Troop-contributing States Research Articles

The Political Economy of Peacekeeping: Civil–Military Resource Substitution through International Brokerage

Abstract What effects does participation in peacekeeping operations (PKO) have on the participating countries’ civil–military resource allocation? Answering this question can widen our understanding of state motivations to contribute to the United Nations PKOs by incorporating the civil–military dynamic. We argue that contributing states can substitute part of their domestic military expenditures with external resources. Governments act as brokers between domestic military interests and international sources of rent, a process which we call civil–military resource substitution through international brokerage. By doing so, governments can (i) reduce part of the bottom-up demands for increased military spending (i.e., salaries and allowances) and (ii) outsource critical resources to meet military organizational priorities (i.e., training, weapons, perks for the military elite, and so on). Using cross-national statistical analysis, we find that the UN PKO contributing states allocate fewer resources to the defense sector than the non-contributing states, and higher troop-contributing states are likely to allocate fewer resources to the defense sector than the lower-contributing or non-contributing states. The implications point to a much wider role of the UN peacekeeping missions than what is previously understood and demonstrate their impacts beyond the host countries.

THE RULE OF ATTRIBUTION FOR PEACEKEEPERS POST-DUTCH SUPREME COURT’S RULINGS ON MOTHERS OF SREBRENICA IN 2019: A DISCOURSE ON PRESUMPTIVE V. PREVENTIVE INTERPRETATION

Peacekeeping operations have become an integral component of the United Nations in promoting global peace and security. Yet, as demands increase to hold peacekeepers accountable for their misdeeds, the legal principle of attribution within the framework of the law of responsibility remains ambiguous and difficult to define. Hence, this study aims to contribute to the discourse on the attribution of the Peacekeepers' conduct, especially on the presumptive v. preventive interpretation of Article 7 Draft Articles on Responsibility of International Organizations. Under the presumptive interpretation, the peacekeeper’s action is presumed to be attributed to the UN; however, attribution can be rebutted if Troop Contributing States (TCS) exercise control over the peacekeepers. In contrast, preventive interpretation argues that attribution must be determined by which entity, TCS or the UN, has the power to prevent the alleged conduct. This study analyzed how the Dutch Supreme Court’s rulings in 2019 approached the question of attribution toward the Dutch Battalion during the mission of UNPROFOR. The Supreme Court found that the action of the Dutch Battalion was attributable to the Netherlands since the Netherlands fulfills the elements of effective control as governed under Article 8 ARSIWA. Moreover, the Supreme Court rejected the preventive interpretation earlier endorsed in the Nuhanovic case. This study employed a normative juridical approach. This study argues that the Court’s rulings on presumptive interpretation are aligned with the practices of the UN’s peacekeepers and the intended purpose of Article 7 DARIO, which emphasizes attribution on factual consideration.

The End of the Road: State Liability for Acts of UN Peacekeeping Contingents After the Dutch Supreme Court\u2019s Judgment in Mothers of Srebrenica (2019)

This article provides an analysis of the Dutch Supreme Court judgment in the Mothers of Srebrenica case, placing it in its context, and comparing it with earlier and related decisions, in particular the judgments in the cases of Nuhanović and Mustafić. The Mothers of Srebrenica is a foundation established to represent the interests of the approximately 6000 surviving relatives of the victims of the fall of Srebrenica during the conflict in the former Yugoslavia (1995). The foundation holds the Netherlands responsible for not having done enough to protect the victims of the Srebrenica genocide. This contribution addresses the attribution of the conduct of the United Nations peacekeeping contingent to the troop-contributing State (the Netherlands), followed by the wrongfulness of the peacekeepers’ conduct and the State’s attendant liability for damages suffered by the victims. It is argued that the Dutch State’s international responsibility was only engaged because of the exceptional circumstances present in Srebrenica at the time. In the ordinary course of events, the liability of troop-contributing States is unlikely to be engaged if the Supreme Court’s review standard were to be applied.

