However, not all the members of the peacekeeping force enjoy the same immunity. A distinction is made between the members of the military contingents who enjoy personal immunity – that is immunity from the criminal jurisdiction of the host state – for any kind of criminal act and regardless of the circumstances under which this act was committed, and the civilian personnel placed under the UN force by the sending state or the locally recruited personnel who enjoy functional immunity, which is immunity for crimes or offences that are committed by them in the exercise of their official duties. This category of civilians is also subject to different accountability regimes. The civilian personnel which is accompanying the force, according to art 47 of the Model Status of Forces Agreement, in case of allegations of criminal conduct the representative or the commander of the force shall conduct any necessary supplementary inquiry and then agree with the government whether or not criminal proceedings should be instituted.

A serious problem that can arise in respect of the absolute immunity of military personnel concerns the relationship between these rules of exemption and the obligations of third states to repress international crimes according to general law or international conventions such as the Geneva Conventions. Does absolute immunity mean that a third state that is entitled to exercise international criminal jurisdiction for a grave breech committed by a peacekeeper during a UN peace operation is prevented from doing so? In the absence of state practice in this matter it has been pointed out that the solution would be to give priority to the jurisdiction of the sending state. If the latter is not willing or is not in a position to exercise it then third states should come into the picture. This corresponds to the underlying idea for granting immunity which is to facilitate peacekeepers to effectively discharge their duties in the host country with the understanding, of course, that the sending state should effectively exercise jurisdiction over the alleged offenders. Any other solution would lead to a denial of justice and hence to impunity.

In practice, however, national courts have a very poor record when it comes to prosecution of war crimes or other crimes committed in armed conflict. This is due to legal or political reasons. For example, the sending state might not have extended its criminal jurisdiction to crimes committed by its nationals in a foreign country. Or the crime committed by the person might not have been characterised as serious crime by the laws of that country. Or the military courts might lack competence for crimes committed during peace times. One of the few cases where violations of international humanitarian law were prosecuted by national courts is Somalia, where members of the Belgian military troops were tried for allegedly committing such violations by the Military Court in Brussels. In the same case, Canada and Italy set up commissions of inquiry and initiated internal judicial procedures to investigate such allegations against their troops. In most of these cases, however, the individuals responsible for such conduct have either been acquitted, or the relevant tribunals have made a very doubtful interpretation of the applicability of international humanitarian law in peace keeping operations. Likewise states are reluctant for political reasons to prosecute the members of their security or armed forces. There are regimes, for example, that prefer reconciliation or amnesty despite the dubious validity under international law of these actions. And, of course, they prefer not to prosecute. In addition, although domestic statutes may permit prosecution of non-nationals for crimes committed abroad, there is little political incentive for such action and in practice I would say it is rare.

Problems also exist in relation to functional immunity and in practice it is quite unclear as to the meaning of the term ‘during the course of their duties’. As an example I would like to quote that in the case of Kosovo for instance, it was declared that a peacekeeper who committed rape was not permitted to have immunity any more and the immunity, of course, was lifted. On the other hand in a case of murder that involves the UN mission in Kosovo again, the suspect’s immunity was waived although there was no reason to waive it as he did not enjoy immunity for that special activity. Another problem with immunities is when the United Nations are not simply present in a territory but they have an executive mandate and they’re acting with governmental powers. In these cases, granting immunity to UN is severely criticised as governments do not have impunity but, on the contrary, should be capable of being called into account. These questions became more pressing in the last few years when disturbing revelations concerning incidents of sexual exploitation and abuse by the UN peacekeepers came into the light, seriously damaging the reputation of the peacekeepers and the UN as a whole. Then Secretary-General, Kofi Annan, acknowledged publicly that acts of gross misconduct had been committed by personnel serving in a UN mission in the Democratic Republic of the Congo.

Disturbingly enough these revelations came a year after the Secretary-General’s bulletin on special measures for protection from sexual exploitation and sexual abuse and the ‘zero tolerance’ policy of the organisations was issued. This ‘zero tolerance’ policy was reflected also in a set of standards which are contained in the bulletin that defined the behaviour required of the military personnel of national contingents as well as of UN officials, experts on mission, consultants, military observers and volunteers. The report of the special advisor to the Secretary-General on sexual exploitation and abuse by the UN peacekeeping personnel, known as the “Z Report”, which was issued subsequently, sheds light on the problem of sexual exploitation and abuse by UN peacekeeping personnel and noted, among other things, that holding the UN staff and experts on mission accountable for crimes committed during peace operations was problematic. This latter point was considered as requiring further consideration and the General Assembly recommended that a group of legal experts be appointed to undertake this task. The group of legal experts focused its report on the question of assuring the accountability of UN personnel and experts on mission with respect to criminal acts committed in peacekeeping operations and made a number of useful recommendations designed to overcome obstacles that exist in holding such personnel accountable for crimes committed during peacekeeping operations.

