Reasonable Measures in Unreasonable Circumstances: A Legal Accountability Framework for Human Rights Violations in Post-Conflict Territories Under UN Administration

Abstract

The administration of post-conflict territories by the United Nations has given rise to a peculiar challenge to the international legal regimes that ordinarily provide protection from and redress for human rights violations. As norms generated within a legal system in which states were the primary, almost exclusive, subjects of the law, the application of human rights, humanitarian, and international criminal law is complicated by the virtual absence of traditional state actors in such situations. Indeed, in these situations public power is exercised by an intergovernmental organization, and a disproportionate level of power is wielded by other non-state actors, including, in some instances, organized, armed groups.Essentially, this paper seeks to answer the question: how do we apply human rights and humanitarian law when all of the relevant parties are non-state actors? It attempts to answer this question by setting forth the relevant legal accountability framework, citing examples from the practice of the United Nations Interim Administration Mission in Kosovo (UNMIK), as well as the United Nations Transitional Administration in East Timor (UNTAET), and demonstrating the application of this framework in particularly challenging circumstances. Conclusions are then drawn from this exercise regarding the proper understanding of the framework in such situations.The first section examines the applicability of human rights law in the context of peace operations. The second section brings the application of humanitarian law into the analysis, supplemented with the inclusion of international criminal law in section three. These three areas of law are merged in the penultimate section into an accountability framework that covers the spectrum from state responsibility to the individual responsibility of non-state actors. This framework is applied in the final section to the tragic events that occurred in Mitrovica, Kosovo in February 2000. The analysis concludes by proposing an understanding of the framework that would enable it to better respond to the realities faced by victims in such situations and therefore to better comport with the purposes of these areas of international law.