Circumventing Obligations Through Multinational Military Operations: Legal Consequences for Troop Contributing States

SummaryIf member States decide to circumvent their international legal obligations by acting through a military operation led by an international organisation, the institutional veil of which provides a shield against their responsibility for possible wrong-doings, an accountability gap can be identified. The contribution explores one of the possibilities for addressing this gap, the prohibition of circumvention, as enshrined in Art. 61 DARIO. The provision stipulates the possibility to hold the troop contributing States accountable. However, arguably the problems with international organization’s accountability gap cannot be solved in most cases by holding the States responsible over the actions of the MMO. Problematic appears such solution against the necessity to satisfy the thresholds of intent to circumvent and causing the organization to act in certain way, as required by the principle enshrined in the Article 61 DARIO.

The Obligation to Investigate in Peace Operations: The Role of Cooperation in Ensuring Effectiveness

Reports concerning crimes and abuses committed by peace operations personnel deployed in situations of humanitarian crisis often hit the news. In these instances, troop-contributing States (TCSs) retain both a prerogative and a duty to undertake criminal investigations as prescribed by international law. To investigate effectively, however, a TCS will need to interact with the other actors involved in a peace operation: the host State, the leading international organization, and other TCSs. When a local is killed, for example, the investigating TCS must seek the authorization of the host State in order to perform an autopsy on the victim’s body, so not as to infringe on the latter’s sovereignty. In this sense, partial or total non-cooperation on the part of the host State may hamper a TCS’s ability to conduct an effective investigation. The present article examines the obligation to investigate in the context of peace operations, particularly as deriving from human rights law and international humanitarian law (IHL). It further explores how the specific agreements applicable in UN and NATO operations address investigative cooperation, aiming to map relevant normative gaps. The article finally proposes an interpretation de lege ferenda of existing obligations under human rights law and IHL, according to which the duty to investigate would require TCSs (a) to regulate investigative cooperation with the other actors involved in a peace operation and (b) to ensure that such actors conduct investigations in line with the required standards of effectiveness.

Disentangling ‘Effective Control’ Test for the Purpose of Attribution of the Conduct of un Peacekeepers to the States and the United Nations

Despite the efforts of the United Nations (un), the world continues to hear news about un peacekeepers committing crimes in the state where they are deployed. One of the reasons is that the responsibility of the troop-contributing states for the conduct of their peacekeepers is not sufficiently recognised. In order to address the issue, this article advocates for ‘effective control’ to be interpreted as a material ability of a national contingent commander (for troop-contributing states) or un Force Commander (for the un) to prevent particular conduct (criminal act). Although representing a minority of academic views, this approach derives from superior responsibility, the International Court of Justice’s jurisprudence, is supported by the International Law Commission and in line with the un’s position and practice. Following this interpretation, the article concludes that in many instances unlawful conduct of peacekeepers will be attributed to the troop-contributing states and not only to the un.

Albanian peacekeepers: exploring the inward-looking utility of international peacekeeping

ABSTRACTThis article provides the first comprehensive account of Albania’s contribution to international peacekeeping and explores its inward-looking rationales for providing peacekeepers. Specifically, we examine why Albania has energetically supported NATO- and EU-led military and crisis management operations and less so UN peacekeeping missions. We find that Albania’s contribution to peacekeeping operations has been primarily shaped by its inward-looking interests for accelerating membership in NATO, fostering integration in the EU, as well as reducing domestic and regional insecurities. Pinpointing accurately the motivations among troop-contributing states helps recover the true hierarchical order of rationales and explain why, in some cases, the performance and impact of peacekeeping operations for some contributing states is secondary. Overall, disentangling the inward-looking utility of peacekeeping by a small state such as Albania provides useful insights for understanding how regional integration dynamics affect peacekeeping.

