Report of Working Group 3

Report of Working Group Three – Friday September 5th 2008.

Peace Operations and the Repression of Violations of International Humanitarian Law

Report presented by Professor Fausto Pocar


Thank you.

Working Group Three was composed of myself, Judge Meron who spoke of the role of peacekeepers in searching for persons charged with War Crimes, Ms. Olivia Swaak-Goldman who dealt with cooperation between peace forces and the International Criminal Court, and Prof William Taft who dealt with preventing and reporting violations of international humanitarian law.

The working group came to no final solution on these issues. It was not the task of the session to come to a solution but thanks the excellent and focused presentations there has been an identification of the major issues concerning cooperation with international courts and peacekeeping forces. Attention has been placed on both the achievements and the shortcomings and the limits of the varying and multi-faceted normative framework defined by ad hoc Security Council resolutions, fundamental international law principles and various forms of agreements. Also discussed was the influence of major political factors which tend to impact on the ability of courts to carry out their mandates, even though at times, as in the case of the self-referral of the Congo to the ICC, they may play in favour of courts as well.

A preliminary consideration that was made during the Working Group is that international courts lack their own police; they have jurisdiction over crimes but do not have enforcement jurisdiction. The contributions highlighted how, in addition to the non-replaceable cooperation of states, this limitation can at least in part, though with varying degrees of effective cooperation from one court to another, be remedied by the role of peacekeepers to a certain extent. But in general this will depend first and foremost on the content of the mandate of peacekeeping forces. I will not make a summary of the three presentations that were made but will rather discuss some of the points that have been made.

First, the lack of enforcement jurisdiction of international criminal courts distinguishes these courts, starting with the ICTY in 1993, from the previous experience of Nuremberg and Tokyo where the tribunals acted in a situation of occupation and had a sort of enforcement jurisdiction where they had the possibility of ordering the arrest of individuals and to collect evidence and so on. The situation is different for current court except, perhaps, for the Kosovo panels which are by definition and by their mandate assisted by UNMIC police and also, perhaps, for the East Timor situation.

Now one question: why is it so difficult to arrest people? Normally it has been said that there is vagueness in the mandate of armed forces in that respect. It was stressed that in the beginning even the ICTY received very little cooperation from States and that was quite detrimental, but also from security forces starting with UNPROFOR. Things only started to change at the end of the nineties but the general practice seemed to be for peacekeeping forces: “we arrest people for whom tribunals have sent an arrest warrant only if we meet them or if we by chance come across them.”

Nevertheless it has been stressed that the achievement of arresting people by the ICTY shows a very good record and it is largely satisfactory: out of 161 accused, only two remain at large. These people are at a certain level but nevertheless in terms of numbers the achievement is important. On the other hand the incorporation of peacekeeping forces of arresting accused in other situations has also been important. It is enough to think of the arrest of the former Liberian president, Charles Taylor.

The problem is somewhat different for the ICC and most of the debate focused on the cooperation with the ICC. The ICC itself of course has no international enforcement agency and the role of peacekeepers has been stressed as being very important. Also because the ICC normally has to investigate in the middle of ongoing conflicts and has the problem of ensuring the protection, safety and wellbeing of victims and witnesses during the conflict unlike other tribunals that act after the conflict has concluded. So there is a need to rely on peacekeeping operations and the need to enter into specific agreements with international organisations to facilitate that cooperation.

The agreement between the ICC and the UN was discussed. In particular, in light of that a case study has been made by Ms Swaak-Goldman on the cooperation between the ICC and one of the peacekeeping operations, being MONUC, the operation in Congo. Based on a memorandum of understanding between the ICC and MONUC it has been stressed that although the Security Council authorized MONUC to cooperate with efforts to ensure that those responsible for serious violations of human rights and international humanitarian law are brought to justice this does not necessarily include enforcement powers in this respect.

Under the memorandum of understanding, MONUC may agree to a request by the Democratic Republic of Congo Government in carrying out the arrest of the persons sought by the court. MONUC may assist the ICC in search and seizure operations, security, crime scenes, transportation of suspects security support – there is certain flexibility on a case-by-case basis. But the enforcement powers of MONUC are made available more at the request of the government of Congo than at the request of the ICC itself.

Some challenges for the ICC have also been stressed. The problem of balancing the rights of the accused and the duty of the prosecutor of prompt disclosure of information are issues not addressed specifically by the statute of the ICC itself.

Especially in the third presentation, it was stressed that not everything is international criminal justice and not everything has to be done by international criminal courts. The issue of reporting international humanitarian law violations for the purpose of taking steps different from the prosecution of the individual is also an important feature of the repression of violations of international humanitarian law with a view to also identifying different political situations, like the truth commissions or other means for dealing with a certain situation. And the question of the prevention of human rights violations which tends at times to be underestimated was also discussed at length during the Working Group with the view to identifying how peacekeeping forces can work in that direction.

This connection has also been stressed that there is an important role to be played by domestic jurisdictions: it is their primary responsibility to prevent and to repress violations of international humanitarian law. A number of problems have been raised in this respect including how far peacekeeping forces have the obligations to report or also to intervene to stop abuses if they see abuses being committed or on the point of being committed.

Then the discussion went again to the courts and to the question of the relationship between international and domestic courts: the principle of complementarity. The difficult issue of deciding when a court is unable or unwilling to take a case, in particular whether inability is just a technical inability or if it is a political inability as it appears to be the case in many situations.

I will conclude the report here. As you see there have been many issues discussed. In general the lack of sufficient clarity as to the role of peacekeeping forces in this matter has been stressed, although there have been several examples in which peacekeeping forces have played an important role. But the whole framework is not fully defined and should perhaps be defined in the future.

Thank you.

Transcribed from audio recording by Amy Iberg, IIHL, Genève