Addressing impunity through State accountability? A study on responsibility for human rights violations committed by UN peacekeepers

Abstract

In 2015, media reported on new allegations of sexual exploitation and abuse committed by UN peacekeepers against civilians. This was not the first time such allegations were made. Although a number of measures have been taken at the UN level to combat these crimes, the problem persists.

The majority of the personnel in UN peacekeeping operations are members of national military contingents, and most of the allegations of sexual exploitation and abuse are directed against this group. Regarding these persons, criminal jurisdiction and authority to decide on disciplinary matters stay with the sending State. The sending State is therefore responsible for investigating and prosecuting crimes committed by members of their national contingents but for different reasons, domestic authorities do not always investigate into such allegations. This essay focuses on the responsibility of the sending State. The scope of human rights treaties – the ICCPR to some extent but mainly the ECHR – is examined in this regard. The rationale behind this focus is that the ECHR is arguably the human rights instrument with the largest potential of providing a successful legal venue for the individual in this respect. Additionally, the judgments of the ECtHR, unlike the decisions of the HRC, are legally binding. As most UN peacekeeping operations take place in other continents than Europe, the concept of extraterritorial jurisdiction is central and a prerequisite for holding the sending State accountable for human rights violations committed by its soldiers in this context.

There is no doubt that the notion of extraterritorial jurisdiction has been acknowledged both in terms of the ICCPR and the ECHR. Regarding the latter, the ECtHR has in recent years shown a more permissive approach to the notion of extraterritorial jurisdiction and its case law has evolved significantly in this regard. However, in a case concerning a UN operation in Kosovo, where the conduct in question was considered attributable to the UN rather than to the sending State, the case was declared inadmissible. It was held that acts of Contracting Parties covered by a UNSC resolution could not be subjected to the scrutiny of the ECtHR. In this essay it is assumed that acts of sexual exploitation and abuse cannot be covered by the mandate or be attributable to the UN. The ECtHR is thus able to review such cases. It is argued that extraterritorial jurisdiction can arise in two ways; through a continuously permissive interpretation and application of the concept of extraterritorial jurisdiction by the ECtHR, or through the application of a model of extraterritorial jurisdiction argued for in the legal doctrine, which separates between positive and negative human rights obligations of States.

However, State responsibility under the ECHR is not enough from the perspective of the victims. UN peacekeepers come from all over the world, and the largest troop-contributing nations are not parties to the ECHR. Thus, there is a need for a global solution in order for the victims of these violations to be able to seek justice and redress and in order to address impunity. A convention-based regime or a special court or tribunal for this purpose is therefore suggested as a possible solution.

• author: Zakrisson, Fanny
• supervisor: Karol Nowak
• organization: Department of Law
• course: JURM02 20152
• year: 2015
• type: H3 - Professional qualifications (4 Years - )
• subject: Law and Political Science
• keywords: public international law, human rights law, UN, peacekeeping, ECHR, extraterritorial jurisdiction
• language: English
• id: 8506763
• date added to LUP: 2016-01-29 14:35:13
• date last changed: 2016-01-29 14:35:13