Continuing Impunity of Peacekeepers: The Need For a Convention

Abstract

Since the end of the Cold War United Nations (UN) authorised peacekeeping missions have tended to be not only more complex, but also much more interventionist and more robust than could ever have been imagined in the early days of peacekeeping.1 However, because peacekeeping is not explicitly provided for under the UN Charter, and has developed ad hoc in response to changing perceptions as to the nature of the role and responsibilities of peacekeeping missions, it is often unclear what laws are applicable to peacekeeping missions and when those laws apply. This paper explores the implications of that lack of clarity, focusing in particular on gaps in the international law regulating the conduct of peacekeepers. The author argues that the current approach, whereby prosecution for crimes committed by peacekeepers is dealt with primarily through the domestic law of the Troop Contributing State, is unsatisfactory, and is likely to remain unsatisfactory despite efforts to persuade Contributing States’ to establish the legal and administrative frameworks necessary to prosecute and punish their troops for crimes committed outside their territorial borders. A convention based regime specifically tailored to ensuring that peacekeepers are held accountable to internationally agreed standards would be the most effective way of enabling the UN to comply with the rule of law standards it itself espouses.2 Such a regime would enable the UN to retain legitimacy internationally and in the eyes of the communities where missions are deployed. In addition the UN should expand its Office of Internal Oversight Services to encompass a dedicated fully resourced criminal justice unit.3 Arguably the accountability gap in relation to non-military personnel is even greater than for military personnel since, although troops generally have complete immunity from prosecution in the host State under a Status of Forces Agreement, they are normally covered by their home State’s military justice system; whereas non-military personnel have functional immunity in the Host State, under the Convention on the Privileges and Immunities of the United Nations,4 but may not be subject to the jurisdiction of their home State at all whilst they are deployed abroad.5 However not all Troop Contributing States have independent codes of military justice operating in peacetime, and in those countries that do not, responsibility for punishing any wrong-doing by military personnel falls to the ordinary courts and disciplinary bodies.6 In addition some countries have removed serious crimes that violate human rights from the jurisdiction of military courts.7 But even where military personnel are subject to their home State’s military justice system, and it covers the crime in question, Troop Contributing States are often reluctant to prosecute.8 Since the track record on holding UN troops accountable for crimes and other serious misconduct remains poor; and since the majority of allegations of crimes and misconduct reported in the press continues to be against soldiers; and since soldiers outnumber other personnel in UN operations by a wide margin,9 this paper focuses in particular on military personnel.