Command Responsibility in Peacekeeping Missions: Normative Obligations of Protection in a Criminal Law Environment

Abstract

The passive stance taken by respectively Belgian and Dutch peacekeeping commanders towards the commission of genocide in both Kigali (Rwanda) and Srebrenica (Bosnia Herzegovina) has been challenged in domestic courts in recent years. As a result, the individual responsibility of the peacekeeping commanders involved has been addressed. Peacekeeping operations' distinct, normative character combined with the remoteness of peacekeeping troops vis-a -vis the parties to the conflict complicate any legal assessment made regarding the commanders' accountability under international criminal law. This article explores whether a separate type of command responsibility could be developed to fit the specific circumstances in which military commanders operate, based on the command responsibility applied to occupation commanders in post-Second World War trials. Situations of occupation and peacekeeping are characterised by a similar focus on positive rather than negative obligations of protection. Such a normative context may influence how their criminality is perceived. Therefore, this article considers the use of the German Funktionslehre to differentiate between security control and custodial control. That distinction could separate 'peacekeeping command responsibility' from regular command responsibility. Culpability would then be incurred for the failure to act rather than for the crimes committed by a commander's subordinates. Using such a context-sensitive approach to command responsibility for peacekeeping commanders could further a fair assessment of the commander's liability by taking the normative environment in which peacekeeping takes place into account.