Law Enforcement within the Framework of Peace Support Operations

I N T E R N AT I O N A L

A N D

C O M PA R AT I V E

C R I M I N A L

L AW

S E R I E S

Diane AmannProfessor of LawUniversity of California School of Law Davis, CA, USA

Christopher L. BlakesleyCobeaga Law Firm Professor of LawWilliam S. Boyd School of LawUniversity of Nevada, Las Vegas, NV, USA

Roger S. ClarkBoard of Governors ProfessorThe State University of New JerseyRutgers School of Law Camden, NJ, USA

John DugardMember, International Law Commission,Geneva; Emeritus Professor of Law,University of Witwatersrand, SouthAfrica; and Professor of PublicInternational Law, University of Leiden,The Netherlands

Albin EserProfessor of Criminal Law, AlbertLudwig University; Director, Max-Planck Institute for International andComparative Criminal LawFreiburg, i. B., Germany

Alfredo EtcheberryProfessor of Criminal Law, National University of Chile; President,Chilean Lawyers’ Association, Santiago,Chile

Jordan PaustProfessor of Law University of Houston Law Center Houston, TX, USA

Mario PisaniProfessor of Criminal ProcedureFaculty of Law, University of MilanMilan, Italy

William Michael ReismanMyres S. McDougal Professor ofInternational Law and Jurisprudence,Yale Law SchoolNew Haven, CT, USA

Leila SadatProfessor of LawWashington University in St. LouisSchool of LawSt. Louis, MO, USA

Michael P. ScharfProfessor of Law and Director of the Frederick K. Cox International Law CenterCase Western Reserve UniversityCleveland, OH, USA

Kuniji ShibaharaProfessor EmeritusUniversity of Tokyo, Faculty of LawTokyo, Japan

Brigitte SternProfessor of International LawUniversity of Paris IPanthéon, SorbonneParis, France

Otto TrifftererProfessor of International Criminal Lawand Procedure, Faculty of Law, University of Salzburg Salzburg, Austria

Editorial Board

Series Editor

M. Cherif Bassiouni

President, International Human Rights Law Institute, DePaul UniversityPresident, International Institute of Higher Studies in Criminal Sciences, Siracusa, Italy,

President, International Association of Penal Law, DePaul UniversityProfessor of Law, DePaul University, Chicago, IL, USA

LAW ENFORCEMENT

WITHIN THE

FRAMEWORK OF

PEACE SUPPORT

OPERATIONS

Edited by

ROBERTA ARNOLD

Library of Congress Cataloging-in-Publication Data

Arnold, Roberta, 1974–Law enforcement within the framework of peace support operations /

Roberta Arnold.p. cm. — (International and comparative criminal law series ; 28)

Includes bibliographical references and index.ISBN 978-90-04-16510-6

1. Criminal justice, Administration of—International cooperation.2. Law enforcement—International cooperation. 3. Humanitarian intervention. 4. United Nations—Peacekeeping forces. I. Title. K5001.A96 2008341.5'84—dc22

2008001620

Copyright © 2008 Koninklijke Brill NV, Leiden, The Netherlands.

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v

TABLE OF CONTENTS

List of Acronyms and Abbreviations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxi

PART I: LAW ENFORCEMENT—A PSO TASK?

Chapter 1: The Transposition of Inter-State Self-Defense and Use of Force onto Operational Mandates for Peace Support Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Geert-Jan Alexander KnoopsA. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3B. The Equation of Peace Support Operations and Self-Defense by States . . . 4C. Use of Force by Peacekeepers Engaged in (International)

Armed Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61. The Normative Framework for Peacekeepers . . . . . . . . . . . . . . . . . . . . . 62. Defining Peacekeepers as “Combatants” . . . . . . . . . . . . . . . . . . . . . . . . 93. Discretionary Boundaries for Peacekeepers to

Engage in Combat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10D. Use of Force by Peacekeepers Beyond the Framework of an

Armed Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131. Use of Force Against Non-State Actors. . . . . . . . . . . . . . . . . . . . . . . . . . 132. Defining “Armed Attack” Against Peacekeepers . . . . . . . . . . . . . . . . . . 16 3. Self-Defense Pursuant to Article 51 as an Operational Mandate

for Peacekeepers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 4. Mandating the Use of Force by Peacekeepers Based upon

“Hostile Act” and “Hostile Intent” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19E. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Chapter 2: The Law of Occupation and Peace Support Operations—At Odds? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Sigmar Stadlmeier and Franz LeidenmuehlerA. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23B. The Law of Occupation—Scope of Application and Contents . . . . . . . . . . . 24C. Limits to Legislative Action by the Occupying Power—

The “Principle of Preservation” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26D. The Law of Occupation and Peace Support Operations . . . . . . . . . . . . . . . . . 27E. Legal Basis for Derogation from the Classic Law of Occupation . . . . . . . . . 28F. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Chapter 3: The Prosecution of Criminals as a Peace-Building Tool:

Law Enforcement Within the Framework of Peace Support Operationsvi

Cooperation with the ICC and the Case of the LRA in Northern Uganda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Emmanuel KasimbaziA. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33B. Overview of International Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . 34C. The Lord’s Resistance Army Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35D. Conditions for the ICC to Prosecute LRA Rebels . . . . . . . . . . . . . . . . . . . . . 38

1. Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 2. Other Conditions Under the ICC Statute. . . . . . . . . . . . . . . . . . . . . . . . . 39

E. Alleged Crimes Committed by the LRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40F. Prospects of the LRA Prosecution by the ICC Towards the

Peace-Building Process in Northern Uganda . . . . . . . . . . . . . . . . . . . . . . . . . 43G. Challenges of the ICC as a Peace-Building Tool in Northern Uganda . . . . . 45H. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

PART II: LAW ENFORCEMENT WITHIN THE FRAMEWORK OF PSOs—LIMITS AND POSSIBILITIES

Chapter 4: The Limits on Law Enforcement by Peacekeeping Operations in Accordance with SOFAs, ROEs and SOPs . . . . . . . . . . . . . . . 53

Ulf HäusslerA. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53B. Transitional Authority: Sources and Limits . . . . . . . . . . . . . . . . . . . . . . . . . . 54

1. The International Mandate and SOFAs as Sources of Transitional Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

2. The International Mandate and SOFAs as Inherent Limits of Transitional Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

3. Limits of Transitional Authority Deriving from General Principles of International Humanitarian and Human Rights Law . . . . . . . . . . . . . 60

C. The Practice of International Peacekeeping—Key Examples . . . . . . . . . . . . 631. The KFOR Law and Order Mission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 632. Protection and Defense of Designated Property . . . . . . . . . . . . . . . . . . . 683. Operational Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

D. Assessment and Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Chapter 5: The Impact of Organized Crime on Peace Support Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

Fabian KuehnerA. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75B. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

1. Organized Crime. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 2. Peace Support Operations (PSOs) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

C. The Post-Conflict Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77D. The Impact of Organized Crime on PSOs—A Closer Look . . . . . . . . . . . . . 78

1. How Does Organized Crime Affect PSOs? . . . . . . . . . . . . . . . . . . . . . . . 78

Table of Contents vii

2. The Legal Framework of PSOs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 783. The Military and Civilian Peace Supporting Operators and

Their Tasks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 804. Other Actors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

E. Case Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 821. Bosnia and Herzegovina (BiH) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

a. Organized Crime Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82b. Law Enforcement Institutions and Their Legal

Framework. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83c. Dilemmas and Problems. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

2. Kosovo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87a. Organized Crime Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87b. Law Enforcement Institutions and Their Legal


3. Afghanistan (ISAF) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94a. Organized Crime Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94b. Law Enforcement Institutions and Their Legal


F. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

Chapter 6: Peace Support Forces—Assisting the Civilian Authorities inCriminal Prosecutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Kwai Hong IpA. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105B. Authorized Tasks and International Obligations. . . . . . . . . . . . . . . . . . . . . . . 106C. Initial Phase of Operations—Control of the Ground Environment and

Post-Conflict Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 1. Securing Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1082. Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093. Witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1104. Mass Graves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

D. Applicable Criminal Procedure and Admissibility of Evidence . . . . . . . . . . 112E. Intelligence Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

1. Threat and Criminal Intelligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1142. Sharing Intelligence and Technical Means—Cooperation

Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1153. Classification and Declassification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

F. Crime Scenes and Physical Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 G. PSF Participation in Searches and Arrests—Coordination

Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119H. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

Law Enforcement Within the Framework of Peace Support Operationsviii

PART III: LAW ENFORCEMENT AND FORCE PROTECTION BY PSO FORCES: PRACTICAL TOOLS

Chapter 7: The Maintenance of Law and Order in the Aftermath of International Armed Conflict—Lessons Learned from Iraq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123

Nicholas J. MercerA. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123B. Planning—Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124C. Training/Use of Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125D. Prisoners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126E. Nation-Building—Practical Difficulties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

1. Constitutional/Legal Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1302. Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1323. Courts/Judiciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1334. Prisons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1355. International Oversight. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

F. Finance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136G. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

Chapter 8: The Apprehension of Indicted War Criminals:Lessons from the Former Yugoslavia . . . . . . . . . . . . . . . . . . . . . . 139

Benjamin PerrinA. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139B. Law Enforcement Challenges in the International Context . . . . . . . . . . . . . . 139C. Legal Framework for the Arrest, Detention, Surrender and Transfer of

Suspects and Accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1411. Determining the Enforcement Authority of the Arrest Warrant. . . . . . . 1412. Rules Governing the Arrest of Suspects and Accused

at the ICTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142a. Arrest, Detention and Questioning of Suspects . . . . . . . . . . . . . . . 143b. Sealed and Public Indictments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 c. Execution of Arrest Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

D. Apprehending Indicted War Criminals in Practice . . . . . . . . . . . . . . . . . . . . . 1451. Voluntary Surrender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1452. Arrest by Domestic State Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . 1463. Arrest by International Peace Support Forces. . . . . . . . . . . . . . . . . . . . . 1474. At Large. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

E. Novel Approaches to Apprehending Indicted War Criminals . . . . . . . . . . . . 1481. Diplomatic and Economic Sanctions Against

Non-Cooperative States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1492. Freezing Assets and Restricting Travel of Accused and

Associates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1503. Deception and Trickery of Accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151

Table of Contents ix

4. Transnational Abductions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1525. Public Involvement: Financial Rewards and Web Sites of

Sightings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154F. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154

Chapter 9: Law Enforcement in Post-Conflict Bosnia and Herzegovina:War Crimes Prosecutions and Judicial Restructuring . . . . . . . 157

Christopher HarlandA. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157B. Brief History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158C. The “Rules of the Road” System: Balancing War Crimes Trials and

Freedom of Movement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1591. The Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1602. The Proposed Solution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1613. Outcome of the RoR Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1624. Conclusions and Prospects for Use in Other Contexts . . . . . . . . . . . . . . 165

D. Vetting of Judges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1661. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1662. Reselection System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1673. Results of the Reselection System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1684. Conclusions Regarding Future Use of such a System . . . . . . . . . . . . . . 170

E. A New War Crimes Chamber: Linking International and Domestic War Crimes Trials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171 1. The Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1712. The Proposed Solution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1743. Results of the War Crimes Chamber to Date . . . . . . . . . . . . . . . . . . . . . 1754. Conclusions Regarding Future Uses of such a System . . . . . . . . . . . . . 176

F. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

Chapter 10: Forensic Anthropology in Peace Support Operations . . . . . . . . 179Mercedes Doretti and Jennifer BurrellA. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 B. The Argentine Case and the Formation of EAAF. . . . . . . . . . . . . . . . . . . . . . 180C. Methodologies and Phases of Forensic Anthropology Investigation of a

Human Rights Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 1. Preliminary Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1822. The Archaeological Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1843. Laboratory Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1874. Identifications: Problems and Dilemmas . . . . . . . . . . . . . . . . . . . . . . . . 1885. Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1906. Criteria for Case Selection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1907. Psychological Assistance to the Relatives of Victims . . . . . . . . . . . . . . 191

D. Conclusions and Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192

Law Enforcement Within the Framework of Peace Support Operationsx

Chapter 11: The Treatment of Detainees by Peacekeepers:Applying Principles and Standards at the Point of Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

Bruce “Ossie” OswaldA. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197B. Defining and Classifying Detainees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200C. The Treatment of Detainees: Legal Principles and Standards . . . . . . . . . . . . 204

1. General Principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2062. Specific Principles and Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209

a. Principles Relevant to the Treatment of Detainees . . . . . . . . . . . . . 209i. Use of Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209ii. Prohibition of Torture and Ill-Treatment . . . . . . . . . . . . . . . . . 210iii. Protection from the Environment and

Other Threats. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213iv. Reasons for Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213v. Registration of Detainees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213vi. Notification of Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214vii. Medical Treatments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214viii. Categories of Persons Entitled to Special

Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215ix. Reprisals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216x. Release or Ongoing Custody . . . . . . . . . . . . . . . . . . . . . . . . . . 216xi. Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217xii. Handover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217xiii. Remedies if There Has Been Ill-Treatment . . . . . . . . . . . . . . . 218

b. Accountability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218 i. Recording and Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218ii. Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219iii. Monitoring. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220

D. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220

Chapter 12: IHL v. Human Rights: The Al Jedda Case and Issues Arriving from an Operational Perspective . . . . . . . . . . . . . . . . . 229

James AE JohnstonA. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229B. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231C. Divisional Court Proceedings: July 20–21, 2005 . . . . . . . . . . . . . . . . . . . . . . 232D. Court of Appeal Proceedings: January 16–18, 2006 . . . . . . . . . . . . . . . . . . . 240E. Operational Issues Arising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243F. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253

Chapter 13: Witness Protection by Peace Missions . . . . . . . . . . . . . . . . . . . . . . 257Ulf HäusslerA. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257B. The Internal Dimension of Witness Protection . . . . . . . . . . . . . . . . . . . . . . . . 259

1. Status and Legal Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259

Table of Contents xi

2. Preventive Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2603. Repressive Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2614. Practical Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262

C. The External Dimension of Witness Protection . . . . . . . . . . . . . . . . . . . . . . . 2631. Practical Questions of Witness Protection:

A Hypothetical Scenario . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2642. Geographical Overlaps Between the Jurisdiction of Adjudication

Bodies and Peace Missions’ Areas of Operations . . . . . . . . . . . . . . . . . . 266a. The Former Yugoslavia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267b. Rwanda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268c. The DRC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268d. Sudan (Darfur) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269e. Sierra Leone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270f. Cambodia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270g. Lebanon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271

D. Witness Protection and International Mandates . . . . . . . . . . . . . . . . . . . . . . . 2711. Peace Missions in the Former Yugoslavia . . . . . . . . . . . . . . . . . . . . . . . . 272

a. Croatia and BiH: The UN Protection Force (UNPROFOR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272

b. BiH: IFOR/SFOR/EUFOR ALTHEA . . . . . . . . . . . . . . . . . . . . . . . 273c. BiH: The High Representative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275d. Kosovo: KFOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277e. Kosovo: UNMIK. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278

2. Peace Missions in the DRC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279a. MONUC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279b. EU Peacekeeping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280

3. Peacekeeping in Sudan (Darfur) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2814. Peacekeeping in Lebanon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283

E. What Cooperation May International or “Hybrid” Criminal Courts and Tribunals Seek with Peace Missions? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2831. ICTY and ICTR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2842. The ICC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2863. Sierra Leone: The Special Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2884. Cambodia: The Extraordinary Chambers . . . . . . . . . . . . . . . . . . . . . . . . 2885. Lebanon: The Special Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288

F. Assessment and Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290

PART IV: LAW ENFORCEMENT WITHIN PSOs—THE PROSECUTION OF PEACEKEEPERS AND THE SPECIAL CASE OF HUMAN

TRAFFICKING AND SEXUAL OFFENSES

Chapter 14: Human Rights Training to Law Enforcement Agents:A Key to PSO Success . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311

David B. Hodgkinson, Sandra L. Hodgkinson, Diana C. Noone and Gregory P. NooneA. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311

Law Enforcement Within the Framework of Peace Support Operationsxii

B. Human Rights as a Key Factor and Basis for PSOs . . . . . . . . . . . . . . . . . . . . 3121. Importance of Human Rights in PSOs . . . . . . . . . . . . . . . . . . . . . . . . . . 3132. The Role of the UN Code of Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . 315 3. Applicable Human Rights in PSOs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3154. Relationship Between Law Enforcement and Human

Rights Components. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317a. Role of Human Rights Components . . . . . . . . . . . . . . . . . . . . . . . . 318b. A Beneficial Relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318

5. Principles for Policing Within the Human Rights Mandate . . . . . . . . . . 319 6. Setting the Scene for Success: The Right People

With the Right Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320C. Training Law Enforcement Agents in Human Rights. . . . . . . . . . . . . . . . . . . 323

1. Methods of Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3232. Basis for Human Rights Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3243. UN Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3254. Domestic Training by Countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328

D. Effectiveness of Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3281. Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3292. Case Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329

a. Balkans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329b. Sierra Leone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330c. Democratic Republic of the Congo . . . . . . . . . . . . . . . . . . . . . . . . . 330

3. The United Nations Responds on Sexual Exploitation and Abuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331

E. Enforcement and Disciplinary Mechanisms . . . . . . . . . . . . . . . . . . . . . . . . . . 3321. UN Police Officers and Military Observers . . . . . . . . . . . . . . . . . . . . . . 333

a. Serious Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333b. Minor Misconduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335

2. Military Members of National Contingents . . . . . . . . . . . . . . . . . . . . . . 336a. Serious Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336b. Minor Misconduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336c. Legal Status. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337

3. Sexual Harassment or Sexual Exploitation . . . . . . . . . . . . . . . . . . . . . . . 3374. Public Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338

F. Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339

Chapter 15: The NATO Policy on Human Trafficking: Obligation to Prevent, Obligation to Repress . . . . . . . . . . . . . . . . . . . . . . . . . . . 351

Roberta ArnoldA. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351B. The NATO Policy on Combating Trafficking in Human Beings . . . . . . . . . . 355

1. Four Good Reasons for the Release and Enforcement of the NATO Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356 a. Damage to the Image of the Mission and the Credibility

of the Troops Deployed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357

Table of Contents xiii

b. A Threat to the Security of the Mission . . . . . . . . . . . . . . . . . . . . . 358c. A Threat to the Security of Individual Peacekeepers . . . . . . . . . . . 358d. Possible Prosecution Under the Host State’s Jurisdiction . . . . . . . 359

2. The Nature of the Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3643. Obligations Imposed by the NATO Policy . . . . . . . . . . . . . . . . . . . . . . . 365

C. Implementation of NATO’s Policy at the Domestic Level . . . . . . . . . . . . . . . 3671. Adoption of Legislative Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367 2. Introduction of Appropriate Training . . . . . . . . . . . . . . . . . . . . . . . . . . . 367 3. Support to Local Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367 4. Adoption of Contractual Provisions Prohibiting PSO Personnel

from Engaging in Trafficking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3695. The Example of Switzerland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371

D. Practical Tools for Law Enforcement Agents in the Field . . . . . . . . . . . . . . . 3741. General Tools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3742. Assessment of the Situation at Checkpoints . . . . . . . . . . . . . . . . . . . . . . 375 3. Other Indicators that Trafficking in Persons Might Be

Taking Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376 4. Use of Pocket Cards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377

E. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378

Chapter 16: Trafficking in Human Beings—Reduction Strategies forLaw Enforcement in Peace Support Operations . . . . . . . . . . . . . 381

Elizabeth RennieA. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381B. Definition of Trafficking and Common Misconceptions . . . . . . . . . . . . . . . . 382C. The Causes and Dynamics of Trafficking in Persons . . . . . . . . . . . . . . . . . . . 383D. The Difficulties in Investigating Trafficking in Persons Cases

and the Extra Challenges Affiliated with a PSO. . . . . . . . . . . . . . . . . . . . . . . 384E. The Required Special Handling of Victims and Witnesses of

Trafficking. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387F. Special Problems Related to the Trafficking of Children . . . . . . . . . . . . . . . 390G. Allegations Against Those Working Within PSOs . . . . . . . . . . . . . . . . . . . . . 392 H. Tools for Successful Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394

1. General Tools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394 2. Quick Resource List . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 395

I. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397

Chapter 17: The Role of the International Criminal Court in the Prosecution of Peacekeepers for Sexual Offenses . . . . . . . . . . . 399

Noëlle QuénivetA. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399B. Scope and Extent of Sexual Activities of Peacekeepers . . . . . . . . . . . . . . . . . 400C. Different Types of Peacekeepers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403D. Policies, Investigation and Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406

1. The United Nations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407

Law Enforcement Within the Framework of Peace Support Operationsxiv

2. Prosecution of National Contingents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409E. The Zero-Tolerance Policy of the United Nations and International

Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4111. Rape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4132. Repeated Rapes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415

a. Prostitution or Forced Prostitution. . . . . . . . . . . . . . . . . . . . . . . . . . 415b. Prostitution or Sexual Slavery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418

F. Prosecution of Peacekeepers by International Criminal Tribunals . . . . . . . . 4201. Issues Relating to Crimes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 420

a. Genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421b. Crimes Against Humanity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421c. War Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423

2. The Principle of Complementarity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4243. Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425

G. Using the ICC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4261. Secondary Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4262. Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427

a. The Old Investigation Procedure and Its Criticisms. . . . . . . . . . . . 427b. The New Investigation Body . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428c. The Possible Role of the ICC in this New

Investigation Body . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430H. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430

Final Conclusions and Remarks by the Editor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 433

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435

xv

LIST OF ACRONYMS AND ABBREVIATIONS

AAAS American Association for the Advancement of Science ACHR American Convention on Human RightsAHPR African Charter on Human and Peoples’ Rights AI Amnesty InternationalAMIS AU’s peace mission in SpainANA Afghan National ArmyANP Afghan National PoliceAU African UnionBiH Bosnia and HerzegovinaCAT Convention against Torture and Other Cruel, Inhuman

or Degrading Treatment or PunishmentCEDAW Convention on the Elimination of All Forms of

Discrimination against WomenCERD Convention on the Elimination of All Forms of Racial

DiscriminationCFI European Court of First InstanceCID Criminal Investigation DepartmentCIMIC civil military coordinatorsCIS Commonwealth of Independent StatesCIU Central Intelligence Unit (Kosovo)CIVPOL international civilian policeCOE Council of EuropeCOMKFOR Commander, Kosovo ForceCONADEP National Commission on the Disappearance of People

(Argentina)CPA Coalition Provisional Authority (Iraq)CPEF Central Poppy Eradication Force (Afghanistan)CRC Convention on the Rights of the ChildDIILS US Defense Institute for International Legal StudiesDIMU Detainee and Internee Management Unit

(for INTERFET)DIRC Divisional Internment Review Committee (Iraq)DOC Directorate for Organized Crime (Kosovo)DPKO UN Department of Peacekeeping OperationsDRC Democratic Republic of CongoECHR European Convention on Human RightsECOWAS Economic Community of West African StatesEEAF Argentine Forensic Anthropology Team

Law Enforcement Within the Framework of Peace Support Operationsxvi

EU European UnionEUFOR-Althea EU-led force in BiHEUFOR ARTEMIS Interim Emergency Multinational Force in Bunia EUPM European Union Police Mission (BiH)FIU Financial Investigation Unit (Kosovo)FYROM MacedoniaGA UN General AssemblyGFAP General Framework Peace Agreement (BiH)HJPC High Judicial and Prosecutorial Councils (BiH)HR High Representative (BiH)HRBA Human Rights Based ApproachHRL human rights lawHSMF Holy Spirit Mobile Force (Uganda)ICC International Criminal CourtICCPR International Covenant of Civil and Political Rights ICESCR International Covenant on Economic, Social and

Cultural RightsICJ International Court of JusticeICL international criminal lawICRC International Committee of the Red CrossICTJ International Center for Transitional JusticeICTR International Criminal Tribunal for RwandaICTY International Criminal Tribunal for the former

YugoslaviaIDF Israeli Defense ForcesIDP internally displaced personIFOR Implementation ForceIHL international humanitarian lawIHRL international human rights lawIJC Independent Judicial Commission (BiH)ILC International Law CommissionINTERFET International Force for East TimorIO international organizationIOM International Organization for MigrationIPTF International Police Task ForceIPU integrated police unit (EURFOR)ISAF International Security Assistance Force (Afghanistan)ISF Interim Security Facility (Kosovo),JSAP Judicial Systems Assessment Program (BiH) KFOR Kosovo ForceKLA Kosovo Liberation ArmyKOCB Organized Crime Bureau (Kosovo)KPS Kosovo Police ServiceLOAC Law of Armed Conflict

List of Acronyms and Abbreviations xvii

LRA Lord’s Resistance Army (Uganda)MINUSTAH UN Stabilization Mission in Haiti MONUC UN Organization Mission in the DRCMOU Memorandum of Understanding MSU multinational support unitMTA military technical agreementNAC North Atlantic CouncilNATO North Atlantic Treaty OrganizationNGO non-governmental organizationNRA National Resistance Army (Uganda)NRM National Resistance Movement (Uganda)OEF Operation Enduring Freedom (Afghanistan)OHCHR Office for the High Commission on Human RightsOHR Office of the High Representative (BiH)OIOS UN Office of Internal Oversight ServicesOMF opposing militant forcesONUC PSO in the CongoOPLAN operation planOPORD operation ordersOP TELIC Operation Enduring Freedom (Iraq)ORHA Office for Reconstruction and Humanitarian

Assistance (Iraq)OSCE Organization for Security and Cooperation in EuropeOTP Office of the ProsecutorPCIJ Permanent Court of International JusticePDSS persons with designated special statusPIC Peace Implementation Council (BiH)PIFWCs persons indicted for war crimes PRDSS Property with Designated Special StatusPRT Provincial Reconstruction Team (Afghanistan)PSF peace support forcesPSO peace support operationPW prisoner of warQIP Quick Impact Projects (Iraq)ROE rules of engagementRoR Rules of the RoadRS Republika Srpska SC UN Security CouncilSC Res. UN Security Council ResolutionSCSL Special Court for Sierra LeoneSFOR Stabilization Force in BiHSFRY Socialist Federal Republic of YugoslaviaSIOU Sensitive Information and Operations Unit (Kosovo)SMCC Swiss Military Criminal Code

Law Enforcement Within the Framework of Peace Support Operationsxviii

SOFA Status of Forces AgreementSOMA Status of Mission AgreementSOP standing operating procedureSRSG Special Representative of the Secretary-GeneralSTOP Special Trafficking Operation ProgramSwisscoy Swiss peacekeeping mission in KosovoSwiss DoD Swiss Department of DefenseSWISSINT Swiss DoD’s competence center for PSOsTCN troop contributing nationTIF Theater Internment Facility (Iraq)TPIU Trafficking and Prostitution Investigation Unit (Kosovo)UAE United Arab EmiratesUÇK Ushtria Çlirimtare e Kosovës (Albanian name of KLA)UDHR Universal Declaration of Human RightsUK United KingdomUN United NationsUNAMIR UN Assistance Mission for RwandaUNAMSIL UN Mission in Sierra LeoneUNCAT UN Convention Against Torture and Other Cruel,

Inhuman or Degrading TreatmentUNDP UN Devleopment ProgramUNEF I First UN Emergency ForceUNFICYP PSO in CyprusUNIFIL UN Interim Force in LebanonUNIIIC UN International Independent Investigation Commission UNIOSIL UN Integrated Office in Sierra LeoneUNITAR POCI UN Institute for Training and Research Program of

Correspondence InstructionUNMEE UN Mission to Ethiopia and EritreaUNMIBH UN Mission in Bosnia HerzegovinaUNMIH UN Mission to HaitiUNMIK UN Interim Administration Mission in KosovoUNMIL UN Mission in LiberiaUNMIS UN Mission in SudanUNOCI PSO in Côte d’Ivoire UNODC UN Office on Drugs and CrimeUNOMSIL UN Observer Mission in Sierra Leone UNOSOM II PSO in SomaliaUNPOL UN PoliceUNPROFOR UN Protection ForceUNTAC UN Transitional Authority in CambodiaUNTAES UN Transition Administration for Eastern Slavonia,

Barajana and Western SirmiumUNTAET UN Transitional Administration in East Timor

List of Acronyms and Abbreviations xix

UPDA Uganda People’s Democratic ArmyUPDF Ugandan People’s Defense ForceUS United StatesUSFK US Forces KoreaVAAU Victim Advocacy and Assistance Unit (Kosovo)WTO World Trade Organization

xxi

INTRODUCTION

Since the end of the Cold War and the emergence of “asymmetric” threatslike terrorism, the military has been increasingly entrusted with tasks tradi-tionally belonging to the police. This development is visible through the newchallenges posed to modern peace support operations (PSO), intended as anumbrella definition covering different types of post-conflict peace operations,be these mandated under Chapter VI or Chapter VII of the UN Charter, witheither peacekeeping, peace enforcing, or even peace-building goals.

Examples like Kosovo, Bosnia and Herzegovina and Iraq have shown thatoften the military, due to its organization and logistics is often called to oper-ate on behalf, or in replacement of, no longer functioning or existing govern-mental institutions and structures. This holds particularly true with regard tolaw enforcement institutions. States trying to recover from an armed conflictoften need the external support of international PSO forces in order to reestab-lish and maintain law and order, a condicio sine qua non for the building ofstable peace. Law enforcement in a post-conflict scenario, however, may bevery different in an armed conflict scenario, which is subject to the rules ofinternational humanitarian law (IHL) and which permits more flexible andforce-oriented rules of engagement (ROE). In ordinary post-conflict scenarios,for instance, it is very important to assess the reciprocal responsibilities of thegovernment of the receiving state, that is, the state hosting the PSO forces (alsocalled host state) and the intervening forces, in matters like the arrest, interro-gation, detention and prosecution of criminal suspects. What legal standardsdo apply? Those of the intervening international PSO forces or those of thereceiving state? In the first case, what standards shall apply if the ROE and thedomestic legislation of the troop contributing nations (TCNs) composing amultinational PSO force differ? Which ROE should prevail or provide the stan-dard? What if the TCNs are parties to different international treaties, for exam-ple different conventions protecting human rights? Shall all the members of thePSO be subject to the same legal standards? Do the standards of the differentTCNs apply extraterritorially? To what degree should the TCNs’ human rightsobligations apply in the host state?

Institutions like the International Criminal Tribunal for the former Yugoslavia(ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have beencreated and identified by the UN Security Council as new peace enforcementtools. Another important issue, therefore, is to assess the degree and modali-ties through which PSO forces shall cooperate with them, particularly whencalled to perform traditional police tasks like the collection of evidence, the

Law Enforcement Within the Framework of Peace Support Operationsxxii

interrogation of witnesses and the arrest and detention of suspects for whichan arrest warrant has been issued.

Arrest and prosecution, however, are just one side of the coin to be con-sidered by PSO forces. Other law-enforcement-related problems are the degreeto which they may use force to protect themselves and their property. TCNsmay have different legal traditions and standards. An intensely debated issue,for instance, is whether force may be used to protect property at all and, if so,to what degree. The Anglo-Saxon and Roman-continental legal systems havedifferent approaches. The first does not accept, under any conditions, the useof lethal force to protect property. The second may give some concessions,depending on the circumstances. Which approach shall prevail?

These aspects are generally regulated in the ROE of the different TCNs. Inthis regard, another issue is the limits posed on law enforcement tasks by ROE,memoranda of understanding (MOUs) and Status of Forces Agreements (SOFAs).For political reasons there may be states not authorizing the engagement of theirown troops for this purpose. Human trafficking is just one example. ShouldPSO forces intervene to stop and prosecute the illegal trade of human beings?Is this a PSO task? How should PSO forces cooperate with the local police?

A related matter is the behavior of PSO troops. PSO troops must prove notonly to their employer but in particular to the population of the receiving statethat they deserve the uniform they are wearing. Law enforcement within PSOforces is also a crucial aspect, the modalities of which are not always obvious.

These are some of the issues addressed in this book. The book aims pri-marily to provide guidance, in the form of a handbook, to those deployed in thefield and who are confronted with legal issues. The editor, in her former capac-ity as legal adviser at the Swiss Department of Defense, within the Laws ofArmed Conflict Section, had the opportunity to share her office, consecutively,with three prospective legal advisers of the Swiss contingent in Kosovo(Swisscoy), one of which is author and friend Fabian Kuehner. Those recruitedgenerally undertake, as part of their training, a six-month internship at the head-quarters of the Defense Department in Bern. The possibility to exchange viewsand to get an insight into the doctrinal problems they would—and actually did—get confronted with, made the editor aware of the strong need for a hand-book/manual that may be taken to the field, illustrating practical legal mattersthat may arise during deployment and providing viable solutions, especiallywhen no libraries or Internet services are available and one has to quickly decidewhat to advise to provide the commander. At the same time, this book hopesto provide some guidance also to those entrusted with the drafting of legal stan-dards and regulations for PSOs.

Practice often differs from theory. The different approaches of academicsand practitioners, subtly referred to by James Johnston in his chapter, often leadto antagonism rather than communication and cooperation. The aim of thisbook, instead, is to open a line of communication between practitioners, whowere asked to translate into written words the experiences made in the field,

Introduction xxiii

and academics, who were asked to look for viable solutions to the above-men-tioned problems, thanks to their deep knowledge of the legal background andframework of PSOs.

Another purpose is to bridge the gap between those who have already expe-rienced and faced these problems in the field and those yet to be deployed,thereby facilitating the know-how transfer and resolution of practical legal prob-lems related to law enforcement in PSO.

In order to achieve this goal, the handbook is structured as follows: afterthis introduction, Part I addresses the general question whether law enforce-ment shall be a PSO task. Law enforcement is perceived by some states as amatter of self-defense. Whether state self-defense shall be a PSO task is dis-cussed in Chapter 1 by Alexander Knoops (co-editor of a previous book on thePractice and Policies of Peace Support Operations under International Law,Transnational Publishers, 2006).

The degree to which law and order may be maintained or enforced by aPSO may vary considerably depending on whether the operation is mandatedunder Chapter VI or VII of the UN Charter. Chapter VII missions may be sub-ject to the application of IHL and its rules on occupation. In reality, though, itmay be very difficult to draw the line between a Chapter VI, “peacekeepingoperation,” and a Chapter VII “peace enforcement” operation. Sigmar Stadlmeierand Franz Leidenmühler address this problem by discussing the tensions betweenthe law of occupation and peace enforcement operations in Chapter 2.

In Chapter 3, Emmanuel Kasimbazi then examines whether PSOs shall beentrusted with the prosecution of criminals as a peace-building tool, by takingthe example of the cooperation with the International Criminal Court (ICC) forthe prosecution of the Lord’s Resistance Army (LRA) in northern Uganda.

Part II then addresses the limits and possibilities of law enforcement byPSOs. Ulf Häussler provides a general overview of the topic in Chapter 4, focus-ing on the limits posed by SOFAs, MOUs and ROEs. Fabian Kuehner thenexamines, in Chapter 5, the impact of organized crime on law enforcement inPSOs. Kwai Ip then addresses the related issue of cooperation between PSOforces and local forces in prosecuting criminal suspects in Chapter 6.

The discussion continues with Part III, which provides some practical toolsfor those deployed to the field. In Chapter 7, Nicholas Mercer portrays his expe-riences in Iraq, focusing on the problems related to law enforcement in the after-math of occupation. In Chapter 8, Benjamin Perrin then examines the practicaldifficulties of apprehending indicted war criminals, with reference to his les-sons learned in the former Yugoslavia. Chris Harland completes this overviewin Chapter 9, by discussing problems related to the prosecution of war crimi-nals as a peace-building tool in Bosnia and Herzegovina. Apprehension andprosecution, however, need to be based on evidence. The practical obstaclesmet in collecting evidence are illustrated by Jennifer Burrell and MercedesDoretti in Chapter 10, which focuses on the forensic humanitarian side of pros-ecuting war crimes. Once apprehended and prosecuted, criminals need to be

Law Enforcement Within the Framework of Peace Support Operationsxxiv

detained. Under what rules? This issue is addressed in Chapter 11 by BruceOswald, whereas the need to respect detainees’ human rights and the conflict-ing interests of law enforcement forces in PSOs is discussed by James Johnstonin Chapter 12, on the basis of his experiences in Iraq. Finally, in Chapter 13,Ulf Häussler examines the problem of witness protection.

Part IV focuses instead on law enforcement within PSOs, illustrating prob-lems related to the prosecution of members of PSO forces suspected of illegalactivities. A very important tool to prevent the occurrence of crimes withinPSOs is human rights training, which may prevent the occurrence of abusesduring, for example, interrogation or detention. This aspect is examined by Gregand Diana Noone and David and Sandra Hodgkinson in Chapter 14. In Chapter15, the editor examines the NATO Policy on Combating Human Trafficking,constituting both an obligation to prevent and repress this crime, independentfrom whether committed by NATO personnel or individuals operating in NATO’stheaters of operation. In its wake, Elizabeth Rennie suggests practical tools forthe police in addressing trafficking cases in Chapter 16. Noëlle Quénivet thencompletes the discussion in Chapter 17, by addressing the prosecution of peace-keepers by the ICC for sexual offenses. The conclusions end the book.

Grateful thanks go to all the authors and friends for their enthusiastic andprofessional support to this project, which never failed, especially from thosethat, notwithstanding deployment to the most remote corners of this globe, withconsiderable communication problems and more pressing and urgent tasks,managed to find the time to accomplish this work. The completion of this proj-ect not only gave the editor a chance to widen her network of friends, but alsodeepened her knowledge of PSOs and operational legal aspects, and to day-dream a little bit when reading or hearing on the phone about their brave, adven-turous and, most importantly, humanitarian missions.

This book is dedicated to all those who believe in PSOs and who, notwith-standing the dramatic and often sad realities faced in the field, have not losttrack of the humanitarian ideals underlying them and who are still ready to putrisk their lives for the achievement of peace.

Lugano, July 14, 2007Dr. Roberta Arnold

PART I

LAW ENFORCEMENT—A PSO TASK?

3

CHAPTER 1

THE TRANSPOSITION OF INTER-STATE SELF-DEFENSEAND USE OF FORCE ONTO OPERATIONAL MANDATES

FOR PEACE SUPPORT OPERATIONS

Geert-Jan Alexander Knoops*

A. INTRODUCTION

Inter-state self-defense within international law has given rise to contro-versies as to its limitations. Inter-state self-defense may be described as a pre-existing right of a customary nature that legally entitles a state, subjected to anarmed attack, to resort to force.1 The key question is not whether self-defensefor states exists, but rather at what momentum in the course of events this rightmay be invoked. Although the International Court of Justice (ICJ) in its advi-sory opinion on the Legality of the Threat or Use of Nuclear Weapons held thatevery state has the fundamental right to “survival” and thus to resort to self-defense pursuant to Article 51 of the UN Charter,2 “the exercise of self-defence[by states] is by no means confined to such catastrophic scenarios.”3 This countsespecially for situations during contemporary military crisis-management mis-sions, in which peacekeepers are called to operate.4 Similar to states, “the real-ity of self-defence in inter-state relations [and also for peacekeepers] is much

* Attorney at law at Knoops & Partners, Amsterdam, defense counsel actingbefore the ICTY, ICTR, SCSL; major (reserve) of the Royal Netherlands Marines Corps;LL.M., Ph.D. (Leiden University), Ph.D. (University of Ireland).

1 See YORAM DINSTEIN, WAR, AGRESSION AND SELF-DEFENSE 178–82 (2005); seealso the ICJ judgment in the Nicaragua case, infra note 48.

2 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons,1996 ICJ 226, 263; the ICJ opined that such survival would be only at stake in an extremecircumstance of self-defense.

3 DINSTEIN, supra note 1, at 175 (2005).4 The term “peacekeepers” or “peacekeeping operations” in this chapter includes

both peacekeepers and peace enforcement operations; the term peace support opera-tions (PSOs) covers both of these types of operations.

Law Enforcement Within the Framework of Peace Support Operations4

more prosaic; it transcends life-or-death existential crises and impinges on ahost of common place situations involving the use of counterforce.”5

Self-defense for peacekeepers has traditionally been compared and linkedto the concept of self-defense for military units and not to the concept of inter-state self-defense.6 When one goes into the nature of peacekeeping operations,one may find arguments to apply the latter concept also to peacekeeping forces,being exponents of states. This chapter intends to assess the potential transpo-sition of inter-state self-defense under Article 51 of the UN Charter (jus ad bel-lum) to peacekeeping missions. After setting forth the limitations of such formof self-defense in international law, this chapter will explore the question whetherand to what extent use of force pursuant to Article 51 of the UN Charter canserve as a self-containing mandate for the peace support operations (PSOs) ingeneral and the use of force by peacekeepers in specific. In doing so, this chap-ter makes a distinction between the use of force by peacekeepers within anarmed conflict and outside an armed conflict.

B. THE EQUATION OF PEACE SUPPORT OPERATIONS AND SELF-DEFENSE BY STATES

Peacekeeping forces are not assigned for combat as such. Yet, on certainoccasions, they may be mandated with a broader right to self-defense and useof force compared to the right allocated to individual states under public inter-national law. For instance, the ISAF III mission in Afghanistan, executed byNATO on the basis of UN Resolutions 1386, 1510 and 1623, is allowed “to useall necessary means” to carry out its mandate. Despite the predominant human-itarian nature of this operation, its emphasis lies to a large extent on combat;given the dangerous environment of the provinces of Helman and Uruzgan, UNsoldiers are empowered with an extensive mandate and are actually engaged incombat. Notably, the applicable NATO Rules of Engagement7 permit the exer-cise of “offensive security operations,” which are not to be confused with theanti-terrorism operations pur sang conducted against the opposing militantforces (OMF), among which are the Taliban. These “offensive security opera-tions” authorize peace enforcers to use force at a higher level, equivalent tocombat action, particularly when it concerns the protection of their own or alliedforces. This mandate encompasses the right to target hostile forces in antici-pation of an imminent attack against their own or allied forces, presupposingthat the available evidence or intelligence justifies it.8 It is questionable whether

5 Id.6 DINSTEIN, supra note 1, at 308.7 The standing NATO Rules of Engagement MC 362.8 See Letter of the Dutch Ministers of Foreign Affairs and Defense, Jan. 27,

2006 (ref. DVB/CV-041/06) to the chairman of the Dutch Parliament.

Inter-State Self-Defense 5

the concept of “offensive security operations” may be qualified as “anticipa-tory self-defense” in international law, the latter right being disputed when noarmed attack is under way or is not yet being mounted.9

It is tenable that the use of force by modern peacekeeping or peace enforce-ment forces within contemporary crisis-management operations seems akin tothe inherent right of states to resort to self-defense. Consequently, the param-eters applicable to states can, mutatis mutandis, be applied to peacekeeping andpeace enforcement forces and constitute the basis for self-containing mandate(s)for these forces.

The key question, however, is whether the principles of inter-state forcemay be relied upon by peacekeeping or peace enforcement forces for the con-duct of law enforcement operations. The potential analogy with the principlesof inter-state force seems pertinent in view of the fact that the right of self-defense, both individually and collectively, becomes relevant whenever peaceenforcement operations transcend into law enforcement, as often happens incontemporary crisis-management operations.10 These contemporary crisis-man-agement operations teach that domestic law enforcement operations, on the onehand, and peacekeeping and peace enforcement operations, on the other hand,have common denominators11 and that even rules of engagement (ROE) gov-erning domestic law enforcement operations may be applied to internationalmilitary operations.12 Of course, these two categories of operations also havefundamental differences. As remarked by Westhusing:

But one obvious difference is that FBI agents deal with criminals andsuspected criminals within the U.S. whereas U.S. soldiers, sailors, air-men and marines interact with foreign citizens—often while deployedas part of exceptional, politically sensitive peace operations or counter-terrorism operations. In such high stake arenas, soldiers, marines, andspecial operations forces may be serving collectively to set or enforcethe conditions of peace, not to arrest known or suspected criminals.Or they may also be involved in law enforcement operations. Or theymay, in the case of special forces missions against terrorists abroad,even be seeking to destroy terrorists on their home turf—with or with-out the permission of the foreign nation’s authorities.13

9 See DINSTEIN, supra note 1, at 187.10 See also Ted Westhusing, Taking Terrorism and ROE Seriously, 2 J. MILITARY

ETHICS 7 (2003).11 See Westhusing, supra note 10, at 11.12 Id.13 Id.


In spite of these differences, the following principles may be followed:

1. Peacekeepers and peace enforcers who become involved in law enforce-ment or even counter-terrorism operations, in addition to their ordi-nary peacekeeping or peace enforcement tasks, should be protected bybeing provided with a clear definition of the parameters of the appli-cable use of force.14

2. Military law enforcement duties should be framed and assessed on thebasis of the international law principles of inter-state use of force. Thisis desirable also from the perspective of equity.

Yet, the scope of any law enforcement activity by peacekeepers depends onwhether these are engaged in an armed conflict. Therefore, even though it isnot always easy to draw a clear line,15 it should always be distinguished betweenthe use of force applied by peacekeepers acting within and beyond the frame-work of an (international) armed conflict. The details will be discussed in thenext sections.

C. USE OF FORCE BY PEACEKEEPERS ENGAGED IN (INTERNATIONAL)ARMED CONFLICTS

1. The Normative Framework for Peacekeepers

The active engagement of peacekeepers in armed conflicts cannot be merelyqualified as a “law enforcement” operation, since otherwise the peacekeeperswould be subject to the “laws of war” regime rather than domestic law enforce-ment rules. In this respect, the Israeli Supreme Court’s position on the appli-cation of the laws of war to complex regions may be of guidance. In its seminaljudgment of December 13, 2006, it held that:

the law that applies to the armed conflict between Israel and the ter-rorist organizations in the area is the international law dealing witharmed conflicts. So this Court has viewed the character of the conflictin the past, and so we continue to view it in the petition before us.According to that view, the fact that the terrorist organizations andtheir members do not act in the name of a state does not turn the strug-gle against them into a purely internal state conflict. . . . Indeed, intoday’s reality, a terrorist organization is likely to have considerable

14 Id.15 See Kwai Hong Ip, PSO’s; Establishing the rule of Law Through Security and

Law Enforcement Operations, in PRACTICE AND POLICIES OF MODERN PEACE SUPPORT OPER-

ATIONS UNDER INTERNATIONAL LAW 8 (Roberta Arnold & Geert-Jan Alexander Knoopseds., 2006).


military capabilities. At times they have military capabilities that exceedthose of states. Confrontation with those dangers cannot be restrictedwithin the state and its penal law. Confronting the dangers of terror-ism constitutes a part of the international law dealing with armed con-flicts of international character.16

This reasoning may also apply to peacekeepers confronted with resistance orrebel groups that endanger the mission by having considerable military capac-ities. According to the Israeli Supreme Court, such situations may amount tointernational armed conflicts, triggering the laws of war. Yet, the existence ofa Chapter VII (UN Charter) operation does not imply that the peacekeepers area “party to an armed conflict.” Peace support forces may be engaged in ChapterVII (enforcement) operations without taking directly part in the hostilities.17

As a result, peacekeepers can resort to military force and even launch attacksoutside the scope of self-defense under Article 51 of the UN Charter.18 As theIsraeli Supreme Court put it:

In general, combatants and military objectives are legitimate targetsfor military attack. Their lives and bodies are endangered by the com-bat. They can be killed and wounded. However, not every act of com-bat against them is permissible, and not every military means ispermissible. Thus, for example, they can be shot and killed. However,“treacherous killing” and “perfidy” are forbidden. . . . Use of certainweapons is also forbidden. The discussion of all these does not arisein the petition before us. Moreover, comprehensive legal rules dealwith the status of prisoners of war. Thus, for example, prisoners of warare not to be put on criminal trial for their very participation in com-bat, and they are to be “humanely treated” (The Third GenevaConvention, art. 13). They can of course be tried for war crimes whichthey committed during the hostilities. Opposite the combatants andmilitary objectives stand the civilians and civilian objectives. Militaryattack directed at them is forbidden.19

16 See Judgment of the Israeli Supreme Court, Sitting as the High Court of Justice,in The Public Committee Against Torture in Israel v. the Government of Israel et al.,HCJ 769/021, para. 21 (Dec. 13, 2006).

17 See also Ip, supra note 15, at 8.18 “Nothing in the present Charter shall impair the inherent right of individual

or collective self-defence if an armed attack occurs against a Member of the UnitedNations, until the Security Council has taken measures necessary to maintain interna-tional peace and security.”

19 Public Committee Against Torture in Israel v. the Government of Israel et al.,HCJ 769/021, para. 23 (Dec. 13, 2006).


This ratio is of practical importance to peace missions operating within regionsendangered by threats and attacks as in certain provinces of Afghanistan.Scholarly view holds that an armed conflict taking place between an occupy-ing power and rebel or insurgent groups in an occupied territory is to be con-sidered an international armed conflict, irrespective of whether these groupsare terrorist in nature.20

The Israeli Supreme Court thus developed the following judicial systemapplicable to soldiers (and a fortiori peacekeepers) engaged in internationalarmed conflicts (i.e., conflicts that cross the borders of the state):

1. The laws of war per se (jus in bello), including the laws of belligerentoccupation, the Fourth Hague Convention regarding the laws andCustoms of War on Land (1907) and the Geneva Conventions;

2. Humanitarian law, as lex specialis of the laws of war;3. In case of a gap in this system, supplement by human rights law;4. Alongside this international legal system dealing with armed conflicts,

“fundamental principles of Israeli public law, which every Israeli sol-dier ‘carries in his pack’ and which go along with him wherever hemay turn, may apply.”21

5. Further, when it concerns those parts of this international law systemdealing with armed conflicts that has the status of customary law, theseelements are considered part of Israeli law “by force of the State ofIsrael’s existence as a sovereign and independent State,” subjected toIsraeli Statute determining a contrary provision.22

In conclusion, one can say that peacekeeping forces engaged directly in anarmed conflict of international character are bound by the laws of war. At thesame time, they are authorized to use force outside the scope of Article 51 ofthe UN Charter, pre-conditioned to the principles of proportionality and sub-sidiarity. In its judgment of December 13, 2006, the Israeli Supreme Courtstated that “when soldiers act pursuant to the laws of armed conflict, they areacting ‘by law’ and they have a good justification defence.”23 It is not clearwhether the judgment refers here to defense of superior orders or any other spe-cific defense.

20 See ANTONIO CASSESE, INTERNATIONAL LAW 420 (2005), cited by the IsraeliSupreme Court, in The Public Committee Against Torture in Israel v. the Governmentof Israel et al., HCJ 769/021, para. 18 (Dec. 13, 2006).

21 Public Committee Against Torture in Israel v. the Government of Israel et al.,HCJ 769/021, para. 18 (Dec. 13, 2006).

22 Public Committee Against Torture in Israel v. the Government of Israel et al.,HCJ 769/021, para. 19 (Dec. 13, 2006); which applies mutatis mutandis to all states.

23 Id., para. 19.


2. Defining Peacekeepers as “Combatants”

The applicability of the laws of war on peacekeepers depends on whetherand when peacekeepers engage in combat. It may run parallel to the questionwhen civilians take directly part in hostilities, as set forth by, inter alia, com-mon Article 3 of the four Geneva Conventions of 1949. The requirement of tak-ing “directly” part in hostilities could perhaps be clarified by analyzing the waycase law has drawn a distinction between the definitions of “combatant” ver-sus “civilian.” Clearly, civilians lose protection under the Geneva Conventionswhen they take part directly in hostilities.24

In the absence of a clear definition of the criterion of “direct participation,”one has to resort to case law on this issue. Also in this regard, the Israeli SupremeCourt’s judgment of December 13, 2006, can be of guidance. The justices advo-cated a “wide interpretation” of the “direct character of the hostilities” in orderto encourage civilians “to stay away from (the battlefield).”25 As a result, theyenumerated an extensive list of (military) activities to be subsumed under theconcept of “direct participation.”26 The judges further observed that:

Against the background of these considerations, the following casesshould also be included in the definition of taking a “direct part” inhostilities: a person who collects intelligence on the army, whether onissues regarding the hostilities, . . . or beyond those issues; . . . a per-son who transports unlawful combatants to or from the place wherethe hostilities are taking place; a person who operates weapons whichunlawful combatants use, or supervises their operation, or providesservice to them, be the distance from the battlefield as it may. All thosepersons are performing the function of combatants. The function deter-mines the directness of the part taken in the hostilities. . . . However,a person who sells food or medicine to an unlawful combatant is nottaking a direct part, rather an indirect part in the hostilities. The sameis the case regarding a person who aids the unlawful combatants bygeneral strategic analysis, and grants them logistical, general support,including monetary aid. The same is the case regarding a person whodistributes propaganda supporting those unlawful combatants. If suchpersons are injured, the State is likely not to be liable for it, if it fallsinto the framework of collateral or incidental damage.27

24 See Common art. 3 of the Geneva Conventions.25 Public Committee Against Torture in Israel v. the Government of Israel et al.,

HCJ 769/021, para. 34 (Dec. 13, 2006).26 Israel’s position is debated, at http://www.ihlresearch.org.27 Public Committee Against Torture in Israel v. the Government of Israel et al.,

HCJ 769/021, para. 35 (Dec. 13, 2006).


Interestingly, the justices of the Supreme Court subsequently addressed the con-troversial question whether a person driving a truck with ammunition is to beconsidered as a person taking direct part in the hostilities, who could thus beattacked. The solution presented by the Court is that such a civilian can be seenas taking direct part in hostilities in the event it is clear that the ammunition isbrought to a location from which it will be used for combat purposes.28

The International Criminal Tribunal for the former Yugoslavia (ICTY)seems to pursue a more extensive interpretation of the term “civilian” grantingprotected person status even to “hostile civilians.” This was endorsed in theSimic case, in which the Trial Chamber stated that:

the evidence demonstrates that only a small number of detaineesbelonged to an armed SDA [Party of Democratic Action] paramilitaryformation, giving rise to consideration as to whether they could beclassified as combatants. The fact that most of them were arrested fromtheir homes, combined with a lack of evidence that they participatedin the armed conflict, clearly shows that they were not combatants, butrather, civilians, and consequently were not taken as prisoners of war.29

By analogy, peacekeepers may be considered as taking part in an armedconflict whenever providing causally linked military support to any of the fight-ing forces.

3. Discretionary Boundaries for Peacekeepers to Engage in Combat

Part of the normative system for peacekeepers to use force within the regimeof the Laws of War is the question as to the discretionary boundaries peace-keepers are endowed with when using this force.

Also here the jurisprudence of the Supreme Court of Israel can be of guid-ance. On various occasions, this court was called upon to delineate the natureand extent of judicial review on military operations in (international) armed con-flicts. In the Rafah case,30 the question was whether the State of Israel, duringthe military operations in Rafah, Gaza Strip, had fulfilled its duties under inter-national humanitarian law (IHL). The background of this case was as follows:

28 Id.29 See Prosecutor v. Simic, Case No. IT-95-9-T, para. 659 (Oct. 17, 2003); see

also James G. Stewart, Rethinking Guantánamo; Unlawful Confinement as Applied inInternational Criminal Law, 4(1) J INT’L CRIM. JUST. 19 (2006).

30 See Judgment Israeli Supreme Court, sitting as High Court of Justice,Physicians for Human Rights et al. v. Commander of the IDF Forces in the Gaza Strip,HCJ 4764/04 (May 30, 2004).


Since May 18, 2004, combat activities have been conducted in the areaof Rafah in the Gaza Strip. See HCJ 4573/04 Al-Besioni v. Commanderof the IDF Forces; HCJ 4584/04 Shakfhat v. Commander of the IDFForces in the Gaza Strip; HCJ 4694/04 Abu-Amra v. Commander ofthe IDF Forces in the Gaza Strip. According to respondent, these com-bat activities, broad in scope, are directed against the terrorist infra-structure in that area. Their central objective is to locate the undergroundtunnels which are used to smuggle arms from the Egyptian side ofRafah to the Palestinian side. In addition, the military operations areaimed at arresting those wanted for terrorist activity and locating armscaches in the Rafah area. The activity includes battles against armedopponents. Explosive charges and gunfire have been directed againstthe Israeli Defence Forces (“IDF”).31

The case was initiated by four human rights organizations asserting, in short,that the Israeli Defense Forces (IDF) did not comply with IHL in that they werecausing harm to the civilian population of Rafah as a result of their militaryoperations. The petitioners requested, inter alia, that the IDF allow medicalteams and ambulances to reach and evacuate the wounded in Rafah, that theyprovide electricity, water and food, and finally that they investigate an incidentin which several residents had been killed due to the shelling of a crowd ofprotesting civilians.32

In response, the State of Israel stressed, inter alia, that the Court shouldexercise caution in its judicial review of the IDF’s military operations now thatthey related to combat and anti-terrorism actions.33 Notably, during the oralsubmissions, a senior officer representing the IDF was allowed by the Court tocontact, several times, his liaisons in Rafah in order to determine the “real timesituation in Rafah” and “relay (this information) back to the Court.”34 Thisexemplified a unique situation whereby a Court received the most updated infor-mation on the combat zone under discussion. Justice Beinisch, concurring withthe opinion of the president of the Court, observed that: “These reports as theycame in changed the factual situation before us. . . . In such situations, judicialreview is an inadequate tool with which to review real time developments andto grant effective and efficient remedies.”35

It is in this context that the judges articulated the system of judicial reviewon combat operations. The Court then tried to balance the conflicting interests

31 See Judgment Israeli Supreme Court, sitting as High Court of Justice,Physicians for Human Rights et al. v. Commander of the IDF Forces in the Gaza Strip,HCJ 4764/04, para. 1 (May 30, 2004).

32 Id., para. 7.33 Id., paras. 9–10.34 Id., para. 11.35 See Opinion Justice D. Beinisch, id., para. 77.


of those involved in a combat situation, while at the same time promulgatingthe boundaries for soldiers as to the legality of the use of force.36 The Courtheld further that:

In general, the judicial review of this Court is exercised ex post facto.A petition is submitted against an action that has already been taken.Occasionally, a significant period of time can elapse between the timethe action is taken and before that action is examined by this Court.This, however, is not the case here. Petitioners have not requested thatwe examine the legal import of military operations that have alreadyconcluded. The purpose of this petition is to direct the present actionsof the military. This is ex ante judicial review, exercised while mili-tary operations are currently underway. This imposes certain constraintson the Court. Of course, petitions that look towards the future are notnovel to us. For example, in HCJ 5100/94 Public Committee AgainstTorture in Israel v. The State of Israel, we examined the legality ofguidelines that allowed for the imposition of moderate physical pres-sure on suspects of an investigation. The purpose of our review therewas not to examine actions that had been taken in the past, but to reviewinvestigations that were underway at that time. Even so, the currentpetition is unique in that it asks us to review military operations whilethey are underway and while IDF soldiers are subject to the dangersinherent to combat. As such, it is appropriate to emphasize that:

. . . Clearly this Court will take no position regarding the mannerin which combat is being conducted. As long as soldiers’ lives are indanger, these decisions will be made by the commanders. In the casebefore us, it was not claimed that the arrangement at which we arrivedendangered the lives of soldiers.

Barake, at 16. The same applies here: humanitarian concerns havebeen resolved, without endangering the lives of soldiers or the mili-tary operations. Subject to this caveat, the situation before us is no dif-ferent than other situations where this Court has reviewed the legalityof military operations.37

The Israeli judges came to the conclusion that except for legal issues, the court’sdiscretion should not be substituted for the military standpoint. Without anydoubt, the same approach should be taken when assessing the legality of theuse of force exercised by peacekeepers within armed conflicts.

36 Id., paras. 15–17.37 Id.


D. USE OF FORCE BY PEACEKEEPERS BEYOND THE FRAMEWORK OF AN ARMED CONFLICT

1. Use of Force Against Non-State Actors

This section now turns to the question on what legal basis peacekeepersmay exercise law enforcement operations or use of force during their missionwithout being directly engaged in an armed conflict. After having establishedthat the concept of self-defense by states may serve as a basis for the use offorce to be exercised by peacekeepers and peace enforcers outside armed con-flicts, it may be observed that such actions are most often directed against non-state actors, like contemporary terrorist movements that are not supported byany government (e.g., in Afghanistan, where since November 2001 the Talibanregime was ousted from power).

The application of the doctrine of inter-state self-defense to peacekeepingor peace enforcement forces triggers the question whether these can use forceagainst non-state actors. The answer depends on whether an armed attack bynon-state actors falls within the purview of Article 51 of the UN Charter. Thisparticular issue was dealt with by the International Court of Justice (ICJ) in itsAdvisory Opinion of 2004 on the Legal Consequences of the Construction ofa Wall in the Occupied Palestinian Territory.38 The majority held that Article51 only enhances the inherent right of self-defense in the case of armed attackby one state against another state. Yet, a teleological interpretation of Article51 of the UN Charter calls for a broader approach. This view was expressed byJudges Kooymans and Higgins in their separate opinions, stating that nothingin the text of Article 51 stipulates that self-defense is available only when anarmed attack is launched by a state.39 The standpoint of the ICJ seems to con-tradict the nature and purpose of Article 51 as interpreted by the UN SecurityCouncil in the aftermath of the September 11 attacks,40 particularly UN SecurityCouncil (SC) Resolutions 1368 and 1373, which reaffirm the “inherent rightof individual or collective self-defence in accordance with the Charter.” In doingso, these resolutions connected this right to “horrifying terrorist attacks” ratherthan to “an armed attack.”

In its Advisory Opinion on the Israeli wall, the ICJ addressed UN SCResolutions 1368 and 1373, when concluding that Article 51 of the UN Charterwas not applicable in that case:

38 Advisory Opinion on Legal Consequences of the Construction of a Wall inthe Occupied Palestinian Territory, 2004, 43 I.L.M. 1009, 1050 (2004) [hereinafterAdvisory Opinion].

39 Id., 1072, 1063; see also the declaration of Judge Buergenthal, 40 See DINSTEIN, supra note 1, at 206–08.


The Court also notes that Israel exercises control in the OccupiedPalestinian Territory and that, as Israel itself states, the threat whichit regards as justifying the construction of the Wall originates within,and not outside, that territory. The situation is thus different from thatcontemplated by Security Council Resolutions 1368 (2001) and 1373(2001), and therefore Israel could not in any event invoke those reso-lutions in support of its claim to be exercising a right of self-defence.41

The ICJ implicitly held that the September 11 attacks resulted from a threatcoming from outside the United States, whereas in the Israeli Wall case thethreat was coming from within territory under Israeli control.42 Yet, in both sit-uations the inherent right of self-defense may be invoked. Also the September11 attacks, in fact, resulted predominantly from a threat coming from withinthe United States itself: nineteen male US residents had hijacked aircrafts andconducted the attacks within the United States.43 Furthermore, in the IsraeliWall case, the State of Israel advocated that the threats justifying the wall werealso to be attributed to foreign states (i.e., Syria, Lebanon and Iran).44 Finally,there is state practice supporting an emerging “belief that states may act againstnon-state actors in the exercise of a right to protection against threats.”45 In thiscontext, Murphy refers to several examples of such state practice. He refers tothe 1985 US interception of an Egyptian aircraft over the Mediterranean inorder to apprehend alleged terrorists on board the plane who were held respon-sible for the Achille Lauro hijacking.46 Other incidents include South Africa’sattack based on Article 51 of the UN Charter on the Southwest Africa People’sOrganization (SWAPO) in Angola and Zambia in 1976–1985.47 All these eventsinvolved extraterritorial actions against non-state actors on the basis of Article51 of the UN Charter.

Article 51 may thus justify the use of force against any territory or entityengaged in or supporting terrorist activities that amounts to an immediate threatof an armed attack.48 There is no reason why the same norm cannot be appliedto the use of force by peacekeepers, since these are acting as instruments of astate or as conglomerates of states.

41 See Advisory Opinion, supra note 37, para. 139; see Sean D. Murphy, Self-Defense and the Israeli Wall Advisory Opinion: An Ipse Dixit from the ICJ?, 99 AM. J.INT’L L. 62 (2005).

42 See for this analysis, Murphy, supra note 40, at 67–70.43 Id. 68.44 See Written Statement of the Government of Israel on Jurisdiction and Propriety,

paras. 68–69 (Jan. 29, 2004). 45 See Murphy, supra note 40, at 69.46 Id.47 Id.48 See THOMAS FRANCK, RECOURSE TO FORCE: STATE ACTION AGAINST THREATS AND

ARMED ATTACKS 67 (2002).


Therefore, on the basis of these two resolutions, the requirement of anarmed attack should not be limited to those conducted by states. Such view isalso in line with the purpose of collective or individual self-defense, namely todefend the state or oneself against an immediate threat. In reality, the nature ofthe threat is not limited to states or state actors. After all, a threat to a state canoriginate from a group of individuals. Dinstein provided three other argumentsin support of the disconnection of the element of “armed attack” from state-hood. According to him, the first argument is that in the Nicaragua case, theICJ held that an armed attack must be understood as including not merely actionby regular armed forces across an international border, but also the engagementof armed bands or irregulars into the territory of another state.49 Noticeably,when non-state actors attack a state from within that state without involvementof any other state or any other external entities, Article 51 is not applicable.50

Secondly, directly after the September 11 attacks, the North Atlantic Councilof NATO issued a statement holding that “if it is determined that this attackwas directed from abroad against the United States,” Article 5 of the NorthAtlantic Treaty of 1949 would apply. Importantly, Article 5 provides that anarmed attack against one or more of the Allies in Europe or North Americashall be seen as an attack against them all.51 Now that the term “armed attack”in Article 5 is derived from Article 51 of the UN Charter, one can conclude thatterrorist attacks launched from outside the territory of the targeted state fallwithin the ambit of Article 51 of the UN Charter.

Thirdly, a similar statement was given by Ministers of Foreign Affairs, act-ing as an organ of consultation pursuant to the 1947 (Rio de Janeiro) Inter-American Treaty of Reciprocal Assistance, saying that “these terrorist attacksagainst the United States of America are attacks against all American States.”52

Here, Article 3 of the Inter-American Treaty was invoked, which, similar toArticle 5 of the North Atlantic Treaty, draws on an armed attack and the rightto self-defense as enshrined by Article 51 of the UN Charter. Attention shouldalso be drawn to Article 21 of the International Law Commission (ILC) Articleson State Responsibility for Internationally Wrongful Acts of August 2001, say-ing that “The wrongfulness of an act of a State is precluded if the act consti-tutes a lawful measure of self-defence taken in conformity with the Charter ofthe United Nations.”53

49 See Case concerning Military and Paramilitary Activities in and AgainstNicaragua (Merits) 1986 ICJ 183.

50 See DINSTEIN, supra note 1, at 204–05.51 See Statement by North Atlantic Council, 40 I.L.M. 1267 (2001).52 See Organization of American States (OAS) on Terrorist Threat to the Americas,

40 I.L.M. 1273 (2001); discussed by DINSTEIN, supra note 1, at 208. 53 See JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSION’S ARTICLES ON STATE

RESPONSIBILITY; INTRODUCTION, TEXT AND COMMENTARIES 166 (2002).


In conclusion, when it concerns the use of force by peacekeepers outsidethe context of (international) armed conflicts, this force can be applied to (also)non-state actors, albeit under circumstances dictated by Article 51 of the UNCharter.

2. Defining “Armed Attack” Against Peacekeepers

The key question is how to define “an armed attack” under Article 51 ofthe UN Charter. In other words, what level of armed or (para) military opera-tional activity is required to qualify as an “armed attack.” The findings of theICJ in the Nicaragua case are illustrative for the case of peacekeepers too:

1. The victim state must prove that it was the target of a large-scale useof force by either regular or irregular forces, that is, a “grave form ofthe use of force,” such as a bombardment.54

2. Mere support of a state by providing weapons or other logistical sup-port to a non-state actor, which subsequently uses force against anotherstate, does not qualify “any armed attack” by the first state within themeaning of Article 51 of the UN Charter.55

However, these observations are disputable since:

1. Seen from the perspective of international criminal law, providing logis-tic support to non-state actors involved in terrorism may be consid-ered as a form of indirect perpetration such as aiding or abetting;

2. Based upon a teleological interpretation, it may be advocated that an“armed attack” de facto exists when the first state on whose territorythose non-state actors operate fails to prevent such attacks in terms ofcapability or willingness or fails to undertake preventive actions interms of effective measures.56

Another critical remark concerning this ICJ standpoint is that although singleassaults by guerrilla forces or terrorists may not always meet the threshold ofan armed attack, a certain action weighed in the totality of (semi) military action,if existing, may amount to an armed attack.57 The ICJ in the Nicaragua caseheld that: “while the concept of an armed attack includes the dispatch by onestate of armed bands into the territory of another State, the supply of arms and

54 See Military and Paramilitary Activities in and Against Nicaragua (Nicaraguav. USA), merits, 1986 ICJ 14, para. 191.

55 Id., para. 195.56 See Murphy, supra note 40, at 66.57 See also DINSTEIN, supra note 1, at 202.


other support to such bands cannot be equated with armed attack.”58 The Courtapparently opined that some substantial level of assistance to rebels is requiredto speak about an “armed attack.”59 In the view of the Court, the level of (para)military, operational activity has to amount to a “substantial” level. However,it is fair to conclude that this criterion should be based upon the totality ofassaults or incidents.

3. Self-Defense Pursuant to Article 51 as an Operational Mandate for Peacekeepers

The question is whether peacekeepers/peace enforcers may use force againstnon-state actors—without the presence of an armed attack directed againstthem. As mentioned, the application of the doctrine of self-defense to the con-text of the jus ad bello, may vindicate the use of force by peacekeepers or peaceenforces engaged against non-state actors within the operational area of a par-ticular mandate. Following this reasoning, this form of self-defense would qual-ify as an “inherent” right of peacekeepers too. This implies that even withoutan explicit mandate, peacekeepers may rely on the doctrine of (inter-state) useof force. The practical implications thereof are considerable. The doctrine couldjustify resort to forcible measures to prevent or counter certain threats tanta-mount to armed attacks, even when the standing ROE do not denote the use ofsuch force.

It has been argued that “this specific right of self-defence applicable topeacekeeping forces should not be confused with the much broader right ofself-defence vested in States,” as “a peacekeeping force’s exercise of self-defenceis more akin to a military unit’s self-defence in the context of on-the-spot-reac-tion.”60 Indeed, one should clearly distinguish the following two categories ofself-defense available to peacekeepers:

1. The right, as enshrined by the various standing UN and NATO ROE,61

to defend (individual) elements and personnel of a peacekeeping forcethat is subjected to an (imminent) attack. This form of self-defense isenvisioned by national and international criminal codes, such as Article31 of the International Criminal Court (ICC) Statute.

2. The right to use counter-force by a peacekeeping force as a collectiveaction against an armed attack by a (non-) state actor endangering thepeacekeeping operation as such, abstracted from its individual ele-

58 See Nicaragua case, supra note 53, at 126–27.59 See, for this topic, DINSTEIN, supra note 1, at 202–03.60 See DINSTEIN, supra note1, at 308.61 See, inter alia, the standing UN Rules of Engagement on Peace Enforcement

Operations and the Standing NATO ROE MC 362.


ments and persons. This form of use of force is a manifestation ofArticle 51 of the UN Charter and should accordingly be adjudicatedupon the criteria for this provision. Here, no fundamental differencecan be established with the concept of inter-state self-defense.62

Yet, there is a thin line between these two categories. This will be explainedwith the following example: A peacekeeping patrol in Afghanistan is subjectedto mortar fire by Taliban troops (i.e., non-state actors). The use of force by thispatrol in response to such an attack may perhaps fall within both categories (1)and (2).

On the other hand, does this mere incident trigger self-defense under Article51? A close reading of the ICJ’s Nicaragua judgment would lead to a non-affir-mative answer since this one incident probably does not have sufficient inten-sity or gravity. Yet, it is difficult to uphold the notion that only large militaryoperations and activities can trigger the use of force pursuant to Article 51 ofthe UN Charter. The intensity or gravity of the attack could only be relevant toassess the proportionality of the armed response.63 In fact, the ICJ in the OilPlatforms case endorsed this view. Specifically, it held open the possibility thatthe mining of one single military vessel might be sufficient to trigger self-defense under Article 51 of the UN Charter.64

Additionally, on its face, even relatively small military clashes, for instanceone mere attack on a military convoy led by peacekeepers for purposes ofhumanitarian relief, may, under certain circumstances, equal an “armed attack”in view of the considerable impact this attack may have on the accomplishmentof the peacekeeping operation in question.65

Hence, both categories of self-defense may, given the conditions, justifythe use of force during peacekeeping operations when it concerns attacks onpeacekeeping forces or materials under their protection. The exercise of theserights as such is not contingent upon a specific mandate or resolution. Whencircumstances so dictate and requirements of proportionality, subsidiarity andimmediacy are met,66 the legitimacy of the use of force by peacekeepers maybe directly derived from Article 51 of the UN Charter, as well as from the inher-ent right to individual self-defense, as enshrined by Article 2(2)(a) of theEuropean Convention on Human Rights (ECHR). This provision lays the foun-dation from the human rights perspective for the right to individual self-defense,saying that: “Deprivation of life shall not be regarded as inflicted in contra-vention of this article when it results from the use of force which is no more

62 DINSTEIN, supra note 1, at 220.63 Id., 195.64 ICJ judgment of Nov. 6, 2003, Case Concerning Oil Platforms, 42 I.L.M. 1360

(2030); see also DINSTEIN, supra note 1, at 196.65 See, for other examples, DINSTEIN, supra note 1, at 195.66 See, for these conditions, DINSTEIN, supra note 1, at 237–43.


than absolutely necessary: (a) in defence of any person from unlawful violence.”Thus, Article 51 of the UN Charter may constitute an (operational) mandatefor peacekeepers to endorse the use of force. Another thing is whether it mayserve as a law enforcement mechanism per se for them.

From this analysis it is clear that law enforcement activities or operations(such as the arrest of individuals or search or seizure of property) accompaniedby the exercise of the use of force by peacekeepers as such cannot be based onArticle 51 of the UN Charter without the presence of an “armed attack” asdefined in this section. It is legally more sound when military forces engagedin PSOs, when confronted with potential law enforcement tasks, only exercisesuch tasks in the event that:

1. Their own domestic law provides for such tasks, and these are notexcluded by the applicable ROE.67

2. SC resolutions authorizing peace enforcement operations specificallyset forth law enforcement duties for peace support forces.68

The maintaining of international peace and security does not automaticallyattribute to peacekeepers a right and duty to administer law enforcement taskswithin the conflict region at hand.69

4. Mandating the Use of Force by Peacekeepers Based upon “Hostile Act” and “Hostile Intent”

The previous sections dealt with the use of force pursuant to Article 51 ofthe UN Charter, that is, based on—to a certain extent—concrete “hostile acts”on the part of (non-) state actors. This section addresses the question whetherthe use of force by peacekeepers may be exercised on the basis of a mere “hos-tile intent” displayed by the aggressor. It has been accepted that the threat ofan imminent armed attack may legitimize self-defense by virtue of Article 51of the UN Charter; yet a mere threat without the element of imminence or amere declaration of war do not fall within the ambit of this provision.70 Thisraises the question whether anticipatory self-defense has a foundation in (cus-tomary) international law.

It has been accepted that preventive self-defense or use of force is legiti-mate under Article 51 when the adversary initiated an “apparently irreversiblecourse of action,” that is, in case of an attack “which is in progress, even if it

67 See also Ip, supra note 15, at 9.68 Id., 34.69 See also Ip, supra note 15, at 6.70 See DINSTEIN, supra note 1, at 182–83, 186, 190–91.


is incipient; the blow is ‘imminent’ and practically unavoidable.”71 Yet, the appli-cation of preventive or anticipatory self-defense is contingent on the existenceof “demonstrable circumstances of extreme necessity” the exercise of which ispertinent to ensure the survival of a state.72 This, therefore, excludes the invo-cation of self-defense on the basis of a mere expectation that something aggres-sive will happen.73

Within the context of (international) military operations, including rulesof engagement pertaining to peacekeeping missions, a distinction is madebetween “hostile act” and “hostile intent.” Several ROE provide that peace-keepers may exercise force in self-defense not only in reaction to a “hostile act”but also to counteract a “hostile intent.”74 The definition of hostile act, accord-ing to the UN and NATO ROE is an attack or other use of force against a nationalforce, personnel, ships, aircraft, equipment or property assigned to a multina-tional operation. For certain operations, this definition may be expanded toinclude an attack on designated allies, non-military personnel, objects, sites,platforms and/or material. Such a wide scope is neither envisioned in domes-tic law nor in international criminal law (ICL) when it concerns the applica-tion of individual self-defense.75

Similarly the element of hostile intent does not appear as a concept withinICL. According to UN and NATO ROE, under certain circumstances, armedforce may be used preemptively to protect national ships, aircraft, equipmentor property from the threat of imminent use of force. For certain operations,this definition may be expanded to include the protection of designated allied,non-military personnel and other foreign military personnel, objects, sites, plat-forms and/or material. Although precise criteria can be established for identi-fying a hostile act, it is more difficult to recognize a demonstration of hostileintent, in which case greater amplification may be required, depending on theanticipated operational context. Crucial for the use of force based on “hostileintent” is the requirement of convincing evidence establishing a reasonablebelief that the use of force by the adversary is imminent, the necessity for aunit to use force is instant and overwhelming and there is no choice or meansfor deliberation. Thus, a reasonable belief is required to justify the use of force.This reasonable belief forms a parallel to the principles of proportionality andsubsidiarity, which are pertinent to self-defense. Thus, as a result, the permit-ted extent of reaction in the face of a hostile act or demonstration thereof mustbe clearly understood in terms of the principles of proportionality and the dura-

71 See DINSTEIN, supra note 1, at 191.72 See THOMAS M. FRANCK, RECOURSE TO FORCE 105 (2004).73 Id.74 See, inter alia, the NATO ROE MC 362.; see also DINSTEIN, supra note 1, at

182.75 See GEERT-JAN G.J. KNOOPS, DEFENSES IN CONTEMPORARY INTERNATIONAL LAW,

at 187 (2001).


tion of the force used in response. Thus, when designing ROE to support peace-keeping operations, the criteria for what constitutes a hostile act or the demon-stration of hostile intent must be clearly enunciated.76

The concept of “hostile intent,” postulated in this way may be axiomaticor even contradictory to the aforementioned principles underlying Article 51of the UN Charter. It is, therefore, questionable whether this concept fits withinthe parameters of inter-state self-defense under all circumstances. This mayparticularly cause a conflict in the case, for example, where a peacekeepercharged with war crimes for having unjustly shot at a group of civilians wouldclaim that there was a “hostile intent” on their part. Indicted before the ICC,the peacekeeper may invoke self-defense under Article 31(1) of the ICC Statute,saying that the applicable ROE provides for use of force on the basis of hostileintent. Can the ICC accept such a defense, notwithstanding that Article 31(1)of the ICC Statute stricto sensu does not allow self-defense on mere “hostileintentions” of the adversary or the “reasonable belief ” thereto on part of thepeacekeeper? Only case law can shed light on the interrelationship betweenself-defense under ICL and the concepts of hostile act and hostile intent. Whenone considers recent SC resolutions, the question is whether the contents thereofcan be interpreted as “authorizing the use of force in preemptive self-defenceagainst an anticipated attack when there is compelling evidence that an attackis imminent.”77 The above-mentioned resolutions specifically authorize the useof force to protect mission property, UN property as well as personnel and civil-ians.78 Yet, the reference to “compelling evidence” fits within the interpreta-tion of Article 51 of the UN Charter as set out above.

E. CONCLUSIONS

The use of force applicable during PSOs is mainly confined to the ques-tions whether one deals with a UN Charter Chapter VI or VII operation. Yet,one may determine that irrespective of the nature of the PSO (either ChapterVI or VII), the use of force by PSO forces can be based on the laws of war(when such forces directly participate in the armed conflict at hand) or Article51 of the UN Charter per analogy (when such forces do not participate in anarmed conflict). On the other hand, pure law enforcement duties may not beconducted by PSO forces on the basis of an analogous application of domesticlaws; rather, the exercise of such duties must be based on an explicit provisionin the UN mandate.

76 See id., 188; see also G.S. Holder, Rear Admiral, U.S. Navy (unpublished).77 See Ip, supra note 15, at 7; this author comes to an affirmative answer.78 Id.; Kwai Hong Ip refers here to SC Resolution 1542 (2004) concerning Haiti

and SC Resolution 1528 (2004) with respect to Ivory Coast.

23

CHAPTER 2

THE LAW OF OCCUPATION AND PEACE SUPPORT OPERATIONS—AT ODDS?

Sigmar Stadlmeier*Franz Leidenmuehler**

A. INTRODUCTION

The U.S.-led military occupation of Iraq1 between May 1, 2003, and June28, 2004,2 has attracted renewed attention to the law of occupation. First of all,

* Dr. iur. (Linz), LL.M. (London), Jean Monnet Associate Professor of EuropeanLaw and Integration, Deputy Head of the Institute of Public International Law andInternational Relations, Johannes Kepler University of Linz (Austria).

** Dr. iur. (Linz), Staff Scientist and Lecturer in Law, Institute of European Lawand Institute of Public International Law and International Relations, Johannes KeplerUniversity of Linz (Austria).

1 See generally Adam Roberts, The End of Occupation: Iraq 2004, 54 INT’L

COMP. L.Q. 28 (2005); Marten Zwanenburg, Existentialism in Iraq: Security CouncilResolution 1483 and the Law of Occupation, 86 INT’L REV. RED CROSS 745 (2004);Gregory H. Fox, The Occupation of Iraq, 36 GEO. J. INT’L L. 195 (2005).

2 The United States and its Allies became an occupying power at the latest onMay 1, 2003, when President Bush declared the end of major combat operations in Iraq.And after all, SC Res. 1546 (June 8, 2004), stated that the Council “[w]elcomes that, [ . . . ] by 30 June 2004, the occupation will end and the Coalition Provisional Authoritywill cease to exist, and that Iraq will reassert its full sovereignty” (operative para. 2).But since occupation is a matter of fact (see Section B) the law of occupation would bestill applicable where troops of the former occupying power remain in the territory andcontinue to exercise effective control. International recognition may be an indicator tothat end, and the announcement made by the president of the Security Council in a pressstatement on June 28, 2004, may be of importance: “The members of the Security Councilwelcome the handover of full responsibility and authority for governing Iraq to the fullysovereign and independent Interim Government of Iraq, thus ending the occupation ofthe country” (UN Doc. SC/8136). So, the occupation appears to have ended on June 28,2004. See Zwanenburg, supra note 1, at 752–53 (2004); see also Fox, supra note 1, at233–34; Adam Roberts, Transformative Military Occupation: Applying the Laws of Warand Human Rights, 100 AM. J. INT’L L. 580, 616 (2006).


the adoption of Resolution 14833 by the Security Council has raised questionsas to the precise relationship between resolutions of the Security Council act-ing under Chapter VII of the UN Charter and the law of occupation, a branchof international humanitarian law (IHL). Thereby the core of the controversyturned on the issue of whether the Security Council may “carve out” parts ofthe classic law of occupation, especially the prohibition on the occupying powerto establish new local and national institutions and to institute legal, judicialand economic reform.

As this question may be of interest for almost all peace support operations(PSOs) run by international organizations, which typically include some kindof transformation of institutions and legal system of the occupied territory, thepresent contribution thus intends to analyze the topic in a more general approach.

B. THE LAW OF OCCUPATION—SCOPE OF APPLICATION AND CONTENTS

The law of occupation is part of IHL. Its main sources are the HagueRegulations concerning the Laws and Customs of War on Land, attached to the1907 Hague Convention No. IV Respecting the Laws and Customs of War onLand (hereinafter Hague Regulations),4 the 1949 Geneva Conventions I–IV (byvirtue of their common Article 2), especially the Fourth Geneva Convention5

and its Section III on occupied territories, and Additional Protocols (AP) I andII to the 1949 Geneva Conventions.

Article 42 of the Hague Regulations considers a territory occupied “whenit is actually placed under the authority of the hostile army.” Article 43 of theHague Regulations continues with “the authority of the legitimate power hav-ing in fact passed into the hands of an occupant.”6 Therefore, occupation isa matter of fact, not a matter of law: once a situation exists that factuallyamounts to occupation, the law of occupation applies.7 For these reasons anyformal legal distinction between “occupying powers” and “non-occupying

3 SC Res. 1483 (May 22, 2003).4 Available at 2 AM. J. INT’L L. SUPP. 90 (1908).5 Convention relative to the Protection of Civilian Persons in Time of War, 75

U.N.T.S. 287.6 Moreover, common Article 2 of the 1949 Geneva Conventions suggests a wide

notion of the term “occupation” and requires neither actual resistance against the occu-pying power nor a complete occupation of the territory concerned.

7 See Joshua L. Dorosin, Remarks, in ASIL PROCEEDINGS 117, 118 (2004); Jean-Philippe Lavoyer, Remarks, in ASIL PROCEEDINGS 121, 121 (2004); Zwanenburg, supranote 1, at 748.

Law of Occupation and PSOs 25

powers” among the contributors to a multinational occupying force—such asthe one in Security Council Resolution 1483 on Iraq8—has rightly been called“legal fiction.”9

Since the law of occupation is triggered by a state of facts, there is no primafacie argument to be gained from different reasons, motives, types, labels10 orlegal bases of occupation.11 The former is part of the ius in bello, whereas thelatter relates to ius ad bellum. Those two spheres must as a matter of principlebe kept separate. This well-known principle is reinforced by Article 4 AP I tothe 1949 Geneva Conventions.12

This, however, places an important constraint on the interpretation of theclassic law of occupation. The territorial administration of the occupying poweris meant to be minimalist in terms of its impact on the population.13 It is designedas a provisional and temporary one,14 continuing the administration (in broadterms) of the occupied territory on the basis—unless “absolutely prevented”(Article 43 of the Hague Regulations)—of the legal system of the temporarilydisplaced sovereign. For the purposes of this study, this will be referred to asthe principle of preservation.15 The reason for preserving—as a matter of prin-ciple—the legal order and institutions of the temporarily displaced sovereignis that the lawfulness of occupation is not—and cannot be—determined by IHL.The lack of a determination as to the lawfulness of occupation under the ius adbellum in turn explains the static, transitional and rather limited concept of theclassic law of occupation in its ius in bello dimension.

8 See on this David J. Scheffer, Beyond Occupation Law, 97 AM. J. INT’L L.842, 844 (2003); Zwanenburg, supra note 1, at 756.

9 See Roberts, supra note 1, at 33; see also Lavoyer, supra note 7, at 122.10 Jean-Philippe Lavoyer indicates that it is insignificant whether an occupation

is labeled an “invasion,” “liberation,” “administration” or “occupation.” See Lavoyer,supra note 7, at 121.

11 See id.; Steven R. Ratner, Foreign Occupation and International TerritorialAdministration: The Challenges of Convergence, 16 EUR. J. INT’L L. 695, 696 (2005);Marco Sassoli, Legislation and Maintenance of Public Order and Civil Life by OccupyingPowers, 16 EUR. J. INT’L L. 661, 661–62 (2005).

12 See Lavoyer, supra note 7, at 121.13 See, e.g., Fourth Geneva Convention, arts. 49, 53, 54, 64, 67; Hague

Regulations, arts. 42–56. See MARCO SASSOLI & ANTOINE A. BOUVIER EDS., HOW DOES

LAW PROTECT IN WAR? 154–55 (1999).14 See Lavoyer, supra note 7, at 123; Ratner, supra note 11, at 700; Roberts,

supra note 2, at 582.15 Gregory H. Fox uses the term “conservationist principle.” See Fox, supra note

1, at 234.


C. LIMITS TO LEGISLATIVE ACTION BY THE OCCUPYING POWER—THE “PRINCIPLE OF PRESERVATION”

Substantive limits to the powers of an occupying power flow from the preser-vation principle under Article 43 of the Hague Regulations in conjunction withSection III of the Fourth Geneva Convention, especially Articles 47 and 64.Article 43 of the Hague Regulations requires to respect and maintain in forcethe legal system of the occupied territory “unless absolutely prevented” to doso.16 Article 47 of the Fourth Geneva Convention guarantees the benefits ofthis convention for all protected persons in occupied territory irrespective ofany changes introduced by the occupying power into the institutions or gov-ernment of the occupied territory. Article 64 of the Fourth Geneva Conventionconsists of three paragraphs, the first two of which are limited to penal laws:The latter must remain in force unless they constitute a threat to the occupy-ing power or an obstacle to the application of the Fourth Geneva Convention;relevant tribunals shall continue to function.17 Paragraph 3 of Article 64 of theFourth Geneva Convention provides for additional legislation, which is essen-tial to enable the occupying power to fulf ill its obligations, to maintain anorderly government of the occupied territory and to ensure the security of theoccupying forces.18 Hence, legal tools required to fulf ill obligations underIHL, as pointed out above, are available to the occupying power even underclassic law of occupation.19 But, without doubt, the occupant’s competencesto legislate do not extend to “active transformation” and to the remodeling ofthe distribution of power and other political structures and processes of soci-

16 Art. 43 reads: “The authority of the legitimate power having in fact passedinto the hands of the occupant, the latter shall take all the measures in his power torestore and ensure, as far as possible, public order and safety, while respecting, unlessabsolutely prevented, the laws in force in the country.”

17 Art. 64 reads: (1) The penal laws of the occupied territory shall remain in force, with the

exception that they may be repealed or suspended by the Occupying Powerin cases where they constitute a threat to its security or an obstacle to theapplication of the present Convention.

(2) Subject to the latter consideration and to the necessity for ensuring theeffective administration of justice, the tribunals of the occupied territoryshall continue to function in respect of all offences covered by the said laws.

18 Para. 3 of art. 64 reads: “The Occupying Power may, however, subject the pop-ulation of the occupied territory to provisions which are essential to enable the OccupyingPower to fulfill its obligations under the present Convention, to maintain the orderlygovernment of the territory, and to ensure the security of the Occupying Power, of themembers and property of the occupying forces or administration, and likewise of theestablishments and lines of communication used by them.”

19 On further exceptions to the preservation principle see Sassoli, supra note 11,at 673–82.


ety in the occupied country. Such changes admittedly would go much furtherthan simple legislation.20

D. THE LAW OF OCCUPATION AND PEACE SUPPORT OPERATIONS

Traditionally, PSOs are run by international organizations. In the mean-time it has been generally accepted that international organizations engaged inthe occupation and administration of territory are bound by the ius in bello ingeneral and the law of occupation in particular.21 So for the United Nations the“Bulletin on the Observance by United Nations Forces of InternationalHumanitarian Law”22 states that the “principles and rules” of IHL apply to theUN forces. The European Union (EU) and its member states, on the other hand,committed to their compliance with IHL in the context of crisis-managementoperations taken by the EU in the “Guidelines on the Promotion of InternationalHumanitarian Law.”23 Therefore, PSOs must, as a matter of principle, observeIHL.24

However, recent PSOs typically include some kind of transformation ofinstitutions and legal system of the occupied territory, which goes far beyondadministering an existing system (Article 43 of the Hague Regulations) andadding some indispensable legislation for these ends (Article 64 of the FourthGeneva Convention). In most of the cases, it is even the principal goal of themission to prepare and ease a political transition and to alter institutions of gov-ernment as well as the constitution of the country permanently and not just tomaintain the status quo. These operations can rather be qualified as “transfor-mative occupations,” where the “benevolent” occupier does not even seek toreturn control to the prior government but is engaged in creating a new regime.In short, for peace support operations, as a rule the status quo ante is not a sit-uation to be maintained but a problem to be overcome. Therefore, in such acontext a full application of occupation law that never was designed for suchtransformation exercises appears inappropriate25 and even undesirable.

20 See Sassoli, supra note 11, at 671; Roberts, supra note 2, at 588–89.21 See Ratner, supra note 11, at 705.22 Bulletin promulgated by Secretary-General Annan on Aug. 6, 1999, Sec. 1.1

(UN Doc. ST/SGB/1999/13); reprinted in 38 I.L.M. 1656 (1999).23 European Union Guidelines on Promoting Compliance with International

Humanitarian Law (IHL) of Dec. 5, 2005 (Council Doc. 15246/05).24 Since all PSOs are actually carried out by national contingents the forces are

bound by IHL by virtue of the engagement of their sending states anyway. See Sassoli,supra note 11, at 687.

25 See Sylvain Vité, L’applicabilité du droit international de l’occupation mili-taire aux activités des organisations internationales, 86 INT’L REV. RED CROSS 9 (2004).


E. LEGAL BASIS FOR DEROGATION FROM THE CLASSIC LAW OFOCCUPATION

It has been argued that even a fundamental transformation may be lawfulunder the classic law of occupation where a political system as such constitutesa threat to the security of the occupying power (the so-called Fauchille doc-trine26). This approach however is not uncontested, and any potential precedents(such as the administration of the Allied Powers of Germany and Japan afterWorld War II) could be explained on another basis, that is, classic law of war-fare before the Fourth Geneva Convention, under which debellatio or uncon-ditional surrender terminated an occupation regime and the protection it grantedto the legal system of the occupied territory.27

Transformation, nation-building and other changes to the political and/orlegal system of the occupied territories beyond the limits discussed above appearto be inconsistent with the law of occupation under IHL. Since the latter con-sists of both treaty law and customary law, a legal basis for such transforma-tion must override both sources of international law.

Maintenance of peace and security is the primary (though not exclusive)responsibility of the UN Security Council. Indeed peace support operations fre-quently flow from a mandate of the Security Council to that end. Article 103of the UN Charter provides for the supremacy of Charter obligations over othertreaty obligations. In order to provide a valid legal basis for a peace supportoperation mandate, which includes transformation beyond the limits of IHLand the law of occupation, two conditions must be fulfilled: First, Article 103must give supremacy not only to Charter obligations in the narrow sense butalso to Charter-based obligations founded in “U.N. secondary legislation” bythe Security Council. Second, its scope of application must extend beyond treatyobligations to other sources of international law.

As far as the first condition is concerned, it is only the substance of a trans-formation mandate which flows from UN secondary legislation (i.e., a SecurityCouncil resolution). The binding effect of such resolutions is explicitly pro-vided for in the Charter (Article 25). Moreover, the International Court of Justice(ICJ) has held in the Lockerbie case28 that Security Council resolutions underChapter VII of the UN Charter do indeed and because of Article 25 in con-junction with Article 103 enjoy supremacy over other treaty obligations.29

26 See on this Sassoli, supra note 11, at 671.27 See Scheffer, supra note 8, at 848; see also Sassoli, supra note 11, at 672;

Roberts, supra note 2, at 601–02.28 See ICJ, Questions of Interpretation and Application of the 1971 Montreal

Convention arising from the Aerial Incident at Lockerbie (Libya v. United Kingdom),Provisional Measures, Order of Apr. 14, 1992,1992 ICJ 3, 16, para. 39.

29 See also Zwanenburg, supra note 1, at 760–61 (2004); Sassoli, supra note 11,at 680–81.


As far as the second condition is concerned, it is at least difficult to arguewhy only treaty obligations, but not customary obligations, should be overrid-den by Article 103 of the Charter, there being no hierarchy of norms amongthe sources of law concerned. The object and purpose of the Charter, which isto establish a worldwide system of collective security among the member statesof the United Nations, cannot be achieved unless the Charter enjoys supremacyover other sources of international law as well. In concreto it would not makeany sense at all to accept supremacy of the charter over treaty law in IHL butnot over the much older, less comprehensive (and somewhat outdated) cus-tomary Hague Regulations.

However, this does not mean that the Security Council, when acting underChapter VII of the UN Charter, can derogate from international law at will.30

First, it is quite obvious (and confirmed by Article 24) that the Security Councilhas to act in accordance with the purposes and principles of the United Nations.Second, there is an argument based on the nature of peremptory norms (iuscogens), which would seem to limit the discretionary power of the SecurityCouncil.

Peremptory norms (ius cogens) according to the definition in Article 53 ofboth Vienna Conventions on the Law of Treaties are norms “accepted and rec-ognized by the international community of states as a whole as a norm fromwhich no derogation is permitted and which can be modified only by a subse-quent norm of general international law having the same character.” It must benoted that ius cogens under international law is not the opposite of ius dispos-itivum and thus can be changed; however, such peremptory norms can only bechanged or reversed by their legislator, which is the international communityof states as a whole. This would exclude their change or reversal by a Committeeof Fifteen.31

It has been contended that IHL as a whole or at least most of it amountsto ius cogens.32 So the International Criminal Tribunal for the former Yugoslavia(ICTY) held in its judgment in the Kupres

�kic case that “most norms of inter-

national humanitarian law, in particular those prohibiting war crimes, crimes

30 But see Dorosin, supra note 7, at 119: “As a Chapter VII resolution, Resolution1483 [concerning the restoration of Iraq] provided authorities that supervene any incon-sistent limitations that may be contained in other bodies of international law, includingoccupation law.” See also Ratner, supra note 11, at 710.

31 See ICJ, Case Concerning Application of the Convention on the Preventionand Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia),Provisional Measures, Order of Sept. 13, 1993, Separate Opinion of Judge Lauterpacht,1993 ICJ 325, 440–41, paras. 100–102.

32 For example, Sassoli, supra note 11, at 681, considers in general that “IHLobligations, however, fall under ius cogens.” But see David J. Scheffer, supra note 8, at843: “Indeed, it would be mistaken to regard the totality of occupation law as reflect-ing ius cogens or erga omnes obligations in the context of such authorized military inter-ventions and occupations.” See also id. at 852.


against humanity and genocide, are also peremptory norms of international lawor ius cogens, i.e. of a non-derogable and overriding character.”33 While thisgeneralization seems difficult to reach (given the very different levels of accept-ance of individual parts of IHL (e.g., AP I and II), in its advisory opinion onthe Palestine Wall the ICJ has at least regarded the law of occupation to be iuscogens by applying the rules on state responsibility for serious breaches ofperemptory norms in international law to Israeli violations of the IHL of mil-itary occupation.34

Here the arguments on the key issue of PSOs—transformation and nation-building—seem to end up in a circle: IHL on occupation does not allow trans-formation; hence the Security Council must authorize it, but it is limited indoing so, inter alia, by peremptory norms of IHL—and the law of occupationhas just been so confirmed.

One has to ask, however, whether the generalizations as to the peremptorynature of (all or most of) IHL of military occupation are well founded in thisrespect. There is no doubt that the ultimate purpose of restoring and ensuringla vie publique, must be considered ius cogens.35 It can, however, be questionedwhether the principle of preservation is an essential part of this purpose (andonly then it would necessarily share its ius cogens character!), or whether it ismerely one way of achieving this goal. We have shown above that this princi-ple of preservation is the result of IHL’s blindness to the ius ad bellum, or—more precisely in the case of occupation—to the legal quality and justificationof occupation. However, it has been made clear under the four 1949 GenevaConventions that the goal of the principle of preservation is limited to the human-itarian function, to safeguard human beings, but not to protect the political insti-tutions and government of the state as such.36

Thus, the preservation principle cannot be regarded as ius cogens in itsown right and cannot be regarded as ius cogens as an auxiliary instrument forthe humanitarian purpose, as long as the humanitarian guarantees of IHL remainintact during a process of transformation. Those limits, however, remain, and—adopting Lauterpacht’s position quoted above—cannot be overridden or “carvedout”37 by the Security Council.

33 ICTY, Trial Chamber II, Case No. IT-95-16-T, Prosecutor v. Zoran Kupres�kic

et al., Judgment of Jan. 14, 2000, para. 520.34 See ICJ, Legal Consequences of the Construction of a Wall in the Occupied

Palestinian Territory, Advisory Opinion of July 9, 2004, para. 159.35 Also, fundamental principles requiring provision of humanitarian relief and

protection of the civilian population’s basic human rights would require adherence byany occupying power under any circumstance. See, e.g., Scheffer, supra note 8, at 852.

36 See JEAN PICTET ED., THE GENEVA CONVENTIONS OF 12 AUGUST 1949: COMMEN-

TARY, (IV) GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME

OF WAR 274 (1958).37 Lavoyer, supra note 7, at 123.


F. CONCLUSIONS

It is submitted that IHL of military occupation is applicable in any situa-tion that, as a matter of fact, comes under the IHL definition of occupation.Under these circumstances a PSO force is in the position of an occupying powerand under the obligation to restore and ensure public order and safety and gen-erally la vie publique. Additional legislation to enable the occupying power tofulfill its obligations, to maintain an orderly government of the occupied terri-tory and to ensure the security of the occupying forces is already permissibleunder classic IHL. Any transformation—by legislation or otherwise—beyondthese standards must be authorized by the Security Council acting under itsresponsibility for the maintenance of peace and security and is limited by theobjects and purpose of the UN Charter and by peremptory norms of interna-tional law (ius cogens). The principle of preservation as such is not a limit inthe latter sense.

33

CHAPTER 3

THE PROSECUTION OF CRIMINALS AS A PEACE-BUILDING TOOL:

COOPERATION WITH THE ICC AND THE CASE OF THE LRA IN NORTHERN UGANDA

Emmanuel Kasimbazi*

A. INTRODUCTION

The International Criminal Court (ICC) was established in 2002 as a per-manent tribunal to prosecute individuals for genocide, crimes against human-ity, war crimes and the crime of aggression, although it cannot currently exerciseits jurisdiction over the crime of aggression. The Court can only prosecutecrimes committed on or after July 1, 2002, the date its founding treaty, the RomeStatute of the International Criminal Court, entered into force.

The ICC can generally only exercise jurisdiction in cases where the accusedis a national of a state party, the alleged crime took place on the territory of astate party or a situation is referred to the Court by the UN Security Council(SC). The ICC is designed to complement existing national judicial systems: itcan only exercise its jurisdiction when national courts are unwilling or unableto investigate or prosecute such crimes. Primary responsibility to exercise juris-diction over alleged criminals is therefore left to individual states. To someextent therefore this court can be used as a peace-building tool in conflict areas.

The aim of this chapter is to examine the role of the ICC in building peacein northern Uganda. The major issue that it intends to explore is the kind ofpeace that the prosecution of Lord’s Resistance Army (LRA) rebels by the ICCcan achieve. The chapter seeks to answer this question by placing the ICC inthe context of peace-building operations in northern Uganda.

After a brief introduction, the second part will make an overview of theICC, the third will provide the background to the LRA conflict and the fourthwill analyze jurisdictional mandate and required conditions for the ICC to pros-ecute LRA rebels under the ICC Statute. The fifth section will review the crimes

* Senior Lecturer Faculty of Law Makerere University, and Managing Partner,Kasimbazi and Company Advocates, Kampala Uganda.


allegedly committed by the LRA suspects under the ICC Statute, while the sixthsection will discuss the prospects of the ICC prosecution of the LRA rebelstowards the peace-building process in northern Uganda. The seventh sectionwill illustrate the challenges to the use of the ICC as a peace-building tool innorthern Uganda and the eight and final section will make concluding remarksand show the way forward.

B. OVERVIEW OF INTERNATIONAL CRIMINAL COURT

In 1948, following to the establishment of the Nuremberg and TokyoTribunals after the World War II, the UN General Assembly first recognizedthe need for a permanent international court to deal with the kind of atrocitiesthat had taken place during the war, which ended in 1945.1 The then PrimeMinister A.N.R. Robinson of Trinidad and Tobago revived the idea during the44th session of the General Assembly in 1989, proposing the creation of a per-manent international court to deal with the international drug trade.2 Whilework began on a draft statute, the international community created several adhoc tribunals to try war crimes in the former Yugoslavia (International CriminalTribunal for the former Yugoslavia, ICTY, in 1993) and Rwanda (InternationalCriminal Tribunal for Rwanda, ICTR, in 1994), which further highlighted theneed for a permanent ICC.3

The ICTY4 and the ICTR5 were established as tools of resolving conflicts.They were expected to contribute to making, keeping or building peace in law-broken societies by implementing international legal standards.6 Indeed, theyare the historic experiment of peace operation through law-enforcement insti-tution. They derive from the belief that international justice contributes to inter-national peace and that domestic justice facilitates domestic peace.7 Along thesame line, the ICC was established to function in the context of post-conflictdisrupted societies.8 It works not exclusively for peace-building purposes; butit certainly emulates the function that the ICTY and the ICTR are fulfilling.9

1 http://www.un.org/News/facts/iccfact.htm. 2 Gary T. Dempsey,. Reasonable Doubt: The Case Against the Proposed

International Criminal Court (1998), The Cato Institute, available at http://en.wikipedia.org/wiki/International_Criminal_Court#_note-Cato (last visited Feb. 1, 2007).

3 Coalition for the International Criminal Court, History of the ICC, availableat http://www.iccnow.org/?mod=icchistory (last visited Feb. 1, 2007).

4 Id.5 Id.6 Id.7 Id.8 Id.9 Id.

Prosecuting Criminals as Peace-Building Tool 35

The ICC was established in 2002 as a permanent tribunal to prosecuteindividuals for genocide, crimes against humanity, war crimes and the crimeof aggression, although it cannot currently exercise its jurisdiction over thecrime of aggression.10 It can only prosecute crimes committed on or after July1, 2002, the date its Statute entered into force,11 and it can only exercise juris-diction in cases where the accused is a national of a state party,12 the allegedcrime took place on the territory of a state party13 or a situation is referred tothe Court by the Security Council.14 The ICC is designed to complement exist-ing national judicial systems, and it can only exercise jurisdiction when nationalcourts are unwilling or unable to investigate or prosecute such crimes.15 Primaryresponsibility to exercise jurisdiction over alleged criminals is therefore leftto individual states.16 The official seat of the ICC is in the Hague, Netherlands,17

but its proceedings may take place anywhere.18 The ICC is separate from, andshould not be confused with, the International Court of Justice (often referredto as the “World Court” or ICJ), which is the UN organ that settles disputesbetween nations.

C. THE LORD’S RESISTANCE ARMY CONFLICT

Since independence, Uganda has suffered from continuing cycles of civiland armed conflicts that have generated millions of internally displaced persons(IDPs).19 While the conflict of the LRA was rooted in a rebellion against PresidentYoweri Museveni’s National Resistance Movement (NRM) government, it isimportant to consider the background to the conflict in northern Uganda.20

It has been argued over time that there are tribal differences between north-ern and southern Uganda.21 During colonial times and until recent years, whilethe “northerners” were recruited in great numbers into the armed forces, the

10 http://en.wikipedia.org/wiki/International_Criminal_Court#_note-0.11 Rome Statute of the International Criminal Court (Rome Statute), Article 24(1)

provides that no person shall be criminally liable under the Statute for conduct prior tothe entry into force of the Statute. The Statute entered into force on July 1, 2002.

12 Rome Statute art. 12(1).13 Rome Statute art.12(2).14 Rome Statute art. 13(b).15 Rome Statute art.17(1).16 Rome Statute art. 25.17 Rome Statute art. 3(1).18 Rome Statute art. 3(3).19 REFUGEE LAW PROJECT; ONLY PEACE CAN RESTORE THE CONFIDENCE OF THE DIS-

PLACED, at 11 (2d ed. 2006).20 Id.21 HUMAN RIGHTS WATCH, THE SCARS OF DEATH: CHILDREN ABDUCTED BY THE LORDS

RESISTANCE ARMY IN UGANDA, at 9 (1997).


“southerners” were recruited into the civil services positions. Thus, abhorrencebetween the two parties led to a two-level class: a southern class of more “devel-oped” and educated people versus the northern people, particularly the Acholiof Gulu and Kitgum.22 Between 1962 and 1979, Uganda was ruled by two “north-erners”: Milton Obote and Idi Amin Dada. In 1979, Amin was ousted by a coali-tion of forces led by Tanzania (who were pro-Obote and Yoweri Museveni). TheUganda National Liberation Front restored a somewhat southern-led govern-ment with Yusuf Lule, who was later replaced by Godfrey Binaisa. For a fewmonths, Paulo Muwanga, the chair of a military commission, ruled Uganda.The 1980 multiparty elections had Obote as president. Because all of the post-Amin rulers came from the south, Obote’s appearance from the north as a rulerand the restoration of the Langi and Acholi soldiers seem to have been the mainreasons for the increase in differences between northerners and southerners.23

In addition, doubts surrounding the freedom and fairness of the elections ignitedthe conflict.24

In 1981, the National Resistance Army (NRA), a guerilla army of mainlysoutherners started an armed rebellion against Obote. An internal military coupled mainly by the Acholi brought Tito Okello to power as president replacingObote on July 27, 1985.25 The fighting continued on a large scale between thenorthern military group led by Okello and the southern military group led byMuseveni’s NRA and Kayiira’s NFM. The NRA did not respect the 1985 Nairobiceasefire agreement and, after continued fighting, was able to assume poweron January 26, 1986. Okello’s military group retreated to the north and someof them scattered to the districts of Gulu and Kitgum and others crossed intosouthern Sudan.26

Apart from the above-stated factors, it can be argued that the LRA emergedfrom the fear of the Acholi people of the NRA’s possible revenge for their treat-ment under previous regimes. This sparked a military resistance of the UgandaPeople’s Democratic Army (UPDA), which was later called the Holy SpiritMobile Force (HSMF). The latter was led by Voodoo priestess/prophetess AliceLakwena (Lakwena is “messenger” in the Acholi language) and was comprisedof mainly northerners of Acholi origin.27 The HSMF started the policy of vio-

22 Id. 23 Mohammad M. El Zeidy, The Ugandan Government Triggers the First Test of

the Complementarily Principle. An Assessment of the First State’s Party Referral, 5 INT’L

CRIM. L. REV. 85, 83–119 (2005) 24 Id.25 J.D. FAGE, A HISTORY OF AFRICA, at 518 (3d ed. 1995).26 Id., 22.27 One commentator has mentioned: Lakwena appeared in Acholi because of the plan by Yoweri Museveni and hisgovernment to kill all the male youths in Acholi as a revenge for what hap-pened many years back. So the Lakwena was sent to save the male youth fromthat malicious plan. The good Lord who had sent Lakwena decided to change


lence and attack against both the civilian and NRA soldiers. However, inNovember 1987, Lakwena’s forces were defeated in Jinja 60 miles outside ofKampala, and she escaped with some of her fighters to Kenya. The HSMF hadtried to attack Kampala with sticks, stones and voodoo toys. She had initiallypromised her followers that stones thrown at the enemy would explode likegrenades and bullets.

The remaining HSMF survivors rallied to form a new rebel army, the Lord’sResistance Army with Joseph Kony as leader. Kony, a cousin of Lakwena, allegedthat he inherited Lakwena’s “spiritual powers”28 and believed in a system basedon the Biblical Ten Commandments.29 In targeting the civilian population, theLRA believed that they were following the Holy Spirits’ orders and thus theiratrocities towards the Acholi were meant to eliminate the wrongdoers from theAcholi community and collaborators to the NRM government.

It can be concluded that the LRA has committed atrocities on a systematicmassive scale. These include: abduction, torture, rape, slavery, detention andforced recruitment.

Given the above atrocities, in December 2003, the Ugandan president askedthe prosecutor of the ICC to look into the conflict in northern Uganda.30 As aresult, on July 29, 2004, the prosecutor announced that there was a reasonablebasis for him to carry out an investigation.31

his work from that of a doctor to that of a military commander for one simplereason. It is useless to cure a man today only that he be killed the next day. Soit became an obligation his part to stop the bloodshed before continuing hiswork as a doctor.

Quoted from Heike Behrend, Is Alice Lakwena a Witch?, in HOLGER

HAUSEN & MICHAEL TWADDLE EDS., CHANGING UGANDA: THE DILEMMAS OF STRUC-

TURAL ADJUSTMENT AND REVOLUTIONARY CHANGE, at 165 (1991).28 Report of the United Nations High Commissioner for Human Rights on the

Mission undertaken by her Office, pursuant to commission resolution 2000/60, to assessthe situation on the ground with regard to the abduction of children from NorthernUganda, UN Doc. E/CN.4/2002/86, paras. 12–13.

29 Kasaija Phillip Apuuli, The International Criminal Court (ICC) and the Lord’sResistance Army (LRA) Insurgency in Northern Uganda, 15 CRIM. L.F. 391, 392–94(2004).

30 Statement by Luis Moreno-Ocampo, Prosecutor of the International CriminalCourt, the Hague Oct. 14, 2005.

31 Id.


D. CONDITIONS FOR THE ICC TO PROSECUTE LRA REBELS

1. Jurisdiction

The Rome Statute provides that the ICC has jurisdiction over four mainclasses of offenses: genocide, crimes against humanity, war crimes and the crimeof aggression.32 The Statute defines genocide to mean any acts committed withintent to destroy, in whole or in part, a national, ethical, racial or religious group.These include: killing members of the group, causing serious bodily harm ormental harm to the members of the group; deliberately inflicting on the groupconditions of life calculated to bring about its physical destruction, in whole orin part, and forcibly transferring children of the group to another.33

The second class is crimes against humanity, which are defined to meanacts that are committed as part of a widespread or systematic attack directedagainst any civilian population. These include: murder, extermination, enslave-ment, deportation or forcible transfer of population, imprisonment or othersevere deprivation of physical liberty in violation of fundamental rules of inter-national law, torture, sexual offenses such as rape, sexual slavery, enforced pros-titution, enforced pregnancy or enforced sterilization or any other form of sexualviolence of comparable gravity; persecution against any identifiable group,enforceable disappearance of persons, crime of apartheid or other inhumaneacts of similar character intentionally causing great suffering or serious injuryto body or mental physical health.34

The third class are war crimes, defined to cover crimes committed as partof a plan or policy or a part of a large-scale commission of such crimes, andthey include grave breaches of the Geneva Conventions of 1949.35 The crimesinclude: willful killing; torture or inhuman treatment, including biological exper-iments; willfully causing great suffering and appropriation of property not jus-tified by military necessity and carried out unlawfully and wantonly; compellingprisoners of war or other protected person to serve in the forces of hostile power;willfully depriving a prisoner of war or other protected persons of the rights offair and regular trial; unlawful deportation or transfer or unlawful confinement;and taking hostages.36 Other violations refer to attacks against civilians or non-military objects.37

The ICC has a mandate to try individuals rather than states and hold themaccountable for the above-mentioned offenses.38 Therefore, the ICC has the

32 Rome Statute art. 5(1).33 Rome Statute art. 6.34 Rome Statute art. 7.35 See Geneva Conventions of Aug. 12, 1949.36 Rome Statute art. 8.37 Rome Statute art. 8(b).38 Rome Statute art. 25.


mandate to try LRA rebels for the offenses committed in northern Uganda.However, it has no jurisdiction to try offenses committed before July 1, 2002.39

The Statute under Article 24 recognizes the principle of non-retroactivity rationepersonae, which recognizes that no person shall be criminally responsible underthe Statute for conduct prior to the entry into force of the Statute. Thus, LRArebels cannot be tried for crimes committed before July 1, 2002. An interest-ing question is whether ordinary citizens who may have suffered for acts com-mitted prior to this date will appreciate the prosecution of the LRA by the ICCas a tool for peace building in the region.

2. Other Conditions Under the ICC Statute

The ICC has to comply with specific conditions in order to prosecute LRArebels. In particular, there are safeguards to prevent frivolous or politically moti-vated prosecutions from taking place, with ample, repetitive opportunities forchallenges The issue is whether these were complied with when issuing thearrest warrants against LRA rebels.

First of all, the state has to ratify the Statute, thereby agreeing to acceptthe jurisdiction of the ICC over the crimes listed in the Statute.40 The ICC maythus exercise its jurisdiction in situations that meet the following conditions:one or more of the parties involved is a state party; the accused is a national ofa state party;41 the crime is committed on the territory of a state party;42 or astate not party to the Statute may decide to accept the Court’s jurisdiction overa specific crime that has been committed within its territory or by its national.43

It is important to note that these conditions do not apply when the SecurityCouncil, acting under Chapter VII of the UN Charter, refers a situation to theprosecutor.44

There are three methods by which a case may reach the ICC: First, a stateparty may refer a “situation” to the prosecutor in which one or more crimeswithin the jurisdiction of the ICC appear to have been committed, requestingthe prosecutor to investigate the situation for the purpose of determining whetherone or more specific person should be charged with the commission of suchcrimes.45 Second, the Security Council may refer a “situation” to the prosecu-tor acting under Chapter VII of the UN Charter.46 Lastly, the prosecutor may

39 This is the date when the Statute came into force.40 Rome Statute art. 12.41 Id.42 Id.43 Id.44 This chapter refers to actions with respect to threats to the peace, breaches of

the peace and acts of aggression.45 Rome Statute arts. 13 (a) and 14(1). 46 Rome Statute art. 13(b).


initiate an investigation proprio motu on the basis of information on crimeswithin the jurisdiction of the court.47

Since Uganda ratified the ICC treaty on June 14, 2002, the referral of LRAcases to the ICC is in compliance with the above-mentioned first method ofinitiating a case. Through its referral, the Ugandan government commits itselfto cooperate with the ICC to investigate crimes, provide evidence, arrest andsurrender persons sought by the court, and protect witnesses and victims.However, such cooperation must extend to investigations by the prosecutor intoUgandan People’s Defense Force (UPDF) crimes. This may be a challenge inbringing about peace because the Ugandan government may not be interestedin this. Crimes under the ICC Statute are not restricted to the LRA but alsocover crimes committed by governmental forces. The failure of the Ugandangovernment to cooperate with respect to UPDF crimes may not bring a whole-some peace-building process by the ICC.

E. ALLEGED CRIMES COMMITTED BY THE LRA

On October 13, 2005, Pre-Trial Chamber II unsealed the warrants of arrestfor five senior leaders of the LRA for crimes against humanity and war crimescommitted in Uganda since July 2002.48 It concluded that “there are reason-able grounds to believe” that Joseph Kony, Vincent Otti, Okot Odhiambo,Dominic Ongwen and Raska Lukwiya, “ordered the commission of crimeswithin the jurisdiction of the Court.”

The arrest warrants were issued under seal by Pre-Trial Chamber II on July8, 2005, to “ensure the safety or physical or psychological well-being of andto prevent the disclosure of the identity or whereabouts of any victims, poten-tial witnesses and their families.” The Chamber also issued requests for arrestand surrender of the five LRA commanders named in the warrants and decidedthat they would be transmitted by the ICC’s registrar to the government ofUganda. Pre-Trial Chamber II decided on October 13, 2005, to unseal the arrestwarrants, noting that:

the overall plan in respect of the situation in Uganda for the securityof witnesses and victims in the field has been completed and imple-mented; and that by the assessment and advice of the Prosecutor andthe Victims and Witness Unit, the overall plan provides the necessaryand adequate protective measures for all concerned at this stage.

47 Rome Statute arts. 13(c) and 15.48 International Criminal Court; Press Release, Warrant of Arrest unsealed against

f ive LRA commanders, the Hague, Oct. 14, 2005, available at http://www.icc-cpi.int/press/pressreleases/114.html.


According to the warrants of arrest, the LRA is an armed group that:

has established a pattern of brutalization of civilians by acts includingmurder, abduction, sexual enslavement, mutilation, as well as massburnings of houses and looting of camp settlements; that abductedcivilians, including children, are said to have been forcibly recruitedas fighters, porters and sex slaves and to take part in attacks againstthe Ugandan army (UPDF) and civilian communities.

