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3-4 / 2013 Content

88 (2013) 3-4: Accountability of Peacekeepers

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Introduction
Andreas von Arnauld / Hannah Birkenkötter / Sinthiou Buszewski

[pdf]


Articles

Modes of Legal Accountability: The Srebrenica Example

Andreas von Arnauld / Sinthiou Buszewski

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 conflict, 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 difficulties 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.

 

To Share or Not to Share?
The Allocation of Responsibility between International Organizations and their Member States

Christiane Ahlborn

This article discusses the costs and benefits 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 benefits. 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 and the Remedy Gap: The Haiti Cholera Dispute

Katarina Lundahl

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 significantly to the international rule of law discourse that is needed to bring about political action to close the gap.



Victims Caught Between a Rock and a Hard Place: Individual Compensation Claims against Troop-Contributing States


Philipp Stöckle

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 find 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.



Accountability and Protection of UN Peacekeepers in Light of MONUSCO


Tomas Macura

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 conflict has too often resulted in poorly trained and under-equipped peacekeepers facing renewed hostilities because a party to the conflict has breached the terms of a ceasefire 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.



Individual Criminal Responsibility Under Aiding and Abetting After the Specific Direction Requirement in the Taylor and Perišić Cases


Vanshika Vij

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 specific 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 conflict. This paper discusses the recent jurisprudence on specific direction from the ad hoc international tribunals, focusing on the Perišić 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 specific 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.



Explaining Srebrenica: Establishing a Narrative through Criminal Trials


Hannah Birkenkötter

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.

 

The Victims Who Are Not Quite Victim Enough: How the ICC Creates Divides Within Victim Communities

María Juliana Machado Forero / Sandra Karlsson / Lisa-Marie Rudi

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 artificial 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.