It is clear that ratione personae this report does not concern the military contingents of the member state but concerns only the UN staff and experts on mission. It should be clarified that experts on mission include UN military observers, police and civilians and others who are afforded the status of an expert on mission. These individuals enjoy functional immunity and of course the immunity can be waived under certain circumstances. One of the principal reasons for distinction between military observers and military members of national contingents is the relationship between such persons and the UN. Military observers are military officers assigned by the UN to perform missions and tasks of the UN. Although nominated by their governments following a request by the Secretary-General, they serve the United Nations in their personal capacity and not as a representative of their state. This explains the different accountability regime that this group is subject to. The basic premise of the report of the legal experts is that if a crime is committed in a host state where the peace operation is deployed and that state is unable to prosecute an alleged offender there is a need for third states to do so. However, if other states have not extended the operation of the criminal laws to apply to crimes committed in a host state, then there is a jurisdictional gap and the alleged offender is likely to escape prosecution.

In order to close these jurisdictional gaps, it was suggested that as many states as possible assert and exercise criminal jurisdiction over these kind of offences. The group also recommended the development of a new international instrument – a convention – that would enable states to establish jurisdiction in as wide circumstances as possible and provide legal certainty as regards both the personnel that is covered for the exercise of such jurisdiction and the crimes that come under its scope. The convention would also deal with questions of investigation, arrest, prosecution and extradition of offenders and mutual assistance. Such a convention, as was already emphasized by the Group, would only cover UN officials and experts on mission and would not detract from the applicable immunity regulations which either the UN or any of its officials and experts on mission enjoy. It should be stressed that although the Group’s report focuses on crimes such as sexual exploitation and abuse, because of the mandate of the Group, the Group itself was in favour of extending this convention or other measures to every serious crime committed in the territory of the host state including other serious crimes such as trafficking in human being, drug trafficking etc etc.

Following both developments, the General Assembly decided to set up an ad hoc committee on criminal accountability of United Nations officials and experts on mission to examine the report of the legal experts and its recommendations. This is, unfortunately, how the UN does work. It takes years and years until all the issues are thoroughly studied and eventually there is a decision made by the General Assembly. The ad hoc Committee has held some very interesting and thorough discussions on these issues and what is really obvious is that all Member States have emphasized their support for the ‘zero tolerance’ policy of the UN concerning criminal conduct committed by UN personnel and they reassured the need to ensure strict observance of the rule of law. It is interesting to note that many Member States have requested more detailed information from the Secretariat concerning the extent of the problem criminal activity by peacekeepers in order to determine whether there was a jurisdictional gap. Actually, they asked for statistics concerning serious violations of criminal laws. The answer of the UN Secretariat was that according to the information available from the office of internal oversight services and the dept of field support which is with the Department of Peace Keeping Operations (DPKO) the problem is significant. These are the words used by the secretariat. Indeed according to statistics from January 2006 to December 2006 – one year only – from missions led by DPKO, a total of 439 allegations of misconduct, other than sexual exploitation and abuse were reported. At the same time, 357 allegations of sexual exploitation and abuse were reported for the same period of time. Of these allegations, only 176 allegations came from the UN mission in the DRC. The majority of Member States hold that statistics are not important in this regard and certainly they do not tell the whole story of sexual abuse and exploitation from peacekeepers. In this respect I would like to quote the words of Nicolas Michel, the then legal council of the Secretary General, before the 6th Committee of the General Assembly: “The UN Secretary does not and can not condone criminal conduct by its officials and experts on mission. Criminal conduct by UN personnel puts into question the core values of the secretariat and directly affects the world body’s activities and essential missions. Although it concerns a very small minority of UN personnel, the problem is significant.”

He also stressed that the failure to prosecute offenders by Member States brings about perceptions of impunity which can aggravate the situation. An important development in the ad hoc Committee is the elaboration of the text of a draft resolution of the GA which was eventually adopted by the latter last year –Resolution 62/63 which contains important short-term measures for states to enable them to confront the problem of the jurisdictional gap. Indeed in this Resolution the General Assembly urges states to establish, to the extent to which they have not done so, jurisdiction over criminal activity committed by their nationals serving with the UN. The Resolution also invited states to provide the Secretary-General by the deadline of 1st July 2008 – and I hope all the states have provided info – information on their jurisdictional competence as well as on mechanisms put in place for following up allegations of criminal conduct. These informations will be reflected in a report by the Secretary General and will clarify the nature and scope of the procedural and jurisdictional gaps and will facilitate the decisions to be made in the ad hoc Committee regarding also the advisability of the elaboration of special convention that will deal with the jurisdictional gap in this respect.

I know I have made an abuse of my time so I will wrap up by saying that the Security Council also adopted a resolution this year – Resolution 1820 – that addresses explicitly the question of sexual exploitation and sexual violence and also affirms that in the future we’ll reflect on taking sanctions on those who violate these standards. In conclusion, crimes committed by UN peacekeepers are very significant and they have serious impact on the psychological and the physical integrity of the victims, their families and the society as a whole. Such crimes also cast a dark cloud on the UN peacekeeping and damage the objective of the UN missions and the organisation as a whole. And the Secretariat, although it does not have the legal capacity to conduct criminal investigations, should improve its administrative investigative capacities because credible and reliable reports concerning the commission of serious crimes can trigger a criminal investigation by law enforcement authorities of a state that asserts jurisdiction. At the same time the organisation should continue its work on a comprehensive response – this is the word: comprehensive – to the problem of serious crimes and most particularly to the question of sexual violence by its peacekeepers. And of course we should mention here that it is a pressing and urgent need to ensure the compliance with international humanitarian law using the valuable assistance of the ICRC and other human rights organisations and also the Human Rights Council.

Thank you very much.