The allegations are that in mid-2002 Joseph Kony ordered LRA forces to begina campaign of attacks against civilians in Uganda and that during the last quar-ter of 2003, he issued orders to kill, loot and abduct civilian populations, includ-ing those living in camps for internally displaced persons (IDPs). In response,senior LRA commanders and all of the brigade commanders, including the per-sons named in the warrants of arrest, began attacking several regions. The directinvolvement of the persons whose arrest and surrender are sought in the objec-tives and strategies of the campaign is supported by evidence submitted by theprosecutor.

The arrest warrant for Kony lists 33 counts including: 12 counts of crimesagainst humanity; murder,49 enslavement,50 sexual enslavement,51 rape,52 inhu-mane acts of inflicting serious bodily injury and suffering;53 and one count ofwar crimes including murder,54 cruel treatment of civilians,55 intentionally direct-ing an attack against a civilian population,56 pillaging,57 inducing rape58 andforced enlisting of children.59

The arrest warrant for Otti lists 32 counts for individual criminal responsbil-ity60 including: 11 counts of crimes against humanity (murder,61 sexual enslave-ment62 and inhumane acts of inflicting serious bodily injury and suffering63);and 21 counts of war crimes (inducing rape,64 intentionally directing an attack

49 Rome Statute art. 7(1)(a).50 Rome Statute art. 7(1)(c). 51 Rome Statute art. 7(1)(g).52 Id.53 Rome Statute art. 7(1)(k).54 Rome Statute art. 8(2)(c)(i). 55 Id.56 Rome Statute art. 8(2)(e)(i). 57 Rome Statute art. 8(2)(e)(v).58 Rome Statute art. 8(2)(e)(vi). 59 Rome Statute art. 8(2)(e)(vii).60 Rome Statute art. 25(3)(b).61 Rome Statute art. 7(1)(a).62 Rome Statute art. 7(1)(g).63 Rome Statute art. 7(1)(k).64 Rome Statute art. 8(2)(e)(vi).


against a civilian population,65 forced enlisting of children,66 cruel treatmentof civilians,67 pillaging68 and murder69).

The arrest warrant for Odhiambo lists ten counts on the basis of his indi-vidual criminal responsibility70 including: two counts of crimes against human-ity (murder71 and enslavement72) and eight counts of war crimes (murder,73

intentionally directing an attack against a civilian population,74 pillaging75 andforced enlisting of children76).

The warrant of arrest for Ongwen lists seven counts on the basis of his indi-vidual criminal responsibility77 including: three of crimes against humanity(murder,78 enslavement79 and inhumane acts of inflicting serious bodily injuryand suffering80) and four counts of war crimes (murder,81 cruel treatment ofcivilians,82 intentionally directing an attack against a civilian population83 andpillaging84).

The arrest warrant of Lukwiya lists four counts on the basis of his indi-vidual criminal responsibility85 including: one count of crimes against human-ity (enslavement86) and three counts of war crimes (cruel treatment of civilians,87

intentionally directing an attack against a civilian population88 and pillaging89).

65 Rome Statute art. 8(2)(e)(i).66 Rome Statute art. 8(2)(e)(vii).67 Rome Statute art. 8(2)(c)(i).68 Rome Statute art. 8(2)(e)(v).69 Rome Statute art. 8(2)(c)(i).70 Rome Statute art. 25 (3)(b).71 Rome Statute art. 7(1)(a).72 Rome Statute art. 7(1)(c).73 Rome Statute art. 8(2)(c)(i).74 Rome Statute art. 8(2)(e)(i). 75 Rome Statute art. 8(2)(e)(v).76 Rome Statute art. 8(2)(e)(vii).77 Rome Statute art. 25(3)(b). 78 Rome Statute art. 7(1)(a).79 Rome Statute art. 7(1)(c).80 Rome Statute art. 7(1)(k).81 Rome Statute art. 8(2)(c)(i).82 Id.83 Rome Statute art. 8(2)(e)(i).84 Rome Statute art. 8(2)(e)(v).85 Rome Statute art. 25(3)(b).86 Rome Statute art. 7(1)(c).87 Rome Statute art. 8(2)(c)(i). 88 Rome Statute art. 8(2)(e)(i).89 Rome Statute art. 8(2)(e)(v).


F. PROSPECTS OF THE LRA PROSECUTION BY THE ICC TOWARDSTHE PEACE-BUILDING PROCESS IN NORTHERN UGANDA

One of the arguments to support the use of the ICC is that it can act as adeterrent to potential war criminals. In fact, this idea is one of the main argu-ments behind a push to construct a permanent international war crimes tribu-nal. The prosecution of LRA rebels can send signals to other potential criminalswho may wish to destabilize peace in the northern and other regions.

The second argument is that prosecution through the ICC gives victimsand their families an opportunity to regain a sense of power that may have beenlost resulting from crimes. It empowers victims to stand up in a court of lawand identify those who did wrong to them. The ICC can also enforce forgottenor hidden atrocities to be retold by survivors. In this way, LRA criminals liv-ing free of judgment would be forced to accept responsibility for their actionsand be judged for what they have done.

Thirdly, after the issuing of the arrest warrants, LRA rebels became will-ing to negotiate with the Ugandan government, and military attacks on civil-ians were significantly reduced, which makes the ICC prosecution an indirectcontributor to peace building in northern Uganda.

Fourthly, charges by the ICC turn a suspect into an international pariah orfugitive and induce other states to offer their assistance in capturing the sus-pect. It is likely that other countries, regardless of whether they are states par-ties to the ICC, would be willing to help apprehend those indicted. For thatreason, it can be argued that Sudan’s90 willingness to cooperate in efforts tobattle the LRA is a contributing factor to the charges laid against the LRA rebelsby the ICC.

The fifth argument is that under the ICC Statute, the Court may proceedto hold a complete and public indictment hearing to collect and assess evidenceand testimony regarding the charges against the LRA in case reasonable stepshave been taken with no success to secure their presence before the Court.91

This creates an extensive, public judicial record preserving evidence of the sus-pect’s actions and the circumstances in which they occurred. Such a recordmakes it easier and more compelling for Uganda to arrest the suspect. It alsohelps to meet the needs of victims and survivors to tell their stories and to knowthat the world is listening, which may be a ground for peace building.

The sixth argument is based on the non-application of the doctrine of lim-itation. Under Article 26 of the ICC Statute, it is provided that the crimes listed

90 Sudan is not yet a party to the ICC Statute.91 Article 61 states that the Court may, upon request of the prosecutor or on its

own motion, hold a hearing in the absence of the person charged to confirm the chargeson which the prosecutor intends to seek trial when a person cannot be found, and allreasonable steps have been taken to secure his or her appearance before the Court andto inform the person of charges and that a hearing to confirm those charges will be held.


in the Statute are not subject to any statute of limitation. This means that statutesof limitation cannot be used as a ground to refuse the arrest and surrender ofthe person at the request of the ICC. Nor should they apply to the prosecutionof the ICC crimes at the national level. The strength of this provision is thateven if the LRA suspects are not arrested now, the ICC can still prosecute themeven after several years, which provides future prospects for peace-building innorthern Uganda.

The seventh argument is that the United Nations,92 the InternationalCommittee of the Red Cross93 and others maintain that granting amnesty tothose accused of war crimes and other serious crimes is a violation of interna-tional law. Therefore, the existence of the Amnesty Act in Uganda may not nec-essarily bar the intervention of the ICC. Moreover, Article 16 of the RomeStatute only allows the Security Council to prevent the Court from investigat-ing or prosecuting a case, and Article 53 allows the prosecutor to use his or herdiscretion not to initiate an investigation if he or she believes that “an investi-gation would not serve the interests of justice” These provisions indicate thatthe Ugandan government cannot withdraw charges against the Kony rebels,thereby strengthening the role of the ICC in the peace building process in north-ern Uganda. Further, the provision giving discretion to the prosecutor to initi-ate an investigation may allow the Court some leeway to respect nationalreconciliation processes if it is realized that the intervention is likely to blockthe peace-building process.

Lastly, it can also be argued that as a court of last resort, the ICC can pro-ceed with an investigation and prosecution when a state is unable or unwillingto do so, thereby implementing the principle of complementarity. This is elab-orated in Article 17 of the Statute, which provides that a case is only admissi-ble if the state is unwilling or unable to carry out the investigation or prosecution.Uganda’s government’s referral of the situation to the ICC suggests that itsnational judicial system is either unwilling or unable to pursue this case. Also,because Uganda’s national criminal laws are not in accordance with the ICCStatute’s definitions of international crimes, its courts might not be able to tryindividuals accused of international crimes. Furthermore, Uganda is deeplydivided between its southern and northern regions and by the conflict itself.Thus, it is unlikely that any investigation and subsequent prosecution of theLRA leadership or of government or military personnel by the national judi-cial system would be viewed throughout the whole country as impartial.Therefore, the intervention of the ICC can be seen as the only realistic optionto the peace process.

92 Kofi Annan, Report of the Secretary-General on the establishment of a SpecialCourt for Sierra Leone, para. 22. (Oct. 2000), available at http://www.afrol.com/Countries/Sierra_Leone/documents/un_sil_court_041000.htm.

93 1 JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, CUSTOMARY INTERNA-

TIONAL HUMANITARIAN LAW 613–14 (2005).


G. CHALLENGES OF THE ICC AS A PEACE-BUILDING TOOL INNORTHERN UGANDA

As observed above, the intervention of the ICC in northern Uganda is nec-essary due to the inability of its national courts to prosecute LRA rebels.However, this intervention faces a number of challenges that may hinder thesuccessful prosecution of LRA rebels and the peace-building process in thecountry. This section reviews these challenges.

The first challenge is the arrest of LRA leaders. Until now none of the LRAsuspects have been arrested. Although Sudan has an incentive to hand overKony and his co-accused, it also has to face internal conflicts and may not bein position to effect their arrest.

Secondly, Uganda has an Amnesty Act94 which grants amnesty and reset-tlement packages to rebels who disarm and denounce the rebellion.95 The inter-vention of the ICC may complicate the negotiation of an end to the conflictbecause while the Amnesty Act seeks to forgive, the aim of the ICC is to pros-ecute, meaning that there is a contradictory approach to the peace-buildingprocess. This worry is supported by the fact that following a number of attacksperpetrated against aid vehicles in the region, there was widespread specula-tion that these were a direct response of the LRA to the issued warrants. Assaid by a faith leader in Gulu, “You have gone to the beehive and disturbed thebees and the bees are wild.”96 Likewise a human rights worker noted:

Things have drastically changed with the issuance of arrest warrantsfrom the ICC. There was a ray of hope with Betty Bigombe. Now theprospects for peace are really bleak. I don’t see the LRA surrenderingor turning down [their] guns. I don’t see government [beating] them.The LRA has been ripped of all its leverage to negotiate. The only wayto make headlines is to inflict pain. The only way to send out a mes-sage is by killing people. It will give the government a more legitimatereason to go in for combat.97

94 Amnesty Act Cap 269 of the Laws of Uganda.95 Uganda’s Amnesty Act was passed in 2000 and is extended to all Ugandans,

irrespective of age, who have been involved in insurgency through actually participat-ing in combat; collaborating with insurgents; committing other crimes to support insur-gency; or in any other way assisting others involved in insurgency (Section 3, AmnestyAct). The Amnesty Commission is the body established by parliament to oversee theamnesty, and is the lead agency in the implementation of the Amnesty Act.

96 Interview with faith leader, Gulu, Oct. 27, 2005, by Refugee Law Project.97 Interview with human rights worker, Kampala, Oct. 12, 2005, by Refugee Law

Project.


Thirdly, the ICC’s intervention does not alleviate the underlying causes ofthe conflict. The war in northern Uganda is rooted in tribal differences, so thatthe only solution would be to devise a means to estimate how such differencescan be cleared. Those accused of crimes belong to one ethnic group. To thisgroup, the prosecutions by the ICC can appear as a trial against their ethnicity,especially if such intervention was invited by a southerner leader. Consequently,the supposed end of the armed conflict may end tribal differences, and the ICC,to that end, will be ineffective in transforming a fractured society into one ofstability and peace.

Further, there are arguments98 holding that the primary purpose of the ICCis not to resolve conflict but to investigate, try and punish the perpetrators ofthe most heinous crimes against humanity, war crimes and acts of genocide.The Court is obligated to try those guilty of committing these crimes regard-less of which side of the conflict they are on. The referral of the situation innorthern Uganda gives the prosecutor an opportunity to investigate, try andpunish any perpetrators of crimes that fall within the Court’s jurisdiction.However, what has to be given priority in northern Uganda is peace rather thanthe punishment of the perpetrators. The neglect of conflict resolution as a fun-damental role for the ICC in the region may enable it to realize its objective ofprosecution but with no peace to the population.

The ICC is going to offer only victors’ justice. The UPDF has also partic-ipated in the commission of crimes equivalent to the ones charged against LRArebels, in particular rape. Museveni’s request only concerns the LRA, but theprosecutor’s investigative powers extend to crimes committed by any party inUganda. The prosecutor should make it clear that while he welcomes govern-ments’ cooperation, his office operates independently. The UPDF officers can-not be immunized from prosecution. The ICC therefore has to also prosecuteUPDF officers who participated in such crimes. While it is easy and satisfyingto put the enemy in prison for what he or she has done, it does not seem entirelyfair if all those who participate in a war are not held to the same standards.

It may also be argued that the ICC may not encourage reconciliation. Forexample the Padel local council district chairperson level 5 and the member ofParliament of Lira municipality have argued that: “parties at the peace talkshad agreed to reconcile but when the ICC issued the warrant of arrest, the talksstalled, they further stated that justice is when society reconciles with crimi-nals that arresting the rebels may create more death”99 One can also argue thatsince the ICC prosecutor will only pursue the most senior of those responsiblefor these atrocities, regular combatants on both sides will have no disincentive

98 James A. Goldston & Chidi Anselm Odinkalu, A Crucial Case for theInternational Criminal Court Justice for Uganda, Feb. 27, 2004, at http://www.soros.org/resources/articles_publications/articles/goldston _20040227.

99 Carol Natukunda, German Minister defends ICC, NEW VISION FRIDAY, Feb. 9,2007, at 5.


to help the Court and to work for peace. The ICC was not designed to prose-cute low-level offenders who may have been abducted and indoctrinated intothe LRA organizations. It also has no authority to prosecute offenders underthe age of 18, who account for100 a large number of LRA rebels and some UPDFforces. The prosecution of only the top five rebel commanders will leave a bignumbers of LRA rebels free, with implications for wider aspects of peace build-ing in northern Uganda.

The other challenge is that the Court’s jurisdiction does not apply retroac-tively. The ICC can only prosecute crimes committed on or after July 1, 2002.Where a state becomes party to the Rome Statute after that date, the Court canexercise jurisdiction automatically with respect to crimes committed after theStatute enters into force for that state. This means that the ICC will not try LRArebels for offenses committed before 2002, thereby limiting the peace-build-ing process in the country.

One of the other crucial issues is whether the ICC should work with peace-makers in considering timing and actions. It should be recalled that the prose-cutor’s role is legal, not political. Though peacemakers in northern Uganda wereinitially stunned by the news that the ICC would take the case referred byPresident Museveni, many local leaders and non-governmental organizations(NGOs) met with Prosecutor Moreno-Ocampo during the investigations.However, this raises the question whether it is appropriate for the prosecutor,who is supposed to be independent, to meet peacemakers who are part of thepolitical process. This may compromise the role of the prosecutor, since he orshe may be viewed as a peacemaker as opposed to a prosecutor. This point sup-ports the premise that the prosecutor should not concern him/herself with polit-ical matters.

The other challenge is that the traditional Acholi culture regards reconcil-iation as a means of restoring social relations. In other words, justice in the tra-ditional Acholi culture should be considered as reconciliatory. They believe thatthe wounds of war will be healed if the Acholi practice their traditional guid-ing principles. This Acholi traditional culture encourages individuals to accepttheir mistakes and take responsibility for their actions. It is important to notethat an individual does this voluntarily. Individuals are encouraged to forgiveand not to seek revenge. One of the mechanisms for forgiveness and reconcil-iation among the Acholi is the Mato Oput (drinking the bitter herb). Mato Oputis both a process and ritual ceremony that aims at restoring relationships betweenclans that would have been affected by either an intentional murder or acci-dental killing. It helps to bring together the two conflicting parties with the aimof promoting forgiveness and restoration, rather than revenge. The Acholi observethe Mato Oput ceremony because they believe that after the ceremony, the heartsof the offender and the offended will be free from holding any grudge between

100 Rome Statute art. 26.


them. Therefore, the use of the ICC to prosecute rebels may not be acceptablebecause it is contrary to the Acholi traditional view of peace building.

Lastly, there is a challenge of reconciling peace talks and prosecution. Thereare some signs that the government of Uganda may need to withdraw ICCcharges in order to facilitate peace talks. This is a challenge because Ugandaas a party to the ICC cannot, as a matter of convenience, simply opt out of hold-ing accountable individuals accused of terrible crimes. Moreover it requires aSC resolution to defer prosecution of the LRA rebels.101

H. CONCLUSIONS

This chapter has examined the implications of prosecution by the ICC forpeace building in northern Uganda. It has been argued that to some extent theprosecution of LRA leaders by the ICC indicates a strong link to peace build-ing in northern Uganda. It should be observed that the intervention by the ICChas invisible but important implications for peace building. The idea of the ruleof law as a value to secure peace and justice is a key to constructing a stablesociety in war-ravaged areas. Of course, the ICC is one of the methods of the-rule-of-law approach toward peace, because it symbolizes a subtle nexus betweenpeace and justice using international criminal law standards.

However, there are several opposing views on the relationship betweenprosecution by the ICC and peace building. ICC prosecution alone cannot bringpeace in northern Uganda, because the conflict does not only raise issues ofinternational criminal law but also requires a consideration of other social issuessuch as ethnicity, cultural issues and the political history of the country.

Based on the above conclusions, the following recommendations can bemade as a way forward: first, there is need to increase the understanding of theICC’s role in northern Uganda. If the ICC is to operate effectively and make ameaningful contribution to justice, the people on whose behalf it claims to oper-ate need to understand it properly. The ICC has to date failed to deliver an effec-tive communications strategy in Uganda. As a result, many people affected bythe conflict wrongly believe that the ICC has its own agenda to arrest and cap-ture the rebels.

Second, there is a need to guarantee security and prevent further outbreaksof violence. Evidence from the past and recent communications from the LRAstrongly suggest that the issuing of indictments by the ICC may generate a vio-lent response from the LRA. The ICC needs to develop a clear strategy that willguarantee adequate security to victims and witnesses in a state of ongoing con-flict, where the perpetrators are still at large. The security of humanitarian aidworkers may also be put at risk, further adding to the suffering of the civilianpopulation.

101 Rome Statute art. 16.


Third, there is a need to support current peace efforts between LRA rebelsand the Ugandan government. The ICC process alone cannot bring peace. Onlya negotiated peace can end the violence. The people of northern Uganda des-perately want a peaceful solution to this conflict, to ensure the safe return of theirchildren who have been abducted and forced to fight. The current peace talks arethe best chance for peace in the country and hence need to be supported.

Fourth, there is need to understand reconciliation as a part of justice. Thisis because, according to most people in northern Uganda, justice only makessense when it involves reconciliation as part of a broader process of peace build-ing. The ICC needs to understand and take this into account in considering thetiming of its intervention and the way in which it seeks to work alongside estab-lished local justice and reconciliation processes that are part of Acholi society.

Lastly, there is a need to protect the reputation of the ICC. The ICC’s pros-ecution of LRA rebels represents a significant and welcomed move forward ininternational criminal law towards holding those responsible for the most ter-rible crimes accountable. Since Uganda is its first referral case, there is undoubt-edly pressure upon the ICC to perform. However, an intervention that destroysa peace process will damage the reputation of the ICC and may hamper itsattempts to investigate and prosecute crimes in the future.

PART II

LAW ENFORCEMENT WITHINTHE FRAMEWORK OF PSOs—

LIMITS AND POSSIBILITIES

53

CHAPTER 4

THE LIMITS ON LAW ENFORCEMENT BY PEACEKEEPING OPERATIONS IN ACCORDANCE

WITH SOFAs, ROEs AND SOPs

Ulf Häussler*

A. INTRODUCTION

International peacekeeping operations are key policy tools for conflict res-olution and peace settlement. Regardless of who is their initiator,1 most peacemissions possess considerable transitional authority. That is, they are entrustedwith authority, derived from an international mandate, over a state’s govern-mental institutions and/or its inhabitants, within part or all of their territory andfor a limited period of time. Transitional authority, however, is not unlimited.Limitations may be either inherent in the goal of the peace mission2 or derivedfrom general principles of international law—in particular humanitarian andhuman rights law—or introduced by the actors exercising, respectively, politi-cal direction and control, and military command and control.

The aim of this chapter is to illustrate the limits governing the exercise oftransitional authority by peacekeeping operations, with a particular focus onlaw enforcement, in accordance with Status of Forces Agreements (SOFAs),rules of engagement (ROE), and standing operating procedures (SOPs). First,it will discuss the sources and limits of transitional authority by tackling in par-ticular the limits set by SOFAs. It will further illustrate the limits set by ROE

* Legal Adviser, German Armed Forces.—The author was deployed to SFORin 2004 and to KFOR in 2006. The views expressed herein are exclusively my own anddo not necessarily reflect those of the German Ministry of Defense or NATO.

1 Peace missions have been launched by the United Nations or on their behalf,or on invitation by receiving state(s). Cf. Ulf Häussler, Ensuring and Enforcing HumanSecurity, at ch. 4.1.2 (2007).

2 Peace missions with transitional authority are established to support the (re)introduction of a stable constitutional democracy, characterized by good governancebased on human rights and the rule of law in the host state, that is, ultimately, in orderto maintain or restore international peace and security. Both the scope and the limits oftransitional authority must be so construed as to reflect this policy goal.


and SOPs and demonstrate that—and to what extent—they derive from theimplementation, on the one hand, of general principles of international human-itarian and human rights law and, on the other hand, of lead organizations’3

and/or contributing states’ policies. Secondly, it will discuss key examples oflimits of transitional authority on law enforcement tasks, namely those relatedto the Kosovo Force’s (KFOR’s) law and order mission, the protection anddefense of designated property and operational detention. On that basis, thischapter will, in its final part, reach and explain the conclusion that the exerciseof transitional authority by contemporary peacekeeping operations is compat-ible with international legal standards.

B. TRANSITIONAL AUTHORITY: SOURCES AND LIMITS

Usually, the mandates of international peace missions—vis-á-vis (military)peacekeeping and (civilian) peace-building operations4—are devised to conveydifferent, yet complementary, messages: they express the policies chosen bythe international community, the international actors contributing to the mis-sion and relevant actors (the legitimate government and, as the case may be,other power brokers) in the receiving states (also referred to as host states).5

Mandates are, accordingly, policy documents. In addition, they are also legaldocuments. The adoption of peace missions’ mandates requires the applicationof the pertinent legal bases, and the mandates themselves define the authoritythat may be exercised by a peace mission by using legal terms and concepts.Mandates do, moreover, define or imply short- and long-term goals, and thedesired end-state. Hence, from a non-legal perspective,6 they are also strategydocuments.

In addition to their plurality of functions, the fact that contemporary peace-keeping operations do not fit into traditional categories of international law—both from a factual and a doctrinal perspective—contributes to the complexityof their legal framework. Peacekeeping operations have been deployed into sit-

3 The term “lead organization” refers to the international organization exercis-ing command and control over a peacekeeping operation. Currently, NATO, the UnitedNations, the European Union (EU), the African Union (AU), the Economic Communityof West African States (ECOWAS), and the Commonwealth of Independent States (CIS)have the capabilities to function as lead organizations.

4 See Häussler, supra note 1, at ch. 2.1.2 for this differentiation. Note that inpractice the nomenclature used might not always be as stringent.

5 To date, no uniform terminology exists. The author therefore sticks to the usagedeveloped in the study on the practice of international peace missions (supra note 1).

6 Recall that the addressees of peace mission mandates are policymakers, deci-sionmakers in the field (military and civilian superiors of the missions and their com-ponents) and the members of the legal community involved.

The Limits on Law Enforcement by Peacekeeping Operations 55

uations of both armed conflict (usually characterized by more or less fragileceasefires) and formal peace (frequently characterized by the readiness of theex-belligerents to resume warfare at any time). In accordance with Chapter VIIof the UN Charter, many peacekeeping mandates bridge the doctrinal gap embod-ied in the distinction between the states of war and peace.7 The primary con-cern of those drafting the mandates, however, is to tailor them to the mission,not the legal nature of the situation within the respective area of operations.Since peacekeeping mandates respond to the post-conflict situation that theyaim to stabilize and to transform into sustainable and substantial peace, theyare inspired by a variety of legal regimes. The aggregation of these “ingredi-ents” is usually embodied in documents or acts expressing the consent of thereceiving state(s), a resolution of the UN Security Council (SC) endorsing suchconsent and the acceptance thereof by the participating international organi-zation(s) and the troop contributing state(s).8

1. The International Mandate and SOFAs as Sources of Transitional Authority

In the contemporary practice of international relations, states confer cer-tain powers to international (and supranational) organizations. They accept thatsuch organizations, or ad hoc bodies, may take decisions regarding individualsituations, issues, controversies or disputes, which will be binding on their polit-ical organs, government agencies and, as the case may be, their individual cit-izens or inhabitants. Speaking in abstract terms, it is consolidated practice thatstates confer certain powers9 to entities whose decisions they cannot unilater-ally influence and accept such decisions to be binding. The act of establishinga peace mission or, more specifically, a peacekeeping operation with transi-tional authority is but one example for this practice.

All UN member states have consented that the Security Council may imposeon them an international peacekeeping operation with transitional authority.Decisions made by the Security Council have binding character pursuant toArticle 25 of the UN Charter, in particular with regard to matters pertaining to

7 For an assessment of this aspect of Chapter VII of the UN Charter, see theHäussler, supra note 1, at ch. 3.1.

8 Some other authors use the phrase “troop contributing nations” rather than“troop contributing states.” In the present author’s view, the phrase used herein tacklesthe legal realities more precisely. From a policy perspective, it might be more appeal-ing to speak of the nations represented by the contributing states.

9 To date, the phrase “conferred powers” has primarily been in use in EuropeanCommunity law. In the present author’s view, yet for reasons beyond the scope of thischapter, transitional authority has more in common with supranational authority thanwith the exercise of powers rooted in more traditional sub-branches of international law.


the maintenance or restoration of international peace and security (Chapter VIIof the UN Charter). Moreover, states have agreed not to tamper with this bind-ing character by signing other international agreements or arrangements (Article103 of the UN Charter). Regardless of the fact that the United Nations has madelimited use of its conferred power to act unilaterally in matters of internationalpeace and security, the provisions of Chapter VII and Articles 25 and 103 ofthe UN Charter legalize and legitimize this kind of action. Key examples of theuse by the Security Council of its power to unilateral action comprise the impo-sition of sanctions against southern Rhodesia after the Unilateral Declarationof Independence, the authorization of Operation Desert Storm after the Iraqiinvasion of Kuwait, the approval of peacekeeping in Somalia after the failureof its government and, therefore, without local government consent, the cre-ation of the International Criminal Tribunals for the former Yugoslavia (ICTY)and Rwanda (ICTR), and the measures taken against suspected perpetrators ofinternational terrorism after September 11, 2001. In the light of this acceptedpractice, the Security Council may, a fortiori, authorize an international peace-keeping operation with transitional authority under Chapter VII (and make itbinding erga omnes in accordance with Articles 25 and 103 of the UN Charter)after having obtained consent thereto from the receiving state(s) or power brokers within them.10 It follows that the acceptance of the provisions at issue—expressed by the act of accession to the United Nations—as possibly supple-mented by the consent to their application to an individual situation, is thesource of transitional authority within a UN-mandated international peace-keeping operation.

The superiority of the UN Charter vis-à-vis other international agreementsand arrangements (Article 103 of the UN Charter) is without prejudice to effortsmade by states and international organizations to achieve the purposes of theUnited Nations with alternative means. Accordingly, states have retained thesovereign right to contribute to the maintenance and restoration of internationalpeace and security outside a UN framework. International organizations maydo the same, by exercising the express and/or implied powers conferred on themby virtue of their constituent act(s). A peacekeeping operation launched by acoalition of states or an international organization with a regional profile mayhence be entrusted with powers amounting to transitional authority by its con-

10 By way of contrast, the Security Council may also entrust a peace missionwith transitional authority on the basis of the receiving state’s consent without placingit in the framework of Chapter VII of the UN Charter. The recent enlargement of theUN Interim Force in Labanon’s (UNIFIL’s) mandate is a good example: the SecurityCouncil has expressly stated that it acted “in support of a request from the Governmentof Lebanon to deploy an international force to assist it to exercise its authority through-out the territory” (SC Res. 1701, para. 12 (Aug. 11, 2006)). While this passage demon-strates that the consent of a receiving state has equivalent legitimizing force as a ChapterVII resolution, it does not enjoy the same binding force as the one derived by the latterfrom Articles 25 and 103 of the UN Charter.


tributing states or its lead organization11 (provided that the receiving state(s)has/have given its/their consent).12

SOFAs13 complement the receiving states’ consent to the exercise of tran-sitional authority by peacekeeping operations. Usually, SOFAs specify the detailsof the international nature of the peacekeeping operation and confirm the neu-tral and impartial character of its actions vis-à-vis all compliant actors in thearea of operations. To that end, SOFAs contain rules concerning the immunityof the peacekeeping operation,14 its personnel and its assets15 from legal processand jurisdiction. These rules are modeled on the law of diplomatic relations. Insome cases, peacekeepers are expressly designated as “experts on mission.”SOFAs also define the principles and mechanisms necessary to ensure respectfor the receiving state’s sovereignty. They obligate peacekeeping operations toadhere to the principle of respect for local law. They further establish the obli-gation of the Force Commander to ensure such respect,16 and they design thelegal framework regulating the settlement of claims that may arise in con-nection with actions of the peacekeeping operation.17 These and other SOFAprinciples and mechanisms help identify the character of the powers rootedin transitional authority as conferred powers. Equivalent to the principle ofconferred powers in EU law, the UN Model SOFA outlaws ultra vires “actionsand activities” of a UN peacekeeping operation and requires its intra vires“actions and activities” to serve the purpose for which the operation was estab-lished. In obligating UN peacekeeping operations and their personnel to exer-cise authority in a manner not “incompatible with the impartial andinternational character of their duties,” the UN Model SOFA also demands,by necessary implication, the observance of the respective mandate. As aresult, it limits the “actions and activities” of the mission and its personnelto the discharge of their defined duties.18

11 In practice, peacekeeping operations have never had legal personality of theirown, although it is theoretically possible to create them with legal personality. Rather,they were integrated into the framework of a subject of international law, vis-á-vis eithera lead nation or lead organization. See Häussler, supra note 1, at ch. 4.2.

12 Relevant examples pertain to various geographical areas and organizations;they include NATO and EU peacekeeping in Macedonia, CIS peacekeeping in theCaucasus, and ECOWAS and AU peacekeeping in a variety of African states. See Häussler,supra note 1, at ch. 2.1.1.

13 The same is true for Status of Mission Agreements, which are frequently agreedfor peace-building operations.

14 See para. 7 of the UN Model SOFA (UN Doc. A45/594).15 See, e.g., paras. 29 (taxation), 30 (customs), 32–34 (immigration), 40–45 (law

enforcement), and 46–49 (jurisdiction) of the UN Model SOFA (UN Doc. A45/594).16 See para. 6 of the UN Model SOFA (UN Doc. A45/594).17 See paras. 51–54 of the UN Model SOFA (UN Doc. A45/594).18 See para. 6 of the UN Model SOFA (UN Doc. A45/594).


SOFAs may, moreover, contain amplifications and guidance for the exer-cise of a peacekeeping operation’s transitional authority. For instance, para-graph 41 of the UN Model SOFA contains a detailed framework for the exerciseof the power to arrest criminal suspects in UN peacekeeping operations,19 thatis, it defines both the criminal law enforcement powers enshrined in the mis-sion’s transitional authority and its limits.

2. The International Mandate and SOFAs as Inherent Limits ofTransitional Authority

SOFAs may have two functions concerning the inherent limits of transi-tional authority. They can specify particular aspects of these limits or containarrangements concerning the use of the mission’s transitional authority. Thekey to interpreting peacekeeping mandates is the definition of the purpose ofthe operation by the mandate, that is, the definition of the desired end-state andthe preferred mechanisms to reach it.

Inherent limits of transitional authority derive from two kinds of provisionscontained in international mandates. First, usually the purpose of a peacekeepingoperation is translated into individual responsibilities.20 Actions taken beyondthe range of these responsibilities are incongruent with the mandate and henceultra vires. Secondly, beyond these limits ratione materiae, further limits maybe imposed, as a matter of policy, ratione personae, ratione loci or ratione tem-poris. A mandate may, for instance, expire after a defined period of time or fol-lowing the receiving state’s request; it may define the geographical boundariesof the area of operations; it may specify that only certain persons shall be sub-ject to the actions of the peacekeepers. Moreover, the differentiation betweenprincipal and supporting tasks21 determines what actions may be taken at theinitiative of the peacekeeping operations and which ones may be taken at therequest of other designated actors.

19 The legal frameworks for the deprivation of liberty (the generic phrase cov-ering detention and arrest regardless of their purpose) by peacekeeping operations willbe dealt with in Section C.3.

20 International peace missions’ mandates define the responsibilities of these mis-sions. for the use of this term, see the KFOR and UN Interim Administration Mission inKosovo (UNMIK) mandate contained in SC Res. 1244, paras. 9 and 11 (June 10, 1999).

21 International mandates also specify the principal and supporting tasks of apeace mission; usually these tasks derive from defined (or implied) responsibilities. Thislanguage has been used for instance in the peacekeeping mandate for Bosnia andHerzegovina contained in the General Framework Agreement for Peace in Bosnia andHerzegovina (UN Doc. S1995/985, Annex)—also known as the Dayton Agreement. SeeArticle VI of Annex 1A to the Dayton Agreement for the differentiation between prin-cipal and supporting tasks.


Turning now to SOFA provisions carrying inherent limits of transitionalauthority, those concerning immunity from jurisdiction and respect for locallaw are of key importance. First, they amplify the international nature of peace-keeping operations. They confirm that both relevant international law and suchdomestic law of the contributing states as congruent with the international man-date22 are the primary sources of the body of law binding upon the operationand its personnel. As a result, the receiving state’s domestic law can only bebinding if, and to the extent that, the lead organization or the contributing stateshave integrated their content into the legal framework applicable to the opera-tion and its personnel. The mechanisms used by the lead organization for thatpurpose include, but are not limited to, the integration of certain requirementsin either the operation plan (OPLAN)—including the ROE23—or the SOPs andissuing of specif ic orders through the international chain of command.Contributing states usually build upon their own domestic legislation: they maydeclare extraterritorially applicable such domestic legal principles and rulesthat can also be found in the receiving state’s local law by virtue of militaryorders or administrative decisions, provided doing so does not impede the effec-tive and efficient fulfillment of the peacekeeping operation’s responsibilitiesdefined by the international mandate.

In addition, there may be overlaps between the obligation to respect locallaw and the binding force of certain principles and rules of peremptory inter-national law (jus cogens). This may occur if the receiving state’s domestic lawreflects the essence of legal principles and rules designed and accepted to bebinding erga omnes (e.g., the universal prohibitions of torture or forced disap-pearances). In such cases, respect of local law coincides with the abidance byrelevant peremptory principles and rules. Oftentimes, moreover, peacekeepingoperations will also be bound by emerging, yet not comprehensively settled,legal standards such as those concerning sexual abuse and exploitation, includ-ing the prohibition of trafficking in human beings.

The principles and rules governing law enforcement by the receiving state’sdomestic agencies are of limited importance for peacekeeping operations’ tran-sitional authority.24 In particular, frequently peacekeeping responsibilities do

22 Without doubt the rule contained in Article 27 of the Vienna Convention onthe Law of Treaties that a state “may not invoke the provisions of its internal law as jus-tification for its failure to perform a treaty” applies to international mandates of peace-keeping operations.

23 Note that the rules of engagement authorized for a given peacekeeping oper-ation are usually contained in an Annex to the OPLAN.

24 International law contains only few positive obligations specifically craftedfor law enforcement. Various actors have adopted a variety of policy documents con-cerning law enforcement. In the light of the fact that matters of internal and externalsecurity are perceived to be of key importance for state sovereignty, these documentshave not, however, been transformed into binding international law. As a result, theycan only be relied upon to discuss whether certain state practice congruent with them


not fit in the categorizations developed for stable constitutional democracies,since such operations are primarily25 charged with preventing the materializa-tion or suppressing risks and threats of a paramilitary or military nature in theirareas of operations. Accordingly, law enforcement is usually a desirable side-effect of peacekeeping rather than its defined purpose.26 For this reason, boththe contributing and the receiving states’ legal frameworks for law enforcementare ill suited for determining the legitimacy and legality of individual actionstaken by peacekeeping operations.

3. Limits of Transitional Authority Deriving from General Principlesof International Humanitarian and Human Rights Law

The limits of transitional authority are rooted in international humanitar-ian and human rights law. By contrast, the domestic law of receiving states doesnot directly apply to the exercise of transitional authority by a peacekeepingoperation. Certain recent developments—although they basically concern activ-ities of military personnel not integrated in a peacekeeping operation and activ-ities of intelligence personnel without military status27—have given reason toreconsider the role played by international humanitarian and human rights lawas sources of limits of transitional authority. Non-governmental organizations(NGOs) have made useful contributions to this thought process.28

Since international peacekeeping mandates are embodied in internationalagreements such as peace settlements or ceasefire agreements and instruments

might be an expression of emerging general principles of international law or emergingcustomary international law.

By contrast, obligations to abstain from certain conduct—the prohibitions of tor-ture and forced disappearances have already been referred to—are usually not lawenforcement specific and need not be discussed further in this context.

25 The KFOR law and order mission, that is, the responsibility to ensure “pub-lic safety and order until the international civil presence can take responsibility for thistask” (SC Res. 1244, para. 9(d) (June 10, 1999)) is exceptional—no other military peace-keeping operation has had such far-reaching authority.

26 For instance, the possession of arms by civilian individuals will frequently beillegal in states receiving a peacekeeping operation. If, however, the peacekeepers crackdown on weapons’ owners, they do so in order to prevent the reemergence of demobi-lized paramilitary or military structures, or the emergence of new such structures, whichwould—by their mere presence—pose a serious threat to international peace and secu-rity in the area of operations. Obviously, peacekeeping operations must, and do, makean assessment whether privately owned weapons represent a paramilitary or militarythreat. For examples and the range of possible legal assessments, see Häussler, supranote 1, at chs. 7.2.2 and 10.2.4.

27 With respect to detentions, see Häussler, supra note 1, at ch. 9.1.28 See Häussler, supra note 1, at ch. 9.2.


such as SC resolutions, they cannot be qualified as mere policy instrumentswithout binding legal character. Rather, they are an integral part of interna-tional law and, as such, they are supplemented by customary law and generalprinciples29 governing the maintenance and/or restoration of international peaceand security. The practice of the UN Security Council concerning internationalpeacekeeping indicates that both international humanitarian and human rightslaw contain relevant principles.30

It is important to stress that neither international humanitarian law (IHL)nor international human rights law are directly applicable to the exercise oftransitional authority by international peace missions. The supremacy of ChapterVII mandates in accordance with Articles 25 and 103 of the UN Charter cov-ers all obligations stemming from international treaties—with the exception oftreaty provisions that have codified peremptory international law—includingthose pertaining to IHL and international human rights law. Moreover, inter-national organizations taking the lead of peace missions are neither parties torelevant agreements nor have they accepted to be bound by them by unilateraldeclaration. Furthermore, neither IHL nor international human rights law wereoriginally devised to cover the exercise of transitional authority by internationalpeace missions: human rights were not crafted to apply extraterritorially; IHLwas not developed to apply outside an armed conflict. However, Chapter VIIof the UN Charter has bridged the classical distinction between war and peace,that is, the distinction fundamental to the classical separation of the spheres ofapplication of IHL and international human rights law. Relevant Chapter VIIresolutions have merged these spheres of application in such a manner as toimply that some issues may be exclusively matters of general principles of IHL,whereas others may be exclusively matters of general principles of internationalhuman rights law, yet others may be matters of general principles of both thesebranches of international law.31 The most important aspect of this merger isthat, in general, limitations of human rights derive from general principles of

29 See ICJ Statute art. 38(1)(b) and (c).30 See Häussler, supra note 1, at ch. 5—in particular 5.3. Note that the most

recent renewal of the Afghanistan mandate expressly “[c]alls for full respect for humanrights and international humanitarian law throughout Afghanistan.” See SC Res. 1746,para. 18 (Mar. 23, 2007).

31 This passage is modeled upon the observation of the International Court ofJustice (ICJ) concerning the rights of individuals affected by the exercise of author-ity during a period of occupation, that: “some rights may be exclusively matters ofinternational humanitarian law; others may be exclusively matters of human rightslaw; yet others may be matters of both these branches of international law.” ICJ-Opinionof July 9, 2004—Legal Consequences of the Construction of a Wall in the OccupiedPalestinian Territory—para. 106. Note that, for the purposes of the present analysis,the ICJ’s insight had to be adjusted to the situation of international peace missionsbecause their transitional authority is not authority exercised by a state as in the caseof belligerent occupation.


IHL in accordance with respective mandates,32 and restrictive derogations clausescontained in international human rights treaties do not apply.33

As a result, international mandates determine what general principles ofinternational humanitarian and human rights law shall govern the exercise oftransitional authority by a specific mission. In particular, Chapter VII resolu-tions may limit, or derogate from, human rights that do not form part of thebody of peremptory international human rights or from supplementary stan-dards associated with peremptory human rights that do not share their ergaomnes character.34 International organizations and states launching a peace-keeping operation on behalf of the United Nations, may implement such limi-tations and derogations in their binding decisions (i.e., OPLANs including ROE,SOPs, specific orders, etc.). Likewise, if a state chooses to confer transitionalauthority to an international organization in order to enable it to launch a peacemission on its territory—like the Lebanese Republic did with respect to theenlarged mandate of UNIFIL35—the conferring act may authorize, eitherexpressly or by way of implication, limitations of, or derogations from, perti-nent human rights or subjective rights deriving from IHL. Note that acts con-ferring or generating transitional authority, or the consent expressed by a stateto exercise it by way of contributing personnel and equipment to an interna-tional peacekeeping operation, may be subject to judicial scrutiny under directly

32 The authorization to use all necessary means to fulfill the defined responsi-bilities of an international peace mission is the paradigm for expressly declaring appli-cable such limitations as are inherent in the concept of military necessity (or operationalnecessity). See Häussler, supra note 1, at ch. 6.2.

33 Cf. Häussler, supra note 1, at ch. 5.3.3.34 In accordance with relevant doctrine, human rights provisions establish cer-

tain substantial standards (such as, e.g., the prohibition of torture). In accordance withsupplemental provisions or by way of interpretation of the substantial human right, cer-tain procedural standards (such as documentation requirements, obligations to keeprecords, consultation requirements, etc.) may be associated with the substantial humanright in question. These associated standards aim to enhance the protection of the sub-stantial right. It is submitted that, regardless of this purpose, standards associated withperemptory human rights are not themselves part of international jus cogens.

By way of contrast, however, the documentation requirements and obligations tokeep records under IHL may have generated general principles of international law thatare binding on international peace missions. Access to information kept in accordancewith these principles can be limited to the International Committee of the Red Cross ifthe exigencies of operations security so require. Additionally, competent military andcivilian superiors are obligated to review the information documented and recorded inaccordance with the doctrine of command responsibility. Moreover, the Security Councilmay require access to information in addition to existing reporting requirements it hasestablished in many international mandates.

35 Cf. supra note 6.


applicable human rights treaty law, regardless of the fact that the exercise oftransitional authority is not likewise reviewable.36

C. THE PRACTICE OF INTERNATIONAL PEACEKEEPING—KEY EXAMPLES

International peacekeeping operations have frequently been tasked withestablishing and maintaining a safe and secure environment in a manner involv-ing actions similar to law enforcement. Moreover, the NATO-led internationalmilitary presence in Kosovo— KFOR—was responsible for law enforcementpending the reestablishment of effectively functioning civilian agencies thatcan handle this task. In the following sections, the (initial) KFOR Law andOrder Mission, Protection and Defense of Designated Persons and Property andOperational Detention will be discussed.

1. The KFOR Law and Order Mission37

Depending on the situation in the receiving state, military peacekeepersmay also be assigned tasks that are traditionally “civilian” in nature. In the caseof Kosovo, SC Resolution 1244 has entrusted KFOR with certain responsibil-ities (law and order, de-mining) until a handover to UNMIK is (was) feasible.38

In the course of their presence in Kosovo, KFOR and UNMIK have indeed rede-lineated step-by-step their tasks.

The terminology used in SC Resolution 1244 indicates that the KFOR Lawand Order Mission supplements related military responsibilities. While UNMIKis responsible for “maintaining civil law and order”39—which clearly involvescivilian tasks—KFOR’s equivalent responsibility covers “ensuring public safetyand order.”40 This KFOR responsibility is closely associated with establishing

36 This is demonstrated, in particular, by the jurisprudence of the European Courtof Human Rights in Matthews v. the United Kingdom where the policy decision to denythe inhabitants of Gibraltar the vote in European Parliament elections came under judi-cial scrutiny. Cf. Häussler, supra note 1, at ch. 5.3.3.

37 “The KFOR mandate under UNSCR 1244 and the broad provisions of theMTA combined to provide the basis for the KFOR law and order mission.” Center forLaw and Military Operations, Law and Military Operations in Kosovo: 1999–2001—Lessons Learned for Judge Advocates, Charlottesville, VA, at 99 (2001) [hereinafterCLAMO, Kosovo].

38 See SC Res. 1244, paras. 9(d) and (e) (June 10, 1999): “until the internationalcivil presence can take responsibility for this task” or “until the international civil pres-ence can, as appropriate, take over responsibility for this task,” respectively.

39 See id., para. 11(i).40 See id., para. 9(d).


a secure environment in which refugees and displaced persons can return homein safety, the international civil presence can operate, a transitional adminis-tration can be established and humanitarian aid can be delivered,41 which is akey source of KFOR’s military tasks. More precisely, as far as “establishing asecure environment” shall make possible that “the international civil presencecan operate,” KFOR is charged with enabling UNMIK to fulfill its responsi-bility for “maintaining civil law and order.” The inherent logic of this delin-eation of responsibilities links an indefinite responsibility of KFOR for thesecure environment in Kosovo with a joint responsibility of both KFOR andUNMIK in matters related to “law and order.” KFOR’s responsibility in thisfield, however, does not include “maintaining . . . law,” that is, KFOR has notbeen entrusted with legislative and judicial authority.

Implementation of the KFOR Law and Order Mission was a crucial con-tribution to early successes in the stabilization of Kosovo. When the interna-tional community arrived in Kosovo, law and order were already in jeopardybecause of the high crime rate.42 In addition, prior to the deployment of suffi-cient international police personnel43 and the (re)establishment of civilian courtsunder the auspices of UNMIK, no functioning law enforcement apparatus (police,judiciary and correctional facilities) existed, since nearly all Serbian officials,including most Yugoslav judges,44 had left the area together with the retreatingarmed forces and police units. Moreover, initially no legislation was adoptedto implement the obligations stemming, on the one hand, from the MilitaryTechnical Agreement between the International Security Force (KFOR) and theGovernments of the Federal Republic of Yugoslavia and the Republic of Serbiaof June 9, 1999, and, on the other hand, the Undertaking of Demilitarizationand Transformation of the UCK concluded between the Commander of theKosovo Force (COMKFOR) and the Commander of the UÇK(Ushtria Çlirimtaree Kosovës (Albanian name of the Kosovo Liberation Army (KLA)) of June 21,1999. Apart from the delineation ratione materiae concerning legislative andjudicial functions, the delineation of tasks between KFOR and UNMIK wasbasically ratione temporis. Only once KFOR had “ensured” public safety andorder, could UNMIK be considered able to “maintain” civil law and order. Inpractice, KFOR’s contribution to law enforcement was scaled back after its firstyear of presence. For instance, KFOR personnel were ordered that in respond-ing to an alleged crime scene, they should simply secure that scene and con-

41 See id., para. 9(c).42 Cf. CLAMO, Kosovo, supra note 37, at 99.43 The international community did not meet the UN’s request for police per-

sonnel for almost a year. See CLAMO, Kosovo, supra note 37, at 100.44 Those Serb judges who had not left Kosovo prior to KFOR’s deployment did

so soon thereafter due to security concerns. Albanian lawyers did not have experienceas judges because they had not been allowed to practice since 1989. See CLAMO, Kosovo,supra note 37, at 100.


tact UNMIK Police.45 KFOR has, however, resumed fulfilling its responsibil-ity for public safety and order in cases where UNMIK was objectively unableto maintain civil law and order, such as, for example, for a limited period fol-lowing the 2004 upheavals.

In accordance with its law and order mission, KFOR engaged in the pre-vention and repression of criminal activities. Basically, KFOR policed crimi-nal misconduct, investigated alleged crimes,46 secured evidence, detained suspectsand ensured the continued functioning of the correctional infrastructure.47 WhileKFOR preferred to assign “law and order” tasks to military police units, forreasons of lack of personnel, some tasks such as basic investigations and relateddetentions and arrests in respect of minor criminality were carried out by infantrysoldiers.48 The Commander, Multinational Brigade East (COM MNB(E))responded to this situation by issuing a detailed Detention Processing Policy49

that contained rules for soldiers responding to the scene of an alleged crimeprior to military police involvement and basic principles for receiving and pro-cessing detainees in the Camp Bondsteel Detention Facility.50 Additionally,COM MNB(E) delegated release authority for specified categories of crimesto certain officers under his command.51 Moreover, military lawyers respondedto the situation by ensuring basic law enforcement training.52

The COM MNB(E) Detention Processing Policy is equivalent to a SOP. Itstitle contains the word “policy” for the sole purpose of indicating that the stan-dards and guarantees specified therein are not supposed to generate subjectiverights of the individuals whose cases were processed under the policy. This titlereflects the US approach to the inapplicability of the rules of IHL and inter-national human rights law to the situation in Kosovo under the KFOR mandate.Like the other KFOR troop contributing states, the US contingent to KFOR hasused relevant standards of the Third and Fourth Geneva Conventions of 1949

45 Cf. CLAMO, Kosovo, supra note 37, at 102 et seq.46 Note, however, that according to the assessment of the Commander, KFOR-

MNB(E), at the beginning of KFOR’s mission “[t]he operational constraints of con-ducting law enforcement activities in the present environment severely inhibit[ed] KFOR’sability to conduct follow-up investigations.” See paragraph 5 of the Detention ProcessingPolicy of August 3, 1999, reprinted in CLAMO, Kosovo, supra note 37, at AppendixIV-8.

47 See CLAMO, Kosovo, (supra note 37, at 100 et seq.48 As far as the practice of KFOR-MNB(E) is concerned, see CLAMO, Kosovo,

supra note 37, at 101.49 The COM MNB(E) Detention Processing Policy is reprinted in CLAMO,

Kosovo, supra note 37, at Appendix IV-8. It has subsequently been replaced.50 In the meantime, this facility has been renamed as the Bondsteel Holding

Facility.51 See COM MNB(E) Detention Processing Policy of August 3, 1999.52 See CLAMO, Kosovo, supra note 37, at 101 et seq.


as field-level guidance for its operations.53 Unlike other states involved, how-ever, the US contingent stressed that it believed the status of KFOR MNB(E)detainees to have been defined by the policy, that is, that this status did notderive from general principles of law as applied to the field-level situation.54

Apart from the mentioned difference concerning the approaches towards thesource of the status of detainees, the COM MNB(E) Detention Processing Policyindicates that SOPs and equivalent documents—as far as KFOR is concerned,detention operations were later, and continue to be, governed by a COMKFORDetention Directive, which is supplemented by SOPs at Multinational TaskForce level in accordance with this Directive—demonstrate that peacekeepingoperations ensure adherence to the standards of international humanitarian andhuman rights law by way of the usual military technique—written orders of anabstract and general nature. In practice, ROE contain relevant authorizations—for example, that KFOR may, as far as relevant in the present context, withinthe scope of its law and order mission, detain such individuals as it suspects tohave been involved in criminal activity—and SOPs or equivalent determinehow such authorizations shall be applied to individual cases.

Turning now to matters of legislation in the field of law and order, the earlypractice of KFOR and UNMIK involves a somewhat confusing approach todeal with shortcomings in this field. COMKFOR and the head of the UN-ledinternational civilian presence in Kosovo (UNMIK), the Special Representativeof the Secretary-General (SRSG), agreed upon an “augmentation of crimes inKosovo,”55 which covered such conduct as unlawful possession of weapons(“weapons violations”56), wearing of the UCK uniform,57 setting up of unau-

53 Cf. THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER AND SCHOOL, U.S. ARMY,INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT ED., OPERATIONAL LAW HANDBOOK, at52, no. 25 (2006 ed.); the procedures designed to implement the KFOR Law and OrderMission in accordance with NATO OPLAN 10413 were modeled on GC III: Peter Dreist,Streitkräftefremde Aufgaben im Kosovo, in NEUE ZEITSCHRIFT FÜR WEHRRECHT 44, 45–48(2002).

54 Recall that this “no status as of law” approach was implemented during theClinton administration’s term of office.

55 See CLAMO, Kosovo, supra note 37), at 104.56 This terminology has been used in paragraph 2(c)(3) of the COM MNB(E)

Detention Processing Policy of August 3, 1999, supra note 46. Weapons violations com-prised cases of possession of prohibited weapons as defined in paragraph 5(d) of theUndertaking of Demilitarization and Transformation of the UCK concluded betweenCOMKFOR and the Commander of the UCK (reproduced in CLAMO, Kosovo, supranote 37, at Appendix IV-5), and of non-compliance with the demilitarisation and disar-mament requirements stipulated in paragraphs 22 and 23 of the Undertaking, and withthe cessation of hostilities requirements under Article II of the MTA-Kosovo, which alsoprovides, in paragraph 5 of its Appendix B, that COMKFOR “has the right and is autho-rised to compel the removal, withdrawal or relocation of specific . . . weapons.”.

57 Cf. paragraph 2(c)(4) of the COM MNB(E) Detention Processing Policy ofAugust 3, 1999, supra note 46. The prohibition of wearing the UCK uniform reflects


thorized checkpoints58 and curfew violations.59 From a practical perspective,the “augmentation of crimes” had limited effects. Even worse, it blurred thedistinction between law and order detentions and operational detentions. Asreflected in a revised MNB(E) detention policy released in 2000, the “aug-mentation of crimes” did not criminalize the conduct it covered because theUNMIK Emergency Judicial System did not prosecute this conduct.60 As aresult, the “augmentation of crimes” did not enhance the fulfillment of eitherKFOR’s responsibility to ensure public safety and order or UNMIK’s respon-sibility to maintain civil law and order. Rather, it placed the fulf illment ofKFOR’s responsibility to establish and maintain a secure environment, char-acterized by the absence of paramilitary or military threats and the possibilityof their reemergence, underneath a wrongful heading. As a matter of principle,obligations stemming from a ceasefire or similar arrangements (such as theMTA-Kosovo (Military Technical Agreement-Kosovo) and the COMKFOR/Commander UCK Undertaking) become effective for the signing officers’respective subordinates upon signature; that is, they demand compliance regard-less of whether implementing legislation has been adopted. With regard to non-subordinates of the signing officers, their provisions can be used as amplificationand guidance of the responsibility to establish and maintain a secure environ-ment. It follows that KFOR had the authority to detain, if militarily necessary,civilian individuals who acted in a manner not compliant with the obligations

the obligation created by paragraph 23(h) of the Undertaking of Demilitarization andTransformation of the UCK concluded between COMKFOR and the Commander of theUCK, that within 90 days all UCK forces must cease wearing either military uniformsor insignia of the UCK.

58 Cf. paragraph 2(c)(7) of the COM MNB(E) Detention Processing PolicyofAugust 3, 1999, supra note 46. The prohibition of unauthorized checkpoints reflectsthe obligation created by paragraph 10(b) of the Undertaking of Demilitarization andTransformation of the UCK concluded between COMKFOR and the Commander of theUCK.

59 Cf. paragraph 2(d)(1) of the COM MNB(E) Detention Processing Policy ofAugust 3, 1999, supra note 46.

60 The revised detention policy differentiated between “unlawful” and “unau-thorized” misconduct, qualifying the conduct covered by the “augmentation of crimes”as “unauthorized”:

Unlawful conduct was criminal behavior defined by the laws of the FederalRepublic of Yugoslavia, the Republic of Serbia, the province of Kosovo, orUNMIK regulation. These acts could be prosecuted in criminal court.Unauthorized conduct was defined by the MTA (threats to a safe and secureenvironment), the Undertaking (prohibited weapons), and KFOR directives(counter-barricades). Commanders and soldiers were authorized to enforcethese rules, but Kosovar courts would not prosecute the misconduct unlessthere was an underlying criminal act.

See CLAMO, Kosovo, supra note 37, at 110 no. 71 and paragraph 3 of the DetentionPolicy of July 24, 2000, reprinted in id. at Appendix IV-16.


defined by the MTA-Kosovo and the COMKFOR/Commander UCKUndertaking, that is, for operational reasons, regardless of the “augmentationof crimes.”

2. Protection and Defense of Designated Property61

The violent demonstrations of February 10-11, 2007, by the Vetevendosjemovement and their successful suppression by UNMIK Police indicate thateffective law enforcement by police detachments integrated in an internationalpeace-building operation will usually suffice to prevent civilian individuals andobjects being exposed to danger of suffering damage or destruction. Nevertheless,examples such as the 2004 Kosovo upheavals show that the police will notalways have sufficient capabilities. Although it is usually a matter of law enforce-ment, public unrest can be more than just a situation of internal disturbancesand tensions. If personnel or organizations with paramilitary or military capa-bility are able to seize decisive influence on those involved in the unrest, orhave already done so, then the situation involves a distinctive threat to the secureenvironment that can trigger action by a peacekeeping force charged with main-taining such secure environment. Relevant indications comprise, but are notlimited to, the availability or use of weapons, the existence of established com-mand structures that are available, whether activated or not, to those instigat-ing, aiding or abetting violence and other non-compliant acts, and belligerentpropaganda such as inflammatory or hate speech capable of provoking erup-tions of violence.

Both the February 10-11, 2007, violent demonstrations and the 2004upheavals show that it is rather easy for certain actors within Kosovo to mobi-lize considerable numbers of individuals and make them join demonstrationsbased on inter-ethnic motives involving the likelihood of inter-ethnic violence.Moreover, apparently, these actors possess a mobilization mechanism thatdemonstrates at least dormant paramilitary capability. Accordingly, it is withinKFOR’s responsibility for the secure environment to suppress both mobiliza-tion mechanisms and any inter-ethnic violence emerging from demonstrationsof this kind.

KFOR action dealing with possible or actual inter-ethnic violence tacklesthe paramilitary or military threat represented by such violence. Although ithas certain similarity with law enforcement, it is not an act of policing.62 KFOR

61 This passage is built on the present author’s essay; Ulf Häussler, KFOR: CurrentLegal Issues, 2007 J. INT’L L. OF PEACE & ARMED CONFLICT 24–32.

62 As COMKFOR rightly observed, “KFOR’s role is not to steer police missions:UNMIK-P and KPS are performing that masterly.” COMKFOR Press Conference ofJune 10, 2005, available at www.nato.int/kfor/inside/2005/06/i050613b.htm (last vis-ited Nov. 9, 2006).


has devised a concept for protecting and defending Property with DesignatedSpecial Status (PRDSS), that is, the concept of “blue and red boxes.” This con-cept reflects both the military or paramilitary nature of the threat ultimatelyrepresented by inter-ethnic violence and the fact that usually most of those act-ing violently do not resort to combat style violence. It is a paradigm for KFOR’sapproach to the changing operational environment, namely the improvementsmade by UNMIK Police and the Kosovo Police Service (KPS). As demonstratedin the course of publicly accessible rehearsals and explained in numerous pub-lic information campaigns, the concept of blue and red boxes establishes a cor-don of increasingly impermeable zones around any key site designated byCOMKFOR as PRDSS.63 Unless activated by COMKFOR, the boxes are dor-mant (though permanent guard posts are established at certain sites). Red boxescomprise the objects designated for protection and their immediate surround-ings; in case of activation, they will be defended against entry of unauthorizedindividuals. Blue boxes comprise a designated area around each red box.Activation of red boxes includes activation of blue boxes, which will thereuponbe protected against unauthorized entry. The notion of protecting, as opposedto defending, implies a lower level of countermeasures in case of attempted oractual intrusions. Usually, crowd and riot control measures, such as the use ofriot control agents and non-lethal weapons, will be used in order to protect ablue box. Should the need arise to defend a red box, the use of minimum force—that is, such force up to and including deadly force as is commensurate withthe threat at issue—is an option.

From a legal perspective, the concept of blue and red boxes contains ampli-fication and guidance concerning, inter alia, the ROE64 governing the use ofcrowd and riot control means, or firearms and available weapons systems (e.g.,deadly force). It represents KFOR’s approach to the implementation of the prin-ciple of proportionality in the course of limiting the human rights affected bythe use of force. In particular, the question of whether the right to life may beso limited as to have less weight—either generally or on a case-by-case basis—than the competing public interest to protect key property, might be contro-versial. Some troop contributing states do not like the idea that soldiers mightshoot with the intent to kill in order to defend property. Moreover, it is alsodebatable whether the use of firearms against the intruder is always a propor-tionate response to an intrusion of a red box. In accordance with relevant gen-

63 In accordance with KFOR’s responsibility to protect the international civilpresence (SC Res. 1244, para. 9(e) (June 10, 1999)) this may also involve designationof UNMIK sites as PRDSS if so requested by the SRSG.

64 Note that self-defense, including extended self-defense, is not affected bythese ROE. NATO ROE do neither constitutively authorize nor limit each soldier’s inher-ent right of individual self-defense; as they stand, they do not affect extended self-defensein cases of serious violence either. Cf. Häussler, supra note 1, at ch. 7.2.1.1.


eral principles of IHL, whatever response is chosen, it must not be excessive.65

Moreover, the legality of the response chosen will be assessed on the basis ofthe battle damage estimate made by the competent military commander inadvance of taking action.66 The necessary balancing process will involve thehuman rights to life and physical integrity on the part of the actual or potentialintruders and those possibly affected by action against the former, and the valueof the property at issue for the peace process. This value is determined by thesymbolic character of, for example, cultural heritage and religious locationsfor the preservation of the collective identity of the group whose culture or reli-gion they represent,67 or of international community sites for the credibility ofthe international presence concerned, rather than by the financial value of theproperty at issue. As a result, the use of minimum force to defend cultural her-itage, religious sites and international community sites is not per se excessive.Much will depend on the situation on-scene.

3. Operational Detention

As indicated in the discussion of the KFOR Law and Order Mission (SectionC.1), it is necessary to differentiate between deprivation of liberty for lawenforcement vis-à-vis operational purposes. Operational detention is not partof the repertoire of classical blue helmet peacekeeping. Rather, it is part of therobust means of coercion employed by peacekeeping operations entrusted withtransitional authority in accordance with Chapter VII of the UN Charter. Allpeacekeeping operations authorized to use all necessary means or to take allnecessary measures have conducted operational detentions. The Security Councilhas renewed their mandates with full knowledge of this—now consolidated—practice. Arguably, therefore, this practice has similar value as agreement regard-ing the interpretation of relevant SC resolutions and, ultimately, Chapter VII ofthe UN Charter (compare Article 31(3)(b) of the Vienna Convention on the Lawof Treaties).68 In practice, NATO and EU peacekeeping operations consider

65 IHL prohibits the means of warfare from being used in an excessive manner.Adapted to the framework of peace missions, this means that the means of coercionmust not be used excessively either.

66 IHL requires, inter alia, that those who plan or decide upon an attack—thatis, translated into the framework of peacekeeping: an act of coercion—take certain pre-cautions with a view to avoiding, and in any event to minimizing, incidental loss or civil-ian life, injury to civilians and damage to civilian objects (Article 57(2)(a)(ii) of ProtocolI to the Geneva Conventions). Taking such precautions involves, by necessity, that a bat-tle damage estimate is made in advance of an attack/act of coercion.

67 Decani Monastery, for instance, has been declared UNESCO World Heritagesite (see http://whc.unesco.org/en/list/724 (last visited Dec. 12, 2006), and it is, accord-ingly, much more than simply a valuable property item.

68 See Häussler, supra note 1, at ch. 9.


operational detention a viable option (without prejudice to the question ofwhether detaining authority is currently being used). By way of contrast, theUnited Nations has not expressly opted in favor or against operational deten-tion, although UNMIK has used its detaining authority deriving from its respon-sibility to maintain civil law and order in a manner similar to KFOR’s operationaldetentions: that is, in particular, without necessarily giving access to judicialreview of detention orders.69 As a matter of policy, it is rather unlikely that theUN Model SOFA aims to prohibit operational detention.70 On that basis it wouldbe a matter of ROE to determine whether this means of coercion is indeed avail-able to a particular UN peacekeeping operation to which the UN Model SOFA,or a SOFA reproducing its templates, applies.

As indicated, operational detention responds to threats to the secure envi-ronment, that is, threats of a paramilitary or military nature, as opposed tothreats to public order. To date, no SOP dealing with operational detention (or,as the case may be, Commander’s Detention Directive) has ever contained an

69 Amnesty International has expressed the view that:Neither COMKFOR detentions nor SRSG detentions under Executive Orders. . . provide a procedure by which a person can challenge the lawfulness oftheir detention before a court. Further, there remains no judicial mechanismin place by which a person who has been unlawfully or arbitrarily detained onthe order of COMKFOR or the SRSG may enforce their right to reparation,as confirmed by lawyers acting for persons unlawfully detained on the orderof the SRSG or COMKFOR.Amnesty International, United Nations Interim Administration Mission in Kosovo

(UNMIK): Briefing to the Human Rights Committee: 87th Session, July 2006 (AI doc-ument EUR 70/007/2006), at 34 et seq.

70 The relevant provision, paragraph 41 of the UN Model SOFA (UN Doc.A45/594), forms part of the section concerning “Military police, arrest and transfer ofcustody, and mutual assistance.” It deals with detentions responding to criminal activ-ity and, in that course, differentiates between detentions occurring on or beyond thepremises of the UN peacekeeping operation. In particular, it provides that peacekeep-ing personnel designated by the Force Commander “may take into custody any otherperson on the premises of the United Nations peace-keeping operation,” that is, any per-son not belonging to its military personnel. Moreover: “Such other person shall be deliv-ered immediately to the nearest appropriate official of the Government for the purposesof dealing with any offence or disturbance of such premises.” As a result, paragraph 41of the UN Model SOFA indicates that, in accordance with the UN’s basic policy, UNpeacekeeping operations are not charged with law enforcement. Rather, it is based onthe premise that a functioning law enforcement apparatus exists in the receiving state.On that basis, it is suggested that this paragraph does not deal with cases of deprivationof liberty unrelated to enforcement of criminal law or the laws concerning the mainte-nance of public order. It can, accordingly, be so interpreted as not to address operationaldetention at all. In the light of the fact that the UN Model SOFA was drafted beforerobust peacekeeping emerged in the early to mid 1990s, such an interpretation would,moreover, be most convincing because it can hardly be said that the drafters wanted toprohibit operational detention without even knowing that means of coercion.


itemized list of grounds of detention. Nevertheless, certain core responsibili-ties defined by international peacekeeping mandates provide sufficient guid-ance for the purpose of identifying what non-compliant behavior or situationmay trigger operational detention of an individual. Among these responsibili-ties, those to suppress the resumption of hostilities and to establish and main-tain a secure environment are of key importance. Moreover, the responsibilityto support, protect and defend other international community actors, designatedNGOs and vulnerable civilians from acts of violence of a paramilitary or mil-itary nature, justifies operational detention. It is a matter of debate whetherthese responsibilities must be translated into specified grounds of detention byROE or SOPs.71

The core concern voiced by the critics of operational detention is the absenceof judicial review of detention orders.72 In this respect, it must always be keptin mind that operational detention is not the key to a legal vacuum—misun-derstanding it would thus betray the value-based framework common to allinternational peacekeeping operations. In the light of relevant general princi-ples of both international humanitarian and human rights law as confirmed bypertinent peacekeeping practice, it is beyond doubt that the rules concerningdetention adopted by peacekeeping Force Commanders or, like in the case ofUNMIK, civilian heads of a peace-building operation, must establish an inter-nal oversight mechanism if judicial oversight is not available or cannot be madeavailable, for example, for reasons of operation security.73 Again, ROE and/orSOPs implement the substance of such standards as limit the exercise of tran-sitional authority of international peacekeeping operations.

D. ASSESSMENT AND CONCLUSIONS

The practice of international peacekeeping operations involves the per-formance of rather limited law enforcement activities by military personnel.As the example of the KFOR Law and Order Mission indicates, such activitiesare basically confined to early periods of a mission’s mandate and limited insubstantial scope inasmuch as they do not involve the exercise of legislative

71 In accordance with general principles of international humanitarian and humanrights law, nobody may be detained arbitrarily. Moreover, general principles of interna-tional human rights law require that that grounds of detention and detention proceduresbe established by law. Arguably, international peacekeeping mandates and the decisionssupplementing them have the quality of law for the purposes of this general principle.See Häussler, supra note 1, at ch. 9.2.2.2. For a list of possible grounds of detention,see id. at ch. 10.3.1.

72 See the quotation from Amnesty International’s Briefing to the Human RightsCommittee, supra note 69.

73 See Häussler, supra note 1, at ch. 9.2.2.2; cf. id. at chs. 9.3.2 and 10.


and judicial functions. By way of contrast, peace-building operations may haveconsiderable transitional authority in the latter fields of action. In the light ofthe fact that the most prominent comprehensive peace-building operations,UNMIK and UN Transitional Administration in East Timor (UNTAET), havepledged adherence to “internationally recognized standards of human rights,”74

disputes concerning practical issues do not bring these missions in disrepute.Apart from law enforcement in the proper sense, international peacekeep-

ing operations conduct a variety of operations that resemble, to some extent,the use of means and methods also known to policing. Moreover, they do so insituations characterized by threats to the secure environment in their areas ofoperations, which would often coincidentally trigger law enforcement by thepolice. Were it not for the paramilitary or military capability involved, peace-keeping operations would simply act ultra vires in addressing such situations.In the light of the fact that information concerning the existence of paramili-tary or military capability is frequently classified, that is, not known to the gen-eral public and must not, for reasons of operation security, be made availableto it, it may, from certain perspectives, seem an inconclusive approach not tocategorize related coercive action as law enforcement. While this prima facieassessment of the actions taken by a peacekeeping operation cannot determinethe legality of such actions on the basis of comprehensive knowledge of all rel-evant information, it is still capable of jeopardizing their legitimacy. Ultimately,the legitimacy of the peacekeeping operation as such might be questioned. Thehigh importance of the values underlying international peacekeeping—restora-tion and maintenance of international peace and security, to include humansecurity of populations affected by armed conflict—and of the desired end-stateof virtually all international peacekeeping operations—stable constitutionaldemocracy characterized by good governance based on human rights and therule of law—requires all participating international organizations and con-tributing states to make the efforts necessary to demonstrate that they do indeedduly implement the limits on both law enforcement and other cases of coerciveaction conducted by peacekeeping operations. Interaction with the press andNGOs will continue to play an important role in this respect. As a matter ofprinciple, peacekeeping and peace-building operations stick to the values theyare charged to implement: the practical examples discussed evidence that thelimits inherent in the terms of international mandates (SC resolutions and SOFAsin particular) and deriving from general principles of international humanitar-ian and human rights law are directly binding upon field-level personnel inaccordance with relevant ROE and SOPs.

74 See Secretary-General’s Report on the United Nations Interim AdministrationMission in Kosovo (UN Doc. S/1999/779), para. 69, UNMIK Regulation 1999/24, art.1 concerning United Nations peace-building in Kosovo, and UNTAET Regulation1999/1,art. 2 (UN Doc. S/2000/53/Add.1) concerning United Nations peacekeeping and peace-building in East Timor.

75

CHAPTER 5

THE IMPACT OF ORGANIZED CRIME ON PEACE SUPPORT OPERATIONS

Fabian Kuehner*

A. INTRODUCTION

With no doubt the classical understanding of security policy has changedsince the end of the Cold War and the terrorist attacks of September 11, 2001,in New York. Terrorism and transnational organized crime have become inevitablecomponents of security policy. Today’s peace support operations (PSOs), as asecurity policy means, are only a part of the peace and nation-building process.They therefore face an enormous range of challenges both in the civilian andmilitary field as they occur in a transitional environment between war and peace.Nowadays peace supporters have to deal with problems that—in a classicalview—can be seen as police matters in order to provide security in instableregions. Especially organized crime turned out to be a significant threat to sta-bility and security in post-conflict societies, where peace supporters are deployed.This chapter tries to offer an overview of the challenges and difficulties facedby PSOs and their law enforcement institutions in the fight against organizedcrime. It shows the legal aspects and the practical consequences of the impactof organized crime on PSOs down to the level of the national contingents asexperienced in the f ield. The missions in Kosovo, Bosnia and Herzegovina(BiH) and Afghanistan will be highlighted as case studies.

B. DEFINITIONS

In order to achieve a clear and practical approach to the topic, it is necessaryto provide the working definitions of the terms “organized crime” and “peace sup-port operations,” since these are often countless and vaguely formulated.

* MLaw; former Legad SWISSCOY 12th contingent/KFOR; examining mag-istrate Swiss Armed Forces; currently at the Prosecutors Office Canton St. Gallen.


1. Organized Crime

According to the (pragmatic) joint report of the European Commission andEuropol of 2001,1 transnational crime is defined by 11 characteristics. In orderto qualify as organized crime, it has to meet four criteria:

1. collaboration of more than two people;2. for a prolonged or indefinite period of time;3. suspected by the (EU- and EUROPOL-) commission of serious crim-

inal offenses;4. determined by the pursuit of profit and/or power.

Like the EU, the United Nations defines serious crimes or serious criminaloffenses as acts punishable by a minimum penalty.2 The most common ones aredrug trafficking, smuggling of goods, prostitution and human trafficking, black-mailing and corruption as well as product piracy and counterfeiting. Oftenorganized crime is intertwined with economical, political and judicial institu-tions. Therefore, it is not only the effect but also the sole existence of organ-ized crime that is capable of penetrating stability in its region of activity.

2. Peace Support Operations (PSOs)

In order to understand how organized crime affects PSOs, it is necessaryto know the context, the tasks and the legitimacy of PSOs.

PSOs are “multifaceted missions that combine a robust military force witha significant civilian component.”3 Their aim is a long-term and stable polit-ical settlement of the conflict and, in some cases, the transformation of war-torn societies into liberal democratic ones. PSOs involve the deployment ofUN-authorized multinational forces that have the means and the mandate torespond to any threat to a stable settlement. They contain all forms of possi-ble peace activities such as peacekeeping and peace enforcement as well asconflict prevention, peace-building, peacemaking and humanitarian interven-tions.4 The def inition itself declares the area of engagement of a PSO as

1 As referred to in ALAN WRIGHT, ORGANISED CRIME, at 8 and 9 (2006). 2 United Nations Convention against Transnational Organized Crime, UN Doc.

A/RES/55/25 (Jan. 8,2001), available at http://www.unodc.org/pdf/crime/a_res_55/res5525e.pdf.

3 HER MAJESTY’S STATIONERY OFFICE (HMSO), JOINT WARFARE PUBLICATION 3–50:PEACE SUPPORT OPERATIONS (1999).

4 ALEX J. BELLAMY, PAUL WILLIAMS & STUART GRIFFIN, UNDERSTANDING PEACE-

KEEPING (2004); ANDREAS WENGER ED., BULLETIN 2004 ZUR SCHWEIZERISCHEN SICHER-

HEITSPOLITIK (2004), available at http://e-collection.ethbib.ethz.ch/ecol-pool/journal/bulletin_sicherheitspolitik/2004.pdf.

Impact of Organized Crime 77

extremely wide. From an historical point of view, PSOs can be seen as the log-ical answer to the changing environment of conflicts. Although they are meantto cope with all the different tasks of providing peace and a political settle-ment of a conflict, they are often functionally and temporally limited by eitherthe mandate or the means.

C. THE POST-CONFLICT ENVIRONMENT

To comprehend the impact of organized crime structures on PSOs it is use-ful to take a look at the situation after an armed conflict.

In post-conflict environments and war-torn societies, we find in generalthe absence of nearly everything by which well-organized nations and civi-lizations are defined. Failing states and split up nations, a breakdown of lawand order, destroyed infrastructures and economy as well as grief among thepeople characterize the atmosphere that peacekeepers have to face upon theirentry on the scene. Basic security may be established quickly after a PSO islaunched, but soon wider effects of the conflict become apparent. Poverty andthe absence of economical structures are widespread. As armies or securityforces are disbanded, there is rarely a functioning transition organization thatprevents the former fighters from unemployment. Unemployment is high over-all, as no real economy exists. With the return of refugees, the lack of infra-structures and effective institutions becomes even more evident. As will bepointed out with the case studies, this post-conflict environment is likely toprovide the basis for organized criminal activity. Of course, organized crimehas origins that may lay in the tensions or objectives that drove the conflictitself, such as nationalism, ethnic or religious tensions, aspirations of power,control or resources, or in conflict-related activities such as profiteering, traf-ficking or smuggling that were perpetrated during the armed conflict in orderto help fund it or to derive profit from it.5 The power and public security vac-uum in a post-conflict environment is, however, surely to offer perfect condi-tions for criminal networks to flourish and establish parallel power structures.When peacekeepers arrive, criminal organizations are likely to be already inplace, working and benefiting from the chaotic circumstances. In general thedeployed force is initially concerned with providing basic security for the civil-ian population by disarming fighting units and separating them: organized crimeis mostly not considered as a major priority. It is not only the limitation of meansthat is responsible for this judgment but moreover the understanding of the roleand the tasks of a military force entering the scene. The first deployed person-nel of a PSO consist mainly of combat units that primarily, of course, fulfillclassical military tasks. However, soon after basic security has been established,

5 Colette Rausch ed., Combating Serious Crimes in Postconflict Societies 5(2006).


the goal of a stable and long-term settlement can only be achieved when allthreats to security have been removed or are being kept to a minimum. Althoughpeace support units are not designed to fight criminal activities, it is most likelythat these units have the personnel and the means to undertake measures againstsuch activity in the short aftermath of the international intervention.

D. THE IMPACT OF ORGANIZED CRIME ON PSOS—A CLOSER LOOK

1. How Does Organized Crime Affect PSOs?

PSOs aim to establish post-conflict peace and order. The effects of organ-ized crime on PSOs can be seen on two different levels. First and most obvi-ous is the “normal” appearance of crime as, for example, violence, propertycrime or drug addicts. Secondly, and far more serious, criminal networks mayestablish a sub-economy and parallel power institutions that hinder economic,legal and political rebuilding efforts. Corruption and blackmailing of politicalactors make effective nation-building nearly impossible. Powerful criminal net-works may influence and control public media and therefore even provoke majorpublic unrest. It is also a fact that organized crime is often linked to terroristactivity not only in the affected regions but on a transnational leve.l6 As organ-ized crime is rarely limited by borders, the peace supporters face the dilemmaof geographical limitation. They may intervene in criminal activities in theirarea of responsibility but are powerless against organized crime networks work-ing from across the borders. Summarized, it can be said that organized crimeis easily capable of jeopardizing a safe and secure environment and poses aconsiderable threat to both military and civilian peace support personnel.

2. The Legal Framework of PSOs

It has been established that organized crime is indeed an important factorfor the stability and security of a region. It is essential to learn in which legalframework PSOs are carried out, in order to understand the practical conse-quences and problems faced by the peace supporters in their fight against organ-ized crime.

The core element of this legal framework is a mandate from a legitimatinginstitution such as the United Nations or the Organization for Security andCooperation in Europe (OSCE). The mandate defines the goals, the area of

6 A good overview of that topic can be found in GLENN E. CURTIS & TARA TARA-

CANA, THE NEXUS AMONG TERRORIST, NARCOTICS, TRAFFICKERS, WEAPON PROLIFERATORS

AND ORGANIZED CRIME NETWORKS IN WESTERN EUROPE (2002).


activity, the tasks and means of a PSO. A UN mandate is often the result of along political discussion in the Security Council (SC) and it is therefore logi-cally a compromise solution. It is the mandate that provides the political andoperational parameters that control all planning and other operational guidanceincluding, but not limited to, the geographic location of the operation, its sizeand length and basic rules of engagement (ROE). Although the majority of theactors usually agree “that something must be done” the (first) mandates rarelytake into account the full range of obstacles in the long-term settlement of aconflict such as organized crime, corruption or historical cultural tensions. Theyare either locally or temporally limited, and the insufficiency becomes obviousat an early stage. Another factor is that SC resolutions, which contain the man-dates, are political statements that do not always easily translate into militaryguidance for peace supporting operators on the ground. Changing circumstancesoften demand the adaptation of the mandate, but as history shows, the UN sys-tem is not able to react quickly. So if the need to widen the tasks of the forceor the area of responsibility arises, it will take months before the manpowerand the equipment can be shipped in to meet the new mandate.

Military technical agreements (MTAs) are also part of PSO’s legal frame-work. Especially in the context of the demilitarization of armies and securityforces, they may play a role in the prevention of organized crime. Althoughthese agreements usually aim at the cessation of hostilities, their impact on thework of PSOs in the fight against organized crime and its effects is small.

The UN peacekeeping missions in the 1990s showed that weak enforce-ment measures were one of the main reasons for their failing. Since the UN’senforcement capability is low, it must, as a consequence, sometimes sub-con-tract certain tasks related to the maintenance of international peace and secu-rity to other actors.7 Especially NATO, OSCE and the EU presented themselvesas reliable partners. Without going into the details, it is a challenging dilemmafor the United Nations that, as the supreme legitimating body of intervention,it is not being bypassed by the sub-contractors, which may act not solely in theinterest of the international community but also in their own.8 Regional organ-izations such as NATO, OSCE and the EU may pursue their own goals con-cerning security matters in their area of interest and then adhere to their ownpolicy of fighting organized crime. The legal framework and strategic and polit-ical interests of the organizations carrying out the UN-mandated PSO are there-fore an important basis in the comprehension of their struggle against organizedcrime structures in their missions.9

7 BELLAMY ET AL., supra note 4, at, 166–169.8 Id., at 211.9 For example, NATO doctrine and procedures, in Peace Support Operations,

NATO AJP-3.4.1, available at www.carlisle.army.mil/usacsl/new_site/divisions/pki/Military/Doctrine&Concepts/AJP341Rat.PDF.


So-called memoranda of understanding (MOUs) are of great value, cement-ing the cooperation between military and civilian actors in PSOs. Especially inlaw and order tasks, such as combating organized crime, a MOU might for-malize specific areas of military assistance, such as military protection forpolice conducting high-risk arrests or specify areas of potential intelligencesharing.10

One must keep in mind that PSOs are generally multinational missions.Each nation brings its own legal basis when participating in a mission. It is notunusual that each nation has its own legal (and political) restrictions for cer-tain tasks. On an operational level this may lead to difficulties in developing acorresponding strategy towards the fight against security threats.

3. The Military and Civilian Peace Supporting Operators and Their Tasks

As pointed out, PSOs are multifaceted missions with both military andcivilian components. The way in which they are affected by organized crimeand they react to the threats posed to security and stability depends strongly onthe mandate, the tasks, the size, the nature and the means of the peace sup-porting actors.

Firstly, it is again the mandate that defines the tasks of the peace supportoperators. Generally, the tasks are divided amongst the military and civilianactors. Military actors responsible for security in the first place may initiallyhave to deal with tasks of law and order in a post-conflict environment but willwant to transfer this role to civilian police as soon as possible.11 Nevertheless,at the very beginning it is the military that has the resources to establish basicpolicing structures and consequently look after law and order. It may take sev-eral months or even years until working civilian police structures (e.g., throughthe deployment of international police forces like the international civilianpolice (CIVPOL) or the reconstruction of domestic police) are effective againstorganized crime. The military has the short-term available manpower and theintelligence and is therefore an inevitable tool in the fight against organizedcrime. For political reasons, the lack of resources and training as well as orga-nizational limitations, it is widely accepted that the more complex the law andorder functions, the less appropriate it is for the military to undertake thesefunctions.12 Theoretically, the tasks of each actor should be clearly named and

10 RAUSCH, supra note 5, at 133.11 Id.12 Bruce Oswald, Think Peace—Addressing The Institutional Law and Order

Vacuum: Key Issues and Dilemmas for Peacekeeping Operations 13 (Asia Pacific Centrefor Military Law, Melbourne, 2005), available at www.operationspaix.net/Addressing-the-Institutional-Law.


their actions should be well cooperated. Practically, it is more likely that theiractivity is defined by a differing interpretation of the mandate, the means, thepolitical and strategic guidelines and finally their willingness to act.

Cooperation between civilian and military actors is one of the most crucialpoints for security issues in peace support missions. They may have the samegoal, but methods and means could not differ more. Problems are also causedby, for example, conflicts of competence, jurisdiction and duplication of efforts.13

The fight against organized crime needs a multifaceted approach. Sophisticatedcriminal intelligence and careful collecting of (usable) evidence (including seiz-ing of goods, freezing of assets etc.) and cautiously selected arrests are key fac-tors at the operational level. However, they can only be of use when accompaniedby political and legal measures at the top level. In the case studies, it will beshown that generally either the military or the civilian actors do not have therequired means and expertise to fight against organized crime. Therefore, onlya close cooperation and means sharing may lead to success.

4. Other Actors

Non-governmental organizations (NGOs) can provide significant help incombating organized crime in post-conflict environments. Especially in thehumanitarian aid sector, they may be able to withhold, for example, black mar-kets by distributing free goods. Many NGOs take action in conflict managementand thus influence the civil society, helping it to cut the ties with criminal groupsand networks. Although NGOs may play a considerable role in PSOs, recentexperiences have nevertheless shown that their work is mostly uncoordinated.There have been cases where organized crime took advantage of the work ofNGOs or where criminal networks or even terrorist organizations were linkedto aid activities (e.g., Revival of Islamic Heritage Society14). It is difficult tojudge the effect of NGO activities on the problem of organized crime, but con-sidering the huge number of different NGOs operating in the field and the enor-mous sums of relief assets flooding into post-conflict societies, it is not alwayspossible to overlook their efforts. Consequently it seems at least possible thatthe NGO sector bears a certain risk of being targeted by organized crime.

13 Zentrum für Internationale Friedenseinsätze ed., Organized Crime as anObstacle to Successful Peacekeeping, Lessons Learned from The Balkans, AfghanistanAnd West Africa, Report of the 7th International Berlin Workshop 44 (Berlin 2003),available at http://www.zif-berlin.org.

14 Steve Kiser, Financing Terror 76, (RAND Cooperation, 2005), available atwww.rand.org.


E. CASE STUDIES

The PSOs in Bosnia and Herzegovina (BiH), Kosovo and Afghanistan showthat an enormous effort by the international community to provide security andstability is needed. They are good examples of long-term missions dealing withthe whole spectrum of difficulties regarding the establishment of peace on aliberal-democratic basis. In all three missions, success in the fighting of organ-ized crime seems to be a key factor to stability. Being executing instrumentsand mainly responsible for public security, only law enforcement institutionsand their fight against organized crime will be highlighted in this section.

1. Bosnia and Herzegovina (BiH)

a. Organized Crime Activities

Various factors make BiH an almost ideal environment for organized crime.First of all, today’s BiH is deeply influenced by 35 years of the socialist Titoregime followed by ten years of nationalism and five years of armed conflict.15

Confidence in the rule of law is very low, and the official unemployment ratereached nearly 50 percent in 2005.16 As a consequence, poverty may force thepopulation to make a living through illegal activities or even participate in majorand organized criminal actions. The main and dominant forms of organizedcriminal activities in BiH today are, according to the experts of the Council ofEurope,17 smuggling of goods (oil, gasoline, alcohol and cigarettes), illegaltrade in narcotics (mostly on the so called “Balkan Route”), illicit arms trade(mostly of residual arms from the war), human trafficking, illegal migration(decreasing at the moment after the strengthening of the State Boarder Service),car theft, robberies, copyright infringement (mostly on illegal markets of audioand image as well as software media) and the illegal logging and transport ofwood. Although progress has been made in combating organized crime, itremains a threat to BiH in terms of security and stability.18

15 Zentrum für Internationale Friedenseinsätze ed., supra note 13, at 52.16 European Commission, Bosnia and Herzegovina Progress Report 2006, avail-

able at http://ec.europa.eu/enlargement/pdf/key_documents/ 2006/Nov/bih_sec_1384_en.pdf.

17 Drago Kos & Vera Devine, Expert Opinion on the BiH Draft National ActionPlan/Strategy against Organised Crime and Corruption (2006), available athttp://www.coe.int/t/e/legal_affairs/ legal_co%2Doperation/ combating_economic_crime/3_technical_cooperation/paco/paco%2Dimpact/PC-TC_2006_6-BiH%20March06.pdf(Jan. 2007).

18 European Commission, supra note 16.


b. Law Enforcement Institutions and Their Legal Framework

The structure of the international presence in BiH is not easy to overview.Nearly 12 years after the General Framework Peace Agreement (GFAP),19 numer-ous law enforcement actors are trying to provide security and stability for thisregion and are therefore supporting the implementation of the Dayton Agreement.In this section only the main responsible law enforcement authorities in organ-ized criminal matters will be highlighted. It is of course understood that theyoperate within a complicated nation-building framework.

After the 1995 Dayton Agreement the military component of the operationwas conducted firstly by the NATO-led Implementation Force (IFOR) followedby the Stabilization Force (SFOR), which was concluded in December 2005.Today, the EU-led EUFOR-Althea is in charge. IFOR was authorized by SCResolution 1031 as a Chapter VII mission to implement the Dayton Agreementbetween the conflict parties and operated under auspices but not under com-mand of the Office of the High Representative (OHR). Although the mandateitself was broad and the forces were robust, IFOR limited its own role andinsisted that it would not get involved in civilian matters or even deal with non-military breaches of the peace. IFOR did not take on tasks such as apprehend-ing war criminals, building infrastructure and specifically not the carrying outof policing functions.20 The civilian implementation of the Dayton Agreementand policing functions were to be carried out by the International Police TaskForce (IPTF). Their mandate, however, according to the agreement (Annex 11)was only to assist (“monitor, observe and inspect law enforcement activitiesand facilities”) the local authorities with the implementation of the PeaceAgreement. This resulted in a significant lack of action in combating organ-ized crime. After IFOR’s mandate terminated, the SC replaced it by the SFOR.As the basic military goal of a stable cessation of hostilities had already beenachieved by IFOR, SFOR was given a broader civilian role, which includedmore direct responsibility in the maintenance of law and order, the pursuit andapprehension of indicted war criminals and assistance in the creation of indige-nous armed forces.21 Unlike IFOR, which had peace enforcement tasks in con-nection with the implementation of the military aspects of the Dayton Agreement,the primary objective of SFOR was to contribute to a safe and secure environ-ment. Its tasks were to deter or prevent a resumption of hostilities or new threatsto peace and to promote a climate in which the peace process could continueto move forward and to provide selective support to civilian organizations withinits capabilities.22 As NATO put it in its own words:

19 The so-called Dayton Agreement was signed in Paris on December 14, 1995,but negotiated in Dayton, Ohio.

20 BELLAMY ET AL., supra note 4, at 171–73 with further references.21 Id., 175 with further references22 Nadia Boyadjieva, NATO on the Balkans: Patterns of Peace-Keeping in the


By successfully accomplishing [its] principal military tasks, SFORwill contribute to a secure environment within which civilian agenciescan continue to carry out the process of economic development, recon-struction, political institutions, and an overall climate of reconcilia-tion for BiH and its citizens. . . . SFOR will work closely with the HighRepresentative, the International Police Task Force, the UN HighCommissioner for Refugees, the OSCE, and the International CriminalTribunal for the Former Yugoslavia (ICTY) . . . to assist their efforts . . .which are essential to the long-term consolidation of peace in BiH.23

It is widely accepted that SFOR was the most important component in com-bating organized crime. In the absence of a state-level intelligence service,SFOR could especially provide major intelligence-collecting regarding crimi-nal networks. When needed, SFOR conducted practical assistance in fightingorganized crime or nationalist structures as in the case of the HercegovackaBank, which was providing illegal funding to Croatian extremists.24 Although,SFOR may have helped to reduce the impact of organized crime on the popu-lation of BiH and thus provided an atmosphere of superficial security, it wasunable to improve the overall situation of the population. As the legal succes-sor and in a seamless transition the Security Council, through Resolutions 1575and 1639, mandated the EU-led operation EUFOR-Althea with the same robustmandate as SFOR. The main objectives of EUFOR-Althea are, however, “tomaintain a safe and secure environment and to ensure continued compliancewith The General Framework agreement for Peace” and to “support the inter-national Community’s High Representative in BiH and the local authorities,inter alia in the fight against organized crime.”25 EUFOR is not defined as apolice force. It possesses, however, a number of valuable military capabilitiesthat can be used in the support of wider operations by law enforcement author-ities, and it is therefore fully integrated in the fight against criminal networks,mostly in supporting the local authorities. As during SFOR, the role of EUFORas a law enforcement institution led to the integration of military police unitsin order to fulfill the police tasks more effectively. Within SFOR the multina-tional support unit (MSU) and within EUFOR the integrated police init (IPU)were installed. The MSU consisted, among others, of French gendarmerienationale and Italian carabinieri units. The IPU replaced the former MSU, but

Post-Cold War Era (2003), available at http://www.nato.int/acad/fellow/01-03/f01-03.htm.

23 SUPREME HEADQUARTERS ALLIED POWERS EUROPE (SHAPE), INFORMATION BOOK-

LET ON NATO, SHAPE AND ALLIED COMMAND EUROPE 42 (Sept. 2000). 24 International Crisis Group ed., Balkans Report No. 110 (2001).25 European Council Secretariat, Factsheet on EU military Operation in Bosnia

and Herzegovina (Operation EUFOR Althea) (Dec. 2005), available at http://www.con-silium.europa.eu/cms3_fo/ showPage.asp?id=1045&lang=EN&mode=g.


it is based on the same guidelines. EUFOR defines it as follows: “IPU mergesthe distinguishing features of a military unit with the capabilities and experi-ences of a police force.”26 Both MSU and IPU were trained and equipped toperform a large range of law and order functions, from riot control to criminalinvestigations. By supporting the local police in conducting search operations,border monitoring, surveillance operations, seizing weapons, controlling per-sons and checking vehicles, they had and still have noteworthy success in com-bating organized crime in BiH.27

Another element in combating organized crime is the European UnionPolice Mission in BiH (EUPM). It took over the tasks of the UN IPTF in 2003,which was given the responsibility for the civilian implementation of the DaytonAgreement regarding BiH’s civilian law enforcement agencies operating inaccordance with internationally recognized standards. Nonetheless, accordingto the Dayton Agreement,28 the IPTF’s mandate was limited to:

a. monitoring, observing, and inspecting law enforcement activities andfacilities, including associated judicial organizations, structures, andproceedings;

b. advising law enforcement personnel and forces; c. training law enforcement personnel; d. facilitating, within the IPTF’s mission of assistance, the Parties’ law

enforcement activities; e. assessing threats to public order and advising on the capability of law

enforcement agencies to deal with such threats;f. advising governmental authorities in Bosnia and Herzegovina on the

organization of effective civilian law enforcement agencies; and g. assisting by accompanying the Parties’ law enforcement personnel as

they carry out their responsibilities, as the IPTF deems appropriate.

Although the mandate was limited, the IPTF had some managerial powers,mainly by taking charge of organizational reform issues of the police appara-tus, such as recruitment and training, but also the dismissal of local police offi-cers. As the successor of IPTF, the EUPM became part of an assemblage ofinternational actors that govern reforms in aid of democracy and the rule oflaw.29 Through mentoring, monitoring, and inspecting it aims to establish a sus-tainable, professional and multiethnic police service in BiH, operating in accor-

26 http://www.euforbih.org/forum/002/p05a/tefp05a.htm.27 A good overview of overt operations of IPU is available at http://www.eufor-

bih.org/sheets/fs050225a.htm 28 Dayton Agreement, Annex 11.29 Michael Merlingen & Rasa Ostrauskaite, Power/Knowledge in International

Peacebuilding: The Case of the EU Police Mission in Bosnia, 30 ALTERNATIVES: GLOBAL,LOCAL, POLITICAL 304 (2005).


dance with the best European and international standards. The mission, how-ever, does not include executive powers or the deployment of an armed com-ponent.30 The main activities in tackling organized crime are therefore to monitoroperations conducted by local police forces as well as restructuring the CriminalInvestigation Departments (CIDs). EUPM is not involved in any investigationson any level as the mandate does not permit it.31

c. Dilemmas and Problems

As already mentioned, it is widely accepted that the military component,today the EUFOR, is the most effective institution combating criminal networksin BiH. Local authorities, monitored and trained by the IPTF and, at present,by the EUPM may conduct arrests and detain the actors, but they are not yetfully capable of carrying out operations against organized crime from the intel-ligence and evidence-gathering stage, throughout the coordination and plan-ning, to the arrest of indicted persons. The operations are planned mostly byinternational actors such as EUFOR, and the local authorities have occasion-ally been literally pushed to undertake actions. This may lead to unsatisfyingresults. Since EUFOR still takes high responsibility in law and order functions,the main and long-term goal of building up independently functioning locallaw enforcement authorities may be endangered. In contrast, it must not be for-gotten that, at present, only international actors have the expertise and the meansnecessary for widerange law enforcement operations against organized crime,from the planning stage to the performance. In the end, the exit of the interna-tional engagement in BiH will depend on the progress made by local authori-ties towards Western law enforcement standards. The dilemma is obvious. TheEU approach to security and stability in BiH—seen in the context of theEuropean Security and Defense Policy—through military and civilian assis-tance combating organized crime, has not produced only supporting voices.32

Finally, the law enforcement apparatus in BiH with its complex local and inter-national structure and the opaque legal framework bears a certain risk of dif-fusing the fight against organized crime.

30 Council of the European Union, Council Joint Action of 11 March 2002 onthe European Union Police Mission (2002/210/CFSP).

31 Zentrum für Internationale Friedenseinsätze ed., supra note 13, at 54.32 As pointed out in Merlingen & Ostrauskaite, supra note 29: The authors sum-

marized examine the governmentality of liberal peace building and the practices of“unfreedom” it licences. They bring into focus the constellation of social control that iseffected by the EU’s efforts, in the context of its security and defence policy, to promotedemocratic policing in Bosnia and Herzegovina.


2. Kosovo33


Organized crime in Kosovo has a long and historic tradition, which hasdeveloped along with the struggle for independence of the ethnic Albanian pop-ulation. Ever since the Tito regime collapsed, Kosovo’s population has stood ina struggle with the Serbian authorities. Serbian officials excluded the majorityof the ethnic Albanian population from working in the administration or at themanagement level in state-owned enterprises. The direct rule from Belgradeimplemented by Milos

�evic was countered by the Albanian population by form-

ing a parallel society with its own public infrastructure and ideology of (then)non-violent nationalist separatism.34 The weak economy and high unemploy-ment along with a corrupt Serbian-led state leadership literally forced the eth-nic Albanian population to become active in underground markets and otherillegal activities. Smuggling of illicit goods and informal markets guaranteedthe survival of many individuals suffering from the oppression by the Milos

�evic

regime. Albanian family clans served traditionally as the primary unit of socialorganization and thus quickly became the leaders of this underground activity.With many Albanians seeking employment in Western Europe the diasporaspread quickly and the criminal networks became more and more powerful. Asethnic tensions rose after 1990, organized criminal activity played an impor-tant role in the rise of the Kosovo Liberation Army (KLA/UÇK). The fundingand arming of the KLA was largely provided by organized crime through a widerange of transnational criminal activities. It is widely accepted that the KLAhad representations all over Europe. These were linked closely to organizedcrime and thereby funded the KLA from outside of Kosovo. After the interna-tional intervention in 1999, the KLA was officially demobilized. Nevertheless,criminal activity continued to flourish as in the chaotic interval between Serband the UN Interim Administration Mission in Kosovo (UNMIK) rule, formerKLA clan leaders and their networks filled the power vacuum in the commu-nities.35 As former KLA leaders were glorified as war heroes, they enjoyedenormous support in their activities within the population and became domi-nant players in the political rebuilding process of Kosovo. The influence of clan

33 The author spent more than half a year as legal adviser of the Swiss ArmedForces as part of KFOR in Kosovo, and therefore the analysis of Kosovo is the mostdetailed in this chapter.

34 Seth G. Jones, Jeremy M. Wilson, Andrew Rathmell & Jack K. Riley,Establishing Law and Order After Conflict 29–30 (RAND Corporation 2005), availableat www.rand.org.

35 Woodrow Wilson School, Princeton ed., The Missing Priority: Post-ConflictSecurity and the Rule of Law (2003), available at www.wws.princeton.edu/research/PWReports/F03/wws591d.pdf.


leaders was so significant that the international community could not hinderthem in occupying important political administrative positions. Today Kosovois still faced with displacement, devastation of property, outdated technology,a lacking privatization and the collapse of the manufacturing sector. Moreover,the huge unemployment rate, which lies at around 60 percent, diminishes theopportunities of the majority of the young population. More than in other regionsof the Balkans, the political and economic vacuum offered opportunities fororganized crime.36 In addition, certain political leaders are under suspicion ofbeing linked to transnational operating organized crime structures37 or as a for-mer KFOR commander expressed it: “The problem was, and remains, that organ-ized crime is completely inter-twined with all political, economic, and socialactivities.”38 It is in this context that today’s organized crime in Kosovo mustbe viewed.

The most common forms of organized crime in Kosovo today are:39

• Drug trafficking. From 2002 until 2005, amongst other substances,approximately 110 kg of heroin, 150 kg of marihuana, 14 kg of cocaineand 180 pieces of ecstasy were seized by the authorities. In 2005, intotal, 15 drug smuggling cases related to organized crime groups havebeen investigated involving more than 55 persons. The “Balkan-Route,”which leads among other countries in Southeastern Europe throughKosovo, is one of the most important routes for smuggling heroin fromMiddle Asia to Western Europe. As a result of the exodus of ethnicKosovars during and after the hostilities, it is not surprising that KosovarAlbanians are said to control the heroin markets in many EU countries.40

• Trafficking of human beings. On one hand, there exist close ties betweenorganized crime in Kosovo and the trafficking networks in the coun-tries where most women are trafficked from, for example the RussianFederation, Ukraine, Bulgaria, Romania, Lithuania and Moldova.41 The

36 Council of Europe, European Commission, CARPO Regional Report 2006,Situation Report on Organised and Economic Crime in South-eastern Europe 105 (2006),available at www.coe.int/.../legal_co-operation/combating_economic_crime/3_techni-cal_cooperation/ carpo/Pctc_2006_20.pdf.

37 As a report of the German Federal Intelligence Service (BND) highlights, ref-erenced to in Die Weltwoche, No. 51–52 (2006).

38 Zentrum für Internationale Friedenseinsätze ed., supra note 13, at 42.39 CARPO Regional Report 2006, supra note 36, at 106–12 with further refer-

ences; Pillar I, Police and Justice, UNMIK presentation paper, at 24 – 25 (2003), avail-able at http://www.unmikonline.org/justice/documents/ pillarI_report_jul03.pdf.

40 EUROPOL Organised Crime Threat Assessment 2006 (2006), available athttp://www.europol.europa.eu/publications/OCTA/OCTA2006.pdf.

41 2005 EU Organised Crime Report, Europol 15–17 (2005), available atwww.europol.eu.int/publications/EUOrganisedCrimeSitRep/2005/EU_OrganisedCrimeReport2005.pdf.


women are brought to Kosovo and then transited to Serbia, Montenegro,Albania, and from there to Western Europe.42 On the other hand thetrafficked women are frequently forced into prostitution in Kosovoitself and constitute a significant source of income for organized crim-inal networks operating solely in Kosovo. The beginning of the inter-national engagement in 1999 has dramatically increased the demandfor brothels and nightclubs. Today, although the international com-munity in Kosovo is aware of the problem and countermeasures havebeen established, human trafficking remains a fact. Since the effectsof human trafficking in Kosovo seem to be declining as a result of themeasures taken by UNMIK, it is likely that this form of organizedcrime has adapted to the new situation.43 It is suspected that more andmore private premises are functioning in place of public or “half-pub-lic” brothels.

• Money laundering. Although there is a basic framework regarding thefight against money laundering, capital and financial movements intoand out of Kosovo remain still largely uncontrolled. Profits made byKosovarian organized crime groups are invested and laundered inKosovo through legitimate businesses, which often belong to the headsof the biggest drug trafficking groups.44 The huge amount of gas sta-tions and brand new warehouses are especially under suspicion of beingfinanced by laundered money.

• Product piracy and counterfeiting. As in BiH, an endless range of coun-terfeited products are available in Kosovo. In large warehouses, illegalcopies of DVD’s, CD’s, PC software, counterfeited trademark clothingand shoes as well as other goods are sold. The sale of forged goods ofimpeccable quality occurs openly, and there is limited enforcementagainst these products due to insufficiencies in the legal system. Thismarket has grown enormously during the last years, and one can eas-ily imagine that it must generate huge profits. The vast amount of highlysophisticated products turned over suggests that the sale of illegal goodsis linked to (transnational) intellectual property crime networks.

42 SIMONA ZAVRATNIK ZIMIC ED., WOMEN AND TRAFFICKING 65, (2004).43 BARBARA LIMANOWSKA, TRAFFICKING OF HUMAN BEINGS IN SOUTH EASTERN

EUROPE 120 (UNDP 2005).44 European Union Commission Delegation, 2005 and 2006 Progress Report on

Kosovo (under UNSC 1244), available at http://www.delscg.cec.eu.int/en/.



The PSO in Kosovo is a broad peace implementation mission encompass-ing UN, NATO, OSCE and EU, based on SC Resolution 1244 and the MTAbetween NATO and the Yugoslav government. The established UNMIK as thesuperior authority divided the provision of public security in Kosovo into threeelements: UNMIK Police (CIVPOL), an indigenous Kosovo Police Service(KPS) and the NATO-led KFOR.45

After the settling of the MTA and the withdrawal of the Yugoslavian forces,KFOR was the first to enter the scene in 1999. According to SC Resolution1244, KFOR is mandated to:46

a. Deterring renewed hostilities, maintaining and where necessary enforc-ing a ceasefire, and ensuring the withdrawal and preventing the returninto Kosovo of Federal and Republic military, police and paramilitaryforces, . . . ;

b. Demilitarizing the Kosovo Liberation Army (KLA) and other armedKosovo Albanian groups . . . ;

c. Establishing a secure environment in which refugees and displacedpersons can return home in safety, the international civil presence canoperate, a transitional administration can be established, and human-itarian aid can be delivered;

d. Ensuring public safety and order until the international civil presencecan take responsibility for this task;

e. Supervising demining until the international civil presence can, asappropriate, take over responsibility for this task;

f. Supporting, as appropriate, and coordinating closely with the work ofthe international civil presence;

g. Conducting border monitoring duties as required; h. Ensuring the protection and freedom of movement of itself, the inter-

national civil presence, and other international organizations[.]

NATO interpreted KFOR’s role broadly and defined three primary objectives:47

• to establish and maintain a safe and secure environment, including themaintenance of public order;

• to monitor, verify and enforce the MTA;• to provide assistance to the civilian presence (UNMIK), including civil-

ian functions.

45 Jones et al., supra note 34, at 27.46 SC Res. 1244 (June 10, 1999), available at http://www.un.org/Docs/scres/

1999/sc99.htm.47 BELLAMY ET AL., supra note 4, at 176.


This was, on the one hand, a very pragmatic approach to the power vacuum asthe civilian part of the mission was deployed markedly slower than KFOR. Onthe other hand, NATO learned its lesson from the IFOR experience and did notfear to add civilian tasks as it understood its role in Kosovo as “to help to under-pin all the civil reconstruction efforts.”48 Therefore, KFOR had to implementthe peace agreement and, for a period of at least 12 months after the deploy-ment, assumed primary responsibility for providing basic law and order.Immediately after the deployment, KFOR was fully absorbed in demilitarizingthe KLA and in protecting the Serbian minority from revenge acts. As the KLAhad and still has hero status, it was a delicate undertaking to act against formermembers of this guerilla force. Summarized, the achievements of KFOR con-cerning organized crime in the very beginning of the engagement were not morethan (but at least) the disarmament of the KLA and the provision of superfi-cial law and order. However, KFOR was unable to protect the Kosovo Serbsefficiently from revenge acts by ethnic Albanians.49 By the installation of (tem-porary) checkpoints, border monitoring and house searching, illegal activitysuch as smuggling of goods and the possession of arms may have been reduced,but it is not surprisingly that KFOR could not prevent Kosovo from the infil-tration of criminal networks.

After the establishment of UNMIK and the takeover of police tasks by theUN-led CIVPOL, KFOR was to act furthermore in their support. Today, KFORis, on the one hand, helping out the civilian actors—mainly the KPS) but alsoCIVPOL—in situations where they are not able to react quickly enough or inlarge scale operations. But, on the other hand, it is also independently fightingorganized crime. Again house searches, checkpoints and border monitoringseem to be the most effective tools in combating drug trafficking, smugglingand illegal migration. One could argue that policing actions should no longerbe part of KFOR’s mandate because a secure environment has already beenestablished, and civilian institutions have taken over these tasks. However, expe-rience has shown that the local authorities and UNMIK are not capable of con-ducting the fight against organized crime without assistance. In intelligencematters, KFOR has its own infrastructure and a functioning human intelligenceunit. Due to extensive control of territories and roads, KFOR is able to reactquickly, and their aerial means are available at any spot at any time. This provedto be of great value in 2001, when ethnic Albanians tried to support the insur-rection in northern Macedonia by illegally crossing the border carrying sup-plies, including weapons, and fears arose that the fighting in Macedonia wouldprofoundly destabilize Kosovo. KFOR monitored the border, conducted arrests

48 E.B. EIDE & T.T. HOLM, EDS., PEACE BUILDING AND POLICE REFORM 210–19 (2000).49 KARI MARGRETHE OSLAND, THE LAW AND ORDER DIMENSION—AN ANALYSIS OF

KOSOVO, IN CAEC-TASK FORCE: COMPARING EXPERIENCES WITH POST-CONFLICT STATE BUILD-

ING IN ASIA AND EUROPE (2002), available at http://www.caec-asiaeurope.org/IE/Publications/index.html.


of individuals seeking to cross the border and turned them over to civilianauthorities.50 However, the vision of taking effective measures against organ-ized crime is often limited by restrictions of the executing national contingents.KFOR is a conglomerate of contingents from 37 nations, each of them bring-ing its own operational military legal framework. Almost every nation, whichhas deployed troops to Kosovo, has specific caveats regarding their engage-ment, such as limiting their use of deadly force, limiting their deployment to acertain sector of Kosovo or requiring their troops to seek approval for certainactivities from national authorities rather than the KFOR command structure.In March 2004, when Albanians rioted against Serbs in Kosovo, German troops,for instance, refused orders to join other elements of KFOR in crowd controlfor reasons of national caveats.51 Although KFOR learned its lesson out of theMarch 2004 riots, it is still easy to imagine that KFOR actions lack a certainhomogeneity due to national restrictions.

SC Resolution 1244 states clearly that the responsibilities of UNMIK includemaintaining civil law and order (including establishing local police forces) bythe deployment of international police personnel. After the withdrawal of theYugoslavian forces, UNMIK began to deploy CIVPOL units immediately. Butit took several months to establish a police presence, and in the first phase ofthe engagement CIVPOL officers were unarmed and lacked basic supplies andequipment.52 CIVPOL initially consisted of 1,800 men but was quickly enlargedup to around 4,000 police officers, still serving in Kosovo today.53 As men-tioned, CIVPOL’s fundamental goals were to help establish law and order andto develop, implement and ultimately transfer these responsibilities to a pro-fessional indigenous KPS. Besides the daily work of CIVPOL on the streets,UNMIK responded to Kosovo’s four primary security threats of organized crime,drug trafficking, weapons smuggling and human trafficking by constitutingseveral special institutions in its justice sector (Pillar I of the peace imple-mentation plan). The following organizational units were formed.54

• Central Intelligence Unit (CIU), which is responsible for intelligencegathering in organized crime and terrorism;

• Organized Crime Bureau (KOCB), which translates the gathered intel-ligence into evidence for criminal proceedings;

• Financial Investigation Unit (FIU);• Sensitive Information and Operations Unit (SIOU), which provides

guidance on prosecution evidence to KFOR and CIVPOL and processessensitive information for the use in court;

50 RAUSCH, supra note 5, at 134.51 Human Rights Watch, Failure to Protect: Anti-Minority Violence in Kosovo 13

(Mar. 2004), available at http://www.hrw.org/reports/2004/kosovo0704/kosovo0704.pdf.52 International Crisis Group, Kosovo Report Card (2000).53 http://www.unmikonline.org/justice/police.htm#2.54 Pillar I, Police and Justice, supra note 39; Woodrow Wilson School, supra

note 35, at 37.


• Trafficking and Prostitution Investigation Unit (TPIU), which is spe-cialized in anti-trafficking issues;

• Victim Advocacy and Assistance Unit (VAAU), which establishes andensures rights and interests of victims within the justice system;

• Interim Security Facility (ISF), which provides assistance and interimaccommodation for victims of human trafficking.

All these institutions represent the importance of the fight against organizedcrime in Kosovo. They show that the international community is endeavoringto install effective measures that not only provide superficial security, but alsoestablish processes to bring the backers of organized criminal networks to jus-tice. Yet, as UNMIK has increasingly transferred law enforcement tasks to thebuilt up KPS, the actions of UNMIK against organized crime declined. UNMIK,however, still reserved the overall responsibility over this task.55 The KPS wasfounded immediately after the establishment of UNMIK’s CIVPOL and has ful-filled its law enforcement responsibility with support of CIVPOL (and alsoKFOR) ever since. Under the auspices of UNMIK, the multiethnic police serv-ice has developed steadily since the first recruits graduated in 1999 and con-sists today of around 7,000 officers. Over the years UNMIK has established apolice force capable of taking on more and more tasks. According to the 2006Progress Report by the Commission of the European Communities, all localpolice stations with the exception of the Mitrovica regional headquarters havebeen transitioned to KPS. Traditional police and investigative functions are han-dled almost entirely by the local police. However, KPS in general suffers fromlow education levels and inexperience. Specialist skills are hard to find. In early2005, the Directorate for Organized Crime (DOC) was created within KPS andis composed of four sections: an organized crime investigation section, an organ-ized crime support and service section, a section for the investigation of traf-ficking of human beings and a narcotics investigation section. The DOC wasstaffed with 72 international and 93 local police officers, but as the interna-tional police was downsized, the number of local police officers graduallyincreased to about 140. Overall it can be stated that efforts by KPS are underway to intensify the fight against organized crime but in terms of concreteresults little improvement has been made.56


Although all the law enforcement actors in Kosovo—UNMIK Police, KPSand KFOR—share the same goal, namely public security, they operate under

55 International Crisis Group, Europe Report No. 170, Kosovo—The Challengeof Transition 6 (2006).

56 European Union Commission Delegation, supra note 44, at 37–39; InternationalCrisis Group, supra note 55.


different circumstances and from diverse positions. Moreover, they have dif-ferent means, which allow them to conduct more or less complex operations.It would seem that with three institutions combating organized crime, it shouldbe possible to achieve significant success. This is obviously not the case, asalmost eight years after the international intervention organized crime still posesa major threat to security and stability in Kosovo. When observing the scopeof coordination between the civilian and military law enforcement, one canquickly reveal the main obstacle. Since the (independently working) local civil-ian administration and local political players are suspected of being linked toorganized criminal networks, it is logical that KFOR is unwilling to offer fullcooperation on, for example, large scale intelligence of organized crime or inthe sharing of details of planned operations. Then again, KPS does not possessall the necessary means for full-range operations against perpetrators and there-fore remains dependent on the military backup. KFOR in itself is not capableof investigating within the tight knit network of family clans on the regional oreven communal level as it has, in general, little investigating expertise and is“too far away” from the actors. As it is already very difficult for local covertpersonnel to obtain access to information about the internal clan structure, itis obviously impossible for international military personnel. It appears that lawenforcement institutions could bridle the superficial effects but that they areunable to take profound and long-lasting measures against organized crime.This, however, is to be dealt with on a higher and political as well as adminis-trative level and thus not the topic of this chapter.

Another problem is that KFOR and UNMIK personnel (as well as the end-less number of NGOs) are a major economy factor in Kosovo. Moreover, tosome extent, the local economy depends on the international engagement.However this, mainly consisting of markets selling products, is often suspectedof being linked to organized crime. Near many KFOR bases, enormous mar-kets have been built up selling mainly counterfeited products such as CDs,DVDs, computer software, clothing, shoes and watches. In short, these mar-kets make huge profits from the international presence. There were efforts tochange the walking out policy and to restrict the buying of goods at well knownpremises, but so far no results have been achieved. As the industry became amajor market player and employer of many Albanians, fears arose that shuttingthese premises down or prohibiting the international actors to shop at themcould lead to discontent and unrest among the population and cause a signifi-cant economical setback.

3. Afghanistan (ISAF)


When organized crime in Afghanistan is at issue, the production and traf-ficking of narcotics, namely opium, is surely the most effective form of crim-


inal activity. According to a report of the UN Secretary-General, Afghanistanis the largest supplier of opium, accounting for 87 percent of the global supplywith an estimated export value of US$ 2.7 billion in 2005, which is equivalentto about 52 percent of Afghanistan’s legal gross domestic product. The flour-ishing drug economy has provided fertile ground for criminal networks, illegalarmed groups and extremists. The United Nations therefore identified the illicitnarcotics industry as a profound threat to the achievement of peace and stabil-ity in Afghanistan.57 As in the Balkans, the illicit narcotics economy has a longhistory. From 1979 to 1992, the rural subsistence economy was devastated bythe war waging between insurgents and the government as well as Soviet troops.Food production is estimated to have fallen by as much as two-thirds. Massiveresource flows were directed to the opposition insurgents from outsideAfghanistan by international supporters of the fight against Soviet troops. Afterthe Soviets’ withdrawal, the international f inancial support ceased and theremaining Mujahideen were forced to acquire new funding sources. This, com-bined with the devastation of the rural economy, created strong incentives forcash production by the cultivation of opium poppy. By the mid-1990s,Afghanistan was producing up to 2,400 tons of opium per year. During the firstyears of the Taliban regime, there was an increase in opium poppy cultivationup to 2,700 tons in 1997/98 and a peak in 1998/99 with 4,500 tons, represent-ing three quarters of the world’s supply. After the Taliban regime banned thecultivation of opium poppy, the country’s overall output was reduced to almostnegligible levels, except in the regions out of Taliban control such as northAfghanistan. Subsequent to the fall of the Taliban, opium cultivation reachedits former quantity.58 In 2006, it soared by 59 percent compared to 2005.59

Since the fall of the Taliban, there is evidence that many warlords are linkedto the drug economy, which fueled their activities.60 Warlordism has a long tra-dition in Afghanistan and has always limited the influence of any central gov-ernment authorities in the rural regions of this wide country with its enormousdistances. Thus, a functioning central state exerting control over all ofAfghanistan has rarely ever existed. So since the establishment of the interimadministration in the aftermath of the Bonn Agreement in 2001 and the elec-tion of the parliament in 2005, the struggle for influence in the rural regionshas been ongoing. Today, basic state functions are in place, and the centralized

57 Report of the UN Secretary-General on the Situation in Afghanistan and itsImplications for International Peace and Security 6 (2006), available at http://www.unama-afg.org/docs/UN-Docs.htm.