유엔평화유지군의 행위에 대한 유엔과 파견국의 배상책임 : DARIO 상 ‘실효적 통제’ 기준을 중심으로

‘Blue Helmet’이라 불리는 유엔평화유지활동은 국제평화와 안전을 위한 유엔의 주요 제반활동 중 하나로 유엔, 회원국, 접수국 간의 글로벌적인 협력을 바탕으로 한다. 오늘날 유엔평화유지활동의 규모가 확장되고, 다양한 역할을 수행하게 됨에 따라 유엔평화유지활동 중 발생하는 접수국의 피해 문제가 제기되고 있다. 특히 2010년 UN 아이티 안정화 활동(MINUSTAH) 중 발생한 콜레라 전염병 문제와 관련하여 유엔의 책임문제가 야기되기도 하였다. 그 동안 유엔은 유엔평화유지활동 중 발생한 피해에 대한 유엔의 배상책임을 원칙을 고수해왔다. 그러나 유엔평화유지군은 회원국으로부터 파견된 군대로 구성된다는 점에서 유엔평화유지군은 유엔의 통제 하에 놓인 후에도 사실상 파견국의 통제로부터 완전히 벗어나기는 힘들다. 이와 관련하여 2013년 9월, 네덜란드 대법원은 Nuhanovic v. The Netherlands 사건에서 처음으로 파견국의 배상책임을 인정하였다. 이 논문은 유엔평화유지활동에 대한 파견국의 배상책임에 주목하여 동 판례를 구체적으로 분석하고, 유엔평화유지활동 중 피해를 야기한 유엔평화유지군의 행위가 파견국에 귀속될 수 있는지를 살펴보고자 한다. 유엔과 파견국간 배상책임의 분배를 논하는 것은 기존의 유엔 중심적 배상책임 체제로부터 벗어나 양자 간 균형 있는 관계를 도모하고, 접수국 내 피해자들의 권리구제를 실효적으로 확보할 수 있다는 점에서 중요하다.

Addressing the Accountability Gap in Peacekeeping: Law-Making by Domestic Courts As a Way to Avoid UN Reform?

Two decades after the Srebrenica massacre legal accountability for serious human rights violations perpetrated by peacekeepers is still difficult to deliver. While there is an accountability gap where individuals seek redress from the United Nations, a number of court decisions seem to prompt a shift towards the domestic level so that member States might be held accountable for violations of (international) law which occur during peacekeeping missions: While national courts have upheld the immunity of the UN, developments in the domestic and regional jurisprudence on the rules on attribution and State liability point to the responsibility of the troop-contributing States. In view of the political difficulties in bringing about reforms within the UN system a focus on the decentralized law-making mechanisms at the domestic level might appeal at first sight. However, this paper argues that member States need to act and close the accountability gap above all at the level of the UN.

Responsabilidade Internacional por Conduta das Forças de Paz da ONU: a questão da atribuição

The present paper aims at studying the international rules which have to be applied for the purposes of determining whether a certain conduct taken in the context of a UN peacekeeping operation must be attributed to troop-contributing states or to the UN. I will also consider whether, and under what circumstances, the same conduct may be attributed to both subjects. It argues that because of their dual status as organs of both the UN and the sending state, the formal status of peacekeeping forces within the UN system can hardly be regarded as decisive for purposes of attribution.

Sending peacekeepers abroad, sharing power at home: Burundi in Somalia

This article attempts to answer how Burundi has become one of the main troop-contributing countries to international peacekeeping missions. To do this, it examines how the post-conflict political settlement between Burundian parties and external partners has impacted on the decision to deploy Burundian troops in multilateral peace operations in Africa. The authors claim that Burundi's decision to deploy troops, which took place in the midst of an overarching security sector reform, had a temporary stabilizing effect on the internal political balance due to several factors, including professionalization, prestige, and financial opportunities. From an international perspective, Burundi's role in peacekeeping has helped to reverse the image of Burundi as a post-conflict country in need of assistance to that of a peacebuilding state, offering assistance to others who are worse off. These factors taken together have also enhanced the possibilities for the Burundian Government to continue its trend of demanding independence from international oversight mechanisms and political missions, while maintaining good relations with donors, despite reports of increasing authoritarianism and limited political space. The article draws on significant fieldwork, including over 50 interviews with key actors in the field and complements the scarce literature on African troop-contributing states.

The allocation of responsibility for internationally wrongful acts committed in the course of multinational operations

AbstractThe article aims to examine, in light of the codification work of the International Law Commission and of the most recent practice, some issues concerning the allocation of responsibility between an organisation and its troop-contributing states for the conduct taken in the course of a multinational operation (with a specific focus on UN operations). After explaining the general rule of attribution of conduct based on the status of the multinational force as an organ or an agent of the organisation, this article will examine the validity of special rules of attribution of conduct based on the notions of ‘effective control’ or ‘ultimate control’ over the acts of the multinational force. Finally, I will discuss the possibility of dual responsibility of both the organisation and the troop-contributing state concerned.

