Un Peacekeeper Liability

Discuss and Evaluate Critically

"It is submitted that if a state acts on behalf of the United Nations (such as during peacemaking missions), it is the U.N. not the respective state who is liable for damages done in course of such activity."

Answer

According to the U.N. Charter, the United Nations was established to "save succeeding generations from the scourge of war"; therefore one of its main purposes is to maintain international peace and security. The charter grants to the Security Council the primary authority for this maintenance, and it may adopt a range of measures, including the establishment of a U.N. peacekeeping operation. Although not explicitly provided for in the charter, peacekeeping mission have evolved into one of the main tools used by the U.N. to achieve this overall purpose. Chapter VII of the charter contains provisions relating to "Action(s) with Respect to the Peace, Breaches of the Peace and Acts of Aggression", and in previous years, the Council has adopted the practice of referencing Chapter VII when establishing the legal authority to deploy U.N. peacekeeping operations, into volatile, post-conflict countries where the state is unable to maintain security or public order.

However, the United Nations has no standing army or police force, and for every new peacekeeping mission, the U.N. Secretariat must seek contributions of personnel from member states, who are under no obligation to provide them. Currently there are sixteen peacekeeping missions around the world, with approximately 120,000 personnel, (~100k - uniformed personnel on active duty, including troops, police and military observers / ~20k - civilian staff) with the vast majority of these coming from developing nations, primarily in Africa and South Asia. Remuneration for participation is provided to these states by the U.N., which is oftentimes motivation enough for poorer countries to supply personnel and other resources.

With so many global actors operating under the purview of the U.N., an obvious legal concern is in determining who is responsible for the bad behavior of U.N. peacekeepers? Troop-contributing nations are. Contributing nations maintain exclusive jurisdiction over their military personnel, meaning that the U.N. does not have the power to criminally prosecute its peacekeepers, but it can lift their immunity from prosecution where they are serving. It also can fire or suspend peacekeepers and send them home to face justice. Though the U.N. has a zero-tolerance policy when it comes to sexual exploitation and abuse, the most severe action it can take, as mentioned, is repatriation of the accused - at the contributing nation's expense - and, if the eventually found guilty, that country can be prevented from participating in future peacekeeping missions.

Investigations into serious violations of U.N. rules are conducted by members of the U.N. Office of Internal Oversight Services (OIOS), and the final decision to repatriate is made by the U.N. Department of Peacekeeping Operations (DPKO). Although there have been allegations of violations, two notable and recent cases occurred in 2007. In both, large numbers of Moroccan peacekeepers in the Ivory Coast and Sri Lankan troops in Haiti were sent home for sexual misconduct.

In 2002, the Ivory Coast, the world's largest cocoa producer, descended into Civil War, leaving the country divided, between a rebel-controlled north and a government-ruled south. The U.N. subsequently created an Ivory Coast mission (UNOCI), whose objective was to "to facilitate the implementation by the Ivorian parties of the peace agreement signed by them in January 2003," which eventually included 9,000 U.N. peacekeepers and 3,500 French troops, many of which patrolled the giant buffer zone between the two factions.

The allegations of abuse involved troops of Moroccan nationality and girls under the age of eighteen, some reportedly as young as thirteen. The abuses took place over a three-year period, as the units rotated in and out of the country, and included claims of as many as 100 girls being implicated. Once the U.N. began receiving allegations of the abuses, it confined the 734-strong battalion to its base while the investigation was being carried out, stating "due to the gravity of the allegations, the U.N. took a decision to suspend all the activities of the contingent and confine the unit to its base of operations." The organization went further, announcing that "any Moroccan peacekeepers that were found to have committed sexual abuse or exploitation while in the Ivory Coast would be sent home" - presumably to face punishment under Moroccan laws.

In 2004, U.N. Security Council Resolution 1542, created the United Nations Stabilization Mission (MINUSTAH) in Haiti, the poorest nation in the western hemisphere, in an effort to "support the transitional government in ensuring a secure and stable environment." The mission included a contingency of 959 Sri Lankan soldiers, of which 108, including 3 officers would be investigated and eventually repatriated for claims of improper conduct. The decision was made in cooperation of Sri Lankan authorities, after the OIOS determined "acts of sexual exploitation and abuse (against children) were frequent and occurred usually at night, and at virtually every location where the contingent personnel were deployed."

Unfortunately, it is commonplace that repatriated offenders are rarely prosecuted in their home countries, with many less being convicted - believed largely to a lack of political will and reluctance on the governments' part to publicly admit to acts of wrongdoing by its soldiers. In addition, cases are often thrown out because evidence gathered on the ground by U.N. investigators fails to meet the nation's own, criminal procedure standards. This is understandable as sufficient evidence can be difficult to collect in unstable conflict zones and in communities where issues of sexual abuse can carry a heavy social stigma. The OIOS has taken steps to streamline and professionalize its investigative procedures, and the DPKO has established a Conduct and Discipline Unit with eight field offices, to more effectively address any allegations of violations.

In the Ivory Coast case, the U.N. found damming evidence against at least fourteen Moroccan soldiers, with DNA evidence proving some fathered children of the victims, and after the U.N. investigation found clear evidence of the wrongdoing, it sent the matter back to the Moroccan government for prosecution. The result? The Moroccan government dropped all charges against their troops, stating that no conclusive evidence had been found to justify the prosecution.

As for the Sri Lankan peacekeepers, there is no conclusive