58 Doris Buddenberg & William A. Byrd eds., Afghanistan’s Drug Industry,Structure, Functioning, Dynamics, and Implications for Counter-Narcotics Policy 193–95,(The World Bank, 2006) with further references, available at www.unodc.org/pdf/Afgh_drugindustry_Nov06.pdf.

59 UN Office on Drugs and Crime, UNODC Survey 2006, available at http://www.unodc.org/unodc/ press_release_2006_09_01.html.

60 Zentrum für Internationale Friedenseinsätze ed., supra note 13, at 102.


state of the Karzai government is in rudimentary control as it was able to extendbasic authority to most areas, thus curtailing the influence of prominent war-lords. Therefore, the picture of a controlled and stable Kabul with vicious war-lords running the rest of the country by controlling and profiting from drugtrafficking no longer reflects the complexity of the situation. The opium indus-try is suspected of beginning to move towards greater vertical integration withincreased involvement of organized crime. Former warlords—disarmed andsuperficially integrated in the political process—have become politicians andare now unwilling to be associated with criminal activities. However, it cannotbe doubted that many of these “new politicians” remain to take an interest inillegal activities and still receive resources in exchange for political protection.Vertical integration means that drug trafficking operations shifted into the handsof a limited number of key players, with political connections, but who do notgenerally operate overtly in the political arena. Summarized, drug activitieshave become less overt, with the emergence of an underworld with strong polit-ical connections.61 Thus, a close bond between organized criminal groups andstate institutions can be suspected.

In terms of security, insurgent and other anti-government activity haveregained strength and increased (especially in the southern belt62) during thelast two years and is today a major concern. Insurgents gain significant incomeby imposing repetitive transit and protection fees on both drugs and precursorchemicals, which are directly linked to the narcotics economy. As poppy culti-vation often represents the livelihood of the farming community, insurgents areenlarging their influence among the local population by combating poppy erad-ication efforts conducted by the government (via provincial governors) and theinternational community.63 In order to further enhance their control of the ter-ritories, non-state actors are exerting pressure on local rural communities throughintimidation.64 The fight against insurgent and other anti-government elementsremain thus directly linked with the fight against organized crime.

The opium industry, summarized, has an immense impact on the prevail-ing of the newly government-ruled nation of Afghanistan and has become an

61 Buddenberg & Byrd, supra note 58, at 197–98.62 The author is well aware of the fact that the strength of insurgents and organ-

ized crime activity depends strongly on the region of Afghanistan. While the north andnortheast of the country is relatively calm, insurgency has so far mainly affected thesouth, southwest and east of the country in the rural provinces of Hilmand, Kandahar,Nangarhar and Konar but recently was observed reaching urban centers also.

63 Report of the UN Secretary-General, supra note 57; Ali Jalali, Robert B. Oakley& Zoe Hunter, Combating Opium in Afghanistan, Strategic Forum No. 224 (2006), avail-able at http://www.ndu.edu/inss/press/nduphp.html.

64 The Senlis Council, Field Notes, Afghanistan Insurgency Assessment, TheSigns of an Escalating Crisis, Insurgency in the Provinces of Hilmand, Kandahar andNangarhar, London, at 5 (2006), available at http://www.senliscouncil.net.


important, if not the most crucial, obstacle to sustainable security and a peace-ful democracy.


As there were no functioning law enforcement authorities upon the entryof the international presence, the International Security Assistance Force (ISAF)was initially established as a Chapter VII mission by SC Resolution 1386 inaccordance with the Bonn Agreement, which founded the interim Afghan gov-ernment led by Hamid Karzai. The primary role of ISAF is to assist the interimauthority in the maintenance of a safe and secure environment, with all neces-sary measures.65 The mandate was initially limited to Kabul and its surround-ing areas and was to last only six months. The first commanding nation, theUnited Kingdom, limited its mission furthermore by only carrying out patrolsand trying to build local peace and security capacity. Nevertheless, the Britishmilitary expanded its role once on the ground. ISAF’s mandate was temporallyand geographically extended by SC Resolutions 1413, 1444, 1510, 1563, 1623,1659 and 1707 to operate in the whole of Afghanistan up until October 2007.66

Further prolongation would appear to be a formality. Originally ISAF consistedof less than 5,000 troops, but today more than 32,000 armed forces from 37contributing nations serve in the mission, which was expanded in four phasesto cover the whole country. Besides providing a safe and secure environmentthe commander of ISAF defines its role clearly in his intent:67

Within this framework, ISAF will:a. In step with GOA’s (Government of Afghanistan) National

Development Strategy, concentrate on those activities that willmost clearly and quickly assist the GOA in its drive to establishthe sustainable economic growth on which the future of the coun-try depends. Some examples of this approach include:1. Helping ensure the security of mineral resources, border cross-

ing points, and the transport network, water and power sup-plies.

2. Supporting the GOA in the development and prosecution ofits Counter Narcotics (CN) campaign.

65 SC Res. 1386 (Dec. 20, 2001).66 SC Res. 1413 (May 23, 2002); SC Res. 1444 (Nov. 27, 2002); SC Res. 1510

(Oct. 13, 2003); SC Res. 1563 (Sept. 17, 2004); SC Res. 1623 (Sept. 13, 2005); SC Res.1659 (Feb. 15, 2006); and SC Res. 1707 (Sept. 12, 2006).

67 http://www2.hq.nato.int/isaf/mission/mission_operations.htm.


3. Assisting in the GOA’s economic and human resource devel-opment strategy so as to enable Afghanistan to become increas-ingly self-sufficient.

b. Work to resolve conflict and reduce tension within Afghanistan,focusing on the holistic defeat of the residual insurgency threat tothe country. Supporting and helping to train the Afghan NationalSecurity Forces (ANSF) to a standard that will enable them in timeto assume full responsibility for the internal and external securityof the country will be critical to success.

Thus, ISAF is involved in every security issue in Afghanistan, including thefight against organized crime. However, so far basic security has not been estab-lished, and ISAF finds itself, especially in the south, in a daily struggle to pro-vide a safe atmosphere. In addition, ISAF does not originally see itselfresponsible for combating narcotics crime. It can therefore not yet focus oncombating organized drug crime, although in a wider context ISAF has indeedmade some achievements in this fight worth mentioning. As the local popula-tion suffers from poverty, engaging in opium cultivation may be their only sourceof income. By providing basic security, ISAF motivates humanitarian aid work-ers to return and assist the local population in building up basic structures foralternative sources of income. Through so called Provincial ReconstructionTeams (PRTs), ISAF is trying to increase the influence of the Karzai govern-ment in the rural regions.68 The PRTs are also trying to win the “hearts andminds” of the local population by offering direct assistance in engineering,transport, medical help etc. By the demilitarization of local militias, often linkedto the opium industry, ISAF may help the local population in becoming lessdependent on organized criminal networks. In terms of security, this is onlypossible in the calmer regions of Afghanistan. As the insurgent activity hasincreased over the last two years, especially in the south (e.g., Kandahar andHilmand Provinces), ISAF is more likely to shift its priorities to civilian assis-tance and counternarcotics activities in the north and northeast. Furthermore,ISAF is active in combating narcotics crime by training a special narcoticspolice force within the process of building up the Afghan Security Forces(Afghan National Army and Afghan National Police).

As it is a multinational mission, the legal framework of ISAF includes ofcourse national caveats.69 These restrictions may, for example, prohibit forcesfrom engaging in combat operations, night patrols or other operational activi-ties. It is not only the lack of equipment (no transport helicopters or night visiongoggles) or training that forces nations to issue caveats, but also, and more

68 Available at http://www2.hq.nato.int/ISAF/Backgrounders/bg005_prt.htm.69 Operational caveats are not publicly released, but rather are a logical conse-

quence of a multinational mission. Some caveats of ISAF are nevertheless commonlyknown.


often, the political pressure. For that reason, the German contingent is notallowed to participate in combat operations if not acting in self-defense or on“extended patrols.” Although all ISAF contingents are embedded in the samecommand structure, caveats pose difficult problems for commanders, who seekmaximum flexibility in utilizing their troops. General Jones, NATO SupremeCommander, estimated that there were about 50 national caveats within ISAF,which significantly hampered operations. Consequently, it is easy to imaginethat caveats limit the effectiveness and flexibility of ISAF operations. AlthoughNATO tried to minimize the number of caveats of ISAF forces, it has only par-tially succeeded.70 At the NATO Summit in Riga in November 2006, nationalcaveats could have been reduced to some extent but are remaining to hinderoperations on the ground.71

It is important to notice that ISAF is operating—at least formally—sepa-rately from the US-led Operation Enduring Freedom in Afghanistan (OEF) ofthe “coalition of the willing” conducting its war on terrorism. Although ISAFand OEF are working overall towards similar targets, namely the stability andsecurity in Afghanistan, their missions seem to be very different. OEF and theengaged countries (mainly the United States and Great Britain) are conductingtheir war on terrorism in the context of their interpretation of the right of self-defense (Article 51 of the UN Charter) and therefore would actually not fit intothis chapter as peace supporters. In a wider view, however, OEF has to someextent inevitably become a part of the PSO of NATO and the United Nations.Although ISAF is in charge of all military operations in Afghanistan, OEF isstill independently engaging against remnants of the Taliban and suspected AlQaeda fighters and consists of approximately 10,000 troops,72 special units andsecret services personnel, mostly from the United Kingdom and the UnitedStates. Law enforcement, in the context of focused action against organizedcrime, is not a major task of OEF. However, as Taliban and other insurgent fight-ers are directly linked to organized crime, combating them means f ightingorganized crime. OEF was actively engaged in crop eradication via local sub-contractors as well as international private military companies, such as DynCorp.

70 Helle C. Dale, NATO in Afghanistan, A Test Case for Future Missions, HER-

ITAGE FOUNDATION, BACKGROUNDER, No. 1985, Dec. 8, 2006, available at www.her-itage.org/Research/Europe/upload/ bg_1985.pdf; Umit Enginsoy, NATO Urges Nationsto Lift Caveats on Forces in Afghanistan, DEFENSE NEWS, Oct. 2006, available athttp://www.defensenews.com/story.php?F=2308519&C=europe.

71 NATO after the Riga Summit, Speech by Ambassador Edmund Duckwitz,2006, available at www.kas.de/proj/home/pub/9/1/year-2007/dokument_id-9735/index.html.

72 Formally, these troops are embedded with ISAF, however, the United Statesretained command over its component: International Crisis Group, Asia Report No. 123,Countering Afghanistans’s Insurgency: No Quick Fixes 14 (2006), available at www.cri-sisgroup.org.


This, however, caused until now even more problems than it helped combatingorganized crime (see below).

The Afghan National Army (ANA) has begun to evolve in the aftermath ofthe fall of the Taliban regime and is still being built up by the internationalcommunity. It consists of approximately 34,000 trained troops out of a pro-jected force of 70,000. Although attrition rates have not been publicly released,it is estimated that desertion and irregular absences are increasing and, due tobad equipment, weapons and vehicles, the strength of some battalions is judgedto be at around 60 percent.73 The training of the ANA is led by the United States,but since 2005, NATO/ISAF have also been providing training courses. Mostof the training is, however, conducted not at training camps but on the job, asthe ANA is often sent into combat accompanied by international forces. It istherefore easy to imagine that ANA forces are only minimally prepared to facethe cleverly operating insurgents. It has been observed that ANA forces are alsoconsuming drugs on duty and during combat as well as taking bribes at check-points, where not monitored by international forces.74 Overall, it must be statedthat the ANA is not yet ready to perform against insurgents or in operationsagainst organized crime on its own.

Although the roles of the ANA and the Afghan National Police (ANP) areoften muddled during combat operations, they are two different institutions.The ANP is supposed to have some 65,000 policemen and officers and consistsof previous security personnel. Organized by districts, they are often little morethan private militias still loyal to their local or regional commanders rather thanthe national government. After receiving basic training from international per-sonnel, the local policemen return to an environment where pressure from drugtraffickers and corrupt officials is enormous. Once sent to the regions, policeofficers lack organized leadership as well as equipment and facilities neededto perform their role. Instead they are suspected of being involved in traffick-ing protection and corruption. All in all, the ANP seems to be more a sourceof insecurity than protection. It is therefore an inefficient instrument in thestruggle against organized crime in Afghanistan and has no significant influ-ence outside of Kabul.

No doubt worth mentioning as a law enforcement institution, is the CentralPoppy Eradication Force (CPEF) run by the Ministry of Afghan CounterNarcotics. Crop eradication was conducted by the CPEF and the ANP withstrong support from the United States and United Kingdom governments.DynCorp, as mentioned above, led many of the eradication operations in directsupport of provincial governors or district leaders.75

73 Id., 16.74 NATO Briefing, Afghanistan (Oct. 2006), available at www.nato.int/docu/brief-

ing/afghanistan-2006/afghanistan-2006-e.pdf; Sean Langan, Channel 4 TV Report,Dispatches, Fighting the Taleban, 2006, broadcast Jan. 8, 2007.

75 The Senlis Council ed., Impact Assessment of Crop Eradication in Afghanistan



What began as a PSO with the deployment of ISAF to Afghanistan afterthe fall of the Taliban is no longer worth this term. The rising of insurgency inthe southern belt led to intense fighting between anti-government forces andISAF or OEF as well as the Afghan Security Forces. There is no peace to keepin the southern provinces. What started as what may be called a traditional PSOmelted into a war on terror and now faces open guerilla warfare. The securitysituation has become so bad that focused policing actions against criminal net-works are out of the question at the moment. This seems to be even more frus-trating when bearing in mind that insurgents often profit from drug traffickingand arms smuggling. Rather than engaging in rebuilding efforts and furthercivilian tasks in a bid to win the hearts and minds of the population and thusdestroying the basis of support for the insurgents, ISAF troops must concen-trate on providing basic security. This is far from being achieved and moreoverlogically causes civilian casualties—especially when engaging close air sup-port as mostly needed in combat with the insurgents. In the words of BritishColonel and legal expert Charles Garraway: “You are not winning hearts andminds by putting bullets into hearts and minds.”76 Although ISAF’s basic man-date is robust, national caveats limit the troops’ flexibility and effectiveness.Furthermore, the initial mandate limited the area of operation of ISAF to Kabuland its surroundings, and it has only lately been expanded into the criticalprovinces for fear of facing too much opposition. This, however, enabled theinsurgency to regain strength. Overall it seems that the establishment of ISAFdid not follow the necessities of the nation rebuilding process but was con-structed around what the international community was willing to commit. Interms of law enforcement, the international community faces daunting chal-lenges: the rule of law is crucial, but since this depends on the success of goodgovernance, the success of the central government is vital. Yet its influence issmall, particularly in the rural regions, and the establishment of the rule of lawthroughout Afghanistan is far from being achieved. Crop eradication aims tostrengthen the influence of the government but has in fact robbed the farmingpopulation of their source of income by not providing alternatives. In the fightagainst organized drug crime, a broad understanding of the problem is needed,and single actors conducting autonomous operations may never succeed. Onlyconcerted action of military, civilian, political, administrative (including pol-icy) players may help to tackle organized drug crime in Afghanistan.

and Lessons Learned from Latin America and South East Asia, 20–24 (2006), availableat http://www.senliscouncil.net/modules/publications/009_publication.

76 Col. Charles Garraway, “The lawyer advises, the commander decides,” lec-ture at the PfP Seminar CENTROC, Lucerne, Switzerland, Fall 2004.


F. CONCLUSIONS

Conflicts throughout the world teach that a power vacuum in post-conflictscenarios is likely to attract organized crime. Recent experiences from PSOsalso show that organized crime can be a threat to security and stability. As mil-itary components are often the only or at least the most effective law enforce-ment instrument in a post-conflict scenario, they face broader and more complexassignments than just traditional military tasks. Armed forces may help to pro-vide basic law and order functions, but they are in general neither equipped nortrained for long-term police tasks. Effective civilian law enforcement institu-tions are inevitable. In combating organized crime, military forces, due to theirmeans, are able to provide useful support by controlling territory and roadsthrough checkpoints, monitoring borders and backing up civilian police withouter security perimeters. Intelligence-gathering can easily be extended to organ-ized crime, and the military therefore can provide the civilian law enforcementinstitutions with helpful information. For this new role, innovative militaryinstruments are needed, and training must be adapted. In the first step, the tran-sition of the traditional infantry soldier to a heavily armed policeman, asdemanded by many military reformers, has to be consistently pursued. Then,specialized units have to be embedded with detailed law enforcement or eveninvestigation expertise, as it is already practiced. Then again, from the militarypoint of view, a concentrated fight against organized crime can only be begunif basic security is established.

Civilian police, may it be indigenous or international, should take over lawenforcement tasks as soon as possible. As this is not always immediately evi-dent, this step should only be taken if they are capable of doing so. The settingup of police forces has proven to be very difficult to reach Western standards.Local police forces are frequently affected by corruption and may even be linkedto criminal networks. As the police forces will operate on the frontline in thefight against organized crime once the international presence withdraws, theefforts of building up these forces cannot be large enough.

In the era of wider peacekeeping, coordination and cooperation in the fightagainst organized crime play an important role in the implementation of effec-tive actions. This, however, has proved to be an enormous problem in recentpost-conflict scenarios. Overall it has been experienced that the civilian lawenforcement contribution, once a safe and secure environment has been estab-lished and respective institutions are functioning, is far more important foreffective countercrime efforts than the military component.

It has been shown that incomplete mandates or national caveats can impedethe success of an international engagement. Therefore, the legal framework, bywhich all PSOs are initially defined, must already implement basic ideas ofcombating organized crime. Concerning the fight against criminal networks, aclear definition of tasks and responsibilities down to the single acting military


or civilian units should be delivered by the legal framework before the deploy-ment. This would certainly help to reduce competence conflicts or law enforce-ment gaps. Of course, international engagement always depends on the politicalwill and national legislation and therefore, putting together a PSO is a fragileprocess. But it may still be more effective to shape a mission around the realsituation than to try to readapt it to the needs of the ongoing operation, once ithas already been established. Thus, a detailed assessment on the organized crimesituation and its effects on the peace support engagement is indispensable.

In a wider context, the overall political direction of a PSO may be anotheressential factor in the fight against organized crime. If the political directionof a mission is vague or not sufficiently focused, the establishment of the ruleof law may take too long, giving criminal networks time to build up or extendparallel structures. The efforts of law enforcement institutions are then wasted,and actions taken always seem to be one step behind.

In conclusion it may be added that organized crime—not only in peace sup-port scenarios—is a complex problem. There are most certainly no short-cutsor simple solutions. It will continue to depend on the determination and thecommitment of the international community to address organized crime withits long-term and possibly painful engagement.

105

CHAPTER 6

PEACE SUPPORT FORCES—ASSISTING THE CIVILIANAUTHORITIES IN CRIMINAL PROSECUTIONS

Kwai Hong Ip*

For the men of Wu and the men of Yueh are enemies; yet if they arecrossing a river in the same boat and are caught by a storm, they willcome to each other’s assistance just as the left hand helps the right.1

A. INTRODUCTION

In the quest to maintain a secure environment through the development,maintenance or enforcement of the rule of law, peace support forces (PSF)should strive to achieve mutual aims with judicial and law enforcement author-ities that are likely to include: the prosecution of offendes that occurred dur-ing a conflict and the control of those who create, perpetuate or foster instabilityand insecurity through violent acts. Long-term extrajudicial detention by PSFis unlikely to be a long-term solution to the problem of removing from the envi-ronment those who foster insecurity through criminal acts. Judicial detentionmay be the only real alternative that achieves respect for the rule of law.Therefore, the mutual aims should be to uncover crime, monitor and capturecriminal suspects, assist and support the collection of evidence and ensure thatthe perpetrators of crime are successfully prosecuted.

Operational- and tactical-level commanders are likely to consider the extentthat a PSF may assist and support the work of state institutions and interna-tional organizations, within mandates and operation plans that detail author-

* International Prosecutor, Special Department for War Crimes, Prosecutor’sOffice of Bosnia and Herzegovina; former Legal Officer, UNMIK Department of Justice;Legal Adviser (Operational Law) to the Kosovo Force (KFOR); Royal Air ForceProsecutor. The views expressed in this chapter are the author’s.

1 SUN-TSU, THE ART OF WAR, ch. 4, sec. 30 (Lionel Giles M.A. trans., 1910).Critical note: “if two enemies will help each other in a time of common peril, how muchmore should two parts of the same army, bound together as they are by every tie of inter-est and fellow-feeling. Yet it is notorious that many a campaign has been ruined throughlack of cooperation, especially in the case of allied armies.”


ized tasks and missions for the use of PSF. These bodies are likely to includejudicial and law enforcement authorities and the international organizationsthat advise them. Furthermore, troop contributing nations (TCNs) will beaware of their treaty obligations in relation to the prosecution of breaches ofinternational humanitarian law (IHL) and other serious violations of the lawof armed conflict.

This chapter considers when and how PSF can assist in criminal prosecu-tions conducted by national and international judicial and law enforcement insti-tutions in the context of peace support operations (PSO). It will outline theduties of PSF and TCNs provided by the law of armed conflict and treatiesentered into by the sending state. It will further deal with the two phases char-acterizing any mission: firstly, the phase when PSF enter an area to resolve aconflict or an immediately post-conflict scenario and, secondly, the phase whenPSF operate in an area with functioning national institutions in order to pro-vide security and assistance.

The chapter will then address the different legal traditions and laws thatlegal advisers must take into account when implementing any of the observa-tions regarding operations during the second phase. After this, it will proceedto discuss practical aspects of coordination in three areas where PSF opera-tional tasks and activity can directly impact the work of criminal justice author-ities—intelligence coordination, crime scene security and physical evidencegathering, and searches and arrests—and where PSF should consider cooper-ation strategies with judicial, prosecutorial and law enforcement authorities.Finally it will draw the conclusions.

B. AUTHORIZED TASKS AND INTERNATIONAL OBLIGATIONS

Military commanders are aware that they must conduct their operationswithin the parameters set by their TCN and, where applicable, the lead or coor-dinating international body or multinational Force Commander. Strategic andoperational level operations’ plans will enumerate tasks and reflect the pur-poses of the mission where it is established pursuant to political decisions,including UN Security Council (SC) resolutions. Enumerated or implied tasksof the operations’ plan may include assisting and supporting the work of stateinstitutions and international organizations. At each phase of the mission, com-manders will consider the imperative tasks of the mission and then whether,when and what type of assistance the PSF can provide to national and interna-tional authorities.

TCNs are also likely to consider their duties under treaty or domestic law.A TCN may be limited by its constitution, laws and conditions imposed by thelegislative bodies that approved the deployment of its armed forces.2 Furthermore,

2 National caveats limiting the roles, tasks and means that may be used by forcesdeployed on missions.

Assisting in Criminal Prosecutions 107

recent national judgments and pending judgments of the European Court ofHuman Rights are posing important questions addressing the extraterritorialapplication of the European Convention on Human Rights (ECHR)3 to the armedforces of a signatory state operating in the territory of another (including non-signatory) state during military operations. These will have far reaching con-sequences as to whether and how TCNs will conduct PSOs, the tasks they willperform and the modification of existing national caveats.4

In the context of IHL, other international instruments may apply. TheInternational Criminal Court (ICC) was established in an attempt to ensure thatcrimes would no longer be committed with impunity. States parties to the Statuteof the ICC (Rome Statute)5 are obliged, in accordance with Article 86, to “coop-erate fully with the Court in its investigation and prosecution of crimes withinthe jurisdiction of the Court.” In relation to the ad hoc tribunals, which are sub-sidiary organs of the UN Security Council, Article 25 of the UN Charter requiresmember states to “agree to accept and carry out the decisions of the SecurityCouncil in accordance with the present Charter.” Under Article 103 of the UNCharter, the obligations of a member state under the Charter prevail over con-flicting obligations. By virtue of Article 29(1) of the Statute of the InternationalCriminal Tribunal for the former Yugoslavia (ICTY)6 and Article 28(1) of theStatute of the International Criminal Tribunal for Rwanda (ICTR),7 the tribunalscan impose mandatory terms that oblige member states to cooperate with thetribunal in the investigation and prosecution of persons accused of committingserious violations of IHL and to comply, without undue delay, with any requestfor assistance or an order issued by a Trial Chamber.

Under Additional Protocol I of 1977 (AP I),8 signatory states are obligedto assist the United Nations in response to serious violations in accordance with

3 European Convention for the Protection of Human Rights and FundamentalFreedoms, signed Nov. 4, 1950, entered into force Sept. 3, 1953, 213 U.N.T.S. 221, E.T.S.No. 5.

4 See Josephine Lett, The Age of Interventionism: The Extra-territorial Reachof the European Convention on Human Rights, in PRACTICE AND POLICIES OF MODERN

PEACE SUPPORT OPERATIONS UNDER INTERNATIONAL LAW 117 (Roberta Arnold & Geert-Jan Alexander Knoops eds., 2006), [hereinafter ARNOLD & KNOOPS]; see also Behrami v.France, Application No. 71412/01 and Saramati v. France, Germany and Norway,Application No. 78166/01, argued before the Grand Chamber of the European Court ofHuman Rights on November 15, 2006, decision awaited; see press release, athttp://www.coe.int/t/d/kommunikation_und_politische_forschung/presse_und_online_info/presseinfos/2006/20061115-693-GH-Behrami.asp (last visited Jan. 23, 2007); see alsoRegina (al-Skeini and others) v. Secretary of State for Defence, 2004 E.W.H.C. 2911,and 2005 E.W.C.A. Civ. 1609, at http://www.hmcourts-service.gov.uk/judgments-files/j3670/al_skeini_v_state_1205.htm#207 (last visited Jan. 24, 2007)—case now onappeal to the House of Lords (UK).

5 UN Doc. A/CONF. 183/9 (1998).6 SC Res. 827, UN Doc. S/RES/827 (May 25, 1993). 7 SC Res. 955, UN Doc. S/RES/955 (Nov. 8, 1994).8 Protocol Additional to the Geneva Conventions of August 12, 1949, and


mandates or specific requests9 and also to assist other signatory states.10 Thesemay include tasks such as conducting surveillance and search and arrest oper-ations of persons accused or indicted for breaches of IHL. In relation to gravebreaches under Article 147 of the fourth Geneva Convention of 1949 (IV GC)11

committed against protected persons (civilians) and property, military forceshave an obligation to search for persons on their territory suspected of com-mitting such grave breaches.12 Whether any of these duties are binding or maybe used as guidance will depend on the treaty obligations of the TCN and theparticular circumstances of the mission itself.13

C. INITIAL PHASE OF OPERATIONS—CONTROL OF THE GROUNDENVIRONMENT AND POST-CONFLICT ACTIONS

1. Securing Evidence

PSF can play an essential role because of their special access to areas andfacilities upon arrival in the immediate aftermath of conflict. When a PSF isfirst to enter a conflict area and to assume at least tactical control over it, itmay face a chaotic situation but one that is critical for the further conduct ofproceedings dedicated to uncovering the truth behind the conflict, the locationof deceased victims and future prosecutions for violations of IHL. The pre-dominating feature of crimes arising from a conflict and/or from an oppressiveregime where there was a widespread or systematic attack on the civilian pop-ulation is that they are extreme in their scope and violence and that they tendto be systematic and planned. The majority of the evidence relied on for pros-ecuting these violations of international law are highly likely to be a mixtureof witness testimony and documentary evidence. With access and control, there-fore, PSF are in a position to undertake the duties of collecting and/or secur-

Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125U.N.T.S. 3, entered into force Dec. 7, 1978 [hereinafter AP I].

9 Id., art. 89.10 Id., art. 88(1): “The High Contracting Parties shall afford one another the

greatest measure of assistance in connection with criminal proceedings brought in respectof grave breaches of the Conventions or of this Protocol.”

11 Convention relative to the Protection of Civilian Persons in Time of War (1949),75 U.N.T.S. 287.

12 To complement and implement the principle established in Article 146 of IVGC that the primary responsibility for the prosecution of war crimes rests with indi-vidual states.

13 See Kwai Hong Ip, Peace Support Operations: Establishing the Rule of Lawthrough Security and Law Enforcement Operations, in ARNOLD & KNOOPS, supra note 4,at 8–15.


ing evidence where offenses of war crimes, crimes against humanity or geno-cide have been committed.

Witnesses can testify to the preparations for, the commission and the after-math of violent events, including the location of mass graves and the identifi-cation of perpetrators. Cooperating witnesses,14 who have knowledge of andparticipated in the execution of orders of unlawful acts, can give evidence ofthe orders, intelligence and instructions given to them, the animus of their com-manders or leaders and their role in the operation from which the bigger pic-ture of a joint criminal enterprise can be formed.

2. Documents

Documentary evidence plays a central role in any investigation and sub-sequent prosecution. Because they are likely to be created for military, intelli-gence, political or administrative purposes rather than avoiding criminalproceedings, they are presumptively reliable. Documents recovered and usedin trials before the ICTY include payrolls, appointment decisions and duty offi-cer logs that list personnel involved, establish the chain of command and areessential for locating potential witnesses and suspects. Signal intercepts, air-borne surveillance images, intelligence and combat reports uncover and explainthe plan, what actually happened, when and why, thereby helping to identifythe perpetrators of a crime. Detainee lists evidence the disappearance of per-sons from prison and detention camps and assists in the location of and cor-roborates victim testimony. Even what may seem to be innocuous administrativedocuments have evidential value. Vehicle logs, fuel and material supply issuancevouchers have played a major role in providing evidence of the movement ofcommanders to locations, thereby establishing their presence and knowledgeof summary executions, the use of and movement of vehicles used during forcedtransfer of the civilian population, corroborating the location of combat unitsand the logistical preparation of units tasked to carry out the attacks againstthe civilian population.15

Obviously during high intensity engagements or operations to establishcontrol of an area, the securing of evidence is unlikely to be viewed as an essen-tial and priority task. However, from recent experience, the failure to collectand secure documents hampers the resolution of complex social and political

14 Variously known otherwise as “collaborators with justice,” meaning those whoare co-perpetrators with those who are accused.

15 For examples, see the judgments of the Trial Chamber of the ICTY inProsecutor v. Radislav Krstic, Case No. IT-98-33-T (Aug. 2, 2001), and Prosecutor v.Vidoje Blagojevic et al., Case No. IT-02-60-T (Jan. 17, 2005) [hereinafter Krstic andBlagojevic], the “Srebrenica genocide” cases. See also Prosecutor v. Popovic et al., CaseNo. IT-05-88-T (Aug. 4, 2006).


problems that are a common feature of post-conflict society. War victims andtheir families will always seek information about missing family members.Often, the civilian population will call on security bodies and judicial author-ities to locate and prosecute the perpetrators of crimes. Failure to secure doc-uments makes it more difficult for authorities to collect vital evidence and bringto justice those responsible for serious violations of international law.16

Therefore, as soon as the situation allows, PSF should strive to secure doc-uments and archives in accordance with organized and coordinated arrange-ments. It is important to be able to trace the source of the documents from aparticular facility or location and to assess the documents so that those taskedwith evidence gathering may exploit them.

Where documents are to be seized from state institutions that continue tofunction, there may be an added complication. These documents will be requiredfor continued operations. Alternative methods of securing them, such as imple-menting document security and management systems, may be impossible ortoo much of a burden. In these circumstances, PSF may consider documentscanning where facilities and logistical support are available. The increasedexpense and logistic effort may be justified by the fact that documents held bystate institutions may have high intelligence value, and such activity can there-fore have a dual purpose. In exploiting documents for intelligence purposeshowever, PSF should consider how important documents are to be classifiedand held so that they may be released more easily to investigating authorities.17

3. Witnesses

Witness testimony at trials are fraught with numerous and complex issuesincluding incomplete memory, honest but mistaken recollection, bias or othertaint,18 and some collaborators with justice have given false statements in thehope of concluding a more advantageous plea bargain.19 From the experience

16 See Human Rights Watch Reports, Ensuring Justice for Iraq: EvidencePreservation and Fair Trials (Sept. 2003), at http://www.hrw.org/press/2003/09/iraq091203.htm (last visited Jan. 13, 2007); Iraq: State of the Evidence (Nov. 2004),Vol. 16, No. 7 (E), at http://hrw.org/reports/2004/iraq1104/iraq1104.pdf (last visitedJan. 13, 2007).

17 See Section E.18 In one case before the Court of Bosnia and Herzegovina, the one victim of

rape admitted to giving false testimony in order to continue receiving benefits from avictim support group; Proseuctor’s Office of Bosnia and Herzegovina v. Boban Simsic(2006), available at http://www.reliefweb.int/rw/rwb.nsf/db900sid/YAOI-6X9A5D?OpenDocument.

19 For example, see the testimony of cooperating witness Momir Nikolic, inBlagojevic, T.2124-T.2130 (Sept. 29, 2003), at http://www.un.org/icty/transe60/030929IT.htm (last visited Jan. 24, 2007).


of investigations and prosecutions of violations of IHL conducted in Kosovoand Bosnia and Herzegovina to date, the first witness interview by an inves-tigative authority is of paramount importance. It is the closest to the perceivedevent when memory is more likely to be relatively fresh. It may have been madein circumstances that are less likely to be tainted by hopes of reparation or otherinducements, or witness intimidation. Therefore, it may be more reliable.However, some must be treated with caution. Some statements were taken byauthorities with other purposes in mind, and they may be an incomplete andselective account or may be reduced in writing by an untrained and/or a parti-san observer.

Considering that prosecutions and trials are likely to come years after theconflict, if at all, witness evidence must be preserved at this early stage, and itmust be as complete and detailed as possible. Every effort should be made tosecure all relevant information, including when and where the witness was, theview he/she had of the scene, descriptions of vehicles, uniforms, weapons, direc-tion of travel, smells, sounds, intensity types of weapons discharges and descrip-tions of persons. Investigators must find objective facts to base well-groundedidentifications of perpetrators, where a witness alleges one, such as lightingconditions, distances, obstructions and the length of time the witness saw a per-son or event.

Since 2000 in Kosovo, poor identification evidence in cases where directperpetration was alleged, has resulted in acquittals or has led to the withdrawalof indictments or investigations: whether it was a result of fleeting glances,mistaken identification or recognition, suggested identifications, identificationfrom hearsay accounts of others and even contamination through watching filmclips on mass media long after the event of persons believed to have held par-ticular positions of authority at the time of the criminal act. Poor identificationevidence has also resulted in acquittals before the ICTY.20

However, where prosecutions of senior commanders are concerned, thefocus of identification evidence is likely to be on military or paramilitary unitsrather than individual identifications. Victims and witnesses are often unableto provide identification evidence owing to the “fog of war,” the use of troopsfrom outside the local area and/or through abject terror and confusion thataccompanies violent events. If they do, it is often poor or mistaken, and its reli-ability is often challenged. It is not uncommon for there to be a lack of reliablerecognitions. In such circumstances, prosecutions are likely to charge indirectmodes of liability, such as joint criminal enterprise, aiding and abetting or com-mand (or superior) responsibility, in order to connect the accused with a par-ticular act charged.

20 See the basis for acquittals of Musliu and Limaj in Prosecutor v. Fatmir Limajet al., Case No. IT-03-66-T, at http://www.un.org/icty/limaj/trialc/judgement/lim-tj051130-e.pdf (last visited Jan. 13, 2007).


4. Mass Graves

While television crews filmed the fall of Srebrenica enclave21 and reporterswrote harrowing tales of the conditions within the enclave22 and the escape routetaken by Bosnian Muslim men across mountainous terrain, airborne assets wereused to collect images of mass graves that were later exploited during the inves-tigation and adduced as evidence during trials at ICTY.23 Using these imagesand witness statements, ICTY investigators began to uncover mass graves in andaround Srebrenica. The Trial Chamber in Krstic found that between 7,000 and8,000 men24 had been killed. Teams of forensic anthropologists, archeologistsand pathologists exhumed and analyzed the bodies from over 20 mass graves.From the timing of the images, investigator witnesses testified as to the datesbetween which the graves were dug and filled and when they were opened upto relocate the remains to secondary graves in an attempt to hide the evidenceof summary executions and genocide. Furthermore, by categorizing the modeof death and analyzing anthropological or pathological data, the preponderanceof multiple gunshot wounds as opposed to shrapnel wounds can allow inferencesto be drawn as to whether the victims died as a result of mass execution.25

Once mass graves are uncovered and the forensic exhumation processbegins, it is essential that sites are secured to prevent contamination of the evi-dence and to preserve the integrity of a crime scene so that bodies are not recov-ered by family members, graves are not desecrated and personnel, supplies andequipment are secured. Therefore, where the mandate allows, PSF should assistthe work of forensic exhumation teams by providing security at the site and,where necessary, logistical support.

D. APPLICABLE CRIMINAL PROCEDURE AND ADMISSIBILITY OF EVIDENCE

The drafters of the Rules of Procedure and Evidence for the ICTY tookheed of the warnings given by governments making recommendations for rulesof procedure and evidence against applying technical rules of evidence that

21 Established by SC Res. 819, UN Doc. S/RES/ 819 (Apr. 16, 1993).22 See Serbs Overrun UN ‘Safe Haven,’ BBC News, July 11, 1995, at

http://news.bbc.co.uk/onthisday/hi/dates/stories/july/11/newsid_4080000/4080690.stm(last visited Jan. 23, 2007); Serbs force Muslims Out of Srebrenica, BBC News, July15, 1995, at http://news.bbc.co.uk/onthisday/hi/dates/stories/july/15/newsid_3736000/3736438.stm (last visited Jan. 23, 2007).

23 Krstic and Blagojevic, supra note 15.24 See Krstic, Trial Chamber Judgment, supra note 15, at paras. 84 and 426.25 See testimony of witness Dean Manning, Blagojevic, T.7140 et seq. (Feb 4,

2003), at http://www.un.org/icty/transe60/040205IT.htm (last visited Jan. 24, 2007).


would be sourced from a situation of conflict. There would be “restricted pos-sibilities of gaining access to documentary evidence in the process of an ongo-ing armed conflict and, therefore the need to rely on viva voce evidence . . .[t]herefore it was considered that the inclusion of technical rules would onlyencumber the judicial process.”26 Both the ICTY and the ICTR have adoptedfew rules of evidence and are faithful to the general principle of “free evalua-tion of evidence” that features in many countries with a “civil law” or inquisi-torial tradition. Evidence that is relevant and probative is generally admittedunless excluded because its value is substantially outweighed by the need toensure a fair trial. The ICC has a similarly flexible approach to the admissibil-ity of evidence.27

Often prosecutors and investigators from international tribunals seek theassistance of PSF and provide them with guidance on what this may entail. Thesituation may be different when PSF plan to participate by lending support tonational criminal investigation authorities in the theater of operations. PSOsmay well be operating in multifarious and unfamiliar legal regimes. PSF andtheir advisers should consult local legal authorities or international organiza-tions involved in the reform of justice institutions in order to make adequatepreparations to understand and research the applicable laws of criminal proce-dure. Without such preparation, PSF may fail to properly understand why, afterthey provided assistance and placed personnel in jeopardy, the evidence securedresulted in high value suspects being released or successful prosecution fail-ing. As an example, the applicable national law may provide for much shorterperiods of pre-trial detention than normally expected, even where serious offensesare alleged. The Interim Criminal Procedure Code (2004) of Afghanistan pro-vides for a maximum pre-trial detention period of 30 days, and the prosecutor(Saranwal) must indict or release the suspect on its expiry. The maximum periodof custody during first instance trial is two months.28

26 Permanent Mission of the Argentine Republic to the United Nations, July 27,1993, IT/4 (Nov. 16, 1993) and Letter from the Permanent Representative of Canada tothe United Nations Addressed to the Secretary-General, IT/15 (Nov. 29, 1993), quotedin Prosecutor v. Zejnil Delalic et al., Decision on the Prosecution’s Motion for theRedaction of the Public Record, IT-96-21, at para. 41 (June 5, 1997), at http://www.un.org/icty/celebici/trialc2/decision-e/60605MS2.htm (last visited Jan. 13, 2007).

27 See Rome Statute art. 69(4): “The Court may rule on the relevance or admis-sibility of any evidence, taking into account, inter alia, the probative value of the evi-dence and any prejudice that such evidence may cause to a fair trial or to a fair evaluationof the testimony of a witness, in accordance with the Rules of Procedure and Evidence.”See also, ICC Rules of Procedure and Evidence, Rule 63(2): “A Chamber shall have theauthority, in accordance with the discretion described in article 64, paragraph 9, to assessfreely all evidence submitted in order to determine its relevance or admissibility in accor-dance with article 69.” The Rome Statute and Rules of Procedure and Evidence of theICC can be found at http://www.icc-cpi.int/about/Official_Journal.html.

28 Interim Criminal Procedure Code of Afghanistan arts 6 and 36 (2004), can be


Therefore, it is incumbent on those advising on operations to assist andsupport criminal investigations and prosecutions to have a working knowledgeof the applicable national criminal procedure law in order to tailor operatingprocedures and mission directives accordingly. Advisers should incorporateessential elements of evidence handling techniques, assess the extent and howPSF personnel may assist national investigators and brief PSF personnel onnational evidence procedure. If the applicable law requires evidence to be col-lected by authorized persons, mission planners should consider whether author-ized police, prosecutors or judges need to be present either during an operationor immediately after it, so that collected evidence is admissible.29 Coordinationarrangements may be inserted into operation plans and the commander’s mis-sion directives. Advisers may wish to consider whether they should be on handto provide guidance at operation cells while the mission is being executed.

Any evidence safeguarded or collected by PSF may be useful in prosecu-tions before domestic, hybrid30 or international criminal tribunals with differ-ing approaches to evidence. Therefore, this chapter will discuss themes commonto all jurisdictions that may be of assistance to advisers, bearing in mind thatthe two most important issues in relation to criminal evidence are: whether inobtaining evidence there has been a breach of fundamental human rights, so thatit would be neither fair nor just to admit the evidence against an accused, andwhether the evidence is reliable enough to allow a conviction based upon it.

E. INTELLIGENCE COORDINATION

1. Threat and Criminal Intelligence

While there may be intelligence sharing and coordination arrangementsbetween TCN forces and/or with multinational force commands, these may haveto be negotiated and crafted with national authorities once the situation allows.The overriding need to maintain the integrity of individual TCN intelligence

found at the Web site of the Afghanistan Legal Documents Exchange Center, athttp://www.afghanistantranslation.com/docs/InterimCriminalProcedureCodeET.doc (lastvisited Jan. 24, 2007).

29 See Section G.30 Meaning: where international judges and/or prosecutors participate with

national judges and/or prosecutors in criminal proceedings before a court establishedby a national government for the specific purpose of prosecuting offenses in violationof international humanitarian law (e.g., Special Court for Sierra Leone), or where inter-national judges and/or prosecutors are included within an existing national judicial sys-tem (e.g., Kosovo). See survey and discussion of post-conflict judicial mechanisms,Noëlle Quénivet, Promoting and Abiding by the Rule of Law: UN Involvement in Post-Conflict Justice, in ARNOLD & KNOOPS, supra note 4, at 35.


efforts and a general lack of confidence in others can lead to slow developmentof cooperation and coordination between PSF and national security forces,including police and judicial/prosecution authorities, if at all. In long-term mis-sions where PSF have established security and are maintaining the conditionsnecessary for assisting and supporting international organizations and nationalauthorities in building democratic institutions, a cooperative framework is nec-essary. Without it, mistakes could be made that question the credibility of PSF,the development of the rule of law and bring public disorder.

2. Sharing Intelligence and Technical Means—CooperationArrangements

TCNs that make up PSF often bring into theater technical intelligence assetsthat may be shared with other TCNs or, as is more often the case, that may beused solely by that TCN. Also, TCN intelligence personnel may operate usinghuman intelligence sources including informants. These are often jealouslyguarded and, over a period of time, may be valuable sources. Equally, nationalsecurity forces may seek to exploit informants once these forces are opera-tionally capable of doing so. However, turning this information into materialthat may be used as evidence or lead to admissible evidence is a recurring prob-lem, when PSOs seek to assist national criminal prosecution authorities. Bysharing information received from informants and providing it to prosecutingauthorities with assessments as to the credibility and reliability of the inform-ant, investigation strategies can be developed to exploit it. This information canbe passed directly or in accordance with cooperation arrangements betweenPSF and civilian authorities.

Such arrangements can take the form of Memoranda of Understanding(MOUs) that delineate what can be expected of each party, what may be divulgedand how this information is to be treated. Where national law allows,31 author-ized bodies and personnel may conduct special investigative measures such astelecommunications intercepts and undercover surveillance in accordance withjudicial orders based on the information provided by PSF in cooperation with,and in support of national judicial bodies. Special investigative measures haveled to the collection of admissible evidence and catching perpetrators in delictoflagrante. However, each TCN that provides technical equipment and operatorsmust be cognizant of the limitations its own domestic law provides in relationto the targets of signals and telephone intercept measures, especially where cit-izens of the TCN are concerned.

It is often necessary for PSF personnel to provide written information tocoordinating national police authorities as to the pseudonym of the informant,

31 Note the requirements for authorized invasions of privacy under ECHR Article8, supra note 3.


his/her credibility and past results. From this, the applicant authority (in mostcases a prosecutor or investigating judge) can make a determination as to thereliability of the information and then use it and assess it to reason or justifythe implementation of special investigative measures or further investigativesteps. In Kosovo, coordination strategies using security cleared single nationcivilian police investigators, who are authorized judicial police officers withUNMIK Police, have liaised directly with military intelligence units and inter-national prosecutors to fight organized crime and terrorism.

While each mission has its own peculiarities, where the situation allows,PSF should consult and negotiate with national authorities regarding means andmethods to transfer intelligence crucial for criminal prosecutions. PSF gener-ally have special capabilities and presence on the ground that allows it widerreach and the ability to instill confidence in the local population. Cooperationand mutual trust and confidence through regular contact is essential for thetransfer of human intelligence material. Without such assistance and support,PSF may find it difficult to achieve intelligence-led operations that lead to judi-cially imposed detention, which may be the more acceptable means of fightingcriminal and terrorist organizations.

3. Classification and Declassification

What is of interest to military intelligence authorities once PSF enter apost-conflict territory is often equally of interest to those investigating breachesof IHL. Military, police, judicial, political and civilian authority offices fre-quently house archives and contain copies of plans, orders, dispatches, reports,personnel rosters and personal files, communications intercepts and other doc-uments that are significant in establishing why, when and what occurred, whoknew about it, who participated in it and how it was achieved. Random searchesrarely uncover the extent and nuances of plans and operations and, in general,documents on their own are of little significance without knowledge of the con-text in which the military operations were conducted and the modus operandiof the forces involved in the conflict. Thus, a broad and detailed analysis of anexpansive collection of documents is often necessary in order to develop thefull picture.

Frequently however, uncovered documents are collected and transportedto unlogged PSF or TCN locations, then stored and classified so that they maybe analyzed and exploited at a later date. These documents may fall out of thereach of civilian authorities investigating breaches of IHL. In order to be released,time-consuming searches have to be conducted by authorized personnel thatinvolve tracing and inspecting documents, assessing their relevance and thencumbersome authorization; declassification procedures may be required, too.Cooperation arrangements have to be made, and there is unlikely to be anyassurance that all relevant and referenced documents have been or will be


located. Therefore, PSOs may seek to make arrangements to allow access tosuch documents for wide-range scanning and database creation operations toallow criminal prosecution authorities an opportunity to expedite their investi-gations and be more effective.

F. CRIME SCENES AND PHYSICAL EVIDENCE

There are other situations when PSF personnel may need to secure crimescenes or provide witness evidence during security operations in support ofnational security institutions, when they come across criminal activity duringpatrols or targeted operations. Where the mandate and the mission allow, PSFmay be faced with acting both as a security and law enforcer.32 Military policeand gendarmerie units are commonly brought into theater for this purpose, butit may fall onto soldiers to undertake basic investigative tasks, if they are theonly persons on scene.

With limitations in time, logistics and criminal investigation support, andin barely permissive environments, investigations conducted by PSF may fallshort of the thorough standards expected in home countries.33 This should notdissuade advisers from implementing basic criminal evidence-gathering tech-niques, within the limitations of national caveats and rules of engagement, and

32 It is reported that US forces are conducting investigative actions because “thedecision to treat insurgents as criminals has forced soldiers to act as cops and has author-ities scrambling to build cases against thousands of detainees in US run prisons. Somesoldiers say running rebels through the courts places American forces at a disadvantage,burdening soldiers in a guerilla war with peacetime rules.” Soldiers are “drilled fromthe moment they arrive on the importance of gathering evidence, getting sworn state-ments from witnesses and taking good pictures that may later be used in court” and thatvehicles are stocked with an evidence kit which includes blank sworn-statement forms,a digital camera, plastic gloves and a spray that detests gunpowder residue.” GreggZoroya & Rick Jervis, USA TODAY, Aug. 9, 2005, available at http://www.usatoday.com/news/world/iraq/2005-08-09-troops-detective-cover_x.htm (last visited Aug. 23,2005). Contrast however, the assessment whether this strategy is effective; see MichaelMoss, Iraq’s Legal System Staggers Beneath the Weight of War, N.Y. TIMES, Dec. 17, 2006.

33 See the comment of the Judge Advocate General of the UK Armed Forces inRegina v. Corporal S C Evans, OJAG Reference 2005/59 (Nov. 3, 2005), on ruling todismiss a court martial prosecution at the end of the prosecution’s case: “there is nodoubt the criminal investigation in this case has been inadequate. It is, of course, diffi-cult to conduct the sort of investigation expected of the civilian police in the benignconditions of this country because of the general dangers in Iraq and I do not underes-timate those difficulties. Nevertheless, it has been established during the course of thecase that the investigators made serious omissions.” The ruling may be downloaded fromhttp://www.btinternet.com/~aspals/3para_ruling.pdf (last visited Jan. 12, 2007), avail-able at http://www.aspals.com, Military Legal News.


using the expertise available in theater: in particular multinational support unitsand military police investigators. Of course, precise arrangements and the extentthat PSF may assist the local civilian authorities will depend on the type of PSO,the availability and competence of appropriate PSF personnel and national policeforces, and whether primacy for law enforcement tasks has been transferred.

Common difficulties relate to preservation of crime scenes, evidence han-dling, chain of custody and maintaining adequate records of the activity under-taken by PSF personnel. Where the tactical situation allows, PSF should assistin cordoning off the crime scene to prevent contamination. Any investigativesupport undertaken by PSF personnel should be recorded in a report givingdetails of personnel involved, date, time and the actions taken, and then for-warded to prosecution authorities. In the reports, personal identities of PSF per-sonnel may be safeguarded by using military serial numbers, ranks and initials,in particular where such personnel come from nations where diaspora from theconflict area have established criminal connections with nationals of the the-ater of operations. However, these personnel may be requested to attend trialsas witnesses and therefore should be traceable. For trial, procedural witnessprotection measures may be applied where the law provides for it, and advis-ers should explore all options with national prosecuting authorities. There maybe opportunities for witnesses to testify prior to trial or departing the theaterat the end of the mission, depending on the national criminal procedure—whether before an investigating judge or at an extraordinary hearing to secureevidence.34

Also, PSF personnel with particular expertise may assist in the crime sceneexamination in coordination with national law enforcement officers and thenprovide expert witness testimony.35 Explosive ordnance disposal, weaponsexperts and medical doctors are often called on to testify in support of crimi-nal prosecutions.

34 For example, see Article 238, “Extra-ordinary Investigative Opportunity,”Kosovo Criminal Procedure Code (UNMIK Regulation 2003/26, July 6, 2003), Article223, “Preservation of Evidence by the Court,” Criminal Procedure Code of Bosnia andHerzegovina (2003), and Rome Statute Article 56, “Role of the Pre-Trial Chamber inRelation to a Unique Investigative Opportunity,” supra note 5.

35 In May 2002, in Kosovo, Roland Bartetzko, a German national who foughtwith the Kosovo Liberation Army during the 1999 armed conflict was convicted of mur-der, attempted murder and terrorism for detonating a vehicle packed with explosivesusing an urban command wire in the center of Pristina, Kosovo. The critical evidencewas a partial fingerprint found on the detonation device. The scene of crime was securedby UNMIK Police and assisted by British military personnel of KFOR. Also, a BritishArmy Royal Engineer Corps explosives expert provided expert testimony on explosiveseffects, the level of sophistication and training required to undertake the preparationsand execution of the attack. KFOR personnel have also given evidence during other tri-als through video-link or by personal attendance.


G. PSF PARTICIPATION IN SEARCHES AND ARRESTS—COORDINATION ARRANGEMENTS

Law-enforcement-type activity may have to be conducted in support of thenational authorities in order to remain within the mandate and operation plansfor the PSO. In longer term PSOs, such as in Bosnia and Herzegovina andKosovo, arrangements have been made to coordinate military operations withnational police forces and prosecutors, including conducting joint operationswith police officers or judicial police. This is essential especially where PSFconduct search and arrest operations. Cooperation arrangements help to ensurethat any assistance or support provided by PSF results in admissible evidence,because PSF personnel may not be persons authorized under the relevant nationalcriminal procedure law to conduct investigative actions.36

Where PSF are to participate in searches and arrests, they should not relyon warrants without checking that they have not expired or have been super-seded by a subsequent order or procedure. They should be confirmed with theissuing authority before operations are planned. To complicate matters, higherlevel courts can sometimes take over criminal proceedings after a warrant hasbeen issued by a competent, yet lower-level court.37 Therefore, it is incumbenton advisers and planners to liaise effectively with all levels of the judiciary, theprosecution authorities and police, and for liaison officers to assess which isthe appropriate authority in charge for issuing and execution of search or arrestorders. Again, this means that a good working knowledge of the national crim-inal procedure is essential and that advisers regularly track developments injudicial institutions and the laws that are passed.

H. CONCLUSIONS

The interdependencies between civilian elements and military forcesin a complex peace operation will continue. Whether or not there isone organizational structure under the UN (or another international

36 Under some criminal procedure codes, the collection of evidence by personsnot authorized under the code may result in exclusion of evidence on technical legalgrounds, generally as a result of absolute prohibitions against such activity. For exam-ple, suspects can only be questioned by a prosecutor under Criminal Procedure Code ofBosnia and Herzegovina Article 78 (2003).

37 See Bosnia War Crimes Arrest Ends Tragically, International Relations andSecurity Network (Jan. 6, 2006), available at http://www.isn.ethz.ch/news/sw/details.cfm?id=14204; Bosnian Court Orders Release of War Crimes Suspect on a Technicality,JURIST, Feb. 2, 2006, available at http://jurist.law.pitt.edu/paperchase/2006/02/bosnian-court-orders-release-of-war.php (last visited Jan. 24, 2007); see also the effect of CriminalProcedure Code of Bosnia and Herzegovina, Article 449(3) (2003).


organization or arrangement), or whether there is just a loose set ofkey contributors to a mission, progress or failure in any area will havesignificant impact on the roles, asks, structure and resources of everyother contributor. The need therefore to improve and make more effec-tive relations between the military and civilian members of a peaceoperation, as well as between the many diverse civilian organizationsthemselves, will continue to be a major challenge of the 21st century.38

The central theme of this chapter has been how PSF may coordinate andcooperate with national and international authorities, in particular with insti-tutions dealing with criminal justice. It is merely one task entrusted to PSOsbut one that is closest to ensuring that developing governments can operate ina secure environment, without which exit strategies are complicated. Therefore,throughout each phase of a PSO, advisers should seek to develop partnershipsthat generate mutual confidence and ultimately produce lasting competenciesand capacity.

38 The Challenges Project, Challenges of Peace Operations: Into the 21stCentury—Concluding Report 1997–2002, 154 (2002), at http://www.peacechallenges.net.

PART III

LAW ENFORCEMENT AND FORCE PROTECTION

BY PSO FORCES: PRACTICAL TOOLS

123

CHAPTER 7

THE MAINTENANCE OF LAW AND ORDER IN THE AFTERMATH OF INTERNATIONAL ARMED CONFLICT—

LESSONS LEARNED FROM IRAQ

Nicholas J. Mercer*

A. INTRODUCTION

The authority of the legitimate power having in fact passed into thehands of the Occupant, the latter shall take all measures in his powerto restore and ensure, public order and safety while respecting, unlessabsolutely prevented, the laws in force in the country.1

In the days following the victory of 9th April (2003) no one, it seemsto me, was instructed to put the security of Iraq first to put law andorder on the streets first. There was no police force. There was no con-stituted army except the victorious invaders. And there was no Americangeneral that I could . . . establish who was given the accountable respon-sibility to make sure that the first duty of any government—and wewere the government—was to keep law and order on the streets. Therewas a vacuum.2

The two quotations above juxtapose the situation in post-war Iraq. On theone hand, there were the duties imposed on an occupying power under inter-national law. On the other, there was the reality on the ground. The author wasthe Command Legal Adviser for HQ 1st (UK) Armored Division during the

* Lt. Col. N. J. Mercer UKA, Commander Legal HQ 1st (UK) Armored Divisionfor OP TELIC 1, Jan.–July 2003. The views expressed in this article are the views ofthe author solely for the purposes of this publication and do not necessarily representthe views of the UK Ministry of Defense or any other UK government department.

1 1907 Hague Convention IV art. 43, available at http://www.genevaconven-tions.org/.

2 Sir Jeremy Greenstock—former British ambassador to the United Nations andfirst British envoy to Iraq after the Iraq war. See Andrew Pierce & Thomas Harding, TopAide’s Damning Attack on Blair’s Iraq War, DAILY TELEGRAPH, Feb. 22, 2007, availableat http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/02/22/niraq22.xml.


Iraq War and found the situation in Iraq exactly as the British envoy described.There was a vacuum. The purpose of this chapter is to describe the lessonslearned from that experience by describing and illustrating, within the contextof the Iraq War 2003, the practical task of law enforcement and the mainte-nance of law and order in the aftermath of an international armed conflict.

At first sight, readers might ask themselves why the maintenance of lawand order in the aftermath of an international armed conflict is relevant in abook on peace support operations (PSOs). This is a fair point but, whereas OPTELIC3 started as an international armed conflict in March 2003, the occupa-tion subsequently became enmeshed with a PSO.4 At the same time, there aresimilarities between the two situations, as an army of occupation or a forcemandated to undertake peace support can both find themselves dealing withthe maintenance of law and order in a post-conflict situation. Issues dealt within this chapter are the planning of an operation, the training of the troops to bedeployed, the treatment and selection of prisoners, nation-building, the finan-cial implications of a PSO. It is hoped that this chapter will assist those whomay find themselves in the situation again—whatever the road to deployment.

B. PLANNING—TIME

As with all military operations, there is the problem of time—usually thelack of it. The planning for the invasion of Iraq, at the tactical level, began inNovember 2002 for the so-called “Northern Option,” whereby UK forces wouldsimply sit on the Turkey/Iraq border fixing Iraqi forces to the north while theAmericans invaded from the south. Planning for the “Northern Option” beganin earnest and continued until Christmas 2003 (including an exercise) when,just before Christmas itself, the plan changed. UK forces were now going toinvade from the south with the US allies. However, there was another problem.If HQ 1st (UK) Armored Division were to remain at work over Christmas, thiswould be a “combat indicator” not least for the general public in the UnitedKingdom. UK forces were therefore instructed to go on leave over Christmasand to return on January 4, 2003. Thereafter, there was something akin to groundrush. The first Brigade Conference was held on January 6, 2003. Five days later,the Headquarters was in Kuwait. At the beginning of February (by which timeall the Headquarters had been deployed into the Kuwaiti desert) the forces ledby the author were advised to be ready for the invasion of Iraq by March 1,2003. The time scales speak for themselves and were so minimal, and pro-gressed so quickly, that there was hardly sufficient time to plan for the waritself, never mind its aftermath. However, this raises a very important practi-

3 Known in the United States as Operation “Enduring Freedom.”4 As a result of SC Resolution 1483 (May 22, 2003), “noting further that States

that are not Occupying Powers are working now or in the future may work under theAuthority.”

Lessons Learned from Iraq 125

cal point—planning for Phase IV of an operation always takes second place tothe main effort of the war fighting phase (and exercises often follow suit withmany exercises ending after the fighting has been completed). In fact the plan-ning/exercise should just be beginning at this point. It is self-evident that whereasthe war fighting lasted a few weeks, the occupation and aftermath of the warhas lasted nearly four years at the time of the writing of this chapter.

C. TRAINING/USE OF FORCE

Training soldiers for combat operations is always a difficult task and, again,time plays a crucial role in effective training. However, although training forcombat operations is never easy, if to this we add the problem of training sol-diers for an occupation/PSO, which will follow, then the difficulties get evenharder. In the first instance, training for such eventualities can only be prop-erly undertaken prior to deployment. This was a luxury on OP TELIC that theparticipants did not enjoy. Secondly, soldiers were understandably confused, inthe aftermath of the war fighting, as to their legal rights and obligations in anoccupation/PSO. The most obvious manifestation of this confusion was overthe use of force. Although it was relatively straightforward to instruct soldiersto seek out and destroy the enemy,5 in the aftermath of the war, the soldier wasrequired to act both as combatant and policeman (in maintaining law and order—“public order and safety”).6 The Law of Armed Conflict (LOAC) continues toapply in occupation7 and, under LOAC, combatants can be engaged and killedat will (unless hors de combat). Under UK domestic law however (which appliedto policing duties in occupation/PSO) a soldier could only use reasonable forcein self-defense or the prevention of a crime under Section 3 of The CriminalLaw Act 1967. On a routine patrol therefore, the soldier might come acrossarmed resistance in the form of either combatants and/or armed robbers. In onescenario, the armed resistance could come from combatants who, legally, couldbe engaged under LOAC (“seek out and destroy”). On the other hand, they couldbe armed robbers where the soldier is only entitled to use minimum force inthe prevention of a crime under his domestic law. How is the soldier to know?Similarly, the soldier could also be tasked on the same day, first to carry outaction against enemy combatants (who he could lawfully destroy) while, lateron in the same day, be on policing duties where he had to act under UK domes-tic law. How shall soldiers be trained for such a situation and be expected to be

5 1949 Geneva Convention III art. 4, available at http://www.genevaconven-tions.org/. This sets out the principal list of combatants that includes members of thearmed forces, resistance movements, militias and other volunteer corps, levee en masse.

6 See supra note 1.7 1949 Geneva Convention IV art 6 and 1977 Geneva Protocol I art. 3, avail-

able at http://www.genevaconventions.org/.


so adept at recognizing the difficult legal regimes that might apply? Can it reallybe expected from an infantry soldier who is trained, primarily to close with andkill the enemy, to act with such f inesse? It is a very tall order indeed.Furthermore, during OP TELIC, a large proportion of combatants were in civil-ian clothing. Added to the above is the lack of legal clarity on loss of protectedstatus on the battlefield for civilians who take a “direct part in hostilities” (whichcontinues to divide the international legal community). Whereas the legal debateis all very well, it does nothing to provide certainty for soldiers on the battle-field who need to make split second decisions.8 The legal lesson in all of thisis to ensure first that soldiers are trained for such a situation. Second, and mostimportantly, as soon as practicable after the end of war fighting operations, aself-defense posture should be adopted (although there will always be a periodof overlap). Although this provides less flexibility to the commander (in termsof use of force) it does, at least, provide clarity for the soldiers on the groundand keeps them on the right side of law. If more robust use of force is requiredfor a particular mission, then it can be authorized specifically for that task andcleared at the appropriate level. At the same time, if a self-defense posture isadopted, those nations that are mandated to assist the authority could do so inconjunction with the occupiers acting under the same rules of engagement(ROE). In the case of OP TELIC, this was only achieved in July 2003 whenNATO MC 3629 was adopted and when HQ 3rd Division arrived in the theatreof operations for OP TELIC 2.

D. PRISONERS

The handling and treatment of prisoners is common to all military opera-tions, be they international armed conflict, PSOs, or a combination thereof.Under the LOAC, the issue of prisoners is relatively straightforward and all sol-diers are trained in the handling of prisoners of war (PWs). Indeed, this is usu-ally a major part of LOAC training. However, in the first instance, for the reasonsset out above, the fact that many combatants were not in uniform meant that atleast half of the PWs captured by the United Kingdom during the Iraq War werein civilian clothing and therefore their status was unclear.10 The difficulty withthis issue, in the transition from combat to PSO, is the process by which thedoubts about status are resolved. This issue is generally well understood (aca-demically) by lawyers who will immediately advise that, where there is a doubt

8 1977 Geneva Protocol I art. 51(3). The phrase “direct part in hostilities” con-tinues to be a point for international legal debate.

9 MC 362 is the compendium of ROE used by NATO nations on operations. Seehttp://www.natoorg.com.

10 The United Kingdom captured approximately 3,000 PWs of whom 1,300 werein civilian clothing.


as to status, it is to be determined by a “competent tribunal” (“Article 5” tri-bunals).11 This sounds very straightforward, until someone is confronted by aPW camp, whose population consists of approximately 3,000 prisoners, ofwhom nearly 50 percent are in civilian clothing and claim to be “civilians.” Inthe case of the United Kindgdom (and likely to be symptomatic of all nationsinvolved in such military operations) this meant approximately 1,300 prison-ers who required Article 5 tribunals while transiting from combat to occupa-tion/peace support. Not only is this very manpower intensive, but also thepractical difficulties rendered the entire process almost unworkable. The pre-cise difficulties encountered in attempting to conduct Article 5 tribunals areoutside the scope of this chapter, but, while PWs were still being taken underthe LOAC (and attempts made to determine their status), UK forces (as theoccupying power) were now detaining criminals (detainees)12 as well as thosethreatening force security (internees).13 In a very short space of time, the fol-lowing categories of prisoners were being held, namely: PWs; detainees; interneesand voluntary detainees.14 Whereas the PWs required Article 5 tribunals todetermine status, the other categories of prisoners all required legal and admin-istrative oversight of a different kind. Although there is no blueprint for thetreatment of detainees, by virtue of the Geneva Conventions,15 they cannot bekept with PWs (who are prisoners of war and not common criminals). However,no separate facilities had been made available for the detainees, so the PW campwas divided to create a separate holding area for detainees. In addition, legal over-sight of each detainee had to be exercised so that each case was reviewed within48 hours of detention and then 28 days thereafter. Furthermore, each detaineewas provided with legal advice within 48 hours, and representations were madeabout their detention where appropriate.16 This was conducted by a legal staff ofbetween three and five individuals whose administrative burden also includedthe Article 5 tribunals that were running concurrently. However, their workloaddid not end there. In the case of internees, the requirements for their internmentand treatment are laid down in the Geneva Conventions of 194917 but, again, no

11 1949 Geneva Convention III art. 5, available at http://www.genevaconventions.org/.

12 See supra note 1. The legal authority to detain criminals stems from the obli-gation to restore “public order and safety” (law and order).

13 1949 Geneva Convention IV art. 78, available at http://www.genevaconventions.org/.

14 1949 Geneva Convention IV art. 42, available at http://www.genevaconven-tions.org/. These concepts will be explained next.

15 1949 Geneva Convention IV art. 84, available at http://www.genevaconventions.org/.

16 Based, in part, on model Detainee and Internee Management Unit (DIMU)for the International Force for East Timor (INTERFET).

17 1949 Geneva Convention IV Section IV—Regulations for the treatment ofinternees, available at http://www.genevaconventions.org/.


separate facility had been created for their internment and so, yet another, sep-arate holding area, this time for internees, was created in the PW facility. Again,they too required legal oversight, and each case was reviewed within 28 days ofinternment.18 The final category of “prisoners” (which took us by surprise) wasthe category known as “voluntary detainees.”19 Perhaps not unsurprisingly, in theaftermath of a conflict there were some who sought the protection of the occu-pying power and another category of “prisoners” was added to the equation.

The volume and categories of prisoners must not be underestimated bothin planning and execution of international armed conflict and the occupationthat will usually follow. The manpower and materiel required is substantial andcannot be underestimated. It is a sizeable bill. Furthermore, training soldiersfor the complexities involved is also vital. Whereas combat soldiers can sim-ply be instructed to put all prisoners in the PW evacuation chain, it is a tallorder to ask the clerks and provost staff who record and register arrivals at thePW camp to understand the various differences between prisoners. It is equallydifficult for the staff at the PW camp charged with day-to-day administration.Inevitably, prisoners were incorrectly identified and placed in the wrong com-pound or transferred by staff at the PW camp who were oblivious to the legaldistinctions. The prisoner then had to be identified, extracted and then placedin the correct compound. It was extremely easy to lose track of a prisoner, butthe legal consequences of a “missing” prisoner are all too obvious. At the sametime, the “rolling” occupation meant that the Provost (and legal officers) werevery soon dealing with a highly complex situation in relation to Article 5 tri-bunals and the rights and obligations that accompany detainees and internees.In effect, three different types of legal review were running concurrently.Accountability was quite rightly expected but extremely difficult in practice.Even a mistake in counting can lead to allegations of the most serious kind.

It goes without saying that only the highest legal standards are acceptablewhen it comes to dealing with prisoners, but the complex issue of prisonersshould not be underestimated. As far as lessons learned are concerned, train-ing is again at the heart of effective practice, as well as proper planning wellin advance of the conflict. In addition, a proper understanding of the variouscategories of prisoners is required as well as an effective and reliable systemof registration. A separate legal team purely for the benefit of the PW/intern-ment facility should also be a priority. Finally, adequate manpower and resourcesare vital if legal obligations are to be met.

18 1949 Geneva Convention IVart. 43, available at http://www.genevaconventions.org/.

19 Supra note 15.


E. NATION-BUILDING—PRACTICAL DIFFICULTIES

Along with the other previously mentioned activities in the aftermath ofan international armed conflict, there is also the now familiar task of nation-building to consider. Article 43 of the 1907 Hague Convention20 refers to theobligation “to restore and ensure public order and safety.”21 It goes without say-ing that restoring and ensuring law and order is a potentially sizeable task com-mon to both occupation and PSOs.

However, approaching the task of law and order from the standpoint of aninternational armed conflict brings further complications at the outset. In thefirst instance, it is very difficult to predict what the situation in a country willbe after invasion. If the infrastructure and the public bodies are largely intact,then the legal obligations upon the occupying power are reduced considerably.There is obviously no legal obligation to restore law and order, if the authori-ties have the matter under control. On the other hand, if the state has largelyimploded, then the obligations and resources required will be enormous.Secondly, whereas with a mandated PSO there is some notion as to the state ofthe country in advance, in the aftermath of an international armed conflict, itis anyone’s guess—a task made even harder, in the case of Iraq, by the fact thatso little was known about the country itself in advance. Thirdly, the force com-position required for restoring law and order can be entirely different from theforce required for occupation/PSO. Whereas armor and dismounted infantryare invaluable in war fighting, other troops, particularly military police, engi-neers and civil affairs specialists are invaluable for law and order. There needsto be the ability to change the force ratios with speed and alacrity, but this isnot easy in these days of light expeditionary forces. Added to the above, is thefact that occupation (and with it the duty to restore law and order) can beginon the first day of a war itself if territory is captured from the outset. Someonemay be conducting both war fighting and law and order tasks concurrently.Occupation of territory can also be reversed.

In the case of Iraq, the situation was far worse than anticipated. The state,which was largely run by senior Ba’athists, broke down. The government wasoverthrown and the various ministries ceased to function. At a local level (inBasra and Al Amarah) the police, prisons, courts and judges had ceased to func-tion. As seen on television, there was public disorder of epidemic proportions.As the British envoy said: “there was a vacuum.” The task facing the occupy-ing powers (and those assisting the Authority) was enormous and, for thoseplanning the invasion, unforeseeable. Just how do you plan for such eventual-

20 Convention (IV) Respecting the Laws and Customs of War on Land and itsAnnex: The Hague (Oct. 18 1907).

21 In French this translates as “l’ordre et la vie publique,” which is considerablywider than just law and order.


ities? For those planning such operations, the worse case scenario can haveenormous planning implications.

In the light of this situation the options facing the occupying power weretwofold: either it could set up its own system of law and order22 or it could seekto restore the existing system. As it happened, the first option was neither fea-sible (as a matter of resources), or politically acceptable. The only option wasto try and restore the existing system of law and order. However, it should notbe forgotten that establishing and maintaining law and order can be undertakenby the occupiers alone should circumstances and resources permit.

Whatever route is chosen, the simple fact is that the restoration of law andorder cannot be piecemeal. It is no good having police without courts or, indeed,jails without police. If justice is to run its course, it cannot simply begin andend with arrest. It must be able to run the full course. In other words, the sys-tem for restoring law and order has to be established together in all its compo-nent parts. It has to work together at the same time. If one part of the jigsawpuzzle is missing, the system will not work. Having come to this realization,HQ 1st (UK) Armored Division devised its own strategy for restoring law andorder, which envisaged law and order as consisting of five strands, namely:constitutional framework; police; courts (including lawyers and judges); pris-ons; international oversight.

The task was to restore all five elements together and to reestablish a func-tioning system of law and order as soon as possible.

1. Constitutional/Legal Framework

This constitutional framework is fundamental to the reestablishment of lawand order. Without an understanding thereof, it is impossible to know what workis to be done in providing the basis for law and order in an occupied country.Just as importantly, it is impossible to know whether work undertaken (withscarce resources) is relevant or a duplication and therefore a waste of effort.This issue in Iraq was never satisfactorily resolved not least because it is verydifficult to gauge the constitutional position after a regime has been toppled.Did any of the state apparatus still function and, if so, to what degree? Whentanks had just rolled into Baghdad, the country was in chaos. Furthermore, thegeographical distance made the question still harder. To what extent do thosein Basra know about what is happening in Baghdad? At the same time, this fun-damental difficulty was compounded by the Office for Reconstruction andHumanitarian Assistance (ORHA),23 which, notionally, assumed responsibil-ity, inter alia, for the Ministry of Justice on its arrival in Baghdad. ORHA’s

22 Supra note 1.23 Later the Coalition Provisional Authority (CPA); see SC Resolution 1483 (May

22, 2003), which refers to “the Authority.”


contribution to the Ministry of Justice consisted, initially, of just two civil ser-vants in Baghdad. However, the proper functioning of the Justice Ministry wasvital for the future maintenance of law and order including fundamental mat-ters such as budgets, appointments, trials, appeals, pay, etc. However, the ini-tial administration was too embryonic to provide anything but very generalguidance and was of no practical assistance whatsoever. This meant that, in thesouth of Iraq, HQ 1st (UK) Armored Division was, for some time, without con-structive guidance of any kind. As a result, it simply took its own initiatives.24

There were other added complications. As well as the lack of a function-ing infrastructure (as far as law and order was concerned) there were other fun-damental difficulties in determining the constitutional framework. The LOACrequires the occupying power to respect the laws in force in the country unlessprevented from doing so.25 The existing law cannot be discarded unless incom-patible with the Geneva Conventions or international law. However, this begsthe fundamental question as to what is the law to begin with. The occupyingforces did not know anything about Iraqi law never mind have the ability toobtain an English translation.26 This should have been undertaken well in advanceof the occupation and, without the assistance of an American civil Affairs bat-talion, this would have been an impossible task. This, however, leads to the nextproblem, which is the amendment of the national laws where they are incom-patible with the Geneva Conventions of 1949. In the Iraqi criminal code therewere numerous offenses relating to the Ba’ath Party and the inevitable deathpenalty for such crimes, as well as many others. For the United Kingdom, thedeath penalty was incompatible with obligations under international law27 andso had to be abolished.28 At the same time, political crimes, although not indirect contravention of UK obligations under the Geneva Conventions or inter-national law, were untenable. Also of note was the defense to assault under Iraqilaw when it came to beating your wife. This too had to be removed.

The constitutional framework in which the reconstruction and mainte-nance of law and order is to take place is fundamental to the entire enterpriseof maintaining law and order. However, in the immediate aftermath of an inter-national armed conflict, it is highly unlikely that there will be any effectiveadministration at all. What may still exist could be unknown, and the abilityto understand a legal system alien and remote from one’s own just adds to the

24 For instance, there was no telephone link between ORHA in Baghdad andBasra never mind a link of any kind to Divisional Headquarters at Basra Internationalairport.

25 Supra note 1: “while respecting, unless absolutely prevented, the laws in forcein the country.”

26 For instance, an English translation of the Iraqi criminal code was not madeavailable until after the ground war had begun.

27 ECHR Sixth Protocol, available at http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf.

28 Although not incompatible with the Geneva Conventions per se.


problem. Nevertheless, this is the starting point for maintaining law and order.Those involved in future planning should attempt to obtain such informationwell in advance of military operations. In the case of Iraq, such informationwas often available from exiles and academics29 with the relevant expertise.At the same time, a copy of the criminal code (at least) is fundamental to theentire undertaking.

2. Police

Once the constitutional framework is ascertained, the essential elementshave to be put in place. The first, and most obvious, is the police, which is cru-cial if law and order is to be swiftly restored. The epidemic of looting that theworld witnessed across Iraq could have been prevented, at least in part, if therehad been an effective police force in place in the immediate aftermath of thewar fighting. However, once Basra had fallen to UK forces, it was soon dis-covered that the police force in southern Iraq had almost completely disinte-grated. Out of a police force of approximately 8,000, 70 percent had gone homeand disposed of their uniforms, and 70 percent of the police stations had beendestroyed or looted. In addition to personnel and police stations, there was alsothe problem of equipment. For an occupied territory not dissimilar in size toEngland,30 there were just 11 police cars and two motorcycles. Basic items suchas computers, telephones, batons and cuffs did not exist and had to be procuredalong with vehicles. Of those police that remained, the reality was that theirstandards of policing were in no way adequate to meet international require-ments. They were poorly led, paid, motivated and rife with corruption. Onlypolice officers had had formal training, and the rank and file had simply learnedtheir trade on the job.

As can be guessed from the above, the task of restoring the police was size-able. All the police stations had to be restored and police recruited, equippedand trained. In any event, within ten weeks, a new police force was recruited,trained, equipped and paid (in the UK Army Order) under the auspices of theProvost Marshall.31 Five thousand police officers (old and new) were registeredand returned to work, and 20,000 new uniforms were ordered and issued.Weapons were also procured (often by amnesty) but sometimes with cash alone.

29 I was particularly grateful to Dr Charles Tripp, SOAS London University forhis assistance and recommendation of S.H. Amin’s book The Legal System of Iraq 1987,ISBN 0946706328.

30 The UK Occupied the Provinces of Basra, Maysan, Al Mutanah and Di Qar31 Col. E.O. Forster—Knight O.B.E. In ten weeks, 40 police stations had been

restored and reopened, and 5,000 police had been registered and had returned to work—fully equipped.


The bill for equipment and procurement was substantial, and the sheer size ofthe task should not be underestimated.

However, making up numbers and equipment is not enough, as police requiresubstantial investment in their training at the same time. To address this prob-lem, low-level training was introduced and conducted in the police stations,and a regional police training academy was scoped out with a capacity for 300students at a time. The projected total cost was in the region of $1 million andwas sufficient for only a small proportion of the police officers required forthe four provinces of Basra, Maysan, Al Muthana and Di Qar.

At the same time, as the restoration of the police, HQ 1st (UK) ArmoredDivision was acutely aware of the need for proper oversight of the police. Theinitial dilemma had been whether to vet and train the police prior to their rein-statement. However, the fundamental problem with this option was that it wouldsimply have taken too long to reinstate the police. On the other hand, failure todo so meant infiltration and factionalism within the police, the results of whichare still being felt today. It was a chicken and egg situation. The need for over-sight also meant that, ideally, international assistance was required such as anInternational Police Task Force (IPTF). Despite some well-intentioned visitshowever, again the reality is that international oversight will not be forthcom-ing in the timeframe required. Governments move incredibly slowly when facedwith such requests, and much work will be conducted in the identified vacuum.However, without proper oversight, credibility and accountability are veryquickly lost and law and order, once again, begins to disintegrate.

The first lesson, as far the police are concerned, is that substantial policeassets are required in the immediate aftermath of an international armed con-flict. Policing can be undertaken by the occupying power, but it should not beforgotten that, at the same time as maintaining law and order, combat operationsmay well be continuing. Even if military police are available, they may be involvedin other mission essential tasks. Alternatively, the occupying power/peace sup-porter may look to the police force of the occupied territories. However, even ifit is intact, it will probably not meet international standards. If there has beeneither a partial or complete disintegration of the police then those responsiblefor maintaining law and order will be obliged to find police and resources on asubstantial scale or rely on combat troops alone or as a supplement. Thereafter,the physical reconstruction and equipping of the police will also take up con-siderable time and resources. It is a potentially enormous task.

3. Courts/Judiciary

As with the police stations, HQ 1st (UK) Armored Division found that allthe courts had been looted and, in most cases, burned out and destroyed. Thetask of restoring the courts is simply not sufficient in itself because, althoughthe physical infrastructure might be in place, courts need judges, lawyers, clerks,


administration, equipment and so on. At the same time, from a constitutionalperspective, the hierarchy and composition of the courts needed to be under-stood. What is the structure of the courts? What and where were the appellatecourts? Was there a Supreme Court? Which judges (and how many) sat in indi-vidual courts? All these issues had to be addressed at the same time. Finally,even if all the court apparatus was identified and restored, who was going torepresent individuals before the court and, just as importantly, who was goingto pay them for their representation? The other diff iculty was manpower.Whereas, the military police and Provost departments were the obvious choiceto oversee the police and prison reconstruction, in the case of the courts andjudiciary, the only choice was military lawyers. However, military lawyers arenever to be found in abundance, and so a very small department can find itselftaking on an enormous responsibility for which it is neither equipped normanned32 (at the same time, military lawyers were overseeing the problem ofprisoners, which was a full time task in itself). This needs serious considera-tion if nation-building is to be contemplated and needs to be addressed inadvance of deployment.

As with the police, enormous efforts were put into court and judicial recon-struction. As far as the physical infrastructure was concerned, all the courtswere identified and, where possible, restored within ten weeks. This amountedto no less than 17 restoration projects all initiated and overseen by just threelegal officers. Where restoration was not possible, then alternative arrange-ments for another suitable courthouse were made through the requisition ofstate buildings.33 At the same time, all the judges were identified (as were thelawyers), and regular meetings were arranged to ensure that they were fullyappraised of the restoration and to make them accountable for their own court-houses. Furthermore, equipment was organized, and arrangements were madefor the payment of the judges and their clerical staff as well as legal aid pay-ments for the lawyers.34 As far as the “black letter” law was concerned, as men-tioned before, the Iraqi criminal code was amended and then promulgated sothat all concerned were aware of the amendments to the law.35

32 The Legal Branch for HQ 1st (UK) Armored Division consisted of just sixlawyers of whom just four at most were assigned to this task. I must express my belatedthanks to Lt. Col. David Frend, Maj. David Christie, Maj. Callum Cowx, Maj. HelenBowman and Maj. Chris Heron for their assistance with the task of reconstruction.

33 1907 Hague Convention IV art. 53. For instance, the former Ba’athist mayor’shouse in Basra was requisitioned and converted into an appeal court and administrativeheadquarters for senior judges.

34 In ten weeks, 17 courthouses had been restored and reopened, and judges,lawyers and court staff had returned to work and were being paid. At the same time, theIraqi criminal code was amended and provisions were put in place for juveniles, courtenforcement and land registration.

35 1949 Geneva Convention IV art. 65. Promulgation was effected through broad-cast on the radio, newspaper and publication in each individual courthouse.


However, the restoration of the courts was not as simple as restoring justthe criminal courts. Juvenile crime was also a problem, so the juvenile judgeshad to be accommodated and integrated into the judicial process. Almost assoon as the occupation began, disputes arose over the title to land, and the sen-ior land registrar and deputy land registrar had to be identified and they toohad to be provided with a land registry,36 In fact the list became endless—cus-toms and excise courts, civil courts, family courts, court enforcers, court writ-ers were just some of the other organs of the judicial system that were alsoidentified but were still being addressed as the occupying forces left theater.

Finally, as with the police, there was an aspiration for international over-sight of the judicial process, but the aspiration was just that. A large numberof jurists came and inspected the work that was being undertaken by HQ 1st(UK) Armored Division. Much was promised, but little was delivered in time;those planning such operations should always bear in mind that the interna-tional community moves very slowly, and nations should always be preparedto undertake tasks single-handedly.

4. Prisons

As might be expected by what has been described above, a similar storyunfolded with regard to the prisons. At the end of active hostilities two prisonfacilities were identified in Basra city. The main jail was destroyed beyondrepair,37 and a smaller facility in the Al Maqal district of Basra was also in ashocking state. As well as the state of the buildings themselves, there was noprison equipment, 70 percent of the prison staff had disposed of their uniformsand of those staff who remained only the prison officers had received any train-ing and the others, like the police had learned on the job. Even if the prisonshad not been destroyed, they had suffered from years of underfunding and neg-lect and fell far short of anything approaching Western standards. The situa-tion in the prisons was also compounded by the fact that many of the mostviolent criminals had been released as a result of a presidential decree in 2002,and many of the prisoners who had been released had since been recaptured bythe occupying power as detainees and were being held in the PW camp (nowthe Theater Internment Facility (TIF)). However, as already mentioned, com-mon criminals are not supposed to be held with PWs,38 and so there was addi-

36 The Land Registry was given a section of the House of Justice in Basra.Unexpectedly, the Iraqis had a comprehensive system of land registration as a legacyfrom the Ottoman Empire.

37 Al Siniayah (originally built by the British in 1920s) had a capacity for 1,500prisoners.

38 Supra note 15.


tional pressure on the occupying power to hand them over to the Iraqi author-ities (who would then put them in a jail—restored by the occupying power!).

Again, prisons were however quickly restored and available for use. Withinfour weeks, Al Maqil prison had reopened and was approved by the InternationalCommittee of the Red Cross (ICRC).39 Immediately after it was opened, all thedetainees held in the TIF were transferred and their files handed over to an Iraqijudge who then assumed responsibility for their custody. The occupying powerwas then able to reduce a considerable administrative burden (for which theywere ill equipped and prepared in any event). As might be expected, a prisonguard and administrative staff were appointed and trained, and a prison boardwas established to oversee treatment of prisoners. Within ten weeks, the AsSinaiyah prison project was under way with a funding bid of $1 million in place.At last all the elements for law and order had been put in place.

5. International Oversight

The aspiration was to have international oversight of the entire criminaljustice system. This was to ensure that the United Kingdom met the higheststandards under international law. However, this required international coop-eration and, whereas nations such as Denmark were very quick to make con-tact and send observers, international oversight did not materialize as quicklyas one would have liked. Although there was an element of institutional over-sight (the judiciary, for instance, claimed that they still had their own profes-sional code of conduct), this was not sufficient and, even if it were perfectlycapable of regulating itself, clearly international oversight would have beenpreferable. However, delay is likely to be inevitable in such a situation giventhe need to scope out the issue and then all the staff work that follows beforesuch decisions are made. Immediate international oversight should not be antic-ipated. In simple terms, you are on your own.

F. FINANCE

Any reader is bound to ask where did the all the financing for the restora-tion come from? The need to restore law and order is of paramount importance.Not only is there an obligation under international law for law and order to berestored, but without law and order, nothing else is possible. It is fundamental.During OP TELIC, the UK government provided £10 million to the in-theatermilitary commander, and money could be obtained in theater by what were

39 As with the police and courts, the jails were largely destroyed and looted. Inten weeks, a facility at Al Maqal was opened with a capacity for 300 prisoners with atrained and equipped guard force and administration.


termed “Quick Impact Projects” (QIPs). This allowed authorized officers andsenior noncommissioned officers to obtain $50,000 for any given project solong as an acceptable justification was provided. Usually such funds could beobtained in under 24 hours if required and allowed urgent projects to be com-pleted with the due haste that they required. As a result, HQ 1st (UK) ArmoredDivision restored a fledgling system of law and order within six weeks of com-ing into occupation of southern Iraq, and this was built on incrementally byboth HQ 1st (UK) Armored Division, and HQ 3rd Division, which followed. Italso allowed other contributing nations to assist more readily when finance wasso quickly available. However, unless finances are plentiful and readily avail-able, the speed and versatility required to effect the restoration of law and orderwill not be possible. If you bind the provision of finance in red tape, you willsimply not achieve your objectives.

G. CONCLUSIONS

The problems in establishing and maintaining law and order in the after-math of an international armed conflict (and whatever materializes thereafter)should not be underestimated. Modern armies are configured for light expedi-tionary warfare and do not have the right force composition for both war fight-ing and the restoration of law and order that follows and all that is entailedtherein. Furthermore, training combat soldiers for both combat and law andorder takes exceptional skill by the soldiers to operate under two differentregimes either simultaneously or sequentially. The guidance required by theirsuperior officers is considerable, and such guidance must be easily understoodto avoid confusion and protect the soldiers from litigation. Although much canbe done in advance, the difficulty of effective planning is compounded by thefact that the effect and the duration of the war itself is impossible to predict. Inaddition, although outside assistance may be anticipated or desired, the occu-pying army must be prepared to go it alone. Assistance may not materializeand, even though help is promised, governments and their various departmentsare invariably unable to provide rapid assistance. Help will probably material-ize long after your mission is over. Whatever the circumstances, without finance,nothing will happen. A large war chest is required.

It is inevitable with a title such as this to ask if any lessons can or shouldbe learned in the aftermath of the Iraq war in the current climate of bloodshedthat dominates the headlines from Iraq. However, the situation was not alwaysso pessimistic, and, as one prominent journalist remarked: “When I visitedBasra three years (2004) ago it was a time of hope. “British rule” was clearlyworking and clearly welcome. Troops patrolled the streets in soft hats and vis-itors could roam free. Even public services were improving.”40 Whatever the

40 See Simon Jenkins, SUNDAY TIMES, Feb. 25, 2007, available at http://www.timesonline.co.uk.


reasons for the current predicament, as can be seen from the quotation above,the aftermath of the Iraq war was seen as a time of success and, despite the ini-tial vacuum, the efforts of the United Kingdom in the south of Iraq made anenormous contribution to the maintenance of law and order in the immediateaftermath of the war. Why the situation deteriorated will be a matter for histo-rians. Whatever the verdict, the obligations on the belligerent power are notvoluntary as resources and mood dictate. They are obligations under interna-tional law and should never be undertaken lightly.

139

CHAPTER 8

THE APPREHENSION OF INDICTED WAR CRIMINALS:LESSONS FROM THE FORMER YUGOSLAVIA

Benjamin Perrin*

A. INTRODUCTION

The tasks entrusted to peace support operations (PSOs) have increased incomplexity and risk since the end of the Cold War. One of the most importantand challenging of these new duties is securing the arrest, detention and trans-fer of indicted war criminals during times of armed conflict and occupation.Establishing an effective legal framework to govern this activity presents dis-tinct challenges, and important lessons may be learned from the diverse effortsmade to bring indicted war criminals to justice in the wake of the armed con-flict in the former Yugoslavia.

This chapter begins by identifying key aspects of this international lawenforcement activity that makes it unique from the domestic context. The arrest,detention, surrender and transfer regime developed at the International CriminalTribunal for the former Yugoslavia (ICTY) is then set out, and leading judicialdecisions are considered. Finally, controversial means that have been used toapprehend indicted war criminals, including deceptive tactics and transnationalabduction, will be critically examined. In the background of this discussion aretwo fundamental questions: (1) How far should peace support operations go toapprehend a person charged with war crimes? (2) How do we reconcile theinternational community’s interest in bringing indicted war criminals to justicewith the rights of the accused and state sovereignty?

B. LAW ENFORCEMENT CHALLENGES IN THE INTERNATIONALCONTEXT

The law governing the investigation and arrest of criminal suspects in thenational context is generally premised on discrete criminal activities by an indi-

* Benjamin Perrin is assistant professor at the University of British Columbia,Faculty of Law in Vancouver.


vidual accused or group of co-accused, committed within the territory of thatstate. International crimes, on the other hand, are committed on a vast scale,involving tens of thousands of victims, hundreds if not thousands of perpetra-tors and across an extensive territory, often over international borders.

The operational and security implications of a conflict or occupation envi-ronment cannot be underestimated in contemplating strategies to apprehendindicted war criminals. Where indictments are made during or closely follow-ing an armed conflict, local authorities may not have full control over their ter-ritory and have a degraded or non-existent police force. Since individuals whoare indicted as war criminals are those bearing the greatest responsibility forthe most serious violations of international humanitarian law (IHL), they arelikely to be influential, powerful and, in many cases, supported by highly moti-vated and heavily armed supporters. For example, Slobodan Milos

�evic was only

arrested after a 36-hour armed standoff at his Belgrade villa that involvedweapons fire.1 The International Criminal Court (ICC) has similarly found afterissuing its first arrest warrants that securing arrests is the “most critical anddifficult issue of the system” and that local authorities “often have difficultiesexecuting arrest warrants.”2

While there is no standing international police force, international mili-tary forces are not a simple substitute for several reasons. First, soldiers are nottraditionally trained to locate fugitives. A single individual is difficult to findin a large territory, especially where he or she has local support. The long-stand-ing hunt for Osama bin Laden is just one such high-profile example. Second,since neutrality is important in traditional peacekeeping missions, there maybe reticence to actively pursue suspected war criminals. In the 1990s, Pentagonofficials conceded: “that NATO [North Atlantic Treaty Organization] com-manders remained reluctant to become involved, fearing that arresting war crimesuspects could imperil peacekeepers in the American-led NATO mission.”3

Eventually, a compromise of passive support for apprehending war criminalswas adopted by NATO, which took the position that “[t]he apprehension of warcriminals is the responsibility of the civil authorities,” but it “authorised SFOR[the NATO-led Stablization Force] to detain and transfer to the ICTY personsindicted for war crimes when SFOR personnel come into contact with themwhile carrying out their duties” (emphasis added).4 The efficacy of this approach

1 BBC, 2001: Ex-Yugoslav Leader Arrested After Siege (Apr. 1, 2001), atnews.bbc.co.uk/onthisday/hi/dates/stories/april/1/newsid_2464000/2464667.stm (lastvisited Jan. 27, 2007).

2 Katy Glassborow, ICC Prosecutors’ Performance Reviewed, 471 INSTITUTE FOR

WAR AND PEACE REPORTING TRIBUNAL UPDATE (Oct. 6, 2006). 3 Philip Shenon, Mixed Signals Over Bosnia on Catching War Criminals, N.Y.

TIMES, June 4, 1996, available at http://www.nytimes.com/specials/bosnia/con-text/0604nato-warcrimes.html (last visited Jan. 27, 2007).

4 NATO, War Crimes / War Criminals, in NATO HANDBOOK ch. 5, available at

Lessons Learned from the Former Yugoslavia 141

is obviously suspect, and it must be understood as a deliberate policy decision.However, where these international fugitives constituted an impediment toprogress in a given locale, NATO proactively orchestrated military operationsthat resulted in the death or capture of such individuals.5 A third limitation onthe ability of international military forces to arrest war criminals exists owingto the need to obtain state cooperation for many steps in the investigation, arrest,and transfer process. To ensure the admissibility of evidence (i.e., confessions,searches incident to detention and arrest, etc.), as well as the legality of the arrestand transfer, a high degree of cooperation may be required, taking into accountdomestic law, international law and perhaps even the laws of a third state.

C. LEGAL FRAMEWORK FOR THE ARREST, DETENTION, SURRENDERAND TRANSFER OF SUSPECTS AND ACCUSED

Overcoming these challenges is no easy task. However, if IHL is to be ofany relevance in modern armed conflict, it must be addressed. Where a nationalor hybrid criminal tribunal is constituted within the state of a non-internationalarmed conflict, and the accused is within the borders of that state, no particularlegal difficulties arise. However, issues begin to surface as soon as an accused isphysically located outside of the jurisdiction of the prosecuting court or tribunal.

1. Determining the Enforcement Authority of the Arrest Warrant

The first step in setting out an apprehension regime is to clearly identifythe authority under which the arrest warrant was issued and, thus, may be pur-sued. In the case of the ICTY, the tribunal was created under Chapter VII ofthe UN Charter, providing the most powerful legal basis for the enforcementof its arrest warrants. The Report of the UN Secretary-General on the creationof the tribunal stated that: “an order by a Trial Chamber for the surrender ortransfer of persons to the custody of the International Tribunal shall be con-sidered to be the application of an enforcement measure under Chapter VII ofthe Charter of the United Nations.”6 Therefore, state consent to an ICTY arrestwarrant is not legally required. In contrast, a treaty-based court, such as theICC, must look to the relevant treaty to define the obligations of states parties

http://www.nato.int/docu/handbook/2001/hb05010409.htm (last visited Jan. 27, 2007)[hereinafter NATO HANDBOOK].

5 F.M. Lorenz, War Criminals: Testing the Limits of Military Force, 15 JOINT

FORCE QUARTERLY 59, 65 (1997), available at http://www.dtic.mil/doctrine/jel/jfq_pubs/1216pgs.pdf (last visited Jan. 27, 2007).

6 Report of the Secretary-General Pursuant to Paragraph 2 of Security CouncilResolution 808 (1993), UN Doc. S/25704, para. 126 (May 3, 1993).


and the consequences of their non-compliance with the orders of the court. Itis also foreseeable that an arrest warrant of the ICC could be backed up with aChapter VII resolution by the UN Security Council (SC) to give it the super-vening legal authority that the ICTY itself had in terms of enforcing its arrestwarrants.

Finally, for a national court or a hybrid court, applicable treaties will bethe most direct means of securing an arrest and transfer of an accused. In theabsence of such an agreement, customary IHL provides a basis to issue an arrestwarrant and request its enforcement by a third state. The International Committeeof the Red Cross (ICRC) has recognized that: “States must make every effortto cooperate, to the extent possible, with each other in order to facilitate theinvestigation of war crimes and the prosecution of suspects.”7 However, theICRC commentary clarifies that: “there does not seem to be, in customary inter-national law, an absolute obligation to cooperate, but rather an expectation thatStates should make efforts in good faith to do so, to the extent possible.”8

Nevertheless, where a third state refuses to arrest and transfer an accused warcriminal, international law requires that it must proceed with an investigationand prosecution itself.9 As difficult as these legal principles appear to make itto secure an absconding individual, it must be recalled that the popularity andinfluence of deposed political and military leaders tends to wane over time,particularly once they have been charged with an international crime. Whiletheir die-hard supporters may grow more resolved, these fugitives become inter-national pariahs. At certain points, the international community has shown awillingness to come together to secure their arrest and transfer, as recently illus-trated with former Liberian President Charles Taylor.10

2. Rules Governing the Arrest of Suspects and Accused at the ICTY

We may now turn to a detailed review of the multifaceted adjudication andenforcement mechanisms applicable at the ICTY to arrest suspects and accused.The ICTY system governing the apprehension of indictees is grounded in itsStatute, elaborated in the Rules of Procedure and Evidence adopted by thejudges and further developed in concrete cases.

7 1 JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, CUSTOMARY INTERNA-

TIONAL HUMANITARIAN LAW, 618 (2005).8 Id. at 619.9 Id. at 621.10 BBC, Charles Taylor Caught in Nigeria, Mar. 29, 2006, available at

http://news.bbc.co.uk/1/hi/world/africa/4856120.stm (last visited Oct. 6, 2006).


a. Arrest, Detention and Questioning of Suspects

There are two types of individuals that a war crimes tribunal may wish toapprehend. First, a “suspect” is a person against whom the prosecutor has reli-able information tending to show that that person may have committed a crimewithin the jurisdiction of the relevant court or tribunal.11 The prosecutor hasthe power to question suspects, and such individuals have the right to legalassistance.12 The prosecutor may request a state, “in case of urgency,” to arresta suspect, and the state is required to comply.13 During an investigation, the tri-bunal may order a suspect to be transferred and provisionally detained at therequest of the prosecutor for an initial term of up to 30 days. This detentionperiod can be renewed for up to 90 days unless an indictment is confirmedagainst the individual.14 The tribunal must ensure that the suspect’s rights arerespected, including their right to remain silent.15

b. Sealed and Public Indictments

An important strategic question for the prosecutor in every war crimes caseis whether an indictment against an accused should be public or sealed. A sealedindictment carries with it the element of surprise, ideally preventing an accusedfrom absconding. However, it also excludes a number of tools that may be usedto locate an accused.16 The decision to seal an indictment is made by the issu-ing judge,17 but in practice the prosecutor’s preference generally prevails. Thetrial chamber has recognized that the prosecution “adopted this approach ofrequesting orders for non-disclosure due to the non-cooperation of some Statesin executing arrest warrants issued by the Tribunal.”18 In practice, sealed indict-

11 See International Criminal Tribunal for the former Yugoslavia, Rules ofProcedure and Evidence, IT/32/Rev. 37, r. 2(A) “suspect,” available at http://www.un.org/icty/legaldoc-e/basic/rpe/procedureindex.htm (last visited Jan. 27, 2007) [here-inafter ICTY Rules].

12 Statute of the International Criminal Tribunal for the former Yugoslavia,adopted by SC Res. 827 (May 25, 1993) as amended, art. 18(2)–(3), available athttp://www.un.org/icty/legaldoc-e/basic/statut/statute-feb06-e.pdf (last visited Jan. 27,2007) [hereinafter ICTY Statute].

13 ICTY Rules, supra note 11, r. 40(i).14 Id., r. 40bis(A), (D).15 Id., rr. 40bis(F), 42(iii).16 With a public indictment, the prosecutor can request that the indictment be

advertised in newspapers, and on radio and television, notifying the public of the indict-ment and calling on the accused to voluntarily surrender: id., r. 60.

17 Id., r. 53(B)–(C).18 Prosecutor v. Slavko Dokmanovic et al., Case No. IT-93-13a-PT, Trial Chamber,


ments have proven to be an effective tool in appropriate cases. For example,alleged members of the Kosovo Liberation Army, Haradin Bala, Isak Musliuand Agim Murtezil, were apprehended on February 17, 2003, while chargedunder a sealed indictment.19

c. Execution of Arrest Warrants

Given that the ICTY does not have its own police force, it relies on others.Arrest warrants are transmitted to: (1) the relevant state authorities, which arethen under an obligation to “act promptly and with all due diligence to ensureproper and effective execution”;20 or (2) “an appropriate authority or an inter-national body or the Prosecutor.”21 Several states have enacted legislation tofacilitate the arrest and transfer of accused to the tribunal.22 Where a state failsto arrest an accused, it is to notify the tribunal of the reasons.23 If no report ismade after a reasonable time, the Security Council may be informed of the fail-ure.24 Where an arrest warrant is unexecuted, the trial chamber may issue aninternational arrest warrant for the accused to all states and issue an order tofreeze the assets of the accused.25

Similar to the common law definition of arrest, the trial chamber has heldthat an arrest occurs “when, by physical restraint or conduct, or by words, anindividual is made aware that he is not free to leave.”26 It is permitted, but notrequired, that a member of the Office of the Prosecutor (OTP) be present whenthe accused is actually arrested.27 The ICTY Rules of Procedure and Evidenceguarantee mandatory human rights protections during the arrest and transferprocess. At the time the accused is taken into custody, he must be informed

Decision on the Motion for Release by the Accused Slavko Dokmanovic (Oct. 22, 1997),para. 53 [hereinafter Dokmanovic].

19 US Department of State, Apprehension of ICTY Indictees in Kosovo andSlovenia (Feb. 19, 2003), at http://www.state.gov/r/pa/prs/ps/2003/17800.htm (last vis-ited Oct. 5, 2006).

20 ICTY Rules, supra note 11, r. 56; see also ICTY Statute, supra note 12, art.29(2)(d)–(e).

21 ICTY Rules, supra note 11, r. 59bis.22 See, e.g., Decree with Force of Law on Extradition at the Request of the

International Tribunal, REPUBLIC OF BOSNIA-HERZEGOVINA, PR No. 1786/95 (Apr. 6,1995); Constitutional Act on the Cooperation of the Republic of Croatia with theInternational Criminal Tribunal, REPUBLIC OF CROATIA, (1996), available at http://www.un.org/icty/legaldoc-e/basic/cooperation/legisindex.htm (last visited Jan. 27, 2007).

23 ICTY Rules, supra note 11, r. 59(A).24 Id., r. 59(B); see also r. 61(E).25 Id., r. 61(D).26 Dokmanovic, supra note 18, para. 51.27 ICTY Rules, supra note 11, r. 55(G).


immediately in a language he understands of the charges against him and thathe is being transferred to the tribunal.28 The accused is then detained, and thetribunal is notified through the Registry that the accused has been apprehended.Arrangements are then made for the transfer of the accused to the tribunal inThe Hague.29 Upon transfer, the indictment and a statement of applicable rightsmust be read or given to the accused in a language he understands.30

D. APPREHENDING INDICTED WAR CRIMINALS IN PRACTICE

Once an arrest warrant has been issued by an international court or tribu-nal, four outcomes are possible in practice: (1) voluntary surrender by theaccused; (2) arrest by domestic state authorities; (3) arrest by internationalpeace support forces; or (4) remaining at-large, perhaps never to be brought tojustice to face the charges. The most ideal situation is undoubtedly voluntarysurrender, followed by arrest by domestic state authorities and arrest by inter-national peace support forces. The ICTY has indicted more individuals thanany other international criminal tribunal to date. Its experience offers insightinto the operation of each of these possible outcomes.

1. Voluntary Surrender

Voluntary compliance by an accused with a surrender order is the idealscenario. This is only possible where the accused is made aware of the indict-ment, meaning that voluntary surrender is not possible on a sealed indictment.Accused who voluntarily surrender are assured of their safety—a guarantee thatis not possible when police or military forces are required to conduct a raid toarrest the accused. A major incentive for accused to promptly surrender is thatit significantly enhances their chances of obtaining provisional release (i.e.,bail).31 In Prosecutor v. Ramush Haradinaj, the trial chamber granted provi-sional release to the former prime minister of Kosovo, owing largely to the factthat he resigned his position and announced that he was surrendering to theauthority of the tribunal within hours of the publication of the indictment.32

The majority of the Trial Chamber subsequently authorized Mr. Haradinaj tocontinue his political activities in Kosovo under the supervision of the UN

28 Id., r. 59bis(B).29 Id., r. 57.30 Id., r. 59bis(B)–(C).31 Id., r. 65.32 Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-PT, Trial Chamber,

Decision on Ramush Haradinaj’s Motion for Provisional Release, paras. 31–33 (June 6,2005).


Mission in Kosovo (UNMIK).33 Unfortunately, the decision approving Mr.Haradinaj’s indeterminate political involvement to continue, despite very seri-ous war crimes charges pending, is inconsistent with the aims and principlesof international criminal justice. The better view is that taken in dissent byJudge Carmel Agius as the presiding judge of the trial chamber, stating that themajority decision:

is not only intrinsically wrong in principle, but that it is also most def-initely probable to give to the public in Kosovo, and others through-out the territory of ex-Yugoslavia, the impression, if not the perception,that although the Accused was indicted and taken into custody by thisTribunal, he is in actual fact gradually, de facto, being re-instated asa key political leader in Kosovo.34

Some military leaders have also turned themselves into the ICTY, such asGeneral Pavle Strugar who voluntarily surrendered to the government ofMontenegro and was transferred to the tribunal in October 2001.35 Despite thesehigh profile occurrences, voluntary surrender remained an exception and notthe norm, in cases before the ICTY.

2. Arrest by Domestic State Authorities

Non-cooperation from state authorities in the former Yugoslavia in exe-cuting arrest warrants has been a particular problem for the ICTY. In manyinstances, this is owing to the popularity or influence of the individual accused.Nationalism has also played a major role, not surprisingly in the wake of eth-nic conflict, by inciting accusations that prosecutions were not even-handedagainst all parties to the conflict. This argument has been employed to ration-alize non-cooperation with the ICTY by some states. For these reasons, statesin the former Yugoslavia have generally been reluctant, particularly in the ini-tial years of the ICTY’s existence, to arrest their own nationals and hand themover to the ICTY.

33 Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-PT, Trial Chamber,Decision on Defense Motion on Behalf of Ramush Haradinaj to Request Re-assessmentof Conditions of Provisional Release Granted June 6, 2005 (Oct. 12, 2005), aff ’d,Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-AR65.1, Appeals Chamber,Decision on Ramush Haradinaj’s Modified Provisional Release (Mar. 10, 2006).

34 Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-PT, Trial Chamber,Decision on Defense Motion on Behalf of Ramush Haradinaj to Request Re-assessmentof Conditions of Provisional Release Granted June 6, 2005: Dissenting Opinion of JudgeCarmel Agius (Oct. 12, 2005).

35 US Department of State, Voluntary Surrender of Pavle Strugar (Oct. 22, 2001),at http://www.state.gov/r/pa/prs/ps/2001/5480.htm (last visited Oct. 6, 2006).


In time, however, states in the former Yugoslavia began arresting and trans-ferring accused to the ICTY.36 In particular, states have shown little reluctanceto arrest and transfer non-nationals as in the case of Fatmir Limaj of Kosovowho was taken into custody by authorities in Slovenia on February 18, 2003.37

The enhanced cooperation that has been observed is attributable to a numberof factors, namely diplomatic and economic pressures, discussed later. Whereaccused have fled the former Yugoslavia, it has generally only been a matter oftime until they have been captured, as recently took place with General AnteGotovina in the Spanish Canary Islands.38

3. Arrest by International Peace Support Forces

The principal means by which arrest warrants have been successfully exe-cuted in the former Yugoslavia for indicted war criminals wanted by the ICTYhas been law enforcement actions by international peace support forces, namelyNATO. On December 16, 1995, the North Atlantic Council approved rules ofengagement (ROE) for NATO forces to detain persons indicted by the ICTY.39

In January 1996, the ICTY entered into an agreement with NATO setting outthe relationship between the two, including providing for the arrest and deten-tion of indictees.40 Between 1996 and 2002, NATO forces arrested 75 percent(39 out of 52) of the accused then in proceedings before the ICTY.41 Some ofthe high-profile cases involved the arrest of General Radislav Krstic in December1998, and Colonel Dragan Obrenovic on April 15, 2001, by NATO-led SFORtroops.42 In Prosecutor v. Dragan Nikolic, the Trial Chamber confirmed thatthe legal basis for SFOR to arrest, detain and transfer individuals to the tribu-nal is “well established.”43

36 For example, authorities in Belgrade took Nenad and Predrag Banovic intocustody: US Department of State, Belgrade Authorities Arrest Two ICTY Indictees (Nov.8, 2001), at http://www.state.gov/r/pa/prs/ps/2001/5996.htm (last visited Oct. 5, 2006).

37 US Department of State, Apprehension of ICTY Indictees in Kosovo andSlovenia (Feb. 19, 2003), at http://www.state.gov/r/pa/prs/ps/2003/17800.htm (last vis-ited Oct. 5, 2006]).

38 BCC, Croatian Fugitive General Seized (Dec. 8, 2005), at news.bbc.co.uk/2/hi/europe/4510122.stm (last visited Oct. 5, 2006).

39 Cited in Prosecutor v. Dragan Nikolic, Case No. IT-94-2-PT, Trial Chamber,Decision on Defense Motion Challenging the Exercise of Jurisdiction by the Tribunal,para. 44 (Oct. 9, 2002) [hereinafter Nikolic, Jurisdiction].

40 Id.41 NATO HANDBOOK, supra note 4, ch. 5.42 US Department of State, Participation of U.S. Forces in Apprehension of an

Indicted War Criminal (Apr. 15, 2001), at http://www.state.gov/s/wci/us_releases/ps/19355.htm (last visited Oct. 5, 2006).

43 Nikolic, Jurisdiction, supra note 39, para. 52.


4. At Large

By early 2007, just six out of the 161 persons (4 percent) indicted beforethe ICTY remain at large.44 The two most notable fugitives are Radovan Karadzicand Ratko Mladi c. According to a 2005 Human Rights Watch report, NATOpeacekeepers in Bosnia-Herzegovina have made three confirmed attempts toarrest Karadzic in the past decade.45 The same report claims that General Mladic“spent the latter half of the 1990s in Bosnia, before moving to Serbia . . . Serbia’sofficial explanations for the failure to arrest Mladi c are that he is not in Serbiaor his whereabouts are unknown.”46 The success of accused such as Karadzi cand Mladi c in evading capture, and concerns that states have granted them safehaven, has caused the international community to consider novel approachesto securing the arrest of war criminals.

E. NOVEL APPROACHES TO APPREHENDING INDICTED WAR CRIMINALS

Soon after its creation, the ICTY recognized that “several States were notfulfilling their obligations with regard to the arrest and transfer of indicted per-sons.”47 The prosecutor of the tribunal called for “creative ways” to arrest fugi-tive war criminals.48 Over the years, a range of novel (and controversial)approaches to apprehending accused persons wanted by the ICTY have emerged,including: diplomatic and economic sanctions against non-cooperative states;freezing assets and restricting travel of absconding accused and their associ-ates; deception and trickery to arrest accused; abduction of accused by non-state actors; and involving the public.

44 ICTY, Key Figures of ICTY Cases, at http://www.un.org/icty/cases-e/fact-sheets/procindex-e.htm (last visited Jan. 26, 2007).

45 Human Rights Watch, Balkans: Srebrenica’s Most Wanted Remain Free (June29, 2005), at http://www.humanrightswatch.org/english/docs/2005/06/29/bosher11228.htm(last visited Oct. 5, 2006).

46 Id. 47 Dokmanovic, supra note 18, para. 40.48 Christopher M. Supernor, International Bounty Hunters for War Criminals:

Privatizing the Enforcement of Justice, 50 AIR FORCE L. REV. 1 (2001), available athttp://www.findarticles.com/p/articles/mi_m6007/is_2001_Wntr/ai_75622167 (last vis-ited Jan. 27, 2007) [hereinafter Supernor].


1. Diplomatic and Economic Sanctions Against Non-Cooperative States

Diplomatic sanctions have been a particularly successful approach to pro-moting compliance with ICTY arrest warrants in the post-Cold War climate asstates that comprised the former Yugoslavia seek entry to “club Europe.” Stepstowards membership in regional organizations have been explicitly tied to coop-eration with the ICTY. In December 2004, the European Council decided thataccession talks could start with Croatia, provided that there was full coopera-tion with the ICTY.49 Similarly, the European Commission’s Feasibility Studyfor Bosnia-Herzegovina: “made very clear that full co-operation with the ICTY,particularly on the part of the [Republika Srpska], is a fundamental require-ment if [it] is to move towards the European Union.”50 NATO has also pushedcooperation with the ICTY in its dealings with countries in the region. OnDecember 9, 2004, NATO foreign ministers reiterated that: “‘failure by theRepublika Srpska to fulfill its obligations to bring war criminals to justice’ isthe obstacle preventing Bosnia and Herzegovina from joining NATO’s Partnershipfor Peace program.”51 The United States has also utilized its influence to pro-mote cooperation with the ICTY. The US Consolidated Appropriations Act,2005, prohibits financial assistance (other than for humanitarian aid and democ-ratization efforts) to any state or entity that fails to take “necessary and sig-nificant steps to implement its international legal obligations to apprehend andtransfer to the [ICTY] all persons in their territory who have been indicted bythe Tribunal.”52 The US government has withheld a portion of assistance toSerbia equal to US$16 million in 2004 and at least US$10 million in 2005. Atotal of US$73.6 million in assistance was redirected to organizations outsideof the central government in Belgrade during 2005.53 ICTY Chief ProsecutorCarla Del Ponte has acknowledged that: “[t]he political support of the EuropeanUnion and the United States is the main factor explaining why Serbia and Croatia

49 EU, Croatia—One Step Closer to the EU, Provided There is Full Cooperationwith ICTY, Doc. IP/05/110 (Jan. 31, 2005), at ec.europa.eu/commission_barroso/rehn/news/pdf/ip_05_110_en.pdf (last visited Jan. 27, 2007).

50 EU, Chris Patten Supports Lord Ashdown on Measures to Promote Compliancewith ICTY in Bosnia Herzegovina (June 29, 2004), at http://www.eu.int/comm/exter-nal_relations/news/patten/ash_290604.htm (last visited Oct. 5, 2006).

51 US Department of State, United States Supports High Representative Ashdown’sActions Against War Crimes Fugitives and Their Supporters (Dec. 16, 2004), athttp://www.state.gov/r/pa/prs/ps/2004/39891.htm (last visited Oct. 5, 2006).

52 Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, § 561(a)(1), 118Stat. 3020.

53 US Department of State, Serbia and Montenegro Assistance (Jan., 13, 2005),at http://www.state.gov/r/pa/prs/ps/2005/40915.htm (last visited Oct. 5, 2006).


are now co-operating better with us.”54 Since international criminal courts andtribunals depend on state authorities to execute arrest warrants for accused per-sons in their territory, the use of economic and diplomatic sanctions to encour-age compliance is fully justified. While the ICTY’s Chapter VII powers supersedethe individual interests of the involved states, the customary norms of cooper-ation also require best efforts actions by states to assist in securing the arrestof indicted war criminals in their territory.

2. Freezing Assets and Restricting Travel of Accused and Associates

There have also been other attempts made to encourage accused to sur-render, and make their lives as international fugitives more difficult by freez-ing their assets and restricting their ability to travel. In some cases, theserestrictions have been extended to close associates of such individuals. Forexample, on June 30, 2004, the United States announced that it was “freezingthe assets of a Republika Srpska-owned firm and three Republika Srpska offi-cials who have provided f inancial, logistical and security assistance toKaradzic.”55 Later, on December 16, 2004, the United States announced that itwas “freezing the assets of the Serb Democratic Party (SDS), as well as twoSerbia and Montenegro companies that have provided f inancial support toRadovan Karadzic and several individuals indicted by the Tribunal. The UnitedStates is imposing travel restrictions that will prevent entry into the UnitedStates by the leadership of the main parties in the Republika Srpska govern-ment, the Serb Democratic Party and the Party for Democratic Progress(PDP).”56 The EU has also imposed travel prohibitions within its memberstates on over two dozen individuals who are “engaged in activities whichhelp persons at large continue to evade justice for crimes for which the ICTYhas indicted them.”57

It is not clear that these measures against absconding accused and theirsupporters have been effective in practice, although cutting off readily avail-able sources of funds and travel routes would make life as an international fugi-

54 ICTY, Briefing by Carla Del Ponte, Prosecutor (June 23, 2005), athttp://www.un.org/icty/pressreal/2005/speechCdP-e.htm (last visited Oct. 5, 2006).