Continuing Impunity of Peacekeepers: The Need For a Convention

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.

KILLINGS AT SREBRENICA, EFFECTIVE CONTROL, AND THE POWER TO PREVENT UNLAWFUL CONDUCT

AbstractThis article analyses two nearly identical lawsuits regarding the actions of UN peacekeepers during the Srebrenica genocide. The decisions are of importance as a matter of international law for three reasons. First, the Court applied human rights obligations abroad, not by holding that the relevant treaties have extraterritorial effect, but by finding the ICCPR to have been incorporated into the domestic law of the host state (Bosnia and Herzegovina) and determining that the standards codified in the relevant provisions of the ICCPR and ECHR were rules of customary international law that were binding extraterritorially (whether or not the treaty obligations themselves would extend abroad). Second, in finding those obligations to have been breached, the Court relied on the Dutch battalion's eviction of the victims from its UN compound, not on any responsibility to protect those already outside the compound. Finally, on the issue of attribution, the Court of Appeal developed the doctrine of ‘effective control’ in several key respects. I argue that the Court was largely correct in its attribution analysis and that this may prove to be a landmark in the development of international law on attribution in such contexts. Most important among the issues addressed in the Court's discussion of attribution are its findings that: (i) the ‘effective control’ standard applies equally to the contributing state and the receiving international organization; (ii) ‘effective control’ includes not just giving orders, but also the capacity to prevent the wrongdoing; and (iii) troop-contributing states may sometimes hold that ‘power to prevent’ by virtue of their authority to discipline and criminally punish their troops for contravening UN orders.

Is NATO Authorized or Obliged to Arrest Persons Indicted by the International Criminal Tribunal for the Former Yugoslavia?

This paper considers whether the NATO-led multinational force in Bosnia and Herzegovina is authorized to arrest persons Indicted by the International Criminal Tribunal for the Former Yugoslavia and, if so, whether it is also obliged to carry out arrests. After critically scrutinizing views put forward on this topic in the legal literature, the author concludes that the multinational force is legally entitled to execute arrest warrants in the territory of Bosnia and Herzegovina, on the strength of Article VI, para. 4, of Annex 1-A to the Dayton Peace Accord, as implemented by the North Atlantic Council through a resolution adopted on 16 December 1995. The author argues that tw'o consequences follow from this view. Firstly, the power of arrest may be exercised concurrently with that of Bosnia and Herzegovina and the two Entities making up this state. Secondly, regarding cooperation with the Tribunal the Nato-ledforce has so far only been empowered to execute arrest warrants, while it has not yet been authorized to execute other Tribunal orders. The author submits that, by contrast, the NATO-led force is not obliged to arrest persons indicted by the 1CTY, nor is such an obligation Incumbent upon individual troop-contributing states qua states.

Towards a political geography of United Nations peacekeeping: Some considerations

Peacekeeping missions should be viewed from various political and spatial perspectives. Firstly, there is the macro-level perspective of the UN Organization itself, particularly the respective interests of the most powerful members of the UN and permanent seat holders on the Security Council. Secondly, there are the national perspectives of the various resources and troop-contributing states to specific UN operations. Thirdly, there are the interests of the conflicting parties themselves, including governments, national armies, local militia groups, factional political leaders and local communities. An analysis of UN peacekeeping involves a complex multi-dimensional geopolitical framework that incorporates the linkages and contradictions between all these differing perspectives, from macro to micro-spatial scales. Peacekeepers themselves are not passive figures in the political and human landscapes within which they operate. Many of the activities of UN “blue helmets” alter landscapes and conflict scenarios. Whilst some of these changes are deliberate, such as the creation of demilitarized zones, many are unforeseen and less visible, such as the ways in which local civilian populations are affected by the presence of large numbers of foreign peacekeepers. This paper examines some of the political, social and economic consequences of peacekeeping missions in places as diverse as Cambodia, Somalia, the Lebanon and Cyprus.