Articles
Holding peacekeepers accountable for violations of human rights has become
a pertinent topic of international law. While over the last 25 years there has
been some progress in achieving accountability of the parties to a con ict,
the accountability of UN peace-keeping forces still poses legal problems: To
whom should their conduct be attributed and according to which standards?
Who should be held liable for damages? Which procedural mechanisms are
there to actually deliver accountability? Our article will look to disentangle
this knot of questions. Following the attempts to legally assess the 1995 Srebrenica
massacre and the role of Dutchbat which prompted some important
court decisions in 2013, we will demonstrate that effectuating responsibility
and liability depends too much on the willingness of the troop-sending State
to accept accountability. As to dif culties of holding the UN accountable we
will argue for a more frequent dual attribution of conduct and for closing the
procedural gaps in the not-yet-existing system of multi-level accountability.
This article discusses the costs and bene ts of sharing responsibility between
states and international organizations for their own internationally wrongful
acts. The emphasis of the law of international responsibility lies on exclusive
responsibility. As discussed in Part 1 of this article on the attribution of
wrongfulness to states and international organizations, strong reasons speak
in favor of emphasizing the independence of the responsible actors. By distinguishing
wrongfulness from responsibility, however, it will be argued in
Part 2 that independent wrongful acts will not necessarily lead to exclusive
responsibility. A number of recent cases involving military operations have
illustrated that shared responsibility is a frequent outcome of the cooperation
between states and international organizations. Nonetheless, such shared responsibility seems to come with more costs than bene ts. Injured parties,
in particular, are often left without a remedy when potential wrongdoers
shift the buck of responsibility between them. In order to reduce the costs
of shared responsibility of states and international organizations, this article
therefore advocates for the recognition of a principle of joint and several responsibility
in international law, which would allow for the balancing of the
different interests of injured and responsible parties.
The United Nations has repeatedly refused to entertain claims for its alleged
responsibility for the cholera outbreak in Haiti that started in 2010. The dispute
has now been brought before a domestic US court whereby the claimants
hope to have their claims adjudicated. While the prospects of the case
appear bleak, the Haiti cholera dispute brings to light a fundamental gap in
the law: the remedy gap. Private individuals who have suffered damage in a
UN peacekeeping context will face an insurmountable procedural wall when
attempting to bring their claim against the organization, despite recent leaps
in the development of the substantive law of responsibility of international
organizations. The article argues that this remedy gap, a symptom of fragmentation,
emerges as a result of inadequate dispute settlement mechanisms
in UN peacekeeping contexts and the absolute immunity of the UN before
national courts and cannot, lex lata, be overcome by even the most compelling
arguments grounded in fundamental human rights. The Haiti cholera
dispute will add a new chapter to the practice that – while failing to bring the
UN to the same justice it advocates for others – can contribute signi cantly to
the international rule of law discourse that is needed to bring about political
action to close the gap.
Despite the decisions of Dutch Courts in the “Srebrenica” cases, individual
compensation claims against troop-contributing states are fraught with considerable
legal uncertainty as their basis in international and domestic law
still is vague and unclear. On the other hand, there is a lack of judicial forum
to bring claims against the United Nations. Victims of peacekeeping forces
thus nd themselves caught between a rock and a hard place when seeking
redress for injuries and damages. This contribution aims to identify the legal
problems associated with compensation claims against troop-contributing
states and argues for the development of effective mechanisms of redress
within the United Nations.
Military personnel involved in United Nations peacekeeping operations have
operated without an effective legal framework regulating their conduct since
the end of the Cold War. The explosion of peacekeeping as a response to
non-international armed con ict has too often resulted in poorly trained and
under-equipped peacekeepers facing renewed hostilities because a party to
the con ict has breached the terms of a cease re agreement. This article critically
examines the protection granted to peacekeepers in such situations and
how they can be held accountable for serious crimes in the context of international
humanitarian law and international criminal law. MONUSCO, the
United Nations Organization Stabilisation Mission in the Democratic Republic
of Congo, is considered in light of the recent deployment of an intervention
brigade to directly confront rebel forces.
Recent international criminal law jurisprudence has created a troubling uncertainty
in the law on aiding and abetting liability, particularly at the International
Criminal Tribunal for the Former Yugoslavia (ICTY). The ICTY has
been at odds with other international courts (such as the Special Court for
Sierra Leone (SCSL)) on whether there is a speci c direction requirement
to hold an individual liable for aiding and abetting, but it has increasingly
become internally divided in its own decisions on the issue. This disagreement
in the international jurisprudence regarding the standard for liability of
individuals for aiding and abetting creates uncertainty both for defendants’
ability to understand their criminal responsibility and for the international
community in determining who is accountable for what kind of assistance
during periods of armed con ict. This paper discusses the recent jurisprudence
on speci c direction from the ad hoc international tribunals, focusing
on the Periši judgment from the ICTY and the Taylor judgment from
the SCSL. The paper offers a survey of the jurisprudence and asserts that it
is preferable to implement a speci c direction requirement for aiding and
abetting in international law because eliminating it creates overly-inclusive
liability for a mode of liability for assistance of a secondary nature.
Over the past 20 years, the International Criminal Tribunal for the Former
Yugoslavia (ICTY) has repeatedly been called to examine and legally assess
the massacre of Srebrenica. From a strictly legal perspective, there was no
need for the tribunal to go into detail such as the number of those who were
killed in the aftermath of the fall of Srebrenica. But with increased forensic
evidence on the extent of the massacre available, ICTY trial chambers are
attempting to provide ever more detailed narratives. This article shows how
the narrative of the Srebrenica massacre has been expanded at the ICTY trial
stage over the years and various proceedings covering the same events. It
points to challenges the ICTY faces due to its evidentiary law, but also to
the success in transplanting its narrative to the International Court of Justice.
The contribution ends with some critical remarks on the limits of narration
through a criminal trial.
This article analyses the advantages and limitations of attempting to achieve
meaningful participation (Article 68 Rome Statute) through the work of the
Trust Fund for Victims (TFV) within the general framework of the International
Criminal Court (ICC). It will argue that although the focus on participation
taken by the ICC is innovative and an immense step towards improving
victims’ agency in transitional justice courts, the judicial process can create
additional harm through the generation of arti cial victim groups. This is due
to the fact that different groups of victims are judicially recognized as having
distinct participation rights at different stages of the proceedings, potentially
creating fractures in communities. These fractures can be mended by the acts
of symbolic reparation by the TFV, which is only done intermittently in the
countries where the Trust Fund is active. The article concludes that there is
a systematic disconnection between organs of the Court and the TFV. This
disconnect prevents the TFV from potentially remedying the harm caused by
the Court’s judicial process.