55 US Department of State, U.S. Support for Actions by High RepresentativePaddy Ashdown (June 30, 2004), at http://www.state.gov/r/pa/prs/ps/2004/34041.htm(last visited Oct. 5, 2006).

56 US Department of State, United States Supports High Representative Ashdown’sActions Against War Crimes Fugitives and Their Supporters (Dec. 16, 2004), athttp://www.state.gov/r/pa/prs/ps/2004/39891.htm (last visited Oct. 5, 2006).

57 The European Commission’s Delegation to the Republic of Serbia, Bosnia andHerzegovina: Council Extends Measures in Support of ICTY (June 29, 2004), athttp://www.delscg.cec.eu.int/en/documents/2004-06-29.htm (last visited Jan. 27, 2007).


tive more troublesome. Asset freezing and travel restrictions with respect to at-large indictees themselves is a reasonable step towards securing their appre-hension. With respect to persons that are not under indictment—those looselylabeled as “associates”—states are free to determine who may enter their ter-ritory and their property rights, consistent with national laws and internationallaw. To ensure the efficacy and legitimacy of extending such sanctions, it isimportant that they have an evidentiary basis and be subject to review, so asnot to be arbitrary or excessive.

3. Deception and Trickery of Accused

The use of deception or trickery to lure an individual into a territorywhere he/she can be arrested has been successfully employed in the formerYugoslavia. This approach may be attractive where an accused is based in aparticularly well-defended stronghold or resides in a territory whose author-ities are non-cooperative. Its effectiveness is enhanced where the accused iswanted on a sealed indictment. However, it is likely that an accused who isarrested through deception or trickery will challenge the legality of his arrest.For that reason, it is useful to review the leading decision from the ICTY onthe viability of this tactic.

In Prosecutor v. Slavko Dokmanovi c, the accused was charged under asealed indictment and had been living in the Serbian part of the former FederalRepublic of Yugoslavia. A warrant for his arrest had been transmitted to theUN Transition Administration for Eastern Slavonia, Barajana and WesternSirmium (UNTAES). Mr. Dokmanovic had been in contact with the OTP regard-ing evidence of alleged atrocities in the area of Vukovar. The OTP agreed tomeet him with a view to enticing him to enter the UN controlled region wherehe could be arrested. Mr. Dokmanovic was told he would be meeting with theTransitional Administrator regarding compensation for his property in Croatia,but shortly upon entering the UN-controlled region, UN soldiers removed Mr.Dokmanovic from the vehicle at gunpoint, searched him, handcuffed him andtook him to a local airfield. He was advised of his rights and within one hour,Mr. Dokmanovic was on a plane heading to The Hague.58

The defense argued that this was an illegal arrest because it was done “ina ‘tricky way,’ which can only be interpreted as a ‘kidnapping’.”59 The trialchamber disagreed, holding that what took place did not amount to a forcibleabduction or kidnapping and that while the accused was deceived, tricked andlured into going into Eastern Slavonia where he was arrested, this did not vio-late international law or state sovereignty.60 The Trial Chamber “found the par-

58 Dokmanovic, supra note 18, paras. 3, 7, 10–12.59 Id., para. 16.60 Id., para. 57.


ticular method used to arrest and detain Mr. Dokmanovic was justified andlegal.”61 Viewing video and audiotape footage of the arrest and detention, thetrial chamber also concluded that Mr. Dokmanovic “was not mistreated in anyway” during the process.62 The appeals chamber did not disturb these findings.63

The rights of the accused must be respected during the process of arrest.A carefully orchestrated deception technique, as employed in Dokmanovic,should be a legitimate and viable option to secure an accused war criminal, par-ticularly in the face of security concerns and non-cooperative local authorities.Creating a record of the event through videotape is an ideal means to rebut alle-gations of mistreatment during arrest and detention, as well as to ensure thatthose executing the warrant are particularly attuned to their obligations and therights of the accused. The use of deception or trickery to arrest an indicted warcriminal is certainly preferable, where it is possible, to forcible abduction whichhas also arisen at the ICTY.

4. Transnational Abductions

Several notorious state-sponsored international abductions have been usedin lieu of extradition to arrest fugitives abroad.64 Taking the tactic a step fur-ther, abduction or kidnapping by non-state actors (so-called “bounty hunters”)has been alleged before the ICTY.

In Prosecutor v. Dragan Nikolic, the accused was living in the FederalRepublic of Yugoslavia. It was agreed by all parties that he was taken forciblyand against his will by unknown individuals with no connection to SFOR orthe tribunal. Mr. Nikolic claimed that he was handcuffed and placed in the trunkof a car by unknown individuals who drove him to Bosnia and Herzegovina andhanded over to SFOR, who then arrested and detained him. SFOR deliveredthe accused into the custody of the tribunal, and he was transferred to TheHague. Mr. Nikolic claimed that certain individuals have been tried and sen-tenced in the Federal Republic of Yugoslavia for acts relating to his abduction.65

The accused argued that the tribunal had no jurisdiction over him given thealleged illegality of his arrest and detention.

61 Id., para. 78.62 Id., para. 75.63 See Prosecutor v. Slavko Dokmanovic et al., Case No. IT-93-13a-AR72, Appeals

Chamber, Decision on Application for Leave to Appeal by the Accused SlavkoDokmanovic (Nov. 11, 1997).

64 Such as Adolf Eichmann from Argentina to Israel (1960); an attempt to abductMordecai Luk from Israel to Egypt, by shipping him in a trunk (1964); and GeneralManuel Noriega from Panama to the United States (1989): see Supernor, supra note 48,at 2.

65 Nikolic, Jurisdiction, supra note 39, para. 21.


The trial chamber recognized that it was in “uncharted waters”66 and thatstate practice in this area of law varied. In the end, the trial chamber held that:“in a situation where an accused is very seriously mistreated, maybe even sub-jected to inhuman, cruel or degrading treatment, or torture, before being handedover to the Tribunal, this may constitute a legal impediment to the exercise ofjurisdiction over such an accused.”67 However, the trial chamber found that:“the assumed facts, although they do raise some concerns, do not at all showthat the treatment of the Accused by the unknown individuals amounts was [sic]of such an egregious nature.”68 Therefore, the trial chamber found that it hadjurisdiction over Mr. Nikolic. The defense appealed, arguing that the tribunal“should only exercise jurisdiction over indictees who were transferred . . .through lawful means” and that “[e]xercising jurisdiction in this case amountsto condoning kidnappings that are executed with minimal violence.”69 Theappeals chamber held that the exercise of jurisdiction should not be declinedmerely because an accused is abducted by private individuals and then broughtto justice.70 However, it held that certain human rights violations are so seri-ous that they require the exercise of jurisdiction over an indictee to be declined.71

In the end, the appeals chamber agreed with the trial chamber that the rights ofthe accused were not egregiously abused in the process of his arrest, so theICTY retained jurisdiction over him.72

The involvement of non-state actors in abducting an accused is by far themost legally risky method of apprehending an accused that has been attemptedto date before the ICTY. International criminal courts and tribunals will inquireinto the circumstances of such an arrest, declining to follow the 19th centurycommon law doctrine of male captus bene detentus (that a court should notinquire into how an accused was brought before it).73 There are two main con-siderations that are relevant in such cases. First, focusing on the rights of theaccused, Nikolic sets a standard of “egregious” mistreatment by third partiesbefore an international criminal court or tribunal should decline jurisdiction,presumably staying the charges against the accused. It is notable that this stan-dard applies where there is no established connection between the arrestingauthorities or the prosecution with the abductors. With this in mind, the egre-gious mistreatment standard is appropriate in light of the lack of independent

66 Id., para. 75.67 Id., para. 114.68 Id.69 Prosecutor v. Dragan Nikolic, Case No. IT-94-2-AR73, Appeals Chamber,

Decision on Interlocutory Appeal Concerning Legality of Arrest, para. 15 (June 5, 2003).70 Id., para. 26.71 Id., para. 30.72 Id., paras. 32–3.73 Aparna Sridhar, The International Criminal Tribunal for the Former Yugoslavia’s

Response to the Problem of Transnational Abduction 42(2) STANFORD J. INT’L L. 343,344 (2006).


enforcement powers of international criminal courts and tribunals, the securitysituation in conflict and occupation situations, and non-compliance by both theaccused and the state in which they reside. However, this standard rightly setsreal limits on what can be done to apprehend an accused. Second, state sover-eignty issues may arise depending on the authority under which the arrest war-rant was issued. While there are circumstances where individuals have invokedstate sovereignty, it is difficult to see how that right does not exclusively belongto the state in this context. If a state chooses to intervene in proceedings chal-lenging the arrest, then it will be entitled to do so, subjecting itself to scrutinyas to its own inability to previously arrest the accused.

5. Public Involvement: Financial Rewards and Web Sites of Sightings

Finally, efforts have been made to involve members of the public in secur-ing the arrest of indicted war criminals. ICTY indictments have been officiallypublicized throughout the former Yugoslavia.74 In terms of rewards for infor-mation, the US Rewards for Justice program “offers up to $5 million for infor-mation leading to the apprehension and transfer to the ICTY of persons indictedfor war crimes.”75 Various non-governmental organizations, from time to time,have involved members of the public in reporting sightings of indicted war crim-inals both with a view to passing on intelligence and to place pressure on non-cooperative states. For example, the “Washington-based Coalition for InternationalJustice, a human rights group, has posted the whereabouts of 37 of the 66[accused] on the Internet, often detailing the bars where they drink.”76 It is notknown how effective these methods have been, but they appear to be a reason-able attempt at extending the reach of justice as well as reminding the public intransitional societies about efforts underway to prosecute war criminals.

F. CONCLUSIONS

The experience of the ICTY in apprehending indicted war criminals hasbeen mixed. Above all, it has demonstrated the critical importance of PSOs inarresting indicted war criminals. Training, support and clear ROE are needed

74 Pursuant to ICTY Rules, supra note 11, r. 60.75 US Department of Defense, Office of War Crimes Issues, At Large Persons

Publicly Indicted for War Crimes in the Former Yugoslavia (July 27, 2005), athttp://www.state.gov/s/wci/us_releases/fs/17598.htm (last visited Jan. 27, 2007).

76 Christopher Lockwood, British Disclose Possible ICTY Apprehension Plans:‘Snatch Squads’ to Seize Bosnia War Criminals, 626 ELECTRONIC TELEGRAPH (Feb. 10,1997), at http://www.its.caltech.edu/~bosnia/articles/british.html (last visited Oct. 5,2006).


for members of PSOs to successfully undertake this difficult task, which is avital first step in bringing these individuals to justice and allowing war-tornsocieties to move forward from the darkest periods of their history. At the sametime, sustained pressure by the international community on states that fall shortof their international obligations to arrest accused war criminals has proven tobe worthwhile.

The next generation of hybrid courts and the ICC will face new challenges,already alluded to, that the ICTY did not have to confront given its jurisdic-tional primacy and mandate under Chapter VII of the UN Charter. The limita-tion of state cooperation to good faith efforts under customary IHL is unlikelyto provide a sufficient legal basis for apprehending war criminals, unless inter-ests are aligned. New avenues to enhance the chances of apprehending suspectsand accused will need to be pursued, such as the cooperation agreement betweenINTERPOL and the Special Court for Sierra Leone (SCSL).77 Legal officersadvising PSOs and these international courts and tribunals alike must build onthe lessons from the former Yugoslavia and develop further innovations to ensurethe successful apprehension of indicted war criminals. For if they escape arrestor fail to surrender, there will be no justice.

77 See, Co-Operation Agreement Between the International Criminal PoliceOrganization-INTERPOL—and the Special Court for Sierra Leone, available athttp://www.sc-sl.org/interpolagreement.pdf (last visited Jan. 27, 2007).

157

CHAPTER 9

LAW ENFORCEMENT IN POST-CONFLICT BOSNIA AND HERZEGOVINA:

WAR CRIMES PROSECUTIONS AND JUDICIAL RESTRUCTURING

Christopher Harland*

A. INTRODUCTION

In recent years, law enforcement has become an integral part of peace sup-port operations (PSOs). The UN Mission in East Timor (UNTAET), for exam-ple, was given authority “to provide security and maintain law and orderthroughout the territory of East Timor,”1 the UN mission in Kosovo (UNMIK)was given “civil law and order” responsibility,2 and the High Representative inBosnia and Herzegovina (BiH or Bosnia) has used his UN Security Council(SC) and treaty mandate, inter alia, to restructure the Bosnian judiciary.3

This chapter is confined to BiH and examines three law-enforcement-relatedissues that have arisen in the post-Dayton PSO context, namely: (1) the “Rulesof the Road” system, which balanced the desire for domestic war crimes trialswith other priorities such as freedom of movement; (2) “reselection,” a vettingprocedures for judges and prosecutors; and (3) the creation of the War CrimesChamber in the court of BiH, which links domestic and international war crimescourts. The chapter discusses the challenges faced in post-war BiH in thesethree areas, the solutions chosen, the success or failure of these choices and theimplications of their application in other PSO contexts.

* Legal Adviser with the International Committee of the Red Cross (AdvisoryService on IHL), Legal Division, Geneva. The author would like to thank Rebecca Everlyand Jan-Erik Oja for their constructive comments on this chapter.

1 SC Res. 1272, para. 2(a) (Oct. 25, 1999).2 SC Res. 1244, para. 11(i) (June 10, 1999).3 See, as examples decisions relating to judicial restructuring in 2002,

http://www.ohr.int/decisions/judicialrdec/archive.asp?m=&yr=2002.


B. BRIEF HISTORY

During the 1992–1995 war in BiH, over 97,000 people were killed or wentmissing.4 Many violations of international humanitarian law (IHL) occurredduring the war, and calls for the prosecution of war crimes led the SecurityCouncil of the United Nations to establish the International Criminal Tribunalof the former Yugoslavia (ICTY) in February 1993.5

The December 14, 1995, General Framework Agreement for Peace in Bosniaand Herzegovina6 (GFAP or Dayton Peace Agreement or Dayton) provided aConstitution (at Annex 4), a Human Rights Commission (at Annex 6), an inter-national High Representative (at Annex 10), and an international force (at Annex1-A). The High Representative (HR, whose office is known as OHR) later inter-preted his mandate to include the enacting of legislation and the dismissal ofelected officials, among other executive acts.7

Bosnia became a member of the United Nations on May 22, 19928 and isdivided into two “entities,” known as the Republika Srpska (RS, predominantlySerb inhabited) and the Federation of Bosnia and Herzegovina, the 1994-estab-lished Croat and Bosniak Federation.9 The Federation is further divided intoten cantons, some of which are mixed Croat and Bosniak areas, including Canton7, which includes the city of Mostar. Unable to resolve its status at Dayton in1995, the District of Brcko (with all three communities represented) was placedunder a Supervisor, and its status was clarif ied in 1999 through an arbitralaward.10 The political structure of BiH under Dayton was largely decentralized,

4 Statistics published by the Sarajevo Research and Documentation Center, athttp://www.idc.org.ba/aboutus/Overview_of_jobs_according_to_%20centers.htm, whichhas 97,901 names collected of those killed and missing as at January 2007. Note thatother estimates run to 250,000 killed or missing.

5 SC Res. 808, para. 1 (Feb. 22, 2003), “Decides that an international tribunalshall be established for the prosecution of persons responsible for serious violations ofinternational humanitarian law committed in the territory of the former Yugoslavia since1991[.]”

6 See http://www.ohr.int/dpa/default.asp?content_id=379.7 See High Representative decisions at http://www.ohr.int/decisions/archive.asp;

the Peace Implementation Council Meeting in Bonn documents in December 1997, athttp://www.ohr.int/pic/default.asp?content_id=5182#11; and SC Res. 1174, para. 4 (June15, 1998), “and reaffirms that the High Representative is the final authority in theatreregarding the interpretation of Annex 10 on civilian implementation of the PeaceAgreement and that in case of dispute he may give his interpretation and make recom-mendations, and make binding decisions as he judges necessary on issues as elaboratedby the Peace Implementation Council in Bonn on 9 and 10 December 1997.”

8 See http://www.un.org/Overview/unmember.html. 9 A map is available at http://www.lib.utexas.edu/maps/europe/bosnia_pol_

2002.jpg.10 See http://www.ohr.int/ohr-offices/brcko/arbitration/default.asp?content_id=5362.

Law Enforcement in Post-Conflict BiH 159

but later legislation and constitutional changes (most often through the effortsof the OHR) have now placed many institutions at the centralized BiH level,such as a first-instance court, a tax collecting body, a more unified army struc-ture, and a judge appointing body for positions held in the entities.11

C. THE “RULES OF THE ROAD” SYSTEM: BALANCING WAR CRIMESTRIALS AND FREEDOM OF MOVEMENT

The UN Security Council’s decisions establishing the ICTY did very littleto regulate, restrict or prevent domestic war crimes trials underway in the for-mer Yugoslavia, apart from giving the ICTY primacy over cases in which itchose to exercise jurisdiction.12 Thus, the courts of BiH remained competentto try individuals for wartime violations of the criminal code of the Federationof BiH or the Republika Srpska, and the criminal code of the former SocialistFederal Republic of Yugoslavia (SFRY). However, Article II, paragraph 8 of theConstitution of BiH requires BiH authorities to “cooperate and provide unre-stricted access to” the ICTY, including orders issued under Article 29 of thetribunal’s Statute regarding judicial cooperation, thus incorporating the primacyelement of Article 9 of the Statute into the Constitution of BiH.

At the immediate end of the war, however, the political imperative wasnot the organizing of domestic war crimes trials. Some 2 million persons wereeither internally displaced or refugees outside Bosnia.13 Security remained anissue, prisoner exchanges had not been entirely effected, property reposses-sion mechanisms were being established and political structures were being

11 Known as “state-level” institutions. Institutions at the second level are knownas entity (RS and Federation) or district (Brcko) bodies. The Federation inserts anotherlevel of government, ten cantons. In all of Bosnia, the next level down is the municipallevel.

12 Article 9 of the ICTY Statute reads: 1. The International Tribunal and national courts shall have concurrent juris-

diction to prosecute persons for serious violations of international human-itarian law committed in the territory of the former Yugoslavia since 1January 1991.

2. The International Tribunal shall have primacy over national courts. Atany stage of the procedure, the International Tribunal may formally requestnational courts to defer to the competence of the International Tribunalin accordance with the present Statute and the Rules of Procedure andEvidence of the International Tribunal.

See http://www.un.org/icty/legaldoc-e/index.htm. See also Article 10 of the ICTY Statuteregarding non bis in idem.

13 See the information published by the Internal Displacement Monitoring Center,available at http://www.internal-displacement.org/8025708F004CE90B/(httpCountries)/C8DEEFACFF6821AD802570A7004C6A42?OpenDocument.


rebuilt. In addition, there was a strong desire to hold elections as soon as pos-sible, to provide the political structures through which legislation could becreated.14 As elections were seen as vital, election-related issues such as free-dom of movement, refugee return and property repossession were regarded asmore important and pressing than domestic war crimes trials. Carl Bildt, thefirst High Representative, deemed an agreement reducing war crimes trial-related arrests as “essential if we were to have any chance of making progress”15

on other issues.

1. The Problem

Tension between a desire to facilitate the return of refugees on the onehand, thus theoretically permitting the reversal of the policy of “ethnic cleans-ing,” and the arrest of those wanted for war crimes on the other, became anissue beginning in early 1996. If elections, refugee return and employment rein-statement were to take place, there existed a fear that mass arrests, upon return,would take place as wartime scores were settled. Couched under the rubric of“freedom of movement,” discussions began shortly after the end of the war toseek a solution which would avoid mass arrests. This position was bolstered bythe perception of a low likelihood of subsequent trials being fair.

Those worried about unfair trials could point to the conviction, in absen-tia, of 47 war crimes suspects by the military court in Orasje between 1993 and1995,16 with some of the defendants receiving the death penalty. Forty-two ofthese were later reviewed by the ICTY and found to be lacking in sufficientevidence to justify arrest or indictment. The use of military courts in generalcame under attack after the war as the Human Rights Chamber, establishedunder Annex 6 to the GFAP, finally found in the 1997 Damjanovic case thatSarajevo’s District Military Court lacked a sufficient appearance of independ-ence.17 By 1996, it was clear that two of the people that Damjanovic had beenconvicted of killing in 1993 were in fact alive.18

So, with war crimes trials that had taken place being questioned, and withthe desire to improve security and encourage movement of the population, a

14 The first country-wide elections in BiH were held on September 14, 1996;see http://www.ohr.int/ohr-dept/presso/chronology/default.asp?content_id=5787.

15 CARL BILDT, PEACE JOURNEY 190 (1998).16 OSCE, War Crimes Trials Before the Domestic Courts of Bosnia and

Herzegovina, Mar. 2005 at 4, available at http://www.oscebih.org/documents/1407-eng.pdf.

17 Human Rights Chamber for BiH Decision No. CH/96/30 (Sept. 5, 1997). Notethat the case had a high degree of visibility at the end of the war.

18 Ulrich Garms & Katharina Peschke, War Crimes Prosecution in Bosnia andHerzegovina (1992–2002): An Analysis through the Jurisprudence of the Human RightsChamber, 4 J. INT’L CRIM. L. 7 (2006).


way to reduce the threat of arrest on improper or untested war crimes chargeswas sought in early 1996. The issue came to a head with the arrest, in February1996, of two Bosnian Serb military leaders, as described by Richard Holbrooke,the principal US negotiator at Dayton:19

We arrived [back in Sarajevo, on Feb. 11, 1996] just in time to be con-fronted by an unexpected problem: the local police had arrested twosenior Bosnian Serb officers, General Djordje Djukic and ColonelAleksa Krsmanovic, as they entered Sarajevo in a civilian car. TheBosnians claimed the two men were war criminals. . . . Milosevic, onthe other hand demanded their immediate release . . . [Warren]Christopher and I were greatly disturbed by this incident. The seizureof two men, neither of whom was ever indicted, had disrupted the imple-mentation process and set a bad precedent for the future. We deter-mined to prevent any repetition of such an incident before it becamea pattern.

This incident led to the inclusion of the Rules of the Road (RoR) procedure inthe February 1996 Rome Agreement.

2. The Proposed Solution

An agreement was reached on February 18, 1996, in Rome betweenPresidents Izetbegovic, Tudjman and Milosevic.20 It contained elements relat-ing to military matters, education, transfer of territory in Sarajevo, as well asdomestic war crimes procedures. Paragraph 5 (Cooperation on War Crimes andRespect for Human Rights) of the agreement reads in part:

Persons, other than those already indicted by the International Tribunal,may be arrested and detained for serious violations of internationalhumanitarian law only pursuant to a previously issued order, warrant,or indictment that has been reviewed and deemed consistent with inter-national legal standards by the International Tribunal. Procedures willbe developed for expeditious decision by the Tribunal and will be effec-tive immediately upon such action.21

19 RICHARD HOLBROOKE, TO END A WAR 332–33 (1998).20 See http://www.ohr.int/ohr-dept/hr-rol/thedept/war-crime-tr/default.asp?con-

tent_id=6093. Representing BiH, Croatia and Yugoslavia, respectively.21 Note that this agreement does not appear to have been signed (certainly not

ratified), and is merely the transcription of agreed minutes of a meeting. It was appar-ently not published in any official gazette in BiH. Although the Human Rights Chamberin the Hermas decision (CH/97/45, Hermas v. FBiH, Feb. 18, 1998) found, applying thewords of the agent of the Federation of BiH, that the agreement applied directly in BiH,


Thus, only files that had received prior authorization from the ICTY would beallowed to proceed before a domestic court. The ICTY established a unit withinthe prosecutor’s office (OTP), known as the “Rules of the Road” Unit (RoR).The RoR Unit, composed of a few lawyers and translators from the OTP, soughtand received funding from voluntary contributions apart from the normal fund-ing of the ICTY. Many files started arriving from Bosnian prosecutors seekingapproval to proceed. A classification system was set in place, including “A” forcases that were granted approval to proceed to trial, “B” for cases in whichmore evidence was needed prior to approval being granted and “C” for casesin which clarification of the evidence was needed.22

The RoR procedure was closed in September 2004,23 when the responsi-bility for determining whether enough evidence to proceed to trial had beengathered was transferred to the BiH prosecutor, with cases to be governed bythe “Book of Rules on the Review of War Crimes Cases.”24

3. Outcome of the RoR Procedure

Three results of the RoR procedure have been noted by commentators. Thefirst obvious conclusion is that by inserting an additional step into the crimi-nal process, trials were delayed. This is all the more true when one considersfunding and staffing problems in the RoR Unit:

290. Unfortunately, funding for the rules of the road unit has been con-sistently difficult to obtain. The unit was funded only to July 2004 andit was again faced with the prospect of closure. It is hoped that donorcountries will urgently make funding available to enable the unit toengage in an orderly transition process. This is an immensely valuableproject for the future of war crimes’ prosecutions in Bosnia andHerzegovina.25

it was not obvious that this was the case. For further information on this case and othersimilar cases, see CHRISTOPHER HARLAND ET AL., A COMMENTARY TO THE EUROPEAN CON-

VENTION ON HUMAN RIGHTS AS APPLIED IN BOSNIA AND HERZEGOVINA AND AT STRASBOURG

107–12 (2003). In any event, it would have been much better had the international com-munity and Bosnian officials taken steps to more clearly in law create the obligation toforward cases covered by the agreement to the RoR Unit The term “Rules of the Road”may have been coined by Warren Christopher, US Secretary of State; see RICHARD HOL-

BROOKE, TO END A WAR 333 (1998).22 See, e.g., OSCE, supra note 16, at 5.23 ICTY, 2004 Report to the Security Council (11th Annual), available at

http://www.un.org/icty/rappannu-e/2004/index.htm.24 OSCE, supra note 16, at 17.25 ICTY, supra note 23.


The Unit processed the following number of cases to 2004:

The RoR Unit is described further as having made 3,965 determinations in rela-tion to 3,489 suspects. The number of persons in relation to whom files weresent was 5,789 (figures at November 10, 2004).26 The volume of the work doneby the Unit was therefore considerable, although minimal staffing led to delaysin returning cases back to Bosnia.

The percentage of files receiving an “A” marking is relatively low, only 24 per-cent.27 This is particularly so when it is borne in mind that the RoR Unit did notinterview the witnesses or independently test the evidence themselves but acted onthe assumption that the evidence was credible. The test was whether there wasenough evidence in the file, which, if believed, could lead to a prosecution, inessence a prima facie test.28 The chart on the following page illustrates the num-ber of persons against whom trials were conducted in domestic BiH courts.

The percentage of category “A” cases proceeding after a determination bythe RoR Unit was also low, 30 percent. Note that this figure also includes thosecases that were still being investigated but had not yet gone to trial. It may bethat with new procedures in place, and with the new system at the court of BiH(see Section D), these figures may increase. By contrast, according to January2007 statistics, the ICTY had 60 persons for whom proceedings are under way(note that not all of these relate to events in BiH, and include those persons atlarge for whom an indictment has been issued), and had concluded proceed-ings for 100 persons.29

Based on the category “A” markings, the approximate number of personsfor whom, at 11 years after the end of the war, there is evidence of a caliber to

RoR Category given by No. of persons against whom the the ICTY marking was given (OSCE March

2005 Report figures)

A—enough evidence for trial 846

B—more evidence needed 2,346

C—evidence unclear 675

26 Id. Note that the numbers do not add up, in part because the work was ongo-ing, and in part because individuals could be charged with multiple offenses.

27 Note that in BiH there sometimes existed the misconception that category “A”files represented the most serious cases or the most obviously guilty defendants. In fact,any case file in which there was enough (untested) evidence that, if believed, could leadto prosecution, was granted this marking. As such, an “A” marking is perhaps best viewedas a passing grade by the ICTY to the BiH prosecutor.

28 From the author’s discussions with members of the Unit.29 See http://www.un.org/icty/glance-e/index.htm.


attach a trial, may be estimated at around 1,000.31 About one-third of thesecases are actively being investigated. If one assumes that another half of thesemay be hard to organize given difficulties in obtaining witnesses, defendants’arrests and deaths or incapacitation of accused, it is possible that, until morenew case files are developed by prosecutors or old ones improved (in particu-lar by prosecutors in Republika Srpska), the number of persons being prose-cuted by BiH and international/extranational courts may be fewer than 500. Inan effort to increase the quality and quantity of submissions by prosecutors, in2000–2001 the ICTY had a series of meetings with BiH prosecutors and devel-oped questionnaires and other tools to improve the submissions. This resultedin a large number of new files, which in turn led to some delays in RoR Unitresponses to prosecutors.

The second conclusion to be drawn is that the RoR procedure did not ensurefair domestic trials. Cases that had not been conducted in accordance with theRoR procedure were sent back for retrial, and many that complied with the RoRprocedure were later found to have violated the European Convention on HumanRights (ECHR) or the BiH Constitution. Once cases had been tried in domes-

Stage of trial (at January 2005), by number Federation RSof defendants, after RoR clearance30

At trial 94

Active investigation 73

Verdict reached at trial, appeal over 50 (20 acquitted, 230 found guilty, sentences range from 6 months to 20 years)

Appeal underway, or retrial 39

Total (of 846 “A” category markings) 256 2

30 Note that it is not always clear from the statistics available whether the num-bers refer to the number of incidents or the number of defendants. For example, it islikely that the RS cases, including the Matanovic case (details concerning the case avail-able through the Human Rights Chamber decision, CH/1/96, Matanovic v. RS (Sept. 13,1996), refer to an incident rather than the number of defendants. Therefore, these num-bers, and the percentages based on them, should be taken as approximate.

31 Note the much larger number, 13,000 from the Balkan Investigative ReportersNetwork (BIRN), in their November 2006 Justice Report, available at whttp://www.bim.ba/en/. Given witness and court delays in BiH, however, this may besomewhat high.


tic courts in BiH, many of them reached the Human Rights Chamber, a bodymodeled on the European Court of Human Rights, in which eight judges werenon-nationals of BiH and six were nationals of BiH. Of the cases that reachedthe Chamber, “a majority” of trials reviewed were found to have violated theECHR, while in “some cases”32 no violation was found. For example, faultswere found in cases involving prisoners of war, military court appointment pro-cedures, violations of the RoR procedure, other fair trial rights, witness provi-sions, etc.33 Cases that had had RoR clearance were also found to have violatedArticle 6 of the ECHR. This is not surprising, as the clearance merely indicatedthat there was enough evidence upon which to proceed to trial and not that the trial itself was or would be conducted in accordance with applicable trialstandards.

Third, there was increased freedom of movement and repossession of prop-erty,34 although security remained an issue for many returnees.

4. Conclusions and Prospects for Use in Other Contexts

The RoR procedure provided only minimal benefit in ensuring that domes-tic trials were well run, all the while delaying trials. At best, it provided a meas-ure of security against frivolous war crimes charges but did not ensure thatthose trials that eventually took place would be conducted properly. The RoRprocedure provided little control or technical assistance beyond ensuring ade-quate case preparation and presentation at a preliminary stage of the proceed-ings. The cases described in the March 2005 OSCE report indicate that manyof those cases had significant problems, even after receiving clearance fromthe ICTY. In addition, the “victor’s justice” nature of the trials did not allowfor an overall strategy as to which persons and for which acts prosecutionswould be sought.

This procedure did, however, at a minimum, increase post-war mobility.This procedure may be worth contemplating if the priorities in a post-conflictenvironment rest not with war crimes trials, but rather with ensuring otheraspects of post-conflict reconstruction, such as improving access to voting cen-ters, allowing for recovery of lost property during the conflict and promotingthe return of refugees and others to pre-war employment. As these were the pri-orities in post-war Dayton, the RoR process fulfilled this latter goal if it didnot fulfill the former, namely ensuring prompt and fair war crimes trials.

As a result, in post-conflict settings where the priorities rest with ensuringfreedom of movement and minimizing recourse to war crimes prosecutions on

32 Garms & Peschke, supra note 18, at 7.33 Id. at 7–8.34 See the Property Law Implementation Plan (PLIP) monthly statistics, at

http://www.oscebih.org/human_rights/propertyrepossession.asp?d=1.


weak evidence, this system may be worth considering. If, on the other hand,fair trials are the priority, and there are concerns about the capacity of the domes-tic legal order, it may be worth adopting some of the measures discussed inIssues D and E below.

D. VETTING OF JUDGES

1. Introduction

Post-conflict BiH was a testing ground for vetting, also referred to in somesettings as lustration, decertification, reselection or reappointment.35 Vetting sys-tems provide for various types of procedures in which public servants are eithersubject to losing their employment, or a system of mass application is made forpositions, with current staff forced to reapply if they wish to retain their job. Alarge “certification” procedure was carried out with respect to the police in BiHby the UN Mission (UNMIBH).36 The rationales for such systems include fair-ness and a reversal of ethnic cleaning polices, sought increases in judicial com-petence and a desire for a more representative public administration.

In Bosnia, prior to the war, there was a tacit understanding for many pub-lic positions that due regard to ethnic makeup should be given. This was madeall the more possible through census reports in which citizens self-reportedtheir ethnicity as either Serb, Croat, Bosniak or one of about 20 other ethnici-ties, including “Yugoslav.” Built into constitutional reforms agreed to in 2002,which were intended to implement a constitutional court decision of July 1,2000,37 were requirements that entity and other level positions reflect the eth-nic breakdown of the population as of 1991, the date of the last pre-war cen-sus. The ethnic population of BiH had of course changed dramatically duringthe war. Many non-Serbs were required to leave the territory of what becamethe RS during the war, and they did not return, or were discouraged from return-ing, after the war.

While vetting of the police was under way and while constitutional reformswere being hotly debated, the failure to include provisions related to judicialreform in the GFAP began to be noticed in 1997.38 One response was the cre-

35 See, e.g., the Council of Europe Report of June 3, 1996 by M. Severin, Measuresto Dismantle the Heritage of Former Communist TotalitarianSystems, available athttp://assembly.coe.int/Documents/WorkingDocs/doc96/EDOC7568.htm.

36 See Gregory Naarden, Nonprosecutorial Sanctions for Grave Violations ofInternational Humanitarian Law: Wartime Conduct of Bosnian Police Officials, 97 AM.J. INT’L L. 342 (Apr. 2003).

37 Case U 5/98 of the Constitutional Court of BiH, available at http://www.venice.coe.int/docs/2000/CDL(2000)081-e.asp.

38 See, e.g., “Independence of the Judiciary,” at http://www.ohr.int/ohr-dept/hr-rol/thedept/hr-reports/hrcc-hr-rep/97-weekly/default.asp?content_id=5062.


ation in 1998, through UN SC authorization, of the Judicial Systems AssessmentProgram (JSAP).39 Through a series of 11 thematic reports,40 JSAP noted impor-tant shortcomings in the post-conflict judicial system of BiH. These includedissues related to delay, independence and competence of the judiciary, amongothers. Their reports, as well as individual trial reports, led the OHR to estab-lish the Independent Judicial Commission,41 which was to forward reports onallegedly incompetent judges to entity parliaments for their eventual dismissalin accordance with entity law. However, due in part to the political links in theappointment of the judiciary, very few of the judges proposed for removal werein fact removed.42 This then led to the desire for a more robust vetting systemand led to the creation of the BiH High Judicial and Prosecutorial Councils,and the reselection system.

The process was also seen as an alternative to disciplinary proceedings incases where, for various reasons, this would not be possible.43 In some situa-tions, such as that of post-conflict BiH, losing one’s public employment for actscarried out during the war was as serious a consequence as being found guiltyof a crime.44

2. Reselection System

In September 2002, three High Judicial and Prosecutorial Councils (HJPCs)were established, one for each of the Federation and the Republika Srpska, andone for the new judicial institutions at the state level of BiH (court of BiH andthe BiH prosecutor’s office). There was some measure of overlap of the mem-bership of the three Councils,45 and eight international members served on allthree Councils.

The Councils had responsibility, inter alia, for determining the number ofjudges and prosecutors needed in each court and prosecutor’s office,46 announc-ing vacancies for virtually all positions, having the application forms (some 50pages) reviewed by the Independent Judicial Commission (IJC), holding inter-views, and finally appointing candidates to each position. This procedure lasted

39 SC Res. 1184, para. 1 (July 16, 1998).40 The reports are available at the Web site of the High Judicial and Prosecutorial

Council of Bosnia and Herzegovina, at http://www.hjpc.ba/docs/jasp/?cid=2444,1,1.41 For details, see the IJC Final Report (Nov. 2004), at http://www.hjpc.ba/docs/

ijcarch/?cid=2491,1,1.42 Id.43 See, e.g., Naarden, supra note 36, at 343. 44 Id. at 347.45 The three Councils existed in the same building in Sarajevo and shared the

same secretariat. See, e.g., the IJC Final Report, supra note 41, at 50.46 Note that this did not include minor offense courts, nor the constitutional court

of BiH.


just under two years, at which point (May 2004) the HJPC had filled 878 of956 judicial and prosecutorial positions.47 At the same time, a new system ofdisciplinary proceedings was instituted, with decisions on punishments andremovals taken by the HJPCs. The HJPCs were also responsible for overseeingjudicial education systems and for establishing minimum continuing legal edu-cation requirements.

At the end of the transitional period in 2004, the three HJPCs were mergedinto one body covering all of BiH. The new HJPC has some foreign assistance,but it is now run by BiH nationals.48

3. Results of the Reselection System

The following conclusions can be made, even if it is too early to providea comprehensive assessment of the system put in place.

First, judges suspected of the most serious instances of misconduct werenot retained or decided not to reapply. This was a change from the previous sys-tem in which removal required a vote in parliament and political favors couldbe called in, making the number of dismissals very small. Second, the numberof positions available was reduced by close to 30 percent, and 20 percent ofthose appointed were not incumbents, such that some 400 judges and prosecu-tors lost positions, while about 200 new candidates were appointed. In addi-tion, about 80 percent of persons in positions of leadership (chief prosecutors,presidents of courts) did not hold their new post prior to reselection.49 Third,the ethnicity of judges and prosecutors changed significantly from post-warnumbers, especially in Republika Srpska, such that the percentage of Serbs inthe judiciary went from 56 percent prior to the war, to 91 percent after the war,to 66 percent after the reappointment system.50 The above-mentioned require-ment in entity constitutions made the reappointment system more difficult,especially in smaller communities. Fourth, for reasons that are not obvious,there was a shift in the percentage of women judges (53 percent before to 59percent after), while the percentage of women prosecutors dropped (62 percentbefore to 44 percent after). Fifth, the procedure generated a large number ofpublic complaints about the preexisting judiciary, and assisted in targeting judi-cial reform efforts, including the reselection procedure. The most common com-

47 Statistics on file with the author, HJPC Final Report: 2 September 2002 to31 May 2004, which were used in the drafting of the Final IJC Report, supra note 41.Note that the Council was unable to fill these final remaining positions due to a lack ofqualified candidates who met constitutional criteria including providing for a “generalrepresentation” of the ethnic groups of Bosnia.

48 See, e.g., the HJPC Fact Sheet, at http://www.hjpc.ba/intro/?cid=246,1,1.49 Final IJC Report, supra note 41, at 100.50 Id. at 64.


plaints related to delay or inaction in cases by judges (39 percent), errors inprocedure (10 percent), bias/impartiality (9 percent) and misconduct/criminalmisconduct (7 percent).51 Sixth, the number of “applicants at large” (500, 40percent of whom were selected for a position)52 applying for positions couldhave been higher.

A proper examination of the results of the 2002–2004 vetting system forjudges and prosecutors would entail a comparison between the performance ofthe judiciary of 2002 with the post-reselection judiciary, perhaps by examin-ing issues such as public complaints, delay, case file performance, workinghours, etc. A comparison should also be made with neighboring countries thatdid not go through a similar procedure. Without having done this, it is difficultto properly assess the effect of the reselection procedure on the judiciary inBiH. It is clear, however, that, at least from anecdotal information, judicial delaycontinues to remain a perceived problem in Bosnia.53 The establishing of a sys-tem of anticipated time limits for cases to proceed through court stages may beusefully contemplated in countries such as BiH.54

Some of the criticisms of the reselection system have included the lack ofindependence of the judiciary from the international community (HelsinkiHuman Rights Committee), continued delay in civil cases in Sarajevo (partiesin cases at Sarajevo interviewed), a lack of new judges (Marcus Cox, with theEuropean Stability Initiative—ESI), the failure to remove all non-performingmembers of the judiciary (a court reporter) and the retention of some membersof the judiciary with perceived dubious wartime pasts.55 Other commentatorsand judges have noted that the system has increased independence of the judi-ciary as judges in that they are now responsible to other judges and not to politi-cians in BiH (Bosnian judges), that the process is bringing BiH closer to theEU (international official), the judiciary is now more competent (USAID offi-cial involved in the reselection procedure) and that the system transitioned toa permanent body with full involvement by BiH nationals (International Centerfor Transitional Justice (ICTJ)).56

51 Id. at 62.52 Id. at 58.53 See, e.g., IWPR, “Courting Controversy in Bosnia” (June 27, 2005), at

http://iwpr.net/?p=bcr&s=f&o=242062&apc_state=henibcr200506.54 See, e.g., JSAP Thematic Report X, Serving the Public, the Delivery of Justice

in Bosnia, available at http://www.ecmi.de/emap/download/Bosnia_Chapter12.pdf, at254 [hereinafter ICTJ Report].

55 Final IJC Report, supra note 41, at 58; see Mark Freeman, International Centerfor Transitional Justice, BOSNIA AND HERZEGOVINA: SELECTED DEVELOPMENTS IN TRANSI-

TIONAL JUSTICE 14 (Sept. 2004), available at http://www.ictj.org/images/content/1/1/113.pdf.

56 Final IJC Report, supra note 41, at 58; ICTJ Report, supra note 54.


4. Conclusions Regarding Future Use of such a System

The vetting system can be used in other post-conflict settings, but a num-ber of issues should be borne in mind. First, the reasons for wanting to conductthe reselection must be enumerated and discussed. In BiH, for example, thesereasons included:

• A forced population expulsion (including the judiciary) during the war,with no system for those judges expelled (or who feared for their safetyand left of their own accord) to regain their positions after the end ofthe war.

• Limited direct practical effect seen with JSAP and other organizations’court monitoring, and then the later ineffectiveness of the IJC over-sight procedures of the entity and cantonal judicial bodies and respec-tive parliaments in removing from office judges and prosecutors withsuspected ethical and other disciplinary issues. Thus, the HJPC processwas seen as a third (and final) step in progressively more aggressivestrategies in cleaning up the judiciary.

• The existence of an apparent pool of refugee and IDP (as well as recentgraduate) candidates for the positions. This is essential, as there is lit-tle point in conducting a reselection exercise where there are no qual-ified candidates to compete for the available positions.

• An anticipated 30-percent reduction in the number of positions avail-able for entity and lower-court judges and prosecutors meant that itwould be necessary to find a way to decide which of the sitting judgeswould remain in which positions.

• Constitutional changes in the RS and the Federation mandating ethnicquotas that broadly reflected the 1991 (pre-war) census.

• The involvement of international (non-ethnically partial) members,providing backing to the judiciary and a measure of control of the ini-tial appointments. This was deemed important given the perceived fail-ures of the earlier JSAP and IJC systems.

• The procedure was designed as a “one-time” effort not to be repeated.57

Should this system be contemplated elsewhere, it might be suggested that thefollowing should exist prior to putting it in place. First, good reasons to do somust exist, such as serious problems, of whatever nature, with a sizable num-ber of the members of the judiciary, coupled with a projected intended signif-icant reduction in the judiciary, and new constitutionally mandated ethnicityrules. Second, there would need to be an estimated pool of potential candidates

57 Note that more detailed review of methodologies and principles associatedwith vetting of public officials has been produced by the ICTJ, and in particular byAlexander Mayer-Rieckh; see http://www.ictj.org.


outside the current system who would apply, ideally two to three times as manycandidates as current members of the judiciary. Third, if ethnic or other divi-sions are prevalent in the country, or if bias, for whatever reason, is fearedamong those making the appointments, it may be best to include a measure ofcontrol of persons not perceived to hold the bias, such as non-nationals withlimited links to the country. Finally, and importantly, issues related to the inde-pendence of the judiciary should be borne in mind and balanced against theproposed system.58

E. A NEW WAR CRIMES CHAMBER: LINKING INTERNATIONAL ANDDOMESTIC WAR CRIMES TRIALS

As mentioned earlier, neither the SC resolutions establishing the ICTY, northe GFAP in 1995, nor the domestic law of BiH regulated how the internationaland national domestic legal orders should fit together, apart from an under-standing, through the Statute of the ICTY, that the ICTY would have primacy.

1. The Problem

There was little understanding as to how the international and domesticprosecution services were to work together. Each “side” of the conflict, theSerbs, Croats and Bosniaks had “liaison offices” that worked with the ICTYprosecutors on cases, principally those involving “their” victims.59 The RoRUnit worked with prosecutors directly in each canton or district where trialswere sought.60 But there was no clear public method of determining whichcases would be worked on by whom. This seemed to feed the reluctance pres-ent in many prosecutors’ offices, including those in the RS, to proceed withprosecutions.

Another problem existed internally in Bosnia. Prior to the harmonizationof the criminal codes and criminal procedure codes of BiH in 2002, cases werenormally begun in the jurisdiction where the crimes took place. However, as aresult of the shifts of the population in BiH between 1992 and 1995, this meant

58 See, for example, the principles included in Opinion no. 1 (2001) of theConsultative Council of European Judges (CCJE) for the attention of the Committee ofMinisters of the Council of Europe on standards concerning the independence of thejudiciary and the irremovability of judges, available at http://www.coe.int/t/dg1/legal-cooperation/judicialprofessions/ccje/textes/Avis_en.asp.

59 See, e.g., the ICTY Weekly Press Brief ing of Feb. 10, 1999, available athttp://www.un.org/icty/briefing/PB100299.htm.

60 ICTY, Annual Report for 2002 (Ninth Report), available at http://www.un.org/icty/rappannu-e/2002/index.htm, at para. 235.


that very few trials took place given that prosecutors were generally reluctantto try people from their own ethnic group. Prosecutors used a wider theory ofjurisdiction, approaching universal jurisdiction, to argue for the appropriate-ness and legality of the trial in an area where the victims now resided, not wherethe crimes took place.61

A third part of the problem related to the need for the ICTY to more deeplyengage in a “completion strategy.”62 It became clear that the ICTY would nothave the support of those donor countries paying for the tribunal if it did notexplain how and when it was to finish its work, in Bosnia in particular. It wasalso understood that the ICTY was not to try all persons responsible for crimesin the former Yugoslavia, but rather those allegedly most responsible for vio-lations of IHL and/or crimes against humanity and genocide. Thus, the ICTYbegan to look for solutions within the national court systems of the countriesfor which it had responsibility.63 Rule 11 bis of the Rules of Procedure andEvidence outlines how transfers of persons indicted by the ICTY, whether ornot they were in custody, to states where the incidents allegedly occurred areto take place.64 Links were made between the ICTY completion strategy andthis rule of the ICTY. BiH was a natural candidate due to the strong involve-ment of the international community in the legal and political structures of thecountry and the existence of a nationally mixed population, even if the com-munities were much more separated than before the war. At least at the statelevel, and in particular after reforms mentioned in Section D above, it becamemore acceptable to consider transfer of ICTY cases to BiH. At the same time,the international community in BiH was not pleased with the state of domes-tic war crimes trials to date. As mentioned in Section C above, many of the tri-als had faults. The question then arose what system should be put in place toenable better cooperation between the international and national war crimestrial systems in BiH.

In 2001–2002, movement in the field of the judiciary increased as the courtof BiH was being established, better cooperation between entities policing struc-tures was pushed and a more aggressive approach to judicial selection was con-templated. This opened up room for discussion of issues related to war crimestrials. In addition, the ICTY prosecutor, Carla del Ponte, had floated the idea

61 See, e.g., the Novo Rajak case and the Fikret Smajlovic case, described in theOSCE, supra note 16, at 57 and 59.

62 See Daryl Mundis, Completing the Mandates of the Ad Hoc InternationalCriminal Tribunals: Lessons from the Nuremberg Process? 28 FORDHAM INT’L L.J. 591,601 (Feb. 2005); see also, e.g., ICTY Completion Strategy Reports, at http://www.un.org/icty/rappannu-e/2002/index.htm.

63 See ICTY Rule 11 bis in the Rules of Procedure and Evidence, UN Doc.IT/32/Rev.39 (Sept. 22, 2006), available at http://www.un.org/icty/legaldoc-e/basic/rpe/IT032Rev39e.pdf.

64 Id.


of greater domestic jurisdiction involvement in the war crimes trials, reportingto the Security Council in November 2001:

the International Tribunal alone cannot carry out all the work requiredto reconstruct a national identity, without which there can be no deep-rooted or lasting peace. For this reason, it must even more keenlyencourage the domestic courts and indeed other extrajudicial mecha-nisms of reconciliation to pick up its work on a national level.65

In early 2002, therefore, the OHR decided that a group should be estab-lished to examine the structures for war crimes trials that might take place inthe future. To some extent, the likely framework of the new structure was dic-tated by circumstances. It was clear that the ICTY was finding it difficult tocomplete all cases within the timelines being asked of it, while there was a feel-ing that the cases having been tried in BiH were, for the most part, not up toscratch. In addition, BiH had a tradition of post-war “hybrid” jurisdictions, suchas the BiH Constitutional Court (three non-nationals, six nationals),66 the HumanRights Chamber (eight non-nationals, six nationals),67 and the provisional elec-tions appeals commission (one national with override powers and three nation-als).68 Hybrid courts also were being considered for war crimes trials in SierraLeone69 and Cambodia.70 Finally, the existing RoR structure mentioned inSection B above meant some measure of existing interaction between interna-tional justice and the existing courts of BiH.

Four persons with experience in BiH and at the ICTY were engaged towork with the OHR in determining options for the modalities for future trials.The Consultants’ Report to the OHR on the Future of Domestic War CrimesProsecutions in Bosnia and Herzegovina71 (Consultants’ Report or Report) iden-tified numerous factors in favor of a change in the system, including issuesrelated to ethnic bias and whether mono-ethnic courts could deliver justice,

65 See the 8th Annual Report (2001) of the ICTY to the Security Council, UNDoc. A/56/352-S/2001/865, available at http://www.un.org/icty/rappannu-e/2001/index.htm, at para, 280.

66 Annex 4 of the GFAP, available at http://www.ohr.int/dpa/default.asp?con-tent_id=379.

67 Id., Annex 6.68 Id., Annex 3.69 See the Jan. 16, 2002 Special Court Agreement with Sierra Leone, available

at http://www.sc-sl.org/scsl-agreement.html.70 See the Government of Cambodia’s introduction of the Extraordinary Chambers,

at http://www.cambodia.gov.kh/krt/english/introduction_eng/index.htm.71 Consultants’ Report to the OHR on the Future of Domestic War Crimes

Prosecutions in Bosnia and Herzegovina, unpublished, May 2002 (on f ile with theauthor). The four consultants engaged were Peter Bach, Kjell Björnberg, John Ralstonand Almiro Rodrigues.


resolve of local courts, witness protection issues, security of personnel, lack ofinter-entity cooperation and a lack of recognition in practice of judgments ineach entity.72

2. The Proposed Solution

The Consultants’ Report proposed the establishment of an IHL divisionwithin the court of BiH, having an appeals chamber and at least one trial divi-sion, with five judges including two international judges. An international pros-ecutor was proposed who would have overall responsibility for war crimesinvestigations in BiH. The Report proposed further that the RoR cases be trans-ferred to this prosecutor and that he should have control over which cases proceeded at the state level or the entity level. The Report also made recom-mendations concerning laws of evidence, witness protection and court police.73

Much of the substance of the Report was given effect in amendments madeto the law on the court of BiH and the criminal code of BiH. A war crimeschamber was set up in the criminal division of the court of BiH, with bothnationals and non-nationals of BiH.74 An international prosecutor was put incharge of war crimes trials. Witness protection legislation was adopted,75 andthe criminal codes of BiH and the entities were harmonized.76

However, a number of issues remained to be sorted out between the ICTY,the prosecutor at the court of BiH, and entity prosecutors. The OSCE March2005 Report, for example, noted:

Confusion about this jurisdictional arrangement was clearly reflectedby the results of the Prosecutors’ Survey (carried out before the adop-tion of the aforementioned Orientation Criteria and BoR), in which 50per cent of the prosecutors’ offices considered that they would havejurisdiction to investigate a new case whilst the other 50 per cent notedthat such jurisdiction belongs to the BiH Prosecutor’s Office alone . . .Six prosecutors expected that once notified, the BiH Prosecutor’s Officewould decide who shall proceed with the case (e.g. BiH Prosecutor orentity prosecutor), five prosecutors expected the BiH Court would takeover the case, whilst two prosecutors expected the BiH Prosecutor’s

72 Id., at 8.73 Id., at 43–45.74 See, e.g., the Rules and Procedure of the Court of BiH, available at

http://www.sudbih.gov.ba/files/docs/Rules_of_Procedure_Court_14_10_05.doc.75 See the Criminal Procedure Code of BiH art. 237, available at http://www.

ohr.int/ohr-dept/legal/laws-of-bih/default.asp?content_id=31549.76 See the codes on the OHR’s Web site, at http://www.ohr.int/ohr-dept/legal/laws-

of-bih/default.asp?content_id=31549.


Office to order the necessary measures, and on prosecutor had noexpectation. Divergent practice in relation to the new system, result-ing from misinterpretation and confusion about the law, is apparent.77

Similar confusion existed, in 2005, concerning which criminal and criminalprocedure codes would apply in war crimes cases, raising important issues con-cerning jurisdiction.78

The new system thus envisaged three tiers. At the top, the ICTY continuesto carry out the trials of the highest level officials, and will be, for example,the venue for the trials of Radovan Karadzic and Ratko Mladic.79 The secondlevel, the War Crimes Chamber at the court of BiH, is a true hybrid court, withboth international and national judges and prosecutors. The War Crimes Chamberis trying many indictees at a level below Mladic and Karadzic and is speciallyequipped for war crimes trials.80 The third level, cantonal and district courts,hosts trials of less difficult cases. It should be mentioned that the fact that mostcantonal and district level courts in BiH are now of mixed ethnicity and con-figured based on a merit-based reselection procedure may increase the per-ception of the fairness of the trials, but there have been few such trials transferredby the BiH prosecutor’s office to lower courts.

3. Results of the War Crimes Chamber to Date

The court of BiH had completed one transferred war crimes trial toNovember 2006 and had indicted 33 people and issued verdicts in eight othernon-transferred cases.81 As of February 2007, the court listed 19 cases (one ofwhich involves multiple defendants) currently pending either at first instanceor appeal.82 It appears that the speed of trials is increasing, and that trials areon a pace that would exceed the speed of the ICTY, while still considering atlength issues such as the application of Article 7 of the ECHR with respect tothe legality of the application of crimes against humanity, which was not knownas a crime in BiH at the time of the commission of the offense, although the

77 OSCE, supra note 16, at 19.78 Id. at 20–21.79 See, e.g., mention in the ICTY Completion Strategy Report of May 31, 2006,

at http://www.un.org/icty/publications-e/assessments/documents/2006-531eng.pdf, atpara. 46.

80 See http://www.sudbih.ba.81 International Crisis Group, Ensuring Bosnia’s Future: A New International

Engagement Strategy, Europe Report No. 180, Feb. 15 2007, available at http://www.cri-sisgroup.org/library/documents/europe/balkans/180_ensuring_bosnias_future_web.doc,and citing a Nov. 2006 BIRN/IWPR Report; see http://www.bim.ba/bh/52/10/.

82 See at http://www.sudbih.gov.ba.


underlying elements of the offense were punishable.83

An initial view of the current system provides indications of success, but,again, it would be worth waiting a few years and comparing the transitionalperiod to the post-transitional period before passing judgment. In early 2006,Human Rights Watch wrote:

The WCC [War Crimes Chamber] offers tremendous promise to affectthe way justice is realized in Bosnia. In this regard, Human RightsWatch is encouraged by the efforts made thus far to create a solid foun-dation to conduct fair and effective trials before the WCC, includinginitiatives to promote sustainable local capacity. However, the real chal-lenges associated with conducting fair and effective trials lie ahead.Depending on how these challenges are addressed, the WCC and itsinstitutions have the potential to make a significant impact on build-ing respect for the rule of law in Bosnia. In that regard, it will requirecontinuous support from the international community and the peopleof Bosnia in realizing its full potential.84

4. Conclusions Regarding Future Uses of such a System

Experience has shown that difficulties arise in trials held at smaller mono-ethnic courts after a war fought along ethnic lines. Initial reports point to thesuccess of a hybrid system in which the prosecutor and the ICTY are linkedand after a reselection system where judges are chosen based on merit ratherthan based on political affiliation. The prosecutor in War Crimes Chamber caseshas been aided by the evidence gathered by the tribunal in ICTY-transferredcases. In future situations in which there are strong links between an interna-tional court (such as the International Criminal Court (ICC) or an ad hoc tri-bunal), these links should be well defined in law. It may also be useful to considervarious tiers of justice, depending on the complexity, potential for bias andsecurity conditions of each case. The BiH system contemplated three tiers: allinternational (ICTY), hybrid (War Crimes Chamber) and domestic (cantonal/district level courts).

83 Paunovic Dragoje, Paunovic_ENG_X-KR-05-16, July 21, 2006, at http://www.sudbih.gov.ba.

84 Human Rights Watch, Looking for Justice: The War Crimes Chamber in Bosniaand Herzegovina (Feb. 2006), available at http://hrw.org/reports/2006/ij0206/index.htm.


F. CONCLUSIONS

Two caveats should be placed on any final remarks. First, each country’scontext will differ. Second, the BiH experience is still under way and will needyears before anything close to definitive assessments can be made. That said,trials conducted in mono-ethnic jurisdictions in BiH suffered drawbacks, whilethe current system of centralizing trials in one countrywide court with interna-tional involvement, and after a reselection procedure for judges, has shown ini-tial successes. This can be contrasted with the results of the 1996 RoR procedures,one of the main effects of which was a delay in war crimes trials before domes-tic BiH courts, many of which contained flaws. Finally, before any of these sys-tems are tried, the long-term rule of law consequences of the decisions undertakenshould be carefully considered, in particular the reselection procedure.

PSOs will certainly continue to include law enforcement mandates. Theexperience in recent operations has shown that strong post-conflict security andjudicial systems cannot be taken for granted. It would be useful to considerexperiences such as those in BiH when designing and implementing future PSOlaw enforcement structures.

179

CHAPTER 10

FORENSIC ANTHROPOLOGY IN PEACE SUPPORT OPERATIONS

Mercedes Doretti*Jennifer Burrell**

A. INTRODUCTION

Forensic anthropology used in the context of human rights cases has cometo the forefront in the past two decades as an essential part of peace supportoperations (PSOs), international and national tribunals and of special com-missions of inquiry and other types of investigations following large-scalehuman rights abuses. Framed within the fundamental right to truth and justiceof victims of human rights violations, their families and societies at large toknow what happened to their loved ones, the missing and the disappeared, thisapplication continues to develop. Forensic anthropology has now been used inthe investigation of human rights violations in more than 50 countries in LatinAmerica, Africa, Asia and Europe, often following requests from local and inter-national human rights organizations, local judiciaries, government and/or UN-sponsored truth commissions, the offices of special prosecutors and internationaltribunals, among others. This chapter will focus on what forensic anthropologyis, how it has developed and how it can contribute to peace support efforts rel-ative to its application in the investigation of human rights abuses, using theArgentine case as an example.

Forensic science deals with the recovery and analysis of physical evidenceand refers to biological and non-biological evidence. Biological evidence includesskeletal remains, body parts, bloodstains, other bodily fluids, fingerprints andso forth. Non-biological evidence related to a crime includes items associatedwith remains or relevant to the case, such as bullets, personal belongings,weapons and other objects that can potentially provide information in a crim-inal investigation. Forensic anthropology can be defined as the application ofknowledge and techniques from physical or biological anthropology and foren-

* Argentine Forensic Anthropology Team (EAAF).** Department of Anthropology, State University of New York, Albany and EAAF

Consultant.


sic medicine to the study of skeletal or almost skeletonized remains within thecontext of a legal investigation. When remains and associated evidence areretrieved, criminalistic and archaeological techniques are also used.Anthropologists working in forensics often also work on the recovery, preser-vation and analysis of the crime scene as well as site-finding efforts.

Unlike non-politically motivated criminal cases where investigations usu-ally occur almost immediately, in human rights cases governments or accusedparties often deny or impede access to remains of alleged victims or permis-sion to conduct full investigations. In the interval, remains may decompose andbecome skeletonized. Therefore, the combination of techniques and knowledgeused in such forensic investigations may include interventions from forensicanthropology along with forensic pathology, physical anthropology, archaeol-ogy, cultural anthropology, ballistics crime scene investigation, genetics andothers. This inter-disciplinary effort, together with genetic analysis for identi-fication purposes, often allows for the skeletonized remains of victims to beidentified through a pooling of expertise that also maximizes the informationobtained from the evidence. Specialists in these disciplines work as expert wit-nesses, technical consultants, and foreign experts for judiciaries, commissionsof inquiries or other bodies that have the mandate and authorization to conductsuch investigations.

In order to address all these aspects, this chapter will be structured as fol-lows. After this brief introduction, Section B will illustrate the Argentine caseand the work of the Argentine Forensic Anthropology Team (EAAF). SectionC will explain the strategies adopted to conduct the investigations and, there-fore, provide some guidelines that may be adopted during investigations con-ducted in PSOs, whereas the fourth and final section will draw the conclusionsand give some recommendations based on the experiences of EAAF and theauthors.

B. THE ARGENTINE CASE AND THE FORMATION OF EAAF

In the summer of 1984, democracy returned to Argentina after eight longyears of dictatorship. As many as 9,000 people were disappeared by the state dur-ing that time, and no official in-depth investigation had been allowed. It was gen-erally known (although not officially acknowledged until years later) that manydisappeared people had been thrown from airplanes into the Argentine Sea, andtherefore in most cases, their remains would probably not be retrievable.1 Butmany others were buried in anonymous graves, in the “John Doe” areas2 of ceme-

1 An exception to this are the several dozen bodies discovered washed ashoreon the Uruguayan and Argentinean coasts. For more information, see the annual reportsof the Argentine Forensic Anthropology Team (2003, 2004 and 2005).

2 “John Doe” areas are sections where unidentified remains are buried.

Forensic Anthropology in Peace Support Operations 181

teries all over the country. In 1984, a few months after democracy returned tothe country, judges, relatives of disappeared people, forensic doctors, police,media and the curious, gathered at cemeteries to frantically search for theirremains. The press photographed bulldozers digging up several individual gravesat once, skulls and other bones flying from their shovels. Untrained cemeterypersonnel tried their best to recover skeletal remains but left behind small bones,including teeth and other evidence such as bullets. The bones were broken, lostor mixed up. Skulls were piled in one place and post-cranial bones in another,destroying the relationship between the skull and the rest of the skeleton.Television screens showed doctors holding skulls with gunshot wounds. Whilein all likelihood these were the remains of disappeared people, nobody knewwho among the victims they might belong to, nor to what episodes they werelinked, nor who specifically was responsible for their deaths. Furthermore, noone knew what to do with these remains once they had been recovered. The evi-dence necessary for identification and for legal cases in progress against thoseresponsible for these crimes was being destroyed and/or severely altered.

There was no precedent in Argentina for dealing with massive exhuma-tions of skeletal remains. The official forensic physicians in charge of recov-ery, whose familiarity was with cadavers, had little experience with exhumationsor analysis of skeletal remains. In addition, some doctors had themselves beencomplicit in the crimes of the previous regime, either by omission or by com-mission. In Argentina as in most of Latin America and other regions as well,the forensic experts are part of the police and/or the judiciary system, or thegovernment. Therefore, during undemocratic periods, their independence isseverely limited. As a result, they lacked the trust of families of the victims.

After several massive exhumations, the need for a scientific alternative tothese procedures became obvious. The National Commission on theDisappearance of People (CONADEP) created in 1984 by newly elected PresidentAlfonsín, and the Grandmothers of Plaza de Mayo—a local human rights organ-ization dedicated to searching for disappeared children and those born in cap-tivity—asked the Human Rights and Science Program at the AmericanAssociation for the Advancement of Science (AAAS) for assistance. Eric Stover,in charge of that program at the AAAS, sent a delegation of forensic scientists,including Dr. Clyde Snow, one of the world’s foremost experts in forensic anthro-pology. Dr. Snow called for a halt to all unscientific exhumations and askedarchaeologists and anthropologists to get involved.

A few advanced students of archaeology and social anthropology answeredhis call. Under Snow’s direction, and using techniques from traditional archae-ology and forensic anthropology, this group participated in exhumations inwhich the data was collected, documented and analyzed. This collected evi-dence served to convict several high-ranking military officials and to identifydisappeared people, restoring their remains to their families.

Dr. Snow returned to Argentina many times over the next five years. Thevolunteers he trained formed the Argentine Forensic Anthropology Team (EAAF),


a scientific, non-governmental organization dedicated to the application offorensic sciences, mainly forensic archaeology and anthropology, to the inves-tigation of human rights violations. After 1986, EAAF expanded its activitiesbeyond Argentina and has since gone on to work in close to 40 countries inLatin America, Africa, Asia and Europe.

Over the years, new forensic anthropology teams have formed in Guatemala,Chile, Peru and Colombia, among others. Important international forensic effortswere set up by special UN tribunals to investigate war crimes committed dur-ing the Balkan wars and the Rwandan genocide, among others. The newly cre-ated International Criminal Court (ICC) has a forensic component. Dr. Snowhas been at the center of most of these efforts, providing training and advice,as well as working on cases.

EAAF applies forensic sciences to the investigation of human rights vio-lations to assist the families of victims, train local teams and/or forensic pro-fessionals, and provide evidence to courts. In the long term, EAAF aims tocontribute to the historical reconstruction of the recent past, often distorted orhidden by parties or government institutions that are themselves implicated inthe crimes under investigation. EAAF members frequently act as expert wit-nesses and consultants for local and international human rights organizations,national judiciaries, international tribunals and special commissions of inquiry,such as truth commissions.

C. METHODOLOGIES AND PHASES OF FORENSIC ANTHROPOLOGYINVESTIGATION OF A HUMAN RIGHTS CASE

EAAF typically carries out a forensic anthropology investigation of a humanrights case in three basic phases: the preliminary investigation, the archaeo-logical work and laboratory analysis of human remains and associated evidence.

1. Preliminary Investigation

The main purpose of this phase is to provide as much background informa-tion as possible about an event under investigation, the alleged victims and thealleged killing and burial sites. In this phase, investigators gather three main typesof information: (1) background on the case from a variety of sources, includingoral testimonies from witnesses and survivors, non-governmental organization(NGO) reports and any documentation pertaining to the case such as newspaperaccounts, official documents such as death certificates or records from hospitals,morgues and cemeteries; (2) the collection of ante-mortem or pre-mortem infor-mation about the victims, such as age at death, sex, ancestry, height, handedness,old fractures, injuries, diseases and dental information, which will later be com-pared with similar features when examining the remains at the laboratory for


identification purposes; and (3) information about the location and general fea-tures of burial and killing sites, such as the number and size of graves and thenumber and possible identification of victims potentially buried in each grave.Standard questionnaires are used to collect data of the last two types.

Typically, in the investigation of human rights cases, anthropologists willoften work on several aspects of the preliminary investigation, instead of, or inaddition to, having judicial or police investigators. This is particularly true whenalleged perpetrators include state agencies, often the case in human right crimes,as they themselves cannot or are not willing to produce the background infor-mation on a case. In addition, most parties involved with or interested in aninvestigation, such as families of victims, prefer an independent team free ofconflicts of interest. This partly explains why in Latin America, where massivehuman right abuses were perpetrated over the last four decades primarily bythe state (with the exceptions of Peru and Colombia) most of the forensic teamsare NGOs mostly focused on human rights cases.

During this preliminary phase, anthropologists working on human rightscases interview relatives of victims to gather pre-mortem data and data relatedto the burial site and circumstances leading to the event. Forensic teams mayalso collect historical information about an event if no organization or indi-viduals have done so or if the data collected by others is insufficient or doesnot include questions related to forensic issues. However, local human rightsorganizations, and sometimes local judiciaries, play a crucial role in findingeyewitnesses and putting together a case. Local NGOs in particular, often atgreat risk to their members, form a crucial bridge between forensic teams, inves-tigative bodies and witnesses, survivors and relatives of victims of human rightsabuses. Even in moments of democratic transition, witnesses and relatives ofvictims will frequently feel more comfortable releasing information to a localNGO or giving testimony before a court of law or a commission of inquiry withsupport and/or mediation from them.

It is strongly recommended to keep direct contact between forensic teamsand relatives of victims presumably related to the case under investigation beforethe forensic work begins, allowing families to understand the procedures to beperformed, to ask questions, to voice and consider their expectations, doubts,objections, etc. In particular, cultural and religious practices regarding deathand reburial should be treated with the utmost respect. In most cases involvingpolitical disappearance, the relatives of victims have been poorly treated byofficials, who often deny the very fact that their loved ones are missing. It isimportant to reestablish a link of trust and respect.

A good preliminary investigation allows the forensic team to plan a num-ber of technical and practical issues. These include determining what humanand material resources are essential; the most appropriate technical strategiesfor the archaeological work; probable duration of field and laboratory work;any logistical problems, such as site access, protection of evidence in situ, hous-ing, funding, etc.


At this stage, a team will also identify and evaluate the main questions thatthose directing the investigation (such as a truth commission, or a local or inter-national tribunal) seek to address and the likelihood of accomplishing thesegoals through forensic work. Some examples of background information thata forensic team would need to know in advance to advise an investigative bodyinclude:

• Different versions of the incident under investigation.• Is the field site a killing site, a burial site or both?• Is the presumed identity of victims known, or only that they belong to

a particular group? If the names of individuals are known, is thereenough pre-mortem data to try to identify them? Are relatives avail-able for possible DNA testing?

• How likely is it that the cause and manner of death will be establishedfrom the examination of the remains and/or the crime scene? For exam-ple, if the presumed cause of death (i.e., some stab wounds, some casesof strangulation) has probably not affected the bones and remains areexpected to be skeletonized, in all likelihood, it is unlikely to provideconclusive information on this issue.

• Is an investigation likely to find evidence linking the crime with pos-sible perpetrators, such as ammunition identifiable with one side inthe conflict?

• Will the investigation be conducted at a primary or secondary grave?

In addition to establishing expectations of peacekeeping operations, com-missions of inquiry and so forth, this phase also serves to shape the expecta-tions of presumed relatives of victims if the possibility of f inding and/oridentifying their loved ones is slim.

Forensic work is a tool within a larger investigation, and it is up to thosedirecting the general investigative operation to set priorities, selecting the caseswhere forensic work will ideally be carried out, and to establish the main ques-tions that need to be answered. After analyzing preliminary information, theforensic team can provide important input in the setting of priorities.

2. The Archaeological Work

Archaeological work includes the survey and actual recovery of physicalevidence at the surface, burial and if possible, killing site(s) of a crime. Thearchaeological approach, together with crime scene analysis, provides a scien-tific way to recover and reconstruct events under investigation and to preventdamage to evidence during excavations, incomplete recovery or lack of docu-mentation of recovery processes.


On site, an archaeologist tries to determine a number of things. Theseinclude, among others, whether a burial site contains the remains of one indi-vidual or more; whether it is a primary grave or secondary (where the remainswere f irst buried versus where they may have been moved at a later date);whether bodies were deposited at the same time (synchronic) or at differenttimes (diachronic); whether the evidence was disturbed after death; and, if thereare traces left in the grave site of tools or machinery used for grave prepara-tion that could provide information about possible perpetrators. The archaeo-logical phase of a forensic investigation is generally concerned with thefollowing: the proper recovery and preservation of biological and non-biolog-ical evidence associated with a legal investigation, site security, participantspresent at exhumations, recording evidence and keeping records, and estab-lishing chains of custody, all of which are discussed below and are essential toguaranteeing the integrity of evidence in courts and subsequent interpretationsof it.

When a forensic investigation begins, security of a site must be providedand access to the site restricted around the clock until the work is finished. Inorder to accomplish this, a perimeter is established to mark the working area.Access to this area is limited to authorized personnel working on the site.Officials not working on the site, relatives of the victims, human rights organ-izations and the media should be kept outside the working area avoiding therisk of moving or damaging evidence, but family members should have a spacefrom where they can follow the investigation.

Impartial parties not related to alleged perpetrators should provide secu-rity. In cases in which a UN peacekeeping operation is already in the country,or the organization in charge of the investigation is a UN truth commission,UN security guards often provide security. This has occurred in investigationssuch as the excavation conducted at an El Mozote burial site in El Salvador atthe request of the UN truth commission in that country, forensic investigationsconducted in the former Yugoslavia by the International Criminal Tribunal(ICTY), and the forensic investigations in Haiti requested by the PresidentialTruth and Justice Commission, among others.

However, it is not unprecedented that governments under investigationrefuse to allow the presence of UN armed guards, as was the case with the UNinvestigative mission in the Democratic Republic of Congo (DRC). Also, incountries like Argentina, Chile, Brazil and at the commencement of forensicwork in Guatemala, where there was not a UN mission at the time burial siteswere initially investigated, or not at all, sites are often secured by police or mil-itary forces, institutions accused of the alleged crimes under investigation. Thesearrangements, clearly, are not ideal and are often the source of conflicts, obsta-cles and delays during investigations. In the end, however, EAAF experienceindicates that in most cases they do not interfere substantially with the inves-tigation. This especially seems to be the case when high-level political author-


ities, like a new democratic government, determine that an investigation shouldproceed and order the local police or military to cooperate. If, however, thehighest authorities are not committed to allowing the investigation to proceed,the police or military may impede or seriously interfere with the work. Theforensic team may take additional protective measures in some delicate situa-tions, including extensive daily photo and video documentation and daily cov-ering and sealing of the site.

Protection of sites is also an issue when they are first discovered but willnot be excavated for some time. While having security personnel at the sitewhen no work is going on may be difficult or impossible, measures like extend-ing a layer of cement on the surface of a grave can be of great assistance. It isinexpensive, and easy to carry out, even in outlying communities, and it alsoprovides protection from animals and other unintentional damage. If the site istampered with, at least there will be clear evidence of the fact.

Truth commissions are sometimes entitled to order exhumations throughtheir mandates, as were those in South Africa, Haiti, El Salvador and Guatemala,among others. However, what a truth commission’s role is at a site under inves-tigation and the relationship with a local judiciary system are sometimes unclear.Overlapping jurisdictions and lack of precedents often obscure and confuseproceedings. As a result, even where commissions are entitled to order exhuma-tions or forensic work in general, it is highly recommended that they considerinviting a justice of the peace or a local judge to be present at the site and tokeep an official record of basic f indings and procedures. This is suggestedbecause even though truth commissions or peacekeeping operations often havesome faculties that are similar to those of judiciaries, they are not the same. Onoccasion, cases initially investigated by a truth commission will later be takento court. Having an official record from the local judiciary facilitates the incor-poration of evidence from the truth commission to the judiciary. Among otherthings, this may prevent the judiciary, the defense, or the prosecutors from ques-tioning the evidence on the grounds of it having been collected by a body out-side of the judiciary system.3

Keeping careful records and recording the progress of the archaeologicalphase of an investigation becomes doubly important since the collection of evi-dence necessarily entails the destruction of the original context in which it wasfound. The documentation of evidence in situ, then, using survey equipment,photographs, video and other means, is crucial to later contextual reconstruc-

3 In Argentina, the truth commission, called CONADEP, worked for nine monthsin 1984 and then handed all of its records to the judiciary that used them in trials. Asimilar process occurred in the Raboteau cases in Haiti. While the case was initiallyinvestigated by the Truth and Justice Commission, the evidence was later transferred tothe Haitian judiciary. In El Mozote, in El Salvador, the forensic work was initiated bythe truth commission but the local judge in the province where the case was opened waspresent at the site and kept a daily record of the investigation.


tion, often accomplished through maps and graphics. An inventory of eachrecovered item or exhibit, its code number assigned by the forensic team, itstridimensional location within the site and in relation to other pieces of evi-dence and the state in which it was found should be recorded daily in a logsheet. This information can provide vital information in terms of the followingissues:

1. cause of death, that is, location of bullets within a skeleton;2. manner of death, that is, possible location of shooter(s) according to

the position of cartridge cases on a site;3. time of death—cadaveric fauna, coins, pieces of newspaper and car-

tridge cases may provide indirect information about a possible burialdate;

4. post-mortem disturbances—alterations in the anatomical position ofa body or skeleton, such as finding vertebrae at the level of the leg,for example, can imply unintentional disturbance of the evidence, pos-sibly produced by natural forces such as animals, rain or even agri-culturalists, or intentional disturbances to cover up a crime.

One member of a forensic team, either an archaeologist or crime scene inves-tigator, normally keeps this record. Together with the analysis of the evidenceat the laboratory, the field record will serve as the basis for the final technicalreport submitted to the director of an investigation.

Concurrently, the official in charge of the custody and transport of evi-dence should maintain a separate record. Unlike traditional archaeological exca-vations, an additional legal record is needed in forensic cases. This record shouldstate the main daily tasks and findings, including the recovered evidence withits assigned code number, who participated in the work, who visited the site,etc. Most importantly, the record should include who is in charge of the cus-tody of the evidence at the end of each day, its transport and custody at the stor-age site (morgue, laboratory, truth commission or judicial building, for example).Every change of hands must be recorded and signed on a chain of custody formby the person responsible for the evidence at each step, maintaining the chainof custody. The record should be kept according to standard procedures accept-able in a court of law. The best evidence can be ruined by poor recording pro-cedures or by gaps in the chain of custody of the evidence and the security ofthe site.

3. Laboratory Work

Evidence collected in the f ield is analyzed at a laboratory. In terms ofhuman remains, there are two main objectives at this stage: to try to identifyremains and to establish or provide data regarding the manner and cause of


death of the individual(s). The forensic team will also work to establish anapproximate time of death and to pinpoint possible post-mortem changes fromanimal bite marks on bone to trauma by machinery used to load bodies intograves or remove them to secondary burial sites. When analyzing skeletalremains, forensic pathologists and anthropologists try to answer the followingquestions: Are the remains human? Are there one or more individuals repre-sented in the sample? What was the sex, age at death, height, laterality, etc., ofeach individual when they were alive? Can the individual be identified? Whatwas the interval since death? What was the cause and manner of death?

During the analysis of skeletal remains, simple laboratory facilities are allthat are needed to answer the majority of these questions. A large clean coolroom with good light, water and tables are basic requirements. Access to an X-ray machine and technician can normally be arranged with a nearby clinic orhospital. When analyzing remains that are not fully skeletonized, refrigerationis required. The chain of custody continues in the lab; thus, its security is asimportant as it is for the field site and transportation of evidence.

In some countries and academic traditions, people working in the labora-tory must be completely separate from field personnel, as they believe thatknowledge of the field can bias results, or they simply do not communicatewith field experts. In the authors’ experience, this position, sometimes sus-tained by judges, impoverishes the investigation and can lead to mistakes in theinterpretation of evidence. It is very important to consider general backgroundinformation as well as archaeological data and evidence about the case whenworking in the lab, as it may be vital to answering questions targeted duringthis phase of analysis.

4. Identifications: Problems and Dilemmas

During the identification process, physical (pre-mortem or ante-mortem)data provided by presumed or potential family of the victim is compared withdata obtained from the examination of human remains. When a person diedrecently and visual recognition is still possible, identifications are generallycarried out by presumed relatives. However, once bodies are decomposing orskeletonized, in most cases this is clearly no longer possible; it is not a reliableway to identify remains and could be the source of grave potential mistakes.

In cases where insufficient pre-mortem data is available, for example, incountries where the affected population involves rural peasantry with little orno access to medical or dental assistance, or consists of urban victims withoutmedical records or particularly identifiable physical features, genetic methodsare slowly being integrated to identify skeletal remains, together with tradi-tional anthropological and odontological techniques. This genetic method con-sists of extracting DNA from teeth or bones of the remains to obtain a genetic


profile and comparing it with DNA extracted from the blood, saliva and/or hairsamples of the victims and/or those provided by presumed relatives.

In the absence of special or individualizing physical pre-mortem featuresor the possibility of a DNA comparison, identifications based on clothing andgeneral biological profiles or physical data (such as age, height, sex and hand-edness) are considered tentative, a step before reaching positive identifications.These may sometimes be legally accepted in conjunction with strong circum-stantial evidence regarding the identity of a victim. For example, this may occurwhen victims have been killed on the spot, and relatives or fellow prisonersagree on how he or she was dressed immediately before death and/or burial.This is sometimes the case, as in the genocide against the Maya in Guatemalain the 1980s, where many people were killed and buried in and around theirhamlets in front of their relatives or neighbors. Clothing worn by many Mayain Guatemala, particularly among women who wear huipiles (hand woven shirts),can be quite distinguishable and traced to certain villages and even weavers. Inthese cases, judges often decide that circumstantial evidence together with theconsistency of clothing and general physical features are strong enough to sup-port identification.

In cases of disappearances, such as those in Argentina, for example, thesituation is often quite different. Typically, people were abducted by securityforces, taken to illegal detention centers, stripped of all clothing and personalbelongings on arrival and tortured while naked. Later, they were dressed inclothing left by other prisoners. In these cases, clothing should not be taken asan element of the identification process. The same is true for personal belong-ings and identity cards: they can be exchanged among friends or fellow pris-oners in jail or while on the run.

In addition, the decomposition of a body combined with the compositionand temperature of the soil and other organisms around cloth often produceserious discoloration of clothing items and obscures details, making identifi-cation based on these items quite difficult or confusing.4 In sum, the value ofclothing as an element to take into account in an identification should be care-fully analyzed on a case-by-case basis.

The creation of a data bank correlating background information on casesand victims—date and place of abduction or killing, available pre-mortem infor-mation and data extracted from laboratory analysis of the remains—can con-siderably maximize chances of identification. It is also helpful to use standardpre-mortem laboratory and background information forms so that data is col-lected in a standardized fashion.

4 In places like Bosnia, the international criminal tribunal forensic team washedclothing quite carefully to assist with the identification process. Clothing items are sur-prisingly different after washing than when first recovered: stripes, designs and colorchanges are among elements that may have been previously obscured.


All possible efforts should be made to identify the remains of victims ofhuman rights violations. However, experience indicates that in many cases andfor different reasons—time constraints, lack of pre-mortem information, lackof access to DNA analysis—expectations about identification of many of thevictims within the timeframe of a PSO or truth commission is highly unlikelyif not simply impossible. Nevertheless, it is of utmost importance that theseinstitutions seek to establish the necessary mechanisms so that investigationsand identifications can continue after mandates expire, independent of futureor non-judicial prosecutions, and despite amnesty laws. The right of familiesof victims benefit from all possible efforts to find their loved ones, to know thetruth about what happened to them and to recover their remains should be guar-anteed. The same can be said about society as a whole.

5. Strategies

Forensic investigative strategies are usually shaped by the judiciary, pub-lic ministry, a commission or peacekeeping force’s mandate to establish thebasic facts of inquiry and by the time period during which the investigationmust take place. Normally this may be a year or several years to investigatethousands of crimes, which makes it impossible to investigate all crime sites.Thus, priorities and strategies must be arrived at. In addition, in cases likeArgentina, Chile, Guatemala and others, forensic work continues after truthcommissions and trials are over, even after amnesty laws are passed.

In arriving at a strategy, reasons to conduct forensic work and particular sitesthat allow goals to be reached must be considered. The forensic team studies theavailable information in each case and can offer advice regarding the feasibilityof reaching expected results given time and resources available. At the HaitianTruth and Justice Commission, for example, the commissioners and the forensicteam discussed the pros and cons of each forensic site to be investigated beforemaking a final decision. To leave it to the forensic team to establish which siteswill be investigated can be at odds with the investigative body priorities. The teammay decide this based on technical aspects or other factors that are not consis-tent with the commission’s priorities. The opposite is also true.

6. Criteria for Case Selection

The selection of sites and the order in which forensic work can be donedepends on a number of facts that need to be evaluated and decided upon bythose in charge of an investigation in conjunction with technical advice fromthe forensic team. Many intertwined factors may contribute to a decision towork on a specific site. Some of the criteria for prioritizing cases are:


1. emergency situations: surface evidence or shallow grave sites at riskof destruction by natural elements—rain, wind, storms or floods or byalleged perpetrators;

2. humanitarian grounds: although these sites may not provide vital ornew legal evidence, they are important for families of victims;

3. emblematic cases fulfilling the mandate of the investigative body: sitesthat may represent a pattern of violation in a given country, such asattacks and killing of refugees in camps (DRC), governmental scorchedearth policies in El Salvador’s civil war (El Mozote) or because of theseriousness of a violation, such as the attack on Croatians of Vukovarby Serb forces after they took the city in 1991;

4. dymbolic or social value, such as the killing of a respected leader—for example, the assassination of Monseñor Romero in El Salvador.

5. rqual number of sites from each party involved in a conflict.

Truth commissions or other investigative inquiries outside courts of law addi-tionally need to decide what level of evidence to pursue. In order to do so, thefirst basic questions of an investigation must be arrived at and considered withinthe timeframe. For example, if a PSO is working to establish whether there issubstantial evidence to support allegations of massacres and other serious crimesin a country or large territory, and it has a few months to establish that, theinvestigative strategy as regards forensic work may mean choosing a more exten-sive sample-oriented investigation than an intensive one. In other words, ratherthan exhuming a few sites completely, it may choose instead to examine onlya representative number of bodies at each mass grave. In case such as these,the forensic team may attempt to establish an estimate of the minimal numberof individuals in each burial site, estimate general biological features in theexamination of the remains, such as ancestry, age and sex of the deceased, andprovide information about cause and manner of death. Provisions should bemade so that a larger forensic project can continue afterwards, but this evidencemay be sufficient for what a commission is trying to establish.

7. Psychological Assistance to the Relatives of Victims

There are many different reactions to having a family member or loved onedisappeared. While this issue cannot be covered in its entirety, a few issues thatemerge from EAAF experience working with families over the course of almostthree decades, and in close to 40 countries, need to be raised. One of the mostperverse effects of political disappearance is its essential ambiguity: disap-peared people are neither dead nor alive. They are in a third ill-defined cate-gory. For example, the disappeared are often referred to in the present tense.The normal process of mourning is therefore suspended, frozen. Though therelatives of the victims assume, consciously or unconsciously, that their loved


ones are probably dead, at the same time, there is always the hope of findingthem alive. However, hope is accompanied by the anguish of not knowing exactlywhat happened and being unable to establish with any certainty whether he orshe is dead. This uncertainty leads to significant pain and guilt. Often the rel-atives of the disappeared indicate that they feel caught in a paradox: they knowthat there are no other places to search for their loved one, or they cannot gainaccess to these places, but at the same time, they cannot bring themselves todeclare them dead and stop searching without evidence of their death. This isnot only for political reasons but because they feel they are abandoning theirloved ones if they stop searching and that a part of their lives and minds stoppedwhen their relative disappeared.

Nothing can repair the damage inflicted on the victims and families of dis-appeared, but a consistent narrative that we have heard is how much partici-pating in NGOs has assisted these families in breaking the circle of silence andfear. In EAAF experience, the vast majority of families feel that they want torecover the remains of their loved ones and that the truth, no matter how painful,is better than living with ongoing uncertainty.

D. CONCLUSIONS AND RECOMMENDATIONS

Forensic anthropology investigations can make an important contributionnot only to commissions of inquiry and other shorter-term mandates, but alsoto longer-term peace-building processes. While the language of peacekeepingprocesses often speaks of humanitarian identifications, experience suggeststhat it is impossible to tell when an identification might become evidence in atrial. For this reason, it is suggested that all investigations leading to identifi-cations be conducted within the kinds of forensic investigative parameters laidout above.

Based on experiences working as forensic anthropologists for truth com-missions, special commissions of inquiry and national and international tri-bunals, EAAF has developed a number of recommendations. Some of them arethe result of two workshops organized in 2002 and 2003 by the Missing Projectof the International Committee of the Red Cross in Geneva where forensicpathologists, anthropologists, archaeologists, lawyers and human rights activistsdeveloped guidelines regarding the missing and disappeared people during warsand internal conflicts. Several of these have been discussed at length above,and in these cases, no further details are needed.

The effectiveness of institutional bodies that are established for fixed timeperiods would be improved by establishing the following:

1. Improving the relationship between families of victims and forensicteams:a. Facilitating the right to truth of families of victims;


b. Seeking approval from families for exhumations and respectingcultural and religious funeral rites.

2. Creating mechanisms to continue the recovery and identification processbeyond a commission’s or tribunal’s mandate.

3. Whenever possible, improving contacts between the independent foren-sic experts and local judiciaries, prosecutors, judges, and lawyers.Giving presentations to local judiciaries and lawyers, with basic infor-mation about how the forensic sciences, mainly forensic anthropology,archaeology and genetics, can contribute to judiciary investigations.This also provides a valuable opportunity to discuss the way evidenceis handled in a particular country, discuss cases done in other parts ofthe world, as well as specific local ones, and understand the concernsof the legal community.

4. Whenever possible, training and promoting local teams and local foren-sic experts.

5. Whenever possible, maintaining contact with local human rights organ-izations. At the time of the occurrence of massive human rights vio-lations in a given country, the judiciary normally loses much of itscapacity to impartially investigate crimes committed by the state or byarmed parties in a civil conflict. On the other hand, truth commissionsare usually created in transitional moments, at the end of civil con-flicts, wars, state terrorism, etc. Thus, local NGOs often fill part ofthat gap. At times, at great risk to their members, they form a bridgebetween the investigative body and the witnesses, survivors and rela-tives of victims. Even in democratic transitional moments, witnessesand relatives of the victims will frequently feel more comfortable releas-ing information to a local NGO or giving testimonies before a courtof law or national or international Commissions of inquiry with thesupport or mediation of an NGO. Truth commission investigators usu-ally rely on the work of NGOs as a starting point for their investiga-tions and, by extension, to related forensic aspects.

6. Improving access to DNA. Informing relatives of a disappeared per-son that the remains being analyzed do not correspond to their lovedone is very difficult. However, it is equally difficult to tell them thatwe are not sure whether or not a particular set of remains match, andsince we have no way to resolve this doubt, the remains must remainedstored. Traditional forensic anthropology techniques are limited wheresufficient ante-mortem evidence cannot be obtained. This was oftenthe situation until the early 1990s, when it became possible to recoverDNA from skeletal remains. At this point, genetic testing quicklybecame a tool in human rights investigations. However, access to it isstill very expensive.

EAAF has depended on the generous pro bono work of laborato-ries in the United States, Canada and the United Kingdom, but they


can only accommodate a limited number of cases every year. As a par-tial remedy to this problem in Argentina, EAAF has established agenetic blood bank comprised of blood samples from relatives of dis-appeared people who visited our Buenos Aires off ice from 1998onwards. This bank will make possible future genetic analyses neces-sary for identifications whether or not close relatives are present oralive. This will become especially crucial in countries like Zimbabwe,where HIV is affecting at least 25 percent of the adult population. Since2002, EAAF has also been working with an Argentinean genetics lab-oratory, LIDMO, to process samples.

Recent upgrades in DNA technology and processing are due mainlyto two tragic events: the Balkan war and the attack on the World TradeCenter. Large-scale investigations following these two events signifi-cantly diminished the cost of processing samples for DNA analysis,speeded up the processing and made it possible to process sampleswhere DNA is severely degraded. In addition, new software was devel-oped to compare thousand of profiles from victims and their relatives.These developments have resulted in the possibility of massive DNAprocessing, a crucial issue when large numbers of victims are involved,often the case in human rights investigations. These improvements arebringing new hope to thousands of families still waiting for an answeras to the fate of their disappeared loved ones.

7. Protecting possible killing and burial sites. Whenever possible, it isimportant to protect possible killing and burial sites if they are notbeing investigated at the time of discovery. In this way, they will beavailable to families of victims and investigators working in futureinvestigations.

8. Preserving crucial evidence and forensic reports for possible on-goingand future investigations and prosecutions. Uncovering evidence ofhuman rights crimes does not necessarily mean that justice is imme-diately achieved. Many human rights violations are investigated butare not prosecuted, mostly because of amnesty laws, limiting the roleforensic evidence can play in judicial processes. However, as new mech-anisms are developed in the field of international criminal law, and oldcases are brought back to trial (in Argentina and Chile, for example),it is important that vital evidence and reports be preserved in order tobe used in future trials, as needed.

9. Creating witness and informers protection programs. In each com-mission or tribunal, there is usually a core group of ten to 15 or fewerkey witnesses to major incidents. Often these individuals need pro-tection, including in some cases eventual safe emigration to anothercountry. In most cases, this type of commission has no mechanism fordealing with witness safety. An ad hoc measure may eventually beenacted, depending upon the commission’s specific mandate, how it is


interpreted and the flexibility of the international, national and regionalbodies that may assist in this process. Though setting up a witness pro-tection program is clearly a complicated issue, it is extremely impor-tant to include some sort of mechanism from the planning phase as amatter of course.

10. Providing counseling or psychological support for persons who tes-tify, and for families and friends of victims before, during and afterexhumations.

11. Counseling or psychological support for staff members who receivetestimonies for such commissions and forensic personnel. Sometimesthe overwhelming weight of the testimonies of witnesses, victims andtheir families can produce conflicting feelings of exhaustion, guilt,and depression in the researchers who are investigating atrocities fortruth commissions. In some instances, international investigative mis-sions have provided psychological support, but this is still the excep-tion. Counseling may prove especially helpful when these commissionsextend their work to a year or more, as they often do.

12. Promote the incorporation of international forensic protocols for humanrights investigations into domestic criminal procedures. The promo-tion of the incorporation of international forensic protocols for humanrights investigations into domestic criminal procedures is essential.Doing so may help to ensure that scientif ic tools and mechanismsdeveloped for human rights investigations will have a more long-termeffect. Along these lines, the United Nations has produced several doc-uments relating to forensic science and human rights.

197

CHAPTER 11

THE TREATMENT OF DETAINEES BY PEACEKEEPERS:APPLYING PRINCIPLES AND STANDARDS AT THE

POINT OF DETENTION

Bruce “Ossie” Oswald*

A. INTRODUCTION

Peacekeepers1 have detained individuals in a variety of situations, includ-ing where local authorities have failed or are unable to maintain law and order.Such detentions have usually occurred while peacekeepers have been mandatedto protect civilians, UN personnel and property; assist in restoring and main-taining law and order; and contribute towards maintaining secure conditionsfor the provision of humanitarian assistance.

In practice the United Nations has accepted that its peacekeepers detainindividuals. For example, in his 1958 report on the First UN Emergency Force(UNEF I), the Secretary-General recounted how UNEF “exercised a limitedpower of detention.”2 In Cyprus, UN military police were authorized to take“any Cypriot citizen committing an offence or causing a disturbance on [UN]premises . . . without subjecting them to the ordinary routine of arrest, in orderto immediately hand him to the nearest appropriate Cypriot authorities for thepurposes of dealing with such offences or disturbances.”3 In Rwanda, in ful-

* Senior Lecturer in Law and PhD Candidate, The University of Melbourne,Australia. The author remains grateful to Ms. Liz Saltnes for her continued support andalso to Dr. Wendy Larcombe and Dr. Roberta Arnold for their comments in relation toearlier drafts of this chapter. An earlier version of this chapter was presented at a DanishMinistry of Foreign Affairs roundtable discussion dealing with detention during peaceoperations.

1 The term peacekeeper as used in this chapter refers to military personnel serv-ing on peace operations other than those that may be classified as armed conflict oroccupation.

2 UN Secretariat, Report of the Secretary-General: UN Emergency Force: sum-mary study of the experience derived from the establishment and operation of the force,UN Doc. A/3943, para. 54 (Oct. 9, 1958) [hereinafter UNEF Summary Study).

3 Exchange of Letters Constituting an Agreement between the United Nations


filling their mandate to contribute to the security and protection of civilians,UN military peacekeepers were authorized by the Force Commander to search,disarm and, where necessary, segregate suspected criminals. They also heldcivilians accused of genocide in detention until they were handed over to thelocal district prosecutor and conducted operations to disarm militias operatingin the camps of internally displaced persons.4 More recently, in January 2006,the UN Stabilization Mission in Haiti (MINUSTAH) detained a number of indi-viduals during “anti-gang” operations.5

On peace operations that have not been commanded or controlled by theUnited Nations, peacekeepers have also detained individuals. During opera-tions in Kosovo, the NATO-led Kosovo Force (KFOR) undertook detentionmanagement.6 In East Timor, the International Force for East Timor (INTER-FET) restored and maintained law and order by, amongst other things, detain-ing individuals accused of serious crimes and reviewing their status.7 Recently,peacekeepers serving with the the International Joint Task Force in East Timordetained, in a matter of days, 298 persons during the July 2006 unrests in Dili.8

Accepting that taking and handling detainees is a component of most peacesupport operations (PSOs), the aim of this chapter is to provide some princi-ples and guidelines as to how to treat detainees at the point of capture.9 This

and the Government of Cyprus Concerning the Status of the United Nations PeacekeepingForce in Cyprus of Mar. 31, 1964, 492 U.N.T.S. 57. See also UN Secretariat, Report ofthe Secretary-General, UN Doc. S/12946, paras. 40–41 (Dec. 1, 1978).

4 Bruce Oswald, Peacekeeping in Rwanda—A Lawyer’s Experience 70 AUS. L.J.72–73, 69–78 (1996).

5 UN Daily News, Haiti: UN Peacekeepers mount new anti-gang operation incapital 7 (Nov. 18, 2005), available at http://www.un.org/news/dh/pdf/eng-lish/2005/18112005.pdf (last visited Jan. 14, 2007). See also UN Press Release, ‘Deuxopérations anti-gangs récentes accomplies par la MINUSTAH,’ PIO/PR/244/FRA/2006(Jan. 30, 2006), available at http://www.minustah.org/articles/45/1/Deux-operations-anti-gangs-recentes-accomplies-par-la-MINUSTAH/PIOPR224FRA2006.html (last vis-ited Jan. 14, 2007).

6 For an analysis of KFOR’s role in filling the rule of law vacuum, see CENTER

FOR LAW AND MILITARY OPERATIONS (CLAMO), LAW AND MILITARY OPERATIONS IN KOSOVO:

1999–2001, LESSONS LEARNED FOR JUDGE ADVOCATES 99–119 (2001).7 See, e.g., Bruce Oswald, The INTERFET Detainee Management Unit in East

Timor 3 Y.B. INT’L HUM. L. 356–59, 347-61 (2000).8 Judicial System Monitoring Programme, Justice Update 1 (July 2006), avail-

able at http://www.jsmp.minihub.org/Justice%20update/2006/Detensaun/Eng.pdf (lastvisited Jan. 9, 2007).

9 This chapter is not concerned with the treatment of those captured or detainedduring armed conflict or during occupation. The law relating to those situations is cov-ered by international humanitarian law and the municipal laws of states that give effectto international humanitarian law. See, e.g., Horst Fisher, Protection of Prisoners of War,in THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 321–67 (Dieter Fleck ed.,1995); UK MINISTRY OF DEFENCE, THE MANUAL OF THE LAW OF ARMED CONFLICT 139–211

Treatment of Detainees by Peacekeepers 199

chapter restricts its analysis to a relatively short time frame—that period com-mencing when the person is detained to the moment when the peacekeeper(s)releases the detainee, hands him/her over to a local or international authorityor transfers the detainee to other peacekeepers for further questioning or deten-tion.10 There are three reasons for this narrow focus. First, on most peace oper-ations, peacekeepers will usually only be involved in holding detainees for arelatively brief time. This will be the case particularly where local law and orderinstitutions are functioning and have primary jurisdiction over the local popu-lation. Second, it is during this initial period of detention that the safety of boththe detainee and the peacekeeper are particularly at risk because of the height-ened tensions that usually arise during military operations. Third, it is at thepoint of initial detention that issues of accountability of peacekeepers are mostoften raised.

There is a growing awareness that peacekeepers must be held accountablefor their actions, and sometimes their omissions, when taking and handlingdetainees. This is only proper—both as a matter of law as well as military pro-fessionalism. Importantly, accountability in this context is no longer measuredin terms of the duration of the operation or deployment. Allegations and evi-dence of mistreatment or abuse of detainees may arise and continue to be revis-ited many years after the allegation or initial investigations have been made.11

In order to achieve the aim of addressing the treatment of detainees at thepoint of capture, this chapter is divided into three parts. The first part definesthe term “detainee” as used in this chapter and addresses the legal basis for tak-ing detainees during peace operations. The second part examines both the gen-eral and specific principles and standards that are relevant to the treatment ofdetainees. The third part is annexed. It is a checklist of principles and standards

(2004); 1 JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, CUSTOMARY INTERNATIONAL

HUMANITARIAN LAW RULES 106–08 (2005); and HELEN DUFFY, THE ‘WAR ON TERROR’ AND

THE FRAMEWORK OF INTERNATIONAL LAW (2005).10 The issue of taking and holding of detainees for longer periods of time has

been dealt with by Frederik Naert, Detention in Peace Operations: The Legal Frameworkand Main Categories of Detainees Institute for International Law, Working Paper No.94 (May 2006); Oswald, supra note 7, at 347–61. Needless to say, many of the legalprinciples and standards dealt with in this chapter will be relevant to the treatment ofdetainees where they are held for longer periods.

11 For example, on January 8, 2007, an article by Francis Elliott & Ruth Eklins,UN Shame over Sex Scandal, available at http://news.independent.co.uk/world/poli-tics/article2132576.ece (last visited Jan. 9 2007), concluded with the following:

In 1997, a military court sentenced two Belgian paratroopers to a month injail and a £200 fine for roasting a Somali boy over a brazier. Another Belgiansoldier is reported to have forced a young Somali boy to eat pork, drink saltwater and then eat his own vomit. Pictures also appeared in the 1990s of Italiansoldiers abusing and raping a Somali girl.


for the treatment of detainees, which could be applied by peacekeepers at oper-ational and tactical levels.

B. DEFINING AND CLASSIFYING DETAINEES

It is appropriate at this stage to explain how the term “detainee” will beused hereafter. There are two types of detention recognized as a matter of law:punitive and non-punitive. This chapter is primarily concerned with non-puni-tive detention and consequently, the term “detainee” refers to “any persondeprived of personal liberty except as a result of conviction for an offence.”12

In determining whether a person has been deprived of his/her liberty, regardmust be had to the “whole range of criteria such as the type, duration, effectsand manner of implementation of the measure in question.”13

It is a principle recognized both at the international and domestic level thatan individual may not be deprived of his/her liberty without a clear legal basis.14

For example, Article 3 of the Universal Declaration of Human Rights providesthat “everyone has the right to life, liberty and the security of person.”15 Thisprovision is reinforced by Article 9, which provides that “No one shall be sub-jected to arbitrary arrest, detention or exile.”16 Analogously the common lawalso recognizes the presumption that every imprisonment is illegal unless thereis clear legal authority for the individual’s detention.17 In the context of mili-

12 The Body of Principles for the Protection of All Persons Under any Form ofDetention or Imprisonment, GA Res. 43/173, Use of Terms (Dec. 9, 1988) [hereinafterBody of Principles]. It should be noted that this definition of detainee is similar to thatin international humanitarian law as well. See, e.g., J. Pictet et al. eds., Commentary onthe Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949Article 75(3) of Additional Protocol I of the Geneva Convention of 12 August 1949, andRelating to the Protection of Victims of International Armed Conflicts, (June 8, 1977)[hereinafter AP I], which defines “detained” as “deprivation of liberty . . . prior to sen-tence or prior to a decision on internment” (para. 3062).

13 Guzzardi v. Italy, 7367/76 Eur. Ct. H.R. 5, para. 92 (Nov. 6, 1980). It shouldbe noted that the discussion in relation to the deprivation of liberty in this case relatedto Article 5 of the European Convention on Human Rights, ETS No. 5 (Sept. 3, 1953)[hereinafter ECHR].

14 For a more detailed examination of this issue in the context of military oper-ations, see DUFFY supra note 9, at pt. III; and HENCKAERTS & DOSWALD-BECK, supra note9, at 344–52.

15 Universal Declaration of Human Rights, GA Res. 217 A (III) (Dec. 10, 1948)[hereinafter UDHR].

16 Similarly provisions are found in Article 9(1) International Covenant of Civiland Political Rights, GA Res. 2200 A (XXI) (Dec. 16 1966) [hereinafter ICCPR]; andBody of Principles, supra note 12, art. 2.

17 See, e.g., Liversidge v. Anderson [1942] AC 206, at 245 where Lord Diplock


tary operations, this principle has been recently examined by the UK High Courtin the Al-Jedda case. The court stated that “[t]he importance of the right to free-dom from arbitrary arrest, recognised in any general instrument of human rights. . . should not be discarded save for the most compelling and clear reasons.”18

Furthermore, as a matter of law, a person should not be detained unless absolutelynecessary. This criterion was emphasized by the International Criminal Tribunalfor the former Yugoslavia (ICTY) in the Delalic case;19 and there is no reasonwhy it would not apply equally to detainees taken during PSOs. It is also use-ful to note that the Human Rights Committee argued that the concept of theterm arbitrary “must be interpreted more broadly to include elements of inap-propriateness, injustice, lack of predictability and due process of law.”20

Where peacekeepers are not required to apply international humanitarianlaw (IHL) the legal basis for taking detainees is founded in a number of inter-national and municipal law sources including: UN Security Council (SC) res-olutions, international criminal law and municipal laws dealing with publicorder and safety.

The Security Council has mandated peacekeepers to take and hold detaineeson a number of PSOs. For example, in relation to the peace operations in theCongo (ONUC), the Security Council authorized: “the Secretary-General totake vigorous action, including the use of the requisite measure of force, if nec-essary, for the immediate apprehension, detention pending legal action and/ordeportation of all foreign military and paramilitary personnel and politicaladvisers not under the United Nations Command, and mercenaries”21 Threeyears later, in the context of the PSO in Cyprus (UNFICYP), the S recom-mended that peacekeepers “contribute to the maintenance and restoration oflaw and order.”22 During the operations conducted in Somalia in 1993 (UNO-SOM II), the Secretary-General was authorized to take all measures necessaryagainst all those responsible for the unprovoked armed attacks against peace-keepers: “including those responsible for publicly inciting such attacks, to estab-lish the effective authority of the Operation throughout Somalia, including tosecure the investigation of their actions and their arrest and detention for pros-

stated “in English law every imprisonment is prima facie unlawful and that it is for aperson directing imprisonment to justify his ac.” See also Christie and Anor. v. Leachinskyand Anor. [1947] AC 573; and more recently The Queen on the Application of Abbasiand Anor. v. Secretary of State for Foreign and Commonwealth Affairs and Secretary ofState for the Home Department [2002] EWCA Civ 1598 para. 60.

18 The Queen (on the application of Hilal Addul-Razzaq Ali Al-Jedda) v. theSecretary of State for Defence, EWHC 1809 (Admin), para. 35 (2005).

19 Id. para 141.20 See Mukong v. Cameroon, CCPR/c/D/458/1991, para. 9.8 (July 21, 1994). The

discussion in that case related to the meaning of “arbitrary” in Article 9 of the ICCPR.21 S/RES/169, para. 4 (Nov. 24, 1961).22 S/RES/186, para. 5 (Mar. 4, 1964).


ecution, trial and punishment.”23 More recently, in 2004, the Security Councilmandated peacekeepers serving in the Côte d’Ivoire (UNOCI) to: “assist theGovernment of National Reconciliation in conjunction with ECOWAS and otherinternational organisations in re-establishing . . . the rule of law throughoutCote d’Ivoire . . . and to use all necessary means to carry out its mandate . . .within its areas of deployment.”24 If the Security Council can authorize peace-keepers to take detainees, it may also limit the circumstances in which peace-keepers take detainees. For example, on at least one occasion, the SecurityCouncil has specifically requested the Secretary-General to “suspend arrestaction against those individuals who might be implicated”25 in the attack ofJune 5, 1993, against UNOSOM II peacekeepers.

Increasingly international criminal law institutions are also turning to peace-keepers to detain or arrest individuals accused of committing war crimes orcrimes against humanity. For example, peacekeepers serving with theStabilization Force (SFOR) in Bosnia and Herzegovina (BiH) took custody ofStevan Todorovic after he was handed to them and later handed him to theICTY.26 Pursuant to SC Resolution 1565, UN peacekeepers are mandated tocooperate with Congolese authorities “to ensure that those responsible for seri-ous violations of human rights and international humanitarian law are broughtto justice.”27 A mandate in such terms would, prima facie, permit peacekeep-ers to detain individuals pursuant to national and international warrants.Traditionally, peacekeepers have only detained individuals for committing seri-ous criminal offenses. These include international crimes such as genocide, warcrimes and crimes against humanity. In some circumstances, detainees may alsoinclude individuals accused of committing, aiding and abetting, or inciting seri-ous crimes.

There are at least two reasons why peacekeepers’ power of detention is lim-ited to serious criminal offenders. First, on most PSOs, they do not have theresources to deal with all crimes. Second, on most PSOs the host state remainsresponsible for maintaining law and order and only where such authorities are

23 S/RES/837, para. 5 (June 6, 1993) 5. See also para 1.24 S/RES/1528, paras. 6(q) and 8 (Feb. 27, 2004).25 S/RES/837, para. 8 (Nov. 16, 1993).26 See James Sloan, Breaching International Law to Ensure its Enforcement: The

reliance by the ICTY on Illegal Capture, 6 Y.B. INT’L HUM. L. 321–22, 319–44 (2003).See also Susan Lamb, Illegal Arrest and the Jurisdiction of the ICTY, in ESSAYS ON ICTYPROCEDURE AND EVIDENCE 27–43 (Richard May, David Tolberty, John Hocking et al. eds.2001). Note however, that for a period of time, criminals indicted by the ICTY couldonly be detained by peacekeepers when those criminals came in contact with peace-keepers. In other words, there was a belief that there was no legal basis in internationallaw that provided an express authority to detain criminals indicted by the tribunal. SeeCENTER FOR LAW AND MILITARY OPERATIONS, LAW AND MILITARY OPERATIONS IN THE BALKANS

1995–1998—LESSONS LEARNED FOR JUDGE ADVOCATES 122–23 (1998).27 S/Res/1565, para. 5(g) (Oct. 21, 2004).


incapable or unwilling to stop serious offenses are peacekeepers justified tointervene, in the interest of security.

In some circumstances, agreements between the warring factions or thehost state and the peacekeeping force may also authorize peacekeepers to takeand hold detainees. For example, the Agreement on the Military Aspects of thePeace Settlement, which formed a key part of The General FrameworkAgreement for Peace in Bosnia and Herzegovina (the Dayton Accord), author-ized the multinational military Implementation Force (IFOR) to use militaryforce to carry out the responsibilities mandated to the force.28 More recently,in the Solomon Islands, members serving with the “visiting contingent” areauthorized to “assist in the provision of security and safety of persons and prop-erty . . . prevent and suppress violence, intimidation and crime . . . and gener-ally to assist in the maintenance of law and order.”29

The municipal law of the host state may also authorize peacekeepers totake and handle detainees. For example, in the Solomon Islands, peacekeepersare authorized pursuant to The Facilitation of International Assistance Act 2003to “exercise any powers that may be exercised by” the police pursuant to theSolomon Island Police Act.30

In considering the limits of peacekeepers in taking detainees, it is relevantto reflect upon the principles of consent, cooperation and impartiality raisedby the Secretary-General in his report concerning law and order operationsundertaken by UNEF I:

[A]uthority granted to the United Nations group cannot be exercisedwithin a given territory either in competition with representatives ofthe host Government or in cooperation with them on the basis of anyjoint operation. Thus, a United Nations operation must be separate anddistinct from activities by national authorities . . . A right of detentionwhich normally would be exercised only by local authorities is extendedto UNEF units. However, this is so only within a limited area wherethe local authorities voluntarily abstain from exercising similar rights,whether alone of in collaboration with the United Nations. Were theunderlying principle of this example not to be applied, United Nationsunits might run the risk of getting involved in differences with the local

28 OFFICE OF THE HIGH REPRESENTATIVE, BOSNIA AND HERZEGOVINA: ESSENTIAL TEXTS

21 (2d rev. ed. 1998).29 Agreement Between Solomon Islands, Australia, New Zealand, Fiji, Papua

New Guinea, Samoa, and Tonga Concerning the Operations and Status of the Police andArmed Forces and Other Personnel Deployed to Solomon Islands to Assist in theRestoration of Law and Order and Security, May 24, 2003 art. 2 [hereinafter SolomonIslands Agreement].

30 The Facilitation of International Assistance Act 2003 (No. 1 of 2003), sec.7(1).


authorities or public or in internal conflicts which would be highlydetrimental to the effectiveness of the operation and to the relationsbetween the United Nations and the host Government. A rule closelyrelated to the one last-mentioned, and reflecting a basic [UN] Charterprinciple, precludes the employment of United Nations elements insituations of an essentially internal nature. As a matter of course, theUnited Nations personnel cannot be permitted in any sense to be aparty to internal conflicts.31

Thus, notwithstanding that peacekeepers may have no alternative but to takeand hold detainees in some circumstances, they should always be cognizant ofthe tensions involved therein. These include the risk of becoming a party to theconflict, thereby jeopardizing consent and impartiality, and the risk of exer-cising powers that are essentially those of the host state.

In the context of practice as described above, there are two main categories ofindividuals that may be detained during PSOs other than armed conflict operations:

1. Security detainees: individuals detained for imperative reasons of secu-rity. Imperative reasons for security include reasons such as interfer-ing with the mission, being found in a restricted military facility,carrying a weapon or membership of a prohibited group.32

2. Criminal detainees: individuals detained for committing a serious crim-inal offense. Serious criminal offenses include genocide, war crimes,crimes against humanity, murder, manslaughter, rape, serious assault,arson or rioting.

On some occasions a person may qualify both as a criminal and security detainee.

C. THE TREATMENT OF DETAINEES: LEGAL PRINCIPLES AND STANDARDS

While it is useful to repeat the mantra: “[s]tandards of international lawregarding treatment of persons extend to all branches of national governments,to their agents, and to all combatant forces.”33 it is more difficult to identifythese standards in the context of the treatment of detainees taken by peace-keepers. One reason is that there is no international instrument addressing this

31 UNEF Summary Study, supra note 2, paras. 165–166.32 The threat posed by the detainee must be a real risk to the security of the PSO.

See, e.g., Zejnil Delalic, Zdravko Mucic (aka “Pavo”), Hazim Delic and Esad Landozo(aka “Zenga”) (often referred to as the Celebici case), Case No. IT-96-21-A, AppealsChamber, para. 378, Feb. 20, 2001.

33 American Society of International Law Resolution, para. 5 (Mar. 30, 2006).


aspect. This is not to say that there is no normative framework applicable to thetreatment of detainees taken during PSOs, but rather that the framework mustbe gleaned from several sources. Consequently, the aim of this part is to iden-tify international law principles and standards applicable either de jure, or byanalogy, to the treatment of individuals detained by peacekeepers. Key sourcesinclude international human rights, particularly those relevant to the adminis-tration of justice and, to a lesser extent, IHL principles and standards.34

In mapping out a normative framework, this chapter seeks to achieve a bal-ance between the rights of the local population and the need for peacekeepersto accomplish their mission. Consequently, it begins by identifying both gen-eral and specific applicable principles and standards. While it may be arguedthat some of the legal standards recommended are above the minimum onesaccepted by states, it is worth remembering that peacekeepers are often wel-

34 Key relevant international law instruments include: UDHR supra note 15;ICCPR supra note 16; ECHR supra note 13; Convention on the Rights of the Child, GARes. 44/25 (Nov. 20, 1989); Standard Minimum Rules for the Treatment of Prisoners,adopted by the First UN Congress on the Prevention of Crime and the Treatment ofOffenders, held at Geneva in 1955, and approved by the Economic and SC Res. 663 C(XXIV) (July 31, 1957) and 2076 (LXII) (May 13, 1077); Basic Principles for theTreatment of Prisoners, GA Res. 45/111 (Dec. 14, 1990); Body of Principles, supra note12; UN Rules for the Protection of Juveniles Deprived of Their Liberty, GA Res. 45/113(Dec. 14, 1990); Convention Against Torture, Cruel, Inhuman or Degrading Treatmentor Punishment (Dec. 10, 1984) [hereinafter Torture Convention]; Optional Protocol tothe Convention Against Torture, Cruel, Inhuman or Degrading Treatment or Punishment,GA Res. 57/199 (Dec. 18, 2002); Principles on the Effective Investigation andDocumentation of Torture and Other Cruel, Inhuman or Degrading Treatment orPunishment, GA Res. 55/89 (Dec. 4, 2000); Principles of Medical Ethics Relevant tothe Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners andDetainees Against Torture and Other Cruel, Inhuman and Degrading Treatment orPunishment, GA Res 37/194 (Dec. 18, 1982); Code of Conduct for Law EnforcementOfficials, GA Res. 34/169 (Dec 17, 1979) [hereinafter Code of Conduct]; Basic Principlesfor the Use of Force and Firearms by Law Enforcement Officials, adopted by the EightU.N. Congress Aug. 27 to Sept. 7, 1990; Declaration of Basic Principles of Justice forVictims of Crimes and Abuse of Power, GA Res. 40/34, (Nov. 29 1985); Declaration onthe Protection of All Persons from Enforced Disappearance, GA Res. 47/133, (Dec. 18,1992); Geneva Convention for the Amelioration of the Condition of the Wounded andSick in Armed Forces in the Field (Aug. 12, 1949); Geneva Convention for theAmelioration of the Condition of Wounded, Sick and Shipwrecked Members of ArmedForces at Sea (Aug. 12 1949); Geneva Convention Relative to the Treatment of Prisonersof War (Aug. 12, 1949) [hereinafter GC III); Geneva Convention Relative to the Protectionof Civilian Persons in Time of War (Aug. 12, 1949); AP I supra note 12; AdditionalProtocol II of the Geneva Convention of 12 August 1949, and Relating to the Protectionof Victims of International Armed Conflicts (June 8, 1977); The UN Secretary-General’sBulletin on Applicability of IHL to UN Forces, UN Doc. ST/SGB/1999/13 (Aug. 6,1999) [hereinafter SG Bulletin].


comed by a host state in the hope that they will introduce humane treatmentrather than maintain the legacy of arbitrary and brutal practices of some of thelocal authorities they have been sent to deal with. Consequently, there is con-siderable merit in starting with high standards. Of course, peacekeepers mayseek to deviate from derogable minimum standard in exceptional circumstances,such as public emergency.

1. General Principles

Most legal systems have general principles that are applied to situationswhere there are gaps or limitations in specific extant laws. These principlesprovide a benchmark against which law and process may be measured so as tojudge whether the course adopted complies with recognized and accepted min-imum legal principles and standards. Furthermore, general principles are alsouseful in developing more specific legal principles and assist in selecting themost appropriate legal response to a situation.

