In Search of Due Diligence Obligations in UN Peacekeeping Operations

Nigel D White

doi:10.1163/18754112-02303005

Abstract

Abstract It is argued in this article that due diligence, grounded on positive duties under international human rights law, is a standard against which to measure the performance of UN peacekeeping forces. Its adoption by the UN will improve accountability, but in a controlled and principled way. A requirement that the UN act diligently to prevent human rights violations would not impose over-onerous obligations. For responsibility to be incurred an organisation must have clearly failed to take measures that were within its power to take. It is argued that the UN not only should be bound by norms of due diligence but is in fact bound by positive obligations derived from customary international human rights law. The development of some due diligence-type measures by the UN to prevent sexual abuse by peacekeepers and to protect civilians within areas of peacekeeper deployment, and the adoption of an explicit due diligence policy to delineate its relationship with non-UN security actors, are positive signs. However, the article demonstrates that the UN needs to further internalise and develop its due diligence obligations if it is to limit human rights violations committed under its watch. Furthermore, it needs to create accountability mechanisms to ensure that it develops the rather limited measures taken thus far, including provision for victims to be able to hold the organisation to account for failure to protect them from human rights violations. Only by accepting its responsibility and liability to such victims will be the UN be driven to improve its due diligence when mandating, preparing, training, deploying and directing peacekeeping operations.

Highlights

In a sense arguments over the immunity and accountability of the UN have obscured the ongoing uncertainty over the primary and secondary rules of international law applicable to the UN when undertaking peacekeeping
It is argued in this article that due diligence, grounded on positive duties under international human rights law, is a standard against which to measure the performance of UN peacekeeping forces
Due diligence obligations are found in various areas of international law,[4] but are developed in international human rights law as a result of the positive obligations placed on states to ensure the protection of human rights of individuals within their jurisdiction

Summary

Introduction**

In a sense arguments over the immunity and accountability of the UN have obscured the ongoing uncertainty over the primary and secondary rules of international law applicable to the UN when undertaking peacekeeping. It is necessary to understand what violations of international law have been committed by the UN before any attempt is made to assess whether immunity should prevent access to justice before national courts and whether alternative methods of settlement are required. The scandals and crises attached to these human rights violations do not seem to have improved the UN’s accountability. The fear of exposure to mass claims only partly explains the UN’s continued reliance on absolute immunity as provided by the Convention on Privileges and Immunities 1946, and its reluctance to establish the type of claims commissions delivering nonjudicial redress promised in every peacekeeping status-of-forces-agreement (sofa) but never delivered.[2].

Due Diligence as a Standard

An Appropriate Normative Framework for Peacekeeping

The Applicability of Due Diligence Obligations to UN Peacekeeping

The Application of Due Diligence to UN Peacekeeping

The Protection of Civilians

Conclusion