Accountability of Peace Support Operations by Marten Zwanenburg (International Humanitarian Law: Springer) Quis custodiet ipsos custodies? In other words, who guards the guardians? At a time when the mandate of many peace support operations includes halting violations of international humanitarian law by third parties, there is still a lack of clarity concerning accountability of peace support operations themselves. This book addresses that accountability, focusing on peace support operations under the command and control of the United Nations and the North Atlantic Treaty Organization. It is concerned with the accountability of international organizations as well as troops contributing and member states, but not of individuals.
Drawing on existing and emerging doctrines of international law, including the law of state responsibility, the law of responsibility of international organizations, international institutional law and international humanitarian law, and on the basis of state practice, this book makes a strong plea for improving mechanisms to implement the accountability of peace support operations under international humanitarian law.
Readership: This book will be of interest to academics as well as to practicing lawyers involved in peace support operations.
The object of this study is the conduct of peace support operations. In particular, this study focuses on peace support operations under the command and control of the [IN and the North Atlantic Treaty Organization (NATO). Other international organiza¬tions have also undertaken peace support operations or are making preparations for undertaking them. The Economic Community of West African States (ECOWAS) for example has carried out peace support operations in Liberia and Sierra Leone, and in December 2002 decided to deploy an operation in Ivory Coast. The European Union (EU) is likely to play an important role in the deployment of peace support operations in the future. The 1999 Cologne European Council decided that the Coun¬cil should have the ability to take decisions on the full range of conflict prevention and crisis management tasks, referred to as the `Petersberg tasks', defined in the Maastricht Treaty. To this end, it decided that the Union must have the capacity for autonomous action, backed up by credible military forces, the means to decide to use them, and a readiness to do so, in order to respond to international crises. This decision set in motion a process that has led to the deployment by the European Union of an interna¬tional civil police force in Bosnia Herzegovina in January 2003, the deployment of an EU operation in the Former Yugoslav Republic of Macedonia, and a decision to take over the lead of the peace support operation iii Bosnia Herzegovina from NATO.
Despite the role of these other organizations, this study is limited to UN and NATO peace support operations, because these two organizations presently appear to dominate the scene in respect of peace support operations and it is likely that they will continue to play an important role in the future. These two organizations have proven military structures, whereas the EU, for example, does not at present. Peace support operations by African organizations are limited by financial constraints.
This study is divided into three parts. The first part is concerned with the. attribution of conduct of peace support operations. Second, the scope of applicability of rules of international humanitarian law in peace support operations is examined. the third and final part contains an analysis of the existing possibilities for invoking respon¬sibility and accountability of peace support operations for breaches of international humanitarian law, complemented by proposals for improving the means for invoking responsibility and accountability.
Part I starts with a discussion in Chapter 1 of the content of the expression `peace support operation' as it is used in this study. This requires a historical overview of the creation and the evolution of such operations, from the United Nations Emergency Force (UN El") established in 1956 to the variety of operations presently deployed by the UN and NATO. Such an overview is necessary to understand the distinctions between the many existing 'peace' terms, and to define the object of study. Special legal and operational characteristics of peace support operations are identified. These char¬acteristics are essential as the basis for an examination of the attribution of the con-duct of peace support operations in Chapter 2. A theory on the attribution of conduct of peace support operations to the international organization establishing the opera¬tion, troop contributing states and the member states of the organization is presented, based on an analysis of elements of the law of state responsibility and the emerg¬ing law of the responsibility of international organizations as mainly demonstrated through state and organization practice as well as the. work of the ILC.
Part II in Chapter deals with the question of the scope of application of inter-national humanitarian law to peace support operations. This requires a discussion of the extent to which the UN and NATO are bound by general international law, and the consequences of the special position of the UN Security Council in this respect. It also requires an examination of the threshold of application of international humanitarian law; that is, when a peace support operation can be considered to be a party to an armed conflict or in occupation of a territory, triggering the application of interna¬tional humanitarian law. Chapter 4 addresses the legal consequences of responsibility and accountability for violations of international humanitarian law, based on a discus¬sion of the law of state responsibility and responsibility of international organizations and the practice in peace support operations.
Part III focuses on the practical implementation of responsibility and account-ability, particularly the possibilities for the invocation of these concepts. Chapter 5 provides an overview of the existing mechanisms for invoking responsibility and accountability. The chapter focuses in particular on the mechanisms that are at the disposal of individuals. The idea underlying this approach is that since international humanitarian law grants rights to individuals, there should also be a mechanism for individuals to obtain redress when these rights are violated. The chapter concludes that present mechanisms are not effective. Consequently, Chapter 6 proposes the modification of existing mechanisms and the establishment of new mechanisms to improve the legal position of individuals that are injured by breaches of international humanitarian law by peace support operations.The chapter includes an exploration of the ombudsperson concept, which is the basis for a proposal to establish an interna¬tional humanitarian law ombudsman in peace support operations.
Part IV recapitulates the main findings of this study and its conclusions.