In relation to the treatment of detainees, the following principles may beconsidered:

1. Lawfulness: peacekeepers must treat detainees in accordance with therule of law. The rule of law is:

a principle of governance in which all persons, institutionsand entities, public and private, including the State itself, areaccountable to laws that are publicly promulgated, equallyenforced and independently adjudicated, and which are con-sistent with international human rights norms and standards.It requires, as well, measures to ensure adherence to the prin-ciples of supremacy of law, equality before the law, account-ability to the law, fairness in the application of the law,separation of powers, participation in decision-making, legalcertainty, avoidance of arbitrariness and procedural and legaltransparency.35

This principle has a number of facets relevant to the treatment ofdetainees by peacekeepers, including: fairness in the application of thelaw, legal certainty and the avoidance of arbitrariness. In practical termsit requires peacekeepers to comply with fundamental legal norms andto be provided with sufficiently detailed orders, standard operatingprocedures and other guidelines relating to the treatment of detainees.

2. Dignity and Humanity: peacekeepers must recognize the inherent rightto dignity and humanity of all human beings. These principles are found

35 Report of the Secretary-General, The Rule of Law and Transitional Justice inConflict and Post-Conflict Societies, UN Doc. S/2004/616, para. 6 (Aug. 3, 2004).


in several international instruments, including the Basic Principles forthe Treatment of Prisoners,36 The Convention against Torture, Cruel,Inhuman or Degrading Treatment or Punishment; Body of Principles,37

and Common Article 3(c) to the four Geneva Conventions of 194938

and Additional Protocol I thereto.39 An important facet is the prohibi-tion of discrimination of detainees on the basis of “race, colour, sex,language, religion, political or other opinion, national or social origin,property, birth or other status.”40

3. Necessity and Reasonableness: peacekeepers must assess the meas-ures necessary to fulfill a task or mission and make sure that theseare reasonable according to the circumstances.41 The test of neces-sity is measured against the view of the peacekeeper at the time ofthe event, and it is therefore subjective. The test for reasonablenessis measured against what others will judge as being reasonable accord-ing to the given circumstances and it is, therefore, objective. Elementsof assessment include whether the peacekeeper’s conduct was pro-portionate, whether he/she had other available options to face the situation and the kind of resources available to him/her. Thus, peace-keepers do not have to justify their actions or omissions on the merebasis that they were necessary to accomplish the mission, but theyalso need to establish that the conduct taken was reasonable accord-ing to the circumstances.

4. Accountability: peacekeepers must develop and implement effectiveprocesses to ensure that peacekeepers are held accountable for theirconduct; and that commanders maintain effective control over theirsubordinates.

36 Supra note 34, principle 1.37 Supra note 12, principle 2.38 Supra note 34, Outrages on personal dignity common Article 3(c).39 Supra note 12, art. 75(1).40 Basic Principles for the Treatment of Prisoners, supra note 34, principle 2;

Body of Principles, supra note 12, principle 5; and Common art. 3 to the Four GenevaConventions, supra note 34.

41 The principle of necessity is found in both international humanitarian law andinternational human rights law. In international humanitarian law the principle of neces-sity has been described as permitting a state engaged in armed conflict: “to use onlythat degree and kind of force, not otherwise prohibited by the law of armed conflict,that is required in order to achieve the legitimate purpose of the conflict, namely thecomplete or partial submission of the enemy at the earliest possible moment with theminimum expenditure of life and resources.” (see UK MINISTRY OF DEFENCE, supra note9, para. 2.1). In international human rights law it has been described as whether a “meas-ure taken pursuant to an emergency situation is ‘strictly required by the exigencies ofthe situation” (see DUFFY, supra note 9, at 296–97).


While accountability is a complex and varying concept depend-ing on the context,42 it contains several elements that should be keptin mind when considering its application in the context of the treat-ment of detainees. Some of its key components include monitoring,scrutiny, effective means of investigation, appropriate remedies andcommand responsibility. Accountability therefore, may involve therequirement to justify decisions, reporting on the implementation of aprocedure and explaining the results. It may also involve being sub-ject to scrutiny and interrogation.

Martin Zwanenberg argued that in order to operationalize account-ability, three main questions need to be asked:a. what the yardstick of accountability should be;b. who can raise accountability; c. how can accountability be implemented.43

These questions are an excellent basis for reflecting upon the roleof accountability in the context of the treatment of detainees. The yard-stick is the normative principles and standards applicable. Accountabilityissues may be raised by a myriad of actors, including the individualdetained, the detainee’s family, international and local authorities andorganizations, the military chain of command and the media.Peacekeepers’ accountability in the sense of military discipline is foundedon the chain of command.44 Accordingly, at one level, accountabilityrequires appropriate doctrine, orders, standard operating procedures,instructions and guidelines and, at another, adequate enforcement throughthe use of military justice.

The term accountability is therefore used here as a generic termthat encompasses the rules, principles, standards and norms againstwhich individuals, organizations and states explain their actions andomissions. These are intended to create and maintain, amongst otherthings, good governance, good faith, institutional balance, supervisionand control, accessibility of reasons for decisions or a particular courseof action, procedural regularity, objectivity and impartiality, due dili-gence and the promotion of justice.45

42 For a more detailed examination of accountability on peace operations, seeMARTIN ZWANENBURG, ACCOUNTABILITY OF PEACE SUPPORT OPERATIONS (2005) particularly61–64.

43 Id. at 63.44 Depending on the type of peace operation there may also be a civilian chain

for accountability, such as the office of the Head of Mission or, in the case of UN oper-ations, the office of the Special Representative to the Secretary-General.

45 For a more detailed discussion of what these principles entail, see InternationalLaw Association, Committee on Accountability of International Organizations, ThirdReport Consolidated, Revised And Enlarged Version Of Recommended Rules AndPractices, New Delhi Conference (2002). This report is available at www.ila-hq.org/


2. Specific Principles and Standards

If the general principles described above are to be useful in practice, theymust be contextualized in order to provide peacekeepers with a better under-standing of how to apply them to the treatment of detainees. The following sec-tions consider key principles and standards: (1) relevant to the treatment ofdetainees by peacekeepers and (2) relevant to ensure the accountability of peace-keepers for the treatment of detainees.

Many of the specific principles and standards described below are derivedfrom human rights, IHL or municipal law provisions.46 In some circumstances,if justice is to be administered in accordance with the rule of law, failure to adhereto some of these principles may jeopardize the successful prosecution of a crim-inal detainee. For example, in most criminal jurisdictions a confession obtainedby torture will be considered unreliable and not admitted as evidence.

a. Principles Relevant to the Treatment of Detainees

i. Use of Force

The use of force is governed by the general principles of necessity and rea-sonableness. Peacekeepers may therefore only use the amount of force neces-sary and reasonable to effect the detention or subsequently deal with the detainee.An analogy may be drawn with the principle according to which law enforce-ment officials may only use force “when strictly necessary and to the extentrequired for the performance of their duty.”47

Generally, use of force standards are translated into rules of engagement(ROE), which delineate the circumstances and the limits to which force may beused to achieve a military mission. Furthermore, restrictions on the use of forcein the taking and handling of detainees may be dealt with in some detail in theROE applicable to PSOs. For example, the UN Guidelines for the developmentof, and Training on ROE recognize that in some circumstances UN peacekeep-ers will be authorized to use force “o prevent the escape of any apprehended ordetained person, pending hand-over to appropriate civilian authorities.”48

pdf/Accountability/Accountability%20Of%20International%20Organisations%202002.pd.The International Law Association adopted the Committee’s Report and “commends itto international organisations, their Member States, and all other bodies concerned inadvancing and implementing the accountability of international organisations”; seeInternational Law Association, Res. 1/2004.

46 See supra note 34 for a list of the key international instruments. 47 Code of Conduct, supra note 34, art. 3.48 Guidelines for the Development of and Training on United Nations Rules of

Engagement (ROE), UN Doc. MPS/981, rule 1.9 (May 17, 1999).


From an operational perspective, the principle of using necessary and rea-sonable force will require peacekeepers to be trained in the use of lawful non-lethal weapons and restraining devices that limit the harm caused to the detainee.In many circumstances, it may also be appropriate to train them in negotiationtechniques and cultural issues relating to the use of force, when dealing withthe general population.

If peacekeepers have injured a detainee, they should provide him/her withmedical assistance.49 Any serious injury caused by peacekeepers using forceshould be reported to the chain of command. There are at least two reasons forthis: first, there may be a need to allocate specialist medical assistance to thedetainee; and second, reporting the extent of the injury and the circumstancesin which this occurred will permit an assessment to be made of the peace-keepers’ accountability.

ii. Prohibition of Torture and Ill-Treatment50

The prohibition of torture51 is recognized as a jus cogens norm, that is, asa “peremptory” norm of international law.52 Certain types of ill-treatment, oftenreferred to as cruel, inhuman or degrading treatment are also prohibited.53 Thedistinguishing factor between torture and ill-treatment is the “difference in theintensity of the suffering inflicted.”54

49 See discussion below in the Section C.2.a.vii.50 For a more detailed examination of the issues surrounding torture and ill reat-

ment in the context military operations generally, see DUFFY, supra note 9. This sectionis limited to briefly describing some key issue that arise from the prohibition as theyrelate to the treatment of detainees by peacekeepers.

51 Torture is defined as:Any act by which severe pain or suffering, whether physical or mental, is inten-tionally inflicted on a person for such purposes as obtaining from him or athird person information or a confession, punishing him for an act he or a thirdperson has committed or is suspected of having committed, or intimidating orcoercing him or a third person, or for any reason based on discrimination ofany kind, when such pain or suffering is inflicted by or at the instigation of orwith the consent of acquiescence of a public official or other person acting inan official capacity.

Torture Convention supra note 34, art. 1(1).52 See Prosecutor v. Furundzija, Case No. IT-95-17/I-T Judgment of the ICTY,

para. 153 (Dec. 10, 1998).53 The ICTY, for example, has argued that Article 1(1) of the Torture Convention

should not be read as an exhaustive statement of what counts as torture for all interna-tional legal purposes. See, e.g., Prosecutor v. Kunarac, Kovac and Vukovic, Case No. IT-96-23/1-A, Judgment of the ICTY (Appeals Chamber), para. 147 (June 12, 2002).

54 SUSAN MARKS & ANDREW CLAPHAM, INTERNATIONAL HUMAN RIGHTS LEXICON

366–67 (2005).


There is a debate as to whether some forms of torture or ill-treatment shouldbe legalized for those circumstances in which they may be necessary to protecta state’s interest. For example, Alan Dershowitz argues that: “if we are to tor-ture, it should be authorised by the law.”55 A key criticism mounted by Marksand Clapham concerning Dershowitz’s approach is that “torture is not aboutgetting information but about asserting power.”56 Marks and Clapham also arguethat the “idea of legalised torture is a travesty of the rule of law, inasmuch asthe law is supposed to protect citizens from violence and treat them as inno-cent until proven guilty.”57 Furthermore, from a command perspective, “no lawcould prevent the inevitable slide from exceptional use into routinised systemof torture.”58 Needless to say, the same arguments related to countering thelegalization of torture are equally valid in relation to legalizing ill-treatment ofdetainees.

Another issue is what amounts to torture or ill-treatment. While it is impos-sible to develop an exhaustive list, some acts considered to constitute tortureor ill-treatment are instigating or inflicting mutilation or any form of corporalpunishment, outrages upon personal dignity, in particular humiliating and degrad-ing treatment, rape or any form of sexual violence, breaking chemical lights ondetainees, pouring cold water on or videotaping and photographing nakeddetainees, forcing male detainees to wear women’s underwear and using mili-tary working dogs to frighten and intimidate detainees. In some cases, meth-ods such as resort to stress positions, hooding, noise, deprivation of sleep, foodand drink, if “applied in combination, with premeditation and for hours at astretch . . . caus[ing] . . . intense physical and mental suffering to the personssubjected thereto”59 will constitute inhuman treatment. It is generally accepted,however, that blindfolding, cuffing or detaining detainees is not to be consid-ered torture or ill-treatment, if such measures are taken for security reasons andkept to a minimum. Similarly, photographing or filming detainees for author-ized purposes, such as interview recording, is not considered ill-treatment.

In the context of the treatment of detainees, there are at least two circum-stances during which allegations of torture or ill-treatment may arise: ques-tioning and searching the detainee. Since torture and ill-treatment are prohibitedat all times, including when questioning or searching a detainee, it is impor-tant for peacekeepers to have clear guidance as to what conduct is acceptable.They should also be reminded of the fact that the questioning or searching ofan injured detainee needs to be undertaken only after considering the healthconsequences and implications.60

55 As quoted in id. at 371. 56 Id. at 382.57 Id. at 381.58 Id. 59 Ireland v. United Kingdom, Eur. Ct. Hum. Rts., para. 167 (Dec. 13, 1977).60 See Section C.2.a.vii.


Where possible, questioning at the point of detention (i.e., tactical ques-tioning) should be undertaken by peacekeepers trained to ask appropriate ques-tions at the tactical level. Such training should include information aboutculturally sensitive questions and how to issue a criminal caution when detain-ing a suspected criminal. The requirements to caution will in most cases bebased on the host state’s municipal law and, therefore, peacekeepers will needto be briefed on the basic legal and process requirements of the host state.Furthermore, in some circumstances, the local criminal law might require writ-ten records as to what exactly was said by the detainee, the duration of the ques-tioning and the identity of the person asking the questions.61 Should a detaineerefuse to answer any question, the detainee must not be threatened, insulted orexposed to mistreatment of any kind.

In some circumstances, it may be necessary to search a detainee. Such cir-cumstances might arise where it is suspected that a detainee is in the posses-sion of contraband, a prohibited weapon or an item suspected of having beenstolen. Before conducting the search, the peacekeeper must have at the veryleast, a reasonable belief that the search is necessary.

All searches of females should be conducted by females, and similarly allsearches of males should be conducted by males. Where this is not feasible,peacekeepers will need to give serious consideration to not conducting thesearch, or conducting it in the presence of the appropriate gender. If a child isdetained, he/she should only be searched as a last resort. If there is no alterna-tive, the search should be done in the presence of the child’s parent, guardianor appropriate local.

Generally a “pat down” or “electronic wand” search is likely to be suffi-cient, and there will be no requirement for the detainee to remove his or herclothes. Searches should not be invasive unless the peacekeeper reasonably sus-pects that this is required. Depending on the cultural sensitivities of the localpopulation peacekeepers may need to be briefed on such issues as whethersearches should be undertaken in public or in private. In some societies, forexample, it may be considered humiliating to be searched in the view of thegeneral public.

An item may only be confiscated for operational reasons or because it islikely to be relevant to a criminal case, in which case it should be recorded andtagged. Wherever possible, the detainee should be given a copy of the record.This is important for three reasons: First, if the confiscated item is relevant toa criminal case, the record may be an essential component of the chain of cus-tody. Second, peacekeepers will often work in circumstances where locals willhave few possessions. By recording and tagging the item and giving the detaineea record thereof, the detainee, his/her relatives, or friends may be able to claimit at a later time. Third, as a method of accountability, such records ensure thatpeacekeepers are held accountable for any property they take custody of.

61 See Body of Principles, supra note 12, principle 23.


Where peacekeepers suspect that a detainee has been tortured or ill-treated,they should immediately report the facts through the chain of command andmonitor the situation by taking detailed notes, in order to be able to assist infuture investigations. Where possible they should intervene by using necessaryand reasonable force to stop any further torture or ill-treatment. Moreover,peacekeepers should provide medical assistance to mistreated detainees.62

iii. Protection from the Environment and Other Threats

Once in the peacekeeper’s custody, the detainee becomes dependant onhim/her for protection. Consequently, certain obligations arise. These includeproviding the detainee with food, water and protection from the elements. The“provision for such basic needs . . . has to be adequate, taking into account themeans available and the local conditions.”63 Peacekeepers should not exposethem to attacks or ill-treatment from others, including local authorities.

iv. Reasons for Detention

Detainees should be told as soon as practicable the reasons for the deten-tion.64 Similarly, he/should be told about the right to challenge detention in a lan-guage he/she understands.65 This will permit peacekeepers to make a reasoneddecision as to whether to release or continue to hold the detainee until transferor handover is completed. Other rights that may be explained to him/her are theright to notify someone66 of the detention and the right to make a claim for com-pensation if, for example, the detainee was injured or his/her property was dam-aged as a result of the peacekeepers’ actions. For this purpose, peacekeepersshould be provided with the relevant phrases in the local language or dialect.

v. Registration of Detainees

Each detainee must be registered67 as soon as practicable. Registrationshould at least include: (1) the identity of the detainee; (2) the identity of theperson who took the detainee; (3) the reason of detention; (4) the time and place

62 See Section C.2.a.vii.63 HENCKAERTS & DOSWALD-BECK, supra note 9, Rules 430.64 See, e.g., Body of Principles, supra note 12, principles 12(2) and 16(1). See

also AP I, supra note 12, art. 75(3). 65 Body of Principles, supra note 12, principle 1; and AP I supra note 12, art. 75(3).66 See Section C.2.a.vi.67 See, e.g., Body of Principles, supra note 12, principle 10.


of the detention. If the detainee is incapable of identifying him- or herself,peacekeepers may need to seek the assistance of the local population.

Failure to adequately register the detainee may have at least two adverseconsequences. First, registration of detainees is fundamental in assisting otherorganizations, like the International Committee of the Red Cross (ICRC), totrace detainees. Second, registration ensures that peacekeepers and other rele-vant authorities are able to account for each detainee taken into custody.

vi. Notification of Detention

Each detention should be notified to an appropriate individual and organ-ization as soon as practicable.68 The detainee may choose the appropriate indi-vidual (e.g., a family member, friend or legal representative) to be notified. Inmany cases it may be appropriate for peacekeepers to notify relevant national(such as the prosecutors office) or international organizations (local ICRC69 orUN High Commissioner for Human Rights representative) of the details of thedetention, and where and when the handover is likely to take place. If the detaineeis likely to be handed over to local authorities, for example, it may be prudentto advise them of the pending handover so as to ensure an independent recordthereof. This notification is particularly important in situations where theremight be some concern as to the treatment of detainees by local authorities.70

vii. Medical Treatment

At the point of detention, peacekeepers should conduct a “quick medicalassessment” to ensure that the detainee is not suffering with any injury or dis-ability that will impact on any further dealings with him/her.71 Such an assess-ment should involve at least a visual examination for any injuries. A quickmedical assessment is important for at least two reasons. First, if an injuryoccurred during detention or if it was already preexisting, immediate medicalattention may be required. Secondly, the medical condition may be relevant todecide whether to question or restrain the detainee.

In circumstances where a detainee is injured while being taken into cus-tody, peacekeepers must provide him/her with medical assistance. If the requiredstandard of medical care cannot be provided, the detainee should be transferredto the appropriate authorities.

68 Id., principle 16. SG Bulletin, supra note 34.69 SG Bulletin, supra note 34, sec. 8(a) and (g).70 See Section C.2.a.xii.71 SG Bulletin, supra note 34, sec. 8(c).


If the injury is a preexisting one, peacekeepers may consider what medicalattention is appropriate: for example, if the injury is serious, there may be nooption but to provide medical assistance before releasing, handing over or trans-ferring the detainee. Much will depend on the level of medical expertise andresources available. Any medical assistance provided should be recorded in suf-ficient detail to permit specialist medical personnel or other authorized per-sons to follow up the assistance provided. If consent for medical treatment isnot given, such treatment is prohibited unless necessitated by (1) the detainee’shealth; (2) is consistent with generally accepted medical standards; and (3) isprovided in similar circumstances to those that would apply to the nationals ofthe detaining authority.72 Peacekeepers should also be aware of how to manageparticular medical issues that are founded on cultural norms. For example, insome societies, traditional healers play an important role and, consequently, adetainee may insist on seeing such a person rather than receive more conven-tional medical assistance.

viii. Categories of Persons Entitled to Special Protection

There are three major categories of persons entitled to special protectionif held in detention: women, juveniles73 and elderly.

As a general rule, women are not to be adversely discriminated againstbecause of their sex. Where possible, they should only be searched and ques-tioned by women. This will particularly be the case in societies that are cul-turally sensitive to men interacting with women. Furthermore, any searches ofwomen should not be invasive unless absolutely necessary for security reasons;and any such search should not be in the presence of men. Any further han-dling of women should be, at the very least, under the supervision of women.74

When dealing with female detainees, their cases should be prioritized, partic-ularly if they are pregnant75 or have responsibilities for young juveniles. Theyshould be separated from males, particularly in cultures where separation isessential to maintain the woman’s dignity. However, some consideration mayneed to be given as to whether segregating a woman might jeopardize her well-

72 See GC III, supra note 34, art. 13; AP I, supra note 12, art. 11.73 The term juvenile as used in this chapter is any person under the age of 18.

See UN Rules for the Protection of Juveniles Deprived of their Liberty, supra note 34,rule 11(a). However, note that the SG Bulletin, supra note 34, sec. 8(f) provides: “Incases where children who have not attained the age of sixteen (emphasis added) yearstake a direct part in hostilities and are arrested, detained or interned by the United Nationsforce, they shall continue to benefit from special protection.”

74 Id., sec. 8(e).75 AP I supra note 12, art. 76(2).


being. For example, in some societies separating a woman from her husbandor guardian is likely to exacerbate her anxiety.

If juveniles are detained, they should be segregated from male adults.76

However, this principle may need to be breached if segregation will result inthe juvenile’s “isolation” and thus adversely affect his/her well-being. Peace-keepers may thus require the juvenile to be “accompanied” by another detaineealways ensuring the juvenile’s supervision. In such circumstances, female juve-niles should remain in the presence of female detainees. Peacekeepers shouldalso be aware of cultural norms that may apply. Some juveniles may, for exam-ple, be particularly sensitive to medical examination by strangers. Cases involv-ing juveniles should be given priority.

Elderly detainees may develop serious medical conditions. Therefore, ifthere is no alternative to detention, peacekeepers should monitor their medicalcondition and give them priority.

ix. Reprisals

In compliance with the principles of lawfulness, necessity and reason-ableness, peacekeepers are prohibited from taking reprisals against detaineesor collective punishments.77

x. Release or Ongoing Custody

The longer a person is held in detention, the greater are the requirementsfor resources and accountability of peacekeepers. Consequently, it may be appro-priate to set a time limit from the moment of detention to the moment of release,transfer or handover. This should take into account both the operational exi-gencies, such as the availability of local authorities to take effective control ofa detainee, and the resources available, such as those required to transport thedetainee or investigate his/her bona fide. Generally, the time limit should beset in the range of a few hours.

If there is no justification for continuing to hold a detainee, they must bereleased.78 In some circumstances, it may be appropriate to make release con-ditional.79 Conditions may include reporting of the detainee to the local police,returning with proper identification documents or providing an undertakingthat he/she will no longer be involved in the activities that led to detention. A

76 See SG Bulletin, supra note 34, sec. 8(f).77 See, e.g., AP I supra note 12, art. 75(2)(d). 78 Id., art. 75(3). The term “absolutely” here refers to releasing a detainee with-

out any conditions being placed on that detainee.79 Body of Principles, supra note 12, principle 38.


record should be made of the release conditions and reported through the chainof command. It should be made clear to the detainee that in the event of breachthe conditions he/she may be detained again. The decision to release detaineesin such circumstances should be delegated to the lowest reasonable level ofcommand.

The details of release should be recorded and reported through the chainof command. Relevant details of the release should include: (1) the time, placeand reasons for release; (2) the physical and mental condition of the detaineeat the time of release; (3) the details of any person the detainee was releasedin the presence of. If the detainee’s release was conditional, the details of theconditions should be recorded and reported as well.

xi. Transfer

There may be circumstances where it may be appropriate to transfer adetainee to another peacekeeping unit. Such circumstances may arise if a detaineeis a serious security threat and needs to be questioned further. In such cases itis imperative that the peacekeepers responsible for taking the detainee into ini-tial custody make a proper record of, at the very least: (1) the name of the per-son in whose custody the detainee is transferred to; (2) the time and place ofthe transfer; (3) any property transferred with the detainee; and (4) the healthof the detainee at the time of transfer.

xii. Handover

If a decision has been made to hand over the detainee to local or interna-tional law enforcement authorities, the details must be recorded. At least thefollowing information should be provided: (1) the name of the person in whosecustody the detainee is handed to; (2) the time and place of the handover; (3)any property handed with the detainee; and (4) the health of the detainee at thetime of the handover.

A particularly difficult situation to deal with by peacekeepers is when thereis reasonable suspicion that a detainee may be mistreated if handed over to thelocal authorities. In such cases, peacekeepers have at least two choices: (1) torefrain from handing over the detainee until satisfied that the detainee will notbe mistreated or (2) handing over the detainee in the presence of a representa-tive of an international organization such as the ICRC or the Office of the HighCommissioner of Human Rights. This will assist in protecting the interests ofthe detainee and the peacekeeper in two ways: (1) it will provide independentand objective scrutiny of the handover; and (2) it will provide a trail to ensurethat the detainee is traceable and that the conditions of his/her subsequent treat-ment meet the minimum international standards.


xiii. Remedies if There Has Been Ill-Treatment

The right to remedy is recognized in international human rights law. Forexample, the UHDR provides that: “Everyone has the right to an effective rem-edy by a competent national tribunal for acts violating fundamental rightsgranted him . . . by law.”80 In circumstances where peacekeepers have actedunlawfully, a right to remedy for the detainee or his or her family is a compo-nent of successful mission accomplishment. Such remedies may include resti-tution, compensation and rehabilitation for victims. Similarly, the Human RightsCommittee have noted that: “[R]eparation can involve restitution, rehabilita-tion and measures of satisfaction, such as public apologies, public memorials,guarantees of non-repetition and changes in relevant . . . practices, as well asbringing to justice the perpetrators of human rights violations.”81 It should benoted that the United Nations has a policy in relation to third-party liabilityresulting from PSOs conducted by the United Nations. This sets limits “to thirdparty claims against the UN for personal injury, illness or death, and for prop-erty loss or damage . . . resulting from or attributable to the activities of mem-bers of peacekeeping operations in the performance of their official duties.”82

Consequently, UN peacekeepers who use force in compliance with legal normsand ROE are prima facie acting lawfully, meaning that the United Nations willnot be financially liable for any injuries/damages resulting to the detainee orhis/her property. Of course, there is nothing to stop the United Nations from,as a matter of policy, making an ex gratia payment.

b. Accountability

i. Recording and Reporting

An essential component of accountability in the context of the treatmentof detainees is that commanders ensure the existence of processes to ensureadequate, accurate and timely record taking and keeping. Records must be keptin writing and be adequate to permit an independent person to investigate anyallegations concerning the treatment of detainees that may subsequently arise.

80 Supra note 15, art. 8. For a more detailed examination of the right to remedy,see RENE PROVOST, INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW 43–54 (2002).See also Body of Principles, supra note 12, principle 35.

81 Human Rights Committee, General Comment 31 [80], Nature of the GeneralLegal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13(General Comments), para. 16 (May 26, 2004).

82 Third-Party Liability: Temporal and Financial Limitations, GA Res. A/RES/52/247, para. 5 (July 17, 1998).


Some peacekeeping forces may also have access to digital cameras and recordersto register aspects of the treatment of detainees. For example, the questioningof criminal detainees should be electronically recorded or video taped, if theanswers given may be used as evidence before a tribunal. Such recordings mayalso be useful when investigating allegations of abuse or ill-treatment by peace-keepers. One of the challenges is to ensure that records will only be accessibleto authorized individuals. Thus, it is essential to ensure the existence of ade-quate processes to prevent unauthorized access or distribution of information.

Peacekeepers should have sufficiently effective and efficient means ofreporting issues relating to the treatment of detainees through the chain of com-mand. This is essential for at least two reasons. First, reporting permits com-manders to ensure effective control of peacekeepers by being informed of whatis occurring at the tactical level. Second, it assists in maintaining adequaterecords of the treatment of detainees if required for an investigation.

An important practical component of recording and reporting is to haveat least three official registers in which relevant details of the detainee, theproperty confiscated and any complaints may be recorded. The detainee reg-ister should have the details of each detainee taken into custody. These detailsshould, as a minimum, include: (1) the name of the detainee; (2) who carriedout the detention; (3) the time and place where the detainee was taken intocustody; (4) the status of the detainee (i.e., whether they are criminal or secu-rity detainees); (5) the time of release, transfer or hand-over of the detainee;and (6) the ongoing handling of the detainee. The property register shouldcontain relevant information including:g (1) receipt number and descriptionof the property confiscated; (2) information about who confiscated the prop-erty; and (3) the reasons why it was confiscated. The complaints registershould contain, at a minimum: (1) information concerning the nature of thecomplaint; (2) who made it; (3) who investigated the complaint; and (4) theresult of the investigation. Each register should be examined regularly by aperson outside the immediate chain of command of the peacekeepers respon-sible for the detention.

ii. Investigations

Another important component of accountability is having effective andefficient means of investigating any suspected ill-treatment.83 Such investiga-tions must be adequate, independent and proper.

Investigations should be undertaken any time there is a reasonable suspi-cion that a detainee has been abused or where a detainee, or other relevant per-son (such as a family member of the detainee) or organization (such as theICRC), makes a complaint. Such investigations should at least: (1) clarify the

83 Body of Principles, supra note 12, principle 7.


facts; (2) identify measures to prevent recurrence; and (3) recommend futureactions such as disciplinary, compensation and future reporting requirements.84

The recent UK High Court case of Al Skeini provides a number of very use-ful principles concerning investigations of loss of life or ill-treatment ofdetainees. Some of the requirements they identified included: (1) some formof effective official investigation capable of leading to a determination as tothe reasonableness and necessity of the treatment and (2) the person respon-sible for and carrying out the investigation to be independent from those impli-cated in the events.85

iii. Monitoring

An important facet of accountability on PSOs is the appointment of anindependent, competent and impartial monitor for all matters relating to thetreatment of detainees. This is essential if the peacekeepers wish to avoid orminimize perceptions of bias in relation to the appointment.

D. CONCLUSIONS

Peacekeepers will continue to take detainees during PSOs and be heldaccountable for their treatment. While currently there is no normative frame-work regulating the activities of peacekeepers in taking and handling detainees,there are nonetheless several applicable legal principles and standards. Thischapter has identif ied and translated some of the key ones into operationalorders or guidelines to be applied by peacekeepers at the operational and tac-tical levels.

In practice, peacekeepers will very often have to seek to balance thedetainees’ fundamental human rights and the accomplishment of their mission.Since specific legal principles are not always useful in achieving this balance,peacekeepers will need to refer to the above-mentioned general principles oflawfulness, dignity, humanity, necessity, reasonableness and accountability inorder to fill the gaps or limitations set by the law.

It is also worth remembering that no normative framework by itself willensure the treatment of detainees in accordance with fundamental principlesand standards. Commanders will need to ensure, at the very least, that the

84 Principles on the Effective Investigation and Documentation of Torture andOther Cruel, Inhuman and Degrading Treatment or Punishment, supra note 34, princi-ple 1.

85 Al Skeini and others v. The Secretary of State for Defence [2004] EWHC 2911(Admin), paras. 319–324.


normative framework is supported by, and supports, the training of peace-keepers to deal with detainees, that there are effective and efficient inves-tigative and enforcement procedures for dealing with situations where thenormative framework may have been breached and that there are adequateremedies for detainees who have been abused or ill-treated. Law and policymust add value to protecting the fundamental rights and expectations of bothdetainees and peacekeepers.


ANNEX—CHECKLIST

This checklist operationalizes the above principles and standards by setting outa number of provisions concerning the treatment of detainees that those con-cerned with planning, managing and conducting PSOs should consider whendeveloping operational orders, procedures, guidelines or standards for peace-keepers. While it is accepted that some of the principles and standards identi-fied will vary from operation to operations, it should be kept in mind that someof these principles, such as the prohibitions against torture and ill-treatment,are applicable regardless of the type of peace operation or the resources avail-able. It is also important to keep in mind that on some operations the specificprinciples and standards dealt with below may need to be further developed byreference to the general and specif ic principles and standards discussed inSection C. Finally, it should also be noted, that some of the procedures belowmay occur sequentially and others concurrently.

1. General Rule

Fundamental Principles Relating to Handling of Detainees should be read inconjunction with any other policy (such as ROE or operation orders (OPORD))issued by the peacekeeping force. Nothing stated below is to be read as restrict-ing any obligation for peacekeepers arising from law.

2. Definitions

2.1. “Detainee”: any person deprived of personal liberty except as a result ofconviction for an offense.

2.2. “Criminal detainee”: any person detained for committing a serious crimi-nal offense.

2.3. “Security detainee”: any person detained for imperative reasons of security.

3. Legal Basis for Taking Detainees

Insert here the legal basis for handling detainees. The legal basis could be, forexample, a Security Council peace agreement or host nation laws.

4. The Use of Force in Taking and Handling a Detainee

4.1. Peacekeepers are to use only that force that is reasonable and necessary.Any force used is to be graduated where possible and always proportional.


4.2. All detainees are to be treated in a humane manner with respect for theinherent dignity of the human person. They shall not be subject to torture orany other form of ill-treatment.

5. Reasons for Detention

At the time of detention, or as soon as practicable, the detainee shall be noti-fied in a language he or she understands of the reasons for detention.

6. Medical Assistance

A detainee is to receive a quick medical assessment as soon as practicable afterbeing taken into detention. Where necessary, a detainee is to given medicalassistance.

7. Registration of the Detainee

At the time that a person is detained, or as soon as practicable, the followinginformation is to be recorded and reported through the chain of command:

7.1. The identity of the detainee, including where possible a photograph of thedetainee.

7.2. The identity of the person who carried out the detention.

7.3. The reasons for detention.

7.4. The date, time and place of detention.

8. Rights of the Detainee

At the time of detention or as soon as practicable, a detainee is to be advisedof the following rights:

1. The right to challenge the detention.2. The right to communicate with, or notify a nominated person; (e.g.,

lawyer).3. The right to make a complaint regarding treatment.4. The right to make a claim for compensation in relation to treatment or

damage to property arising from the measures taken when detainingthem.


9. Questioning the Detainee

9.1. A detainee may be questioned as required by the exigencies of the situation.

9.2. Any questions asked of the detainee and answered by the detainee shall berecorded.

9.3. Where possible, all questions and answers should be recorded electroni-cally, particularly if the detainee is a criminal detainee.

10. Searching the Detainee

10.1. A detainee may be searched as required by the exigencies of the situation.

10.2. Physical searches of a detainee are to be conducted by a person of thesame sex as the detainee. Only in cases of imperative security reasons can amale search a female.

10.3. Only in exceptional circumstances should invasive searches be conducted.

10.4. An adequate record must be made and kept of any confiscated item.

10.5. All confiscated items must be adequately tagged for identification pur-poses and registered in the Property Register as soon as practicable.

11. Notifying Relevant Individuals and Authorities of the Detention

11.1. The detaining unit or other appropriately nominated person shall notify,as soon as practicable, the individual nominated by the detainee of the locationof the detained person.

11.2. The [insert here the name of the organization] shall as soon as practica-ble, be notified of the following:

1. Information concerning the identity of the detainee including, wherepossible, a photograph.

2. The date, time and place of the person’s detention.

12. Time Limits for Holding Person at the Point of Detention

A detainee shall not be held for more than [insert the number of hours here]before being released, transferred or handed over.


13. Women

Female detainees shall be separated from men unless to do so would jeopard-ize their health or well-being.

14. Juveniles

A juvenile is a person under the age of 18. Juveniles shall be segregated fromother detainees unless to do so would jeopardize the health or well- being ofthe juvenile.

15. Release

15.1. If detention is not warranted, then the detainee must be released eitherabsolutely or conditionally.

15.2. Before releasing a detainee on conditions, guidance must be sought throughthe chain of command. Any conditions must be recorded and reported throughthe chain of command.

15.3. At the time of release the following information shall be recorded andreported through the chain of command

1. The time of release. 2. The place of release.3. The reasons for release.4. The physical and mental condition of the detainee at the time of release. 5. The details of any person the detainee was released in the presence of.6. Details of any property confiscated from the detainee.

15.4. If a detainee is released after detention was notified to [insert here thename of the organization] the detaining unit or other appropriately nominatedorganizations shall notify [insert here the name of the organization] of therelease.

16. Transfer

16.1. Any detainee may be transferred to another peacekeeping unit.

16.2. At the time of transfer the following information shall be recorded andreported through the chain of command:

1. Identity of the detainee, including a photograph where possible. 2. The date, time and place of the detention.


3. The reason for the transfer.4. The date, time and place of transfer.5. The identity of the person who transferred the detainee.6. The identity of the person to whom the detainee was transferred to.7. The physical and mental condition of the detainee at the time of

transfer.

16.3. At the time of transfer, the following information shall be provided to theperson to whom the detainee is transferred to:

1. Identity of the detainee, including a photograph where possible. 2. The date, time and place of the person’s detention.3. The reason for the detention.4. The reason for the transfer.5. Any medical concerns regarding the detainee.6. The name of the person who detained the individual.

16.4. All evidence and items confiscated from the detainee must be returnedto the detainee or transferred to the person taking custody of the detainee.

16.5. Any item transferred shall be signed for by the person taking custody ofthe detainee.

16.6. The Property Register is to be updated with the relevant details of theproperty transferred.

16.7. At the time of transfer, or as soon as practicable, the following informa-tion shall be communicated to an individual nominated by the detainee and[insert the name of the relevant organization].

1. Information concerning the identity of the detainee, including wherepossible a photograph of the detainee.

2. The date, time and place of the person’s detention.3. The place of transfer.

17. Handover

17.1. Only [insert the category of detainee] may be handed over to [insert thename of local authority] or [insert the name of the international authority].

17.2. A detainee is not to be handed over to any authority in situations wherepeacekeepers have a reasonable suspicion that the detainee will be ill-treated.


17.3. At the time of handover, the following information shall be recorded andreported through the chain of command:

1. Identity of the detainee, including a photograph where possible. 2. The date, time and place of the person’s detention.3. The reason for the person’s handover.4. The place of handover.5. The identity of the person who handed over the detainee.6. The identity of the person to whom the detainee was handed to.7. The physical and mental condition of the detainee at the time of

transfer.

17.4. At the time of handover, the following information shall be provided tothe person to whom the detainee is handed to:

1. Identity of the detainee, including a photograph where possible. 2. The date, time and place of the person’s detention.3. The reason for the detention.4. Any medical concerns regarding the detainee.5. The name of the person who detained the individual.6. Any medical concerns regarding the detainee.

17.5. All evidence and items confiscated from the detainee must be returnedto the detainee or handed to the person taking custody of the detainee.

17.6. Any item handed over shall be signed for by the person taking custody ofthe detainee.

17.7. The Property Register is to be updated with the relevant details of theproperty handed over.

17.8. At the time of handover, or as soon as practicable, the following infor-mation shall be communicated to an individual nominated by the detainee and[insert the name of the relevant organization]:

1. Information concerning the identity of the detainee, including wherepossible a photograph of the detainee.

2. The date, time and place of the person’s detention.3. The place of handover.4. The identity of the person to whom the detainee was handed to.

18. Reports and Investigations Concerning Ill-Treatment

18.1. All suspected or observed ill-treatment of detainees must be reportedthrough the chain of command as soon as practicable.


18.2. Any complaint or allegation of ill-treatment of detainees shall be investigated as soon as practicable by an impartial, independent and competentinvestigator.

18.3. Adequate records of the complaint, allegation of ill-treatment and the sub-sequent investigation is to be kept in the Complaints Register.

19. RegistersCommanders shall ensure that the following registers are maintained and

examined as required:

• Detainee Register• Property Register• Complaints Register

20. Unauthorized Disclosure of Information

20.1. Information relating to a detainee may only be released to an appropriateorganization or individual.

20.2. Unauthorized access or distribution of information relating to a detaineeis prohibited.

229

CHAPTER 12

IHL V. HUMAN RIGHTS: THE AL JEDDA CASE AND ISSUES ARISING FROM AN OPERATIONAL PERSPECTIVE

James AE Johnston*

A. INTRODUCTION

The relationship between human rights law (HRL) and international human-itarian law (IHL) has long been the subject of much scholarly discourse, which,depending on the protagonists involved, has often been of a somewhat com-bative nature. A comparison could easily be drawn between two parties argu-ing enthusiastically over the relative merits of Rugby Union Football and RugbyLeague Football: both games have similar aims but different rules apply, anddepending which code you follow, will determine which you regard as the moredominant.

The purpose of this chapter is not to conduct an extensive review in thisarea of the law but to concentrate on one case in which the author was intrin-sically involved: The Queen (on the application of Hilal Abdul-Razzaq Ali Al-Jedda) v. Secretary of State for Defence (the Al Jedda case). After setting outthe background to the case, the aim in Sections C and D is to outline, withinthe context of the case, the current interpretation by UK domestic courts of therelationship between IHL, in the form of a UN Security Council (SC) resolu-tion1 and HRL in the context of the 1949 European Convention on HumanRights (ECHR).2 The words “current interpretation” are stressed because whilethe Al Jedda case has already proceeded through the divisional court3 and the

* Lt. Col. JAE Johnston AGC (ALS) LLM is a serving Legal Officer in theBritish Army. Any opinions expressed in this article are the author’s only and do notnecessarily reflect those of the Ministry of Defense or any other UK government depart-ment.

1 SC Res. 1546 (June 8, 2004) set the mandate for the multinational forces thatwas reaffirmed by SC Res. 1637 (Nov. 11, 2005).

2 The European Convention for the Protection of Human Rights and FundamentalFreedoms was signed in 1950 and entered into force in 1953.

3 The Queen (on the application of Hilal Abdul-Razzaq Ali Al-Jedda) v. Secretaryof State for Defence [2005] EWHC 1809 (Admin).


court of appeal,4 it is, at the time of writing, awaiting final judgment from theHouse of Lords, expected in late 2007. Another more famous case founded onsimilar circumstances that has just received final judgment in the House ofLords is Al Skeini.5 While there are many overlaps between the two cases, atthe risk of a gross oversimplification, the focus in Al Skeini is the extraterrito-rial jurisdictional application of HRL, whereas Al Jedda is more concernedwith the primacy issues arising from the two strands of law. However, the juris-dictional application of IHL and HRL is notoriously complex, as most recentlydemonstrated by the recent ruling of the Strasbourg court in the Behrami andSaramati cases.6 Accordingly, to avoid confusion, the analysis (both from anacademic and practical perspective) in this chapter will assume jurisdictionapplies, in order to concentrate on the relationship between IHL and HRL, albeitwithin the limited parameters of SC Resolution 1546 and the ECHR.

The claimant, Mr. Al Jedda, was originally detained by British forces inSeptember 2004, following the military occupation of Iraq by coalition forcesand the handover of sovereignty to the Iraqi authorities in June 2004, under theterms of the SC Resolution 1546,7 in which multinational coalition forcesbecame engaged in a peace support operation (PSO) on behalf of the Iraqi gov-ernment. Accordingly, the analysis will concentrate on the legal issues arisingfrom the PSO rather than the preceding war fighting operation and belligerentoccupation—from the time the claimant was detained by UK forces in September2004 to the present day. While some UK procedures and policies relating todetention and internment have developed during this period, these are notassessed to have substantively affected the observations and conclusions reached.As already stated, this chapter will center upon the Al Jedda case and domes-tic UK interpretation of the relationship between HRL and IHL. Since the UKHuman Rights Act 19988 (HRA 98) incorporates the ECHR9 into UK domes-

4 The Queen (on the application of Hilal Abdul-Razzaq Ali Al-Jedda) v. Secretaryof State for Defence [2006] EWCA Civ. 327.

5 R(Al-Skeini and others) v. Secretary of State for Defence [2005] 2 WLR 1401and [2005] EWCA Civ. 1609 and [2007] UKHL 26.

6 Agim Behrami and Bekir Behrami v. France, ECHR Application No.71412/01(May 31, 2007). Ruzhdi Saramati v. France, Germany and Norway, ECHRApplication No. 78166/01 (May 31, 2007). In these cases, the Grand Chamber ruled ithad no jurisdiction under the ECHR because the acts of the respondent states’ armedforces, acting as part of KFOR (the UN peacekeeping force in Kosovo), were actionsattributable to the United Nations and not the individual respondent states.

7 See supra note 1.8 The Human Rights Act 1998 (HRA 98) enables UK citizens to apply ECHR

provisions in relevant actions in the English courts thereby avoiding the need for theparties to wait until the conclusion of domestic proceedings before issuing proceedingsin Strasbourg in order to apply convention rights. Accordingly, Schedule 1 HRA 98exactly mirrors the wording of the ECHR.

9 See supra note 2.

IHL v. Human Rights 231

tic law, ECHR jurisprudence cannot be ignored. In addition, where possible,some comparisons have also been drawn with other human rights instrumentsand jurisprudence.

Finally, Section E highlights some practical operational legal issues that,for example, a British commanding general of multinational forces in Iraq mayencounter and require advice upon from his military lawyer. The intention inthis section is not to take “pot shots” at the supposed “ivory towers” of acade-mia but to illustrate by example the real-time issues that can be created at theoperational level by these two important strands of law. For reasons of policyand operational security, these matters have been dealt with generically ratherthan by referring to specific operations, unless the factual basis is uncontestedand already in the public domain such as the factual circumstances drawn fromthe Al Jedda case.

B. BACKGROUND

In March 2003 a US-led coalition force, which included the UnitedKingdom, invaded Iraq and overthrew the regime of Saddam Hussein. The USand UK forces within the coalition force subsequently established a belliger-ent occupation administered by the Coalition Provisional Authority (CPA). OnJune 30, 2004, full governmental responsibility and sovereignty was transferredfrom the CPA back to a democratically elected, independent interim Iraqi gov-ernment. This process was underpinned by SC Resolution 1546,10 which, at therequest of the interim Iraqi government, mandated multinational forces to remainin Iraq in a peace support role to assist in maintaining a secure environment.In order to achieve this mission, the resolution authorized multinational forcesto: “take all necessary measures to contribute to the maintenance of securityand stability in Iraq.”11 In addition, the resolution specifically granted multi-national forces the power to intern individuals “where necessary for impera-tive reasons of security.”12 The claimant was born in Iraq on May 1, 1957. Hemoved to the United Kingdom in 1992, where he successfully claimed asylumand was granted indefinite leave to remain. He was subsequently granted Britishnationality resulting in all four of his children by his first wife also becomingBritish citizens. In 2001, he was divorced; he then remarried in Jordan and sub-sequently took a second wife, also a Jordanian national who grew up in Baghdadand still lives there. In September 2004, the claimant was back in London when,according to his statements, he decided to travel to Iraq in order to arrangeBritish visas for his wives and to introduce his British children to their Iraqi

10 See supra note 1.11 Id., para. 1012 Id.; see letter dated June 5, 2004, from Colin L. Powell US Secretary of State

that is annexed to SC Res. 1546 (June 8, 2004).


relatives. According to him, he flew first with his children to the United ArabEmirates (UAE) where he purchased a car from a friend in Dubai. He took thecar for repairs to a garage, at which point he was detained by UAE intelligenceofficers and interrogated for 12 hours. On release he decided to sail immedi-ately with his children to Basra, asking his friend to send the car on when itwas ready. The car was apparently delivered to him in Basra some days later.He then drove with his children to Baghdad, arriving on about September 20.On October 10, the claimant was detained by British forces on suspicion ofbeing involved in terrorist attacks against multinational forces, Iraqi securityforces and civilians. It was assessed that based on the intelligence material avail-able, there were imperative reasons of security to justify his internment as asecurity internee. Within 14 hours he was subsequently transferred by air to theBritish forces Divisional Temporary Detention Facility situated at ShaibahLogistic Base near Basra in southern Iraq. While at this British forces intern-ment facility, the claimant’s detention has been subject to regular reviews, whichhave concluded that the grounds for his detention continue to be met.

The claimant has been interned for imperative reasons of security basedon highly sensitive intelligence. He has not been charged with any offense, andthe UK government Secretary of State for Defense has accepted that currentlythere is insufficient material available, which could be used as evidence in courtto support criminal charges against him. The claimant denied any involvementin terrorist activities and challenges the legal basis for his detention; he seeksnot just his release from detention but also to secure his return to the UnitedKingdom notwithstanding the possibility he could be liable to prosecution underthe Terrorism Act 2000 or stringent measures of control under the Preventionof Terrorism Act 2005.

C. DIVISIONAL COURT PROCEEDINGS: JULY 20–21, 2005

The claimant’s case was originally founded upon a writ of habeas corpus,but for procedural reasons, it ultimately came before the court by way of judi-cial review. The claimant did not request the court to examine the factual basisfor his internment, reserving his position on this issue,13 though he challengedthe legal basis for internment generally using two lines of argument: (1) theinternment of the claimant contravened the rights conferred upon him by Article5 of Schedule 1 of the HRA 98; (2) the defendant was acting unlawfully inrefusing the claimant’s request to return him from Iraq to the United Kingdom.

In accordance with the position adopted during the Al Skeini14 proceed-ings, the defendants did not challenge the extraterritorial jurisdictional appli-

13 In April 2007 the claimant was granted leave by the Divisional Court to bringjudicial review proceedings challenging the factual basis for his internment.

14 See supra note 6.


cation of the HRA 9815 Instead, the defendants agreed to reserve their positionon this point until the outcome of the Al Skeini House of Lords proceedings.Accordingly, for the purposes of these proceedings, it was accepted betweenthe parties that the claimant’s internment in the British internment facility inIraq could be examined by the court in the context of a contravention both ofUK domestic law, under Article 5 of Schedule 1 of the HRA 98 and pureEuropean Convention rights, under Article 5 of the ECHR. The defendants fur-ther accepted that, prima facie, the claimant’s detention did not fall within anyof the permitted cases set out in Article 5(1) of the HRA 98 or the ECHR.

The defendant’s case was straightforward; namely that no breach of HRA98 or ECHR Article 5 rights had taken place, because internment was specifi-cally authorized by SC Resolution 154616 and, as a matter of international law,the effect of the resolution was to displace Article 5 rights. The claimant coun-tered this SC resolution primacy argument on three distinct levels, which thecourt dealt with separately.

Firstly, the claimant argued that he was seeking to enforce his rights underdomestic HRL (namely Article 5 of the HRA 98) rather than his correspondingrights under international HRL (namely Article 5 of the ECHR). Accordingly,based on the generally accepted normative position that rights under a domes-tic statute cannot be removed by international law, the claimant argued hisArticle 5 HRA 98 rights could never be displaced by SC Resolution 1546. Theclaimant’s assertion founded on the premise of state sovereignty was that itcould never be right for international law in the form of a SC resolution to auto-matically override fundamental rights granted by a democratic governmentunder domestic law, without any recourse by the state concerned. The court, atfirst sight, found this to be a powerful argument initially restating what theydescribed as: “the indisputable and undisputed proposition that the right pro-tected by Article 5, set out in the Act, is a domestic right, derives, in part, fromthe uncontroversial principal that international treaties do not form part ofdomestic law.”17 The court then in the same paragraph highlighted the paradoxthat: “it renders even more surprising the suggestion that an international res-olution can remove a right enshrined in a United Kingdom statute. If a citizencannot rely upon an international treaty . . . to assert a right, it is difficult tosee why a government should be allowed to rely upon such a measure to removea right conferred by United Kingdom statute.” Despite its initial views, the courtemphasized the need for a close examination of the construction of the HRA98 in order to make a final decision. In considering construction, it determinedthe purpose of the HRA 98 was to render rights, which existed at the interna-tional level, enforceable in domestic courts. This uncontroversial assumptionwas based on the title and content of the original draft white paper for the HRA

15 See supra note 9.16 See supra note 1.17 See supra note 3, para. 34.


98: “Rights Brought Home: the Human Rights Bill.”18 The court also relied onLord Nicholls’ explanation of the purpose of the HRA 98 set out in AstonCantlow PCC v. Wallbank:19 “the purpose is that those bodies for whose actsthe state is answerable before the European Court of Human Rights shall infuture be subject to a domestic law obligation not to act incompatibly withConvention Rights. If they act in breach of this legal obligation victims mayhenceforth obtain redress from the courts of this country. In future victimsshould not need to travel to Strasbourg.”20

Given the underlying purpose of the HRA 98, the court went on to exam-ine the extent that the rights conferred by the HRA 98 should mirror those ofthe ECHR. While Section 2 of the HRA 98 does not require domestic courtsto follow Strasbourg jurisprudence, the court’s interpretation of the wordingused in the section21 led it to the conclusion that a domestic court may inter-pret rights more narrowly than the margin of appreciation recognized inStrasbourg. But crucially the court noted that: “the purpose of the statute is notmerely to permit victims to enforce in domestic courts rights enforceable inStrasbourg, but that those rights should be of the same scope and not a greaterambit.”22 In examining the construction of the HRA 98, the court, having decidedon the legislative intention behind the act, then moved on to its operative sec-tions to determine whether they were in fact consistent with this intent. Section1(1) of the HRA 9823 clearly defines the Convention rights as those “set out”in the operative articles of the ECHR. These rights are also identical in formto those in the ECHR. The question for the court was whether, as the claimantcontended, the rights set out in Schedule 1 of the HRA 98 had an autonomousmeaning under the act when enforced in the United Kingdom or whether theirmeaning was the same as those enforced under the ECHR in Strasbourg. Afterhearing detailed submissions from both parties on the operative effect of vari-ous sections in the act, the court identified the critical element to be within thedefinition of the ECHR as set out in Section 21 of the act: “The Conventionmeans the Convention for the Protection of Human Rights and FundamentalFreedoms, agreed by the Council of Europe at Rome on 4th November 1950 asit has effect for the time being in relation to the United Kingdom.”24 Crucially,the court found the inclusion of the words: “effect for the time being” in thesection to be determinative in establishing that the interpretation of the ECHR

18 See Cm 3792 (Oct. 24 1997), available at http://www.archive.officialdocu-ments.co.uk/documents/hoffice/rights/rights.htm.

19 Aston Cantlow PCC v. Wallbank [2004] 1 AC 546.20 Id., para. 6.21 See Section 2(1)a-d of the Human Rights Act 1998, available at

http://www.opsi.gov/ACTS/acts1998/19980042.htm.22 See supra note 3, para. 43.23 See supra note 8.24 See supra note 3, para. 53.


in Strasbourg does influence the application of the rights conferred under theact, thereby sinking the autonomy argument put forward by the claimant.Accordingly, despite misgivings, the court found that based on a detailed exam-ination of its construction, the HRA 98 was so intrinsically linked to the ECHRthat it could also be displaced by SC Resolution 1546. Having initially identi-fied a paradox in support of the claimant’s position,25 the court concluded byrejecting the claimants first counterargument on the basis of a more funda-mental paradox: “if the claimant is correct, then the Secretary of State couldbe found guilty of a breach of Article 5 in United Kingdom courts whereas onthe hypothesis necessary in this argument, the United Kingdom would be acquit-ted of any such infringement in Strasbourg. Such a result would, in our viewbe wholly inconsistent with the purpose and meaning of the 1998 Act.”26 Thesecond counterargument submitted by the claimant was that even if SCResolution 1546 could act upon domestic rights under Article 5 of the HRA98, then, by applying its proper interpretation and effect, as a matter of inter-national law SC Resolution 1546 did not displace the rights of the claimantunder Article 5 of the HRA 98. The court first considered the specific mean-ing of SC Resolution 1546 in the context of the authority given to multinationalforces to: “contribute to the maintenance of security and stability in Iraq inaccordance with the letters annexed to this resolution.”27 Further, the court rec-ognized the importance of interpreting the context28 of the resolution on thebasis of that which had gone before, namely the transition in June 2004 froma belligerent occupation by US and UK forces to a PSO mandated by SCResolution 1546 and undertaken by multinational (including UK) forces in sup-port of the Iraqi interim government. During the occupation, British forces hadexercised powers pursuant to Article 78 of Geneva Convention (GC) IV29 tointern individuals for “imperative reasons of security.”30 The court emphasizedthe significance of the description of the power of internment as referred to inthe letter from Secretary of State Powell annexed to SC Resolution 1546, whichalso cited “imperative reasons of security” as the grounds required for intern-ment under the resolution by multinational forces: “the use of those words wasnot accidental. It provides a clear indication of the intention that the powerspreviously derived from Article 78 of Geneva IV were to be continued.”31 Havingestablished the meaning and intention of the resolution, the court went on to

25 Id., para. 34.26 Id., para. 74.27 See supra note 1, para. 10.28 The court cited the article by Sir Michael Wood, “The Interpretation of Security

Council Resolutions,” (1998) 2 Max Plank UN Y.B. Int’l L. 73, 87. 29 Convention (IV) Relative to the Protection of Civilian Persons in Time of War,

Geneva (Aug. 12, 1949).30 Id., art. 78.31 See supra note 3, para. 87.


consider the principal submission by the claimant that a SC resolution couldnot displace one of the primary purposes of the UN Charter,32 which is to pro-mote and encourage respect for human rights and fundamental freedoms as setout in Articles 1(3) and 55(c) of the Charter. In support the claimant cited Article24(2) of the Charter, which requires the Security Council to act in accordancewith the purposes and principles of the United Nations and also the ruling ofJudge Lauterpacht in the Bosnia Genocide Convention case.33 “It is not to becontemplated that the Security Council would ever deliberately adopt a reso-lution clearly and deliberately flouting the rule of jus cogens or requiring a vio-lation of human rights.”34 The claimant further contended that had the SecurityCouncil intended to displace such a fundamental human right (the right to lib-erty), then it would have specifically stated its intention to do so in the resolu-tion in accordance with a practice it had adopted on previous occasions.

The court rejected the claimant’s submissions on the basis that since theSecurity Council was invoking its powers under Chapter VII of the Charter, thiswas indicative of an extreme situation where measures such as internment werenecessary in order to restore peace and security in Iraq, without which therecould be no human rights. Further, these actions were consistent with a prin-cipal purpose of the United Nations to maintain international peace and secu-rity as set out in Article 1(1) of the Charter.

The third and final limb of the claimant’s argument that SC Resolution1546 does not displace the right to liberty under Article 5 of the ECHR con-cerns the application of Article 103 of the UN Charter, which states: “in theevent of a conflict between the obligations of the members of the United Nationsunder the present Charter and their obligations under any other internationalagreement, their obligations under the present Charter shall prevail.”35 Thedefendant cited Article 103 as clear authority in support of the displacementargument. The claimant argued that since the wording of SC Resolution 1546only authorized internment rather than creating an obligation to intern, thenArticle 103 did not bite. For practical purposes, the court took the view that itwas impossible to distinguish between resolutions that obligate as opposed tothose that authorize. The court cited the comments of Professor Frowein, a for-mer president of the European Commission on Human Rights, contained in thecommentary on the Charter by Bruce Simma36 as academic authority in thisrespect: “Otherwise the Charter would not reach its goal of allowing the SecurityCouncil to take action it deems most appropriate to deal with the threats topeace . . . it seems therefore preferable to apply the rule of article 103 to allaction . . . and not only to mandatory measures.”37 Based on Strasbourg jurispru-

32 Charter of the United Nations (Oct. 24, 1945).33 1993 I.C.J. 325.34 Id. para. 74.35 See supra note 32, art 103. 36 BRUCE SIMMA ET AL., COMMENTARY ON THE UN CHARTER (2d ed. 2002).37 Id., 729.


dence, the claimant also sought to argue that due to the “special character” ofthe ECHR as identified in the Loizidou v. Turkey38 and Bankovic39 cases, thisprecluded displacement of Article 5 rights. The court roundly rejected this asser-tion and, in doing so, reached the following conclusion in respect of the sec-ond counterargument of the claimant: “None of these cases are authority forthe proposition that Article 103 cannot override the Convention. In those cir-cumstances we conclude that Article 103 is not merely engaged by UNSCR1546 but that the resolution does indeed, by virtue of Articles 25 and 103 ofthe Charter, in principle override Article 5 of the Convention in relation to theclaimant’s detention in Basra.”40 The third counterargument of the claimant wasthat even if SC Resolution 1546 could have the effect of displacing the claimant’srights under Article 5 of the HRA 98 (as the court had found). In the circum-stances of this particular case, the detention was unlawful because the defen-dant had not established a detention regime compliant with Article 78 GC IV,41

which (as the court had also found) was the intention of SC Resolution 1546.Specifically, the claimant not only submitted his detention was not necessaryfor imperative reasons of security but also breached the procedural require-ments of Article 78, which states that:

if the Occupying Power considers it necessary, for imperative reasonsof security, to take safety measures concerning protected persons, itmay, at the most, subject them to assigned residence or internment.Decisions regarding such assigned residence or internment shall bemade according to a regular procedure to be prescribed by the occu-pying power in accordance with the provisions of the present conven-tion. This procedure shall include the right of appeal for the partiesconcerned. Appeals shall be decided with the least possible delay. Inthe event of the decision being upheld, it shall be subject to periodi-cal review, if possible every six months, by a competent body set upby the said power.

In considering first whether the procedural requirements of Article 78 had beencomplied with, the court examined in detail the facts surrounding the deten-tion of the claimant. He was initially detained in Baghdad on October 10, 2004,at which time the initial decision to intern him was taken by the British com-manding officer of the detaining unit, prior to his transfer to the internmentfacility operated by British forces in southern Iraq. Under the procedures oper-ating at the time, within seven days of detention the grounds for the initial deci-sion to intern were reviewed by the Divisional Internment Review Committee,

38 Loizidou v. Turkey, ECHR Application No. 513/95, para. 43 (Feb. 23, 1995).39 Bankovic and Others v. Belgium and 16 Other Contracting States, ECHR

Application No. 52207/99, para. 57 (Dec. 19, 2001).40 See supra note 3, paras. 121–122.41 See supra note 29.


which was comprised of various British personnel, including the officer com-manding the internment facility together with other British legal, military intel-ligence and operational staff officers as well as a civilian British Ministry ofDefense policy adviser. The role of the Divisional Internment Review Committeewas to review all available intelligence evidence and other paperwork associ-ated with the internee’s original apprehension, as well as information obtainedafter that time in order to assess whether the internment was necessary forimperative reasons of security. The committee would then make recommenda-tions to the British commanding general, who would decide whether the interneeshould remain in internment, be transferred to the Iraqi criminal justice systemor be released. If the British commanding general authorized internment, fur-ther reviews took place 28 days after the date of internment, then three monthsfrom the date of internment and thereafter at three-month intervals. If, betweenany fixed review date, new information affecting the criteria for internmentcame to light, then an ad hoc review would be undertaken as soon as possible.Any security internee could appeal in writing against his/her internment at the 28-day and three-month reviews, which would also incorporated the appealprocedure.

The first Divisional Internment Review Committee review of the claimant’sinternment took place on October 12, 2004, and recommended continued intern-ment. The British commanding general examined the sensitive intelligencematerial and satisfied himself that internment of the claimant was necessaryfor imperative reasons of security. On November 9, 2004, the DivisionalInternment Review Committee considered the claimant’s continued internmentand again recommended to the British commanding general that he shouldremain in internment. The British commanding general subsequently followedthis recommendation on November 19, 2004.

In January 2005, the British internment review procedures were revised.The composition of the Divisional Internment Review Committee was reducedin size to three more senior British Officers: the chief of staff, the senior intel-ligence officer and the senior legal officer. In addition, the senior British Ministryof Defense policy adviser was also a member of the committee. The initial deci-sion to authorize the internment of an individual remained with the British com-manding off icer of the detaining unit. However, the initial review by theDivisional Internment Review Committee was reduced from seven days to within48 hours of initial detention. The committee subsequently made recommenda-tions to the British commanding general as to whether an internee should remainin internment, be transferred to the Iraqi criminal justice system or be released.Every month, the Divisional Internment Review Committee would conduct areview of the grounds for internment of every internee held in the internmentfacility and make individual recommendations to the British commanding gen-eral as to whether the internment should continue. In addition, at any stage dur-ing the 28-day period between these regular reviews, there could be ongoingevidential and intelligence enquiries or other issues that may trigger an ad hoc


review by the Divisional Internment Review Committee (DIRC). After eachreview a written record was produced to the British commanding general, con-taining a summary of the issues in each case, together with recommendationsand the requisite draft review notices. The general could question members ofthe DIRC on their recommendations and, if necessary, also view the relevantevidential or intelligence material in order to make the final decision as towhether each security internee should remain in internment, be transferred tothe Iraqi criminal justice system or be released. This decision in respect of eachsecurity internee would then be communicated to each individual in a writtennotice. Since January 2005, the claimant had been subject to regular 28-dayreviews under the new procedures.

The principal procedural challenge by the claimant to the British intern-ment review procedures related to the role of the British commanding generalas a single individual considering an appeal against internment. The claimantargued that Article 78 required a competent body, which meant more than oneperson making the decision as stated by Dr. Pictet in his commentary on GCIV:42 “the authors of the Convention took every possible care to prevent anyform of abuse. They did however, leave it to the occupying power to entrust theconsideration of appeals either to a court or a board. That means that the deci-sion will never be left to one individual. It will be a joint decision, and thisoffers the protected persons a better guarantee of fair treatment.”43 The defen-dant argued that an inherent aspect of the military chain of command was thenecessity for decisions to be made by individuals rather than by committee.However, the authority of Pictet coupled with the common sense of his propo-sition prevailed, leading the court to conclude that the review procedures didnot comply with Article 78. However, the court accepted that the general hadreviewed the intelligence relating to the claimant himself and had always actedon the recommendations of the Divisional Internment Review Committee.Accordingly, it found the breach to be technical rather than substantial and sug-gested it could be remedied simply by the general becoming a member of theDivisional Internment Review Committee, who would make all internment deci-sions jointly rather than simply making recommendations.44

The argument thereafter centered uon the consequences of the Article 78breach. The claimant cited the Delalic case:45 “an initially lawful internment

42 Dr. Jean S Pictet: The Geneva Conventions of 12 August 1949 Commentary, IVGeneva Convention Relative to the Protection of Civilian Persons in Time of War 1958.

43 Id., 369.44 Following release of the judgment, the internment review procedures have

since been amended to include the British commanding general as a member of theDivisional Internment Review Committee with all decisions being taken jointly as a tri-bunal as recommended by the court.

45 Prosecutor v. Delalic, Mucic, Delic and Landzo, Case No. IT-96-21-I (Mar.21, 1996).


clearly becomes unlawful if the detaining party does not respect the basic pro-cedural rights of the detained persons and does not establish an appropriatecourt or administrative body.”46 Accordingly, the claimant submitted the pro-cedural breach rendered the detention unlawful since it was no longer author-ized under SC Resolution 1546, which therefore allowed him to rely on theentirety of his rights under Article 5. The court, referring to the judgment inthe Kolanis case,47 however disagreed: “if the substantive conditions for deten-tion are met, as must be assumed for the present purposes to be true in the caseof the claimant, it would be very surprising if non-compliance, however insub-stantial, with the procedural requirements of Art 78 had the automatic effect ofrendering the detention unlawful.”48 Finally, the claimant argued that the require-ments of Article 78 had not been met because by virtue of the claimant’s Britishnationality, it was not necessary to intern him in Iraq as he could be repatriatedto the United Kingdom, where a control order under the Prevention of TerrorismAct 2005 could be imposed as an alternative to custody. The claimant submit-ted such an order would be as an effective control as internment in Iraq.Therefore, the internment was not necessary for imperative reasons of securityand so failed to comply with the Article 78 grounds for internment, set out inSC Resolution 1546,49 with the result that the resolution could not be reliedupon to displace Article 5 rights of liberty under the ECHR.50

The defendant challenged this argument on the basis that SC Resolution1546 provided no power of internment to remove the claimant from Iraq to theUnited Kingdom. The court agreed such actions would be inconsistent with theresolution but, more fundamentally, stated that since the claimant had not chal-lenged the factual basis for detention “the necessity for detention can only beproperly assessed in the context of a detailed consideration of the factual basisfor the detention. We therefore conclude that this further attempt by the claimantto defeat the defendant’s reliance on UNSCR 1546 must be rejected.”51

D. COURT OF APPEAL PROCEEDINGS: JANUARY 16–18, 2006

The court of appeal upheld the dismissal of the claimant’s appeal of thedivisional court decision. Since the majority of arguments proposed by bothsides mirrored those originally advanced, these issues will not be dealt with indetail, save where the court of appeal provided a different interpretation or glosson those original submissions. Certain new lines of argument raised in theseproceedings will also be considered.

46 Id., para. 2774.47 Kolanis v. United Kingdom, ECHR Application No. 517/02 (June 21, 2005).48 See supra note 3, para. 144.49 See supra note 1.50 See supra note 2.51 See supra note 3, paras. 151–152.


In considering the primary issue of whether SC Resolution 1546 trumpsor displaces the right to liberty under Article 5, the court, with the benefit of arecent House of Lords judgment in the Quark Fishing case,52 was able to swiftlyendorse the conclusion of the divisional court. Quark had clearly establishedthat the purpose of the HRA 98 was to bring rights home and, as a result, wasinextricably linked to the ECHR and hence could be affected by internationallaw in the form of a SC resolution: “A party unable to mount a successful claimin Strasbourg can never mount a successful claim under . . . the 1998 Act. Forthe purpose of the 1998 act was not to enlarge the field of application of theconvention but to enable those subject to the jurisdiction of the UK . . . to pres-ent their claims in the domestic courts of this country and not only inStrasbourg.”53 The court then moved on to the central question of whether SCResolution 1546 itself displaced the appellant’s Article 5 rights under Article103, as submitted by the respondent. The court firstly recognized the signifi-cance that SC Resolution 1546 had been issued by the Security Council underpowers contained in Chapter VII of the UN Charter, by referring (as the divi-sional court had) to the commentary on the UN Charter by Simma and others,54

where Professor Bernhardt (also a former president of the European Court ofHuman Rights) had said:

However, Article 103 goes further. To the extent that the Charter pro-vides for the competence of UN organs to adopt binding decisions,measures taken in accordance with such provisions can lead to obli-gations of the members that prevail under Article 103, notwithstand-ing any other commitments of the members concerned. This holds truefor decisions and enforcement measures of the Security Council underchapter VII . . . they [members of the UN] are bound, according to arti-cle 103, to give these obligations priority over any other commitments. . . In conclusion, it seems now to be generally recognized in practicethat binding security Council decisions under Chapter VII supersedeall other treaty commitments.”55

The court agreed with this analysis though citing jus cogens56 as an exception:

There is no room here for any argument that human rights treatiesfall into some special category. If the Security Council acting under

52 R(Quark Fishing Ltd) v. Foreign Secretary [2005] UKHL 57.53 Id., per Lord Bingham at para. 25.54 See supra note 36. 55 Id., paras. 1295–1300. 56 Defined under Article 30(1) of the Vienna Convention of the Law of Treaties

as: “a peremptory norm of general international law . . . [being] . . . a norm acceptedand recognized by the international community of states as a whole as a norm fromwhich no derogation is permitted.”


Chapter VII, consider that the exigencies posed by a threat to peacemust override, for the duration of the emergency, the requirementsof a human rights convention (seemingly other than jus cogens, fromwhich no derogation is possible), the UN Charter has given it powerto so provide.”57

Given the lack of a clear consensus of exactly what peremptory norms arerecognized as jus cogens by the community of states, it was unfortunate thecourt did not concern itself with whether the right to liberty under Art 5 ofthe ECHR was a jus cogens right because the appellant did not argue that wasthe case.

The court did however address the technical argument raised by theclaimant/appellant in both sets of proceedings that since Article 103 referredto the primacy of UN Charter obligations, for a Security Council resolution toqualify, it needed to refer specifically to obligations, whereas SC Resolution1546 had only cited authorizations and so did not fall within Article 103. Thecourt agreed with the divisional court assessment that for practical purposes,it was impossible to distinguish between resolutions that obligate as opposedto those that authorize. The court further noted that overall state practice sup-ported this assessment and once again relied on the commentary on the UNCharter by Simma and others:58

one could conclude . . . [referring to Article 103] . . . that in case astate is not obliged but merely authorized to take action, it remainsbound by its conventional obligations. Such a result, however, wouldnot seem to correspond with state practice at least as regards authori-zations of military action . . . these authorizations have not been opposedon the ground of conflicting treaty obligations . . . Thus the interpre-tation of article 103 should be reconciled with that of article 42 . . .[Chapter VII military action] . . . and the prevalence over treaty obli-gations should be recognized for the authorization of military actionas well.”59

The court endorsed the finding of the divisions court that the internment regimeauthorized under SC Resolution 1546 did displace the appellants Article 5 rightto liberty. However, it emphasized that the resolution only qualified humanrights obligations to the extent that it conflicted with them, therefore: “all theremaining requirements of those human rights conventions retained their vital-ity (in so far as they were not qualified by the Security council resolution), andwith the greater vigour because an internee’s important right to liberty was

57 See supra note 4, para. 71.58 See supra note 36.59 Id., para. 729.


being removed without the due process that is obligatory in less exceptionaltimes.”60 A final argument pursued by the appellant not originally put beforethe divisional court was based under English common law. It was contendedthat even if the court found (as it had) that SC Resolution 1546 was enforce-able under Iraqi law in providing the necessary authority for multinational forcesto intern suspects, then, because of the appellant’s dual Iraqi/British national-ity, English law should apply in his case. Counsel for the appellant argued thatsince SC Resolution 1546 granted powers to multinational forces to act underIraqi law, then if English law did apply to the appellant the resolution shouldhave no effect: “it would be strange indeed for the English court to apply Iraqilaw to a claim by a British citizen against the British Government in respect ofactivities on a base operated according to British law by British troops gov-erned by British law (and immune from Iraqi law).”61 The general rule as setout in the Private International Law (Miscellaneous Provisions) Act 1995 is thelaw of the host nation will apply unless it is “substantially more appropriate forthe applicable law for determining issues arising in the case . . . to be the law ofthe other country.”62 In seeking to interpret the wording “substantially moreappropriate,” the court examined the travaux préparatoire surrounding the cre-ation of the act63 and reached a conclusion based on the comments made byLord Wilberforce, a member of the Special Public Committee, who said for thegeneral rule not to apply: “it is a rare case. Prima facie there has to be a strongcase.”64 The court, in applying this test, noted that the appellant was still ableto challenge the legality of his detention before an English court and concludedthat: “given that the laws of Iraq have been adapted to give the multinationalforces the requisite powers, it would be very odd if the legality of Mr Al Jedda’sdetention was to be governed by the law of England and not the law of Iraq.”65

Accordingly, having considered all of the submissions put forward, the courtdismissed the appeal.

E. OPERATIONAL ISSUES ARISING

So far, the analysis has involved an academic examination of the Al Jeddacase concerning the relationship between IHL and HRL. In this section it is

60 See supra note 4, para. 80.61 Id., para. 105.62 Section 12(1)(b) of the Private International Law (Miscellaneous Provisions)

Act 1995.63 HL Paper 36, Session 1994–5, Private International Law (Miscellaneous

Provisions) Bill [HL], Proceedings of the Special Public Committee, with evidence andthe bill (as amended).

64 Id., para. 37.65 See supra note 4, para. 106.


intended to highlight some operational issues affecting the ground commanderengaged in PSOs, which may arise either wholly or in part from the interpre-tation given to the relationship between HRL and IHL within the parametersof SC Resolution 154666 and the ECHR.67 For operational and policy reasons,these matters will be dealt with generically, though from the author’s own expe-rience, it can be confirmed they are realistic issues that a British commandercould potentially face in the context of recent operations in Iraq or Afghanistan.

There are many areas where UK obligations under HRL and IHL will havepractical consequences on the ground for a British commander conductingPSOs. However, to keep the debate brief, the focus will be on three specificareas of potential conflict, which may arise during the detention and subsequentinternment of suspected insurgents in the context of the multinational forcecounterinsurgency PSO, in which British troops are currently engaged in Iraq.These areas are: criminal investigation, interrogation and transfer of securityinternees to the Iraqi criminal justice system. The intention is to illustrate byexample the potential difficulties posed to commanders and their lawyers inreconciling the different priorities and standards required under the applicableIHL and HRL rather than necessarily providing concrete answers to the issueshighlighted. As ever, the approach taken by a commander will be determinedby many factors, including the specific circumstances of the case, operationalissues, legal advice, policy and diplomatic considerations.

Using a fictional example, let us consider that following a pre-plannedsecurity operation conducted by British armed forces in southeastern Iraq, anumber of suspected insurgents are detained. However, one of the suspectedIraqi insurgents subsequently dies from injuries sustained while detained inBritish custody. In accordance with the position adopted by the respondent inAl Skeini68 it was accepted the ECHR will have jurisdictional application to anyindividual held in any permanent or semi-permanent detention facility oper-ated by British armed forces.

The first area of possible conflict may occur during any criminal investi-gation of this suspicious death. Under normative rules of territorial jurisdic-tion, the investigation of the death of an Iraqi national, while in the custody ofUK forces within Iraq, would usually fall within the domestic criminal juris-diction of the Iraqi authorities. However, SC Resolution 1546 confirms agree-ment by the Iraqi government that multinational (including British) forces,would retain jurisdiction over their personnel: “the contributing states haveresponsibility for exercising jurisdiction over their personnel.”69 Accordingly,concurrent UK military jurisdiction70 will apply, enabling British military police

66 See supra note 1.67 See supra note 2.68 See supra note 5.69 See supra note 1.70 Under S.70 of the Army Act 1955.


to investigate British military personnel involved in the death in custody of theIraqi national.

Settled jurisprudence from Strasbourg established the principle that theright to life obligations under Article 2 of the ECHR include a requirementfor an effective, independent investigation to be conducted to establish howand why the individual died.71 The British military police investigation man-dated by SC Resolution 1546 will apply rigorous investigative procedures,which closely mirror those under UK civilian criminal law, where rules on evi-dential admissibility are extremely stringent. As a result, the deceased wouldmost likely be subject to a detailed post mortem to establish cause of death.Additionally, in order for further investigations to take place, it would beunlikely for the body to be released for burial for a considerable time there-after. These practices may well conflict with the expectations of the Iraqi nextof kin of the deceased, where religious conventions may dictate the funeral ofthe deceased must take place within a short, prescribed period of time. In addi-tion, the whole concept of a post mortem may be construed as a desecrationof the deceased, leading to further allegations of ill treatment. This situationcould lead to the next of kin alleging the freedom of religion of the deceasedunder Article 9 of the ECHR was infringed. The United Kingdom could con-test any such claim on the basis that the allegations relate to actions conductedafter the individual has died, so no ECHR rights would exist. Such an argu-ment may not be deployed given the presentational issues involved. However,the United Kingdom could argue that since Article 9 is a qualified right, suchinvestigative practices are permissible in any event: “Freedom to manifest one’sreligion or beliefs shall be subject only to such limitations as are prescribedby law and are necessary in a democratic society in the interests of publicsafety, for the protection of public order, health or morals, or for the protec-tion of the rights and freedoms of others.”72 Whether these arguments succeedor not, the next of kin may well contend that the conflicts between religiousfreedoms and investigative procedures only arise due to the immunity fromIraqi domestic criminal jurisdiction afforded to multinational forces by theIraqi government under SC Resolution 1546. We therefore return neatly to theissues of primacy central to the Al Jedda case.

Similar issues also arise when we consider the practical difficulties thatmay be experienced by military police and prosecutors in applying evidentialstandards under the UK adversarial trial process to a criminal investigation con-ducted in Iraq. The ability to maintain the integrity of evidence from the per-spective of freedom from contamination and continuity, given the physicalconditions pertaining to Iraq, will generally be much more challenging than inthe United Kingdom. Cultural differences such as the custom of paying bloodmoney and the Iraqi tribal system may also impact negatively on the veracity

71 See Ergi v. Turkey, ECHR Application No. 66/1997/850/1057 (July 28, 1998).72 See supra note 2, art. 9(2).


afforded by a British court to Iraqi witness evidence. These Iraq specific fac-tors may well combine to make a successful prosecution extremely difficult or,in certain circumstances, may even hinder the presentation of a successfuldefense by the accused. All these issues could potentially feature in HRL argu-ments seeking to balance the right of the accused military personnel to a fairtrial under Article 6 of the ECHR, with those human rights to which the vic-tim may be entitled. Prima facie, this conflict between different human rightsis no different to similar arguments played out daily in UK criminal courts upand down the country. However, the difference is that the Iraqi next of kin couldlegitimately argue that were multinational forces not granted responsibility forexercising jurisdiction over their personnel under SC Resolution 1546, Iraqicriminal jurisdiction would have primacy based upon normative territorial juris-diction principles. In such circumstances, it is likely that these concerns woulddiminish considerably under the domestic inquisitorial criminal justice systemoperated in Iraq, where the rules relating to the admissibility of evidence arefar more flexible. Notwithstanding the legal issues involved, at a local level,the commander must also take into account the tangible damage these legalconflicts potentially cause to relations between British forces and the local com-munity as well as the effect on other multinational forces.

The second operational area involving possible conflict between IHL andHRL would arise if the remaining suspected Iraqi insurgents in this examplewere subsequently interned as security internees and transferred to the Britishinternment facility. On arrival, it is likely that the internees would be subjectto interrogation. The term interrogation is often misunderstood. To some it mayconjure up images of thumbscrews and the rack, even though such practiceswould clearly amount to torture under IHL and HRL. Such perceptions are oftenbased on films or other works of fiction, though sadly they do also have theirfactual basis in both ancient and contemporary history. Others may associateinterrogation with other practices involving the use of stress positions or sen-sory deprivation, which figured in the circumstances of the Ireland v. UK case73

and were found to amount to inhuman and degrading treatment.74 While somedefinitions for interrogation can be found, unfortunately the Geneva Conventionsof 1949 do not provide one. However, there is no magic in the term; it can bedescribed for the purposes of this chapter as the questioning of an uncoopera-

73 Ireland v. The United Kingdom, ECHR Application No. 5310/71 (Jan. 18,1978).

74 In this case, certain practices employed by UK security forces on suspectedterrorists during interrogation in Northern Ireland during the 1970s were outlawed. Suchtechniques included the use of hooding and stress positions (wall standing) during inter-rogation as well as the employment of white noise and limited food and water depriva-tion. The court found such practices fell short of torture but did amount to inhuman anddegrading treatment. As a result of a statement made in the House of Commons by PrimeMinister Edward Heath on March 2, 1972 (see Hansard 743–744) the Ministry of Defense(MOD) prohibited the armed forces from employing such practices.


tive individual using lawful techniques, where the aim is to persuade that indi-vidual to become cooperative.

The practice of interrogation has become so contentious that this chaptercould easily be devoted entirely to the subject. The evidence from US courtsmartial relating to events in the Abu Ghraib Prison75 and certain other Britishcourts martial76 also concerning alleged prisoner ill-treatment have firmly placedthe spotlight on interrogation procedures, even though the majority, if not allof such alleged ill-treatment, would seem to have taken place in the context ofprisoner handling and not during actual interrogation. British armed forcesregard the concept of interrogation as a lawful activity when conducted accord-ing to authorized procedures, and policy reflects this. While some human rightscommentators may challenge the legality of interrogation, it is not intended toexplore the detailed arguments on either side but merely to highlight once againthe difficult choices faced by a commander on the ground. In sanctioning inter-rogation, a commander may obtain from the suspected insurgents highly valu-able intelligence, which could lead to the frustration or elimination of futureterrorist attacks, which would otherwise potentially cause death or injury toIraqi civilians, security forces or multinational forces. The commander wouldarguably be under a duty to conduct interrogation where necessary, taking intoaccount the responsibilities imposed on multinational forces under SC Resolution1546, which it could be expected would reflect IHL principles: “decides thatthe multinational force shall have the authority to take all necessary measuresto contribute to the maintenance of security and stability in Iraq in accordancewith the letters annexed to this resolution expressing, inter alia, the Iraqi requestfor the continued presence of the multinational force and setting out its tasks,including by preventing and deterring terrorism.”77

However, naturally, these joint IHL/HRL obligations on the commandermust be weighed against the human rights of the suspected insurgent, as he willbe subjected to authorized interrogation techniques that, albeit non-physicaland strictly limited, are intended to maintain the shock of capture and to dis-orientate the subject without his consent. Conversely, we must also rememberthe obligations on the interning authority to regularly review the grounds forinternment of each individual security internee. On this basis, it could be arguedthat there is a positive duty on the commander to conduct interrogation of theindividual for the purpose of informing the internment review process (asdetailed in the Al Jedda case), since intelligence obtained from a security interneemay also act to his (or another internees) benefit rather than to their detriment.

When considering the actual interrogation procedures, a key issue for acommander may be the extent to which normal detainee handling procedures

75 United States v. Graner: Fort Hood Court Martial Center, Texas, USA, June2006.

76 R v. Kenyon & Others: Osnabruck Court Martial Center, Germany, February2005 and R v. Payne & Others: Bulford Court Martial Center, UK, September 2006.

77 See supra note 1, para. 10.


can be lawfully modified, in order to maintain the detainees shock of capture,thereby making them more susceptible to interrogation. For operational rea-sons, it is not intended to refer to the specific procedures applied in readinessfor and during interrogation. However, they are carefully constrained withinauthorized procedures that are closely scrutinized by the Ministry of Defense,other government departments, as well as the Houses of Parliament78 and otherinstitutions, to ensure compliance with UK domestic and international legalobligations. Notwithstanding these safeguards, interrogation is an intrinsicallysubjective process, and the circumstances of a particular operation may raisespecific questions relating to the application of interrogation techniques notspecifically dealt with by the law or policy guidance. The relevant domestic,IHL and HRL instruments do not go into specific detail on interrogation prac-tices, so it may be difficult to assess whether a particular interrogation tech-nique or procedure is unlawful. Clearly, any practices involving the applicationof severe pain or suffering would amount to torture within the definition con-tained in the UN Convention Against Torture and Other Cruel, Inhuman orDegrading Treatment (UNCAT), dated June 26, 1987.79 However, other actsfalling short of torture may be harder to assess, given the lack of an expressdefinition of cruel, inhuman or degrading treatment within UNCAT and thelimited domestic and international jurisprudence on the subject. In this con-text, reconciling what is and is not lawful under the relevant IHL and HRL mayin certain circumstances be extremely difficult for a commander or his lawyerto interpret.

Considering IHL first, in the context of international armed conflict GCIII80 states: “No physical or mental torture, nor any other form of coercion . . .May not be threatened, insulted or exposed to any unpleasant or disadvanta-geous treatment of any kind.”81 With regard to GC IV,82 it states civilian pro-

78 See House of Lords, House of Commons Joint Committee on Human Rights19th Report of Session 2005–06 (May 26, 2006) Chapter 4 on UK armed forces com-pliance with the UN Convention Against Torture and Other Cruel, Inhuman or DegradingTreatment (UNCAT) (June 26, 1987).

79 At Article 1 of UNCAT, torture is defined as any act by which severe pain or suffering, whether physical or mental, is inten-tionally inflicted on a person for such purposes as obtaining from him or athird person information or a confession, punishing him for an act he or a thirdperson has committed or is suspected of having committed, or intimidating orcoercing him or a third person, or for any reason based on discrimination ofany kind, when such pain or suffering is inflicted by or at the instigation of orwith the consent or acquiescence of a public official or other person acting inan official capacity. It does not include pain or suffering arising only from,inherent in or incidental to lawful sanctions.80 Convention (III) Relative to the Treatment of Prisoners of War, Geneva (Aug.

12, 1949). 81 Id., art 17.82 See supra note 29.


tected persons “should at all times be humanely treated and shall be protectedespecially against all aspects of violence or threats thereof ”83 [and] “No phys-ical or moral coercion shall be exercised against protected persons, in particu-lar to obtain information from them or from third parties.”84 If the conflict isnon-international in nature, then Common Article 3 of the Geneva Conventions1949 will still apply in prohibiting “violence to life and person, in particularmurder of all kinds, mutilation, cruel treatment and torture . . . outrages uponpersonal dignity, in particular, humiliating and degrading treatment.” Turningto HRL and by applying the position adopted by the respondent in Al Skeini,85

tany person detained in a permanent, or semi-permanent, British internmentfacility is deemed to have the protection of the ECHR,86 which states: “No oneshall be subjected to torture or to inhuman or degrading treatment or punish-ment.”87 What amounts to torture, inhuman or degrading treatment has beenthe subject of signif icant Strasbourg jurisprudence arising from cases likeIreland v. UK88 and Selmouni v. France.89 The concept of torture is fairly clearaccording to case law and the UNCAT definition,90 though what amounts toinhuman or degrading treatment can be harder to assess. Without consideringthe applicability of the above legal principles to a specific PSO, it is submit-ted that the above snapshot of some of the IHL and HRL pertinent to this areaillustrates the difficulties in interpretation that could arise. For instance, ifArticle 17 GC III were interpreted literally, then being “exposed to any unpleas-ant or disadvantageous treatment of any kind” could be construed as ruling outany of the existing authorized interrogation procedures taught and applied byBritish forces before and during interrogation. A similar literal approach couldalso create problems with regard to the interpretation of obtaining informationby “moral coercion” under Article 31 GC IV and “outrages upon personal dig-nity” under common Article 3.While the attraction of a literal approach to inter-pretation is clarity, the aforementioned examples illustrate its lack of practicalityleaving the requirement for the commander to consider what is reasonable.While detailed guidance on authorized interrogation procedures is available toa commander and his lawyer, it cannot be expected to cover every eventuality.Amplification of the guidance will be available outside the operational theaterfurther up the chain of command. However, the commander will be seekinginformation to stop insurgent operations aimed at killing and injuring civiliansand/or multinational forces on a daily basis. Such information may be extremely

83 Id., art. 27 84 Id., art. 31.85 See supra note 5.86 See supra note 2.87 Id., art. 3. 88 See supra notes 73 and 74.89 Selmouni v. France, ECHR Application No. 25803/94 (July 28, 1999).90 See supra note 79.


time sensitive, relating to attacks expected within the next few hours, in whichcase a commander or his lawyer may not have the time to seek such advice fromoutside the operational theater.

Additionally, there are other issues that may affect the interrogation pro-cedures applied. For instance, communications with security internees will bedifficult even if experienced interpreters are available, as they will be unlikelyto be skilled in local dialects. The complex protocols for naming persons inIraq, based on tribal and family links coupled with the reticence of suspects toidentify themselves may cause real problems in simply identifying and distin-guishing between individuals detained at the same location. This is particularlyrelevant, given the necessity to identify innocent persons who may have beeninitially detained due to their presence in the same vehicle, or house, as othersuspected insurgents. In addition, cultural and religious differences in Iraq maymean that certain approaches employed successfully in interrogation operationsin other conflicts, such as the Balkans, may be counterproductive when appliedto the interrogation of detainees in this theater. All these, and many other oper-ational factors, add up to create a uniquely complex scenario, within which acommander must operate lawfully.

The problems for the commander are not limited to interrogation issuesarising from security internees held in UK custody but also individuals held bythe host nation or our coalition allies. It is expected that intelligence is shared,though it is not diff icult to foresee a situation where a commander may beoffered intelligence by an ally who is known or suspected to apply interroga-tion procedures, which the UK would regard as amounting to inhuman, degrad-ing treatment or even torture. If the intelligence relates to an imminent attacklikely to result in death or injury, should the commander accept the unlawfullyobtained intelligence in order to act upon it and thus save lives? Alternatively,should the commander refuse the offer based on his/her knowledge of its prove-nance and, if so, to what extent does the commander breach applicable obliga-tions under IHL and HRL to protect multinational forces and civilian lives? Itis not intended to provide an answer to such a dilemma. Suffice to say that thisis probably a very realistic situation a commander may encounter during a tourof duty. The correct course of action will involve careful consideration of allthe circumstances of the case, together with the application of an accurate andpragmatic interpretation of law and policy in this area. These difficult issueswere recently recognized by the Parliamentary Intelligence and SecurityCommittee,91 who quoted the Foreign Secretary:

“a real area of moral hazard which is if you do get a bit of informa-tion which seems to be completely credible, which may have beenextracted through unacceptable practices, do you ignore it? . . . you

91 See Intelligence and Security Committee Report on the Handling of Detaineesby UK Intelligence Personnel in Afghanistan, Guantanamo Bay and Iraq (Mar. 1, 2005).


have to make an assessment about its credibility. Because, just in termsof the moral calculus, [what] if we had been told through liaison part-ners that September 11th was going to happen, with all the details [ofhow the information was obtained]. Now, torture is completely unac-ceptable and [we would] query whether that was the reason why wegot the information . . . but you cannot ignore it if the price of ignor-ing it is 3,000 people dead.”92

The third operational area with potential conflict between IHL and HRL couldarise in various ways, in our example, with regard to the ability of British forcesto transfer suspected insurgents to the Iraqi criminal justice system, as well asproviding other support in this area. It is clear from SC Resolution 154693 thata principal aim is in the provision of support to the Iraqi authorities, in orderto establish democratic systems of government and, crucial amongst these, isa fair and independent judicial system: “for the maintenance of law, order, andsecurity, including combating terrorism, and requests member states and inter-national organizations to assist the Government of Iraq in building the capa-bility of these Iraqi institutions.”94 In accordance with this aim, enormousresources have already been invested in rebuilding the Iraqi criminal justicesystem and continue to be provided from various sources by the internationalcommunity. With regard to multinational forces, an equally significant demon-stration of support is that wherever possible, suspected Iraqi insurgents shouldbe transferred to the Iraqi criminal justice system for trial under the Iraqi crim-inal code.95 Where transfer to the Iraqi criminal justice system is possible, thisis clearly preferable to the continued internment of suspected insurgents with-out trial, potentially for an indefinite period, if the grounds to intern that indi-vidual remain, and the power of internment continues to be mandated bysuccessive resolutions to SC Resolution 1546. However, HRL may affect suchaspirations; in the UK v. Soering case,96 as well as subsequent authorities,Strasbourg has ruled that extradition of individuals to another country whosecriminal code includes capital punishment as a possible sentence may amountto inhuman or degrading treatment, thereby infringing Article 3 of the ECHR:“the applicant’s extradition to the United States would expose him to a real riskof treatment going beyond the threshold set by Article 3.”97

Whether the capital punishment procedures of a particular state will amountto inhuman or degrading treatment will depend on the circumstances of each

92 Id., para 32: Oral evidence from the Rt. Hon. Jack Straw to the Intelligenceand Security Committee (Nov. 11, 2004).

93 See supra note 1.94 Id., para. 16.95 The Iraqi Law on Criminal Proceedings of 1971.96 Soering v. UK, ECHR Application No. 14038/88 (July 7, 1989). 97 Id., para. 111.


individual case. The Soering case, and the subsequent line of authorities, havelargely concentrated on the period of time an individual may spend on deathrow. However, the method of execution98 and the principle of capital punish-ment99 per se have also been considered. It is not intended to embark on adetailed consideration of the jurisprudence in this area. Suffice to say that underHRL, death penalty issues will often prevent the transfer or extradition of sus-pects to states who retain capital punishment if, given the nature of the allega-tions faced and any other relevant factors it is assessed that in the event ofconviction there would be a “real risk” of a capital sentence being imposed.However, in the context of Iraq, it should be noted that the Soering case involvedthe extradition of Mr. Soering from custody in the United Kingdom to the UnitedStates and did not relate to individuals held in UK custody but within Iraq.

Historically in Iraq, capital punishment was available as a sentencing optionfor certain criminal offenses prior to the invasion and occupation by coalitionforces in 2003. During the occupation period the Coalition Provisional Authoritysuspended the death penalty. However, following the subsequent handover ofpower to the interim government of Iraq on June 30, 2004, capital punishmentfor certain offenses was reinstated. Since 2004, the courts have shown that theyare ready and willing to undertake capital punishment on a regular basis.100

Very recently this willingness was demonstrated in the most vivid circumstances,following the execution of Saddam Hussein on December 30, 2006, after hisconviction on November 5, 2006, for committing crimes against humanity inrelation to the death of 148 civilians in the town of Dujail in Iraq, which heinflicted after a failed assassination attempt against him.

For the commander of British forces, issues concerning the transfer of sus-pected insurgents to the Iraqi criminal justice system will arise in different sce-narios. These will include suspects initially apprehended by British forces aswell as individuals retained much longer in British custody who have subse-quently been classified as security internees and held in a semi-permanent orpermanent British internment facility and who, therefore, are entitled to ECHRprotection under the Al Skeini101 principles.

Notwithstanding these transfer issues, there are also complex issues involvedin the extent UK forces can support the Iraqi security forces in Iraqi-led crim-inal investigations and prosecutions. Mission success in Iraq is dependent on

98 For consideration of methods of execution, see Chitat NG v. Canada:Communication No. 469/1991, UN Human Rights Committee November 1993, UN Doc.A/49/40 (1994), Vol. II, at 189.

99 See State v. Makwanyane Constitutional Court of the Republic of South Africa,1995 Case No. CCT/3/94 [1995] 1 lRC 269 at para. 90.

100 Amnesty International reported in April 2007 that Iraq had become the fourthhighest user of the death penalty with over 270 sentences ordered, with 100 having beencarried out since June 2004. Source: GUARDIAN Apr. 20, 2007.



the domestic security forces ultimately taking over full responsibility for secu-rity operations, which includes criminal investigation. However, currently theyare still heavily reliant on multinational forces’ support to mount such opera-tions. Assistance may be connected to the apprehension of suspects or in thepreparation of the legal case against such individuals in the Iraqi criminal jus-tice system. This multinational force support is expressly mandated in SCResolution 1546:102 “arrangements are being put into place to establish a secu-rity partnership . . . for the Government of Iraq and the multinational force toreach agreement on the full range of fundamental security and policy issues,including policy on sensitive offensive operations, and will ensure full part-nership between Iraqi security forces and the multinational force.”103 When con-sidering the extent of assistance that can be provided by British forces withinthe Iraqi criminal justice system, the commander must take into account whetherthe suspect(s) involved have been previously transferred from a permanent orsemi-permanent British detention facility, which may therefore have providedECHR protection under Al Skeini.104 From a British commander’s perspective,the application of law and policy in this area is extremely complex and oftensensitive. Commanders and their lawyers are supported by the availability ofadvice further up the chain of command, though on occasions this can provechallenging to obtain, where decisions are required at short notice.

F. CONCLUSIONS

This chapter has sought to consider the relationship between IHL (in thecontext of SC Resolution 1546105) and HRL (in the context of the ECHR106),both academically and practically, from the perspective of the Al Jedda case.However, in terms of precedent, while extremely significant in the UnitedKingdom, it is a domestic rather than an international case, which remainssub judice as it awaits final judgment in the House of Lords. Nevertheless, itis submitted, certain general conclusions can be drawn from the case even atthis stage.

Firstly, it is clear that in certain circumstances where IHL and HRL obli-gations conflict, IHL will prevail. However, there are caveats. This conclusiononly applies to IHL obligations arising from a SC resolution and only thoseauthorized under Chapter VII. Even then, jus cogens principles will remainexempt. Accordingly, there would appear to be an extremely narrow band ofcircumstances where IHL primacy could arise. Where it does, HRL obligations

102 See supra note 1.103 Id., para. 11.104 See supra note 3.105 See supra note 4.106 See supra note 6.


will not be removed but modified only to the extent they conflict with the actionssanctioned under the SC resolution.

In addition, recent jurisprudence from the European Court of First Instance(CFI) in the cases of Yusuf107 and Kadi108 suggest that for the SC resolution toprevail over HRL obligations, it must include a framework of safeguards to off-set the modification of human rights protections under the terms of the reso-lution. In the context of the Al Jedda case, we can therefore see the significanceof the courts’ scrutiny of the internment review procedures applied by UKforces. This chapter has not considered the extent that HRL can displace IHLobligations falling outside the provisions of Article 103 of the UN Charter,109

though clearly there will be areas where IHL obligations are modified or dis-placed by HRL. Conversely, given the limited circumstances outlined abovewhere IHL will displace HRL, it should be emphasized that this chapter hasnot considered the other side of the coin, whereby HRL may assume superior-ity over IHL, the general circumstances of which may be more prevalent, thoughseparate extensive investigation would clearly be required to consider this. Indetermining which strand of law takes precedence, we arrive at a point famil-iar to lawyers, but often frustrating for their clients, which of course is that theanswer will depend on the facts and circumstances of each individual case.

With regard to the operational decisions, the commander engaged in a PSOwill have to make, it is hoped, by reference to three specific areas of criminalinvestigation, interrogation and the transfer of detainees to the Iraqi criminaljustice system, to have effectively illustrated the difficulties a commander andhis lawyer may face in balancing not only IHL and HRL responsibilities, butalso within competing human rights obligations. Further, we should also remem-ber that the Al Jedda case and the three examples given arise almost two yearsafter the invasion of Iraq, when despite the ongoing insurgency, in militaryterms, the PSO is at a relatively mature stage and where UK forces are intern-ing a relatively small number of suspected insurgents. The problems highlightedare likely to magnify significantly at an earlier stage of the military operation,where standard operating procedures are not so well embedded and larger num-bers of detainees captured. In addition, the operational decisions commandersare required to take at all stages of an operation are now subject to ever moreintense scrutiny through the media and other avenues. In addition, global com-munications enable suspected insurgents like Mr. Al Jedda to instruct UK lawyersfrom their prison cells in Iraq. Such lawyers can then, if necessary, issue pro-ceedings on their behalf in the UK courts only a few hours later. Absolutely no

107 Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council andCommission, Case T-306/01, judgment of the Court of First Instance (Sept. 21, 2005).

108 Yassin Abdullah Kadi v. Council and Commission, Case T-315/01, judgmentof the Court of First Instance (Sept. 21, 2005).



criticism is made of these developments, though it is wondered what observa-tions the Duke of Wellington,110 General Montgomery,111 or even UK militarycommanders involved in the Falklands Conflict with Argentina twenty five yearsago would make of the complexity of issues now faced by a military commanderin the 21st century.

110 Commander of English forces at the Battle of Waterloo on June 19, 1815.111 Commander of British forces in June 1944.

257

CHAPTER 13

WITNESS PROTECTION BY PEACE MISSIONS

Ulf Häussler*

A. INTRODUCTION

Most statutes of international criminal courts and tribunals envisage wit-ness protection measures. Many states have established their own domestic wit-ness protection schemes. But why should international peace support operations(PSOs)1 be mandated with witness protection? Moreover, what kind of wit-nesses should they protect?

These questions arise in particular if a peace mission has been entrustedwith transitional authority, that is, if it is de facto and de jure the strongest actorin its area of operations. PSOs can, accordingly, protect witnesses more effec-tively than, for example, the receiving state’s law enforcement agencies (pro-vided that such agencies exist). Witness protection will, moreover, frequentlyserve the same purpose as the deployment of a peace mission: it will supportthe peace process in the receiving state and, ultimately, contribute to the main-tenance or reestablishment of peace and security. In the present context, sup-porting peace translates as overcoming severe instability or the traumaticaftermath of an armed conflict, together with the (re-)introduction of a stableconstitutional democracy.

Most post-conflict scenarios to which the international community respondswith peace missions are characterized by a legacy of degenerated warfare,namely grave violations of the protections contained in international humani-tarian law (IHL) and international human rights law (IHRL). Considering, first,

* Legal Advisor, German Armed Forces. The author was deployed to SFOR in2004 and to KFOR in 2006. The views expressed herein are exclusively my own andmay deviate from the official policies of the German Ministry of Defense or NATO.

1 There is no uniform terminology. The phrase “Peace Support Operation” andthe acronym “PSO” are used as synonyms of the phrase “peace mission” in ULF

HÄUSSLER, ENSURING AND ENFORCING HUMAN SECURITY (2007).In a similar manner, oftentimes the phrases “troop contributing nation” and “host

state” are preferred to the terminology at use in this chapter, that is, “troop contribut-ing state” and “receiving state.”


that an effective prosecution of perpetrators of war crimes, crimes againsthumanity and genocide may contribute to restoring substantial peace, it is desir-able that peace missions support justice by way of protecting witnesses.

Considering, secondly, that the climate of impunity characteristic of degen-erated warfare might return if PSO personnel mistreat civilians in the area ofoperations (i.e., the local population), it is equally desirable that witnessesthereof be protected. It is accordingly necessary to distinguish between theinternal dimension of witness protection, that is, questions related to the mis-conduct of mission personnel and its external dimension, meaning witness pro-tection measures related to the prosecution of persons charged with war crimes,crimes against humanity or genocide. This chapter will start with a brief dis-cussion of the internal dimension of witness protection and then turn to itsfocus, that is, the external dimension of the problem. In order to analyze theseaspects, the discussion will be structured as follows.

The first section will illustrate the legal framework governing the preven-tion and/or prosecution of misconduct affecting the receiving state’s popula-tion and address its impact on the protection of witnesses of such misconduct.2

The second section will focus on states coming within the jurisdiction of aninternational or semi-international (“hybrid”) court or tribunal, in front of whichwitnesses might be asked to testify, and where a peace mission operates—be itunder the (United Nations) or another international organization—with the pos-sibility of being called to support the adjudication of war crimes, crimes againsthumanity and genocide by way of protecting witnesses. It will illustrate, on thebasis of a hypothetical scenario, the witness protection issues that may arise inpractice and analyze the constituent acts of the relevant adjudication bodies andthe mandates of those PSOs that have operated, or are still doing so, in coun-tries concerned. In doing so, it will establish whether the PSO mandates underreview are supportive of witness protection measures and co-peration with adju-dicating bodies. After that, it will analyze whether the statutes of internationaland/or “hybrid” criminal courts contain provisions governing cooperation withthe PSO in question. The analysis will focus on the states and areas in whichPSO mandates and the jurisdiction of international or “hybrid” criminal courts/tri-bunals overlap both ratione temporis et materiae. On that basis, the range ofoptions for implementing witness protection tasks will be identified and an ulti-mate conclusion will be reached.

2 Questions related to misconduct within an individual peace mission or theinternational presences as a whole will not be dealt with in this chapter. Suffice it to saythat usually international organizations require the states contributing troops or per-sonnel to a peace mission to adhere to certain minimum standards. In addition, theyhave adopted standards binding on their own personnel which they can enforce by dis-ciplinary action, removal from the peace mission, or, should need be, cancellation ofemployment relationships.

Witness Protection by Peace Missions 259

B. THE INTERNAL DIMENSION OF WITNESS PROTECTION

Most PSO personnel act in a disciplined and professional manner; yet somebetray their important responsibilities and tasks and the values they are sup-posed to implement. Misbehavior may occur both by military and other PSOpersonnel vis-à-vis the receiving state’s nationals/inhabitants.3 Misconductaffecting the receiving state’s population is unacceptable because it may jeop-ardize the credibility of the whole PSO at stake and, ultimately, the peace processit shall support. The level of disrepute that may be caused by PSO personnel’sabusive behavior is evidenced by the fact that research was undertaken to assesswhether such behavior might be tried by the International Criminal Court (ICC),which deals only with the most serious crimes.4 Arguably, in particular, sexu-ally abusive patterns of behavior come pretty close to certain war crimes orcrimes against humanity from a value-based point of view.

1. Status and Legal Framework

The basic coordinates of the legal framework governing the prosecution ofPSO personnel are the immunity they enjoy in the receiving state and the rulesand mechanisms for dealing with disciplinary and criminal proceedings openedagainst them. Regardless of whether it was launched by the United Nations, onits behalf, or upon the receiving state’s invitation, the peace missions and itspersonnel will usually enjoy more or less comprehensive immunity from juris-diction and legal process in accordance with the relevant Status of ForcesAgreements (SOFA) or Status of Mission Agreements (SOMA).5 Mission per-sonnel enjoy functional immunity; since the parties to the SOFA or the SOMAusually accept the obligation to respect local law6 and impose related obliga-tions on their contingents. Accordingly, the functional immunity of the mis-sion’s personnel does not give them carte blanche for their activities. Theinternational organization (or, in the case of a coalition, the state) leading apeace mission has to transform this obligation by way of either politically orlegally binding guidance. States contributing troops or other personnel to a

3 For an assessment of these issues from the perspective of accountability ofinternational organizations, see Françoise Hampson’s working paper on the accounta-bility of international personnel taking part in peace support operations, UN Doc.E/CN.4/2006/2, E/CN.4/Sub.2/2005/44, chap. V, available at http://ap.ohchr.org/docu-ments/E/SUBCOM/resolutions/E-CN_4-SUB_2-RES-2005-14.doc.

4 Max du Plessis & Stephen Peté, Who Guards the Guards?—The InternationalCriminal Court and Serious Crimes Committed by Peacekeepers in Africa, ISS MonographSeries No, 121 (2006); available at http://www.iss.co.za.

5 For a detailed assessment, see HÄUSSLER, supra note 1, at ch. 4.1.2–4.2.3.6 Cf. HÄUSSLER, supra note 1, at ch. 4.5.


peace mission will usually declare extraterritorially applicable those parts oftheir domestic legislation that are equivalent to the laws in force in the receiv-ing state. This declaration will be enforced by military orders or administrativedecisions, which will be binding on the PSO personnel. If necessary, supple-mentary orders or decisions will be released. For instance, with regard to NATOpeacekeeping, respect for local law is subject to the guidance contained inthe operation plan of the peacekeeping operation and the orders of the com-manding officers within NATO’s chain of command.7 Such guidance is enforce-able in accordance with the disciplinary and criminal laws of the troopscontributing states.8 Additionally, non-service-related criminal provisions ofthe contributing states will also govern the PSO personnel’s conduct, pro-vided that it is extraterritorially applicable. Moreover, the United Nations fre-quently accepts the possibility of waiving the immunity of a peace mission’snon-military member. A waiver becomes an option particularly when the send-ing state of a (potential) perpetrator is either unwilling or unable to prose-cute his or her case.

2. Preventive Action

Preventing misconduct is an integral part of command responsibility.9

Civilians holding a similar position of authority have an analogous responsi-bility. The doctrine of command responsibility in international law, and equiv-alent statutory legislation in various states, requires both military and civiliansuperiors to take notice of information concerning possible misconduct of theirsubordinates and to obtain any relevant and accessible information if they havereason to believe, on the basis of substantiated allegations, that such miscon-duct has occurred. Both NATO and the United Nations are aware of the keyimportance of command responsibility.10 Moreover, both military and civiliansuperiors must give the orders and/or issue the direction and guidance neces-

7 For a practical example, see the section on “Functional Immunity: KFOR andKosovar Speed Limits” in Ulf Häussler, KFOR: Current Legal Issues, J. INT’L L. OF

PEACE AND ARMED CONFLICT 24 (2007).8 Non-compliance with NATO guidance may be an offense that is subject to

disciplinary or criminal sanctions, depending on its gravity, inter alia, under the provi-sions concerning disobedience.

9 Cf. Ulf Häussler, Command Responsibility in Combined Environments: PuttingCombined Operations Legal Lessons Learned into Perspective, 44 MILITARY L. & L. OF

WAR REV. 143–67 (2005).10 See the need of specific training modules for commanding officers concern-

ing trafficking in human beings in accordance with the NATO guidance for the devel-opment of training and educational programs to support the policy on combating thetrafficking in human beings (reproduced in Annex II), and Section 4 entitled “Duties ofHeads of Departments, Offices and Missions” of the UN Secretary-General’s Bulletin,


sary to ensure an overall level of sustainable discipline among their subordi-nates and to create a climate preventive of misconduct vis-à-vis the receivingstate’s civilian population. Ultimately, the obligation to do so is not only rootedin pertinent SOFAs or SOMAs but also in general principles of IHL, whichrequire those exercising transitional authority on foreign territory to take con-stant care to prevent unjustified adverse effects of such exercise of authorityon the civilian population or individual civilians. What orders, direction andguidance must be given depends on the exigencies of the situation at field level.

Not only military and civilian superiors, but also the contributing stateshave obligations in the field of prevention. Training is of particular impor-tance. For example, NATO identified training needs in respect of combatingtrafficking in human beings11 and, as a matter of policy, it requires its mem-ber states as well as third states contributing personnel to NATO-led peace-keeping operations to adhere to the basic standards of the UN Protocol toPrevent, Suppress and Punish Trafficking in Persons, especially Women andChildren, supplementing the United Nations Convention against TransnationalOrganized Crime and the OSCE Action Plan to Combat Trafficking in HumanBeings. Personnel shall receive pre-deployment (and, if need be, in-deploy-ment) training necessary to maintain a high level of awareness of the charac-teristics of trafficking in human beings, its illegality and the legal consequencesof engaging in or facilitating it. NATO has established similar requirementsfor its own personnel.12

3. Repressive Action

The legal framework for repressive action derives from criminal law, dis-ciplinary law and relevant service law. Since international criminal law will notusually apply to the misconduct of PSO personnel,13 criminal prosecution willdepend on what domestic criminal law applies. This may be the domestic lawof the sending states, of the state of nationality of the deployed personnel (usu-ally, but not always, the sending states) and the law of the receiving state. Theapplicability of these sources is contingent on the immunity provisions con-

Special Measures for Protection from Sexual Exploitation and Sexual Abuse (UN Doc.ST/SGB/2003/13 (Oct. 9, 2003)).

11 Note that witness protection is of key importance in the prosecution of traf-fickers. Cf. Elaine Pearson, The need for effective witness protection in the prosecutionof traffickers: a human rights framework for witness protection, paper presented at theFirst Pan-African Regional Conference on Trafficking in Persons, Abuja, Nigeria, Feb.19–23, 2001 (on file with the author).

12 For details, see the NATO Policy on Trafficking in Human Beings and itsAppendices in Annex II.

13 See HÄUSSLER, supra note 1, at ch. 6.1.3.


tained in the pertinent SOFAs or SOMAs. As mentioned, usually the receivingstate’s law is not directly applicable to the conduct of PSO personnel.

In addition to criminal sanctions, personnel who have misconducted them-selves may face disciplinary action. While international organizations lack crim-inal jurisdiction over their personnel, they have disciplinary authority inaccordance with their service law (staff regulations and rules).14 For instance,the Guidelines for NATO staff on preventing the promotion and facilitation oftrafficking in human beings15 envisage that disciplinary action will be taken ifmisconduct occurs. The United Nations adopted similar rules.16 Moreover, per-sonnel may also face administrative sanctions concerning their service rela-tionships such as repatriation. In cases of serious misconduct, servicerelationships may be terminated in accordance with relevant legislation andadministrative rules and procedures.17

4. Practical Issues

The legal framework for the prevention and repression of misconduct bymission personnel vis-à-vis the local civilian population does not include spe-cific witness protection provisions. Yet, is there a duty of states and interna-

14 The absence of criminal jurisdiction does not, however, immunize the per-sonnel of international organizations from criminal prosecution. Section 5 of the UNSecretary-General’s Bulletin, supra note 10, specifies that: “If, after proper investiga-tion, there is evidence to support allegations of sexual exploitation or sexual abuse, thesecases may, upon consultation with the Office of Legal Affairs, be referred to nationalauthorities for criminal prosecution.” See also the obligation of NATO member statesto ensure criminal prosecution of their nationals serving with NATO in cases of seriousmisconduct in accordance with the Guidelines for NATO staff on preventing the pro-motion and facilitation of trafficking in human beings para. 8 of the (reproduced inAnnex II).

15 Reproduced in Annex II.16 Section 7.2 of the Secretary-General’s Bulletin, Observance by United Nations

forces of International Humanitarian Law (UN Doc. ST/SGB/1999/13 (Aug. 6, 1999))prohibits, inter alia, “rape; enforced prostitution; any form of sexual assault and humil-iation and degrading treatment; enslavement.” The UN Secretary-General’s Bulletin,supra note 10, defines what activities are thus prohibited, and threatens administrativeaction or disciplinary measures, including summary dismissal (Sections 3.2 and 3.3).

17 Recall that Section 3.3 of the UN Secretary-General’s Bulletin, supra note 10,threatens summary dismissal. In Germany, soldiers can be summarily dismissed withinthe initial four years of service if their conduct has sustainable adverse effects on dis-cipline and order, or on the reputation of the armed forces. Serious cases of misconducttowards the local civilian population on deployment will most likely meet these require-ments. Soldiers whose service period has exceeded four years might face charges in thedisciplinary court even if their misconduct does not have the character of a criminaloffense.


tional organizations to afford witness protection in such cases? It seems hardto establish such an obligation on the basis of international law as it stands. Theonly obvious obligation of states is rooted in the principle aut dedere aut iudi-care, which is also reflected in SOFA or SOMA provisions empowering thehead of a peace mission to waive the immunity of such personnel as have crim-inally misconducted themselves and do not face criminal prosecution by thestates of their nationality for reason of unwillingness or inability. Usually, crim-inal prosecution will require repatriation of the offender—which in itselfenhances considerably the protection of such victims, as thei will be principalwitnesses in the case against him or her. If necessary, peacekeeping ForceCommanders and Civilian Mission Heads may request repatriation of offend-ers who are not repatriated by their national commanders or representatives.From a practical perspective, moreover, admission to a witness protection pro-gram will hardly be necessary once an offender has been repatriated.18

C. THE EXTERNAL DIMENSION OF WITNESS PROTECTION

Most contemporary peace missions are deployed to states or regions inwhich the state as an entity, or its institutions have been destabilized and/ordelegitimated by an armed conflict. In such circumstances, usually the wholeaffected civilian population (rather than individual civilians) is victimized. Thedegenerated mode of warfare typical to such armed conflicts leaves uncountedvictims behind; it is even capable of traumatizing entire societies. Peace mis-sions shall help overcome the legacy of armed conflict: their responsibilitiesand tasks are framed so as to ensure the action deemed necessary by the inter-national community to, inter alia, facilitate reconciliation. Witness protectioncan support the achievement of reconciliation through justice. It is, accordingly,beyond doubt that witness protection operations are a legitimate task to beincluded in the mandate or operation plan of a peace mission. Some questionsnevertheless arise: What conditions should govern witness protection by peacemissions? What component of a peace mission should be entrusted with it? Towhat degree should witness protection be granted priority?

18 Should widespread patterns of misconduct exist, the responsibilities of thestate, whose personnel misconduct themselves, towards victims and witnesses might bedifferent, but it is still hard to imagine that they would be obligated to admit the indi-viduals in question to a witness protection program if doing so would require a waiverof, for example, statutory immigration requirements. It is, however, beyond the scopeof this chapter to discuss related matters in detail.


1. Practical Questions of Witness Protection: A Hypothetical Scenario

The following hypothetical situation might illustrate the complexity of theexternal dimension of witness protection. A PSO consisting of a military peace-keeping and a civilian peace-building component operates in “Nowhereland.”Nowhereland’s population consists of two ethnic groups: the Alphas (75 per-cent) and the Bravos (25 percent). The Bravos, led by the Nowhereland UnitedMovement of Bravos (NUMB), have been able to oppress the Alphas for mostof Nowhereland’s history but lost power after the Comprehensive AlphaLiberation Movement (CALM) abandoned its initial non-violent approach,launched the Alpha Liberation Forces (ALF), and resorted to armed struggle.The internal armed conflict caused horrendous casualties but came to a haltwhen the United Nations brokered a ceasefire agreement (CFA). The CFA invitedthe deployment of a UN peace mission and provided for the establishment ofa government of national unity composed of cabinet members of both CALMand NUMB. Provision has, moreover, been made for the prosecution of grossviolations of the protection granted to individuals by IHL and IHRL. To ensureproper implementation, the CFA asked the UN Security Council to refer thesituation during the armed conflict to the ICC, and it required the parties tocooperate closely with it. The CFA also asked the Security Council to author-ize a peacekeeping operation under the lead of an international organizationwith a regional profile and a UN peace-building operation in order to preventor, if need be, repress the resumption of hostilities and facilitate a political set-tlement. While both CALM and NUMB agree with these terms, they firmlydeny any allegations that any of their members or affiliates may be responsi-ble for crimes coming within ICC jurisdiction. Disagreement between CALMand NUMB is not limited to this issue but covers basically all subject mattersof government. The Special Representative of the Secretary-General of theUnited Nations (SRSG) has frequently deemed it necessary to overcome pol-icy deadlocks by way of using his transitional authority. In the light of the factsthat demobilization, disarmament and reintegration of former fighters of bothparties makes slow process only, and that belligerent attitudes prevail, the threatlevel with respect to a resumption of hostilities continues to be high and requiresthe peacekeeping operation to maintain a robust posture. The overall situationin Nowhereland is not stable and rather tense.

At some stage the ICC Field Office in Nowhereland approaches the UNpeace-building operation, requesting support for the questioning of a couple ofwitnesses by a legal officer tasked by the ICC prosecutor. The hearing is sched-uled on the premises of the ICC Field Office. The witnesses named by the ICCResident Representative belong to both ethnic groups. Considering the con-tinuing denial of serious international crimes by both CALM and NUMB, theSRSG intends to ask the peacekeeping operation for such support as securing


transport of the witnesses and protection of the ICC Field Office. The peace-keeping headquarters assess that witnesses might be in lethal danger, shouldtheir names become known, regardless of whether they will actually testify. Theassessment further states that both CALM and NUMB would oppose the ICCprosecutor’s intent to question witnesses of the respective opposite ethnicityand that they might well call demonstrations against that—involving the like-lihood of violent ethnically motivated incidents. Moreover, according to theassessment, the peace mission might suffer a loss of credibility with either eth-nic group, if it will ensure that witnesses of the opposite ethnic group will beallowed to testify, and might even have to face violent “countermeasures.” Atleast some witnesses might be in permanent danger of physical harm or evendeath. Finally, the assessment indicates that former ALF members awaitingdemilitarization might want to unleash violence on Bravo communities, to whichpossible witnesses belong.

As demonstrated by this scenario, witness protection in a post-conflict envi-ronment can be rather different from witness protection in a stable constitu-tional democracy during peacetime. An assessment leads to the conclusion thatthe peacekeeping and peace-building operations in Nowhereland would haveto jointly plan a witness protection operation. In the planning process con-cerning the ICC Resident Representative’s request, the need to advance recon-ciliation through justice would be but one factor influential on decisionmaking.The basic question would be whether the peacekeeping and peace-buildingoperations have sufficient personnel and capabilities to suppress all threats. Ifthe answer were in the affirmative, other issues may be whether the outcomeof the witness hearings should be kept secret (at least until the indictment orthe arrest of the alleged perpetrators implicated by the witnesses) and whetherinstant protection measures must be taken, should it become known to the pub-lic that they have been asked to testify or have actually testified. On a moregeneral scale, the peacekeeping and peace-building operations should also con-sider what long-term commitment of personnel and equipment would have tobe devoted to witness protection operations, if ethnically motivated incidentswere not to cease easily. Similar considerations should be made with regard tothe question of whether the denial of the ICC prosecutor’s request would pos-sibly jeopardize the credibility of both operations vis-à-vis the internationalcommunity, the political and (para-)military actors in Nowhereland, and itscivilian population. The Force Commander and the SRSG would have to con-sider what impact the different options and possible developments would haveon the mission’s success. Finally, in devising an operation plan, they would bothhave to adhere to the legal framework for cooperation with the ICC, includingrelevant provisions of their respective mandates.

The following analysis will demonstrate that, on the basis of existing frame-works, it is possible to implement effective witness protection measures in sup-port of the ICC—even though in some receiving states the local government’sconsent may be required.


2. Geographical Overlaps Between the Jurisdiction of AdjudicationBodies and Peace Missions’ Areas of Operations

Since the early 1990s, several international or semi-international bod-ies have been set up to adjudicate war crimes, crimes against humanityand genocide. Following to the establishment of the International CriminalTribunals for the former Yugoslavia (ICTY)19 and Rwanda (ICTR)20

by the UN Security Council, the international community created the ICC,21 which came into force on July 1, 2002.22 Of the countries under ICC scrutiny, only23 the Democratic Republic of the Congo (DRC)24 and

19 ICTY was established by Security Council Resolution 827 (May 25, 1993).Its jurisdiction covers war crimes, crimes against humanity and genocide committedsince January 1, 1991 in the former Yugoslavia.

20 ICTR was established by Security Council Resolution 955 (Nov. 8, 1994).Based in Arusha (Tanzania), it primarily adjudicates the 1994 genocide in Rwanda andits aftermath; it also deals with war crimes and crimes against humanity committed onRwandan soil during the internal armed conflict. Its jurisdiction ratione temporis cov-ers the period between January 1, 1994, and December 31, 1994.

21 The Statute of the International Criminal Court [hereinafter ICC Statute] wasadopted in 1998. It came into effect on July 1, 2002, after the 60th instrument of rati-fication had been deposited. atrocities committed prior to this date are excluded fromthe ICC’s jurisdiction because its Statute is not retroactive (see Article 11(1) of the ICCStatute).

22 The ICC is charged with adjudicating war crimes, crimes against humanityand genocide; it will also deal with cases of aggression once the elements of that crimewill have been defined.

23 Following referrals by the respective governments, the ICC prosecutor is inves-tigating the situations in, inter alia, Uganda and the Central African Republic. InDecember 2003 the president of Uganda referred the situation concerning the Lord’sResistance Army (LRA) to the ICC. On July 29, 2004, the ICC’s Chief prosecutor hasdetermined that there is a reasonable basis to open an investigation into the situationconcerning northern Uganda. See ICC Docs. ICC-20040129-44-En (Jan. 29, 2004) andICC-OTP-20040729-65-En (July 29, 2004), respectively. The ICC prosecutor also inves-tigates the situation in the Central African Republic in accordance with a letter sent onbehalf of the government of the Central African Republic. See ICC Doc. ICC-OTP-20050107-86-En (Jan. 7, 2005). In the light of the fact that no peace missions operatein the Central African Republic or Uganda, questions concerning witness protection bysuch a mission cannot arise. The situation in these countries will hence not be reviewedin this chapter.

24 On June 23, 2004, the prosecutor of the ICC opened investigations in accor-dance with a request made by the president of the Democratic Republic of the Congoin a letter signed on April 19, 2004, referring to him the situation of crimes within thejurisdiction of the Court allegedly committed anywhere in the territory of the DRC sincethe entry into force of the ICC Statute. See ICC Docs. ICC-OTP-20040419-50-En (Apr.19, 2004) and ICC-OTP-20040623-59-En (June 23, 2004), respectively. The first ICC


Sudan25 are peacekeeping theaters. The establishment of the ICC, however, didnot end the existence of specialised (semi-)international courts or tribunals. Inthe light of the ratione temporis limits of the ICC’s jurisdiction, the need aroseto establish the Special Court for Sierra Leone (SCSL)26 and the ExtraordinaryChambers in Cambodia.27 The efforts to establish a similar tribunal for Timor-Leste have not (yet?) been successful. Moreover, the United Nations and theLebanese Republic are in the process of establishing a special tribunal.28

A variety of peace missions have been deployed to the states and areas nowconsidered by the above mentioned courts and tribunals, either during or in theaftermath of the armed conflicts that provided the scenario for the commissionof the crimes currently under investigation. These missions, however, had sig-nificantly different mandates and responsibilities.

a. The Former Yugoslavia

Peacekeeping in the former Yugoslavia29 started in Croatia with the estab-lishment of UN Protection Force (UNPROFOR) by SC Resolution 743 (February

indictment concerns a case of recruiting child soldiers in the DRC. At the time of writ-ing this chapter, the f irst accused was committed for trial. See ICC Doc. ICC-CPI-20070129-196-En (Jan. 29, 2007) concerning Case 01/04-01/06—Prosecutor v. ThomasLubanga Dyilo.

25 The UN Security Council has referred the situation in the Darfur province ofthe Sudanese Islamic Republic since July 1, 2002, to the ICC (SC Res, 1593 (Mar. 31,2005). The prosecutor has opened investigations accordingly (see ICC Doc. ICC-OTP-0606-104-En (June 6, 2005)). The Sudanese government established a couple of adjudi-cation bodies of its own; the ICC’s office of the prosecutor has nevertheless identifiedcertain cases that would be admissible in accordance with Article 17(1) of the ICC Statute.See the Report of the Prosecutor of the International Criminal Court to the UN SecurityCouncil Pursuant to Security Council Resolution 1593 at 3 et seq. (Mar. 31, 2005).

26 The SCSL was established by the Agreement Between the United Nations andthe Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone(Jan. 16, 2002) [hereinafter SCSL Agreement]. See also SC Res. 1315 (Aug. 14, 2000).

27 Extraordinary Chambers have been established by an Agreement between theUnited Nations and the Royal Government of Cambodia concerning the Prosecutionunder Cambodian Law of Crimes Committed during the Period of DemocraticKampuchea, which was approved by GA Resolution 57/228 B (May 13, 2003) andincluded in its Annex.

28 Following the assassination of Lebanese Prime Minister, Rafiq Hariri, theUnited Nations launched an independent investigation, followed by the conclusion ofan agreement with the Lebanese Republic on the establishment of a special tribunal forLebanon. See SC Res. 1757 (June 1, 2007) and the Report of the Secretary-General onthe Establishment of a Special Tribunal for Lebanon, UN Doc. S/2006/893 (Nov. 15,2006). The tribunal’s jurisdiction ratione materiae differs from that of the ICC.

29 For a limited period, UN, NATO and EU peacekeeping prevented the outbreak


21, 1992). Its mandate was later enlarged to cover Bosnia and Herzegovina(BiH). After the Dayton Agreement30 terminated the armed conflict in BiH,UNPROFOR was first replaced by NATO-led peacekeeping operations (IFOR,SFOR). These were followed, on the one hand, by an operation led by theEuropean Union (EUFOR-Althea), and, on the other hand, a UN peace-build-ing mission headed by the UN Secretary-General’s High Representative (whoserves dual-hatted as EU Special Representative), whose responsibilities weresubsequently handed over to the EU. In Kosovo, SC Resolution 1244 (June 10,1999) established a similar model comprising NATO peacekeeping (KFOR)and UN peace-building (UN Interim Administration in Kosovo (UNMIK)).UNMIK will soon be replaced by an EU peace-building mission.

b. Rwanda

The UN Assistance Mission Rwanda (UNAMIR) was already present inRwanda when the genocide started on April 7, 1994. It continued to operate,although with a different mandate, through March 8, 1996. At present, there isno peace mission operating in Rwanda.

c. The DRC

After the genocide in Rwanda, the defeated government and its support-ers made it to Zaire (as the DRC was then called). Their continuing effortsto change the course of history and restore their power were suff icientlyprovocative to trigger a joint intervention by Rwanda and Uganda that resultedin a change of government in the DRC and the so-called “First African WorldWar.” The UN Security Council launched the Organization Mission in theDRC (MONUC) to support the 1999 ceasefire agreement31 and extended itsmandate after the end of the armed conflict with the 2002 Pretoria Accords.32

of hostilities and the commission of atrocities in Macedonia. An increasing number ofstates recognizes the Republic of Macedonia with its constitutional name rather thanreferring to it as the former Yugoslav Republic of Macedonia (FYROM). Given theabsence of crimes within the jurisdiction of ICTY related to Macedonia, there is no needto discuss the peacekeeping forces deployed to this state.

30 General Framework Agreement for Peace in Bosnia and Herzegovina (UNDoc. S 1995/985, Annex (Dec. 14, 1995)).

31 Initially, the Security Council authorized the deployment of UN military liai-son personnel, together with the necessary staff (SC Res. 1257, para. 8 (Aug. 3, 1999)):After extending this mandate (see SC Res. 1273 (Nov. 5, 1999)), it converted the mis-sion into the MONUC, that is, the Mission de l’Organisation des Nations Unies enRépublique Démocratique du Congo. See SC Res. 1270, para. 4 (Oct. 22, 1999).

32 Peace Agreement Between the Governments of the Republic of Rwanda and


Since the 2006 elections, MONUC has been supporting the consolidation ofpeace and stability.33

In addition, two UN-mandated EU peacekeeping operations were deployedto the DRC. EUFOR ARTEMIS, the Interim Emergency Multinational Forcein Bunia, was deployed to the Ituri region from June 1 to September 1, 2003.34

EUFOR RD Congo supported, inter alia, the electoral process from June 1 toNovember 30, 2006.35

d. Sudan (Darfur)

Two peace missions are currently operating in Sudan. Although they wereoriginally focused on different conflict scenarios within Sudan, efforts to cre-ate synergies between them are now being made. The African Union’s peacemission (AMIS) was always responsible for supporting the peace process inDarfur,36 the western province that went into conflict mode in 2003. By way ofcontrast, the UN Mission in Sudan (UNMIS) was originally launched to sup-port the peace process that terminated the internal armed conflict between north-ern and southern Sudan.37 As things stand now, only the situation in Darfur willbe subject to international criminal adjudication.

the Democratic Republic of the Congo on the Withdrawal of the Rwandan Troops fromthe Territory of the Democratic Republic of the Congo and the Dismantling of the Ex-FAR and Interahamwe Forces in the Democratic Republic of the Congo (DRC) (July2002); Agreement Between the Governments of the Democratic Republic of the Congoand the Republic of Uganda on Withdrawal of Ugandan Troops from the DemocraticRepublic of the Congo, Cooperation and Normalisation of Relations Between the TwoCountries (September 2002). The Agreement is reproduced at UN Doc. S/2002/914,Annex (July 30, 2002).

33 The MONUC mandate was last extended by SC Res. 1742 (Feb. 15, 2007).34 Deployment and redeployment phases are excluded. See SC Res. 1484 (May

30, 2003) and SC Res. 1501 (Aug. 26, 2003); the latter resolution authorized that thoseelements of EUFOR ARTEMIS still present in the DRC after September 1, 2003, mayprovide assistance to MONUC until their redeployment (which was to be executed bySeptember 15, 2003).

35 See SC Res. 1671 (Apr. 25, 2006).36 The African Union has brokered the Darfur Peace Agreement on May 5, 2006,

available at http://www.unmis.org, signed by the government of Sudan and the SudanLiberation Movement/Army (SLM/A) (Minni Minawi). Unfortunately, however, thisagreement is not comprehensive because the Justice and Equality Movement (JEM) mili-tia and the Abdelwahid faction of the SLM/A abstained. Moreover, the Agreement failedto receive support from internally displaced persons and others who had been affectedby the armed conflict. This did not bring the fighting to a close. See Monthly Report ofthe Secretary-General on Darfur, UN Doc. S/2006/1041, para. 2 (Dec. 28, 2006).

37 The conflict ended with the Comprehensive Peace Agreement signed by thegovernment of Sudan and the Sudan People’s Liberation Movement/Army (SPLM/A)(Jan. 9, 2005), available at http://www.unmis.org.


Recently, the UN Security Council approved AMIS’s integration intoUNMIS38 and expanded UNMIS’s mandate to include its deployment to Darfurto support the early and effective implementation of the Darfur PeaceAgreement.39 The government of Sudan, however, does not support this trans-formation. The United Nations is confined to providing limited support to AMIS,to which the government of Sudan has agreed hesitantly.40 As a result, a cli-mate of impunity prevails.41

e. Sierra Leone

Sierra Leone succumbed to open armed conflict when its government wasoverthrown by mutinying military personnel in 1996. The Economic Communityof Western African States (ECOWAS) intervened and brokered a peace settle-ment that, however, failed. The UN Observer Mission in Sierra Leone (UNOM-SIL)42 was launched in July 1998 and replaced by the U.N. Mission in SierraLeone (UNAMSIL), a full-scale peacekeeping operation, on October 22, 1999.43

The United Kingdom sent its own forces in 2000 when the armed conflict wasreignited. UNAMSIL continued to operate until the end of 2005 and was thenreplaced by the UN Integrated Office in Sierra Leone (UNIOSIL).44

f. Cambodia

The United Nations deployed a peace mission to Cambodia in the early1990s (UN Transitional Authority in Cambodia (UNTAC)45) whose closurebecame effective on September 24, 1993 with the promulgation of the

The United Nations launched UNMIS by SC Res. 1590 (Mar. 24, 2005) to supportthe peace process thus initiated. For the transition from the UN Advance Mission inSudan (UNAMIS) to UNMIS, see the Report of the Secretary-General on the Sudan,UN Doc. S/2005/57, paras. 9–10 and 93–94 (Jan. 31, 2005) deal with UNAMIS in Darfur.

38 See SC Res. 1679, para. 4 (May 16, 2006).39 See SC Res. 1706, paras. 8 and 9 (Aug. 31, 2006).40 See Monthly Report of the Secretary-General on Darfur, supra note 36, paras.

40–41.41 See id. at paras. 7 and 66 (noting that “ still the population remains subject to

attacks, villages continue to be destroyed, killings, human rights abuses and brutalityare perpetrated against innocent people and impunity is rampant” (emphasis supplied).

42 See SC Res. 1181 (June 13, 1998).43 See SC Res. 1270 (Oct. 22, 1999).44 See SC Res. 1620 (Aug. 31, 2005).45 UNTAC was established pursuant to SC Res. 745 (Feb. 28, 1992) to ensure

the implementation of the Agreements on a Comprehensive Political Settlement of theCambodia Conflict of October 23, 1991.


Constitution for the Kingdom of Cambodia and the formation of the new gov-ernment.46 Since then, the United Naitons has been present in Cambodia witha couple of specialized agencies but no longer in a peacekeeping or peace-build-ing capacity.

g. Lebanon

The UN Interim Force in Lebanon (UNIFIL) was created in 1978 to con-firm the withdrawal of Israeli forces from southern Lebanon, restore interna-tional peace and security, and assist the Lebanese government in ensuring thereturn of its effective authority in the area.47 Its mandate was enlarged after theclosure of the hostilities on the Israeli-Lebanese border which had broken outon July 12, 2006.

D. WITNESS PROTECTION AND INTERNATIONAL MANDATES

As illustrated, the international community sent different peace missionsto respond to conflicts that are now being, or are going to be, adjudicated byinternational or “hybrid” criminal courts or tribunals. The international com-munity, however, did not purposefully integrate peace missions and the adju-dication of atrocities in a uniform approach. Nevertheless, these separateapproaches have common ground because they both serve the maintenance orrestoration of international peace and security.48 While no peace mission waslaunched with the primary purpose to support the efforts to judicially addressatrocities committed during armed conflict, most of them have the authority toprovide such support, either on their own initiative or upon request. The degreeand modus operandi of such support are contingent on relevant internationalmandates—namely the question of whether the mandate defines the peace mis-sion’s role as proactive or supporting—and the arrangements agreed betweenthe peace mission (that is, its lead organization), the adjudicating body (or itsparent organization) and, as the case may be, the state where the armed con-flict occurred.

46 See the fifth preambular paragraph of SC Res. 880 (Nov. 4, 1993).47 See SC Res. 425 (Mar. 19, 1978) and SC Res. 426 (Mar. 19, 1978).48 A successful peace mission and/or successful adjudication of genocide, war

crimes, crimes against humanity and gross violations of human rights might have fur-ther positive effects that are desired, and serve additional purposes defined, by the inter-national community. For the purposes of this chapter, however, such effects and purposesare of minor importance.


1. Peace Missions in the Former Yugoslavia

The international community made various efforts to prevent the outbreakof hostilities in the former Yugoslavia. It also tried to broker ceasefires andpeace settlements. In support of these efforts it launched multiple peace mis-sions, in particular UNPROFOR, NATO-led IFOR and SFOR, and EU-ledEUFOR ALTHEA; it also supported the presence of a UN High Representative.

a. Croatia and BiH: The UN Protection Force (UNPROFOR)

The most obvious link, ratione temporis et materiae, exists between thesituations that were responded to by launching UNPROFOR49 and establishingthe ICTY50 However, subsequent resolutions concerning UNPROFOR and allother missions deployed to the Balkans on the one hand, and the ICTY on theother hand, have minor overlaps. In particular, none of NATO’s peacekeepingforces was tasked with proactively supporting the ICTY.51 UNPROFOR startedas an interim arrangement to facilitate the negotiation of an overall settlementof the crisis in the former Yugoslavia.52 When that failed, its geographical scopeand responsibility were increasingly enlarged.53 Chapter VII was invoked withregard to specified tasks.54 Witness protection or similar efforts in favor of theICTY were, however, not on UNPROFOR’s defined task-sheet.55

49 UNPROFOR was deployed to Croatia, Bosnia and Herzegovina, the FederalRepublic of Yugoslavia (Serbia and Montenegro), and Macedonia.

50 The first preambular paragraph of SC Res. 827 (May 25, 1993)—by whichICTY was established—does even contain reference to “resolution 713 . . . and all sub-sequent relevant resolutions,” that is, the resolutions that mandated UNPROFOR and,moreover, identified and condemned violations of international humanitarian law.

51 The relevant provisions of the IFOR/SFOR/EUFOR ALTHEA and KFOR man-dates will be discussed shortly.

52 SC Res. 743 (Feb. 21, 1992).53 SC Resolutions 762 (June 30, 1992), 769 (Aug. 7, 1992) and 779 (Oct. 6,

1992) added to the mandate within Croatia. Later on, SC Resolutions 758 (June 8, 1992),761 (June 29, 1992), 776 (Sept. 14, 1992), 786 (Nov. 10, 1992), 824 (May 6, 1993) and836 (June 4, 1993) brought Bosnia and Herzegovina within the scope of UNPROFOR’smandate. The deployment of the force to Macedonia was governed by SC Resolutions795 (Dec. 11, 1992) and 842 (June 18, 1993).

54 SC Res. 836 (June 4, 1993).55 The Security Council has put the following items on UNPROFOR’s task-list

individually, and in each case reacting to an urgent need rooted in the changes of thesituation at field level:

• measures related to ensuring the effective demilitarization of certain areas;• the exercise of monitoring functions in specified areas;


In any event, considering the fact that the ICTY’s f irst indictment wasissued on November 11, 1994,56 there was only about a year within which coop-eration between UNPROFOR and ICTY may have taken place.

b. BiH: IFOR/SFOR/EUFOR ALTHEA

There are several peace missions that used, or continue, to operate underthe Dayton Agreement.57 In accordance with Annex 1A to the DaytonAgreement,58 NATO launched a peacekeeping operation on behalf of the UnitedNations. An implementation force (IFOR) and a stabilization force (SFOR)served in BiH under NATO command and control on that basis. By the end of2004, NATO handed over to the European Union (EUFOR ALTHEA) the respon-sibility for peacekeeping and maintained headquarters in Sarajevo with the main(though not sole) task to deal with defense sector reform issues, with the con-sent of the government of BiH.

The role of these peace missions with respect to the prosecution of warcrimes is limited. The principal tasks, defined by Article VI(2) of Annex 1A,do not mention war crimes prosecution. Rather, both the Dayton Agreementand its Annex 1A charge the Republic of Croatia, the (then) Federal Republicof Yugoslavia, and the Entities within BiH—the ex-belligerents—with primaryresponsibility for cooperation with the ICTY. Article XI of the Dayton Agreementstipulates that:

The Parties shall cooperate fully with all entities involved in imple-mentation of this peace settlement, as described in the Annexes to thisAgreement, or which are otherwise authorized by the United NationsSecurity Council, pursuant to the obligation of all Parties to cooper-ate in the investigation and prosecution of war crimes and other vio-lations of international humanitarian law.

• controlling the entry of civilians into defined UN Protected Areas, andperforming immigration and customs functions where their borders andcoincided with international borders;

• ensuring the security and functioning of Sarajevo International Airport;• ensuring the delivery of humanitarian assistance first to Sarajevo and its

environs, and later throughout Bosnia and Herzegovina; and• protecting convoys of released civilian detainees on request of the

International Committee of the Red Cross.56 The indictee was Dragan Nikolic, a Bosnian Serb who allegedly was the com-

mander of a small prison camp in eastern Bosnia.57 General Framework Agreement for Peace in Bosnia and Herzegovina, UN

Doc. S/1995/985, Annex.58 Annex 1A contains the Agreement on the Military Aspects of the Peace

Settlement.


Annex 1A translates this general obligation to cooperate into a particular obli-gation pertaining to the cessation to hostilities. Under Article II(4) of Annex1A—

The Parties shall cooperate fully with any international personnelincluding investigators, advisors, monitors, observers, or other per-sonnel in Bosnia and Herzegovina pursuant to the General FrameworkAgreement, including facilitating free and unimpeded access and move-ment and by providing such status as is necessary for the effective con-duct of their tasks.

It may be suggested that the notion of “international investigators” comprisesICTY personnel responsible for the investigation and prosecution of war crimesand other violations of IHL. Moreover, Article II(4) of Annex 1A defines thenotion of cooperation in a purpose-driven manner, so that cooperation is sup-posed to enhance the effective conduct of the tasks assigned to (inter alia) ICTYinvestigators. On that basis, witness protection on request of an ICTY investi-gator would certainly be within the ambit of the notion of cooperation. As aresult, Croatia, Serbia, and the Entities within BiH, all of which are bound bythe Dayton Agreement and Annex 1A,59 are under an obligation to cooperatewith the ICTY in witness protection matters related to cases covered by theDayton Agreement, that is, cases rooted in the armed conflict in BiH.

By way of contrast, the peacekeeping force established under the DaytonAgreement has a supporting role with respect to the prosecution of war crimes.As a result, the principal task defined in Article VI(2)(a) of Annex 1A, that is,“to monitor and help ensure compliance” with this Annex, does not empowerthe peacekeeping force to take measures aimed to enhance witness protectionof its own right: the notion of compliance pertains to action of the ex-belligerentsby necessity.60 However, both monitoring the conduct of the ex-belligerents andhelping them (on request) is mandated by Article VI(2)(a) of Annex 1A. Rather,the supporting task defined in Article VI(3)(a) of Annex 1A, namely that thepeacekeeping force may “help create secure conditions for the conduct by oth-ers of other tasks associated with the peace settlement” covers measures up to

59 The (then) Republic of Bosnia and Herzegovina, the Republic of Croatia, andthe (then) Federal Republic of Yugoslavia are parties to the Dayton Agreement. The(then) Republic of Bosnia and Herzegovina, and the Entities, that is, the Federation ofBosnia and Herzegovina and the Republika Srpska, are parties to Annex 1A, which wasendorsed by the Republic of Croatia, and the (then) Federal Republic of Yugoslavia.Considering the capacity of the Republic of Croatia, and the (then) Federal Republic ofYugoslavia as parties to the Dayton Agreement, it is argued that they are also obligatedto contribute to the implementation of Annex 1A which they have endorsed.

60 In addition, it is hard to imagine what enforcement action would be capableof compelling cooperation with ICTY as opposed to, for example, such acts of compli-ance like a repositioning of forces.


and including the use of force to get involved in, for example, witness protec-tion. Arguably, the notion of “others” comprises ICTY investigators, and thenotion of “tasks associated with the peace settlement” comprises “the investi-gation and prosecution of war crimes and other violations of internationalhumanitarian law,” Again, “helping” implies a request by those receiving suchhelp. While, in the light of the foregoing, the peacekeeping force at field leveldoes not have the authority to take the initiative with respect to cooperationwith the ICTY in general and witness protection in particular, its lead organi-zation does. In accordance with Article VI(4) of Annex 1A “further directivesfrom the NAC [North Atlantic Council] may establish additional duties andresponsibilities for the IFOR in implementing this Annex”—which could coverall aspects of cooperation with the ICTY. Note that compliance is enforceable61

and that enforcement action can also be taken in the course of fulfilling sup-porting tasks or tasks defined by NAC.62 Consequently, both the letter and thespirit of the Dayton Agreement and Annex 1A permit the interpretation thatwitness protection can indeed be a task so assigned to the peacekeeping forceoperating in BiH.

c. BiH: The High Representative

The mandate of the High Representative of the UN Secretary-General inBiH derives from Annex 10 to the Dayton Agreement as endorsed by relevantSC resolutions.63 In accordance with Article I(2) of Annex 10, the HighRepresentative shall “facilitate the Parties’ own efforts and [ . . . ] mobilize and,as appropriate, coordinate the activities of the organizations and agenciesinvolved in the civilian aspects of the peace settlement.” In fulfilling this respon-sibility, the High Representative receives political support by the PeaceImplementation Council (PIC), an informal group of states and internationalorganizations, whose conclusions indicate the international community’s approachto the priorities set by the Dayton Agreement and its Annexes. The PIC has not

61 Article I(3) of Annex 1A specifies that “both [Entities] shall be equally sub-ject to such enforcement action by the IFOR as may be necessary to ensure implemen-tation of this Annex.”—Note that the purposes of the obligations of the parties to Annex1A comprise to “facilitate the achievement of all political arrangements agreed to in theGeneral Framework Agreement”(Article I(1)(c) of Annex 1A), that is, are inclusive ofthe political arrangement governing cooperation in respect of “the investigation andprosecution of war crimes and other violations of international humanitarian law.”

62 Article VI(5) of Annex 1A reserves the Force Commander’s right “to do allthat [he] judges necessary and proper, including the use of military force . . . to carryout the responsibilities listed above in paragraphs 2, 3 and 4.”

63 Following the initial endorsement by paragraph 26 of SC Resolution 1031(Dec. 15, 1995), the Security Council has regularly renewed this mandate.


adopted a specif ic policy dedicated to cooperation between the HighRepresentative and the ICTY.64 Rather, as far as relevant for the present pur-poses, the PIC laid focus on ensuring that the parties to the Dayton Agreementarrest war crimes’ suspects in accordance with existing warrants and transferthem to The Hague.65 Moreover, the PIC expected the High Representative toaddress the actions taken on his own initiative to the parties to the DaytonAgreement, including their agents.66

In doing so, the PIC has given the High Representative’s mandate a restric-tive interpretation. In particular, the international community has not createdan institutional apparatus for the cooperation between the High Representativeand the ICTY. As a result, the High Representative was confined to using sanc-tions against non-compliant actors if he was not able to “mobilise” them asenvisaged by the Dayton Agreement. This approach can be said to reflect thefact that, properly speaking, the ICTY is not an organization or an agency“involved in the civilian aspects of the peace settlement” because its judicialauthority is not dealt with in any of the civilian Annexes to the Dayton

64 For instance, the PIC meeting held in Florence on June 13, 1996 concerningImplementation of the Human Rights Provisions of the Peace Agreement(http://www.ohr.int/pic/default.asp?content_id=5170#II-C) is tacit on the issue of coop-eration between the High Representative and ICTY. The Chairman’s Conclusions of thatmeeting (http://www.ohr.int/pic/default.asp?content_id=5169) do only address the com-pliance of the parties to the Dayton Agreement with their obligations vis-à-vis ICTY(paras. 37–39).

65 The conclusions of the PIC held in London on December 5, 1996 (see AnnexIII.1) and the PIC held in Bonn on December 10, 1997 (see Annex III.2) provide a goodexample for this approach. In a similar manner, the PIC has stressed the obligations ofthe parties to the Dayton Agreement vis-à-vis ICTY in paragraph 77 of the LuxembourgDeclaration adopted on June 9, 1988, paragraph 7 of the Madrid Declaration datedDecember 16, 1988, and the Brussels Declaration dated May 24, 2000.

Note that Amnesty International seemed to be in agreement with this approach. Inits Memorandum to the High Representative of Bosnia-Herzegovina, AI index EUR63/009/2002, it stressed the responsibility of Entity police forces to co-operate in, interalia, witness protection issue (at 7).

66 The reference to SC Resolution 1034 (Dec. 21, 1995) in paragraph 4(a) of theBonn conclusions demonstrates that in the PIC’s view the parties’ obligation to coop-erate with ICTY—which was reinforced by the said resolution—is paramount, whilethe High Representative’s related responsibility comprises support or, if need be, eitherinitiation of such co-operation by the parties or action against such individuals as act ina non-compliant manner.

Note also that in its Sintra Delaration adopted on May 30, 1997, the PIC SteeringBoard has canvassed the denial of visas to persons cooperating with, or condoning therole of, indicted persons (para. 35), and denial of new economic assistance to thosemunicipalities that continue to tolerate indicted persons working in a public capacity(para. 36). These sanctions form part of an overall approach which stresses the obliga-tions of the parties to the Dayton Agreement vis-à-vis the ICTY (paras. 32–38).


Agreement. Considering, at the same time, that the PIC has more than onceconsidered as a threat to the peace process the presence in the area of personsindicted for war crimes (PIFWCs) by the ICTY,67 it is not unlikely that the PICchose to regard related actions as a responsibility falling under the mandate ofIFOR/SFOR/EUFOR ALTHEA.

d. Kosovo: KFOR

As far as relevant for the present purposes, in accordance with its mandate,KFOR is responsible for:

(c) Establishing a secure environment in which refugees and displacedpersons can return home in safety, the international civil presence canoperate, a transitional administration can be established, and human-itarian aid can be delivered;(d) Ensuring public safety and order until the international civil pres-ence can take responsibility for this task;(f) Supporting, as appropriate, and coordinating closely with the workof the international civil presence.68

Protection of witnesses willing to testify in ICTY cases can serve the purposesof all the responsibilities quoted. KFOR may decide to protect witnesses becauseit may use all necessary means to fulfill its mandate in accordance with para-graph 8 of SC Resolution 1244 (June 10, 1999) and to implement NATO’s deci-sions. Witness protection might be “necessary” in that sense if it were to beconsidered the only, or most effective, means to address dangers to the peaceprocess in Kosovo, including the aim to achieve reconciliation through justice,arising from such incidents as might adversely affect ICTY witnesses.

As highlighted by recent events, the situation in Kosovo is still volatile.Potentially ethnically motivated incidents, part of daily life in Kosovo since theearly 1990s, will most likely continue to occur at least until Kosovo’s status

67 See, for example, the Bonn Conclusions’ prognosis that “no normalisation,no reconciliation” will be achieved as long as PIFWCs continue to be at large. As indi-cated by the PIC’s additional assessment that “the rule of law in Bosnia and Herzegovinawill remain seriously impaired” for the same reason, the absence of normalisation andreconciliation must be regarded as representing the continuing absence of substantialpeace.

68 See SC Res. 1244, para. 9 (June 10, 1999). This resolution was adopted afteragreement had been reached on the Military Technical Agreement (MTA) between theinternational security force (KFOR) and the governments of the Federal Republic ofYugoslavia and the Republic of Serbia of June 9, 1999. The MTA-Kosovo contains theconsent of the (then) Federal Republic of Yugoslavia and the Republic of Serbia to thedeployment of KFOR and its authority vis-à-vis the Yugoslavian and Serbian militaryand police.


will be settled and duly implemented. Testimony in front of the ICTY can eas-ily give rise to further potentially ethnically motivated incidents. If it is relatedto war crimes and crimes against humanity committed during the period of eth-nic strife, it will usually disclose rather sensitive information. It may, more-over, address the behavior of such alleged perpetrators whose continuingpopularity is a given fact. In the light of these factors, KFOR may consider con-tribution to the protection of the witnesses concerned, if it will assess that poten-tially ethnically motivated incidents affecting ICTY witnesses might endangerthe secure environment, or disturb public safety and order so severely that theinternational civil presence cannot deal with it. In addition, KFOR may con-sider action if the international civil presence will request support by way ofperforming witness protection measures. It follows that KFOR has authority toprotect witnesses both on its own initiative or in support of UNMIK, if neces-sary to fulfil its responsibilities.

e. Kosovo: UNMIK

UNMIK, in turn, may ask for KFOR support but is not confined to thisoption. Its responsibilities comprise, as far as relevant here:

(b) Performing basic civilian administrative functions where and aslong as required; . . .(k) Assuring the safe and unimpeded return of all refugees and dis-placed persons to their homes in Kosovo.69

Running a witness protection program, should there be need, would hardlybe beyond the ambit of “[p]erforming basic civilian administrative functions”;it would also be capable of assuring the return of refugees and displaced per-sons, many of whom have witnessed war crimes or crimes against humanity, totheir homes. In any event, UNMIK’s legislative powers70 enable it to introducestatutory witness protection programs in Kosovo. As a result, UNMIK may bothprotect witnesses or ask for related KFOR support, if necessary to fulfill itsresponsibilities.

69 See SC Res. 1244, para. 11 (June 10, 1999).70 Note that the UN Secretary-General has interpreted SC Resolutino 1244 (June

10, 1999) so that the Security Council, by virtue of this resolution, “has vested in theinterim civil administration authority over the territory and people of Kosovo. All leg-islative and executive powers, including administration of the judiciary, will, therefore,be vested in UNMIK.” See para. Secretary-General’s Report on the United Nations InterimAdministration Mission in Kosovo, UN Doc. S/1999/77, para. 35 (July 12, 1999) (empha-sis added).


2. Peace Missions in the DRC

Both the United Nations and the EU have been involved in peacekeepingin the Democratic Republic of the Congo. The following passages will analyzethe mandates of MONUC and EUFOR RD Congo.

a. MONUC

MONUC’s current mandate derives from SC Resolution 1565 (2004). Thiscomes closest to expressly providing for witness protection measures to be takenby a peace mission. MONUC has the mandate, inter alia, to—unilaterally—“ensure the protection of civilians, including humanitarian personnel, underimminent threat of physical violence.”71 Moreover, it is also mandated, in sup-port of the Government of National Unity and Transition:

(b) to contribute to the improvement of the security conditions in whichhumanitarian assistance is provided, and assist in the voluntary returnof refugees and internally displaced persons, . . . (g) to assist in the promotion and protection of human rights, with par-ticular attention to women, children and vulnerable persons, investi-gate human rights violations to put an end to impunity, and continueto cooperate with efforts to ensure that those responsible for seriousviolations of human rights and international humanitarian law arebrought to justice, while working closely with the relevant agencies of the United Nations.72

Except for the responsibility to assist in the promotion and protection ofhuman rights and to cooperate with efforts to ensure that those responsiblefor serious violations of IHL and IHRL are brought to justice, MONUC hasthe Security Council’s authorization to use all necessary means, within itscapacity and in the areas where its armed units are deployed, to carry out thedefined tasks.73

71 See SC Res. 1565, para. 4(b) (Oct. 1, 2004).72 See id., para. 5.73 See id., para. 6; the Security Council has authorised MONUC: “to use all nec-

essary means, within its capacity and in the areas where its armed units are deployed,to carry out the tasks listed in paragraph 4, subparagraphs (a) to (g) above, and in para-graph 5, subparagraphs (a), (b), (c), (e) and (f) above.”

Note that the Security Council has emphasized the existence of this authorizationin paragraph 7 of SC Resolution 1592 (Mar. 30, 2005). In the same paragraph, it hasencouraged “MONUC to continue to make full use of its mandate . . . in the eastern partof the Democratic Republic of the Congo,” and it has amplified this mandate, stressing


These provisions cover witnesses of war crimes and crimes against human-ity in various capacities. If, for example, for reason of their willingness to tes-tify, they are under imminent threat of physical violence, MONUC may ensuretheir protection with all necessary means,74 that is, up to and including the useof deadly force against those threatening them. Moreover, possible witnesseswho have fled their homes and have become refugees or internally displacedpersons (IDPs) may receive similar assistance concerning their voluntary return,75

provided that the government requested MONUC’s support for that purpose.Finally, MONUC may support efforts aimed at the criminal prosecution of per-petrators of war crimes and crimes against humanity, even though it may notuse all necessary means to this end.76 There can hardly be doubt that “effortsto ensure that [perpetrators] are brought to justice” comprise such measuresand programs as necessary to protect evidence, including testimony, that is,ultimately the witnesses prepared to give such testimony. It follows that MONUCmay either support a witness protection scheme established or designated bythe government of the DRC, establish such scheme of its own if the govern-ment so requests or support a scheme established by “relevant agencies of theUnited Nations.” As long as the DRC government designates an ICC witnessprotection scheme requiring MONUC’s support, MONUC may cooperate withthe ICC regardless of the fact that it is not a UN agency.77 In conclusion, whileMONUC’s mandate covers support of a witness protection scheme on requestof the DRC government, this request will only enable MONUC to use all nec-essary means to protect witnesses, regardless of whether or not they participatein such scheme, from imminent threats of physical violence.

b. EU Peacekeeping

Although the mandate of EUFOR RD Congo78 is silent on the issue of sup-port to the ICC, this EU peacekeeping operation would have been empoweredto provide witness protection—though not to establish a witness protection

that “in accordance with its mandate, MONUC may use cordon and search tactics toprevent attacks on civilians and disrupt the military capability of illegal armed groupsthat continue to use violence in those areas.”

74 See SC Res. 1565, paras. 4(b) and 6 (Oct. 1, 2004).75 See id., paras. 5(b) and 6.76 See id., para. 5(g).77 Note that SC Resolution 1565 was adopted on October 1, 2004, that is, after

the opening of the investigation concerning the situation in the DRCby the ICC prose-cutor on June 23, 2004.

78 In the light of the fact that the situation in the DRC was referred to the ICCno earlier than April 19, 2004, cooperation between the ICC and EUFOR ARTEMISwas never an issue anyway. Note, however, that EUFOR ARTEMIS would have been ina position to provide limited protection to civilian witnesses of war crimes or crimes


scheme—had need been. In accordance with an agreement to be reached betweenthe EU and the United Nations, the mission was tasked, inter alia:

(a) to support MONUC to stabilize a situation, in case MONUC facesserious difficulties in fulfilling its mandate within its existing capa-bilities, . . .(b) to contribute to the protection of civilians under imminent threatof physical violence in the areas of its deployment, and without prej-udice to the responsibility of the Government of the DemocraticRepublic of the Congo, . . .(e) to execute operations of limited character in order to extract indi-viduals in danger.79

These tasks would have enabled EUFOR RD Congo to support any MONUCmeasure aimed at protecting witnesses from imminent threats of physical vio-lence or to provide such protection—extraction of witnesses in danger—on itsown behalf, should MONUC have been unable to do so.

3. Peacekeeping in Sudan (Darfur)

In Darfur, both the United Nations and the African Union (AU) are involvedin peacekeeping. Considering the fact that both have agreed, in principle, tomerge these missions—should the Sudanese government consent thereto—thefollowing analysis will focus on UNMIS’s mandate and demonstrate that thismission has rather limited authority with regard to witness protection.80

Following the conclusion of the Darfur Peace Agreement on May 5, 2006,and the N’djamena Agreement on Humanitarian Ceasefire on the Conflict inDarfur, the UN Security Council has included a provision concerning Darfurin the UNMIS mandate,81 namely the tasks “[t]o maintain, in particular, a pres-ence in key areas, such as buffer zones established pursuant to the Darfur PeaceAgreement, areas inside internally displaced persons camps and demilitarizedzones around and inside internally displaced persons camps, in order to pro-mote the re-establishment of confidence, to discourage violence, in particular

against humanity if doing so had served the implementation of its mandate. Paragraph1 of SC Resolution 1484 (May 30, 2003) tasked EUFOR ARTEMIS “to contribute tothe stabilization of the security conditions and the improvement of the humanitarian sit-uation in Bunia, to ensure the protection of the airport, the internally displaced personsin the camps in Bunia and, if the situation requires it, to contribute to the safety of thecivilian population, United Nations personnel and the humanitarian presence in the townin close co-ordination with MONUC.”

79 See SC Res. 1671, para. 8 (Apr. 25, 2006).80 AMIS is basically confined to fulfilling military observing and monitoring

tasks.81 See SC Res. 1706, paras. 8 and 9 (Aug. 31, 2006).


by deterring use of force”82 and “[t]o assist the parties to the Darfur PeaceAgreement in promoting the rule of law, including an independent judiciary,and the protection of human rights of all people of the Sudan through a com-prehensive and coordinated strategy with the aim of combating impunity andcontributing to long-term peace and stability and to assist the parties to theDarfur Peace Agreement to develop and consolidate the national legal frame-work.”83 Moreover, it includes: “[t]o contribute towards international efforts toprotect, promote and monitor human rights in Darfur, as well as to coordinateinternational efforts towards the protection of civilians with particular atten-tion to vulnerable groups including internally displaced persons, returningrefugees, and women and children.”84 Additionally, UNMIS may exercise tran-sitional authority, that is, it “is authorized to use all necessary means, in theareas of deployment of its forces and as it deems within its capabilities:”

— to protect United Nations personnel, facilities, installations and equip-ment, to ensure the security and freedom of movement of UnitedNations personnel, . . .85 to protect civilians under threat of physicalviolence,

— in order to support early and effective implementation of the DarfurPeace Agreement, to prevent attacks and threats against civilians.86

It is obvious that, unlike MONUC’s mandate, UNMIS’s mandate does not coverinstitutionalized support of witness protection schemes. Like the MONUC man-date, however, it enables UNMIS to use all necessary means to protect wit-nesses in their capacity as individual civilians from imminent threats of physicalviolence, regardless of whether they participate in such scheme. Moreover,UNMIS may, in accordance with its mandate, take a variety of measures aimedat protecting the civilian population, with a particular focus on vulnerable groupsthereof, whose side effects will be supportive of the physical security of wit-nesses of war crimes, crimes against humanity and genocidal acts in Darfur.

82 See id., para. 8(d).83 See id., para. 8(k).84 See id., para. 9(b).85 In the light of the usage of the phrase “without prejudice to the responsibil-

ity of the Government of the Democratic Republic of the Congo” as an apposition inparagraph 8 of SC Resolution 1671 (Apr. 25, 2006) (supra text accompanying note 79),it is suggested that the phrase “without prejudice to the responsibility of the Governmentof the Sudan” is likewise an apposition, namely of the justification for the use of force“to prevent disruption of the implementation of the Darfur Peace Agreement by armedgroups.”

86 See SC Res. 1706, para. 12(a) (Aug. 31, 2006).


4. Peacekeeping in Lebanon

The UNIFIL mandate focuses on the support of the Lebanese government.87

Moreover, UNIFIL’s responsibilities do not cover witness protection and theclause of the mandate authorizing the mission “to take all necessary action inareas of deployment of its forces and as it deems within its capabilities, . . .without prejudice to the responsibility of the Government of Lebanon, to pro-tect civilians under imminent threat of physical violence”88 is subject to a clearand non-ambiguous proviso in favor of the sovereignty of the Lebanese Republic.It follows that UNIFIL does not have sufficient authority to launch witness pro-tection operations on its own initiative.

E. WHAT COOPERATION MAY INTERNATIONAL OR “HYBRID” CRIMINAL COURTS AND TRIBUNALS SEEK WITH PEACE MISSIONS?

The constituent acts of the international or “hybrid” criminal courts andtribunals do not contain express provisions for cooperation with the peace mis-sions deployed to the areas where investigations and/or prosecutions are tak-ing place.

87 UNIFIL’s current mandate comprises, in accordance with paragraph 11 of SCResolution 1701 (Aug. 31, 2006), the following responsibilities in addition to thosedefined by SC Resolutions 425 and 426 (Mar. 19, 1978):

• to monitor the cessation of hostilities,• to accompany and support the Lebanese armed forces as they deploy

throughout the South, including along the Blue Line, as Israel withdrawsits armed forces from Lebanon, and to co-ordinate related activities withthe Lebanese and Israeli governments,

• to extend its assistance to help ensure humanitarian access to civilian pop-ulations and the voluntary and safe return of displaced persons,

• to assist the Lebanese armed forces in taking steps towards the estab-lishment between the Blue Line and the Litani river of an area free of anyarmed personnel, assets and weapons other than those of the Lebanesegovernment and of UNIFIL,

• to assist the Lebanese Government, on request, in securing its bordersand other entry points to prevent the entry in Lebanon without its con-sent of arms or related materiel.

88 See SC Res. 1701, para. 12 (Aug. 31, 2006). The additional authorizations fortaking all necessary action—that is, not the use of all necessary means—contained inthis provision, namely “to ensure that its area of operations is not utilized for hostileactivities of any kind, to resist attempts by forceful means to prevent it from discharg-ing its duties under the mandate of the Security Council, and to protect United Nationspersonnel, facilities, installations and equipment, ensure the security and freedom of


1. ICTY and ICTR89

ICTY is a subsidiary organ of the United Nations. Its capacity to act derivesfrom paragraph 4 of SC Resolution 827 (May 25, 1993), according to which:

all States shall cooperate fully with the International Tribunal and itsorgans in accordance with the present resolution and the Statute of theInternational Tribunal and that consequently all States shall take anymeasures necessary under their domestic law to implement the provi-sions of the present resolution and the Statute, including the obliga-tion of States to comply with requests for assistance and orders issuedby a Trial Chamber under Article 29 of the Statute.

Under Article 29(1) of the Statute: “States shall co-operate with the InternationalTribunal in the investigation and prosecution of persons accused of commit-ting serious violations of international humanitarian law.” Considering that theICTY prosecutor has the primary responsibility to carry out investigations90

and that witness protection is in the interest of justice, it is submitted that theICTY prosecutor may request all UN member states to take witness protectionmeasures deemed necessary. Arguably, such requests could even call upon mem-ber states of an international organization in lead of a peacekeeping operationto task this operation with witness protection in accordance with the relevantmandate. In addition, the United Nations, or with its approval, the ICTY, mayenter into agreements with the lead organizations of peacekeeping operationsfor the same purpose. As will be discussed shortly, this authority of the ICTYprosecutor was duly implemented in the ICTY Rules of Procedure and Evidence.

The ICTY Statute does not define the purposes of witness protection; itenvisages, inter alia, the conduct of in camera proceedings and the protectionof the victims’ identities.91 Accordingly, the ICTY judges—who are chargedwith addressing protection of victims and witnesses in the rules of procedureand evidence92—enjoy a wide margin of appreciation. The ICTY Rules ofProcedure and Evidence93 charge the Victims and Witnesses Section of the

movement of United Nations personnel, humanitarian workers do not cover witness pro-tection measures.”

89 The constituent acts of ICTY and ICTR are basically identical. Consideringthat no peacekeeping operation is currently present in Rwanda, the following passagewill focus on ICTY.

90 ICTY Statute art. 16(1).91 Article 22 of the ICTY Statute.92 Article 15 of the ICTY Statute.93 At the time of writing, the Rules as amended through 13 September 2006 were

in force.


Registry, whom the judges may consult for that purpose,94 with recommendingprotective measures for victims and witnesses.95 In particular, judges may orderthe non-disclosure of the identity of a witness who may be in danger or at risk,until such person is brought under the protection of the tribunal.96 In orderingwitness protection measures, the tribunal must balance the rights of witnesses(in particular, privacy and—derived from the term “protection”—life and phys-ical integrity) with the rights of the accused.97 Turning now to in camera pro-ceedings, the court may hold these in order to determine what witness protectionmeasures shall be ordered.98 Orders of non-disclosure shall be reversed if thereasons for making them have ceased to exist.99 Moreover the ICTY Rules ofProcedure and Evidence authorize the ICTY prosecutor to request any state, incase of urgency, to take all necessary measures to prevent intimidation of a vic-tim or witness.100 For the same purpose, the duty judge shall order, on requestof the ICTY prosecutor, the transfer and provisional detention of suspects.101

Once detained, an accused may not be released except if he or she will not posea danger to any victim, witness or other person,102

Of the witness protection measures envisaged by the ICTY Rules ofProcedure and Evidence, especially bringing witnesses under the protection ofthe tribunal (including their protection prior to handover) and detaining sus-pects can be supported by a peace mission. Suffice it to say that on the onehand, peacekeepers can extract persons who are in danger, and they have per-sonnel qualified to detain specifically designated individuals. On the other hand,mandates authorizing the use of all necessary means to support the peaceprocess—like those of IFOR/SFOR/EUFOR ALTHEA103 and KFOR—coverboth extraction and detention. Paragraph 2 of SC Resolution 827 clearly demon-strates that bringing PIFWCs to justice is in the interest of restoring peace byannouncing that the end date of ICTY’s jurisdiction ratione temporis will be“determined by the Security Council upon the restoration of peace.”104

94 Rule 69(B).95 Rule 34(A)(i)).96 Rule 69(A).97 Cf. Rule 75(A).98 Rule 75(B). These measures may include disclosure to the public or the media

of the identity or whereabouts of witnesses or persons related to them or associated withthem, closed sessions, or appropriate measures to facilitate the testimony of vulnerablevictims and witnesses, such as one-way closed circuit television.

99 Cf. Rule 81 (B).100 Rule 40 (iii).101 Rule 40bis(B)(iii).102 Rule 65(B) & (I)(ii)).103 Note that Amnesty International has expressly stated that the mandate of

SFOR (as it then was) “includes the apprehension of those reasonably suspected of hav-ing carried out crimes under international humanitarian law.” Memorandum to the HighRepresentative of Bosnia-Herzegovina, AI index EUR 63/009/2002, at 7.

104 It should also be noted that the establishment of ICTY was the first Chapter


2. The ICC

The ICC has international legal personality and “such legal capacity asmay be necessary for the exercise of its functions and the fulfilment of its pur-poses.”105 This rather broad capacity to act enables the ICC to conclude agree-ments or arrangements, as appropriate, with states and international organisations.Arguably, such agreements and arrangements require the approval of theAssembly of States Parties.106

The ICC Statute establishes a detailed framework for witness protection.It defines the purpose of witness protection so as to ensure the “safety, physi-cal and psychological well-being, dignity and privacy” of witnesses (and vic-tims).107 It has def ined certain measures to fulf ill this purpose, namelywithholding of evidence or information prior to the commencement of the trialprovided that a summary thereof is submitted instead108 and in camera pro-ceedings or the presentation of evidence by electronic or other special means.109

In addition, the prosecutor and the Court, respectively, shall take appropriatemeasures for the purposes of witness protection.110 In particular, the judges ofthe ICC trial chamber “shall ensure that a trial . . . is conducted with . . . dueregard for the protection of victims and witnesses”111 and “may, as necessary,[p]rovide for the protection of the accused, witnesses and victims.”112 Moreover,

VII action taken by the UN Security Council with respect to the former Yugoslavia. Thatadds an important policy insight. In establishing a mechanism charged with effectuat-ing accountability for genocide, war crimes and crimes against humanity the SecurityCouncil made a last try with—at that stage unconventional—“measures not involvingthe use of armed force” (UN Charter art. 41) prior to authorizing the use of force.Considering, however, the limited period between the adoption of SC Resolution 827(May 25, 1993) (ICTY) and SC Resolution 836 (June 4, 1993) (air strikes), there canhardly be doubt that the authorization of armed force does not represent an assessmentthat the Security Council considered the establishment of ICTY inadequate or believedthat its inadequacy had been proved by the fact that the armed conflict in the formerYugoslavia had not stopped immediately thereafter.

105 ICC Statute art. 4(1).106 Article 2 of the ICC Statute makes express provision for an agreement con-

cerning the relationship between the ICC and the United Nations. It requires that theAssembly of States Parties approves such agreement and designates the president of theCourt as the official who may conclude it. In my view, this provision is the blueprintconcerning the external relations of the ICC; Article 112 of the ICC Statute, the provi-sion dealing with the powers of the Assembly of States Parties, does not contain anyrules concerning this issue.

107 ICC Statute art. 68(1).108 ICC Statute art. 68(5).109 ICC Statute art. 68(2).110 ICC Statute art 68(1).111 ICC Statute art. 64(2).112 Article 64(6)(e) of the ICC Statute. Note also that the court may, in relation


witness protection is institutionalized; the ICC’s witness protection scheme isadministered by a specialized unit within the registry, which may advise theprosecutor and the Court on appropriate protective measures, security arrange-ments, counseling and assistance.113 The Victims and Witnesses Unit is alsocharged with devising short- and long-term plans for witness protection inaccordance with the Rules of Procedure and Evidence, and it is in charge ofthe negotiation of agreements with states concerning the resettlement on stateterritory of witnesses or victims that are traumatized or threatened.114 Finally,states shall comply with requests made by the Court to provide assistance toinvestigations and prosecutions by way of protecting witnesses.115

Notwithstanding the arrangements for the discharge of duties concerningwitness protection by the Victims and Witnesses Unit in the Registry, the ICCprosecutor, and the judges—which are basically similar to, yet slightly moreambitious than those contained in the ICTY Rules of Procedure andEvidence116—the provisions discussed highlight that the ICC has the authorityto devise a fully fledged witness protection scheme and has sufficient capac-ity to act to make appropriate arrangements with international peace missionswhose support for this scheme, or individual measures taken in its framework,it may seek. In the absence of publicly available information on such arrange-ments, it would however be mere speculation to discuss what arrangementscould or should exist with, for example, the DRC and MONUC concerningMONUC’s support to witness protection, and/or how they should be imple-mented at field level. As a matter of fact, relevant information might be sim-ply too sensitive to be released to the general public, because it might revealoperational patterns to those interested in harassing witnesses.

to a request for assistance presented to a state party to the ICC Statute: “request thatany information that is made available under this Part shall be provided and handled ina manner that protects the safety and physical or psychological well-being of any vic-tims, potential witnesses and their families.” States are under a “[g]eneral obligation tocooperate” (cf. Article 86 of the ICC Statute). They shall comply with requests by theCourt to provide assistance in relation to investigations or prosecutions by way of “[t]heprotection of victims and witnesses and the preservation of evidence” (Article 93 of theICC Statute).

113 Article 68(4) of the ICC Statute114 See the information provided by the International Criminal Court at

http://www.icc-cpi.int/victimsissues/witnessprotection.html (last visited Feb. 16, 2007).115 Article 93(1)(j) of the ICC Statute116 See http://www.icc-cpi.int/victimsissues/witnessprotection.html for an

overview, and the Human Rights Watch Memorandum for the 4th ICC Assembly ofStates Parties (2005) at 10sq for a discussion of the ICC’s witness protection policy.


3. Sierra Leone: The Special Court

Considering that there is no longer a peace mission in Sierra Leone andthat—as far as possible to establish—no publicly accessible sources dealing indetail with witness protection operations of UNAMSIL exist, the SCSL willnot be dealt with in detail. The SCSL Statute differentiates between witnessprotection measures taken by the Victims and Witness Protection Unit estab-lished within the Registry—protective measures and security arrangements,counseling and other appropriate assistance117—and measures adopted by theSCSL judges in the course of proceedings tjat might limit the right of the accusedto a fair trial118—that is, inter alia, the conduct of in camera proceedings andthe protection of the victims’ identities.

4. Cambodia: The Extraordinary Chambers

The Agreement between the United Nations and the Royal Government ofCambodia concerning the Prosecution under Cambodian Law of CrimesCommitted during the Period of Democratic Kampuchea bestows discretionaryauthority on the co-investigating judges, the co-prosecutors and the ExtraordinaryChambers concerning witness protection that may entail, but is not limited to,in camera proceedings and protection of identities.119 Considering that no peacemission operates in Cambodia, matters of cooperation do not arise.

5. Lebanon: The Special Tribunal120

The Special Tribunal’s capacity to act under international law is rather lim-ited. Neither the Agreement between the United Nations and the LebaneseRepublic on the establishment of a Special Tribunal for Lebanon nor the Statuteof the Special Tribunal for Lebanon contains express provision for cooperationbetween the Special Tribunal and UNIFIL. On the contrary, Article 7 of theAgreement limits the Special Tribunal’s capacity to act to matters of privatelaw121 and related issues of procedural law,122 and to “enter[ing] into agree-ments with States as may be necessary for the exercise of its functions and for

117 SCSL Statute art. 16(4).118 SCSL Statute art. 17(2).119 Art. 23 of the Agreement.120 For the constituent act of the Special Tribunal, see SC Resolution 1757 (May

30, 2007).121 Art. 7(a) and (b) of the draft Agreement: contracting, acquiring and dispos-

ing of movable and immovable property.122 Art. 7(c) of the Agreement: instituting legal proceedings.


the operation of the Tribunal.”123 The only possible partner for cooperation inmatters of witness protection is the Lebanese government. Witness protectionis not an exclusive responsibility of the Lebanese Republic. Whereas Article14 of the Agreement charges the Lebanese government with ensuring “appro-priate security, safety and protection of the personnel of the Office of the SpecialTribunal and other persons referred to in this Agreement, while in Lebanon,”it is hard to imagine that witnesses will come within the ambit of “other per-sons referred to in this Agreement.”124 Rather, appropriate witness protectionmust be dealt with in agreements125 containing arrangements concerning theconduct of investigations by the Office of the Special Tribunal with the Lebanesegovernment as envisaged by Article 8(3) of the Agreement.126 While nothingin this provision precludes an arrangement in accordance with which theLebanese government asks for, for example, UNIFIL support, this option mightnot be very realistic in the light of the fact that the Lebanese Republic hassought to keep the limitations of its sovereignty by the deployment of this peace-keeping operation at the lowest possible level.127

123 Art. 7(d) of the Agreement (emphasis added).124 The context of Article 14 suggests that, for the purpose of this article, it is

immaterial that the Statute is defined to be an integral part of the Agreement. TheAgreement defines the status of judges, the prosecutor, the deputy prosecutor, the reg-istrar, the head of the defense office (art. 11), the international and Lebanese personnel(art. 12), and counsel of suspects or accused who have been admitted as such by theSpecial Tribunal (art. 13). All groups of individuals referred to are afforded them cer-tain privileges and immunities modeled upon diplomatic law. It is argued that the obli-gation created by Article 14 of the Agreement to ensure appropriate security, safety andprotection refers to the differences concerning the details of these privileges and immu-nities: what security, safety and protection is appropriate must be determined on thebasis of the provisions of Articles 11, 12 and 13 of the Agreement. This interpretationimplies necessarily that the purpose of the obligation created by Article 14 is confinedto individuals referred to in the Articles at issue.

125 Art. 7(d) of the Agreement.126 Article 8(3) of the Agreement provides that: “An Office of the Special Tribunal

for the conduct of investigations shall be established in Lebanon subject to the conclu-sion of appropriate arrangements with the Government.” Note that, in the light of thefact that both Article 2(1) of the Agreement and Article 7 of the Statute specify that theorgans of the Special Tribunal shall comprise “the Chambers, the Prosecutor, the Registryand the Defence Office,” the Office of the Special Tribunal is not a proper organ of theSpecial Tribunal.

127 This view is supported by the fact that UNIFIL’s authority is expressly basedon the consent of the Lebanese Republic rather than Chapter VII of the UN Charter. TheSecurity Council has expressly stated that in defining UNIFIL’s authority it acted “insupport of a request from the Government of Lebanon to deploy an international forceto assist it to exercise its authority throughout the territory” (SC Res. 1701, para. 12(Aug. 11, 2006)).


F. ASSESSMENT AND CONCLUSIONS

Considering how sensitive witness protection operations are, both from theperspective of the individuals concerned and the states whose sovereignty islimited, it is hardly surprising that only little information concerning the prac-ticalities of cooperation between peace missions and international or “hybrid”criminal courts or tribunals can be made available to the public.128 Occasionally,information is released that operations have been conducted—like the “visits”paid by NATO peacekeepers in Bosnia and Herzegovina to some family mem-bers of Radovan Karadzic on February 20, 2006.129 But still, such informationtends to focus on PIFWCs and their support networks, rather than witnesses:obviously, disclosing information concerning vulnerable witnesses would becounterproductive. The preceding analysis demonstrated, with a legal focus,how peace missions can use transitional authority by way of protecting wit-nesses of war crimes, crimes against humanity, and genocide, in order to sup-port the international community’s policy goal to achieve reconciliation throughjustice.

The variety of legal frameworks governing possible cooperation betweeninternational peace missions and international or “hybrid” criminal courts andtribunals in matters of witness protection indicates that such cooperation is stilla considerably delicate issue. While nothing would prevent the UN SecurityCouncil from expressly authorizing international peace missions to conductwitness protection operations, only the MONUC mandate comes close to includ-ing such a provision. Nevertheless, however, most mandates can be so construedas to authorize such cooperation as necessary to protect witnesses (and victims)who are in danger of losing their lives of physical integrity.130 In turn, the basicinsight that the prosecution of PIFWCs is in the interest of peace has not alwaysguided the adoption of constituent acts of adjudicating bodies in the same clar-ity as displayed by SC Resolution 827 (May 25, 1993) concerning the former

128 Cf. Human Rights Watch Memorandum for the 4th ICC Assembly of StatesParties, at 11 (2005).

129 See NHQ Sarajevo Press Release of Feb. 20, 2007, available at http://www.afsouth.nato.int/NHQSA/PressReleases/2007/PR_01_07.htm (last visited Feb. 24, 2007).Note that the press release stresses twice that the operation was conducted in supportof ICTY.

130 Note that the proper mechanism to implement such protection in the frame-work of a peacekeeping operation’s Rules of Engagement is the authorization of therule permitting specified measures and/or the use of minimum force (i.e., up to andincluding deadly force) in support of individuals facing serious crimes or otherwiselethally endangered and designating witnesses or victims for specific protection (per-sons with designated special status—PDSS). Note that if use of designated force isauthorized, other measures of protection are, based on an a maiore ad minus conclu-sion, also authorized.


Yugoslavia. The different conditions concerning the states receiving one ormore peace missions at the same time as being the focus of an internationalcriminal investigation and adjudication might indicate why: sovereignty con-cerns seem to be of such high importance as to fuel the desire to have at leastsome influence on the conduct of investigations, including witness protectionoperations in support thereof, by the states concerned on their respective terri-tories. The relevant frameworks for the DRC, Lebanon, and Sudan indicate thatregardless of appalling humanitarian situations and weak governance structures,the preparedness to accept any transitional authority of the peace missionsoperating in these states—which would include the authority to conduct fullscale witness protection operations—is rather limited. By way of contrast, themandates of the peacekeeping forces deployed to the former Yugoslavia,although lacking express provision for cooperation with the ICTY, enablesthem to afford witness designated special status in accordance with pertinentRules of Engagement—and tailor-made measures to protect them. The peace-keeping operations in question can even, as a matter of principle, protect wit-nesses on a case-by-case basis regardless of whether other witness protectionprograms exist, provided the competent Force Commander determines thatdoing so is militarily necessary.131 Moreover, transitional administrations estab-lished by the UN have sufficient transitional authority to include witness pro-tection schemes equivalent to similar programs launched by states as a meansto enhance enforcement of criminal law in the legislation adopted for the areasunder their control.

The international and “hybrid” criminal courts and tribunals have beenmaking significant efforts to enhance the protection of their witnesses. Thelevel of ambition is best displayed by the variety of relevant provisions con-tained in the ICC Statute—yet initially this Statute basically aggregated the1998 ICTY/ICTR status quo. Since then, the institutionalization of witness pro-tection by the adjudication bodies has made further progress and has receivedinstitutional support by the United Nations. A recent advertisement for the posi-tion of a Witness Protection Officer in Beirut, Lebanon, working with the UnitedNations International Independent Investigation Commission (UNIIIC)—whichwill most likely be succeeded by the Special Tribunal for Lebanon—has definedthe officer’s responsibilities in a rather comprehensive manner. The range ofresponsibilities will comprise, inter alia, to develop and implement UNIIICpolicies for the management and movement of relevant witnesses who areengaged with the commission, taking into account the potentially hazardousand politically sensitive aspects surrounding such engagement, and to liaiseand negotiate with relevant official high level institutions to ensure location,protection, transportation, safety and other support programs for witnesses who

131 The notion of military necessity in peace missions is related to the authori-zation of the use of all necessary means to fulfill the defined responsibilities by inter-national mandates.


are engaged with the commission, and contribute to coordination of the logis-tics and administrative processes pertaining to the protection, transportation,accommodation and reimbursement of witnesses.132 Moreover, the UNIIICWitness Protection Officer will also take into account legal implications for afuture International Tribunal in the course of his/her work. Obviously, the UnitedNations aims to achieve as much witness protection as possible in close coop-eration with the Lebanese government.

To sum up, witness protection by international peace missions is a viableoption: if policy makers determine that it is in the interest of restoring inter-national peace and security, if they define relevant responsibilities and tasks,and if they approve cooperation between the peace missions in question andthe adjudication bodies concerned.

132 The full job description, available at http://jobs.un.org (last visited Jan. 31,2007), is on file with the author.


ANNEX IPROVISIONS ON WITNESS PROTECTION AND RELATED

ISSUES IN THE STATUTES OF INTERNATIONAL CRIMINAL COURTS AND TRIBUNALS

ICTY Statute

Article 15: Rules of Procedure and Evidence

The judges of the International Tribunal shall adopt rules of procedure and evi-dence for the conduct of the pre-trial phase of the proceedings, trials and appeals,the admission of evidence, the protection of victims and witnesses and otherappropriate matters.

Article 20: Commencement and Conduct of Trial Proceedings

1. The Trial Chambers shall ensure that a trial is fair and expeditious and thatproceedings are conducted in accordance with the rules of procedure and evi-dence, with full respect for the rights of the accused and due regard for the pro-tection of victims and witnesses.

2.–4. . . .

Article 22: Protection of Victims and Witnesses

The International Tribunal shall provide in its rules of procedure and evidencefor the protection of victims and witnesses. Such protection measures shallinclude, but shall not be limited to, the conduct of in camera proceedings andthe protection of the victim’s identity.

ICTR Statute

Article 14: Rules of Procedure and Evidence

The Judges of the International Tribunal for Rwanda shall adopt, for the pur-pose of proceedings before the International Tribunal for Rwanda, the Rules ofProcedure and Evidence for the conduct of the pre-trial phase of the proceed-ings, trials and appeals, the admission of evidence, the protection of victimsand witnesses and other appropriate matters of the International Tribunal forthe former Yugoslavia with such changes as they deem necessary.

Article 19: Commencement and Conduct of Trial Proceedings

1. The Trial Chambers shall ensure that a trial is fair and expeditious and thatproceedings are conducted in accordance with the Rules of Procedure and


Evidence, with full respect for the rights of the accused and due regard for theprotection of victims and witnesses.

2.–4. . . .


The International Tribunal for Rwanda shall provide in its Rules of Procedureand Evidence for the protection of victims and witnesses. Such protection meas-ures shall include, but shall not be limited to, the conduct of in camera pro-ceedings and the protection of the victim’s identity.

ICC Statute

Article 43: The Registry

1.–5. . . .

6. The Registrar shall set up a Victims and Witnesses Unit within the Registry.This Unit shall provide, in consultation with the Office of the Prosecutor, pro-tective measures and security arrangements, counselling and other appropriateassistance for witnesses, victims who appear before the Court, and others whoare at risk on account of testimony given by such witnesses. The Unit shallinclude staff with expertise in trauma, including trauma related to crimes ofsexual violence.

Article 64: Functions and Powers of the Trial Chamber

1. . . .

2. The Trial Chamber shall ensure that a trial is fair and expeditious and is con-ducted with full respect for the rights of the accused and due regard for the pro-tection of victims and witnesses.

3.–5. . . .

6. In performing its functions prior to trial or during the course of a trial, theTrial Chamber may, as necessary:

(a)–(d) . . .

(e) Provide for the protection of the accused, witnesses and victims; and


(f) . . .

7.–10. . . .

Article 68: Protection of the Victims and Witnesses and Their Participationin the Proceedings

1. The Court shall take appropriate measures to protect the safety, physical andpsychological well-being, dignity and privacy of victims and witnesses. In sodoing, the Court shall have regard to all relevant factors, including age, genderas defined in article 7, paragraph 3, and health, and the nature of the crime, inparticular, but not limited to, where the crime involves sexual or gender vio-lence or violence against children. The Prosecutor shall take such measuresparticularly during the investigation and prosecution of such crimes. Thesemeasures shall not be prejudicial to or inconsistent with the rights of the accusedand a fair and impartial trial.

2. As an exception to the principle of public hearings provided for in article 67,the Chambers of the Court may, to protect victims and witnesses or an accused,conduct any part of the proceedings in camera or allow the presentation of evi-dence by electronic or other special means. In particular, such measures shallbe implemented in the case of a victim of sexual violence or a child who is avictim or a witness, unless otherwise ordered by the Court, having regard to allthe circumstances, particularly the views of the victim or witness.

3. . . .

4. The Victims and Witnesses Unit may advise the Prosecutor and the Court onappropriate protective measures, security arrangements, counselling and assis-tance as referred to in article 43, paragraph 6.

5. Where the disclosure of evidence or information pursuant to this Statute maylead to the grave endangerment of the security of a witness or his or her fam-ily, the Prosecutor may, for the purposes of any proceedings conducted prior tothe commencement of the trial, withhold such evidence or information andinstead submit a summary thereof. Such measures shall be exercised in a man-ner which is not prejudicial to or inconsistent with the rights of the accused anda fair and impartial trial.

6. . . .


SC-SL StatuteArticle 16: The Registry

1.–3. . . .

4. The Registrar shall set up a Victims and Witnesses Unit within the Registry.This Unit shall provide, in consultation with the Office of the Prosecutor, pro-tective measures and security arrangements, counselling and other appropriateassistance for witnesses, victims who appear before the Court and others whoare at risk on account of testimony given by such witnesses. The Unit person-nel shall include experts in trauma, including trauma related to crimes of sex-ual violence and violence against children.

Article 17: Rights of the Accused

1. . . .

2. The accused shall be entitled to a fair and public hearing, subject to meas-ures ordered by the Special Court for the protection of victims and witnesses.

3.–4. . . .

Agreement Between the United Nations and the Royal Government ofCambodia Concerning the Prosecution Under Cambodian Law ofCrimes Committed During the Period of Democratic Kampuchea


The co-investigating judges, the co-prosecutors and the Extraordinary Chambersshall provide for the protection of victims and witnesses. Such protection meas-ures shall include, but shall not be limited to, the conduct of in camera pro-ceedings and the protection of the identity of a victim or witness.

Statute of the Special Tribunal for Lebanon

Article 12: The Registry

The Registrar shall set up a Victims and Witnesses Unit within the Registry.This Unit shall provide, in consultation with the Office of the Prosecutor, meas-ures to protect the safety, physical and psychological well-being, dignity andprivacy of victims and witnesses, and such other appropriate assistance for wit-nesses who appear before the Special Tribunal and others who are at risk onaccount of testimony given by such witnesses.


ANNEX IITHE NATO POLICY ON TRAFFICKING IN HUMAN BEINGS

AND ITS APPENDICES

NATO Policy on Combating Trafficking in Human Beings (June 29, 2004)

1. This NATO policy takes into account the universal condemnation of thecrime of trafficking in human beings and reiterates that it constitutes aserious abuse of human rights, especially affecting women and children.It is a transnational problem, requiring concerted multilateral action ifit is to be defeated. Trafficking in human beings affects countries of ori-gin, countries of transit and countries of destination. This modern dayslave trade fuels corruption and organised crime. It has the potential toweaken and destabilise fragile governments and runs counter to the goalsof NATO-led efforts especially in South Eastern Europe. A zero-toler-ance policy regarding trafficking in human beings by NATO forces andstaff, combined with education and training, is required.

2. Allies reaffirm their commitment to promoting peace and security inthe Euro-Atlantic Area and to combating the trafficking in human beingsand agree the following policy. NATO will support and sustain furtherdevelopment of practical cooperation between nations and betweenNATO and other international institutions such as the UN, OSCE andInternational Organisation for Migration. NATO will also consult withNGOs active in this field with a view to improving its existing mech-anisms and measures for the implementation of the present policy.Close exchange of information and experience between NATO and theEU should also be developed in accordance with agreed procedures.

3. This policy on combating the trafficking in human beings aims to rein-force efforts by NATO and individual nations to prevent and combattrafficking and the commitments undertaken in the context of otherinternational organisations including the “UN Protocol to Prevent,Suppress and Punish Trafficking in Persons, especially Women andChildren, supplementing the United Nations Convention againstTransnational Organized Crime,” and the OSCE Action Plan to CombatTrafficking in Human Beings. NATO and non-NATO troop contribut-ing nations will develop and implement various measures that dis-courage the demand by their military and civilian personnel that fostersall forms of exploitation of persons.

4. In the context of this policy trafficking means, the recruitment, trans-portation, transfer, harbouring or receipt of persons, by means of thethreat of use of force or other forms of coercion, of abduction, of decep-tion, of the abuse of power or of a position of vulnerability or of thegiving or receiving of payments or benefits to achieve the consent of


a person having control over another person, for the purposes ofexploitation. Exploitation shall include, at a minimum, the exploita-tion of the prostitution of others, or other forms of sexual exploitation,forced labour or services, slavery or practices similar to slavery, servi-tude or the removal of organs.

5. This policy is developed by NATO in consultation with its Partnersand nations contributing forces to NATO-led operations. Allies re-affirm their commitment to ratification, acceptance or approval of theUN Convention and relevant Protocol and agree:a. to review national legislation and report on national efforts to meet

obligations associated with the UN Convention and its Protocolin accordance with the relevant decisions taken by the Parties tothose treaties;

b. to encourage all nations contributing forces to NATO-led opera-tions to ratify, accept or approve the UN Convention AgainstOrganised Crime and relevant Protocol and adhere to the OSCECode of Conduct;

c. that this policy is aimed at securing standards of individual behaviour;

d. that all personnel taking part in NATO led-operations should receiveappropriate training to make them aware of the problem of traf-ficking and how this modern day slave trade impacts on humanrights, stability and security, as well as being informed of theirown responsibilities and duties and the respective responsibilitiesof International Organisations in this field;

e. in the conduct of operations, to continue efforts, within their com-petence and respective mandates, to provide support to responsi-ble authorities in the host country in their efforts to combattrafficking in human beings;

f. to incorporate contractual provisions that prohibit contractors fromengaging in trafficking in human beings or facilitating it and imposepenalties on contractors who fail to fulfil their obligations in thisregard; and

g. to evaluate implementation of their efforts as part of the ongoingreviews carried out by the competent authorities.

6. In order to ensure maximum effectiveness of the present policy, NATOnations commit themselves to ensure full national implementation ofthis policy. Non-NATO Troop contributing nations are expected to takesimilar steps upon joining a NATO-led operation.

7. NATO personnel serving at NATO Headquarters and its Agencies aswell as those taking part in NATO led operations should continue toconduct themselves with regard to the highest professional standardsand with respect to national as well as international law.


Appendix 1

NATO Guidelines on Combating Trafficking in Human Beings forMilitary Forces and Civilian Personnel Deployed in NATO-Led

Operations (July 9, 2004)

Introduction and Scope

1. The present guidance is intended for the use of military and civil ele-ments that, while not being NATO staff, participate in operations underNATO command and control. Its aim is twofold:a. to define the basic standards of behaviour to which NATO-led

forces must adhere in the course of their work; andb. to define the parameters within which NATO deployed forces can,

within their competence and respective mandate, provide supportto responsible authorities in the host country in their efforts tocombat trafficking in human beings.

2. This guidance is aimed at highlighting the general principles and activ-ities that participating nations are expected to request from their nation-als. It is not exhaustive and will require, as appropriate, specificimplementing actions by individual nations and forces to be fully effec-tive. This includes, where necessary, ratifying/acceding to/approvingthe “UN Protocol to Prevent, Suppress and Punish Trafficking inPersons, especially Women and Children, supplementing the UnitedNations Convention against Transnational Organized Crime” andimplementing its requirements, as well as ensuring implementation ofthe present guidelines.

General Principles

3. Forces conducting operations under NATO command and control areprohibited from engaging in trafficking in human beings or facilitat-ing it. This prohibition also applies to any civilian element accompa-nying such forces, including contractors.

4. Forces conducting PSO under NATO command and control, will sup-port, within their competence and mandate, the efforts of responsibleauthorities in the host country in combating trafficking in human beings.

Definitions

5. With reference to the definition of trafficking in human beings, Alliesreaff irm their adherence to and compliance with the provisions ofArticle 3 of the “UN Protocol to Prevent, Suppress and PunishTrafficking in Persons, especially Women and Children, supplement-


ing the United Nations Convention against Transnational OrganizedCrime.”

6. In particular, trafficking in human beings means the recruitment, trans-portation, transfer, harbouring or receipt of persons, by means of thethreat of use of force or other forms of coercion, of abduction, of fraud,of deception, of the abuse of power or of a position of vulnerability orof the giving or receiving of payments or benefits to achieve the con-sent of a person having control over another person, for the purposesof exploitation. Exploitation shall include, at a minimum, the exploita-tion of the prostitution of others, or other forms of sexual exploitation,forced labour or services, slavery or practices similar to slavery, servi-tude or the removal of organs.

Implementing Guidelines

7. The implementation of the principles at Paragraphs 3 and 4, above,can only be successful if appropriate implementing measures are takenby NATO Authorities and Troop Contributing Nations.

8. For NATO Authorities this includes as a standing requirement:a. the development of specific policy provisions, within existing PSO

doctrine, for the role of NATO-led forces in supporting, withintheir competence and mandate, the efforts of responsible author-ities in the host country to combat trafficking in human beings;

b. the establishment, at NATO educational institutions (NS, NDC),of specific training modules devoted to raising the awareness ofthe issues connected to the trafficking in human beings and of themeans to combat it. These modules will be designed and imple-mented with the advice of anti-trafficking experts, including inter-governmental and non-governmental organisations with expertisein this area; and

c. the development of an evaluation mechanism to analyse progresson combating trafficking, as well as of a confidential and trans-parent NATO internal reporting mechanism on violations of thepresent policy.

9. In the planning and conduct of PSO, NATO Authorities will:a. include in the relevant portions of the Operational Plan (OPLAN),

specific measures, within their competence and mandate, to sup-port the effort of responsible authorities in the host country incombating the trafficking in human beings;

b. include, in the pre-deployment phase, specific training on issuesrelated to trafficking in human beings;

c. assess the conformity of contributing forces to the principlesdefined in this document; and


d. identify within the Area of Operations, local and internationalorganisations with capacity for protecting and housing adult andchild victims of trafficking and the establishment of appropriateliaison arrangements with such organisations.

10. As a standing requirement, troop contributing nations will organisespecific training modules preparing their forces and accompanyingcivilian elements and contractors for PSO. Such modules may includetraining on the issue of trafficking in human beings and legal conse-quences stemming from the violation of anti-trafficking laws, as wellas training on the means to support, within their competence and man-date, the efforts of responsible authorities in the host nation to com-bat trafficking in human beings. Similar modules may also be developedby PfP Training Centres and included, as appropriate, in their trainingcurricula.

11. As a standing requirement, it is recommended that troop contributingnations:a. review, if necessary their existing criminal legislation, including

the enforcement of such legislation, to ensure that members of theforces—as well as civilian elements—who engage in traffickingin human beings, or facilitate it, are liable to appropriate prose-cution and punishment;

b. provide details of their national legislation and national efforts tocombat trafficking;

12. In the planning and conduct of a NATO-led PSO, it is recommendedthat troop contributing nations:a. conduct specific pre-deployment training on criminal issues includ-

ing those related to trafficking in human beings and the means tocombat it;

b. conduct timely investigation and prosecution of cases of miscon-duct by members of their forces or civilian elements, includingcontractors;

c. develop specific mechanisms for reporting crimes, including thoserelated to trafficking in human beings;

d. in accordance with national legislation, create and disseminatepolicies explicitly protecting whistleblowers who come forwardwith evidence of crimes, including trafficking in human beings,and

e. in accordance with national legislation, retain records of miscon-duct by individuals, including, those related to trafficking in humanbeings, for use in recruitment, vetting and deployment.


Appendix 2NATO Guidance for the Development of Training and Educational

Programmes to Support the Policy on Combating the Trafficking inHuman Beings (July 9, 2004)

1. Training and creating awareness are key elements to ensure the suc-cessful implementation of this policy. In particular, training will pro-vide information required to identify trafficking and will put militaryand civilian personnel on notice of consequences for engaging in traf-ficking.

2. Two different kinds of training to be offered by NATO and nationaltraining institutions are envisaged for the implementation of the pres-ent policy:a. a general module, aimed at the personnel (military or civilian) to

be employed in a NATO operation, with a twofold focus:• outline the characteristics of trafficking in human beings; and• summarise the national and international legal provisions

which punish those who engage in trafficking in human beings,or facilitate it;

b. specific modules, aimed at all those categories of personnel whohave specific responsibilities, either under national legislation orunder the present policy, to police the behaviour of personnel ortake specific actions to combat trafficking.

3. The general module will need to include, as a minimum, the follow-ing elements:a. background information on the trafficking phenomenon, its ori-

gins, its victims, its perpetrators (organised crime) and an overviewof the purposes for which human beings are trafficked includingthose links which exist between trafficking and the illegal sexindustry;

b. if the training is imparted in a pre-deployment context, an outlineof the specific instances of trafficking to which personnel mightbe confronted in the deployment area from a security perspective.In this respect, training would address how trafficking in humanbeings supports other elements of organised crime that present athreat to the mission;

c. guidelines to detect instances of trafficking or identify traffickedpeople, and how to deal with such events (reporting, actions to betaken, etc.); and

d. a summary of the legal provisions affecting those who engage intrafficking or facilitate it.

4. The specif ic modules will contain, as a minimum, the following elements:


a. For commanders and supervisors: how to deal with reports con-cerning involvement of their subordinates in trafficking and whatmeasures to take; and

b. For military police units which are part of national contingents:how to investigate allegations of involvement in trafficking bymembers of their national contingent, with specific focus on thesensitive aspects of such an investigation, such as victim identi-fication and protection.

5. To ensure the greatest effectiveness training modules should:a. be provided to all levels of military and civilian personnel;b. include information tailored to the specific situation/requirement

of the target audience;c. be developed with input from anti-trafficking experts of interna-

tional and non-governmental organisations with experience in com-bating trafficking;

d. where feasible focus on “train the trainers” events to ensure thedissemination of appropriate information at all levels;

e. should include case studies, interactive methods of training; andf. make use of distance and computer based training.

Appendix 3Guidelines for NATO Staff on Preventing the Promotion and Facilitation

of Trafficking in Human Beings (July 9, 2004)

Introduction and Scope

1. The present rules set out the standards expected of all NATO staff infurtherance of the mandate of the North Atlantic Council, as laid outin PO(2003)185(INV).

2. These rules apply to all NATO staff, whether on post or deployed onmission on behalf of the Organisation.

General Principles3. The basic principles for the behaviour of NATO Staff are laid down at

Article 12.14, 13.1 and 13.2 of the NATO Civilian PersonnelRegulations.

4. In conformity with established procedures and regulations with spe-cific reference to trafficking in human beings, this means that:a. NATO staff shall not engage in trafficking in human beings, includ-

ing for the purpose of sexual exploitation, nor they will facilitateit; and

b. NATO staff shall have the duty to report to his/her supervisors anyinstance of human trafficking of which he/she may have becomeaware, as well as any concerns that he or she may have regarding


the involvement of another NATO staff in trafficking in humanbeings including for the purpose of sexual exploitation.

Definitions

5. With reference to the definition of trafficking in human beings, NATOreaffirms its adherence to and compliance with the provisions of Article3 of the “UN Protocol to Prevent, Suppress and Punish Trafficking inPersons, especially Women and Children, supplementing the UnitedNations Convention against Transnational Organized Crime.”

6. In particular, trafficking in human beings means the recruitment, trans-portation, transfer, harbouring or receipt of persons, by means of thethreat of use of force or other forms of coercion, of abduction, of decep-tion, of the abuse of power or of a position of vulnerability or of thegiving or receiving of payments or benefits to achieve the consent ofa person having control over another person, for the purposes ofexploitation. Exploitation shall include, at a minimum, the exploita-tion of the prostitution of others, or other forms of sexual exploitation,forced labour or services, slavery or practices similar to slavery, servi-tude or the removal of organs.

7. “NATO staff ” means international civilian personnel (seconded or free-lance), i.e. personnel of a NATO body recruited from among the nation-als of members of the Alliance and filling international posts appearingon the approved establishment of that NATO body. The present policyapplies also to consultants and temporary personnel.

Implementing Guidelines

8. In order to implement the principles spelled out at Paragraph 4, above,the following measures are required:NATO Secretary General will, drawing upon the expertise acquired byother regional, international, intergovernmental, and non-governmen-tal organisations and in coordination with the Director of theInternational Military Staff and NATO Strategic Commanders, developspecific guidelines which will define, i.e.:a. the specific standards of behaviour to which NATO staff will abide;

andb. the investigative and disciplinary procedures to be implemented.

Member Nations will ensure that NATO staff who are under theirjurisdiction and who have engaged in criminal activities relatedto trafficking in human beings, are prosecuted in accordance withtheir national legislation and procedures.


ANNEX III.1PIC LONDON CONCLUSIONS (DECEMBER 5, 1996)

War Crimes

8. The Council reaffirms its strong support for the International CriminalTribunal for the Former Yugoslavia in carrying out its responsibilitiesfor dispensing justice impartially under the terms of the PeaceAgreement. The Council agrees that it will:• increase pressure on the authorities in Bosnia and Herzegovina

and other states, particularly those which have failed to complywith arrest warrants issued by the Tribunal, to cooperate fully withthe Tribunal, including by surrendering indictees and providinginformation to assist in Tribunal investigations. The authorities inBosnia and Herzegovina will continue to submit all cases involv-ing suspected war crimes to the Tribunal for review prior to arrestor prosecution before national courts;

• provide additional resources to the Tribunal. These resources willbe used to enhance information-sharing between the Tribunal, gov-ernments and law enforcement agencies, to increase the informa-tion-gathering capacity of the Tribunal in relation to all indicteesand to provide the necessary material and personnel resources tothe Tribunal to carry out its obligations under the Statute and underthe “Rules of the Road.”

9. The Council charges the Steering Board to consider what further meas-ures can be taken to facilitate the delivery of indictees to the Tribunalfor trial.

10. As stated in the Paris Conclusions, the provision of economic recon-struction assistance is closely linked to cooperation in this area. Theauthorities in Bosnia and Herzegovina are reminded that their obliga-tions under international law take precedence over any provisions intheir local or national legislation.

11. The Council emphasises that no indicted person who has failed to com-ply with an order of the Tribunal may stand as a candidate or hold anyappointive, elective or other public office at any level, including mil-itary office, in the territory of Bosnia and Herzegovina.

12. The Council notes the agreement of the authorities in Bosnia andHerzegovina that no member of the House of Peoples, the House ofRepresentatives, the Presidency or the Council of Ministers will beprosecuted, arrested or detained, without the consent of theParliamentary Assembly, unless that person is under indictment by theTribunal or caught in the act of committing a serious offence.


ANNEX III.2BOSNIA AND HERZEGOVINA 1998: SELF-SUSTAINING

STRUCTURES BONN PIC CONCLUSIONS (DECEMBER 10, 1997)

4. Reconciliation, War Crimes and Co-operation with the InternationalCriminal Tribunal for the Former Yugoslavia (ICTY)a. The Council is convinced that until all persons indicted for war

crimes are brought before the ICTY, there will be no normalisa-tion, no reconciliation, and the rule of law in Bosnia andHerzegovina will remain seriously impaired. In this regard, theCouncil recalls the Sintra Declaration, where the continued influ-ence of Radovan Karadzic over the political life of RepublikaSrpska was deemed unacceptable. The Council therefore remindsall competent authorities that war crimes suspects must be broughtbefore the ICTY and that cooperation with ICTY is a key part ofthe process of peace implementation. The Council remains com-mitted to applying economic levers and other measures to ensurefull co-operation with ICTY, including making recommendationsto Council members with regard to the Federal Republic ofYugoslavia. The Council welcomes the transfers of war crimesindictees to the ICTY in the course of 1997. The Council recallsSecurity Council resolution 1034. The Council demands that thecompetent authorities take immediate steps to execute arrest war-rants for all indicted persons under their jurisdiction and to sur-render them to the ICTY. This demand is made with particularreference to Republika Srpska and the Federal Republic ofYugoslavia. The Council recalls that domestic law prohibiting thesurrender of indictees to the ICTY is incompatible with manda-tory United Nations Security Council resolutions adopted underChapter VII of the Charter of the United Nations and Article IXof the General Framework Agreement for Peace in Bosnia andHerzegovina.

b. The Council notes the importance of compliance with the Rulesof the Road agreed at Rome in February 1996. It criticises localauthorities in both Entities who continue to refer to “lists of warcrimes suspects” in an attempt to discourage return of refugeesand displaced persons, harass citizens and deter elected munici-pal councillors from taking office. The authorities must ensurethat this ceases immediately. The Council notes that municipali-ties that persist in this risk being named as obstructionist by theHigh Representative and consequently risk losing internationalassistance. Furthermore, the Council calls for adequate resourcesto be made available to the Prosecutor of the ICTY for the Rulesof the Road.


c. The Council requests that the High Representative, the ICTY andother relevant organisations identify those persons who are aidingand abetting individuals named in the arrest warrants and calls onmember States to take immediate measures against such persons,as may be recommended by the High Representative.

PART IV

LAW ENFORCEMENT WITHINPSOS—THE PROSECUTION

OF PEACEKEEPERS AND THE SPECIAL CASE OF

HUMAN TRAFFICKING ANDSEXUAL OFFENSES

CHAPTER 14

HUMAN RIGHTS TRAINING TO LAW ENFORCEMENTAGENTS: A KEY TO PSO SUCCESS

David B. HodgkinsonSandra L. Hodgkinson

Diana C. NooneGregory P. Noone*

Today’s Human Rights Violations are the Causes for Tomorrow’sConflicts

—Kofi Annan1

A. INTRODUCTION

The United Nations strives to maintain international peace and securitythrough establishing mechanisms for collective measures, fostering interna-tional cooperation and friendly relations, and promoting respect for human

311

* The positions and opinions stated in this article are those of the authors anddo not represent the views of the US State Department, the US government or any ofits entities or any other nongovernmental entity. All information obtained for this arti-cle was gathered through open sources or unclassified interviews and briefings. DaveHodgkinson (B.A. Dickinson College 1991, J.D. University of Gonzaga School of Law1994) is a Senior Advisor for the Bureau of European and Eurasian Affairs at the USDepartment of State; Sandra L. Hodgkinson (B.A. Tulane University 1992, M.A. GraduateSchool of International Studies, University of Denver 1995; J.D. University of DenverSchool of Law 1995) is the Deputy for War Crimes Issues at the US Department of State;Diana C. Noone (B.A. Virginia Polytechnical Institute 1987, J.D. Widener UniversitySchool of Law 1990, M.S.W. The Catholic University of America 1994, Ph.D. Universityof Maryland at Baltimore 1999) is an Assistant Professor of Criminal Justice at FairmontState University; and Gregory P. Noone (B.A. Villanova University 1987, J.D. SuffolkUniversity Law School 1990, M.A. The Catholic University of America 2002) is a mem-ber of the Public International Law and Policy Group. The authors would like to expresstheir gratitude and appreciation for editing, research, and assistance to: Roberta Arnold,Laurie R. Blank, Sherry Smith, Oliver Thomas Napier Jr. and Dominick Pellegrin.

1 Stephanie Nebahey, Annan Opens UN Human Rights Forum Amid Ko, REUTERS,Mar. 16, 1998.


rights.2 Second only in terms of numbers to military forces in UN peace sup-port operations (PSOs),3 law enforcement agents play a critical role in sup-porting UN missions.4 Ensuring human rights is an inherent part of the lawenforcement mission, whether it is to monitor, advise or train the local policeforce,5 or when called upon to fill an executive authority mandate. This chap-ter focuses on a core component of UN missions—the role of human rightstraining with regard to law enforcement agents in PSOs. The chapter beginswith a discussion of the link between human rights standards and law enforce-ment training and explores the important role law enforcement activities playwithin a PSO. In addition, it addresses human rights issues related to types oftraining conducted for and by UN personnel, its effectiveness and disciplinarymechanisms. Challenges facing the United Naitons in this regard are exploredincluding examples and recommendations for the future are suggested.

B. HUMAN RIGHTS AS A KEY FACTOR AND BASIS FOR PSOS

Violations of human rights are often at the center of conflict.6 The inter-national community has witnessed their impact on society and the pressure theycan exert in bringing an international response, including PSOs such as the UNMission in Kosovo (UNMIK), UN Mission in Liberia (UNMIL), UN Missionin Sierra Leone (UNAMSIL), UN Mission in the Democratic Republic of theCongo (MONUC), UN Missions to Haiti (UNMIH and MINUSTAH) and theUN Mission in the Sudan (UNMIS). There are complicating factors resultingfrom summary executions, torture, arbitrary arrest and detention, violenceagainst women, genocide, crimes against humanity and war crimes awaitingPSO forces upon their arrival. These violations have a direct and harmful effecton the rule of law, including the capability of an indigenous police force tostand up and act competently within international and domestic legal standards.7

2 UN Charter art. 1.3 Report of the Panel on United Nations Peace Operations, UN Doc. A/55/305-

S/200/809 (Aug. 21, 2000) [hereinafter The Brahimi Report]. 4 International police forces are deployed worldwide and have established their

own identity and status within PSOs. Background Note: Nov. 30, 2006, available athttp://www.un.org/Depts/dpko/dpko/bnote.html. As of January 31, 2007, there were9,208 UNPOL worldwide in thirteen missions: Afghanistan, Burundi, Cote d’Ivoire,Cyprus, Democratic Republic of Congo, Georgia, Kosovo, Haiti, Liberia, Sierra Leone,Sudan, Timor-Leste and Western Sahara. They made up 13.1 percent of peacekeepingforces deployed. See http://www.un.org/Depts/dpko/dpko/contributors/.

5 The Brahimi Report, supra note 3, at 20.6 Standardized Generic Training Module 08, Human Rights for Peacekeepers,

(Feb 22, 2007), at 1, available at http://www.un.org/depts/dpko/training/sgtm/main.htm[hereinafter SGTM 08].

7 This has been witnessed in Angola, Cambodia, the Democratic Republic of

Human Rights Training to Law Enforcement Agents 313

Unfortunately, civilians are becoming a more prominent target. In WorldWar II, 5 percent of the civilian population were causalities, while in the 1990s90 percent of the casualties were civilians.8 UN Police (UNPOL)9 can play animportant role in establishing and maintaining order to prevent possible esca-lations in conflict ridden environments. This can be achieved by building thecapability of indigenous law enforcement in environments where a capable lawenforcement component does not exist. They can also take on executive author-ity10 to act as the police, as seen in Kosovo and East Timor.

1. Importance of Human Rights in PSOs

Human rights are universal and derived from long-standing practice. Theyare fundamental and should be afforded to all human beings. Examples include:the right to life, the right to a fair trial, the right not to be held in slavery, theright of freedom of movement, the right not to be tortured and the right of free-dom of religion.11

Application of human rights standards in PSOs is part of the UN commit-ment and is embodied in the UN Charter, as demonstrated by the following language:

the Congo (DRC), the Balkans, Rwanda, Liberia, Sierra Leone, Kosovo, East Timor,Darfur, and Haiti. A United Nations Priority, at http://www.un.org/rights/HRToday/hrconfl.htm.

8 SGTM 08, supra note 6, at 6.9 The term for civilian police, “CIVPOL,” is changing to UNPOL. The term

CIVPOL was adopted during the 1964 UN peacekeeping mission to Cyprus, where therewas a debate whether to bring civilian police in addition to, or instead of, military police.CIVPOL was adopted in reference to this civilian police force in relation to the mili-tary force. Today, there is a debate about the redundancy of this term. The UN Departmentof Peacekeeping Operations (DPKO) is now advocating the use of UNPOL. As this termtakes root, both CIVPOL and UNPOL are being used in a somewhat interchangeablefashion. (Conversation with Lisa Kurbiel, Integrated Training Service, United Nations,December 2006.) This chapter will use the term UNPOL, unless the term CIVPOL waspreviously used, such as in a quote or conference title. In addition, the term “civilianpolice” will be avoided, and the term “police” will be used.

10 Executive authority refers to the status given officers to enforce the law of themission country. The Kosovo and East Timor PSO missions expanded the scope ofUNPOL to take on the full spectrum of executive law enforcement authority, along withthe crucial peace-building tasks of creating indigenous police capabilities based on dem-ocratic and human rights standards. Kosovo and East Timor are the only current UNmissions with executive authority afforded to law enforcement (Interview of AshleyKushner, US State Department, Dec. 2006, on file with authors).

11 SGTM 08, supra note 6, at 10.


determined to reaffirm faith in fundamental human rights . . . achieveinternational cooperation . . . in promoting and encouraging respectfor human rights and for fundamental freedoms for all. . . . promoteuniversal respect for, and observance of, human rights . . . for all.”12

Building on the UN commitment to human rights, the Secretary-General’s direc-tive set out in 1997 makes human rights a central activity for the United Nations13

and imposes this responsibility on all its personnel.14 In addition, the 1997reform program identified human rights cutting across all substantive fields,including humanitarian, development and peace and security missions. The roleof human rights in PSOs involves protection, monitoring, reporting, advocacy,intervention and human rights capacity-building.15

Successful PSOs depend on adherence to human rights standards. Nationsthat are the subject of a PSO will not successfully begin the rebuilding processunless human rights are restored, observed and enforced. As a result, it is anoperational necessity that UN-sponsored law enforcement personnel operate inaccordance with human rights standards due to the fact that they are in posi-tions of authority and are therefore expected to set the example. Derogationfrom human rights standards by UN law enforcement personnel can cause aripple effect through society and directly harm mission effectiveness.16 This isparticularly important in post-conflict states, where there may be a great dealof volatility and mistrust based on past violations by state or non-state actors.Acknowledging this, the United Nations integrated human rights into its oper-ations in places such as Cambodia, El Salvador, Guatemala and Haiti. In Haiti(MINUSTAH), the missions have been dedicated to the promotion of humanrights, civic education, electoral assistance, supporting the National Truth andJustice Commission and strengthening the Haitian judicial system.17 In Rwanda,the former Yugoslavia and the DRC, the United Nations followed up allega-tions of human rights violations and established a framework of respect forhuman rights. This work was viewed as a core part of creating an atmosphereof trust in a post-conflict environment.18

12 UN Charter preamble, art. 1(3), and art. 55(c) (emphasis added).13 Annual Report of the Secretary-General on the work of the Organization art.

28, UN Doc. A/52/1 (Sept. 3, 1997), available at http://www.un.org/Docs/SG/Report97/97con.htm.

14 Handbook on the United Nations Multidimensional Peacekeeping Operations,Chapter VIII: Human Rights, Peacekeeping Best Practices Unit, DPKO (Dec. 2003)available at http://pbpu.unlb.org/pbpu/handbook/Handbook/8.%20Human%20Rights.html[hereinafter Handbook on the United Nations Multidimensional Peacekeeping Operations].

15 UN Reform—Reform Restructuring for Global Governance (Aug. 1997), athttp://www.iahf.com/world/un-refm.html.

16 A United Nations Priority, supra note 7.17 UN SECRES/1542, 4961st mtg., Apr. 30, 2004. 18 Handbook on the United Nations Multidimensional Peacekeeping Operations,

supra note 14, at 2.


2. The Role of the UN Code of Conduct

In addition to singling out human rights issues for personnel deployed ona PSO, the United Nations also embodied many of these principles in the UNCode of Conduct. The UN policy to promote a force that conducts itself appro-priately at all times is essential for a successful mission. In addition, the incor-poration of human rights principles in training cards furthers the policy of theUnited Nations to ensure that human rights are part of all aspects of a PSO.The training cards include a Code of Conduct and a set of principles entitled“We Are United Nations Peacekeepers.”19 These cards provide human rightsstandards, rules for engaging the local population and rules involving internaldiscipline.20

Because PSOs by their very nature are dynamic, bringing together per-sonnel from different countries with varying degrees of experience into anunstable environment, the universal nature of human rights can serve as a basisfor common action among a diverse law enforcement contingent. These train-ing cards help promote human rights concepts as playing a fundamental andcross-cutting role in PSOs.

3. Applicable Human Rights in PSOs

The foundation for applying human rights derives from both internationaland domestic law. The United Nations references several sources in applyinghuman rights standards to PSOs:21 Universal Declaration of Human Rights(UDHR, while not a treaty, but a General Assembly resolution, most provisionsare considered binding as a matter of customary international law); InternationalCovenant on Civil and Political Rights (ICCPR);22 International Covenant on

19 Ten Rules Code of Personal Conduct for Blue Helmets (Feb. 2007), availableat http://www.genderandpeacekeeping.org/resources/5_UN_Codes_of_Conduct.pdf.

20 See Appendices A and B to this chapter to read the Code of Conduct and thePrinciples for “We are Peacekeepers” and The Code of Conduct for Law EnforcementOfficials, GA Res. 34/169 (Dec. 17, 1979).

21 Human Rights Standards and Practice for the Police, United Nations 63 (2004).The text of these treaties may be obtained by contacting: Office of the United NationsHigh Commissioner for Human Rights, Palais des Nations, 8–14 avenue de la Paix, CH-1211 Geneva 10, Switzerland (Tel +4122 917 9159); additionally they are available online through a variety of sources.

22 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR]. There are twooptional protocols to the ICCPR, as well: Optional Protocol to the International Covenanton Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 302 (entered into force Mar.23, 1976); Second Optional Protocol to the International Covenant on Civil and PoliticalRights (aiming at the abolition of the death penalty), adopted by the UN General Assembly


Economic, Social and Cultural Rights (ICESCR);23 Convention against Tortureand Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT);24

Convention on the Elimination of All Forms of Racial Discrimination (CERD);25

Convention on the Elimination of All Forms of Discrimination Against Women(CEDAW) and its Optional Protocol;26 Convention on the Rights of the Child(CRC) and its two Optional Protocols.27 Other references include: InternationalConvention on the Protection of the Rights of All Migrant Workers and Membersof Their Families;28 Basic Principles on the Use of Force and Firearms by LawEnforcement Officials;29 Body of Principles for the Protection of All Personsunder Any Form of Detention or Imprisonment; Declaration of Basic Principlesof Justice for Victims of Crime and Abuse of Power; Declaration on theProtection of All Persons from Enforced Disappearance; Principles on theEffective Prevention and Investigation of Extra-legal, Arbitrary and SummaryExecutions; Guidelines on the Role of Prosecutors; Declaration on theElimination of Violence against Women; UN Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules); UN Standard Minimum Rules for the

on Dec. 15, 1989, GA Res. 128, UN GAOR 44th Sess., Supp. No. 49, at 207, UN Doc.A/44/824 (1989) (entered into force July 11, 1991), reprinted in 29 I.L.M. 1464 (1990).

23 International Covenant on Economic, Social and Cultural Rights, Dec. 16,1966, 993 U.N.T.S. 3 (entered into force, Jan. 3, 1976) [hereinafter ICESCR].

24 Convention against Torture and Other Cruel, Inhuman or Degrading Treatmentor Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter CAT].

25 Convention on the Elimination of All Forms of Racial Discrimination, Mar.7, 1966, 660 U.N.T.S. 195 [hereinafter CERD].

26 Convention on the Elimination of All Forms of Discrimination against Women,GA Res. 34/180, 34 UN GAOR Supp. (No. 46) at 193, UN Doc. A/34/46, entered intoforce Sept. 3, 1981. Optional Protocol to the Convention on the Elimination ofDiscrimination against Women, GA Res. 54/4, annex, 54 UN GAOR Supp. (No. 49) at5, UN Doc. A/54/49 (Vol. I) (2000), entered into force Dec. 22, 2000 [hereinafterCEDAW].

27 Convention on the Rights of the Child, GA Res. 44/25, annex, 44 UN GAORSupp. (No. 49), at 167, UN Doc. A/44/49 (1989), entered into force Sept. 2 1990. OptionalProtocol to the Convention on the Rights of the Child on the involvement of children inarmed conflicts, G.A. Res. 54/263, Annex I, 54 UN GAOR Supp. (No. 49), at 7, UNDoc. A/54/49, Vol. III (2000), entered into force Feb. 12, 2002. Optional Protocol to theConvention on the Rights of the Child on the sale of children, child prostitution andchild pornography, GA Res. 54/263, Annex II, 54 UN GAOR Supp. (No. 49), at 6, UNDoc. A/54/49, Vol. III (2000), entered into force Jan. 18, 2002 [hereinafter CERD].

28 International Convention on the Protection of the Rights of All Migrant Workersand Members of Their Families, GA Res. 45/158, annex, 45 UN GAOR Supp. (No. 49A),at 262, U.N. Doc. A/45/49 (1990), entered into force July 1, 2003.

29 Basic Principles on the Use of Force and Firearms by Law EnforcementOfficials, Adopted by the Eighth United Nations Congress on the Prevention of Crimeand the Treatment of Offenders, Havana, Cuba, Aug. 27 to Sept. 7, 1990, available athttp://www.unhchr.ch/html/menu3/b/h_comp43.htm.


Administration of Juvenile Justice (The Beijing Rules); UN Rules of theProtection of Juveniles Deprived of their Liberty; and Model Strategies andPractical Measures on the Elimination of Violence against Women in the Fieldof Crime Prevention and Criminal Justice.30

The most broadly recognized and applicable ones, however, are the UDHR,CAT, ICCPR and ICESCR. A PSO law enforcement capability that adheres tohuman rights is not only good policy but is also a legal obligation31 in thosecountries that are party to the above treaties and/or who should be expected toapply them, consistent with customary international law. Law enforcement needsto have a solid understanding of human rights obligations to uphold and trainindividuals on these standards.

4. Relationship Between Law Enforcement and Human RightsComponents

Human rights components perform a wide range of functions and providean integral part of a PSO.32 They report on human rights violations; work toprevent future abuses; assist to investigate and verify past violations; promoteand protect civil, cultural, economic, political and social rights; conduct capac-ity-building initiatives with local government and non-governmenatal organi-zations (NGOs); assist relevant accountability and reconciliation processes;collaborate with developmental and relief organizations; provide advice andguidance on human rights to PSO components; work with displaced persons;and integrate human rights with the demobilization of combatants.

Human rights components of the United Nations fall under the authorityof the Special Representative of the Secretary-General (SRSG). In November2002, an agreement between the Department of Peacekeeping Operations(DPKO) and the Office for the High Commission on Human Rights (OHCHR)set out the relationship between human rights components and PSOs.33 Thisjoint memorandum between the DPKO and OHCHR established how humanrights activities would function in a PSO. The substance of this agreementaddresses recruitment, OHCHR participation in planning and establishment ofhuman rights components of PSOs, status of human rights components andtraining responsibilities on human rights for those assigned to a PSO.34

30 Handbook on the United Nations Multidimensional Peacekeeping Operations,supra note 14, at 3.

31 COLETTE RAUSCH, COMBATING SERIOUS CRIMES IN POSTCONFLICT SOCIETIES: AHANDBOOK FOR POLICYMAKERS AND PRACTITIONErs 75 (2006).


33 Id., at 2.34 Memorandum of Understanding Between the Office of the High Commissioner


a. Role of Human Rights Components

Human rights components receive their mandate from Security Councilresolutions or through the General Assembly in order to ensure human rightsare properly addressed by the UN mission and receive operational guidancefrom the SRSG while also reporting to both DPKO and OHCHR.35 They mustengage humanitarian and development partners, support the peace process, sup-port accountability for violations of international crimes and promote sensiti-zation and training.36 They must promote human rights both internally withinthe UN mission and externally. Internally, they must work with PSO field oper-ations to include: international police, military personnel, political advisers andrule of law advisers. These components must promote human rights within theUN system, through the OHCHR, based on human rights treaties and UN humanrights procedures. Finally, human rights are promoted external to the PSO, withefforts directed towards host country government authorities, human rights insti-tutions, and civil society and NGOs.37 In certain circumstances, the work ofpolice may overlap with UN human rights components. In these cases, bothpolice and the human rights component can benefit from close coordination.38

b. A Beneficial Relationship

Because human rights are a central activity to the United Nations, UNPOLshould forge a close relationship with the human rights component of each mis-sion. This relationship can help in identifying vulnerable populations, enhanc-ing the capacity of the local justice sector and developing programs to train onhuman rights issues and information sharing. An example is Angola wherehuman rights components worked with various UN staffs to train on humanrights and gave this training to the local community and NGOs.39

Early involvement and collaboration with human rights components inpolice missions of a PSO can pay great dividends. Police can learn the uniquehuman rights issues involved in their mission and can use this understandingto make their mission a success for purposes of observation, advising, train-ing and becoming sensitive to the challenges facing the population they aresupporting.40

for Human Rights and the Department of Peace-Keeping Operations (Nov. 1999), avail-able at http://www.unhchr.ch/html/menu2/4/mou_dpko.htmp.


36 Id.37 Id.38 Id.39 Id.40 Id.


In the DRC human rights officers worked to locate mass graves with thehelp of forensic experts to document conflict-related human rights abuses tobe used for future accountability mechanisms.41 In other areas, including EastTimor and Sierra Leone, human rights officers worked to establish truth com-missions. In addition the human rights officers in Sierra Leone produced booksfor the local police to help in guiding their conduct during elections and to raiseawareness on war-related security violence.42 In the UN Mission to Ethiopiaand Eritrea (UNMEE), human rights officers designed a book for use by UNforces so that they could better understand the post-conflict issues affectingchildren, including HIV/AIDS, sexual abuse, child soldiers and landmines.43

5. Principles for Policing Within the Human Rights Mandate

Law enforcement requirements in a PSO can vary depending on the mis-sion, though a central theme remains constant—to build a functioning lawenforcement capability that operates competently and in accordance with humanrights standards. In some missions, the mandate is limited to advising and mon-itoring, while in others, UN law enforcement may be training or even activelyinvolved in policing tasks themselves, such as conducting investigations or com-munity policing under executive authority. Despite varying missions, law enforce-ment agents in a PSO must be well versed in the application of human rightsstandards. Depending on the mission, for example, expertise in training onhuman rights or specialized ability to understand particular issues such as traf-ficking in persons may be crucial. Yet in other instances, law enforcement per-sonnel operating in an executive mission would need to understand how topersonally implement rules relating to use of force, due process, and humanrights concerns.44

The principles of democratic policing can be of particular use in guidinglaw enforcement agents in their missions, whether this is restricted to observ-ing and reporting or it holds executive authority. The UN Human RightsStandards and Practice for Police enumerate principles that can guide policeforces in adhering to human rights standards as expressed in international law.45

Principles of Democratic Policing:

Representative Policing: Representative policing ensures that policepersonnel sufficiently represent the community they serve. This is

41 Id. at 4.42 Id.43 Id. at 9.44 Id. at 1.45 RAUSCH, supra note 31, at 75. See also C. DE ROVER, TO SERVE AND PROTECT:

HUMAN RIGHTS AND HUMANITARIAN LAW FOR POLICE AND SECURITY FORCES (1998).


accomplished in part through efforts to recruit minority groups andwomen through fair and nondiscriminatory recruitment policies. Thisform of policing is also based on human rights for all peoples beingprotected, promoted, and respected.

Responsive Policing: Responsive policing ensures that police are respon-sive to public needs and expectations. This is accomplished throughpreventing and detecting crime and maintaining public order throughlawful and human means. Police must also understand the needs andexpectations of the public they serve; and that police actions are respon-sive to public opinion and wishes.

Accountable Policing: Accountable policing envisions police activi-ties that are accountable to the law, as well as to individuals and insti-tutions in the state. Politically, the police are accountable to police andcitizen liaison groups and to the public through the democratic andpolitical institutions of government. Economically, the police areaccountable for the way they use resources allocated to them.46

Establishing the police as part of the community and serving the citizens, whilealso having structures in place for reporting human rights violations commit-ted by police helps to build trust and foster a police force that will be used bythe citizens. Integrating the principles of representative, responsive and account-able policing can further this aim.47

6. Setting the Scene for Success: The Right People With the Right Training

Deploying competent law enforcement capabilities that uphold human rightsis a critical factor for a PSO to establish rule of law in a society,48 but that canbe a hard thing to do. First, it is important to recall that the UN Charter envi-sions a standing military force to maintain international peace and security anduphold its key responsibilities. As this standing military force has never mate-rialized, each PSO becomes a massive exercise in recruiting eligible UN per-sonnel from willing countries. While sending police forces into a PSO ispolitically more acceptable for donor countries than deploying the military, theUnited Nations has had difficulty recruiting the number of UNPOL authorizedby the Security Council. This is due in part to operational concerns. Unlike themilitary, which is often in a state of reserve, police are actively filling domes-tic law enforcement requirements in their home country.49 Depleting often times

46 Id.47 Id.48 Id. at 74.49 The Brahimi Report, supra note 3, at 20.


short-staffed police forces is not in the interest of most police chiefs and politi-cians, not to mention pulling out their best and brightest to fulfill UN requestsfor a PSO.50

As a result, military forces find themselves serving in a law enforcementrole. The concept of using the military as a police force instead of deployinglaw enforcement officials can be challenging from a human rights and an oper-ational perspective. Militaries are primarily trained to kill and destroy, so train-ing them to take appropriate law enforcement action in response to situationsin a PSO is a tall order, even with significant training time. This dilemma issummed up by a quote from US Army General Wesley Clark: “Experience inpeace operations has proven that good soldiers, no matter how well equipped,trained and led, cannot fully perform police duties among local populations.”51

As the military looks to avoid law-enforcement-related missions, UNPOL forcesare being looked to as the primary source for police activities in a PSO.

Accordingly, the United Nations finds itself having to call around in a ratherpiecemeal approach to fill slots for a mission that is invariably short-staffed.This ad hoc approach results in a police component of a PSO with multiplecountries (sometimes over 40 countries contributing law enforcement agents)represented with varying degrees of experience.52 As a result, a significantamount of time is absorbed in the field forging a standardized and unified teamcomposed of police from numerous countries, combined with vetting police toensure that countries sent the right people with the right training. The UnitedNations sometimes f inds itself having to make diff icult decisions to senddeployed personnel back home when unqualified individuals are sent, as thiscan undermine the credibility and the ultimate success of a mission.

Even though more needs to be done on the part of the United Nations anddonor countries, the United Nations has established minimum requirements forlaw enforcement personnel to be deployed. The requirements relate to havingcompetencies in the following activities, summarized with the acronym SMART:Supporting human rights; Monitoring the performance of local law enforce-ment; Advising indigenous police; Reporting on the situation; and Traininglocal police officers.53

Previously, the primary duty of UNPOL was to monitor and report on humanrights violations and rule of law standards. This mandate expanded to co-locat-ing UN law enforcement with indigenous police forces, training local policeforces, supporting international military forces in confiscating illegal weapons,

50 ROBERT M. PERITO, WHERE IS THE LONE RANGER WHEN WE NEED HIM? AMER-

ICA’S SEARCH FOR A POSTCONFLICT STABILITY FORCE 92 (2004).51 Jeffery Smith, Fired On, Marines Kill Gunman in Kosovo, WASH. POST, June

26, 1999, A17.52 The Brahimi Report, supra note 3, at 20. See also generally ROBERT B. OAK-

LEY, MICHAEL J. DZIEDZIC & ELIOT M. GOLDBERG EDS., POLICING THE NEW WORLD DISOR-

DER: PEACE OPERATIONS AND PUBLIC SECURITY (1998).53 PERITO, supra note 50, at 88.


participating in operations to return displaced persons and assisting in the elec-tion process to support free and fair elections. The expansion continued, tak-ing a historic step in 1999, when the Untied Nations granted full executiveauthority to UNPOL in Kosovo and in East Timor. This grant of executive author-ity changed the general rule that UNPOL provided support to local law enforce-ment but would not replace them.54

Once a country elects to send police to participate in a PSO, the UN pol-icy is to require adequate training by the donor nation to meet UN standardsand be fully qualified to perform assigned duties. To assist, the United Nationshas provided numerous publications, including Selection Standards and TrainingGuidelines for United Nations Civilian Police, Human Rights Standards andPractice for Police and course outlines to train police. It is no surprise that evenwith some guidance, the variance in experience is wide.

Training in only the SMART concept assumes that police will be unarmedand not carry out executive missions. The training provided by host nations isinvariably too simplistic, and does not include an emphasis on cultural, social,legal, political and personal issues that are essential for ensuring a force under-stands and adheres to human rights standards.55

In 1992, the UN Transitional Authority in Cambodia (UNTAC) had no realrequirements for police participation. Many police were returned home, or giventraining by the United Nations in Cambodia. Nonetheless, there were humanrights problems. The UN Protection Force in Bosnia and Herzegovina (UNPRO-FOR) responded to the problems encountered in Cambodia by establishing base-line requirements for deploying law enforcement to PSOs, which included: aminimum of five years police experience; the ability to drive a four-wheel vehi-cle; and the ability to speak and write the working language of the mission(English). Many of the law enforcement personnel failed even these simplerequirements.56 To analyze this problem and help remedy it, the Lester B. PearsonInternational Peacekeeping Training Center in Canada conducted a seminar onCIVPOL qualifications in 1996. The seminar produced a list of criteria forfuture CIVPOL forces:

• has citizenship in the sending country (for jurisdiction purposes);• is a sworn member of the police force;• possesses between five and preferably eight years of active commu-

nity policing experience;• has the ability to meet UN health standards; • maintains a valid 4 × 4 driving license; • possesses speaking and writing ability in their native language and the

mission language;

54 Id. at 89.55 Id. at 94.56 Id.


• has competence in the use of firearms; and • possesses impeccable personal and professional integrity.57

The United Nations also developed job descriptions to target the types ofpolice desired for specific areas that further helped to match the right personwith the right job.58 These efforts produced higher quality police who werealigned with appropriate jobs, resulting in better performance and bringinggreater stability to the UN police force and the host nation, and greater likeli-hood that human rights would be observed and be promoted.59

C. TRAINING LAW ENFORCEMENT AGENTS IN HUMAN RIGHTS

Human rights training is now an accepted part of any training curriculumfor law enforcement agents deploying to a UN mission. Even countries thatmay not have the most impressive human rights records understand its impor-tance for a PSO. Proper training before and during deployment plays a criticalrole for law enforcement agents to properly observe, report, advise and con-duct themselves in accordance with international standards.

Human rights training must reflect UN policy. It should be cross-cuttingand should not be conducted as a separate topic or a “mere ‘add-on’ to the ‘real’policing skills . . . [r]ather, every aspect of policing, from stops and searches,making arrests, conducting interrogations and securing the crime scene, shouldinclude human rights principles and practices.”60 Human rights concepts mustbe at the center of all law enforcement training both at the domestic and inter-national levels. For this to occur, nations, international organizations, and NGOsneed to devote more attention towards improving the training of law enforce-ment personnel prior to deployment in a PSO. The seminal report on PSOs—the Brahimi Report—was clear in its assessment that the training of personneldeployed in peace operations needed to improve.61

1. Methods of Training

Training in this area may vary but generally includes presentations and lec-tures, panel discussions, round-table discussions, working groups, case-stud-

57 Id.58 Id.59 Id. 60 William G. O’Neill, Police Reform and Human Rights, A HURIST Document

at 4–5 (July 20, 2004), available at http://www.undp.org/governance/docs/HR_Pub_PoliceReform&HR.pdf.

61 The Brahimi Report, supra note 3.


ies, problem solving/brainstorming, scenarios, simulations and role playing,distance learning, as well as the rarely used but very effective field exercises.62

2. Basis for Human Rights Training

In addition to UN policy, the basis for training on human rights is derivedfrom the same human rights treaties. As noted earlier, trainers look to the UNCharter and the UDHR along with the specific international treaties, includingICCPR,63 ICESCR,64 CAT,65 CERD,66 CEDAW67 and CRC.68 Specifically, Article10 of the CAT requires each state party to train their law enforcement person-nel on the prohibition of torture.69 Another important aspect of human rightstraining for law enforcement includes international humanitarian law (IHL).70

IHL is the lex specialis applicable during armed conflict; however a baselineof human rights law is always applicable. It is important that law enforcementpersonnel understand IHL because they may be called upon in a PSO to inves-tigate IHL violations in order to assist in ending impunity or in the event thatthe level of violence increases, and the mission slides towards armed conflict.71

62 LAURIE R. BLANK & GREGORY P. NOONE, LAW OF WAR TRAINING: RESOURCES FOR

MILITARY AND CIVILIAN LEADERS (Forthcoming). See also Professional Training SeriesNo. 5: Human Rights and Law Enforcement (A Manual on Human Rights Training forthe Police) 10–11 (Feb. 28, 2007), available at http://www.ohchr.org/english/about/pub-lications/docs/PTS5_En.pdf. United Nations High Commissioner for Human Rights,Center for Human Rights, Geneva, developed the “Professional Training Series” of hand-books and manuals for the training of target audiences that influence human rights atthe domestic level. The training materials are useful for any human rights training forlaw enforcement, judges, prosecutors, lawyers and corrections officials and can be foundat http://www.ohchr.org/english/about/publications/training.htm.

63 ICCPR, supra note 22. 64 IESCR, supra note 23. 65 CAT, supra note 24. 66 CERD, supra note 25. 67 CEDAW, supra note 27. 68 CRC, supra note 28. 69 CAT, supra note 25, at art. 10.70 The “law of armed conflict” and the “law of war” are synonymous terms

encompassing the laws and customs of war based upon both the Geneva and HagueConventions and customary international law. The term “international humanitarian law”is also often used interchangeably with the law of armed conflict and the law of war,but it generally refers to a broader category of laws and principles encompassing notonly the traditional laws of armed conflict, including war crimes, but also laws relatedto genocide and crimes against humanity. See BLANK & NOONE, supra note 62.

71 UN Secretary-General’s Bulletin, Observance by United Nations forces ofinternational humanitarian law, ST/SGB/1999/13 (Aug. 6, 1999).


Human rights training may also be impacted by the domestic or municipallaws of each nation and any regional agreements that a nation may be requiredto adhere to as well. Some examples are: the European Convention for theProtection of Human Rights and Fundamental Freedoms (ECHR), the AmericanConvention on Human Rights (ACHR), and the African Charter on Human andPeoples’ Rights (ACHPR).72

3. UN Training

The UN human rights training of personnel prior to deployment extendsto all levels of the mission—from senior mission leaders to the most juniormember of the PSO.73 The United Natins has two easily available methods.First, it has a library of prepared training modules focused on core areas. TheseStandardized Generic Training Modules (SGTMs) are readily available and maybe used by UN training teams or may be adapted by nations who want to pro-vide pre-deployment (or regular) training in order to better prepare their per-sonnel for deployment in a PSO. Their purpose is to provide the essentialinformation required for those participating in a PSO. Included among the coretopics is an SGTM entitled “Human Rights in Peacekeeping.”74 This “describesconcepts, principles and norms of human rights and their application in thepeacekeeping context.”75 It is designed for two separate sessions, with the firstbeing a lecture with one-third of the time designated for questions and answers,and the second session consists of small group discussions of a scenario cul-minating in a plenary discussion. The United Nations has also developed a

72 European Convention for the Protection of Human Rights and FundamentalFreedoms (as amended through Nov. 1998) (ECHR), Nov. 4, 1950, 213 U.N.T.S. 221.The American Convention on Human Rights (ACHR), Nov. 22, 1969, 1144 U.N.T.S.123; reprinted in Basic Documents Pertaining to Human Rights in the Inter-AmericanSystem, OAS/Ser. L/V/I.4 rev. 7 at 23 (2000). The African Charter on Human and Peoples’Rights (ACHPR) (“Banjul Charter”), June 26, 1981, OAU Doc. CAB/LEG/67/3 Rev. 5;reprinted in 21 I.L.M. 59 (1982).

73 For example, as part of the executive training for the mission’s senior man-agement team is a civilian police scenario that improves the understanding of the lawenforcement component and also reinforces human rights concepts. See the UN DPKOIntegrated Training Service’s Senior Mission Leaders Course “UN Police Module”(Materials provided to the authors by the UN DPKO).

74 Some of the other core topics are: Peacekeepers’ Introduction to the UN;Structure of UN PSO; Legal Framework for UN PSO; Code of Conduct; CulturalAwareness; Child Protection; Prevention of Sexual Exploitation and Abuse; and GenderEquality in Peacekeeping. See Standardized Generic Training Modules for United NationsPeacekeepers (Feb 22, 2007), available at http://www.un.org/depts/dpko/training/sgtm/main.htm.

75 SGTM 08, supra note 6, at 1.


“Train the Trainers” curriculum for UNPOL so that select law enforcement per-sonnel on a PSO may act as a trainer within the PSO.76 The training is designedto ready UNPOL officers so that they may train (or retrain) the local law enforce-ment personnel. A critical component of the local training effort is human rights.

The second method of training is accomplished through the UN Institutefor Training and Research Program of Correspondence Instruction (UNITARPOCI).77 UNITAR offers 18 courses, over half of which are geared towardsPSOs, including one specifically for UNPOL. The UNITAR courses are self-paced and designed for individual enrolment, but they are also valuable resourcesfor trainers of deploying law enforcement personnel.78

Training from external sources such as the United Nations is critical fornations that do not have any existing programs, especially those with a smallbudget. External training may provide instruction in PSO and human rights andthereby eliminate the need for a costly internal program. For other countries,external training can at least serve as an interim option. Governments can alsoarrange for foreign instructors or units to come to them to provide training togroups prior to deployment. The US Defense Institute for International LegalStudies (DIILS), for example, provides an average of 65 training sessions formore than 2,000 participants in 40 countries each year focusing on human rightsand the rule of law.79 Since its inception more than 15 years ago, DIILS hastrained more than 27,000 military and civilian personnel (many of whom prepar-ing for service in UN missions) in one 135 countries around the world.80

Another method of external training involves sending law enforcement per-sonnel to attend one of many courses offered in a small number of countries.Courses designed for UNPOL participants are offered at the following sites andinclude:81

76 The UN curriculum was developed with the assistance of Peacekeeping TrainingCenters from the United Kingdom, Norway, Germany, Russia and Singapore. Seehttp://www.un.org/Depts/dpko/training/.

77 Available at www.unitarpoci.org. 78 UNITAR charges a course enrollment fee for their distance learning program,

and their materials are available in print, on CD or for download. See www.unitarpoci.org. 79 BLANK & NOONE, supra note 62. 80 Id. DIILS also offers resident PSO courses. See http://www.dsca.osd.mil/DIILS

for more information about DIILS.81 There were reports in 2002 that the Academy of the Chinese People’s Armed

Police Force (ACPAPF) in Langfang, China would be the site of the “largest trainingcenter in Asia” for civilian police on UN missions. See Langfang Homes to Asia’s LargestUN Police Training Center, XINHUA NEWS AGENCY, Aug. 19, 2002, available athttp://www.china.org.cn/english/2002/Aug/39878.htm. See also China to Build Asia’sLargest UN Police Training Center, PEOPLE’S DAILY ONLINE, Aug. 20, 2002, available athttp://english.people.com.cn/200208/20/print20020820_101732.html.

In October of 2004, UN Secretary-General Kofi Annan visited the 14,000-square-meter training center compound at Langfang, which was completed in 2003 for the pur-pose of training civilian police for UN peacekeeping missions. Activities of the


• Centrex Central Police Training and Development Authority (UnitedKingdom): Regional Civilian Police Train the Trainers Course;82

• Chilean Peacekeeping Training Course (CECOPAC) (Chile): UN PoliceCourse;83

• The Danish National Police College (DNPC) (Denmark): InternationalPolice Basic Course (IPBC);84

• The Kofi Annan International Peacekeeping Training Center (KAIPTC)(Ghana): Civil Police Foundations Course;85

• Police Academy Baden-Wuertemberg (Germany): Basic Police OfficersCourse, and the European Police Mission in Bosnia and Herzegovina;86

• Russian Police Peacekeeping Training Center (Russia): UN CivilianPolice Training Course;87

• The Swedish Armed Forces International Center (SWDINT) (Sweden):UN Police Commander Course (UNPCC), UN Police Officers Course(UNPOC) and the International Police Development Course (IPDC).88

The curriculum of each of these law enforcement training programs emphasizeshuman rights as well as international criminal justice standards. Still other coun-tries like Switzerland and New Zealand offer training for troops that will be serv-ing with their own national troops in peacekeeping operations.89 The SouthernAfrican Development Community (SADC) also offers their Training for Peace(TfP) for law enforcement personnel with over half the curriculum geared towardshuman rights.90 This program was initiated by, and still presently sponsored byNorway.91 The Organization for Security and Cooperation in Europe (OSCE)Office for Democratic Institutions and Human Rights does not provide trainingfor UNPOL personnel but does provide for law enforcement training.92

Secretary-General in China, 9–13 October 2004, available at http://www.un.org/News/Press/docs/2004/sgt2421.doc.htm. In a press conference on May 30, 2006, at thePermanent Mission of the People’s Republic of China to the United Nations the train-ing center was again mentioned, available at http://www.china-un.org/eng/fyrth/t255751.htm. However, our continued research has failed to find specific training informationregarding this entity.

82 Available at http://www.centrex.police.uk/.83 Available at http://www.cecopac.cl/. 84 Available at http://www.politi.dk. 85 Available at http://www.kaiptc.org. 86 Available at http://www.akademie-der-polizei-bw.de/. 87 Available at http://www.ptc.h10.ru. The PTC training combines UN SGTMs

and Russian presentations and exercises.88 Available at http://www.swedint.mil.se/index.php?lang=eng.89 BLANK & NOONE, supra note 62.90 Available at http://www.trainingforpeace.org/background/bg.htm.91 Id.92 Available at http://www.osce.org/odihr/.


4. Domestic Training by Countries

All nations conduct some pre-deployment training of law enforcement per-sonnel to a PSO. However, the level varies greatly and often is encumbered bytime restrictions, financial constraints and/or domestic policies and politics.The aforementioned training programs in Denmark, Chile, Sweden, etc., obvi-ously greatly benefit their nations’ law enforcement personnel prior to deploy-ment. But these countries are the only ones dedicating resources in order toconduct this important training at a sustained level of proficiency in establishedtraining centers. In contrast, the US Department of State has hired a contrac-tor to recruit, select, equip, and train US civilian police prior to deployment.93

The United States paid the private company DynCorp over US$211 millionbetween 1996 and 2001 for this contract.94 “DynCorp provides only approxi-mately ten days of training before handing them over to the UN”95 Most of thetraining conducted is focused “on screening and personal skills testing.”96 In arecent course, DynCorp’s sub-contractor provided the law enforcement per-sonnel with approximately 133 hours of training prior to deployment.97 Thisconsisted of one hour for human rights, one hour for trafficking in persons andone hour for rule of law. There was however eight hours for sexual harassmenttraining indicating the importance of that issue and accompanying laws in theUnited States.98 The remainder of the training continues to be primarily focusedon screening, weapons and operational training.

D. EFFECTIVENSS OF TRAINING

While it is always difficult to assess whether training programs are effec-tive, the key benchmark is whether they result in fewer, or ideally no, humanrights abuses. While the United Nations does provide model training programs,

93 Fact Sheet: The United States and International Civilian Policing, U.S.Department of State, Bureau for International Narcotics and Law Enforcement Affairs,(May 18, 2005) at http://www.state.gov/p/inl/rls/fs/47799.htm.

94 Rachel Bronson, When Soldiers Become Cops, FOREIGN AFF., at 122 (Nov.–Dec.2002). This dollar amount obviously does not reflect the money paid to DynCorp for itscontract work in this field regarding Afghanistan and Iraq.

95 Id. 96 Robert M. Schoenhaus, Training for Peace and Humanitarian Relief

Operations: Advancing Best Practices, United States Institute of Peace Peaceworks No.43, at 27 (Apr. 2002).

97 Interview on file with authors (Jan. 2007).98 This may also reflect lawsuits filed against DynCorp for the sexual miscon-

duct of its personnel. See Andrew Higgins, As it Wields Power Abroad, U.S. OutsourcesLaw and Order Work, WALL ST. J., Feb. 2, 2004, at A1.


more than 70 individual contributing states are responsible for training theirown personnel, and accordingly, the effectiveness and level of training mayvary.99 In addition, UNPOL and military members serve under different rulesand disciplinary regimes, which can complicate both training and accounta-bility.100 Also, many countries continue to train using the 1995 UN guidelines,which assume that UNPOL will be unarmed, rather than training them in mis-sions where they may have executive authority and will be armed, such as Kosovoand East Timor.101

1. Misconduct

As a result of these and many other challenges, and despite the myriadtraining and enforcement efforts to date, there have been significant incidentsof misconduct by international personnel participating in PSOs. These haveoccurred in Bosnia-Herzegovina (BiH), Burundi, Côte d’Ivoire, Haiti, Kosovo,Liberia, and perhaps most notably, in the DRC.102 Sexual exploitation and abusealone have occurred in BiH, Kosovo, Cambodia, East Timor, West Africa andthe DROC.103 While more recent PSOs have benefited from some lessons ofthose earlier in time, unfortunately, history has repeated itself in certain oper-ations and the United Nations has not been able to adequately ensure that inter-national personnel will comply with UN human rights standards and training.A few illustrative examples are provided below.

2. Case Studies

a. Balkans

During the mid-1990s, the influx of international personnel responding tothe conflict in the Balkans resulted in an increase in prostitution, brothels andtraff icking in women, especially in BiH. UN personnel were implicated ininvolvement with trafficked women and in prostitution, requiring the UnitedNations to take action. In certain instances, this resulted in disciplinary meas-ures, including repatriation of individuals, but more broadly required the Untied

99 PERITO, supra note 50, at 93.100 Comprehensive review of the whole question of peacekeeping operations in

all their aspects, UN GAOR, 59th Sess., Agenda Item 77, UN Doc. A/59/710, at 13–15(Mar. 24, 2005) [hereinafter Sexual Abuse Report].

101 PERITO, supra note 50, at 93. 102 RAUSCH, supra note 31, at 152.103 Sexual Abuse Report, supra note 100, at 7.


Nations to augment education and training on trafficking and sexual abuses.Kosovo also saw an increase in trafficking in women and prostitution as inter-national peacekeepers flooded in.104 To address this, and perhaps learning fromthe BiH experience, the UNMIK police created a code of conduct and an inter-nal investigative unit. The police commissioner also enforced a strict discipli-nary regime from the beginning of the operation, which included repatriationwhere appropriate.105

b. Sierra Leone

West Africa and MONUC had perhaps the most significant allegations ofsexual abuse. Following allegations, raised by Human Rights Watch, of sexualviolence committed by personnel assigned to UNAMSIL, which included therape of a 12-year old girl by a Guinean-contingent member and the gang rapeof a woman by Ukrainian-contingent members,106 the UN Security Council in2002, in Resolution 1436, encouraged UNAMSIL to continue its programs foracts of sexual exploitation and abuse, and also called on states concerned totake “necessary measures to bring to justice their own nationals responsible forsuch crimes.”107 Appropriate responses by donor nations comprise a key ele-ment to better ensure accountability. This is discussed more fully in the nextsection. In addition, on October 15, 2003, the Secretary-General also promul-gated a comprehensive set of mandatory rules prohibiting sexual exploitationand abuse.108

c. Democratic Republic of the Congo

Despite the increased focus and prohibition on such abuse, in early 2004,allegations of sexual exploitation and abuse began to hit the media involvingthe MONUC in the DRC. In the region of Bunia alone, there were 72 allega-tions of sexual exploitation and abuse that were investigated by the UN Officeof Internal Oversight Services between June 2004 and September 2004—ofwhich eight were corroborated.109 The United Nations dispatched a DPKO/Office

104 RAUSCH, supra note 31, at 152.105 Id. 106 Irin-News, Our Bodies—Their Battle Ground: Gender-based Violence in

Conflict Zones, IRIN IN-DEPTH (2007), available at http://www.irinnews.org/In-DepthID=20&ReportId=62822.

107 SC Res. 1436 (Sept. 24, 2002).108 Sexual Abuse Report, supra note 100, at 7.109 Sixteenth report of the Secretary-General on the United Nations Mission in

the Democratic Republic of the Congo, at 15, UN Doc. S/2004/1034 (Dec. 31, 2004).


of Human Resources team to MONUC to examine the specif ic allegationsbrought against military and civilian personnel in other areas of the mission aswell, initiated an awareness campaign in the mission and developed measuresto provide medical and psychosocial assistance to the victims of abuse.110 Asa result of the actions, MONUC staff members were placed on suspension, andat least one international civilian staff member was repatriated home for crim-inal trial on charges of rape, sexual aggression, corruption of female minorsand possession of pornographic pictures of female minors.111

3. The United Nations Responds on Sexual Exploitation and Abuse

Following the allegations of abuse in the DRC, the Secretary-Generalannounced an across-the-board “zero tolerance” policy for sexual exploitationand abuse, and the UN Headquarters established an interdepartmental task forceto coordinate actions and responses to allegations of sexual exploitation andabuse committed by personnel involved in peacekeeping missions, sought meas-ures to prevent such abuse, and developed a program to handle long-term pol-icy issues.112

In July, 2004, the Secretary-General further requested that the PermanentRepresentative of Jordan, Prince Zeid Ra’ad Zeid Al-Hussein, serve as hisadviser in addressing sexual exploitation and abuse committed by all categoriesof personnel in peacekeeping contexts.113 Given the number of alleged abuses,the Secretary-General commissioned Prince Zeid to issue a report in March2005 exploring the allegations and recommending ways to ensure accounta-bility.114 In the cover letter by the Secretary-General to Prince Zeid’s report, heacknowledged that UN personnel had engaged in “unconscionable conduct”and that it was clear that previous measures to prevent sexual exploitation andabuse were “manifestly inadequate.”115 The report concluded that sexual exploita-tion and abuse were widespread in peacekeeping operations and that the UnitedNation’s efforts to combat the abuse were not adequate.116 The report identi-fies as a key problem the fact that different rules and disciplinary proceduresapply for military personnel and UNPOL and recommends that all personnelbe bound by the same mandatory prohibitions set out by the Secretary-Generalin 2003.117 It also made additional recommendations for how to strengthen

110 Id. at 15–16.111 Id. at 16. 112 Id.113 Id.114 RAUSCH, supra note 31, at 153. 115 Sexual Abuse Report, supra note 100, at 1.116 Id. at 9. See also, RAUSCH, supra note 31, at 153.117 Id. at 10, 13–14.


accountability through improved investigations, using qualified personnel insex crimes and crimes against children, and the establishment of memorandaof understanding between contributing nations and the United Nations on inves-tigations.118 It further advocated greater transparency, including the idea ofholding courts martial on site in areas where abuse has occurred, victim assis-tance and increased criminal prosecution for offenders.119

The United Nations continued its efforts in 2006 and prepared a compre-hensive report on sexual exploitation and sexual abuse in May,120 and in October,the Secretary-General commissioned a group of legal experts to consider optionsfor strengthening the policy of zero tolerance for abuse.121 This legal expertgroup considered whether it was possible to standardize the binding obligationson all UN personnel and concluded that it did not.122 However, it concludedthat it was possible and necessary to standardize the conduct cards that all per-sonnel carry.123

While it is true that the vast majority of international personnel engagedin PSO comply with UN and other international human rights standards, thereare some who abuse their positions of authority.124 When this occurs, it is essen-tial that the perpetrators are held accountable in transparent procedures in orderto maintain the credibility and integrity of the peace operation as a whole.125

Some of these mechanisms are set forth in the following section.

E. ENFORCEMENT AND DISCIPLINARY MECHANISMS

To better ensure that UN personnel comply with human rights standardsguidelines, and associated training, a robust program of enforcement and dis-ciplinary mechanisms must be in place. The United Nations established such a

118 Id. at 13–16.119 Id. at 16–31.120 Comprehensive report prepared pursuant to General Assembly resolution

59/726 on sexual exploitation and sexual abuse, including policy development, imple-mentation and full justification of proposed capacity on personnel conduct issues, UNGAOR, 60th Sess., Agenda Item 136, UN Doc. A/60/862 (2006).

121 Secretary-General Appoints Legal Expert Group Aimed at StrengtheningPeacekeeping Zero Tolerance Policy on Sexual Exploitation, UN Doc. SG/A/1023,PKO/148, DPKO (2006), available at http://www.un/org/News/Press/docs/2006/sga1023/doc/htm.

122 Making the standards contained in the Secretary-General’s bulletin bindingon contingent members and standardizing the norms of conduct so that they are appli-cable to all categories of peacekeeping personnel, UN GAOR, 61st Sess., Agenda item33, UN Doc. A/61/645 (2006).

123 Id.124 RAUSCH, supra note 31, at 153.125 Id.


program through its various bulletins, guidance and directives. This section pro-vides a detailed description of the current directives and policies that ensure afair and independent investigation is initiated and that effective disciplinarymeasures are taken.

1. UN Police Officers and Military Observers

The United Nations developed a series of directives to ensure that allega-tions of serious or other misconduct by its personnel engaged in peacekeepingor other field missions are conducted in a consistent, thorough and effectivemanner. When allegations of misconduct arise regarding police officers andmilitary observers, the applicable directive is the “Directive for DisciplinaryMatters Involving Civilian Police Off icers and Military Observers”126

(Disciplinary Directive for Civilian Police Officers and Military Observers).When human rights violations rise to the level where possible disciplinary actionis needed, the rules applied for misconduct are followed.

a. Serious Misconduct

For police officers and military observers cases of “serious misconduct”is defined as:

[a]ny act, omission, or negligence, including criminal acts, that is aviolation of mission standard operating procedures, directives, or anyother applicable rules, regulations or administrative instructions, thatresults in or is likely to result in serious damage or injury to an individual or to the mission. Serious misconduct includes, but is notlimited to:

— Sexual abuse and exploitation of any individual, particularlychildren;

— Harassment, including sexual harassment; — Abuse of authority; — Excessive use of force;— Unlawful discharge of firearms;— Breach of confidentiality;— Abuse of United Nations privileges and immunities;— Conduct prejudicial to good order and discipline;

126 Directives for Disciplinary Matters Involving Civilian Police Officers andMilitary Observers, UN Docs. DPKO/CPD/DDCPO/2003/001 and DPKO/MD/03/00994(2003) available at http://www.peacewomen.org/un/pkwatch/discipline/CivpolandUNMOsDirectives.pdf.


— Driving while intoxicated or other grossly negligent driving;— Intoxicated while on duty or in public on repeated occasions; — Repeatedly absent from duty without permission;— Use, possession or distribution of illegal narcotics;— Embezzlement or other financial malfeasance;— Willful disobedience of a lawful order; — Unlawful acts (e.g. theft, fraud, smuggling, bribery) on or off

United Nations premises, with or without the involvement of UnitedNations vehicles and whether or not the individual was officiallyon duty at the time of the offence.127

When allegations of serious misconduct arise against police officers or mili-tary observers, the Head of Mission is to be notified immediately and must ini-tiate a preliminary investigation.128 This is to take place, including a determinationon administrative action to be taken, before the individual is permitted to leavethe mission or is repatriated home.129 The preliminary investigation, when pos-sible, must be conducted by officials with relevant expertise in the type of mis-conduct being investigated and “in accordance with internationally recognizedprinciples of due process and fairness.”130 It should also be conducted withrespect to confidentiality, and unauthorized disclosure can result in discipli-nary measures against the investigating team.131 Interviews must be conductedin the preferred language of the individual, and minors shall only be interviewedin the presence of an adult of their choice.132 Evidence collected during the pre-liminary investigation must be logged in, with a description of how and whereit was collected, and placed in a secure location.133 At the conclusion of the pre-liminary investigation, a report is prepared that contains findings of fact134 andall of the evidence, statements and other relevant records.135 If the preliminaryinvestigation indicates that serious misconduct may have occurred, the Head ofMission must report to UN Headquarters, which then must notify the nationalauthorities of the country concerned, and the Head of Mission must convene aBoard of Inquiry.136

The latter should begin within 48 to 72 hours after the preliminary inves-tigation is completed and is designed to establish the facts of the case, deter-

127 Id. at 2–3.128 Id. at 4.129 Id. 130 Id. at Annex B: Guidelines for Preliminary Investigations, at 14 hereinafter

Annex B].131 Id. at Annex B, at 15.132 Id. at Annex B, at 16.133 Id. at Annex B, at 20–21.134 Id. at Annex B, at 22–23.135 Id. at 5.136 Id.


mine cause and responsibility of the incident, and make recommendations forappropriate administrative action, including repatriation as appropriate.137 TheBoard of Inquiry is not a judicial process and does not consider questions oflegal liability; however, it may assist the participating state in its own investi-gation of the event in accordance with national disciplinary proceedings.138 Itis composed of at least three impartial, senior officials who serve in their indi-vidual capacities and are appointed by the Head of Mission with considerationto gender and geographic representation.139 The Board’s final report, includingits recommendations, are reviewed by the Head of Mission in consultation withany appropriate personnel, such as the Mission Legal Officer or Medical Adviserprior to a determination of the action to be taken.140 The report is forwarded tothe UN Headquarters in New York, including the decision of the Head of Missionand a determination of measures that will be taken to implement the decision.The Head of Mission also must notify the commanders or other supervisorscharged with maintaining discipline so that any disciplinary measures decidedupon are imposed.141 UN administrative and disciplinary actions may includeremoval from command position, deployment to another position, removal ofUN personnel benefits, suspension of leave or time off, recovery of missionsubsistence allowance in cases of financial loss to the United Nations, repatri-ation, or written censure or reprimand, which may include a recommendationthat the individual not be eligible for future assignment with the UnitedNations.142 Additionally, the individual may be subject to national disciplinaryproceedings, and accordingly, the report of the misconduct and action that wastaken must be forwarded to UN Headquarters so that they may notify thePermanent Mission concerned.143 If an individual departs the mission withoutauthorization, the members state will be required to return him/her to the mis-sion to facilitate the disciplinary process. Conversely, if his/her continued pres-ence at the mission is harmful to staff morale, then he/she should be repatriatedas quickly as possible.144

b. Minor Misconduct

For civilian police officers and military observers cases of “minor mis-conduct” is defined as: “[a]ny act, omission, or negligence, including criminalacts, that is a violation of mission standard operating procedures (SOPs), direc-

137 Id. 138 Id. 139 Id.140 Id. 141 Id. at 6.142 Id. 143 Id. 144 Id. at 7.


tives, or any other applicable rules, regulations or administrative instructions,but which does not result in or is not likely to result in major damage or injuryto any individual or the mission.”145 Examples include improper uniform appear-ance, neglect in performance of duty, public intoxication or intoxication whileon duty, negligent driving, malingering and absence from duty without per-mission.146 Minor misconduct committed by police off icers and militaryobservers is handled by their commanders or other supervisors per the ordinaryrules, mission directives and other administrative procedures.147

2. Military Members of National Contingents

When allegations of misconduct arise regarding military members of nationalcontingents, the applicable directive is the Directive for Disciplinary MattersInvolving Military Members of National Contingents148 (Disciplinary Directivefor Military Members). This lays out similar procedures as set forth in the pre-vious section regarding the disciplinary procedures for police officers and mil-itary observers.

a. Serious Misconduct

For military members of national contingents, the definition of “seriousmisconduct” is the same for police officers and military observers.149 The pro-cedures for conducting a preliminary investigation and a board of inquiry arealso the same with a few minor exceptions on notification. In the case of mil-itary members of national contingents, if a board of inquiry is conducted, thisdoes not rule out any measures that the national contingent commander maytake on an interim basis or the conduct of a national investigation in accordancewith that nation’s rules and procedures.150

b. Minor Misconduct

For military members of national contingents, acts of “minor misconduct”are defined similarly; however, they are handled differently. While police and

145 Id. at 3.146 Id. 147 Id. at 2.148 Directives for Disciplinary Matters Involving Military Members of National

Contingents, UN Doc. DPKO/MD/03/00993 (2003), available at http://www.peace-women.org/u/pkwatch/discipline/MilitaryDirectives.pdf.

149 Id. at 2.150 Id. at 5.


military observer cases are handled by their commanders or other supervisorswithin the UN system,151 for those military members of national contingents,the responsibility for taking action normally falls to the national contingentcommander, as stipulated in national military laws and guidelines, and in con-formity with mission directives and other administrative procedures.152

c. Legal Status

One key area of distinction between police officers, military observers andthe military members of national contingents is in the legal status they retainwhile serving in the UN peacekeeping or other field operation and are chargedwith a criminal offense. Military members of national contingents are subjectto the exclusive jurisdiction of their participating state for any criminal offensethat they commit within the mission.153 They are immune, however, for all actsperformed by them in their official capacity.154 These military members of nationalcontingents are subject to civil disputes or claims in the host nation that are notrelated to their official functions.155 Police and military observers enjoy a slightlydifferent legal status and benefit from the status of “experts of performing mis-sions” for the United Nations, which provides immunity for any official actsthey perform.156 This privilege derives from the 1946 Convention on the Privilegesand Immunities of the United Nations.157 Apart from this, which the Secretary-General can and must waive if immunity would “impede the course of justice,”police officers and military observers are subject to the jurisdiction of the hostcountry or territory for the criminal offenses they commit as well as the civildisputes or claims that are not related to their official duties.158

3. Sexual Harassment or Sexual Exploitation

While sexual abuse is a violation of human rights, sexual harassment andexploitation are also taught in the human rights curriculum. The United Nationshas issued the same directive applicable to police officers, military observers

151 Directives for Disciplinary Matters Involving Civilian Police Officers andMilitary Contingents, supra note 126, at 2.

152 Directives for Disciplinary Matters Involving Military Members of NationalContingents, supra note 148, at 2.

153 Id. at 3. 154 Id. at 4.155 Id.156 Directives for Directive for Disciplinary Matters Involving Civilian Police

Officers and Military Contingents, supra note 126, at 4. 157 Id. 158 Id.


and military members of national contingents, which is the Directive on SexualHarassment in United Nations Peacekeeping and Other Field Missions159

(Directive on Sexual Harassment). The UN authorities on sexual harassmentderive from Article 8 of the UN Charter, stating that “[t]he United Nations shallplace no restrictions on the eligibility of men and women to participate in anycapacity and under conditions of equality in its principal and subsidiaryorgans.”160 It is in this vein that the UN continues to foster a workplace free ofharassment or intimidation.161 The UN Personal Code of Conduct for BlueHelmets and other training seeks to prevent field personnel from engaging inbehavior that would be considered sexual harassment, such as deliberate andunsolicited physical conduct, comments and sexual innuendoes or unwelcomecompliments.162 Field mission personnel are expected to understand and respectlocal culture and customs to ensure that they avoid behavior that could be con-strued as sexual harassment.163 When allegations of sexual harassment arise,there are both informal methods of resolution, including counseling or media-tion, and a formal method of resolution that involves the filing of a writtencomplaint, an investigation and the possibility of sanctions.164 Individuals whohave engaged in sexual harassment may be subject to repatriation and/or crim-inal charges depending upon the circumstances.165 In the event that criminalcharges are appropriate, the procedures for criminal action laid out in SectionsE.1 and E.2 with respect to civilian police, military observers and military mem-bers of national contingents would be followed.

4. Public Information

Allegations regarding human rights related misconduct brought against UNpersonnel can undermine an otherwise successful mission. This poses a seri-ous public information and image problem for the United Nations.166 When

159 Directive on Sexual Harassment in United Nations Peacekeeping and OtherField Missions, UN Docs. DPKO/MD/03/00999, and DPKO/CPD/DSHCPO/2003/002(2003).

160 Id. at 2. See also UN Charter art. 8. 161 Id. at 2.162 Id. at 3.163 Id.164 Id. at 5–9 and Annex A (which provides complete guidelines for investiga-

tions of sexual harassment complaints). 165 Id. at 8.166 Public Information Guidelines for Allegations of Misconduct Committed by

Personnel of UN Peacekeeping and Other Field Missions, UN Docs. DPKO/MD/03/00996and DPKO/CPD/DPIG/2003/001 (2003), available at http://www.peacewomen.org/un/pkwatch/discipline/PublicInformationGuidelines.pdf.


such allegations are made, there is generally widespread media coverage.167

The United Nations has developed a public information strategy that seeks toconvey a message of “zero tolerance” for abuse, promotes transparency in pro-viding information to victims and families, attempts to dispel rumors with factand encourages accurate reporting.168 While UN spokespeople cannot commenton details of pending investigations, they are encouraged to lay out steps thathave been taken in an investigation, provide details on the applicable legal juris-diction and administrative procedures available to take action in the event ofmisconduct and demonstrate the importance that the United Nations attachesto seeing that justice is served.169

F. RECOMMENDATIONS

The United Nations continues to follow through on the goal of integratinghuman rights concepts across all fields. Law enforcement personnel must notonly follow human rights standards, but should also promote them, dependingon the PSO mandate, in a variety of ways, including: reporting, investigatingand verifying violations; promoting and protecting civil, cultural, economic,political and social rights; promoting rule of law; assisting accountability andreconciliation mechanisms to address impunity; collaborating with the inter-national community; conducting human rights training; addressing human rightsconcerns in conflict environments such as trafficking in persons, child soldiersand displaced persons; identifying ways to reintegrate former combatants intosociety. This chapter has outlined many of these efforts, though there is stillroom for improvement. One suggestion put forth to improve UNPOL is to cre-ate a standing UN Police Force.170 However, short of this ideal situation, theinternational community must continue to advance the role of human rights forlaw enforcement within a PSO. In order to better achieve this goal the follow-ing recommendations are proposed:

1. In the absence of a standing force, the United Nations must continueto strive towards establishing a pool of officers trained and physicallycapable of performing PSOs in accordance with international humanrights standards.

2. Human rights training should be cross-cutting and should not be con-ducted as a separate topic. “Every aspect of policing, from stops and

167 Id. at 2.168 Id. 169 Id. at 3–4.170 PERITO, supra note 50.


searches, making arrests, conducting interrogations and securing thecrime scene, should include human rights principles and practices.”171

3. For each respective mission, police must be trained in the local crim-inal procedures, applicable municipal or local human rights laws, andrespective complaint procedures of the PSO host nation.

4. Regional organizations should augment member state and UN train-ing when possible.

5. A national point of contact must be available to ensure and verifythat police identif ied for a UN mission meet human rights stan-dards.172 Additionally, the same, or another point of contact, mustbe available to ensure appropriate follow-up when disciplinary meas-ures are initiated.

6. Specific attention must be paid to the particular need of women dur-ing a PSO. This would include understanding of trafficked women,local culture and violence against women and sexual abuse. The UnitedNations should immediately implement all of the recommendationsfrom Prince Zeid’s report on accountability for sexual exploitation andabuse, as endorsed by the General Assembly and Legal Experts groupof 2006.

7. Training for all PSO personnel on trafficking in persons must includea discussion of its relationship to organized crime, which also nega-tively impacts the mission’s success.173

8. Agreements with host nations and those agreements brokered betweenfactions in conflict must include requirements to adhere to humanrights norms.174

9. An adequate level of training both upon entry and continued trainingopportunities throughout the mission in order to reflect on progressmust be ensured. It is inevitable that personnel will arrive on missionwith less than ideal training; therefore, it is imperative that an indi-vidual is identified on the mission staff who is prepared to provide theSGTM curriculum to all law enforcement personnel.

10. The DPKO must update and broaden the SGTM to integrate humanrights into all facets of the PSO training.175

171 O’Neill, supra note 60, at 4–5.172 Amnesty International Report, 15-Point Program for Implementing Human

Rights in International Peace-keeping Operations, at Recommendation 8 (Dec. 2006),available at http://web.amnesty.org/pages/aboutai-recs-peace-eng.

173 UN Interregional Crime and Justice Research Institute, Trafficking in HumanBeings and Peace-Support Operations. Pre-deployment/In-service Training Program forInternational Law-enforcement Personnel. Trainer’s Guide 2 (2006), available athttp://www.childtrafficking.com.

174 Id. at Recommendation 3.175 Final Report of the 12th Annual Conference of the International Association

of Peacekeeping Training Centers (IAPTC), at 24. The conference was held October


11. It must be ensured that the social composition of the police force ade-quately reflects that of society.176

12. Police units must have the ability conduct internal investigations regard-ing alleged abuse by police.

17–20, 2006, at Chile’s Joint Center for Peace Operations (CECOPAC). The report isavailable at http://www.iaptc.org/IAPTC%20Summary%202006.doc.

176 RAUSCH, supra note 31, at 24.


Appendix A

The Code of Conduct, which is directed towards military personnel provides:

1. Dress, think, talk, act and behave in a manner befitting the dignity of a dis-ciplined, caring, considerate, mature, respected, and trusted soldier, displayingthe highest integrity and impartiality. Have pride in your position as a peace-keeper and do not abuse or misuse your authority.

2. Respect the law of the land of the host country, their local culture, tradi-tions, customs and practices.

3. Treat the inhabitants of the host country with respect, courtesy and consid-eration. You are there as a guest to help them and in so doing will be welcomedwith admiration. Neither solicit or accept any material reward, honor or gift.

4. Do not indulge in immoral acts of sexual physical or psychological abuseor exploitation of the local population or UN staff, especially women andchildren.

5. Respect and regard the human rights of all. Support and aid the infirm, sickand weak. Do not act in revenge or with malice, in particular when dealing withprisoners, detainees or people in your custody.

6. Properly care for and account for all UN money, vehicles, equipment andproperty assigned to you and do not trade or barter with them to seek personalbenefits.

7. Show military courtesy and pay appropriate compliments to all members ofthe mission, including other UN contingents regardless of their creed gender,rank or origin.

8. Show respect for and promote the environment, including the flora and faunaof the host country.

9. Do not engage in excessive consumption of alcohol or traffic in drugs.

10. Exercise the utmost discretion in handling confidential information andmatters of official business which can put lives into danger or soil the imageof the United Nations.

“WE ARE UNITED NATIONS PEACEKEEPERS” which is directed towardsall peacekeepers, both civilian and military embodies much of the Code ofConduct and provides the following:


We will always:

– Conduct ourselves in a professional and disciplined manner, at all times;– Dedicate ourselves to achieving the goals of the United Nations;– Understand the mandate and the mission and comply with their provisions;– Respect the environment of the host country;– Respect local customs and practices through awareness and respect for the

culture, religion, traditions and gender issues;– Treat the inhabitants of the host country with respect, courtesy and

consideration;– Act with impartiality, integrity and tact;– Support and aid the infirm, sick, and weak;– Obey our United Nations superiors and respect the chain of command;– Respect all other peace-keeping members of the mission regardless of sta-

tus, rank, ethnic or national origin, race, gender, or creed;– Support and encourage proper conduct among our fellow peace-keepers;– Maintain proper dress and personal department at all times;– Properly account for all money and property assigned to us as members of

the mission; and– Care for all UN equipment placed in our charge.

We will never:

– Bring discredit upon the United Nations, or our nations through improperpersonal conduct failure to perform our duties or abuse of our positions aspeace-keepers;

– Take any action that might jeopardize the mission;– Abuse alcohol, use or traffic in drugs;– Make unauthorized communications to external agencies, including unau-

thorized press statements;– Improperly disclose or use information gained through our employment;– Use unnecessary violence or threaten anyone in custody;– Commit any act that could result in physical, sexual or psychological harm

or suffering to members of the local population, especially women and children;

– Become involved in sexual liaisons which could affect our impartiality, orthe well-being of others;

– Be abusive or uncivil to any member of the public;– Willfully damage or misuse any UN property or equipment;– Use a vehicle improperly or without authorization;– Collect unauthorized souvenirs;– Participate in any illegal activities, corrupt or improper practices; or– Attempt to use our positions for personal advantage, to make false claims

or accept benefits to which we are not entitled.


We realize that the consequences of failure to act within these guidelines may:

– Erode confidence and trust in the United Nations;– Jeopardize the achievement of the mission; and – Jeopardize our status and security as peacekeepers


Appendix B

The Code of Conduct for Law Enforcement Officials.177

Article 1

Law enforcement officials shall at all times fulfill the duty imposed upon themby law, by serving the community and by protecting all persons against illegalacts, consistent with the high degree of responsibility required by their pro-fession. Commentary:

(a) The term “law enforcement officials,” includes all officers of the law, whetherappointed or elected, who exercise police powers, especially the powers of arrestor detention.

(b) In countries where police powers are exercised by military authorities,whether uniformed or not, or by State security forces, the definition of lawenforcement officials shall be regarded as including officers of such services.

(c) Service to the community is intended to include particularly the renditionof services of assistance to those members of the community who by reason ofpersonal, economic, social or other emergencies are in need of immediate aid.

(d) This provision is intended to cover not only all violent, predatory and harm-ful acts, but extends to the full range of prohibitions under penal statutes. Itextends to conduct by persons not capable of incurring criminal liability.

Article 2

In the performance of their duty, law enforcement officials shall respect and pro-tect human dignity and maintain and uphold the human rights of all persons.

Commentary:

(a) The human rights in question are identified and protected by national andinternational law. Among the relevant international instruments are the UniversalDeclaration of Human Rights, the International Covenant on Civil and PoliticalRights, the Declaration on the Protection of All Persons from Being Subjected

177 The Code of Conduct for Law Enforcement Officials, GA Res. 34/169 (Dec.17, 1979), available at http://www.unhchr.ch/html/menu3/b/h_comp42.htm. See alsoCouncil of Europe Resolution 690, EUR. PARL. ASS., (1979) on the Declaration on thePolice adopted May 8, 1979, available at http://www.coe.int/t/e/human_rights/police/5._reference_documents/b._Resolution_690_(1979)_on_Decl_police.asp.


to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,the United Nations Declaration on the Elimination of All Forms of RacialDiscrimination, the International Convention on the Elimination of All Formsof Racial Discrimination, the International Convention on the Suppression andPunishment of the Crime of Apartheid, the Convention on the Prevention andPunishment of the Crime of Genocide, the Standard Minimum Rules for theTreatment of Prisoners and the Vienna Convention on Consular Relations.

(b) National commentaries to this provision should indicate regional or nationalprovisions identifying and protecting these rights.

Article 3

Law enforcement officials may use force only when strictly necessary and tothe extent required for the performance of their duty.

Commentary:

(a) This provision emphasizes that the use of force by law enforcement offi-cials should be exceptional; while it implies that law enforcement officials maybe authorized to use force as is reasonably necessary under the circumstancesfor the prevention of crime or in effecting or assisting in the lawful arrest ofoffenders or suspected offenders, no force going beyond that may be used.

(b) National law ordinarily restricts the use of force by law enforcement offi-cials in accordance with a principle of proportionality. It is to be understoodthat such national principles of proportionality are to be respected in the inter-pretation of this provision. In no case should this provision be interpreted toauthorize the use of force which is disproportionate to the legitimate objectiveto be achieved.

(c) The use of firearms is considered an extreme measure. Every effort shouldbe made to exclude the use of firearms, especially against children. In general,firearms should not be used except when a suspected offender offers armedresistance or otherwise jeopardizes the lives of others and less extreme meas-ures are not sufficient to restrain or apprehend the suspected offender. In everyinstance in which a firearm is discharged, a report should be made promptly tothe competent authorities.

Article 4Matters of a confidential nature in the possession of law enforcement officialsshall be kept confidential, unless the performance of duty or the needs of jus-tice strictly require otherwise.


Commentary:

By the nature of their duties, law enforcement officials obtain information whichmay relate to private lives or be potentially harmful to the interests, and espe-cially the reputation, of others. Great care should be exercised in safeguardingand using such information, which should be disclosed only in the perform-ance of duty or to serve the needs of justice. Any disclosure of such informa-tion for other purposes is wholly improper.

Article 5

No law enforcement official may inflict, instigate or tolerate any act of tortureor other cruel, inhuman or degrading treatment or punishment, nor may anylaw enforcement official invoke superior orders or exceptional circumstancessuch as a state of war or a threat of war, a threat to national security, internalpolitical instability or any other public emergency as a justification of tortureor other cruel, inhuman or degrading treatment or punishment.

Commentary:

(a) This prohibition derives from the Declaration on the Protection of AllPersons from Being Subjected to Torture and Other Cruel, Inhuman orDegrading Treatment or Punishment, adopted by the General Assembly, accord-ing to which: “[Such an act is] an offence to human dignity and shall be con-demned as a denial of the purposes of the Charter of the United Nations andas a violation of the human rights and fundamental freedoms proclaimed inthe Universal Declaration of Human Rights [and other international humanrights instruments].”

(b) The Declaration defines torture as follows:

“. . . torture means any act by which severe pain or suffering, whether physi-cal or mental, is intentionally inflicted by or at the instigation of a public offi-cial on a person for such purposes as obtaining from him or a third personinformation or confession, punishing him for an act he has committed or is sus-pected of having committed, or intimidating him or other persons. It does notinclude pain or suffering arising only from, inherent in or incidental to, lawfulsanctions to the extent consistent with the Standard Minimum Rules for theTreatment of Prisoners.”

(c) The term “cruel, inhuman or degrading treatment or punishment” has notbeen defined by the General Assembly but should be interpreted so as to extendthe widest possible protection against abuses, whether physical or mental.


Article 6

Law enforcement officials shall ensure the full protection of the health of per-sons in their custody and, in particular, shall take immediate action to securemedical attention whenever required.

Commentary:

(a) “Medical attention,” which refers to services rendered by any medical per-sonnel, including certified medical practitioners and paramedics, shall be securedwhen needed or requested.

(b) While the medical personnel are likely to be attached to the law enforce-ment operation, law enforcement officials must take into account the judgmentof such personnel when they recommend providing the person in custody withappropriate treatment through, or in consultation with, medical personnel fromoutside the law enforcement operation.

(c) It is understood that law enforcement officials shall also secure medicalattention for victims of violations of law or of accidents occurring in the courseof violations of law.

Article 7

Law enforcement officials shall not commit any act of corruption. They shallalso rigorously oppose and combat all such acts.

Commentary:

(a) Any act of corruption, in the same way as any other abuse of authority, isincompatible with the profession of law enforcement officials. The law mustbe enforced fully with respect to any law enforcement official who commits anact of corruption, as Governments cannot expect to enforce the law among theircitizens if they cannot, or will not, enforce the law against their own agents andwithin their agencies.

(b) While the definition of corruption must be subject to national law, it shouldbe understood to encompass the commission or omission of an act in the per-formance of or in connection with one’s duties, in response to gifts, promisesor incentives demanded or accepted, or the wrongful receipt of these once theact has been committed or omitted.

(c) The expression “act of corruption” referred to above should be understoodto encompass attempted corruption.


Article 8

Law enforcement officials shall respect the law and the present Code. Theyshall also, to the best of their capability, prevent and rigorously oppose any vio-lations of them.

Law enforcement officials who have reason to believe that a violation of thepresent Code has occurred or is about to occur shall report the matter to theirsuperior authorities and, where necessary, to other appropriate authorities ororgans vested with reviewing or remedial power.

Commentary:

(a) This Code shall be observed whenever it has been incorporated into nationallegislation or practice. If legislation or practice contains stricter provisions thanthose of the present Code, those stricter provisions shall be observed.

(b) The article seeks to preserve the balance between the need for internal dis-cipline of the agency on which public safety is largely dependent, on the onehand, and the need for dealing with violations of basic human rights, on theother. Law enforcement officials shall report violations within the chain of com-mand and take other lawful action outside the chain of command only when noother remedies are available or effective. It is understood that law enforcementofficials shall not suffer administrative or other penalties because they havereported that a violation of this Code has occurred or is about to occur.

(c) The term “appropriate authorities or organs vested with reviewing or reme-dial power” refers to any authority or organ existing under national law, whetherinternal to the law enforcement agency or independent thereof, with statutory,customary or other power to review grievances and complaints arising out ofviolations within the purview of this Code.

(d) In some countries, the mass media may be regarded as performing com-plaint review functions similar to those described in subparagraph (c) above.Law enforcement officials may, therefore, be justified if, as a last resort and inaccordance with the laws and customs of their own countries and with the pro-visions of article 4 of the present Code, they bring violations to the attentionof public opinion through the mass media.

(e) Law enforcement officials who comply with the provisions of this Codedeserve the respect, the full support and the co-operation of the community andof the law enforcement agency in which they serve, as well as the law enforce-ment profession.

351

CHAPTER 15

THE NATO POLICY ON HUMAN TRAFFICKING: OBLIGATION TO PREVENT, OBLIGATION TO REPRESS

Roberta Arnold*

A. INTRODUCTION

According to data collected by the United Nations’ Mission in Kosovo(UNMIK), in 2004, there were approximately 200 brothels suspected of involve-ment in the illegal trafficking of human beings.1 As a consequence, the UnitedNations entrusted operators in the f ield, in particular the Traff icking andProstitution Unity of UNMIK’s Police (TPIU), to make a list of clubs, restau-rants and other suspected places to be constantly updated and distributed to allUN personnel as “off limits areas.”2 Victims of trafficking prevalently comefrom countries like Moldova, Romania and Ukraine3 and, in a minor percent-age, from Bulgaria, Albania, Kosovo and Russia. The majority reaches Kosovovia Serbia, after having been carefully selected in tailor-made “markets” locatedin Belgrade and other Serbian towns. According to many witness reports, manygirls get raped and brutalized in their enslavement process. The price may vary,for a young girl, between 750.- and 2500.- Euro. It will be then the victims’debt to repay their “purchasers,” by devolving them of all the earnings madewith their enforced prostitution.4 According to recent estimates by the North

* PhD (Bern), LLM (Nottingham), former legal adviser at the Swiss Departmentof Defense, Laws of Armed Conflict Section; Specialist Officer within the Swiss MilitaryJustice, candidate investigating magistrate.

1 The definition of human trafficking is provided by Elizabeth Rennie, Traffickingin Human Beings Reduction Strategies for Law Enforcement in Peace Support Operations,Chapter 17 of this book.

2 As a result of TPIU investigations, numerous establishments have been iden-tified as accommodating trafficked women. As of April 2003, 203 establishments werelisted as off limits and forbidden to all international staff in Kosovo. See First AnnualReport of RCP (Regional Clearing Point) on victims of trafficking in South EasternEurope, at 140 (2003).

3 UNMIK, Combating Human Trafficking in Kosovo, Strategy and Commitment,May 2004, at 3 (May 2004).

4 Id.


Atlantic Treaty Organization (NATO), this trade generates some seven billionEuros a year for the criminals engaged in it. Somewhere between 400,000 and800,000 people, mostly women and children, are engaged in the trafficking ofhuman beings, and nearly 130 countries are involved in this trade. It seems thatsoutheast Europe, where NATO is engaged both politically and militarily, isone of the areas where this activity is primarily concentrated.5

Many girls get recruited with false promises about the prospective of awell-paid job, a marriage or an invitation to go abroad, or even, at times, withforce (kidnappings). Very often the recruiters are acquaintances or relativeswho exploit their knowledge of the girls’ financial and social situations, bytricking them with the false promises of a better life abroad. This type of trade,in fact, flourishes in particular in economically depressed areas, characterizedby major gaps between different social classes. Consequently, fervent activitycan be found in countries trying to reemerge from the ruins of an armed con-flict. Those who used to enrich themselves with the illegal trade of weaponsand other goods during the conflict are normally those leading the traffickingbusiness in post-conflict scenarios. The “clientele” and the “goods” may havechanged, not the traders. It has been ascertained that human trafficking tendsto flourish in post-conflict areas where peacekeeping troops or personnel work-ing for international organizations (IO) are present. Although it is less likelythat such personnel are directly involved in the trafficking, on the other hand,as potential “clients” of the victims of trafficking, on the basis of the econom-ics rule according to which the offer depends on the request, it has been rec-ognized that they may become part of the problem by soliciting this type ofactivity. It is a matter of fact that peacekeeping theaters are fertile zones forthis type of trade, also due to the fact that military and international personnelare often forced to stay away from home for protracted periods, in a predomi-nantly male environment, with very few opportunities to establish human rela-tionships with the local population. For instance, many experts point to thelocations and names of the bars as evidence that traffickers do not only target,but also respond to the demand of international peacekeepers. In the US sec-tor in Kosovo, there were establishments on the UN Trafficking and ProstitutionInvestigation Unit’s off-limits list, with names such as “Malibu Club,” “MonroeClub” and “Spaghetti.” In the French sector, there were clubs named “CaféSale” and “Café Rendezvo.”6 This fact, combined with the urgent economic

5 NATO Speech: NATO’s anti-trafficking coordinator explains priorities NATOHQ (May 7, 2007), available at http://www.nato.int/docu/speech/2007/s070507a.html(last visited June 1, 2007).

6 See Sarah E. Mendelson, Barracks and Brothels, Peacekeepers and HumanTrafficking in The Balkas, at 10 (2005), available at http://www.ceu.hu/polsci/Illicit_Trade-CEU/Week10-Mendelson.pdf (last visited June 1, 2007). See also the documentary videoby Karin Jurschick & Anke Schäfer, The Peacekeepers and the Women (Germany, 2003),available at http://www.wmm.com/filmcatalog/pages/c651.shtml.

NATO Policy on Human Trafficking 353

needs of the local population of peace support operations’ receiving states, isa good incentive for the development of human trafficking.

Therefore, in 2004, several non-governmental organizations (NGOs)launched the alarm. Amnesty International (AI),7 for instance, drafted a reportaddressing the responsibility of troops involved in peace support operations(PSOs).8 In the Democratic Republic of Congo (DRC) the United Nationsopened investigations following to the alleged involvement of its personnel inthe sexual exploitation of women and under-aged girls.9 According to the UNDepartment of Peacekeeping Operations (DPKO), between January 1, 2004,and November 21, 2006, the United Nations investigated allegations of sexualexploitation and abuse involving 319 peacekeeping personnel in all missions,resulting in the dismissal of 18 civilians and the repatriation of 17 police and144 military personnel.10 For the same reason Wayne Hayde, Policy Analyst forDPKO, told the UN Chronicle that because of numerous cases of peacekeepersengaging in sexual exploitation, an “anti-prostitution campaign” would takeplace in 2007. He further said that “this is “going against the grain” to a cer-tain degree, because prostitution is legal in many troop-contributing countries,and would require a “cultural shift” on the part of these peacekeepers.”11

Analogously, the Organization for Security and Cooperation in Europe(OSCE) and NATO decided to address the problem by introducing legislativemeasures and, in particular, a “zero-tolerance” policy.12 The Alliance, like the

7 AI, Kosovo (Serbia & Montenegro): So Does It Mean that We Have the Rights?Protecting the Human Rights of Women and Girls Trafficked for Forced Prostitution inKosovo, at 1 (2004), at http://web.amnesty.org/library/print/ENGEUR700102004.

8 PSO is a term used in this chapter in the sense of an umbrella definition forall types of peace operations (peacekeeping, peace enforcement, peace-building, robustpeacekeeping, etc.).

9 Kate Holt, DR Congo’s Shameful Sex Secret, BBC NEWS, June 3, 2004, avail-able at http://news.bbc.co.uk/2/hi/africa/3769469.stm (last visited June 1, 2007); ColumLynch, U.N. Says Its Workers Abuse Women in Congo, WASH. POST Nov. 27, 2004, avail-able at http://www.washingtonpost.com/wp-dyn/articles/A15363-2004Nov26.html (lastvisited June 1, 2007); UN News Center, Peacekeepers’ Sexual Abuse of Local girlsContinuing in DR of Congo, UN Finds, Jan. 7, 2005, available at http://www0.un.org/apps/news/story.asp?NewsID=12990&Cr=democratic&Cr1=congo (last visited June 1, 2007).

10 See John Hagen, Fighting Sexual Exploitation and Abuse by UN Peacekeepers,UN CHRON. ONLINE ED. (2006), available at http://www.un.org/Pubs/chronicle/2006/webArticles/121306_unp.htm (last visited June 1, 2007).

11 Id.12 Id.: Mr. Annan reiterated his “zero-tolerance” policy toward sexual abuse, sayingthat UN staff members who commit such acts are being fired, and uniformedpeacekeeping personnel are being sent home and barred from future servicein the United Nations. He also urged senior leaders to endorse the “Statementof Commitment on Eliminating Sexual Exploitation and Abuse by UN andNon-UN Personnel,” which spells out ten concrete steps to achieving that goal,


United Nations, recognized that the involvement of peacekeeping troops in thiskind of activity is detrimental not only for the receiving state’s population,whose human rights are obviously disregarded, but also, and in particular forthe image and the security of both the PSO and its personnel.

The aim of this chapter is to illustrate the content of the NATO Policy onCombating Human Trafficking and its annexes (hereinafter the NATO Policy)13

and explain its impact on PSOs. The fact that such an important military organ-ization decided to tackle the phenomenon indicates its gravity. However, NATOhas no supranational authority. It is therefore important to assess the effec-tiveness of its policy at the national level and its implementation by NATO’smember states and allies, at the strategic and tactical level, particularly in thefield. Although the core obligations under the NATO Policy are to prevent andto repress, it will be shown that the second obligation is much more difficultto implement, due to both legal and political reasons. With regard to the obli-gation to prevent, it will be illustrated that traditional military structures and,in particular, the observance of the chain of command, may lead to difficultiesin reporting and leading to the arrest of those suspected of involvement in traf-ficking.14 At the same time, even military justice authorities may have diffi-culties in investigating reported cases, since often those suspected are simplydismissed and sent back to their sending state, with no possibility for the hoststate, or even the sending state, to open criminal proceedings against them.Finally, diff iculties in tracking down and arresting those suspected may belinked to the training of members of international police forces or the militarypolice of the troop contributing nations (TCN). This chapter will try to providesome guidelines and explain how the phenomenon of human trafficking maybe addressed by the military and why this should be one of their priorities. Mostauthors tend to “sell” the topic by portraying it from the perspective of the vic-tims. However, from the point of view of a military officer, in order to changethe culture and mentality of military personnel deployed in PSOs, a betterapproach is to illustrate the dangers and threats to the mission hidden behindthis crime. Women and children are the primary victims of human trafficking,

including incorporating UN standards on sexual exploitation and abuse ininduction materials and training courses for UN personnel, and preventingperpetrators from being hired for UN activities.13 NATO Policy on Combating Trafficking in Human Beings, June 29, 2004,

available at http://www.nato.int/docu/comm/2004/06-istanbul/docu-traffic.htm (last vis-ited June 1, 2007).

Appendix 1: NATO Guidelines on combating trafficking in human beings formilitary forces and civilian personnel deployed in NATO-led operations. Appendix 2: NATO Guidance for the development of training and educationalprogrammes to support the policy on combating the traff icking in humanbeings. Appendix 3: Guidelines for NATO staff on preventing the promotion and facil-itation of trafficking in human beings.14 See Mendelson, supra note 6, at 24 and 28.


but peacekeepers as potential customers may also become the secondary vic-tims of the traders. In the author’s view, to explain to military personnel thathuman trafficking may pose a threat to them and to their mission may be moreeffective than trying to convince them that it constitutes a grave human rightsbreach of those ladies who may have comforted them during a night out onleave in a PSO. Although many peacekeepers may be well motivated andguided by high and honest moral values, it should be recalled that, in reality,many of them are mainly attracted by the good and tax-free wages promisedto peacekeepers.

Therefore, in order to explain why a zero-tolerance policy in this regardwas required and, correctly so, adopted by NATO, this chapter will be struc-tured as follows. After this brief introduction, the first part will explain the con-tent of the NATO Policy on Human Trafficking15 and explain its character froma legal perspective. Section B will illustrate how the NATO Policy may be bind-ing on peacekeeping troops, which do not belong directly to NATO but whichact under the aegis of their sending state. Section C will discuss implementa-tion of NATO’s Policy at the domestic level. The situation will be illustratedwith the case of Switzerland. Section D will provide some practical tools forthose engaged in the field, whereas Section E will draw the conclusions.

B. THE NATO POLICY ON COMBATING TRAFFICKING IN HUMAN BEINGS

In the context of NATO’s Policy, trafficking means:

the recruitment, transportation, transfer, harbouring or receipt of per-sons, by means of the threat of use of force or other forms of coercion,of abduction, of deception, of the abuse of power or of a position ofvulnerability or of the giving or receiving of payments or benefits toachieve the consent of a person having control over another person,for the purposes of exploitation. Exploitation shall include, at a min-imum, the exploitation of the prostitution of others, or other forms ofsexual exploitation, forced labour or services, slavery or practices sim-ilar to slavery, servitude or the removal of organs.16

This definition is based on Article 3 of the UN Protocol to Prevent, Suppressand Punish Trafficking in Persons, especially Women and Children, supple-menting the United Nations Convention against Transnational Organized Crime.17

The impact of human trafficking on PSOs, and the need to implement the NATO

15 Supra note 13.16 Id.17 See Annex 1 to NATO’s Policy, supra note 13, para. 5.


Policy on Human Trafficking, was discussed on March 3–4, 2005, in Helsinkiat a Euro-Atlantic Partnership Council Seminar organized by the Finnish min-istries of Defense and Foreign Affairs on “Avoiding Military involvement intrafficking in human beings: best practices from the field,” which was attendedby the author in her capacity as representative of the Swiss Defense Department.The seminar highlighted the fact that human trafficking is not simply a viola-tion of the human rights of women, but it is, more importantly for the sendingstates and IOs, a serious threat to PSOs. The discussions focused on very prac-tical aspects. In particular, the seminar highlighted four main reasons for releas-ing and enforcing the NATO Policy.

1. Four Good Reasons for the Release and Enforcement of the NATO Policy

The NATO Policy recognizes that trafficking in human beings is a crimethat:

constitutes a serious abuse of human rights, especially affecting womenand children. It is a transnational problem, requiring concerted multi-lateral action if it is to be defeated. Trafficking in human beings, affectscountries of origin, countries of transit and countries of destination.This modern day slave trade fuels corruption and organised crime. Ithas the potential to weaken and destabilise fragile governments andruns counter to the goals of NATO-led efforts especially in SouthEastern Europe.18

Therefore, human trafficking is certainly a crime that needs to be tackled byNATO, not only because it constitutes a serious human rights abuse, but alsobecause, by virtue of it being a crime, it may run counter to the interest ofNATO’s PSOs. In particular it may:

1. damage the image of its missions and the credibility of the troopsdeployed;

2. pose a threat to the security of its missions;3. pose a threat to the security of its individual peacekeepers; and 4. possibly subject military personnel of the sending state to prosecution

by the host state.

18 NATO Policy, supra note 13, para. 1.


a. Damage to the Image of the Mission and the Credibility of theTroops Deployed

PSOs are always a topic cherished by the media. Therefore, it is easily imag-inable that allegations of involvement of PSO troops in human trafficking wouldcatch the media’s attention, with the likelihood of serious repercussions at thepolitical level, such as the decision, by some sending states, to withdraw theirtroops and deny renewed support to NATO in future PSOs. Thus, serious conse-quences are imaginable, particularly at the domestic level. For example in smallcountries like Switzerland, there are constant debates on the necessity to main-tain a military force, viewed by some as being extremely expensive and super-fluous, particularly in light of the fact that, in case of an attack, the Swiss armedforces on their own would not be able to defend the national territory. Therefore,political parties supportive of a military structure, after the end of the Cold War,had to find new arguments, like NATO, to justify its maintenance. The currenttrend is to argue that nowadays threats are no longer posed by traditional con-flicts of a symmetric nature, but rather by phenomena like terrorism and big wavesof (illegal) immigration. Consequently, a major argument is that troops shouldbe maintained and deployed abroad, in PSOs, in order to prevent the outbreak orreinsurgence of conflicts, with consequent flows of refugees.19

The idea, therefore, is to use the military to solve the problems of thesecountries at the roots. This view, however, is highly criticized by several par-ties, which believe that the country should not invest money to send its ownforces abroad to solve problems foreign thereto.20

In this climate the rumor that Swiss peacekeepers may be involved in humantrafficking while deployed abroad would have an extremely negative and detri-mental impact. The probable outcome would be a discussion within theParliament to cut the budget for peacekeeping operations, with serious conse-quences both at domestic and international level for the military.

Moreover, a very well-known motto is that every PSO or military opera-tion needs “to win the hearts and minds” of the local population in order to besuccessful. The fact that peacekeepers, whose aim is to bring peace and secu-rity and to help restore war torn societies, by introducing the rule of law andthe respect of human rights, may be viewed as being corrupted or engaged inillegal activities like the trafficking of human beings would certainly have anegative impact on the local population.

19 See Swiss Defense Department’s Strategic Paper on Switzerland’s militaryparticipation to PSO, released on Feb. 7, 2007, available at http://www.vbs.admin.ch/inter-net/vbs/de/home/aktuell/strategie_pso.ContentPar.0006.DownloadFile.tmp/Strategiepapier_PSO_d.pdf (last visited June 1, 2007).

20 Among these is the Social Party. See the paper for their media conference ofMay 27, 2005, available at http://www.friedensrat.ch/images/wehrpflicht.medien-mappe.sps.pdf (last visited June 1, 2007).


b. A Threat to the Security of the Mission

Human trafficking is generally in the hands of criminal organizations alsoengaged in the illegal trade of arms, drugs and documents.21 Human traffick-ing in the Balkans, for instance, is a means to finance the illegal trade of arms.In particular a report by the International Organization for Migration (IOM)indicated that in 2004, in Kosovo, human trafficking was “the third source ofincome after arms and drugs for the Kosovar-Albanian mafia network.”22

Therefore, a peacekeeper who attends brothels considered to be off limits byNATO, will indirectly, through payment for the services received, finance otherillegal activities that, like the trade of arms, may be detrimental to the mis-sion.23 In particular, as observed by NATO’s Assistant Secretary-General forDefense Policy and Planning, human trafficking: “is potentially de-stabilizingof nations and so it works against our interests in building stability and secu-rity in countries throughout the world, but particularly in Europe. There are alsorisks that illegal funds on this scale are potential sources of income for terror-ism.”24 As reported by countertrafficking expert and former UK metropolitanpolice chief inspector Paul Holmes, human trafficking provides “ready cash-every day a percentage of the money is being used to buy off the complianceof corrupt officials,”25 meaning that ultimately, PSO personnel exploiting traf-ficked women unwittingly support those who try to jeopardize their missionby attempting to destabilize security in the theater of operation.

c. A Threat to the Security of Individual Peacekeepers

Another reason justifying a zero-tolerance policy is the threat posed by redlight districts to the security of the individual peacekeeper. Soldiers attending

21 On this problem, see also Stefano Failla, Migration and Border Managementin Kosovo 1999–2005 in PRACTICE AND POLICIES OF MODERN PEACE SUPPORT OPERATIONS

UNDER INTERNATIONAL LAW 212 (Roberta Arnold & Alexander Knoops eds., 2006). Seealso Mendelson, supra, note 6, at 14 et seq. “the UN Office on Drugs and Crime(UNODOC) reports a link between those who traffic in persons and those who trafficin drugs. UNODOC has identified a “surge” of criminal activity during conflicts and inpost-conflict areas.”

22 IOM Counter-Tracking Service, Changing Patterns and Trends of Traffickingin Persons Within, To and Through the Balkan Region, at 67 (May 2004).

23 See NATO Policy, supra note 13: “Trafficking in human beings, affects coun-tries of origin, countries of transit and countries of destination. This modern day slavetrade fuels corruption and organised crime. It has the potential to weaken and desta-bilise fragile governments and runs counter to the goals of NATO-led efforts especiallyin South Eastern Europe.”

24 NATO Speech, supra note 5.25 See Mendelson, supra note 6, at 17.


areas suspected of involvement in human trafficking become a very easy andvulnerable target: there is a higher threat of being killed, kidnapped, threatenedor blackmailed. With regard to the Balkans, it shall be recalled that many Kosovarexpatriates can now be found in most EU countries. There have been casesreported of soldiers who have been blackmailed by local people with relativesin the sending state of the blackmailed peacekeeper. Threats have includedreporting to family members about the conduct of the soldier.

Another security risk, which should not be underestimated, is related tohealth, since in the areas of operations like Kosovo, there are no structures tocontrol, for example, the diffusion of diseases like HIV.

d. Possible Prosecution Under the Host State’s Jurisdiction

As discussed by Ulf Häussler,26 pursuant to Status of Forces Agreements(SOFAs), peacekeeping personnel deployed abroad are generally immune fromprosecution by the host state’s judicial authorities.

For instance, with regard to UNMIK and Kosovo Force (KFOR) person-nel, Article 2 of Regulation 2000/47 on the Status, Privileges and immunitiesof KFOR and UNMIK and their personnel in Kosovo27 provides that:

2.1. KFOR, its property, funds and assets shall be immune from anylegal process.2.2 All KFOR personnel shall respect the laws applicable in the terri-tory of Kosovo and regulations issued by the Special Representativeof the Secretary-General insofar as they do not conflict with the ful-filment of the mandate given to KFOR under Security Council reso-lution 1244 (1999).2.3 Locally recruited KFOR personnel shall be immune from legalprocess in respect of words spoken or written and acts performed bythem in carrying out tasks exclusively related to their services to KFOR.2.4 KFOR personnel other than those covered under section 2.3 aboveshall be: immune from jurisdiction before courts in Kosovo in respectof any administrative, civil or criminal act committed by them in theterritory of Kosovo. Such personnel shall be subject to the exclusivejurisdiction of their respective sending States; and immune from anyform of arrest or detention other than by persons acting on behalf oftheir respective sending States. If erroneously detained, they shall beimmediately turned over to KFOR authorities.

26 See Chapter 4 of this book.27 Enacted on Aug. 18, 2000, available at http://www.unmikonline.org/regula-

tions/2000/reg47-00.htm (last visited May 26, 2007).


Interestingly, paragraph 2.2 provides that KFOR personnel shall respect thelaws applicable in Kosovo, including its Provisional Criminal Code.28 Its breachmay also give rise to prosecution, even though the proceedings would be ledby the peacekeeper’s national judicial authorities.

The fact that it is normally the sending state that retains jurisdiction overthe soldier, is restated in Article 2(a) of NATO’s SOFA of June 19, 1951,29 whichprovides that: “The military authorities of the sending State shall have the rightto exercise exclusive jurisdiction over persons subject to the military law ofthat State with respect to offences, including offences relating to its security,punishable by the law of the sending State, but not by the law of the receivingState.” With specific reference to human trafficking, KFOR’s Statement onProstitution and Human Trafficking provides that:

– KFOR is a force of 18000 soldiers and individuals may choose to breakthe law. All of KFOR has been informed of the law, however, militaryprocedures are in place to process any violation of any law by KFORsoldiers.

– These activities are a betrayal of each soldiers’ trust and is not com-patible with his goal of building a better place for all the people ofKosovo, regardless of race, ethnicity, religion, or gender.

– KFOR SOP 1300 prohibits the use of prostitutes and brothels withinKFOR’s Area of Operations, and establishes a uniform policy to pre-vent KFOR soldiers from engaging in such activities.

– According to respective national laws, Troop Contributing Nations(TCN) have enacted regulations to prohibit the use of prostitutes andbrothels in the Kosovo Area of Operations. If breaking the rules, thesoldier will be turned over to his national authorities for investigationand possible prosecution.

Therefore, KFOR soldier found in breach of these rules will be turned over totheir national authorities for investigation and possible prosecution. It is not tobe forgotten, however, that in some cases there may be concurrent jurisdictionwith the receiving state. In this regard, Article 3(a) and (b) of the NATO SOFAstates that:

28 UNMIK Regulation 2003/25 of July 6, 2003, art. 139 (in force since 2004),available at http://www.unmikonline.org/regulations/2003/RE2003_25_criminal_code.pdf(last visited May 26, 2007). On their entry into force, see UN News Center, Kosovo:New Criminal Codes Come into Force in UN-Administered Province, Apr. 6, 2004, avail-able at http://www.un.org/apps/news/storyAr.asp?NewsID=10321&Cr=Kosovo&Cr1=(last visited May 26, 2007).

29 Available at http://www.nato.int/docu/basictxt/b510619a.htm (last visited May26, 2007).


a. The military authorities of the sending State shall have the primaryright to exercise jurisdiction over a member of a force or of a civiliancomponent in relation to i. offences solely against the property or security of that State, or

offences solely against the person or property of another memberof the force or civilian component of that State or of a dependent;

ii. offences arising out of any act or omission done in the perform-ance of official l duty.

b. In the case of any other offence the authorities of the receiving Stateshall have the primary right to exercise jurisdiction.

Therefore, pursuant to NATO’s SOFA, it may be argued that the sending statewill retain jurisdiction only with regard to acts or omissions done “in the per-formance of official duty.” Engagement in human trafficking, both as an aware“customer” or, even worse, as a “trader,” is unlikely to be construed as an actor omission done in the performance of official duty, meaning that the receiv-ing/host state may claim jurisdiction. In these cases a request for waiver ofimmunity will be placed, and the decision will have to be taken by the nationalcontingent’s commander. The risk of the peacekeeper is to face prosecutionaccording to local legislation. This is illustrated by Article 6 of Regulation2000/47 on the Status, Privileges and immunities of KFOR and UNMIK andtheir personnel in Kosovo,30 pursuant to which:

6.1 The immunity from legal process of KFOR and UNMIK personnel andKFOR contractors is in the interests of KFOR and UNMIK and not forthe benefit of the individuals themselves. The Secretary-General shallhave the right and the duty to waive the immunity of any UNMIK per-sonnel in any case where, in his opinion, the immunity would impedethe course of justice and can be waived without prejudice to the inter-est of UNMIK. In relation to personnel of the Institution-building andReconstruction components, any waiver of immunity shall be carriedout in consultation with the heads of those components.

6.2 Requests to waive jurisdiction over KFOR personnel shall be referredto the respective commander of the national element of such person-nel for consideration.

6.3 Requests to waive the immunities of KFOR contractors set forth insection 4 of the present regulation shall be referred to the respectivecommander of the national element with which the KFOR contractorhas contracted.

30 Enacted on Aug. 18, 2000, available at http://www.unmikonline.org/regula-tions/2000/reg47-00.htm (last visited May 26, 2007).


In this regard, the NATO SOFA, in Article 9 specifies that:

1. Whenever a member of a force or civilian component of a dependentis prosecuted under the jurisdiction of a receiving State he shall beentitled:a. to a prompt and speedy trial; b. to be informed, in advance of trial, of the specific charge or charges

made against him; c. to be confronted with the witnesses against him; d. to have compulsory process for obtaining witnesses in his favour,

if they are within the jurisdiction of the receiving State; e. to have legal representation of his own choice for his defence or

to have free or assisted legal representation under the conditionsprevailing for the time being in the receiving State;

f. if he considers it necessary, to have the services of a competentinterpreter; and

g. to communicate with a representative of the Government of thesending State and when the rules of the court permit, to have sucha representative present at his trial.

It is therefore important to keep in mind that a peacekeeper engaged in suchconduct may face prosecution by the receiving state’s competent authorities,where legislation may be stricter.

For instance, pursuant to the Provisional Criminal Code of Kosovo, negli-gent conduct with regard to human trafficking is punishable:31

(1) Whoever engages in trafficking in persons shall be punished by impris-onment of two to twelve years.

(2) When the offence provided for in paragraph 1 of the present article iscommitted against a person under the age of 18 years, the perpetratorshall be punished by imprisonment of three to fifteen years. . . .

(4) Whoever negligently facilitates the commission of trafficking in per-sons shall be punished by imprisonment of six months to five years.

(5) Whoever uses or procures the sexual services of a person with theknowledge that such person is a victim of trafficking shall be punishedby imprisonment of three months to five years.

(6) When the offence provided for in paragraph 5 of the present article iscommitted against a person under the age of 18 years, the perpetratorshall be punished by imprisonment of two to ten years.

(7) When the offence provided for in the present article is committed byan official person in the exercise of his or her duties, the perpetratorshall be punished by . . . imprisonment of two to seven years in the

31 UNMIK Regulation 2003/25, supra note 28.


case of the offence provided for in paragraphs 4 or 5 or by imprison-ment of five to twelve years, in the case of the offence provided for inparagraph 6.

Likewise, the Criminal Code of Bosnia and Herzegovina (BiH),32 in its chap-ter “Crimes Against Humanity and Values Protected by International Law,”Article 186 also provides for the criminal offense of trafficking in persons,which follows the core definition of the UN Protocol. According to it:

(1) Whoever takes part in the recruitment, transfer, harbouring or receiptof persons, by means of the threat or use of force or other forms ofcoercion, of abduction, of fraud, of deception, of the abuse of poweror of a position of vulnerability or of the giving or receiving of pay-ments or benefits to obtain the consent of a person having control overanother person, for the purpose of exploitation, shall be punished byimprisonment for a term between one and ten years.

(2) Whoever perpetrates the criminal offence referred to in paragraph 1of this Article against a juvenile, shall be punished by imprisonmentfor a term not less than five years.

(3) Whoever organizes a group of people with an aim of perpetrating thecriminal offence referred to in paragraphs 1 and 2 of this Article, shallbe punished by imprisonment for a term not less than ten years or long-term imprisonment.

(4) Whoever acting out of negligence facilitates the perpetration of thecriminal offence referred to in paragraphs 1 through 3 of this Article,shall be punished by imprisonment for a term between six months andfive years.

(5) “Exploitation” referred to in paragraph 1 of this Article includes, inparticular, exploiting other persons by way of prostitution or of otherforms of sexual exploitation, forced labour or services, slavery or slav-ery-like practices, serving under coercion or removal of organs for thepurpose of transplantation.

This is particularly so when perpetrating a criminal offense against a child orjuvenile and organizing or directing a group of people with the aim of perpe-trating the criminal offense of trafficking.33

Since engagement in human trafficking may be seen as a serious threat tothe credibility of a PSO, it is also possible that, in the ultimate interest of the

32 Available at http://iccnow.org/documents/criminal-code-of-bih.pdf (last vis-ited May 26, 2007).

33 See Valerie Wahl, Trafficking in Human Beings for the Purpose of SexualExploitation—Legal Challenges in the Fight Against Mmodern Slavery in Crisis Regions:A Case Study of Bosnia and Herzegovina, in PRACTICE AND POLICIES OF MODERN PEACE

SUPPORT OPERATIONS 231(Roberta Arnold & Alexander Knoops eds., 2006).


mission, the commander of the national element may decide to waive the peace-keeper’s immunity upon the receiving state’s request.

2. The Nature of the Policy

The NATO Policy on Combating Human Trafficking was adopted at theIstanbul Summit of June 29, 2004. NATO recognized that trafficking in humanbeings is a serious abuse of human rights, especially affecting women and chil-dren. As a transnational problem, fueling corruption and organized crime, itcan destabilize fragile governments and runs counter to the goals of NATO-ledefforts especially in southeastern Europe. Accordingly, NATO recognized thata zero-tolerance policy, combined with education and training, is required.

The NATO Policy aims to reinforce efforts by NATO and individual nationsto prevent and combat trafficking. Accordingly, NATO and non-NATO TCNs(i.e., those participating in the Partnership for Peace program, PfP) have todevelop and implement various measures in order to discourage the demand bytheir military and civilian personnel that fosters all forms of exploitation ofpersons. In fact, the NATO Policy per se has no legal binding effect on indi-vidual peacekeepers.34 Pursuant to it, NATO’s member states and its allies shalladopt measures to translate the policy into legally binding measures. In par-ticular, the NATO Policy provides that:

In order to ensure maximum effectiveness of the present policy, NATOnations commit themselves to ensure full national implementation ofthis policy. Non-NATO Troop contributing nations are expected to takesimilar steps upon joining a NATO-led operation. NATO personnelserving at NATO Headquarters and its Agencies as well as those tak-ing part in NATO led operations should continue to conduct themselveswith regard to the highest professional standards and with respect tonational as well as international law.35

This is further highlighted in Annex I to the NATO Policy, according towhich:

This guidance is aimed at highlighting the general principles and activ-ities that participating nations are expected to request from their nation-als. It is not exhaustive and will require, as appropriate, specif icimplementing actions by individual nations and forces to be fully effec-tive. This includes, where necessary, ratifying/acceding to/approving

34 See R. Arnold, NATO und Peacekeeping: neue Direktive zur Bekämpfung desMenschenhandels, 7/8 ASMZ 48–49 (2005);

35 NATO Policy, supra note note 13.


the “UN Protocol to Prevent, Suppress and Punish Traff icking inPersons, especially Women and Children, supplementing the UnitedNations Convention against Transnational Organized Crime” and imple-menting its requirements, as well as ensuring implementation of thepresent guidelines.

For the same reason, Mr. John Colston was appointed by the NATO Secretary-General as the first Senior Coordinator for NATO’s efforts to combat traffick-ing in human beings. His role is to strengthen the Alliance’s zero-tolerancepolicy on trafficking in human beings.36 He will be the point of contact forNATO’s policy and will be responsible for monitoring its implementation. Inparticular he will receive annual reports submitted voluntarily by member andpartner countries, and report regularly to the North Atlantic Council, NATO’sprincipal decision-making body, and the Euro-Atlantic Partnership Council onthe progress of its implementation. Other responsibilities will include liaisonwith national authorities, IOs and NGOs.

3. Obligations Imposed by the NATO Policy

Pursuant to the NATO Policy, NATO members and its allies shall agree,among others:

1. to review national legislation and report on national efforts to meetobligations associated with the UN Convention against TransnationalOrganized and the UN Protocol to Prevent, Suppress and PunishTrafficking in Persons, Especially Women and Children (the so-calledPalermo Protocol);37

2. that all personnel taking part in NATO-led operations should receiveappropriate training to make them aware of the problem of traffickingand how this modern day slave trade impacts on human rights, stabil-ity and security;

3. in the conduct of operations, to continue efforts, within their competenceand respective mandates, to provide support to responsible authorities inthe host country in their efforts to combat trafficking in human beings;

36 NATO News, NATO’s Anti-Trafficking Coordinator Explains Priorities, May9, 2007, available at http://www.nato.int/docu/update/2007/05-may/e0509b.html (lastvisited May 26, 2007).

37 The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons,Especially Women and Children, supplementing the United Nations Convention againstTransnational Organized Crime (the Palermo Protocol) was adopted on November 15,2000, and entered into force on December 25, 2003. It laid the first legal foundationsfor international action against trafficking; all NATO members are signatories to it.


4. to incorporate contractual provisions that prohibit contractors fromengaging in trafficking in human beings or facilitating it and imposepenalties on contractors who fail to fulfil their obligations in this regard.

These obligations are better specified in the annexes to the NATO Policy. Inparticular Annex I clarifies that troop contributing nations are required to:

organise specific training modules preparing their forces and accom-panying civilian elements and contractors for PSO. Such modules mayinclude training on the issue of trafficking in human beings and legalconsequences stemming from the violation of anti-trafficking laws, aswell as training on the means to support, within their competence andmandate, the efforts of responsible authorities in the host nation tocombat trafficking in human beings. Similar modules may also bedeveloped by PfP Training Centres and included, as appropriate, intheir training curricula.38

They shall moreover:

a. review, if necessary their existing criminal legislation, including theenforcement of such legislation, to ensure that members of the forces—as well as civilian elements—who engage in traff icking in humanbeings, or facilitate it, are liable to appropriate prosecution and pun-ishment;

b. provide details of their national legislation and national efforts to com-bat trafficking;39

With regard to planning and conduct, they shall also:

a. conduct specific pre-deployment training on criminal issues includ-ing those related to traff icking in human beings and the means tocombat it;

b. conduct timely investigation and prosecution of cases of misconductby members of their forces or civilian elements, including contractors;

c. develop specific mechanisms for reporting crimes, including thoserelated to trafficking in human beings;

d. in accordance with national legislation, create and disseminate poli-cies explicitly protecting whistleblowers who come forward with evi-dence of crimes, including trafficking in human beings, and

e. in accordance with national legislation, retain records of misconductby individuals, including, those related to trafficking in human beings,for use in recruitment, vetting and deployment.

38 See NATO Policy, supra note 13, Annex I, para. 10. 39 Id., para. 11.


C. IMPLEMENTATION OF NATO’S POLICY AT THE DOMESTIC LEVEL

1. Adoption of Legislative Measures

As already mentioned, NATO has no criminal authority over personnel pro-vided by TCNs to a particular PSO. It is for this reason that TCNs must ensurethe adoption of domestic legislative measures, allowing for the prosecution ofpersonnel engaged in this type of illegal activities.

2. Introduction of Appropriate Training

As observed by NATO’s Assistant Secretary-General for Defense Policyand Planning, it is important that NATO’s military commanders: “ensure thateverybody understands what needs to be done, that everybody is putting in placethe right procedures, the right training modules and so on, in order to ensurethat service personnel are as well prepared as possible.”40 In this regard NATOis introducing training modules at NATO’s school in Oberammergau, Germany,and at NATO’s Defense College in Rome. However, training is primarily anational responsibility; it is the duty of all NATO member states and the alliesto adopt adequate measures in this regard.

3. Support to Local Authorities

NATO’s Policy calls for the necessity to provide support to local and inter-national police authorities (e.g., UNMIK Police in Kosovo) in the repressionof organized crime.41 Therefore, it is crucial to provide specific training to themilitary police, and military personnel in charge of checkpoints, in order tohelp them identify elements signaling suspect trafficking of human beings.Moreover, it is important to provide training on how to collect evidence thatmay be used in court.42

The Helsinki Seminar highlighted the importance of standard operatingprocedures (SOP), indicating the procedure to be adopted in the event ofhuman trafficking.43 In this regard, civil military coordinators (CIMIC) arevery important, since they are contacted by military personnel suspecting to

40 NATO Speech, supra note 5.41 See NATO Policy, supra note 13, para. 5e.42 In this regard, see Kwai Hong Ip, PSOs: Establishing the Rule of Law Through

Security and Law Enforcement Operations, in PRACTICE AND POLICIES OF MODERN PEACE

SUPPORT OPERATIONS 33 (Roberta Arnold & Alexander Knoops eds., 2006).43 See, e.g., KFOR’s SOP 1300.


have met victims of human trafficking. It will then be the duty of the CIMICto contact the competent local civil authorities, who will then take up the caseand open investigations.44

Coordination with civilian authorities is very important. A good exampleis provided by Kosovo and the cooperation between KFOR and UNMIK police.For instance KFOR employs specialized military/special police forces to formmultinational support units (MSU), which often cooperate with UNMIK policein the fight against organized crime.45

UNMIK police have rather large powers to enforce countertrafficking meas-ures. For instance, UNMIK Regulation No. 2001/446 allows for the confisca-tion of property and the closure of establishments suspected of involvement inhuman trafficking. Section 6 in particular47 provides that:

6.1. Property used in or resulting from the commission of traffickingin persons or other criminal acts under the present regulation may beconfiscated in accordance with the applicable law. The personal prop-erty of the victims of trafficking shall not be confiscated wherever itcan be immediately identified by the law enforcement officer as such.6.2. Where there are grounds for suspicion that an establishment, oper-ating legally or illegally, is involved in, or is knowingly associated withtrafficking in persons or other criminal acts under the present regula-tion, an investigating judge may, upon the recommendation of the pub-lic prosecutor, issue an order for the closing of such establishment.6.3. A reparation fund for victims of trafficking shall be establishedby administrative direction and shall be authorised to receive fundsfrom, inter alia, the confiscation of property pursuant to section 6.1.

Likewise, UNMIK Regulation 2005/4 introduces “measures aimed at improv-ing the border controls primarily directed at combating organized crime oper-ations and human trafficking”48 and formalizing the procedure so far adoptedby UNMIK police.

44 In this regard, however, it should be kept in mind that domestic rules of engage-ment (ROE) may set important limits for units deployed in support of local police forces.Domestic ROEs, in fact, may vary considerably and this is an issue to be considered inmultinational PSO contingents.

45 See Ip, supra note 42.46 Available at http://www.unmikonline.org/regulations/2001/reg04-01.html (last

visited May 26, 2007).47 This was adopted on January 12, 2001. See John Cerone, The Human Rights

Framework Applicable to Trafficking, in Persons and Its Incorporation into UNMIKRegulation 2001/4 in 7 INTERNATIONAL PEACEKEEPING: THE YEARBOOK OF INTERNATIONAL

PEACE OPERATIONS (Michael Bothe & Boris Kondoch eds., 2002).48 Paragraph 23.3 of the regulation states that a person shall not be denied entry

if he/she provides reasonable evidence of being a victim of trafficking. On this matter,


In BiH, instead, until the withdrawal of the UN mission at the end of 2002,the identif ication of victims of traff icking was mainly undertaken by theInternational Police Task Force (IPTF). Within IPFT a Special Traff ickingOperation Program (STOP) was constituted, which was composed of 50 inter-national police officers and approximately 150 police officers from BiH, whichwere exclusively responsible for tackling the problem of human trafficking allover the country. BiH law enforcement units are now assisted by the EuropeanUnion Police Mission (EUPM), the followers of IPTF.49

4. Adoption of Contractual Provisions Prohibiting PSO Personnelfrom Engaging in Trafficking

NATO’s Policy aims at tackling the problem of human trafficking by (1)fighting directly the traffickers, in cooperation with the police and (2) adopt-ing measures aimed at preventing the attendance of red light districts by its per-sonnel. The fight against this type of illegal activity is complicated by its closenexus with prostitution, a conduct that, as such, is not considered illegal inTCNs. Due to the difficulties in distinguishing between the two situations,NATO decided to adopt a zero-tolerance policy towards any conduct involvedin activities related to the sex industry, be these legal or illegal. Although it maybe dangerous to relate prostitution with human trafficking, as pointed out byElizabeth Rennie in her chapter,50 since prostitution may be legal in some TCNsand, therefore, its association with the crime of human trafficking may ulti-mately confuse the soldiers, the extension of the zero-tolerance policy to pros-titution, too, is due to the fact that very often the soldier in the field may beunable to identify a victim of trafficking from a person freely working as aprostitute. For this very same reason Valerie Wahl suggested that: “military mis-sions or forces should also take into consideration the introduction of a systemof legalized and controlled sexual services within their mission in order to chan-nel and control the demand of their mission staff.”51 Alternatives may be thegranting of regular leaves of a minimum of two weeks in order to allow the

as well as the problem of border control, see Stefano Failla, Migration and BorderManagement in Kosovo 1999–2005 in PRACTICE AND POLICIES OF MODERN PEACE SUPPORT

OPERATIONS 212 (Roberta Arnold & Alexander Knoops eds., 2006).49 RCP, supra note 2, at 120–21. On the duties and status of EUPM, see the EU

Council Decision concerning the conclusion of the Agreement between the EuropeanUnion and Bosnia and Herzegovina (BiH) on the activities of the European Union PoliceMission (EUPM) in BiH, Sept. 17, 2002, Doc. 11988/02, available at http://www.eupm.org/Documents/4.2.EUPM%20SOFA%20legislative%20act.pdf (last visited May26, 2007).

50 Chapter 17 of this book.51 Wahl, supra note 33, at 245.


peacekeeper to rejoin his/her family and go back to his/her home country. Thisapproach, for instance, is adopted by the Swiss armed forces. Likewise, theGerman armed forces provide for regular leaves.52

The zero-tolerance policy, in fact, also applies to periods of leave, whentroops have the chance to pass a couple of days outside the theater of opera-tions. For instance, with regard to Kosovo, KFOR personnel are prohibited fromattending not only specific areas in Kosovo, but also in bordering countries likeMacedonia (FYROM), Greece and Albania.53 To facilitate this task, UNMIK’spolice and KFOR made a list of the already mentioned off limits areas for theirown personnel.54 Mere attendance of these areas has disciplinary consequences.The easiest way to implement this practice is for the commanders of the indi-vidual contingents to release orders aimed at limiting the freedom of movementof their soldiers. The breach of an order, in fact, constitutes a crime accordingto all domestic military codes, thereby constituting a deterrent for military per-sonnel.55 Similarly, EUPM has also set up its own off-limits lists with regardto its mission in BiH,56 which is regularly updated.

Another, perhaps more efficient, method of prevention, however, is theadoption of contractual provisions enabling the sending state to immediatelyterminate a contract with a peacekeeper in the event of serious suspicion ofinvolvement in human trafficking, both as a customer or, even worse, as a trader.Serious suspicion should be sufficient, since already the risk that the host state’slocal population may have the impression that peacekeepers are engaged inthese serious human rights violations may jeopardize the credibility and there-fore the success of the whole PSO. The possibility of immediately terminatingthe contract should always be foreseen in the contracts of employment. It has,in fact, to be kept in mind that contracts with PSO personnel are normally signedfor a limited period of time, generally six months. In these cases, if there is noclause allowing for immediate termination and repatriation, the risk is that thepeacekeeper may be repatriated, but that he will continue to receive his wages,since the deadline for termination of the contract will have not expired yet. Forinstance, if a peacekeeper signs a contract from January to June, and he is sus-pected of misconduct in April, depending on the deadlines foreseen by domes-tic contract law, the risk is that the regular deadline for termination may expire

52 Jurschick & Schäfer, supra note 6. 53 See KFOR SOP 1300.54 See Mendelson, supra note 6, at 11.55 A problem in this regard, however, is whether so-called subcontractors, by pri-

vate law enforcement agencies, are subject to the same provisions of military personnel. 56 See US Department of Defense Inspector General, Efforts to Combat Trafficking

in Persons—Phase II, Bosnia & Herzegovina, at 2 (Dec. 8, 2003), available athttp://www.dodig.osd.mil/fo/foia/HT-Phase_II.pdf (last visited June 1, 2007): “As mem-bers of SFOR and KFOR, contractor employees are forbidden from patronizing estab-lishments designated by the United Nations or the European Union Police Mission asoff-limits because of illegal prostitution and human trafficking concerns.”


long after the end of the peacekeeper’s mission. At the same time, however, thismeasure shall be accompanied by reference of the case to the criminal author-ities, as it may happen that a peacekeeper is repatriated with no legal conse-quence other than the termination of the contract. In particular the NCC (nationalcontingent commander) should at least inform the military investigative author-ities. Valerie Wahl, a legal advisor with the EUPM in BiH, suggests in thisregard the adoption of the following measures, too:

enforcing the severity of disciplinary sanctions within missions,strengthening the decision-taking mechanisms within the mission dis-ciplinary systems by further delegation of power from the sending stateto the mission management, obligatory brief ings of mission staff,change of the legal status of the private companies that are supportinginternational missions or forces and that are acting beyond the law inthe mission areas.57

5. The Example of Switzerland

Switzerland has long been engaged in the promotion of human rights andin raising awareness on gender issues. For this reason, an office on GenderStreaming and Peacekeeping Operations was established within the Directoratefor Security Policy of the Swiss Department of Defense (DoD). Its task was toengage in several activities aimed at raising awareness among the Swiss armedforces, in particular those foreseen for deployment abroad, on gender issues,including human trafficking. Special briefings have been organized in partic-ular at the Swiss DoD’s competence center for PSOs, called SWISSINT, withfocused training sessions for members of the Swisscoy58 and those to be deployedto BiH. In October 2004 the “gender issues dossier” was delegated to the Lawsof Armed Conflict Section of the Swiss DoD, which is entrusted with the train-ing of all the members of the Swiss armed forces on international humanitar-ian law, human rights law and operational law. Training sessions have beenregularly organized, in both German and English, for those to be deployed, withthe particular aim of implementing NATO’s zero-tolerance policy with regardto human trafficking.

The personal experience of the author, who was also entrusted with theteaching of these training modules, is that when military personnel are con-fronted for the first time with the topic of human trafficking, embarrassmentand a little bit of incredulity may be sensed. The first reaction of prospectivepeacekeepers is to ask what human trafficking has to do with them. Often theydo not see the subtle dangers related to this phenomenon, and they may also

57 Wahl, supra note 33, at 245.58 The peacekeeping mission in Kosovo.


not be aware of the fact that in many red light districts, particularly in areaswith a high concentration of military forces, this may be an issue. Once it evenoccurred to the author, who was conducting research on the implementation ofthe NATO Policy in Kosovo, to talk on the phone with a Greek peacekeeper(rank and role unknown), who did not even know what human trafficking is!In order to be able to be connected with the competent authorities dealing withhuman trafficking, the author had to explain to him what human trafficking is.Training, therefore, is of crucial importance. But it is even more important toexplain to the military that nobody is intending to accuse them of being poten-tial perpetrators. As observed by Elizabeth Rennie, for soldiers, especially thosecoming from countries where prostitution is not an offense, it may be difficultto understand the difference between prostitution and human trafficking. Ittherefore needs to be explained that in most receiving states, the criminal organ-izations that used to be in charge of the smuggling of weapons during the armedconflict, and that still pose a threat to the PSO in the area, are still in place andleading the illegal trade of human beings, which is then used to make profitsto purchase weapons again, thereby posing a renewed threat to the PSO.

It also needs to be clarified that human trafficking is a serious human rightsviolation of the victims and that peacekeepers have a high responsibility: theyare never on leave and, therefore, a high moral attitude is always expected fromthem in order to maintain the credibility of the operation. During training ses-sions, particular attention has also always been drawn to the fact that in mosttheaters of operation, health control is very poor and that attendance in red lightdistricts may also affect them negatively in this sense. Last but not the least,peacekeepers who, in breach of the order not to attend certain areas, nonethe-less decide to attend them on their own, face the risk of being attacked or black-mailed. Training within the Swiss military, therefore, has primarily focused onthe fact that trafficking is both a threat for the victims, whose human rightshave been breached, and the potential “customers,” who risk not only criminalprosecution but even worse, getting infected with some disease or falling intothe hands of criminal gangs.

These training sessions, which normally last two hours, have always had apositive outcome, with soldiers being thankful for having been made aware ofthe risks potentially related to the desire to spend a nice “night out” in areasdefined as “off limits” areas.

In this regard, much debate has arisen as to whether the off-limits lists pro-duced by EUPM and UNMIK should be distributed to the soldiers. One argu-ment is that unless the soldiers know which clubs and bars are considered tobe off limits, they cannot observe the NATO Policy. A counterargument oftenused by the commanders, however, is that these lists may be an incentive forthe soldiers to go and look for these places. A preferred solution is to grantthem very limited leave permits. Should the peacekeepers be authorized to leavethe military camp, they should always perform patrols in couples, in order tobe able to control each other. But, as said, the primary way to avoid problems


related to human trafficking is to forbid the peacekeepers from leaving theirmilitary compounds and provide them with sufficient holidays to travel backhome. For instance, taking all leaves in one block is not allowed. The underly-ing idea is that the soldiers should be able to have sufficient breaks during thedeployment, which is normally contracted for a maximum of six months.

The problem of misconduct and termination of the contract has been facedrecently. It is now possible to dismiss a soldier on the basis of serious miscon-duct. Until this new clause was introduced into the employment contracts, themajor problem was that soldiers were not refrained from misbehaving sincedismissal meant the possibility to be repatriated and to continue earning thesalaries foreseen for the deployment.

Soldiers are advised of the possible criminal consequences of misconduct.With regard to human trafficking, there are different provisions of the SwissMilitary Criminal Code (SMCC),59 which may be invoked:

• Breach of service regulations (Article 72 SMCC);• Order refusal (Article 61 SMCC);• Incitement to sexual exploitation (Article 153 SMCC);• Rape (Article 154 SMCC); and• Sexual intercourse with children (Article 156 SMCC).

As said, the NATO Policy has no legally binding character and needs to beimplemented. The easiest was is for the national contingent’s commander togive an order restating the provisions of the NATO Policy. The breach of thisorder will automatically constitute an offense.

Additionally, the peacekeeper may also face prosecution under the SwissCriminal Code,60 if he/she has been engaged in the enforcement of prostitutionor human trafficking, pursuant to Articles 195 and 196. In this regard, a leadingjudgment was made by the Cantonal Criminal Tribunal of Canton Ticino onJanuary 14, 2005, which established that trafficking may be committed also withregard to a single victim. The debate arose as to whether the meaning of humantrafficking, which in German is “Menschenhandel” and in Italian is “tratta diesseri umani,” that is, in the plural form, could also cover one person. The casedealt with a Hungarian girl who had been trafficked into Switzerland. The Courtconcluded that it could, and the perpetrators were sentenced pursuant to Article196(1) of the Swiss Criminal Code.61 The sentence, however, was relatively

59 SR 231.0, available at http://www.admin.ch/ch/f/rs/c321_0.html in French.60 SR 311.0, available at http://www.admin.ch/ch/f/rs/c311_0.html in French. 61 Ref. No. 72.2004.136, Corte delle assise correzionali di Bellinzona, 14.1.2005,

Judgment, available at http://www.sentenze.ti.ch/cgi-bin/nph-omniscgi?OmnisPlatform=WINDOWS&WebServerUrl=www.sentenze.ti.ch&WebServerScript=/cgi-bin/nph-omnis-cgi&OmnisLibrary=JURISWEB&OmnisClass=rtFindinfoWebHtmlService&OmnisServer=JURISWEB,193.246.183.14:6000&Parametername=WWWTI&Schema=TI_WEB&Sourc


lenient, considering that the three perpetrators received between 13 and 16 monthsimprisonment. In this view, considering what has been said previously, prose-cution of a peacekeeper by the receiving state may be much stricter.

During training sessions, awareness is also raised to the fact that, theoret-ically, the receiving state may request waiver of immunity, with the risk thatthe peacekeeper may face much higher charges.

As said, however, the NATO Policy on Human Trafficking does not onlyrequire prevention, but repression. Repression is understood in Switzerland asmeaning that alleged cases of human trafficking by Swiss members of the armedforces should be prosecuted. Due to its neutrality, however; Switzerland is notallowed to engage in Chapter VII operations.62 This means that law enforce-ment is also a task beyond the competences of Swiss peacekeepers, includingthe military police, should the suspicion involve a non-Swiss national. Thismeans that if Swiss peacekeepers face a situation alleging a case of human traf-ficking, they should refer it to their commander, who will then refer it to thecompetent authorities.

D. PRACTICAL TOOLS FOR LAW ENFORCEMENT AGENTS IN THE FIELD

1. General Tools

What should a soldier do, when faced with the suspect of a case of humantrafficking? The following checklist may be used:

1. Inform your superior, 2. Assess the situation,3. Act (with help of language assistant),4. Ask for identity papers (illegality is a sign for trafficking in human

beings!),5. Separate possible victims from trafficker(s),

e=&Aufruf=getMarkupDocument&cSprache=ITA&nF30_KEY=59762&nX40_KEY=202472&nTrefferzeile=2&Template=results/document_ita.fiw (last visited on May 26, 2005).The Court, in particular, refused to label the situation as incitement to prostitution.

62 See art. 66 (a)(2) of the Swiss Military Law (Loi fédérale sur l’armée et l’ad-ministration militaire, SR 510.10, available at http://www.admin.ch/ch/f/rs/510_10/index.html ): “La participation à des actions de combat destinées à imposer la paix estexclue.” This follows from Article 66, according to which the PSO must be mandatedby either the UN or the OSCE, and it shall be compatible with Switzerland’s principlesand politics : “Les engagements pour la promotion de la paix peuvent être ordonnés surla base d’un mandat de l’ONU ou de l’OSCE. Ils doivent être conformes aux principesde la politique extérieure et de sécurité de la Suisse.”


6. Call for help from law enforcement agencies,7. Guard the possible evidence.

The military is based on the chain of command. During training sessions forprospective peacekeepers to be deployed to Kosovo and BiH, when referringto the possible use of so-called “green lines” to call NGOs or specialized agen-cies dealing with human trafficking,63 it has often been observed that this isnot allowed, due to the chain of command. The issue of the chain of commandmay become crucial in those cases where a PSO soldier may have to report ille-gal conduct of the member of another TCN to the mission.64 In all events, eventhough to make an anonymous call informing such agencies about a suspectedcase of trafficking is unlikely to be construed as a breach of service regula-tions, the alternative is to inform the superior, or, as mentioned previously, theCIMIC, who will then be authorized to refer the case to the competent civilianauthorities.

2. Assessment of the Situation at Checkpoints

The assessment of the situation may be of particular importance for sol-diers at checkpoints. As mentioned, victims of trafficking are normally smug-gled by means of transportation such as minibuses or vans. It is for this reasonthat UNMIK adopted specific legislation concerning border controls. Importantelements that may be considered and assessed by soldiers at checkpoints, there-fore, are whether:

1. The driver is the only one speaking English (or Bosnian, etc) and/orposes himself as a mediator.

2. The driver is the only one owning a mobile phone.3. The driver has money, receipts and telephone numbers.4. The driver holds the passports of the travelers. If so, this is suspicious.5. The driver is properly dressed or distinguishes himself in clothing or

haircut from the other travelers. Traffickers often have a Western ratherthan an Eastern look.

6. The driver is the only one traveling without luggage.7. The driver has a different nationality than the rest of the group.

All these elements should ring a bell and, as such, should be highlighted intraining courses for military personnel. They should also be instructed about

63 See, for example, the International Organization for Migration or, in BiH,LARA and La Strada.

64 On this problem, see Mendelson, supra note 6, at 55 et seq., reporting aboutthe case of the Russian military contingent in Kosovo and trafficking.


what to do next. In particular, if a smuggler is found, he/she should be isolatedas soon as possible from the rest of the group, or otherwise he/she may instructthe smuggled people about what to say or do. Preferably, the other members ofthe group should be separated in order to avoid them matching their stories toeach other. Attention should also be paid to the fact that, when arrested, sus-pects try to throw away incriminating material (hide phone numbers in narrowopenings in the floor or chair seats, or throw items out of the vehicle).

Moreover, military units engaged in cooperation with local police unitsshould look for the following evidentiary elements when arresting individualsuspected of human trafficking:

1. Foreign prints on packaging or foreign money: these may reveal a partof the trip, particularly Russian cash receipts, German packaging andCzech small change. These items should be seized.

2. Prepared cargo can point to the involvement of the driver. In somecases, special spaces were discovered in lorries used to hide and smug-gle people.

3. In some cases, smugglers “physically” marked the smuggled persons.This occurs in particular when the “cargo” has different end destina-tions. Sometimes the smuggler may write a number with a marker onthe hands or palms of the victims, or make them wear bracelets in dif-ferent colors.

4. A tachograph may give information about the distance covered andsuggest whether long journeys have been undertaken, indicating a pos-sible case of trafficking.

3. Other Indicators that Trafficking in Persons Might Be Taking Place

Very often the military police of national contingents are not engaged ininvestigations into local crime such as human trafficking. Nevertheless, asshown by the example of the cooperation between KFOR and UNMIK, theremay be cases where special military units may have to deal with investigationsconducted by the police. In this regard, therefore, where NATO troops may becalled to implement the duty to “repress” human trafficking by providing sup-port to the local police authorities, the following elements should also be con-sidered. Human trafficking is usually evidenced by:65

• employees who are allowed to leave the premises only with their patrons;• private rooms that are provided for one-on-one services between

employee and patron;

65 List taken from the USFK Pamphlet, discussed in Section D.4.


• bar owners or other authority figures monitoring and regulating con-tact with the employees;

• employees appearing not have the personal freedom to leave the clubwithout permission or not having access to their passports or other per-sonal items, barred windows, locked doors, electronic surveillance;entrance limited to certain ethnic groups; women never seen leavingthe premises unless escorted;

• violent acts committed against female employees—beating or push-ing on the grounds that warm hospitality was not provided to patrons;

• extortion—taking a part of the money earned from prostitution; vic-tim having very little or no “pocket money”;

• non-payment of wages—monthly wages not paid or business ownerallegedly “safe-keeping” the wages;

• employees forced to engage in prostitution;• victims living at the same premises as the brothel or work site, or driven

between quarters and “work” by a guard;• victims kept under surveillance when taken to a doctor, hospital or

clinic for treatment; pimp/trafficker acting as a translator.

4. Use of Pocket Cards

Pocket cards may also be very useful for peacekeepers in the field. Forinstance, the US Forces Korea (USFK) launched a campaign against humantrafficking and prostitution that included the release of a “USKF AwarenessPamphlet for Combating Trafficking in Persons and Prostitution.”

This pamphlet briefly explains the notion of trafficking, meaning modernslavery stemming from greed of perpetrator, economic hardship, destabilizingforces such as criminal activity, economic hardship, government corruption,social disruption, political instability, natural disaster and armed conflict. Itthen moves on explaining that trafficking is the third largest criminal activityin the world, following illegal drug and arms sales and that each year an esti-mated 600,000–800,000 men, women and children are trafficked across inter-national borders. A brief description of the conduct of victims is provided,namely that they are typically forced to engage in criminal activity, which makesit impossible for them to turn to the authorities for help, and that traffickersgain further control of their victims by isolating them and breaking off theirties with the outside world. Moreover, victims are often moved around amonga circuit of workplace brothels and coached on what to say to officials. Thepamphlets also contains a brief description of the criminal and administrativesanctions that a soldier may face if found guilty of engagement in human traf-ficking and highlight the extraterritorial applicability of the domestic law ofthe sending state. This raises the awareness of the peacekeeper that the peace-keeping theater is not a free zone where he/she may misconduct without the


risk of facing legal consequences. In this regard, it is very important that supe-riors at all levels immediately report alleged suspects to the competent author-ities and that in case of repatriation the case is referred to the military or civilianjudicial authorities of the sending state. In this regard, for instance, the USFKpamphlet also highlights the responsibilities of commanders in this regard.66

The command policy is restated (zero-tolerance policy) and, finally, togetherwith pictures indicating off-limits areas and establishments (civilian pharma-cies and drug stores, barber shops, steam Turkish baths, medical/dental clinicsexcept when referred by US medical treatment facilities, gambling houses, openbodies of water (brothels may be found on ships), glass houses (in the shape ofthe window shops of Amsterdam), the Internet address of the Web site wherean updated list of off-limits area is available is provided.67 The pamphlet endswith indicators that trafficking in persons and/or prostitution might be takingplace and provides hotlines that may be called to report.

The provision of this kind of pamphlets is certainly a good tool to raise aware-ness among all PSO personnel, allowing them to prevent, at least, the develop-ment of the phenomenon of trafficking and, possibly, also its repression.

E. CONCLUSIONS

With the adoption of the Policy to Combat Human Trafficking NATO hasmade it clear that this phenomenon is a problem to be addressed by the mili-tary and that the mentality according to which the “boys will always be boys”and that a little “entertainment” will permit the soldiers to better perform theirmilitary duties is old and outdated. Peacekeepers nowadays have several options,including the possibility of rejoining their families and friends twice duringdeployment. Missions normally last for a maximum of six months, which alsoallows them stress relief. The ban on human trafficking is not to be perceivedas a moral crusade: it has nothing to do with the free exercise of prostitution.

66 Reference is made to Title 10 of the US Code, Sections 3583, 5947 and 8583,“Requirement of Exemplary Conduct,” dated November 18, 1997, according to whichcommanders are responsible to show in themselves a good example of virtue, honor,patriotism and subordination. They shall be vigilant in inspecting the conduct of all per-sons who are placed under their command, and they shall further guard against and sup-press all dissolute and immoral practices, and to correct, according to the laws andregulations of the relevant Military Department all persons who are guilty of them.Moreover, they shall take all necessary and proper measures, under the laws, regula-tions and customs of the relevant Military Department, to promote and safeguard themorale, the physical well-being and the general welfare of the officers and enlisted per-sons under their command or charge.

67 See also https://www-eusa-1.korea.army.mil.


It is a crime, due to which individuals, including men68 and children, are forcedto sell their bodies for no money, under duress. But apart from the gravity inher-ent in the fact that it constitutes a human rights violation, it is also a very seri-ous threat to the security of both the PSO and its personnel. It may jeopardizethe credibility of the PSO: the peacekeepers shall not become part of the prob-lem, they are there to fight the problem and help states devastated by armedconflicts to rebuild and to function in abidance of human rights. A PSO canonly work by “Winning the hearts and minds of the population.” A PSO knownto hide members alleged of misconduct will lose the hearts and minds of thelocal population and, therefore, expose itself to threats. At the same time, neg-ative feedback to the capitals of the TCNs will automatically lead to negativeimaging in the media and consequent loss of support by the political institu-tions. Human trafficking is in the hands of those criminal organizations thatare also smuggling of weapons and arms, which permits the reemerging of inter-nal violence. To finance human trafficking as “customers” of the victims auto-matically runs counter to the objectives of the PSO. Finally, the safety of theindividual peacekeepers themselves will be jeopardized, due to the fact thatvictims of trafficking are not subject to health control and that they may beused to drag individual peacekeepers into “traps” in order to blackmail themwith the revelation of their misconduct to their relatives back at home, or, evenworse, to extort money from them or keep them as hostages.

68 See IOM, Counter-Trafficking Service, Changing Patterns and Trends ofTrafficking in Persons in the Balkan Region, at 8 (July 2004): “During 2003, Moldovanand Macedonian newspapers revealed the story of two Moldovan men who had beentrafficked in FYROM. The two men were travelling illegally to work in Greece, but weresold to a Macedonian woman. They were forced to work without pay on constructionsites during the day and as male prostitutes at night, and they were beaten and starvedto submission. One man was in his early twenties and the other in his mid-forties. Thetwo eventually managed to return to Moldova, where they approached the police andthe story was published. One of the men was placed in a psychiatric hospital. This isthe first reported case of male trafficking for prostitution so far.”

381

CHAPTER 16

TRAFFICKING IN HUMAN BEINGS—REDUCTION STRATEGIES FOR LAW ENFORCEMENT

IN PEACE SUPPORT OPERATIONS

Elizabeth Rennie*

A. INTRODUCTION

Peace support operations (PSOs) around the world now cover a wide rangeof activities very different from those handled by their predecessors. Now theyfrequently provide multidimensional support to governments in need of polic-ing and legal guidance instead of simply monitoring ceasefires or peace agree-ments. Law enforcement and prosecution are integral components of rebuildingor reestablishing the rule of law, and their inclusion has been shown to assistin stabilizing and rebuilding local societies and thereby helping restore peace.

Every PSO is unique in light of the context that led to its creation and thespecifics of its individual mandate. Often in such a setting the internationalcommunity is the primary law enforcement authority in the area. Sometimes,it is the only one. It is not uncommon for the rule of law infrastructure to bedestroyed or heavily compromised before the arrival of the PSO. Existing struc-tures are often very weak, and in some instances, there is a history of humanrights abuses and corruption. As a result, they will be the subject of great dis-trust or hostility. Furthermore, even if the law enforcement component of thePSO is welcome, prior to its arrival, it is probable that organized criminal activ-ity will have already gained a stronghold in the local community especially ifthe economic and social infrastructure is in total disarray.

Trafficking in persons is a difficult and complex crime that is very hard toinvestigate and prosecute because of its clandestine nature. Trafficking has beendescribed as “dynamic and adaptable” and “constantly changing in order to

* At the time of drafting this article, Elizabeth Rennie was employed as anInternational Prosecutor with the United Nations Interim Administration in Kosovo(UNMIK) and in September 2007 will be an Advanced LL.M. student at LeidenUniversity, in The Netherlands. This article reflects the personal views of the author andnot those of the United Nations or UNMIK.


defeat efforts by law enforcement to prevent it.” As well, “[t]he responses tothe problems are also rapidly evolving” as “[w]e learn daily about new waysof preventing, investigating and controlling the crime of trafficking and aboutmore effective ways of protecting and assisting the victims of this crime.”1

This chapter seeks to set out the minimum law enforcement strategies nec-essary for successful investigations in this area while recognizing the uniquechallenges associated with investigating such crimes in a PSO. After startingwith a well-known definition of trafficking in persons and addressing somecommon areas of confusion, it then discusses some of the root causes anddynamics of trafficking in persons. The chapter then seeks to provide somepractical suggestions for investigations including the appropriate identificationand handling of victims and witnesses including children. Those suggestionsspecifically consider the handling of such investigations in a PSO with a briefmention also made to the issue of investigating peacekeepers as alleged per-petrators—an area which, although dealt with at length in other chapters of thisbook, cannot be ignored.

B. DEFINITION OF TRAFFICKING AND COMMON MISCONCEPTIONS

While a universally accepted definition of trafficking does not exist, accord-ing to the Protocol to Prevent, Suppress and Punish Trafficking in Persons,Especially Women and Children supplementing the UN Convention againstTransnational Organized Crime2 trafficking in persons means:

the recruitment, transportation, transfer, harboring or receipt of per-sons, by means of the threat or use of force or other forms of coercion,of abduction, of fraud, of deception, of the abuse of power or of a posi-tion of authority or of the giving or receiving of payments of benefits

1 UN OFFICE ON DRUGS AND CRIME, TOOLKIT TO COMBAT TRAFFICKING IN PERSONS,at ix (New York, 2006) [hereinafter Toolkit]. This publication like most of those referredto are available online. This particular publication is available at the UNODC Web site,www.unodc.org/unodc/en/trafficking_human_beings.html, and summarizes a numberof “conceptual, legislative and organizational tools” used around the world and has alist of useful Web sites. An effort has been made to focus on online resources as manypersonnel in PSOs do not have access to traditional libraries but most have access to theInternet.

2 Protocol to Prevent, Suppress and Punish Trafficking in Persons, EspeciallyWomen and Children supplementing the United Nations Convention against TransnationalOrganized Crime, GA Res. 55/25, Annex II (Nov. 15, 2000), available at http://www.ohchr.org/english/law/protocol.traffic.htm. This came into force on December 25, 2003[hereinafter Palermo Protocol]. The United Nations Convention against TransnationalOrganized Crime, General Assembly Resolution 55/25, Annex I (Nov. 15, 2000) cameinto force on September 29, 2003.

Reduction Strategies for Law Enforcement 383

to achieve the consent of a person having control over another person,for the purpose of exploitation. Exploitation shall include, at a mini-mum, the exploitation of prostitution of others or other forms of sex-ual exploitation, forced labor or services, slavery or practices similarto slavery, servitude or the removal of organs.3

Confusion often exists as to the difference between trafficking in persons andthe smuggling of migrants. The definition of smuggling in the Protocol againstthe Smuggling of Migrants by Land, Sea and Air (another supplement to theUN Convention against Transnational Organized Crime), unlike the above def-inition of trafficking, does not require an improper form of recruitment anddoes not require an exploitative purpose.4

In some cases both crimes may, however, exist. While they are separatecrimes, “they represent overlapping crime problems.”5 In fact it is often diffi-cult to determine whether a victim was trafficked or smuggled.

Confusion often exists within the police as to the distinction between traf-ficking and prostitution. The above definition for trafficking in persons doesnot specifically require that sexual services be a component to the crime. Whileit is one purpose for which the offense may be committed, other purposes maybe behind the crime including but not limited to forced labor or the trade inorgans and body parts.

The consent of the victim is irrelevant if the victim is a child and is irrel-evant if it was given under duress or was impossible. Often the victim has beendeceived and/or threatened. Even initial consent can be subsequently vitiated.

While the aforementioned definition of trafficking in persons deals withtransnational offenses involving an organized criminal group within the mean-ing of the Organized Crime Convention, trafficking in persons need not occuronly across borders. For example, trafficking in persons may involve move-ments of persons from and through borders (originating and transit states) untilthey arrive at their destination. On the other hand, however, victims of traf-ficking may stay within the destination state permanently or temporarily andoften may be moved within the state. It is for that reason that careful attentionshould also be drawn to what has been termed internal trafficking as well.

C. THE CAUSES AND DYNAMICS OF TRAFFICKING IN PERSONS

The root causes of trafficking in persons are complex and vary to someextent. The issue is often thought of from an economic point of view where

3 Palermo Protocol, supra note 2, art. 3(a).4 Protocol against the Smuggling of Migrants by Land, Sea and Air, GA Res.

55/25, Annex III (Nov. 15, 2000), art. 3 (a). This came into force on January 28, 2004.5 Toolkit, supra note 1, at xiv.


those who traffic persons use their victims as a supply source and exploit theirvulnerabilities in order to meet an existing demand. The crime tends to net veryhigh profits with relatively low risks to the trafficker. Circumstances on theground including poverty, corruption, the limited capacity or commitment ofimmigration and law enforcement to control movements across borders; anda lack of understanding of the phenomenon also facilitates the entrenchmentof this type of crime. Some victims leave their country willingly in order tofind employment and are then deceived, and other victims are kidnapped orsold from the outset. As well, “gender-based discrimination makes women andgirls disproportionately vulnerable to trafficking.”6 Men, however, can be vic-tims as well.

The traffickers themselves may fall into a couple of categories. For exam-ple, the crime may be carried out by a series of small, loosely connected organ-izations recruiting and selling victims from one to another as they move from thestate of origin to a state of destination, or it may be carried out by large and sophis-ticated criminal organizations operating at every stage of the process. In eitherscenario, few groups limit their criminal activities to trafficking in persons; otherforms of trafficking or other crimes are almost always occurring.7

D. THE DIFFICULTIES IN INVESTIGATING TRAFFICKING IN PERSONSCASES AND THE EXTRA CHALLENGES AFFILIATED WITH A PSO

Trying to investigate such crimes in a PSO is more challenging because ofcommon surrounding circumstances in the host state including a loss of mate-rial, institutional and human capacity; the absence of or an inadequate legalframework; an insecure environment; human rights violations and a culture ofimpunity; threats to judicial independence and impartiality; distrust of exist-ing structures and sometimes even a lack of rule of law culture.8 This chapterseeks to highlight some of the unique challenges to law enforcement in PSOswhen it comes to trafficking in human beings, outlines some tools that mayassist law enforcement and concludes with a list of resources on the Internetthat may prove useful for law enforcement purposes. Special attention is alsogiven to child victims and recent allegations of sexual exploitation and abuseby personnel deployed in peace support operations.

As noted above, many PSOs now include a rule of law component that pro-vides for the establishment or reestablishment of the investigatory, prosecuto-rial, adjudicatory abilities within the host state. Such capacity-building may

6 Id. at xviii.7 Id. at xix.8 UN Department of Peacekeeping Operations, Primer for Justice Components

in Multidimensional Peace Operations: Strengthening the Rule of Law, at 3–4 (NewYork, Dec. 2006).


enable the host state to investigate and prosecute all persons, including peace-keeping personnel, in accordance with international standards for human rightsand due process. The difficulty, however, is that a fully functioning police andlegal system is not a short-term exercise. As well, it is not the norm that lawenforcement in PSOs has an executive mandate. Every PSO is unique. As aresult, even if the law enforcement component does not have an executive man-date, it is hoped that a number of the ideas discussed in this chapter may be ofassistance especially to the local law enforcement with whom they work.

While it is very difficult to obtain reliable data on the extent of traffick-ing in human beings,9 it is known that those who do traffic human beings oftenflourish in an environment where one would find a PSO. Traffickers can eas-ily identify and locate persons in a desperate state in such locations and exploitthem or bring in others from outside the country with impunity because of non-existent or weak enforcement regimes. Further, those who perpetrate or enablethese individuals or groups to do so also perceive areas where PSOs are set upas potential sources of demand because of the large influx of foreign workerswho are often paid wages that are considered to be high in comparison to thatearned by their local counterparts.

Challenges associated with trafficking in human beings in a PSO are numer-ous. Police are working in a post-conflict environment where the social infra-structure is either gone or is affected by the history of the particular conflict.The absence of a social infrastructure and high unemployment and poverty per-mit corruption and other criminal activity to flourish. There may be an absenceof effective law enforcement, prosecution and judicial mechanisms as well asa culture of impunity and disrespect for rule of law. An absence or lack of lawsto assist in law enforcement and to protect vulnerable victims and witnesseswill also compromise investigations. Depending upon the reasons that led tothe creation of the PSO at that particular location, there is the potential for afear of those who wield authority (whether criminal or political) and a high dis-trust of the police and judicial institutions and consequent unwillingness forpersons to come forward.

PSOs are frequently limited in their mandate, and not all will have execu-tive powers. As well, law enforcement staff connected to a PSO will have lit-tle or no familiarity of the conditions on the ground and in a sense are outsiders.Their ability to effectively investigate and prosecute such activities is oftencompromised because they cannot speak the local language(s), they are unableto effectively participate in undercover operations and are not fully aware ofcultural sensitivities including, for example, social stigmas that preclude thereporting of sexual offenses or local preferences for justice to be exacted with-

9 UN Office on Drugs and Crime, Trafficking in Persons: Global Patterns April2006, at 9, 33 (Vienna, 2006), due to the hidden nature of the crime, the lack of globalstatistical reporting and, for example, the attention given to sexual exploitation overother forms of human trafficking.


out recourse to the police or the courts. Lastly, it cannot be forgotten that thepresence of the PSO may create an additional demand for sexual services withsome personnel possibly committing crimes.

This chapter assumes that the police and justice components of a particu-lar PSO have executive authority during the PSO with the ultimate goal of trans-ferring the skills and then the authority to local counterparts after a period oftransition. Such an arrangement maximizes the ability to effectively investigateand prosecute those who engage in the trafficking of humans especially in anenvironment where the police and legal structures have been compromised. Anyother arrangement would be temporary and cannot guarantee the sustainabil-ity of earlier efforts. In that regard, local understanding of the issue and engage-ment is critical to the success of any effort to tackle the problem.

The challenge for law enforcement in a PSO is to come up with effectiveresponses to the problem. In that regard, this author agrees with the assessmentof the Toolkit that effective responses “call for collaborative, multi-agency,long-term, coordinated, strategic and well-planned action. Planning for actionmust be based on a sound assessment of the problem and of the existing capac-ity to respond. It must be supported by a local willingness of the various groupsand agencies involved to cooperate with each other and with others at the inter-national level.”10 As a result, for the purposes of this chapter it is not easy tospeak about law enforcement issues to the exclusion of other agencies.

A first step in a PSO is to carefully assess whether there is a crime of traf-ficking in human beings within the laws of the host state. Because the crimeoften encompasses an international aspect with the crossing of borders, anappreciation of the relevant legislation in surrounding states and at the inter-national level will also be important. While the adequacy of local laws is notnormally an area for which law enforcement is responsible, the absence of goodcriminal laws to combat the issue both directly and indirectly from a numberof fronts will seriously affect the ability to successfully investigate and prose-cute such cases.

If such provisions do exist, then the provisions should be reviewed to deter-mine if they meet minimum legal standards and if they meet regional and inter-national standards. If such a review reveals gaps in the law or highlightsdeficiencies, there is no obstacle to the law enforcement urging other rule oflaw components of the peace support operation to ensure that necessary lawreform is completed as soon as possible.

It should be emphasized, however, that such a review should not focus juston whether the offense of trafficking in persons exists and its sufficiency. Verysimply, it has to be asked whether necessary legal offenses and legal proceduresexist in order to effectively combat the traff icking of human beings.Consideration should be made as to whether all needed provisions exist and/orare sufficient to combat this difficult crime. For example, are related offenses

10 Toolkit, supra note 1, at 11.


prosecutable? Are the necessary procedures to protect victims (including childvictims) and other vulnerable witnesses in place? Victims are frequently thesubject of threats and sexual abuse. Their travel documents and other forms ofidentification are also often forged and/or withheld. Does the law consider suchconduct as criminal? Are there appropriate provisions for the prosecution ofthose who threaten or intimidate such victims? Does the applicable criminalprocedure maximize the ability to obtain evidence while minimizing the pos-sibility of additional trauma to the victim? Does the law negate or limit ques-tioning into the sexual history or background of the victim? Are appropriatelegal mechanisms in place to allow for witness testimony by CCTV or video-conferencing? And are appropriate legal mechanisms in place for mutual legalassistance and other forms of international legal cooperation?

Although it is not the scope of this chapter, such a legislative review oughtnot to focus solely on the criminal law. Immigration laws, labor laws and employ-ment laws should also be reviewed. Frequently people are brought into the coun-try with false employment contracts and registration of entrants into the hostState may assist in tracking their movements and the movements of those whotraffic them. The UN Office on Drugs and Crime (UNODC) can assist in effortsto bring domestic legislation up to international standards.11

Depending upon the capacity of the law enforcement component to thePSO and the local law enforcement (if any), serious consideration should begiven to the creation of a specialized police unit that works closely with asmall group of prosecutors and judges who have been trained in the area oftrafficking in persons and who have training and expertise in the interviewof vulnerable witnesses including children. Such an approach may be prudentat least at the beginning of the PSO so that limited resources can be properlyallocated and so that focused attention may be given to certain high-profilecases in order to maximize the possibility of a successful investigation andmaximize the possibility of other victims coming forward. That group ofexperts may then be available to later train others and act as points of refer-ence for their counterparts.

E. THE REQUIRED SPECIAL HANDLING OF VICTIMS AND WITNESSES OF TRAFFICKING

Careful identification of victims and witnesses is a critical component toany law enforcement activity in this area. Identification is not always easy todetermine who is a victim and who is an alleged perpetrator.

While the victim may be an excellent witness, experience has shown thatvictims may possibly be subject to additional trauma and/or danger that cancome with that responsibility. Reactive investigations usually require the involve-

11 Id. at 4.


ment of the victim in the criminal proceedings. Wherever possible, serious con-sideration should be made towards proactive investigations instead of reactiveinvestigations. Sometimes, too much reliance is placed on victims and othervulnerable witnesses when other investigative measures may have avoided theirparticipation in the trial. With the use of intelligence-based resources, the policemay be able to participate in undercover operations or be able to conduct sur-veillance that will help make the case without the need for the cooperation ofthe victim. Evidence of the use of simulated purchases by undercover officers,telephone intercepts and the use of cooperative witness evidence and parallelfinancial investigations may be sufficient to prove the crime on their own.

Whether the investigation is reactive or proactive, the position of the vic-tim must be respected and must always be considered. Those concerns shouldstart at the outset of the investigation and end long after the end of the crimi-nal proceedings. The protection of the victims and other possibly vulnerablewitnesses should be foremost. Care should be made to minimize any furthertrauma through as few interviews as possible done only by those who havereceived specialized training in interviewing vulnerable witnesses.

In cases where witnesses are needed, creative use of available legal provi-sions and available technology may assist in protecting the witness and mayassist the witness in the provision of his or her testimony. Use of closed-circuittelevision and videoconferencing will assist in preventing the defendant’s asso-ciates from determining the witness’s identity and minimize the chance of intim-idation. Protective measures should be introduced to ensure that the victim’spersonal details and that the victim’s evidence does not get into the media orthe public domain. Despite the use of such techniques, there will be cases wherevictim/witness protection will be needed in order to avoid efforts to exact revengeor retaliation upon the victim. The police should be aware of the continued needfor counseling, medical treatment and other resources that could allow the vic-tim/witness to successfully reintegrate back into society and avoid becoming avictim again. In short, investigators should make sure that appropriate victimwitness assistance mechanisms are in place.

Formal and clear protocols and memorandums of understanding, however,must be created that clearly set out the roles and responsibilities of the variousagencies that provide assistance to victims and witnesses and how that workrelates to the work of the police and the judiciary. Such groundwork will facil-itate their respective roles and responsibilities while maximizing the possibil-ity of a successful investigation and/or prosecution. For example, who interviewsthe victim/witness? When and under what circumstances? Who is responsiblefor providing safe houses for vulnerable victims and/or witnesses? Who decideson the issue of a victim’s repatriation and under what circumstances? Who pro-vides counseling and other needed support to the victim/witness? If a non-gov-ernmental organization provides the support to the victim, does it have securefacilities that are adequately resourced?

Special care should also be made so as to not treat the victim as a crimi-


nal. The applicable law should provide victims of trafficking with a defense toillegal entry or prostitution charges, and the applicable law should limit the evi-dential use of trafficking victim’s prior sexual activity.

Whether the investigation is proactive or reactive, additional investigativeapproaches may assist the investigation. For example, following the moneylinked to trafficking activity may also be an effective technique as profits appearto be the ultimate goal of many traffickers. Often businesses are set up in orderto shield trafficking activities. A shroud of apparent legitimacy may concealclients, victims and specific trafficking transactions as well as those who reallyprofit from the enterprise. While post-conflict environments tend to be morecash-based with limited formal documentation, investigators can still look forlarge sums of money or property that is beyond the means of its owner. It is notuncommon, for example, for traffickers to frequently move and change thename of a hotel or cafe and to reopen it after it has been closed down by thepolice with a new owner on paper who is not the one receiving the bulk of theprofits. In addition to possible criminal, civil or administrative sanctions againstbusinesses as well as persons, consideration should be made regarding the for-feiture and closure of such businesses and the confiscation of proceeds of crime.Criminalizing the proceeds of trafficking (as well as other crimes) can be aneffective tool to the police in combating the crime. If the applicable law in thePSO does not have the necessary tools and resources for such investigations,law enforcement should ensure that they are found. Although it may require theallocation of funding, additional legislative amendments and training of policeofficers, the tools will also be invaluable in the battle against other relatedcrimes including organized crime, which is one of the biggest threats to frag-ile states trying to rebuild after a conflict.

While this chapter focuses on trafficking in persons, it is also prudent toremind the reader that this crime is usually associated with a variety of othercriminal offenses at different stages of the trafficking process. As a result, theinvestigation should also focus on whether those crimes can be proven as well.Examples include organized crime, kidnapping, unlawful confinement, sexualassault, threatening and intimidation. Consideration of those associated crim-inal activities may ensure that those involved are properly held to account. Inthat regard, “[t]he prosecution of accused individuals for additional or over-lapping offences may also be useful in demonstrating to courts, the seriousnessof a particular trafficking operation. In some instances, for example, evidencerelating to certain aspects of the trafficking operation . . . may only be fullyrevealed by bringing additional charges before the court.”12

Another tool in the arsenal is the effort to stop corruption among personsin authority including immigration and other border officials, the police, pros-ecutors and the judiciary. Without their assistance trafficking in persons becomes

12 Id. at 35.


much more difficult. As most forms of trafficking will involve movement of persons across bor-

ders, close working relationships or partnerships between law enforcement andimmigration officials on both sides of the border will also be invaluable. Withoutthat coordination, law enforcement will miss critical evidence and will not beable to reach all available victims or be able to accurately assess the severityof the crime. In that regard, there are a growing number of bilateral, regionaland global agreements on how to tackle transnational crime and improved vehi-cles for mutual legal assistance and extradition are very welcome. The sharingof intelligence and the creation of cross-border and boundary networks andpoints of contact between the police and the judiciary will also be very help-ful in investigating cases where organized criminal networks cross borders andboundaries.

Public education is also useful in that, in addition to trying to prevent per-sons from becoming victims in the first place, it may educate others to see theindications of the crime and, if they see it, it may persuade some victims tocome forward

In the end, there needs to be a sound assessment of the problem and anexisting capacity to respond.13 For example, there may be little or no coopera-tion between government agencies and the criminal justice system. Such a sit-uation must be changed. Once that has been done, efforts can be made to improvethat capacity through the allocation of resources, the establishment of networksand cooperative arrangements and, if necessary, legislative amendments. Oncethat assessment has been done, however, there is a necessity to review the exist-ing techniques to combat trafficking in persons so that law enforcement strate-gies can be improved and can be adapted to counter any new techniques usedby the perpetrators to overcome successful law enforcement techniques.

F. SPECIAL PROBLEMS RELATED TO THE TRAFFICKING OF CHILDREN

Sadly, children (persons under 18 years of age) are often the victims of thosewho traffic in human beings. For the purposes of this chapter, a child is definedas any person under the age of 18 as per the definition found in the PalermoProtocol.14 Many countries however, do allow persons under the age of 18 cer-

13 National Referral Mechanisms: Joining Efforts to Protect the Rights ofTrafficked Persons. This practical handbook “on how to design and implement sustain-able mechanisms and structures to combat human trafficking and support victims” canbe found at http://www.osce.org/documents/odihr/2004/05/2903_en.pdf. Reference mayalso be made to the Organization for Security and Cooperation in Europe: Action Planto Combat Trafficking in Human Beings found in OSCE Permanent Council DecisionNo. 557/Rev.1, at http://www.osce.org/documents/pc/2005/07/15594_en.pdf.

14 Palermo Protocol, supra note 2, art. 3(d) It should be noted, however thatArticle 3.1 of the UN Convention on the Rights of the Child says “below the age of


tain additional rights and use terms such as minor adolescent or juvenile.Like trafficking in human beings, there is no universally accepted defini-

tion for child trafficking. In general, however, according to the Palermo Protocol,child trafficking takes the definition of trafficking in persons above and notesthat “[t]he recruitment, transportation, transfer, harboring or receipt of a childfor the purpose of exploitation shall be considered ‘trafficking in persons’ evenif this does not involve the means” set forth within the definition of traffick-ing in persons.15

In other words, trafficking in children requires exploitation, but not nec-essarily exploitation for a sexual purpose. For example, persons that exploitchildren for the purposes of organized begging, stealing or pick pocketing,domestic servitude and organ transplants may meet the definition of a childtrafficker.

While the clandestine nature of trafficking makes it is very difficult toquantify the extent of trafficking and the precise methods used by perpetrators,trafficking in children as a precise category should be highlighted because chil-dren are perhaps the most vulnerable of the vulnerable. In fact, it is not alwayseasy to identify a child or whether the child is a victim of trafficking. From apolicing point of view, the patterns of recruitment and exploitation of childrenmay also be quite different than those traditionally used for adults. One exam-ple is the rise in unaccompanied minors who enter a country and then disap-pear. Additional protective measures should be used with children. Statementsshould only be taken from children by those trained in doing such and, prefer-ably, should only be done once in as child friendly a setting as possible. Thetaking of such evidence requires special skills and training so as to ensure thatthe child is not retraumatized and that his or her statements are not the prod-uct of suggestion. In the end, the best interests of the child must be the primaryconsideration.

Recently, Mike Dottridge with Terres des hommes and UNICEF noted thatmost techniques used to prevent child trafficking in South Eastern Europe arelimited in that they focus on child trafficking but often ignore the complex setof factors behind the problem. In that regard, the report advocates efforts toimprove the performance of child protection services beyond those directly

eighteen years unless under the law applicable to the child, majority is attained earlier,”available at http://www.unhchr.ch/html/menu3/b/k2crc.htm.

15 Palermo Protocol, supra note 2.16 UNICEF, Reference Guide on Protecting the Rights of Child Victims of

Trafficking in Europe (2006) [prepared by Mike Dottridge in collaboration with UNICEFRegional Office for CEE/CIS], available at www.childtrafficking.org/eng/publica-tion.html, at 9.


related to child trafficking.16

G. ALLEGATIONS AGAINST THOSE WORKING WITHIN PSOS

In recent years, concerns have arisen with allegations of sexual exploita-tion and abuse by PSO personnel upon those whom they had come to protect.The society in which they are placed is often traumatized and vulnerable. And,“if the rule of law means anything at all, it means that no one, including peace-keepers, is above the law.”17

As noted above, the creation of a PSO generally comes with the influx ofa large number of foreign workers. Some of those workers engage in criminalactivity including sexually exploitative behavior that may, for example, seekthe services of victims of trafficking. There is no doubt that these people neg-atively affect the credibility of the United Nations and the specific PSO andmay jeopardize its ability to fulfill its mandate. Such behavior also denigratesthe many others who have made significant contributions to the operation.

Again while actual statistical evidence remains limited, the revelation of anumber of incidents in the Democratic Republic of Congo in 2004 caused greatconsternation in the public and in the United Nations. Those revelations resultedin the first comprehensive review of the issue by Prince Zeid Ra’ad Zeid Al-Hussein, Permanent Representative of Jordan.18 A number of recommendationsaccompanied that review in an effort to reduce the problem and in an effort toreduce the level of impunity. Some of those recommendations have been imple-mented and additional strategies are being developed.

At present, there is a zero-tolerance policy within the United Nations forsuch behavior, but real difficulties have to be overcome before there can be aneffective investigation and prosecution. Such victims may be reluctant to dis-close what occurred and give a statement given the power imbalance betweenthe assailant and the victim. The assailant may, for example be seen as a sav-ior if he is part of the military contingent that participated in bringing an endto a conflict before the creation of the PSO. As well, such a victim may nolonger trust any police officer or other member of a PSO because of the breachof trust associated with the criminal act. Questions as to whether an allegedperpetrator is immune are not easy to answer and, even if the immunity is waived,the responsible authority for the investigation is sometimes unclear.

17 Report of the Secretary-General to the Security Council on the Rule of Lawand Transitional Justice in Conflict and Post-Conflict Societies, UN Doc. S/2004/616,para. 33 (Aug. 3, 2004).

18 Letter dated March 24, 2005, from the Secretary-General to the president ofthe General Assembly attaching “A comprehensive strategy to eliminate future sexualexploitation and abuse in United Nations peacekeeping operations,” UN Doc. A/59/710,para. 2 (Mar. 24, 2005) [hereinafter Zeid Report].


In addition to training all persons in the PSO about trafficking in humanbeings before and after their arrival in the host state, all military and local per-sonnel should also be clearly trained that they are obligated to comply withlocal laws (including criminal law) as well as codes of conduct applicable tothe operation. All personnel should also be aware of the Secretary-General’srules prohibiting sexual exploitation and abuse.19 While at present those rulesare mandatory only for all UN staff, efforts are under way to expand their appli-cability—see, for example, comments in a report prepared by the group of legalexperts that was appointed at upon the recommendation of the Zeid Report.20

Despite the existence of those rules and the obligation upon all personnelto comply with the local law, some personnel erroneously believe that they areimmune from this behavior. Their immunity is purely functional in that it onlyattaches to work done in furtherance of their duties. Additionally, that immu-nity can be waived depending under which category of personnel they may fall.Different rules and procedures will apply to the civilian component, the mili-tary component and a civilian police component of a particular PSO and shouldbe carefully followed.

Extensive efforts are currently being made to continue to prevent such con-duct and to fill in existing impunity gaps. It is recommended in the ExpertsReport that it should not be presumed that because a PSO exists in a post-con-flict area, jurisdiction cannot be exercised by the host state for the purposes ofa criminal prosecution. If, however, the host state is unable to exercise crimi-nal jurisdiction, it may be that other states will be able to assist the host statein ensuring that such a capability exists.

Where law enforcement in a PSO has the authority to handle such investi-gations, it is suggested that care should be taken to ensure that any other admin-istrative investigations do not negatively affect any viable criminal investigationsirrespective as to whether the PSO has an executive mandate.

Law enforcement personnel who engage in such investigations should neverbe from the same nation as the alleged perpetrator(s) so as to ensure trans-parency and in order to avoid potential conflicts of interest. Law enforcementshould be aware that such investigations sometimes become well known in themission and the press because of their sensitive nature. Confidentiality and pro-

19 UN Doc. ST/SGB/2003/13 (Aug. 16, 2006). The definition of sexual exploita-tion in those rules is quite broad. Section 1 defines sexual exploitation “any actual orattempted abuse of a position of vulnerability, differential power, or trust, for sexualpurposes, including, but not limited to, profiting monetarily, socially or politically fromthe sexual exploitation of another” and sexual abuse as “actual or threatened physicalintrusion of a sexual nature, whether by force or under unequal coercive conditions.”

20 Ensuring the accountability of UN staff and experts on a mission with respectto criminal acts committed in peacekeeping missions. UN Doc. A/60/980 (Aug. 16,2006) [hereinafter Experts Report].


tective measures for the victims are critical to protecting the victim from poten-tial intimidation and further trauma and may lessen the likelihood of an attemptby the alleged perpetrator to flee the jurisdiction.

Extreme care should be taken in handling such allegations because the vic-tim may be in a very difficult situation if efforts are made by others to keep thevictim from cooperating with the police. These investigations are also more dif-ficult when the suspect attempts to flee the jurisdiction in order to avoid pros-ecution or is repatriated by the sending state. Repatriation may occur for anumber of reasons (including concerns that the suspect’s conduct may embar-rass his or her home country), but protocols should be in place to maximize theprotection of victims and/or witnesses and minimize the risk that the suspectis removed from the jurisdiction while the case is being investigated or prose-cuted. If there is no ability and/or authority to investigate and prosecute suchcases in the PSO; and if there is no way to prevent repatriation before the com-pletion of the investigation, if possible, agreements should be made that requirethat the sending state continue the investigation and/or prosecution at home.

Lastly, any investigations of UN personnel should be done in close coop-eration with the Office of Legal Affairs, the Office of Internal Oversight and,if there is one, the Conduct and Discipline Unit in the PSO. Any investigationof military personnel should also be done in conjunction with those offices andtheir equivalent within the military structure.

H. TOOLS FOR SUCCESSFUL INVESTIGATIONS

1. General Tools

In addition to the suggestions noted above, important foundational toolsfor successful investigations in this complex area include:

1. A clear understanding of the crime of trafficking in human beings;2. The use of a human rights and victim-centered approach; 3. A clear understanding of the cultural norms and the context in whichthe PSO is located. For example, in some places a woman’s admissionthat sexual activity occurred is accompanied by a heavy social stigmaincluding shame;4. An assessment of the nature of the problem in the host state and theallocation of necessary resources to combat the problem;5. The existence of a legislative framework conducive to combatingthe issue from all sides and its creative use; 6. Law enforcement with the capacity to effectively investigate suchcrimes—a change in thinking may be required especially when lawenforcement do not understand the crime or do not think it is a con-cern in the host state. In a PSO, the skills of the international police


will also need to be addressed—many will not have had to investigatesuch crimes and some will come from countries that may have the ruleof law, but may not recognize it as a crime;7. A cadre of police, prosecutors and, if possible, judges trained in thearea and trained in taking statements from vulnerable witnesses andchildren; 8. An effective victim witness assistance program that has effectivesupport measures (with the existence of safe houses for those who tes-tify) and, if necessary, a witness protection program;9. Periodic reassessment to improve existing law enforcement tech-niques and to identify and combat new methods used by those whoengage in this criminal activity;10. A recognition that domestic efforts may still not be enough andthat regional initiatives will also be needed if only because of the com-parative advantages or disadvantages of various locations within theregion to the human trafficker; and11. A multidisciplinary approach to the issue of trafficking that doesnot rely only on law enforcement and that demands local engagementis paramount especially so that the efforts can continue after the endof the peace support operation.

2. Quick Resource List

The Internet contains a vast array of resources related to the issue of traf-ficking in human beings. A good starting point is to be found with organiza-tions that deal specifically with this area including the United Nations, UNOffice on Drugs and Crime, the Council of Europe, International Organizationfor Migration. Many of these sites contain links to international and nationallaws relevant to the subject. Bibliographies are often found in attached resources.Two bibliographies that may be of use are:

1. United Nations Interregional Crime and Justice Research Institute(UNICRI) THB Bibliography, at www.unicri.it/. This is a periodicallyupdated bibliography that provides a number of links to articles avail-able on the Internet including user manuals containing useful check-lists and reports written about different regions of the world which maybe particularly relevant to the specific location of where a PSO is tobe established. This Web site also contains an “international legal repos-itory” with links to various international and regional treaties and linksto other legal databases dealing with trafficking in persons. Finallythis Web site also contains links to a number of relevant institu-tions/organizations dealing with trafficking in human beings and thesexual exploitation of minors.


2. REBECCA SURTEES & SLAVICA STOJKOVIC, ANNOTATED GUIDE TO

INTERNET-BASED COUNTER TRAFFICKING RESOURCES (INTERNATIONAL

ORGANIZATION FOR MIGRATION) (2004).A short list of useful toolkits and guides for law enforcement include the following:

ANTI-SLAVERY INTERNATIONAL, PROTOCOL FOR IDENTIFICATION AND ASSIS-

TANCE OF TRAFFICKED PERSONS AND TRAINING KIT (London, 2005).

MIKE DOTTRIDGE, REFERENCE GUIDE ON PROTECTING THE RIGHTS OF CHILD

VICTIMS OF TRAFFICKING IN EUROPE (Geneva, United Nations Children’s Fund(UNICEF), 2006).

RESOURCE BOOK FOR LAW ENFORCEMENT OFFICERS ON GOOD PRACTICES IN

COMBATING CHILD TRAFFICKING (VIENNA, INTERNATIONAL ORGANIZATION FOR

MIGRATION (IOM), 2006)—an excellent resource specifically designed for lawenforcement officers with practical experience working in this field. It is a com-pilation of identified good practices and includes the issues of identificationand age assessment, investigative methods, interview techniques and coopera-tion between law enforcement authorities and NGOs/social service providers.

UNICEF, LET’S TALK, DEVELOPING EEFFECTIVE COMMUNICATION WITH CHILD

VICTIMS OF ABUSE AND HUMAN TRAFFICKING (2003).

UNICEF, REFERENCE GUIDE ON PROTECTING THE RIGHTS OF CHILD VICTIMS

OF TRAFFICKING IN EUROPE (GENEVA, 2006).

UN DEPARTMENT OF PEACEKEEPING OPERATIONS: BEST PRACTICES UNIT,HUMAN TRAFFICKING RESOURCE PACKAGE. STOP ABUSE. (NEW YORK, UNITED

NATIONS) (2004)—a trafficking resource manual that sets out the policy of theDepartment of Peacekeeping Operations and its approach to the issue in mis-sions. An attached CD-ROM provides background reference material includ-ing international conventions, training guides and model legislation.

UN DEVELOPMENT PROGRAM, ANTI-TRAFFICKING TRAINERS’ MANUALS (2007).

UN DEVELOPMENT PROGRAM, BEST PRACTICE LAW ENFORCEMENT MANUAL

FOR FIGHTING AGAINST TRAFFICKING OF HUMAN BEINGS (UNDP, 2003).

UNOCHR, Recommended Principles and Guidelines on Human Rights andHuman Trafficking, UN Doc. E/2002/68/Add.1 (2002).

UN OFFICE ON DRUGS AND CRIME, TOOLKIT TO COMBAT TRAFFICKING IN PER-

SONS (Vienna, 2006)—special reference may be made to the training tools forlaw enforcement and the judiciary on page 68.

UN OFFICE ON DRUGS AND CRIME, TRAFFICKING IN PERSONS: GLOBAL PAT-

TERNS (Vienna, 2006).

MIKE DOTTRIDGE, TERRES DES HOMMES AND UNICEF REGIONAL OFFICE FOR


CEE/CIS, ACTION TO PREVENT CHILD TRAFFICKING IN SOUTH EASTERN EUROPE

A PRELIMINARY ASSESSMENT (UNICEF, 2006).

I. CONCLUSIONS

Although, it is this author’s opinion that only a multidimensional approachto the issue of trafficking in persons will succeed in trying to curb this seriouscrime, this chapter separated the issues for law enforcement in a PSO. By doingso, it listed the minimal tools that law enforcement needs and has providedpractical suggestions including some unique for PSOs. The chapter, which isdirected towards those who may already be in or are en route to a PSO also pro-vided a short list of Internet resources that may assist those on the ground asthe internet may be the only readily available resource at their disposal.

CHAPTER 17

THE ROLE OF THE INTERNATIONAL CRIMINAL COURT IN THE PROSECUTION OF PEACEKEEPERS

FOR SEXUAL OFFENSES

Noëlle Quénivet*

A. INTRODUCTION

The last few years have tainted the lustrous shine that UN peacekeepingoperations reached straight after the end of the Cold War. Major drawbacks,especially on the African continent, indicated that the United Nations has notalways been able to cope with the situation on the ground. Yet, the United Nationsregained its glow when it started to administer in a more successful fashion ter-ritories such as Bosnia-Herzegovina, East Timor and Kosovo. Unfortunately, afurther blow came as newspapers unraveled the participation of peacekeepersin human trafficking on the territory of the former Yugoslavia as well as in sex-ual offenses in West Africa and the Democratic Republic of Congo (DRC). Thefact that those who were sent to protect civilians who had survived war turnedinto perpetrators shocked the international community.

As a result, the United Nations expressed its strong rejection of such prac-tice and propagated a zero-tolerance policy towards sexual encounters betweenpeacekeepers and the local population. The policy simply bans any type of sex-ual encounters, thereby not distinguishing between consensual, poverty-drivenand violent sexual activities. At the same time, calls for the prosecution ofpeacekeepers became ever resonant. However, because the UN policy espousesa narrow human rights approach and does not take into consideration the jurispru-dence of international criminal tribunals, its principles cannot readily be appliedto the realm of international or national criminal law.

An additional flaw is that due to the different status of personnel involvedin peace support operations (PSOs), the United Nations cannot craft a uniquelegal solution applicable to all staff members. A remedy to circumvent thisproblematic issue would be to haul peacekeepers, whichever function and sta-

399

* Noëlle Quénivet is a Senior Lecturer at the University of the West of England.She holds a LL.M. from the University of Nottingham (UK) and a Ph.D. from theUniversity of Essex (UK).


tus they hold, before international criminal tribunals.1 This contribution focuseson the International Criminal Court (ICC) inasmuch as its Statute representsthe normative yardstick of international criminal law.

A further valid reason for harking upon such a solution is that sexual crimesare often poorly prosecuted in national jurisdictions while the internationalcriminal tribunals are a vivid testimony to the fact that sexual offenses arecrimes that must and can be prosecuted. Nevertheless, serious hurdles existwith regards to prosecuting peacekeepers before international criminal tribunals.

This chapter analyzes how it is feasible to put on trial personnel engagedin PSOs before the ICC. The first section peruses the scope and extent of sex-ual activities of peacekeepers. The second section distinguishes the differenttypes of personnel present in PSOs, while the third contemplates whether vio-lations of the zero-tolerance policy of the United Nations are properly investi-gated and prosecuted. The fourth section scrutinizes the zero-tolerance policyof the United Nations in the light of the jurisprudence of the international crim-inal tribunals with regards to gender crime. The fifth section focuses on thepossibility of holding peacekeeping personnel accountable before the ICC, tak-ing into consideration procedural and material impediments. Finally, in lightof the aforementioned issues the chapter recommends a particular procedurethat includes the ICC so as to efficiently tackle sexual crimes committed bypeacekeepers.

B. SCOPE AND EXTENT OF SEXUAL ACTIVITIES OF PEACEKEEPERS

In the past decades numerous reports have surfaced depicting the ugly faceof PSOs, that of men and women who are sent to help but end up harming thepopulation. While the first accounts of violations, especially of sexual nature,emerged in a sporadic fashion through articles published by journalists, it wasunclear whether these reflected a broader pattern of behavior or were simplyof an anecdotal nature. Violations were documented in Eritrea,2 Bosnia and

1 As Zwanenburg remarks “[a]n ICC court could possibly fill part of [the] lacuna[of having no common criminal justice system] by providing for a uniform internationalcriminal law regime.” Marten Zwanenburg, The Statute for an International CriminalCourt and the United States: Peacekeepers under Fire?, 10 EUR. J. INT’L L. 124–25(1999) [hereinafter ICC and US].

2 Three Danish soldiers were charged with having sex with a 13-year-old girl.An Italian soldier was involved in a further sexual abuse case. An Irish soldier was dis-ciplined for making pornographic videos. Elise Barth, The United Nations Mission inEritrea/Ethiopia: Gender(ed) Effects, in GENDER ASPECTS OF CONFLICT INTERVENTIONS:

INTENDED AND UNINTENDED CONSEQUENCES 13–14 (Louise Olsson, Inger Skjelsbæk, EliseFredrikke Barth & Karen Hostens eds., 2004).

Role of ICC in the Prosecution of Peacekeepers 401

Herzegovina, Cambodia,3 the DRC,4 Haiti,5 Liberia,6 East Timor,7 Kosovo,8

Guinea,9 Mozambique,10 Sierra Leone11 and Somalia.12

In order to understand fully the scale of the problem, states whose contin-gents were incriminated in those crimes as well as the United Nations com-missioned a series of reports. After severe allegations against Canadian troopsin Somalia, the government issued a report, upon which the Airborne Regimeconnected to the incidents was disbanded.13 A report written by the US mili-tary after the rape of a 12-year-old girl in Kosovo revealed that the conducttook place in the midst of wanton violence and aggression against the Kosovanpeople. It further uncovered that similar crimes had occurred during anotheroperation in Haiti.14 An enquiry into allegations of sexual abuses by French sol-

3 It is alleged that Bulgarian peacekeepers were involved in prostitution ringsin Cambodia. BARBARA BEDONT, INTERNATIONAL CRIMINAL JUSTICE: IMPLICATIONS FOR PEACE-

KEEPING, CANADIAN DEPARTMENT OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE (2001).4 South African troops allegedly raped a 12-year-old Congolese girl. Kate Holt

& Sarah Hughes, South African Troops Raped Kids in DRC, PRETORIA NEWS, July 12,2004.

5 Refugees International, Haiti: Sexual Exploitation by Peacekeepers Likely toBe a Problem, RI BULLETIN, Mar. 7, 2005. BEDONT, supra note 3.

6 United Nations High Commissioner for Refugees (UNHCR) & Save theChildren-UK, Note for Implementing and Operational Partners on Sexual Violence andExploitation: The Experience of Refugee Children in Guinea, Liberia, and Sierra Leone:Based on Initial Findings and Recommendations from Assessment Mission 22 October–30November 2001 (Feb. 27, 2002) [hereinafter UNHCR/ Save the Children (UK) Report].

7 Reuters, UN Peacekeepers in Timor Face Possible Sex Charges, Aug. 3, 2001.8 A US peacekeeper raped and murdered a 12-year-old Kosovan-Albanian girl

in January 2000. Results of the 15–6 Investigation Unit Climate and State of Disciplinewithin the 3rd Battalion, 504th Parachute Infantry Regime, Task Force Falcon, KosovoForce (Feb. 24, 2000).

9 UNHCR/ Save the Children (UK) Report, supra note 6.10 Personnel engaged in the UN mission to Mozambique were extensively involved

in child prostitution and trafficking networks. UN Secretary-General, Promotion andProtection of the Rights of Children: Impact of Armed Conflict on Children, UN Doc.A/51/306 (Aug. 26, 1996).

11 UNHCR/ Save the Children (UK) Report, supra note 6. Human Rights Watch,Sexual Violence in the Sierra Leone Conflict (Feb. 26, 2001).

12 It was alleged that Italian troops bound a woman to a truck and raped her witha gun. BEDONT, supra note 3.

13 Canada, Commission of Inquiry into the Deployment of Canadian Forces toSomalia, Dishonoured Legacy: The Lessons of the Somalia Affair, Report of theCommission of Inquiry into the Deployment of Canadian Forces to Somalia (Ottawa:Public Works and Government Services Canada-Publishing, June 1997) available atwww.dnd.ca/somalia/somaliae.htm (last visited Jan. 14, 2007).

14 Results of the 15–6 Investigation Unit Climate and State of Discipline withinthe 3rd Battalion, supra note 8.


diers in the Ivory Coast was likewise opened by the French authorities.15

Although the United Nations had been aware that members of PSOs wereincriminated in sexual crimes, there was initially no or little reaction except forthe classical defense of “boys will be boys” and a prevailing culture dismiss-ing such activities as an inevitable by-product of military masculinities.16 It isall the more remarkable, as the Machel Report on the impact of armed conflicton children issued in 1996 pointed out, that the increase in sexual activities,and more particularly child prostitution; was concomitant to the arrival of peace-keeping forces.17 The link between the presence of staff members involved inPSOs and the growth in sexual activities was also evidenced by the rise in pros-titution in Cambodia.18

The first official report drawn up by the United Nations was a study con-ducted by Save the Children Fund-United Kingdom in collaboration with theUN High Commissioner for Refugees in 2002. The document, which laterbecame known as the “food for sex” scandal, exposed widespread sexualexploitation and abuse by UN personnel serving in PSOs in Liberia, SierraLeone and Guinea. The UN Office of Internal Oversight Services (OIOS) under-took its own investigations but could not substantiate most of the findings ofthe initial investigation.19 The second attempt by the United Nations to unravelthe extent of violations of a sexual nature was the OIOS report following themedia attention paid to allegations of sexual abuses in the DRC.20 In March

15 Sandra K. Miller, Accountability for the Conduct of U.N.-Mandated Forcesunder International Human Rights Law: A Case Study Concerning Sexual Abuse of theU.N. Mission in the Democratic Republic of Congo (MONUC), in PRACTICE AND POLI-

CIES OF MODERN PEACE SUPPORT OPERATIONS UNDER INTERNATIONAL LAW, AT 266 n.18(Roberta Arnold & Geert-Jan Alexander Knoops ed., 2006).

16 Colum Lynch, U.N. Faces More Accusations of Sexual Misconduct, WASH.POST, Mar. 13, 2005.

17 Report of the Expert of the Secretary-General, Graca Machel, Promotion andProtection of the Rights of Children: Impact of Armed Conflict on Children, UN Doc.A/51/306 (Aug. 26, 1996). See also GRACA MACHEL, THE IMPACT OF WAR ON CHILDREN:

A REVIEW OF PROGRESS SINCE THE 1996 UNITED NATIONS REPORT ON THE IMPACT OF ARMED

CONFLICT ON CHILDREN (2001).18 BRIDGET BYRNE, RACHEL MARCUS & TANYA POWER-STEVENS, GENDER, CONFLICT,

AND DEVELOPMENT: VOLUME II, CASE STUDIES: CAMBODIA, RWANDA, KOSOVO, ALGERIA,SOMALIA, GUATEMALA AND ERITREA 12 (1996).

19 The Secretary-General, Report of the Secretary-General on the Activities ofthe Office of Internal Oversight Services: Investigation into Sexual Exploitation ofRefugees by Aid Workers in West Africa, Supp. (No. 1), UN Doc. A/57/1 (Oct. 11, 2002)[hereinafter OIOS Report on West Africa].

20 The Secretary-General, Investigation by the Office of Internal OversightServices into Allegations of Sexual Exploitation and Abuse in the United NationsOrganization Mission in the Democratic Republic of the Congo, delivered to the GeneralAssembly, UN Doc. A/59/661 (Jan. 5, 2005) [hereinafter OIOS Report on the DRC].


2005, the OIOS released a report disclosing that crimes of a sexual nature werewidespread in that particular mission.21

In the meantime the United Nations had commissioned a comprehensivereport on the issue, which was drafted under the pen of Prince Zeid. It not onlypresented to the General Assembly a general picture of sexual abuses cases inPSOs but also recommended an array of measures to curb the problem.22

C. DIFFERENT TYPES OF PEACEKEEPERS

One of the points underlined by the Zeid Report was that different stan-dards and laws were applicable to PSO personnel. The result was a lack of trans-parency and the ensuring impression that perpetrators were not held accountable.

UN PSOs usually have a civilian, a military and a civilian police compo-nent. Five categories of peacekeepers can be distinguished: UN officials, expertson mission (UN civilian police and UN military observers), UN volunteers,individual contractors and consultants, and military and civilian police mem-bers of national contingents. Accordingly different disciplinary rules and pro-cedures apply.

UN officials are bound by the Staff Regulations and Rules,23 which arecomplemented by the Secretary-General bulletins and more particularly theSecretary-General’s 2003 bulletin entitled “Special Measures for Protectionfrom Sexual Exploitation and Sexual Abuse.”24 These Staff Rules are a condi-tion of employment for UN staff and, hence, the United Nations can disciplinethese individuals for failing to comply with them. Any arrangement betweenthe United Nations and other entities or individuals must contain a provisionstating that the latter agrees to abide by UN rules and regulations. Should thepartner fail to comply with the rule, the arranged agreement can, in pursuanceof the UN Staff Rules and Regulations, be terminated. The Sixth Committee ofthe General Assembly drafted in August 2006 a convention on criminal con-

21 The Secretary-General, Seventeenth Report of the Secretary-General on theUnited Nations Organization Mission in the Democratic Republic of the Congo, UNDoc. S/2005/167 (Mar. 15, 2005).

22 The Secretary-General, A Comprehensive Strategy to Eliminate Future SexualExploitation and Abuse in United Nations Peacekeeping Operations, delivered to theGeneral Assembly, UN Doc. A/59/710 (Mar. 24, 2005) [hereinafter Zeid Report].

23 UN Secretariat, Secretary-General’s Bulletin, Staff Rules: Staff Regulationsof the United Nations and Staff Rules 100.1 to 112.8, UN Doc. ST/SGB/2002/1 (Jan. 1,2002), amended by UN Doc. ST/SGB/2003/1 (Jan. 1, 2003), UN Doc. ST/SGB/2004/1(Jan. 1, 2004) and UN Doc. ST/SGB/2005/1 (Jan. 1, 2005).

24 UN Secretariat, Secretary-General’s Bulletin, Special Measures for Protectionfrom Sexual Exploitation and Sexual Abuse, UN Doc. ST/SGB/2003/13 (Oct. 9, 2003)[hereinafter 2003 Bulletin].


duct by UN peacekeeping officials that would apply to UN officials.25 The con-vention will be reviewed by a committee of experts.26

According to the Model SOFA (Status of Forces Agreement),27 UN civil-ian police and UN military observers are considered as experts on mission, thatis, UN agents and not UN officials. Such individuals are governed by specificregulations28 that, however, do not include any reference to sexual offenses.Nonetheless, the comprehensive report submitted by Prince Zeid to the Secretary-General in March 2005 notes that while the Department of PeacekeepingOperations (DPKO) has started applying the rules enshrined in the 2003 Bulletinfor UN civilian police, it has not yet done so for military observers.29 Besides,experts on mission are bound to comply with local laws as far as their privatebehavior is concerned.30 Likewise for UN officials, the convention drawn upby the Sixth Committee on criminal conduct by UN peacekeeping officialsshould apply to UN experts.31

UN volunteers are not regarded as UN, staff but they are bound by the UNVolunteer Conditions of Service and Rules of Conduct,32 which are similar tothe aforementioned UN Staff Regulations and Rules. At the moment, the reg-ulations are being revised so that UN volunteers’ behavior is governed by the2003 Bulletin.33 The aforementioned draft convention on the criminal account-

25 The Secretary-General, Ensuring the Accountability of United Nations Staffand Experts on Mission with Respect to Criminal Acts Committee in PeacekeepingOperations, UN Doc. A/60/980 (Aug. 16, 2006), Annex III [hereinafter Draft Conventionon Criminal Accountability].

26 The Secretary-General, Comprehensive Review of the Whole Question ofPeacekeeping Operations in all their Aspects, Report of the Sixth Committee, UN Doc.A/61/450 (Nov. 10, 2006).

27 The Secretary-General, Comprehensive Review of the Whole Question of Peace-keeping Operations in all Their Aspects: Model Status-of-Forces Agreement for Peace-Keeping Operations, UN Doc. A/45/594, at 26 (Oct. 9, 1990) [hereinafter Model SOFA].

28 UN Secretariat, Secretary-General’s Bulletin, Regulations Governing the Status,Basic Rights and Duties of Officials other than Secretariat Officials, and Experts onMission, UN Doc. ST/SGB/2002/9 (June 18, 2002) [hereinafter Regulations for Expertson Mission].

29 Zeid Report, supra note 22, at 21.30 Regulations for Experts on Mission, supra note 28, Regulation 2(j).31 Draft Convention on Criminal Accountability, supra note 25. See also The

Secretary-General, Ensuring the Accountability of United Nations Staff and Experts onMission with Respect to Criminal Acts Committee in Peacekeeping Operations, UN Doc.A/60/980, at 7 (Aug. 16, 2006) [hereinafter Accountability of UN Staff and Experts].

32 UN Volunteers Handbook 8, available at www.unvolunteers.org/volun-teers/safety/unvh.pdf (last visited Jan. 18, 2007).

33 See Special Political and Decolonization Committee, Fourth Committee,Comprehensive Review of the Whole Question of Peacekeeping Operations in all TheirAspects, delivered to the General Assembly, UN Doc. A/59/472/Add.2 (Apr. 18, 2005)[hereinafter Fourth Committee April 2005 Report]. The recommendations were approved


ability of UN officials and experts on mission should also apply to them.34

Individual contractors and consultants are not bound by any rules and reg-ulations issued by the United Nations. Their service contract does not containany provision relating to sexual activities per se. Nonetheless, Condition 2 oftheir service contract may be apposite inasmuch as it spells out that “duringtheir period of service for the United Nations, [they] shall refrain from any con-duct that would adversely reflect on the United Nations and shall not engagein any activity that is incompatible with the discharge of their duties within theOrganization.”35 The United Nations can do nothing more than terminate thecontract should the individual engage in forbidden sexual activities.36 Theseconditions of service are under review by the Fourth Committee.37 Progress hasbeen made in the Sixth Committee inasmuch as it recommends applying thedraft convention on the criminal accountability of UN officials to contractors.38

The fifth and last category of individuals taking part in PSOs is militaryand civilian police members of national contingents. The Model SOFA grantsthe troop-contributing state exclusive jurisdiction over such members whencrimes are committed on the territory of the host state.39 A memorandum ofunderstanding is signed between the United Nations and the troop-contribut-ing state setting out the terms and conditions governing the contribution interms of personnel and equipment. The United Nations promulgated two gen-eral sets of rules of conduct, Ten Rules: Code of Personal Conduct for BlueHelmets40 and We Are the United Nations Peacekeepers,41 which bear some rel-

by the General Assembly. GA Res. 59/300, UN Doc. A/RES/59/300 (June 30, 2005).34 Draft Convention on Criminal Accountability, supra note 25, art. 1(d).35 Under-Secretary-General for Management, Administrative Instruction:

Consultants and Individual Contractors, UN Doc. ST/AI/1999/7 (Aug. 25, 1999). AnnexA sets out the model contract form and conditions of service for consultants, whileAnnex B is relevant for individual contractors.

36 Id., Condition 9.37 Fourth Committee April 2005 Report, supra note 33.38 Draft Convention on Criminal Accountability, supra note 25, art. 1(d). See

also Accountability of UN Staff and Experts, supra note 31, at 7.39 Model SOFA, supra note 27.40 Rule 4 prohibits the indulgence in “immoral acts of sexual, physical, or psy-

chological abuse or exploitation of the local population or U.N. staff, especially womenand children.” U.N. Department of Peacekeeping Operations, Ten Rules: Code of PersonalConduct for Blue Helmets, available at www.genderandpeacekeeping.org/resources/5_UN_Codes_of_Conduct.pdf (last visited Jan. 24, 2007).

41 It explains that the peacekeepers should never “commit any act that couldresult in physical, sexual or psychological harm or suffering to members of the localpopulation, especially women and children” and never “become involved in sexualliaisons which could affect our impartiality or the well-being of others.” U.N. Dep’t ofPeacekeeping Operations, We Are United Nations Peacekeepers, available atwww.un.org/depts/dpko/training/tes_publications/books/peacekeeping_training/pocket_cards/un_in.pdf (last visited Jan. 24, 2007).


evance to sexual activities. These rules are part of the guidelines for troop-con-tributing nations, which are listed in the memorandum of understanding.Although the guidelines are mission specific and not legally binding, the ZeidReport notes that in practice the Ten Rules and the We Are the United NationsPeacekeepers documents have been accepted by troop-contributing states.42 Asa result, Prince Zeid recommends to formally include these rules in the ModelMemorandum of Understanding.

The comprehensive report of the United Nations of March 2005 preparedby Prince Zeid stresses that because of the varying status of PSO personnel, itis problematic to apply different legal standards.43 As a consequence the reportrecommends the creation of a common set of rules. In a follow-up meeting heldby the General Assembly Special Committee on Peacekeeping Operations, itwas underlined that the General Assembly should sanction the detailed rulesenshrined in the Secretary-General’s 2003 Bulletin, entitled “Special Measuresfor Protection from Sexual Exploitation and Sexual Abuse,”44 as a uniform codeof conduct for any personnel involved in PSOs.45 While this seemingly quickand efficient change may appeal, one should not forget that the enforcement ofstricter standards contained in the 2003 Bulletin and the potential jurisdictionalconflict between UN investigation and the troop-contributing states raises legalconcerns.46 Moreover, the new convention on criminal accountability, thoughunifying the enforcement mechanism and reinforcing the necessity to arraignUN-related personnel, does not purport to establish new rules. Rather it reaf-firms that such personnel should abide by local laws.

D. POLICIES, INVESTIGATION AND PROSECUTION

Remarkably the reaction of the United Nations to the increasing rate ofsexual crimes committed by peacekeepers translated into an enhanced numberof investigations but not in prosecutions, since the latter fall within the scopeof jurisdiction of the host state or the troop-contribution states. In contrast, thesystem established for national contingents is one based on administrative meas-ures employed by the United Nations, followed up or not by criminal measures.

42 Zeid Report, supra note 22, at 19.43 Id. at 14–22.44 2003 Bulletin, supra note 24.45 Special Committee on Peacekeeping Operations and its Working Group, Report

of the Special Committee on Peacekeeping Operations and its Working Group on its2005, delivered to the General Assembly, UN Doc. A/59/19/Add. 1, at 8 (Apr. 11, 2005)[hereinafter 2005 Special Committee on Peacekeeping Forces Report].

46 Anthony J. Miller, Legal Aspects of Stopping Sexual Exploitation and Abusein U.N. Peacekeeping Operations, 39 CORNELL INT’L L.J. 71, 75 (2006).


1. The United Nations

The United Nations reacted by issuing a series of policy papers, some mis-sion-specif ic, others of a more general nature. The Inter-Agency StandingCommittee of the United Nations established the Task Force on Protection fromSexual Exploitation and Abuse in Humanitarian Crises, which in July 2003,compiled a series of documents relating to procedures for PSO personnel. Itoutlined the procedures to follow upon receiving complaints of misconduct, theconduct of an investigation and the required follow-up actions.47 In October ofthe same year, the Secretary-General’s bulletin entitled “Special Measures forProtection from Sexual Exploitation and Sexual Abuse,” an administrativeinstruction to UN staff defining appropriate sexual behavior, was produced bythe aforementioned task force.48 The 2003 Bulletin only provides for discipli-nary measures including summary dismissal, should a PSO member not abideby the rule.49 A series of tools for local communities, such as guidelines, modelinformation sheets on sexual exploitation and abuse, as well as model com-plaints forms were developed by the task force to implement the bulletin.50

In a second, move the United Nations stepped up the number of inquiriesinto sexual exploitation and abuse, thus displaying its will to put an end to theproblem. For example, “[d]uring 2005, investigations have been completed intoallegations of sexual exploitation and abuse involving 296 peacekeeping per-sonnel (the breakdown by category of which is 84 civilians, 21 police and 191military). So far, 17 civilians, 16 police and 137 military personnel have beendismissed or repatriated.”51

Nevertheless, these inquiries never led to anything more serious than dis-missal because the United Nations lacks an internal criminal justice system.Prosecution is left to the host state, but it is often not feasible as UN person-nel engaged in PSO enjoy immunities with regards to local laws. As Fleckremarks,52 since UN PSOs are considered as subsidiary organs of the UnitedNations, their personnel enjoy the status, privileges and immunities of the UnitedNations as provided for in Article 105 UN Charter and the UN Convention on

47 See Our Bodies—Their Battle Ground: Gender-Based Violence in ConflictZones, Sept. 24, 2004, available at www.IrinNews.org (last visited Jan. 10, 2007).

48 2003 Bulletin, supra note 24.49 Id., art. 3.2(a).50 Women, Peace and Security, Report of the Secretary-General, UN Doc.

S/2004/814, at 101 (Oct. 13, 2004).51 Statement by Under-Secretary-General for Peacekeeping Operations Jean-

Marie Guéhenno to the Security Council, Remarks on Peacekeeping Procurement andSexual Exploitation and Abuse by Peacekeepers, Feb. 23, 2006.

52 Dieter Fleck, Securing Status and Protection of Peacekeepers, in PRACTICE

AND POLICIES OF MODERN PEACE SUPPORT OPERATIONS UNDER INTERNATIONAL LAW 145(Roberta Arnold & Geert-Jan Alexander Knoops ed., 2006).


the Privileges and Immunities of the United Nations53 Further, experts on mis-sion such as the UN civilian police and military observers are by virtue of theModel SOFA54 protected by the Convention on the Privileges and Immunities.55

Immunities are however conferred only for acts undertaken in official capac-ities. “Many cases of criminal conduct, especially criminal acts of sexual exploita-tion and abuse, would not, however, be in the performance of functions andimmunity could not apply.”56 As the United Nations may feel that due processand human rights standards will not be guaranteed to its personnel when stand-ing trial in national courts, immunities are rarely removed and immunity becomessynonymous with impunity.57 To circumvent this problem, the Sixth Committeerecommends that the United Nations consider ad hoc arrangements stipulatingthat the host state comports with international human rights norms.58

In the instance where immunities are removed, the law of the host countryis applicable to peacekeepers, but as they are usually deployed in states with-out proper legal and judicial system, launching proceedings, especially for sex-ual offenses, is challenging.59 Moreover the host state authorities are unlikelyto haul peacekeepers into local courts because they “may feel too intimidatedto exercise jurisdiction over the staff of agencies and organizations, which areproviding assistance.”60 As a result, UN personnel do not stand trial in domes-tic courts.

In a third move in August 2006 the Sixth Committee of the GeneralAssembly suggested the adoption of a convention on the criminal accounta-bility of UN officials and experts on mission.61 Although triggered by allega-tions of sexual misconduct, the application of the convention as well as therecommendations expressed in the parallel report “are not limited to crimesinvolving sexual exploitation and abuse.”62 The convention affirms the pri-mary jurisdiction of host states for UN-related personnel. In case the host statecannot fulfill its duties, other states may claim jurisdiction,63 even on a par-tial basis, that is, by dividing tasks such as investigation, trial, and imprison-ment.64 The draft convention will be reviewed by a group of experts in the firsthalf of 2007.

53 Convention on Privileges and Immunities of the United Nations, Feb. 13, 1946,21 U.S.T. 1418, 1 U.N.T.S. 15 [hereinafter Convention on Privileges].

54 Model SOFA, supra note 27, at 26.55 Convention on Privileges, supra note 53, art. VI.56 Accountability of UN Staff and Experts, supra note 31, at 21.57 Id., at 22.58 Id., at 44(b).59 Id. at 14.60 PAM SPEES, GENDER JUSTICE AND ACCOUNTABILITY IN PEACE SUPPORT OPERATIONS:

CLOSING THE GAPS 21 (2004).61 Draft Convention on Criminal Accountability, supra note 25.62 Accountability of UN Staff and Experts, supra note 31, at 8.63 Id. at 44(a).64 Id. at 40–42.


2. Prosecution of National Contingents

The importance of examining the prosecution of members of national con-tingents lies in the fact that numerous reports underscored that the great major-ity of allegations of sexual misconduct are perpetrated by such personnel.65 InPSOs, troop-contributing states jealously guard the sovereignty that they wieldover the armed and police forces they have deployed. Military and internationalcivilian police (CIVPOL) personnel are governed by two agreements concludedbetween their country, the United Nations and the host state. SOFAs are con-cluded between the United Nations and the state where the PSO takes placewhile contribution agreements are signed between the United Nations and thetroop-contributing states. The aim of SOFAs is to preserve the independentexercise of the function of the personnel participating in PSOs.

These standard agreements exempt members of the armed forces from thecriminal jurisdiction of the host state. Fleck brushes away all doubts regardingthe so-called impunity of peacekeepers, for he maintains that “legal immuni-ties in the receiving state should by no means be misunderstood as offeringimpunity for any crimes or inhibiting claims in the event of wrongful acts com-mitted by members of mission. Crimes must be brought to national courts ofthe sending state or to a competent international court.”66

Indeed, members of national contingents are liable to prosecution accord-ing to the national criminal law of the troop-contributing state. In other words,the decision to start a lawsuit against a particular individual is left to the dis-cretion of the state even if the United Nations has found that a member of themilitary personnel has violated UN regulations on sexual abuses. The role ofthe United Nations is minimized since it has no legal authority to state whetherthe individual should face trial once repatriated or returned home. Even in theinstance where an enquiry into a crime is initiated against a member of a troop-contributing nation, the United Nations has no leverage on the investigation,the procedure or the case itself. As a senior member of the UN Mission in Congoexplained to a journalist “the United Nations has no authority to follow throughany of the investigations currently made. At most, after a lengthy process, theycan repatriate an individual, but they cannot see those cases followed throughin the country of origin.”67

65 OIOS Report on the DRC, supra note 20, at 8. See also Statement by Under-Secretary-General for Peacekeeping Operations Jean-Marie Guéhenno to the SecurityCouncil, supra note 51.

66 Fleck, supra note 52, at 148.67 Kate Holt, Abuse by U.N. Troops in DRC May Go Unpunished, LONDON INDE-

PENDENT, July 12, 2004. See also Alexandra R. Harrington, Victims of Peace: CurrentAbuse Allegations against U.N. Peacekeepers and the Role of Law in Preventing themin the Future, 12 ILSA J. INT’L & COMP. L. 125, 138–39 (2005).


Many authors avow that such trials never occur,68 a contention that mustbe partially rebutted inasmuch as certain states have taken legal action, unfor-tunately not always successfully, against individuals for crimes executed dur-ing PSOs, some of them dealing with sexual offenses.69

Yet, it is true that domestic trials remain fraught with political, social, legaland resource difficulties. First, states that send troops abroad are reluctant toadmit that some members of their armed or police forces indulged in prohib-ited and criminal activities. Such states feel proud to be able to send troopsabroad and, hence, any admittance of misconduct among the troops would havea serious negative impact on the national level. Other states view PSOs as ameans to make money and are thus least interested in protecting the popula-tion or ensuring that their troops behave properly.

Second, the legislation of troop-contributing states may not preclude cer-tain sexual activities (such as prostitution), certain crimes70 or the definition/ageof consent may be different from what is specified on the international level.71

Therefore, conduct that might fall within the remit of the activities banned bythe 2003 Bulletin may not automatically be penalized on the national plane.

Third, the requirement of dual criminality may bar prosecution.72 Althougha state’s law may extend to acts performed in another state, it may equally requirethat the conduct as well be considered as a crime in the state where it was exe-cuted. As a result, this requirement may hinder mutual legal assistance in crim-inal matters, thereby preventing for example the exchange of witnesses’ andvictims’ transcripts.

Fourth, resources might be scarce on the national level, and conducting atrial that entails the presence of the victim as well as witnesses from another

68 Pallen maintains that none of the US nationals involved in sexual violencesuch as statutory rape and purchasing women as slaves in Bosnia stood trial. DanielPallen, Sexual Slavery in Bosnia: The Negative Externality of the Market of Peace, 13SWORDS AND PLOUGHSHARES 27, 35 (2003).

69 A US soldier (Army Sergeant Sentenced to Life without Parole for Murder ofGirl in Kosovo, CNN, Aug. 1, 2000), a French logistical expert (Emily Wax, Congo’sDesperate ‘One-Dollar U.N. Girls’, WASH. POST, Mar. 21, 2005, at A1), six Moroccansoldiers (UN soldiers arrested in DR Congo, BBC News, Feb. 13, 2005), an Argentineansoldier (The U.N. and the Sex Slave Trade in Bosnia: Isolated Case or Larger Problemin the U.N. System?: Hearing Before the Subcomm. on Int’l Operations and HumanRights of the Comm. on Int’l Relations House of Rep., 107th Cong. (2002), at 53 [here-inafter Hearing House of Representatives]).

70 For example, in the case of Italian soldiers who sexually abused Somali civil-ians, the Italian military authorities could only discipline and not prosecute them, forthe Italian military penal code did not envisage prosecution for such crimes. NataliaLupi, Report by the Enquiry Commission on the Behaviour of Italian Peace-keepingTroops in Somalia, 1 Y.B. INT’L HUMAN. L. 376 (1998).

71 Accountability of UN Staff and Experts, supra note 31, at 19.72 Id. at 23.


country may involve high expenses that certain countries cannot afford. As mostof the evidence and witnesses are located in the host state the Sixth Committee’sreport of August 2006 underlines the necessity to conduct trials in the hoststate.73

Fifth, the prosecutorial policy of states may be a factor explaining the dif-ferences in the treatment of cases relating to sexual offenses.74

E. THE ZERO-TOLERANCE POLICY OF THE UNITED NATIONS ANDINTERNATIONAL CRIMINAL LAW

The United Nations reacted to allegations of sexual misconduct and thelack of prosecution thereof by issuing a “zero-tolerance policy.” While themajority of reports commissioned by states focused on criminal activities of asexual nature, those prepared by the United Nations encompassed all types ofsexual activities, for the UN zero-tolerance policy rules out a wide spectrumof sexual behaviors ranging from rape to solicitation of adult prostitutes. Sincethe Zeid Report recommends that the 2003 Bulletin be applicable to all per-sonnel associated with PSOs, a recommendation followed by the GeneralAssembly,75 a thorough examination of its content is warranted.

The bulletin is a landmark document, widely supported despite its majorflaws in terms of content. Hence one may reasonably question whether it is,indeed, providing a model that can be used for criminal investigation and pros-ecution purposes. The human rights approach76 espoused by the document can-not be used as a framework for prosecution under international criminal law.While human rights law focuses on state’s responsibility, international crimi-nal law centers on individual liability. As the Sixth Committee of the GeneralAssembly examined in August 2006 how the standards of the bulletin could becriminalized, it acknowledged that “[a]cts of sexual exploitation and abuse, asdefined in Secretary-General’s Bulletin [ . . . ], amount to misconduct that shouldbe the subject of an administrative investigation; however, such acts will notnecessarily amount to criminal conduct under the laws of a state.”77 Since thereport of the Sixth Committee provides that the OIOS while investigating alle-

73 Id. at 27.74 Marten Zwanenburg, Compromise or Commitment: Human Rights and

International Humanitarian Law Obligations for U.N. Peace Forces, 11 LEIDEN J. INT’L

L. 229 (1998).75 Special Committee on Peacekeeping Operations and its Working Group, Report

of the Special Committee on Peacekeeping Operations and its Working Group, deliveredto the General Assembly, UN Doc. A/59/19/Rev.1(Supp) (Jan. 1, 2005).

76 This contribution focuses on sexual offenses as crimes and not as violationsof international human rights law.

77 Accountability of UN Staff and Experts, supra note 31, at 10.


gations of sexual misconduct must bear in mind that its findings may be usedin criminal proceedings, it is crucial to scrutinize how the bulletin relates tonational and international criminal law.

The great majority of UN reports aimed at sexual activities between peace-keepers and the local population do not distinguish between lawful and pro-scribed sexual acts.78 Although inexorably there is an inequitable powerdifferential between local women and PSO personnel, it does not mean that allsexual activities are outlawed according to domestic and/or international crim-inal law.79 As the OIOS Report on the DRC remarked that while the inspectionwas being undertaken, sexual activities between peacekeepers and local womencontinued unabated. This may evidence that personnel engaged in such activi-ties do not consider them as of criminal nature. Indeed, if prostitution is coun-tenanced in their home country as well as in the host state, it is probably difficultfor them to see in which regard they are violating law.

What is more, the 2003 Bulletin “Special Measures for Protection fromSexual Exploitation and Sexual Abuse” opts for a human rights approach to theissue of sexual offenses.80 The terminology employed pertains to the realm ofhuman rights law and is geared towards protecting human rights rather thanestablishing individual liability. To confuse these two approaches is detrimen-tal. If one wishes to understand why prosecution, both on the national and inter-national levels, is so poor, it is imperative to offer a detailed comparison betweenthe terms used in the 2003 Bulletin and those in international criminal law.

To explore whether peacekeepers can be hauled before the ICC, it is henceof utmost importance to distinguish between different categories of sexualencounters, the crux being in the notion of consent,81 which has been definedin great length and detail by the ad hoc international criminal tribunals. Thischapter focuses on three types of sexual activities that may, depending on con-sent and the circumstances surrounding the event, that is, control over one’sbody,82 be or not be viewed as crimes.

78 Remarkably, the 2003 Bulletin adopts a radical feminist approach, for it viewssexual encounters as wrong per se because inherently they are the result of a power andwealth differential. See CATHERINE MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON

LIFE AND LAW 29 (1987); and CATHERINE MACKINNON, ARE WOMEN HUMAN? AND OTHER

INTERNATIONAL DIALOGUES 247–58 (2006).79 This difference is not made by most authors, for example, Miller, supra note

15, at 270–71.80 2003 Bulletin, supra note 24, at 1. In particular it mentions “universally recog-

nised international legal norms and standards.” See also Miller, supra note 15, at 266–73.81 Otto rightly pinpoints the dangers of overinclusive definitions of “sexual

exploitation” and “sexual abuse” that ban consensual sex. Diane Otto, Making Sense ofZero-Tolerance Policies in Peacekeeping Sexual Economies, in SEXUALITY AND THE LAW

FEMINIST ENGAGEMENTS (Vanessa Munro & Carl F. Stychin eds., forthcoming 2007).82 Valerie Oosterveld, Sexual Slavery and the International Criminal Court:

Advancing International Law, 25 MICH. J. INT’L L. 605, 608 (2004).


1. Rape

Straightforward allegations of rapes committed by peacekeepers are ratherrare. A plausible reason is that rape is disguised as prostitution. For example,“[girls] claimed that a peacekeeper raped them and then provided them withmoney or food afterwards to give the appearance of a consensual transaction.”83

In other cases, “payment for sex would be little more than a few biscuits, a plas-tic sheet, [or] a bar of soap.”84

A further credible reason is that they are referred to as “sexual abuse.”Indeed, the 2003 bulletin condemns “sexual abuse” defined as “actual or threat-ened physical intrusion of a sexual nature, whether by force or under unequalor coercive conditions.”85 The expression “sexual abuse” is unknown to inter-national criminal law; rather the words “rape” and “sexual violence” are used.86

Rape was defined in three cases before the International Tribunal for the for-mer Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR) beforeit found a conventional def inition in the ICC Statute.87 The Furundzija,88

Akayesu89 and Celebici90 cases introduced three different, albeit related, defi-nitions regarding the technicality of the act.91 The ICC opted for a definitionthat is closely related to the one expounded in the Furundzija case.92

83 Anna Schotton, A Strategy to Address Sexual Exploitation and Abuse by theUnited Nations Peacekeeping Personnel, 39 CORNELL INT’L L.J. 97, 101–02 (2006).

84 Scott A. Levin, U.N. Report: Sexual Exploitation of Refugee Children by U.N.Peacekeepers, 19 N.Y.L. SCH. J. HUM. RTS. 833, 835 (2003).

85 2003 Bulletin, supra note 24, at 1.86 Correctly, the draft convention on the criminal accountability of UN-related

personnel speaks of “rape and acts of sexual violence.” Draft Convention on CriminalAccountability, supra note 25, art. 3(2)(c).

87 For a thorough examination, see Rana Lehr-Lehnardt, One Small Step forWomen: Female-Friendly Provisions in the Rome Statute of the International CriminalCourt, 16 BYU J. PUB. L. 327–336 (2002).

88 Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgment (Dec. 10, 1998).89 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment (Sept. 2, 1998) [here-

inafter Akayesu Judgment]. For a detailed analysis of this case, see Stephanie K. Wood,A Woman Scorned for the ‘Least Condemned’War Crime: Precedent and Problems withProsecuting Rape as a Serious War Crime in the International Criminal Tribunal forRwanda, 13 COLUM. J. GENDER & L. 274, 292–298 (2004).

90 Prosecutor v. Kunarac et al., Case Nos. IT-96-23-T & IT-96-23/1-T, Judgment(Feb. 22, 2001) [hereinafter Kunarac Judgment].

91 NOËLLE QUÉNIVET, SEXUAL OFFENSES IN ARMED CONFLICT AND INTERNATIONAL

LAW 6–11 (2005).92 Preparatory Commission for the International Criminal Court, Addendum:

Part II, Finalized Draft Text of the Elements of Crimes, UN Doc. PCNICC/2000/1/Add.2,arts. 7(1)(g)(1) and 8(2)(b)(xxii)-1 (Nov. 2, 2000), [hereinafter Elements of Crimes].The elements of rape are identical for crimes against humanity and war crimes.


With regard to consent, the definition of sexual violence as expounded bythe ICTR as “any act of a sexual nature which is committed on a person undercircumstances which are coercive”93 was broadened in the Celebici case, wherebythe ICTY explained that rape was a sexual act that was “non-consensual or non-voluntary.”94 The definition propounded by the elements of crimes for the ICCtake a similar stance: “The invasion was committed by force, or by threat offorce or coercion, such as that caused by fear of violence, duress, detention,psychological oppression or abuse of power, against such person or anotherperson, or by taking advantage of a coercive environment, or the invasion wascommitted against a person incapable of giving genuine consent.”95 It is clearfrom the foregoing that the two yardsticks to decide upon the legality of the actare consent and the presence of elements of coercion. Yet, the ICTY went a stepfurther in the Kvocka case, since it embraced the informed consent doctrine asit explained that consent is connected to “a variety of other specified circum-stances which made the victim particularly vulnerable or negated her ability tomake an informed refusal.”96 Unfortunately, the ICC Statute did not go as faras the jurisprudence of the ICTY by considering the free will of the person.

The issue of consent as an affirmative defense is also governed by Rule70(a)–(c) of Principles of Evidence in Cases of Sexual Assault in the Rules ofProcedure and Evidence, which entrenches a two-prong test.97 First, the Courtmust establish whether the victim had the legal capacity to give consent. Secondthe Court must assess the circumstances and determine whether they can becharacterized as coercive so as to undermine the victim’s ability to exercisehis/her own agency.

Thus, the definition of sexual abuse as adopted by the 2003 Bulletin doesnot comport with the more stringent elements of the crime of rape because itviews “actual or threatened physical intrusion of a sexual nature, [ . . . ] underunequal [ . . . ] conditions” as “sexual abuse.” According to the ICC Statute,some force or coercion must be present, and the doctrine of informed choice isnot applicable.98 Hence, it is doubtful that the ICC will take legal action againstpeacekeepers for sexual encounters with local women only on the basis of thewealth and power differential. As a result, the only possibility would be toembrace a broad definition of “coercive environment” and profess that inher-

93 Akayesu Judgment, supra note 89, at 598.94 Kunarac Judgment, supra note 90, at 437–38.95 Elements of Crimes, supra note 92.96 Prosecutor v. Kvocka, Case No. IT-98-30/1, at 23–108 (Nov. 2, 2001).97 Rules of Procedure and Evidence of the International Criminal Court, Rules

94–98, Doc. ICC-ASP/1/3 (2002) [hereinafter Rules of Procedure and Evidence].98 Several authors militate in favor of the informed consent theory. See Kristen

Boon, Rape and Forced Pregnancy under the ICC Statute: Human Dignity, Autonomy,and Consent, 32 COLUM. HUM. RTS. L. REV. 625 (2001); Thekla Hansen-Young, DefiningRape: A Means to Achieve Justice in the Special Court of Sierra Leone, 6 CHI. J. INT’L

L. 479, 490 (2005–2006).


ently PSOs99 take place in or create a coercive atmosphere. This is howeverunlikely to be the case.

2. Repeated Rapes

Two further concepts, “(en)forced prostitution” and “sexual slavery,” mustbe probed, as both describe a repetition of sexual activities under coerced cir-cumstances. As the Women’s Caucus for Gender Justice in the ICC notes

[w]omen may be forced to submit to serial rape in exchange for theirsafety or that of others or the means of survival. Even though the womenwould not, strictly speaking, be prostitutes, they would be forced toengage in an exchange of sex for something of value for one or moremen in a dominant position of power. But even where women are freeto go home at night or even to escape, the conditions of warfare mightnonetheless be so overwhelming and controlling as to render them lit-tle more than sex slaves. The decision whether to charge someone withforced prostitution, sexual slavery or serial rape, would depend upona thorough analysis of the facts in each case from the perspective ofthe woman.100

a. Prostitution or Forced Prostitution

Many accounts relating to sexual activities involving PSO personnel speakof soldiers having local girlfriends.101 The first question that might be raised iswhether these relationships are genuine or constitute disguised prostitution and,in the case of prostitution, whether it can be categorized as a crime under inter-national law. The example of an Irish soldier stationed in Eritrea who madepornographic videos of his so-called girlfriend, aged 22, reveals the intricaciesof such a case.102 Indeed, the woman maintained that she was his girlfriend and

99 In this regard, one must distinguish between PSOs and peace enforcementoperations. In the case of the latter, international humanitarian law applies in pursuanceof the Secretary-General’s Bulletin, Observance by United Nations Forces of InternationalHumanitarian Law, UN Doc. ST/SGB/1999/13 (Aug. 6, 1999), reprinted in 38 I.L.M.1656 (1999) a position reinforced by Article 2.3. of the Draft Convention on CriminalAccountability, supra note 25.

100 Women’s Caucus for Gender Justice in the International Criminal Court,Recommendations and Commentary for December 1997 Preparatory Committee, PartIII: WC.5.6–12.

101 See Barth, supra note 2, at 9. 102 See id. at 14.


that he had promised to marry her and take her to Ireland. Socializing withlocal women is not a crime and should not be considered as such.

Nevertheless reports convey the impression that these are only exceptionsto the rule, that is, prostitution. Indeed practice shows that one consequence ofthe presence of a UN mission is the rise in prostitution or the creation of a newmarket for prostitution. As a result, Higate recommends a pragmatic approachto the zero-tolerance policy embodied in the Code of Conduct because of the“grey area” of prostitution103 that is strictly ruled out by the 2003 Bulletin104

and because one must distinguish between two categories of prostitution. Oneis known as “survival prostitution” depicting the situation of local vulnerablewomen turning to prostitution as a means of livelihood,105 and the other “con-sumerist prostitution,” in which instance “the local women may have had rela-tively more control over the choice of clients with whom they did ‘business’.”106

One of the main reasons adduced to prohibit any type of sexual encoun-ters is that it is arduous, if not insuperable, to distinguish between legitimateand forced prostitution,107 a crime under international law108 and according tothe ICC Statute.109 The crime of enforced prostitution centers on the “condi-tions of control over a person who is coerced by another to engage in sexualactivities.”110 The women engaging in “survival prostitution” are initially will-

103 PAUL HIGATE, GENDER AND PEACEKEEPING. CASE STUDIES: THE DEMOCRATIC

REPUBLIC OF THE CONGO AND SIERRA LEONE 51 (2004) [hereinafter GENDER AND PEACE-

KEEPING].104 2003 Bulletin, supra note 24, at 1.105 “[W]ithout access to legitimate work opportunities, women and children may

resort to prostitution to survive.” Vanessa L. Kent, Peacekeepers as Perpetrators of Abuse.Examining the U.N.’s Plans to Eliminate and Address Cases of Sexual Exploitation andAbuse in Peacekeeping Operations, 14(2) AFR. SEC. REV. 85, 86 (2005). “Survival sex” ishowever a misnomer as the main harm is poverty and not sex. Otto, supra note 81.

106 Paul Higate, Men, Masculinities and Peacekeeping in Sub-Saharan Africa,in GENDER AND PEACE-BUILDING IN AFRICA 75 (Kari Karamé ed., 2004) [hereinafter Menand Masculinities].

107 Report of the Secretary-General on Women, Peace and Security, UN Doc.S/2002/1154, at 45 (Oct. 16, 2002). See also Hearing House of Representatives, supranote 69, at 30: “In Bosnia, the trafficking and forced prostitution is not separate from‘legitimate’ prostitution; it is all the same operation. Therefore, anyone who is patron-izing prostitution in Bosnia is supporting the sex slave trade.”

108 In the famous Batavia case, enforced prostitution was considered a war crime.Netherlands Temporary Court-Martial in Batavia, Trial of Washio Awochi, Judgment,Oct. 25, 1946, in THE UNITED NATIONS WAR CRIMES COMMISSION ED., 13 LAW REPORTS OF

TRIALS OF WAR CRIMINALS, Case No. 76, at 122.109 Rome Statute of the International Criminal Court, July 17, 1998, arts.7

(1)(g)(3), 8(2)(b)(xxii) and 8(2)(e)(vi), 2187 U.N.T.S. 3 Statute [hereinafter ICC Statute].110 U.N. Commission on Human Rights, Contemporary Forms of Slavery:

Systematic Rape, Sexual Slavery and Slavery-Like Practices During Armed Conflict,UN Doc. E/CN.4/Sub.2/1998/13, at 10 (June 22, 1998).


ingly consenting to sex, yet poverty and disease drive them into a vicious cycleof dependency. Nevertheless, Otto opines that survival sex “involves a level ofagency and negotiation that distinguishes it from sexual offences.”111 In thecase of prostitution and especially “consumerist prostitution,”112 women areconsidered as agents of their own destiny rather than victims. As Barth notes“[p]erhaps we are unable or unwilling to accept that local women who haverelations with foreign soldiers can be anything but victims.”113 Some authorscounterargue that “[t]he acts may appear to increase a woman’s agency and hersense of control over her body as she is choosing to engage in sexual activityfor some benefit. Given the distorted power dynamics present in conflict, how-ever, these exploitative circumstances do not involve real choices.”114 The useof the concept of “agency” is of utmost significance because, by utilizing a newconceptual approach to the notion of “consent,” the ICC provisions requireassessment into whether the victim exercised his/her agency to the sexual actsor whether consent is negated due to external circumstances.115 If one agreesthat the women are their own agents, then sexual activities in the aforemen-tioned form cannot be regarded as a crime under the ICC Statute because thealleged perpetrator can raise consent as a defense.

The elements of crime for Article 7(1)(g)(3) aver that the use of force orthreat thereof is not necessary; fear of violence, duress, detention, psycholog-ical oppression or abuse of power, as well as taking advantage of a coerciveenvironment, can also vitiate consent.116 While it is evident that the position ofPSO personnel and of local women is far from equal, it is difficult to considerthat peacekeepers are abusing their power and taking advantage of a coercivepost-conflict reconstruction environment.

However, as paragraph 3 of the elements of crime for Article 7(1)(g)(3)explains, the perpetrator must obtain or expect to obtain monetary or materialbenefit. Outwardly, this provision can only be used against procurers, for exam-ple, local boys and men who arrange sexual encounters between peacekeepersand local women,117 and this cannot readily be applied to peacekeepers involvedin sexual encounters with local women. Nonetheless, if peacekeepers are accusedof running brothels and child prostitution rings, patronizing prostitutes and traf-

111 Otto, supra note 81.112 It must be noted that “it was within the terms of gendered interactions of this

kind that peacekeepers described their relationships as bona fide, and therefore withinthe terms of the U.N. Code of Conduct.” Men and Masculinities, supra note 106, at 75.

113 See Barth, supra note 2, at 16.114 Sarah W. Spencer, Making Peace: Preventing and Responding to Sexual

Exploitation by United Nations Peacekeepers, 16 J. PUBLIC INT’L AFF. 167, 171 (2005).115 Rules of Procedure and Evidence, supra note 97, Rule 70 (a), (b) and (c). For

a discussion, see Kristen Boon, Rape and Forced Pregnancy under the ICC Statute:Human Dignity, Autonomy, and Consent, 32 COLUM. HUM. RTS. L. REV. 625 (2001).

116 Elements of Crimes, supra note 92, art. 7(1)(g)(3).117 OIOS Report on the DRC, supra note 20, at 11.


ficking sex slaves,118 they might well stand trial for enforced prostitution. UNofficials are reported to have been actively engaged in organizing human traf-ficking in Bosnia and forging documents119 to transport women across nationalborders.120 Only under these circumstances would the sexual activities in whichpeacekeepers are engaged fit into the definition of enforced prostitution ashuman trafficking is viewed as a form of enforced prostitution under Article7(1)(g) of the ICC Statute.

Further, it is asserted that the victim may as well expect a certain gain oradvantage, thereby allowing for the prosecution of those who abuse “enforcedprostitutes.”121 In this case, as in the Kunarac case presented before the ICTY,122

it must be demonstrated that the peacekeeper had knowledge of the circum-stances surrounding these women’s activities.

b. Prostitution or Sexual Slavery

Sexual slavery is an additional type of crime proscribed by internationalcriminal law. It is reported that in Sierra Leone peacekeepers established localwomen in rented accommodation in the capital and visited them during week-ends or other off-duty periods.123 In Bosnia, it was reported that members ofthe International Police Task Force had purchased women, whom they clan-destinely housed in civilian houses.124 The precedence of the case of the “com-fort women,” “a clear case of sexual slavery and a slavery-like practice,”125

vividly illustrate in which manner the military can sexually abuse women whenthey are “off-duty.” However, again, one must differentiate between sexual slav-ery and consensual sexual encounters. “Reportedly, teenage girls traveled greatdistances to arrive to Sierra Leone for the purpose of having sex with peace-keepers for money, supplies, or favors.”126 Higate recounts that in Sierra Leone

118 Hearing House of Representatives, supra note 69.119 William J. Kole & Aida Cerkez-Robinson, UN Police Accused of Involvement

in Prostitution in Bosnia, ASSOC. PRESS, June 28, 2001.120 Pallen, supra note 68, at 27, 29.121 Oosterveld, supra note 82, at 645.122 Kunarac Judgment, supra note 90; Prosecutor v. Kunarac, Case No. IT-96-23

& IT-96-23/1-A, Appeals Judgment (June 12, 2002) [hereinafter Kunarac Appeals].123 GENDER AND PEACEKEEPING, supra note 103, at 43.124 Hearing House of Representatives, supra note 69, at 28. UN Commission on

Human Rights, Report on Violence Against Women, Violence Against Women Perpetratedand/or Condoned by the State During Times of Armed Conflict, UN Doc. E/CN.4/2001/73,at 59 (Jan. 23, 2001).

125 UN Commission on Human Rights, Report on the Mission to the DemocraticPeople’s Republic of Korea, the Republic of Korea and Japan on the Issue of MilitarySexual Slavery in Wartime, UN Doc. E/CN.4/1996/53/Add.1, at 137 (Jan. 4, 1996).

126 Scott A. Levin, U.N. Report: Sexual Exploitation of Refugee Children by U.N.Peacekeepers (2003) 19 N.Y.L. SCH. J. HUM. RTS. 833, 835 (2003).


women would see off the men with whom they had relationships once theyreturned home and would then start the next cycle of relationships with themembers of the replacement battalion.127

Unlike enforced prostitution, consent is not a possible defense for sexualslavery because slavery is a jus cogens crime, and as a result, “a person cannotunder any circumstances, consent to be enslaved or subject to slavery. Thus itfollows that a person accused of slavery cannot raise consent of the victim asa defence.”128 This position was reinforced by the ICTY jurisprudence thatclearly spells out that “lack of consent does not have to be proved by theProsecution as an element of the crime.”129

Both those who detain women as well as those who have sex with womenwhom they know are detained for sexual purposes can be indicted for sexualslavery.130 It may be contended that due to the sharp differentials of powerbetween peacekeepers and local women, the relationships are exploitative.131

In addition, as they are of a sexual nature, they may be regarded as constitut-ing sexual slavery. Sexual slavery denotes the situation where a person lackscontrol over his/her body and personality and his/her physical environment iscontrolled by another person, usually in the form of captivity or detention. Untilnow sexual slavery has not been prosecuted as such by an ad hoc internationalcriminal tribunal. Rather, it has been prosecuted under the heading of enslave-ment, which is described in the ICTY jurisprudence as “the exercise of any orall of the powers attaching to the right of ownership over a person.”132

The ICC Statute defines the term sexual slavery in relation to purchasing,selling, lending or bartering, thereby conveying the impression that someexchange must take place. However, the use of the word “such as” before theenumeration of the aforementioned acts, as well as the second part of the sen-tence “imposing on [victims] a similar deprivation of liberty” lend more roomfor interpretation especially in the context of sexual offenses committed bypeacekeepers. In particular, criticism leveled against peacekeepers encompasses

127 GENDER AND PEACEKEEPING. supra note 103, at 43.128 UN Commission on Human Rights, Contemporary Forms of Slavery:

Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict,Update to the Final Report Submitted by Ms. Gay J. McDougall, UN Doc. E/CN.4/Sub.2/2000/21, at 51 (June 6, 2000).

129 Kunarac Appeals, supra note 119, at 120.130 Kunarac Judgment, supra note 90, and Kunarac Appeals, supra note 119.131 This is the position espoused by the 2003 Bulletin inasmuch as it considers

sex work as inherently exploitative, notwithstanding the surrounding circumstances.2003 Bulletin, supra note 24. This position contradicts the position of the CEDAWCommittee, which indicated that it does not consider sex work as inherently exploita-tive. General Recommendation No. 19, Violence against Women, Committee on theElimination of Discrimination Against Women (11th Sess., 1992), UN GAOR, 47thSess., Supp. No. 38, at 1, UN Doc. A/47/38, at 15 (1993).

132 Kunarac Judgment, supra note 90, at 540.


their partaking in human trafficking for sexual purposes in Bosnia.133 It is widelyrecognized that human trafficking is viewed as a form of enslavement underArticle 7(1)(c) the ICC Statute.

Nevertheless, the two concepts of “sexual exploitation” as defined in the2003 Bulletin as “any actual or attempted abuse of a position of vulnerability,differential power, or trust, for sexual purposes, including, but not limited to,profiting monetarily, socially or politically from the sexual exploitation ofanother”134 and of “sexual slavery” as aforementioned remain distinct. Hence,a peacekeeper accused of sexual exploitation may not automatically stand trialfor sexual slavery.

This clearly demonstrates that the 2003 Bulletin should not be endorsed asa benchmark for prosecuting peacekeepers in any national or international court.Having regard to the expertise of the international criminal tribunals and thecomplexity of prosecuting peacekeepers in national fora, the ICC appears to bea suitable court.

F. PROSECUTION OF PEACEKEEPERS BY INTERNATIONAL CRIMINAL TRIBUNALS

While at first glance it seems possible to haul peacekeepers before the ICC,several impediments obstruct this solution.135 First the types of crimes prose-cuted by the ICC are confined to the most serious crimes. Second, the princi-ple of complementarity, which is at the core of the ICC Statute, is likely tohamper the jurisdiction of the Court. Last the issue of immunity bestowed uponcertain personnel engaged in PSO is scrutinized.

1. Issues Relating to Crimes

As the crimes falling within the ambit of the ICC are drawn from a bodyof outrageous criminal conduct, including war crimes, crimes against human-ity and genocide, it is questionable that PSO personnel incriminated in sexualoffenses can be prosecuted by the ICC. Moreover, the mandate of the ICC isnot to take legal action upon private or random criminal acts that fall withinthe remit of domestic judicial systems. It is thus a legitimate question to ask towhich extent the ICC may play a role in the prosecution of personnel takingpart in PSOs.136

133 BEDONT, supra note 3.134 2003 Bulletin, supra note 24, at 1.135 Harrington, supra note 67, at 140.136 Susan A. Notar, Peacekeepers as Perpetrators: Sexual Exploitation and Abuse

of Women and Children in the Democratic Republic of the Congo, 14 AM. U. J. GENDER

& SOC. POL’Y & L. 413, 425–26 (2006).


a. Genocide

Although rape and other types of sexual offenses are not expressly men-tioned in the provisions relating to genocide in the ICTY,137 ICTR138 or ICC139

Statutes, rape has successfully been prosecuted by the ICTR as an act consti-tuting genocide.140 It is hence expected that the ICC prosecutor will endorsethis position and charge sexual offenses as an act of genocide all the more asa footnote in the elements of crimes associate sexual crimes to Article 6(b) ongenocide by causing serious bodily or mental harm.

For the crime of genocide to be completed, the perpetrator must show adolus specialis, whose threshold is difficult to attain as it entails the intentionto destroy an entire group.141 The gravity of the crime makes it improbable thatpeacekeepers incriminated in sexual offenses be prosecuted under that head-ing.142 In addition, although genocide is not legally considered as a mass crime,it is only prosecuted when it reaches a certain quantitative dimension. As a con-sequence, it is unlikely that members of PSOs would held liable under this pro-vision of the ICC Statute.

b. Crimes Against Humanity

As rape, sexual slavery, enforced prostitution, pregnancy or sterilizationand other forms of sexual violence are specifically referred to in Article 7 ofthe ICC Statute, the actus reus element of the crime is fulfilled.

However, it would be difficult to establish the mens rea since the crimerequires knowledge of a general widespread or systematic attack on the popu-lation.143 Moreover, the proscribed act must be part of an attack that is defined

137 Statute of the International Criminal Tribunal for the former Yugoslavia, SCRes. 827, UN Doc. S/RES/827 (May 25, 1993).

138 Statute of the International Criminal Tribunal for Rwanda, SC Res. 955, UNDoc. S/RES/955 (Nov. 8, 1994).

139 ICC Statute art. 6, supra note 109.140 Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment, at 731–33 (Sept.

2, 1998); Prosecutor v. Musema, Case No. ICTR 96-13-T, Judgment, at 933 (Jan. 27,2000). See Sherrie L. Russell-Brown, Rape as an Act of Genocide, 21 BERKELEY J. INT’L

L. 350–373 (2003).141 ICC Statute art. 6, supra note 109. See also Prosecutor v. Sikirica, Case No.

IT-95-8-S, Judgment, at 89 (Sept. 3, 2001).142 ICC and US, supra note 1, at 133.143 In pursuance of Article 7 of the ICC Statute, the prosecutor may investigate

allegations of sexual offenses if “committed as part of a widespread or systematic attackdirected against any civilian population, with knowledge of the attack.” ICC Statute art.7, supra note 109. See also Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion andJudgment, at 659 (May 7, 1997) [hereinafter Tadic Case 1997].


as “a course of conduct involving the multiple commission of acts referred toin [Article 7(1)] against any civilian population, pursuant to or in furtheranceof a state or organisational policy to commit such attack.”144 Generally, “it isdifficult to imagine that a peacekeeping force would have a policy to commitan attack on the civilian population.”145 Zwanenburg claims that this is mainlylinked to the fact that command and control structures are often unclear in PSOand that communication lines are rather poor. As a result individuals are unlikelyto be aware of the general situation and knowledge may not be easily implied.146

Nevertheless the involvement of peacekeepers in sex trafficking and childprostitution rings that were unraveled in recent accounts suggests that sexualabuses are not confined to one-off events but are part of a broader pattern andconceivably a proof of a policy. One may genuinely question whether a patternof sexual violence would rise to the level of an unofficial policy. However, theelements of crime clearly specify that the expression “‘policy to commit suchattack’ requires that the state or organization actively promote or encouragesuch an attack against a civilian population.”147 This suggests that condoningor passive behavior from the side of the authority is not sufficient,148 therebyrejecting the jurisprudence of the ad hoc international criminal tribunals inas-much as the ICTY asserted that “the available case-law seems to indicate thatin these cases some sort of explicit or implicit approval or endorsement by Sateor governmental authorities is required, or else that it is necessary for the offenceto be clearly encouraged by a general governmental policy or to clearly f itwithin such a policy.”149 By endorsing the ICC elements of crime, the ICC pros-ecutor would not be able to point to an official UN policy or plan, even at thefield mission level,150 when the United Nations is propagating a zero-tolerancepolicy and issuing reports, recommendations and policy papers, all banningany sexual contact between peacekeepers and the local population. As a result,one can only hope that the ICC will not feel strictly bound by the elements ofcrimes and will dismiss this particular expression on the basis that it contra-dicts contemporary jurisprudence.

What is more, it is necessary to appraise whether the attack is either wide-spread or systematic. The ICTY explained that “a crime may be widespread orcommitted on a large scale by the ‘cumulative effect of a series of inhumane

144 ICC Statute art. 7(2), supra note 109.145 ICC and US, supra note 1, at 134.146 Id. 134–35.147 Elements of Crimes art. 7, Introduction, point 3, supra note 92.148 Christina Möller, Sexuelle Gewalt im Krieg, in HUMANITÄRES VÖLKERRECHT.

POLITISCHE, RECHTLICHE UND STRAFGERICHTLICHE DIMENSIONEN 297–99 (Jana Hasse, ErwinMüller & Patricia Schneider eds., 2001).

149 Prosecutor v. Kupreskic, Case No. IT-95-16-T, Trial Judgment, at 552 (Jan.14, 2000). See also Tadic Case 1997, supra note 143, at 653.

150 Harrington, supra note 67, at 141.


acts or the singular effect of an inhumane act of extraordinary magnitude.’”151

In addition, “patterns of crimes—that is the non-accidental repetition of simi-lar criminal conduct on a regular basis—are a common expression of [a] sys-tematic occurrence.”152 While incidental sexual abuses may not fall within theambit of the “widespread” or “systematic,” sex trafficking and child prostitu-tion rings may well be, as such acts are a repetition of similar crimes or part ofa string of such crimes.

c. War Crimes

In contrast to the ICTY and the ICTR Statutes, rape is specifically men-tioned as a war crime in the ICC Statute, both when perpetrated in non-inter-national armed conflict153 and in international armed conflict.154 Notwithstandingthis lack, rape has been successfully prosecuted by the ICTY.155

Generally, for a crime to qualify as a war crime it must occur in the con-text of an armed conflict. The nexus between the act and the armed conflict hasbeen debated at length in the jurisprudence of the ICTY and the ICTR.156 First,it must be proven that there is an armed conflict and second that the violationtook place within the framework of the armed conflict. In a lawsuit relating toPSOs, a Court Martial Appeal Court of Canada ascertained that the operationin Somalia that took place in 1992–1993 did not qualify as an armed conflict.157

In this light, it is difficult to envisage how peacekeepers could be hauled beforethe IICC for war crimes.

A strong impediment to the prosecution of peacekeepers under the warcrime provision is that Article 8 of the ICC Statute grants the Court jurisdic-tion over war crimes “in particular when committed as part of a plan or policyor as part of a large-scale commission of such crimes.”158 Although this mayon the face of it look like a rise in the jurisdictional threshold, it should beappreciated that this is only “a method used to prevent the Court from being

151 Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-A, Judgment, at 179(Feb. 26, 2001) [hereinafter Kordic Judgment].

152 Kunarac Appeals, supra note 119, at 94.153 ICC Statute art. 8(2)(e)(vi). supra note 109.154 ICC Statute art. 8(2)(b)(xxii), supra note 109.155 Prosecutor v. Furundzija, No. IT-95-17/1-T, Judgment, at 172 (Dec. 10, 1998).156 Kordic Judgment, supra note 151, at 32; Prosecutor v. Blaskic, Case No. IT-

95-14, Judgment, at 69 (Mar. 3, 2000).157 Court Martial Appeal Court of Canada, Her Majesty the Queen v. Private D.J.

Brocklebank (Apr. 2, 1996). For an analysis of the decision, see Katia Boustany,Brocklebank: A Questionable Decision of the Court Martial Appeal Court of Canada,1 Y.B. INT’L HUM. L. 371 (1998).

158 ICC Statute, supra note 109.


overburdened with minor or isolated cases and was specifically derived fromthe US proposal at Rome to safeguard US soldiers from being indicted for iso-lated cases of war crimes while serving abroad.”159 Yet, as aforementioned, itwould be strenuous to demonstrate that the sexual acts were executed in theframework of a plan or policy.

2. The Principle of Complementarity

The principle of complementarity is one of the main hurdles to the involve-ment of the ICC in the prosecution of sexual offences perpetrated by peace-keepers.

Being a treaty based on state sovereignty, Article 17 of the ICC Statutegrants national courts primary jurisdiction. As a result, domestic courts retaina prominent role in punishing those alleged to have perpetrated crimes fallingwithin the rationae materiae competence of the ICC. The Court will only takeover if the national judicial system is unable or unwilling to take legal action.160

Generally, in pursuance of Article 17 of the ICC Statute, “[i]f national author-ities of a state adequately investigate or prosecute, or if they decide on solidgrounds not to prosecute, the case will be inadmissible before the Court.”161

Article 17(2) includes a reference to the intent of the state as well. The principle of complementarity places the burden on states to substan-

tiate that they are prosecuting nationals who committed crimes falling with thescope of the ICC Statute. Only when troop-contributing states do not mean-ingfully pursue individuals or do not offer a good reason for not doing so canthe ICC prosecutor initiate a case.

In a similar vein, the ICC could only take over a case implicating a mem-ber of the United Nations, a civilian police officer or a military observer if thehost state where the crime occurred failed to act against the individual. As it islikely that the host state will be reluctant to go against personnel involved insuch missions, it can be said to be “unwilling” in conformity with Article 17of the ICC Statute. In the specific instance of a host state, in which the entirejudicial system has collapsed, the ICC prosecutor would be able to instigate acase in pursuance of Article 17(3), which specifically mentions situations of“total or substantial collapse or unavailability of [the] national judicial system”of the state.

159 Max du Plessis & Stephen Pete, Who Guards the Guards ? The ICC andSerious Crimes Committed by United Nations Peacekeepers in Africa, 13(4) AFR. SEC.REV. 5, 12 (2004).

160 For a thorough discussion, see Mireille Delmas-Marty, Interactions betweenNational and International Criminal Law in the Preliminary Phase of Trial at the ICC,4 J. INT’L CRIM. JUST. 2, 4–6 (2006).

161 ICC and US, supra note 1, at 130.


A second impediment attached to the notion of complementarity, whichunderlies the ICC, is reflected in Article 18, which requires the ICC prosecu-tor to notify all states parties as well as those that would have jurisdiction if hewishes to start a case before the Court. States are then able, should they wishso, to stop the proceedings and take up the case on the basis of jurisdictiongrounded on, for example, the principle of passive or active nationality. Toenhance states’ opportunity to take legal action under national law, Article 19offers certain states the possibility to challenge the Court’s jurisdiction at theadmissibility stage.

3. Immunity

An additional issue relating to the competence of the court to judge peace-keepers is immunity. No individual is immune from the jurisdiction of the ICC.Even heads of states, who are protected by diplomatic immunity according tothe Vienna Convention on Diplomatic Relations,162 can be hauled before theCourt according to Article 27.

However, as some states perceived the ICC as a threat to peacekeepingoperations,163 they successfully lobbied for a Security Council resolution164

passed in 2002 to grant immunity for one year to peacekeepers from states thathad not ratified the ICC Statute.165 A year later, this immunity was extendedby way of a further Security Council resolution.166 Yet, in the wake of the AbuGhraib prison abuse scandal, a third extension was not granted in 2004.

Although it is disputed that the intention of the drafters of Article 16 ofthe ICC Statute was not to be used to provide immunity to peacekeepers fromprosecution, it was nonetheless employed in this fashion. In fact, the SecurityCouncil stymied the prosecutor from commencing investigation or prosecution,that is, before the crime was perpetrated, peacekeepers were granted immunity.

The question remains whether this mechanism will again be used in thefuture. It is thus interesting to see that SC Resolution 1593, which referredthe situation in Darfur to the ICC, specifically mentions in paragraph 6 that

162 Vienna Convention on Diplomatic Relations, Apr. 18, 1961, arts. 29–31, 500U.N.T.S. 95.

163 In particular, these resolutions “are a result of concerted opposition by theUnited States to the jurisdictional regime of the ICC.” Neha Jain, A Separate Law forPeacekeepers: The Clash between the Security Council and the International CriminalCourt, 16 EUR. J. INT’L L. 239, 240 (2005).

164 SC Res. 1422, UN Doc. S/RES/1422 (July 12, 2002).165 See Noëlle Quénivet, Who Changed the Road Rules? The ICC and the Security

Council Hammering in Conflicting Road Signs, 78(1) DIE FRIEDENS-WARTE. JOURNAL OF

INTERNATIONAL PEACE AND ORGANIZATION 29, 35–36 (2003).166 SC Res. 1487, UN Doc. S/RES/1487 (June 12, 2003).


individuals from a contributing state that is not a party to the ICC Statuteshall be subject to the exclusive jurisdiction of that contributing state.167 Itconfirms that certain peacekeepers continue to be protected from the juris-diction of the ICC.

G. USING THE ICC

One way to temper the exclusive jurisdictional authority of the troop-con-tribution state and to employ effectively the ICC is to provide expressly in theSOFA and contribution agreement for secondary jurisdiction by the ICC. Thiswould comport with the Statute of the ICC, inasmuch as the latter imparts thatthe prosecutor may only institute proceedings when a state is unable or unwill-ing to do so. A further opportunity to implicate the ICC when peacekeepers arealleged to have perpetrated crimes of a sexual nature is to allow for the inves-tigation to be carried out with the assistance of a member of the ICC investi-gation team.

1. Secondary Jurisdiction

Remarkably, the possibility of granting primary rather than exclusive juris-diction is already being used in other contexts.

First, SOFAs concluded between member states of the North Atlantic TreatyOrganization (NATO)168 allow host states to exercise secondary jurisdictionover individuals of a contributing nation when the latter refuses to prosecutethe person for the alleged crime. “The grant of such exclusive or primary juris-diction to the state of nationality is considered important for the successfulfunctioning the force stationed in another country.”169 Nevertheless, it is claimedthat the system does not work because the host state is rather reluctant to trythose who are viewed as helpers.170

Second, UN officials, UN volunteers, experts on mission, as well as con-tractors, are compelled to abide by local laws. Primary jurisdiction lies withinthe host state. In conformity with Article 17 of the ICC Statute and with theprinciple of primary jurisdiction being granted to host states, it is conceivablethat the ICC be included in the process. Nonetheless, as the Sixth Committeeof the General Assembly stresses “there are many states that are not party tothe Rome Statute of the International Criminal Court and, in the absence of a

167 SC Res. 1593, UN Doc. S/RES/1593 (Mar. 31, 2005).168 Article VII(3)(a)(ii), Agreement between the Parties to North Atlantic Treaty

Regarding the Status of Their Forces, June 19, 1951, 199 U.N.T.S. 67.169 Jain, supra note 163, at 245.170 SPEES, supra note 60.


referral by the Security Council under Chapter VII of the Charter of the UnitedNations, the Court cannot assert jurisdiction if neither the host state nor thestate of nationality is a party to the Statute or has accepted the Court’s juris-diction.”171 Referral by the UN Security Council is improbable, for it has alreadyin the past granted immunity to peacekeepers, and no consensus as to the ICC’spowers over peacekeepers seems to have been formed since then.

To curtail these legal impediments, the convention on the criminal account-ability of UN officials and experts on mission could include a provision grant-ing the ICC automatic jurisdiction following a negative administrative measureby the United Nations. This jurisdiction-sharing model may work since the bodythat has secondary jurisdiction is viewed as sufficiently independent and com-petent to initiate prosecution. While this may be a legally sound proposition, itis likely to be rejected for political reasons, for not all troop-contributing statesare parties to the ICC Statute and support its establishment and work.

2. Investigation

Investigation is a second area in which the ICC could step in to assist theUnited Nations, host states as well as troop-contributing states to ensure thatinquiries are fair and peacekeeping personnel receive “due process.” The ZeidReport stressed that one of the problems encountered during investigations wasthe lack or deficiency of the collection of sufficient evidence for a prosecutionunder the applicable substantive and procedural law.172

a. The Old Investigation Procedure and Its Criticisms

According to the system that regulated inquiries into sexual abuses priorto September 2005, allegations against UN staff and other civilian personnelare inspected by the head of mission, who decides whether a preliminary inves-tigation is indeed necessary. Based upon this inquiry, if the allegation appearsto be substantiated, the case is sent to headquarters for action.173

In cases of allegations made against nationals of troop-contributing statesand experts on mission, the head of mission decides whether it is suitable tolaunch a preliminary investigation. If substantiated, cases are then forwardedto the Board of Inquiry, which, upon recipt, issues recommendations with regardsto administrative action. Should the allegations be well founded, the head ofmission can recommend repatriation to the Under-Secretary for Peacekeeping

171 Accountability of UN Staff and Experts, supra note 31, at 71(d).172 Zeid Report, supra note 22, at 88.173 2003 Bulletin, supra note 24, at 7.


Operations. If the recommendation is approved, the “uniform personnel con-cerned is notified and the expenses of the repatriation are paid by the relevantMember state.”174 This is an administrative rather than a disciplinary measure.In pursuance of the contribution agreement, the DPKO follows up with mem-ber states on whether these individuals stood trial before in national courts.Sadly, head of missions are rarely kept abreast of the progress of investigationsof proceedings.175

This system presented numerous flaws regarding investigations: victimsand witnesses were not appropriately protected, the coordination between mil-itary and civilian police was weak and requirements relating to due processwere rarely met.

b. The New Investigation Body

In April 2005, the recommended establishment of a professional and inde-pendent investigative capacity to scrutinize allegations of sexual misconductwas approved.176 The mechanism proposed by the Zeid Report purported toensure states’ jurisdictional sovereignty while at the same time improving theformer mechanism, inasmuch as it should provide that a member of the nationalcontingent incriminated in the alleged crime be implicated in the investiga-tion. It was agreed that this role should be taken upon by the OIOS.177 As aresult, in the wake of these reports the DPKO agreed to collaborate with theOIOS to investigate allegations of sexual exploitation and abuse offenses.Since September 2005, the OIOS has been vested with powers to examinesexual abuse allegations.

The new system tries to satisfy the requirements set by national jurisdic-tions of troop-contributing states, yet “not all member states are comfortablewith the investigative role given to OIOS by the General Assembly, and havereserved their rights with respect to their uniformed personnel on the ground.”178

It is also unclear how the new mechanism will be able to work in practice. To endow the OIOS with the task of reviewing allegations of sexual abuses

perpetrated by members of PSOs is not without intrinsic problems. Indeed, crit-icism may be leveled against the OIOS for having set in various reports a highevidentiary threshold of substantiation and corroboration.179 For examples, the

174 Id., at 8.175 BYRNE, MARCUS & POWER-STEVENS, supra note 18, at 23.176 2005 Special Committee on Peacekeeping Forces Report, supra note 45, at 30.177 GA Res. 59/300, UN Doc. A/RES/59/300 (June 30, 2005).178 Statement by Under-Secretary-General for Peacekeeping Operations Jean-

Marie Guéhenno to the Security Council, supra note 51.179 Susan A. Notar, Peacekeepers as Perpetrators: Sexual Exploitation and Abuse

of Women and Children in the Democratic Republic of the Congo, 14 AM. U. J. GENDER

& SOC. POL’Y & L. 413, 418 (2006).


investigation carried out in February 2000 in Bosnia found “no evidence ofwidespread or systematic involvement in trafficking”180 despite repeated alle-gations of sexual misconduct of peacekeepers. Another inquiry undertaken inWest Africa by the OIOS following the Save the Children/UNHCR Report alsoconcluded that the allegations were unfounded.181

Although countless reasons explain the flaws, several contribute greatly tothe fact that the OIOS may not be viewed as an appropriate investigation mech-anism. First, victims have to report directly to the peacekeeping mission thatinevitably leads to underreporting as victims were reluctant to meet with per-sonnel who are colleagues of those who abused them. In this regard the reportrecommends that DPKO designate an independent third party that collects suchcomplaints.182 Second, most evidence collected does not comply with the req-uisite evidence collection techniques and are as a result useless to start a pros-ecution case. The August 2006 Report of the Sixth Committee clearly spellsout that evidence garnered by the investigation body must serve the purpose ofcommencing or conducting criminal proceedings especially when “the hoststate has no capacity to undertake a criminal investigation.”183 To fill the gaps,the 2005 UN Report recommends that modern standards of evidence gatheringbe used and that investigations comport with the standards of troop-contribut-ing nations,184 while the August 2006 Report supplements that evidence shouldbe “collected in the best possible [ . . . ], that proper chain of custody proce-dures [be] in place and that the Office acquires a capacity to collect and storeforensic evidence.”185 Even though these recommendations are being debatedin various fora, they have not yet been embraced by the United Nations as ofJanuary 2007.

Moreover, the OIOS has not enough power to take legal action or act as asubstitute for national justice. In fact, the OIOS reported that while investigat-ing allegations of sexual abuse in the DRC, two contingents either did not sup-ply any information when requested or even disrupted the investigation.186 Thisillustrates the few powers that the OIOS has in relation to investigation. To grantthe OIOS prosecutorial rights would inevitably encroach upon the jurisdictionalsovereignty of troop-contributing states that will only reluctantly agree to sucha procedure, a factor that explains why such a proposition has not been madein any UN reports.187

180 Hearing House of Representatives, supra note 69, at 22.181 OIOS Report on West Africa, supra note 19.182 OIOS Report on the DRC, supra note 20, at 56.183 Accountability of UN Staff and Experts, supra note 31, at 83.184 Zeid Report, supra note 22, at 32.185 Accountability of UN Staff and Experts, supra note 31, at 84(e).186 OIOS Report on the DRC, supra note 20, at 38.187 It is feared that many states would simply refuse to take part in PSO and that

United Nations missions would not be carried out due to a lack of troops. Spencer, supranote 114, at 178 (2005).


c. The Possible Role of the ICC in this New Investigation Body

Involving the ICC in the work of the investigation carried out by the OIOSwould greatly enhance the overall quality as well as that of the findings.

First, such a mechanism would bestow the investigation team with a mem-ber of the ICC prosecution team endowed with a wealth of knowledge withregard to sexual crimes. As aforementioned, the ICC Statute contains numer-ous provisions prohibiting and criminalizing certain sexual activities, and theprosecution office is specifically dedicated to examining cases relating to sex-ual offenses. In pursuance of Article 54(1)(b) the ICC prosecutor is obliged toinvestigate crimes of sexual and gender violence. As a result of this officialpolicy, gender specialists were recruited. Particular attention was as well paidduring the recruitment process to female staffing, as it can positively assist theinvestigation process.

Second, as aforementioned, evidence gathering is a particularly thornyissue. In the light of the recommendation that in-mission court martial shouldbe allowed to gain access to witnesses and evidence as well as that such rem-edy be transparent and accountable, it is necessary that the permanent profes-sional investigation mechanism envisaged by the Zeid Report includes a memberthat is familiar with standard evidence gathering according to internationalcriminal law and specifically relating to gender crimes. A member of the ICCprosecution team could impart useful insights in evidence gathering.

Third, including staff members of the ICC in the investigation proceduremay lend more transparency and independence. This model would go along thelines of the proposal by the Zeid Report recommending that a permanent inves-tigative body independent of DPKO and peacekeeping missions be established.188

Investigations must take place in a context of trust, which may be encouragedby the presence of an independent person such as a member of the ICC prose-cution team.

H. CONCLUSION

The role played by the ICC in the investigation and prosecution of sexualoffenses committed by peacekeepers can only be marginal. While the ICC couldpotentially be used as an accountability mechanism for such crimes when theyreach a certain threshold, the great majority of the cases must be dealt withinthe framework of national criminal law, be it that of the host state or that of thecountry of nationality of the perpetrator. To progress in that direction, it is rec-ommend that the United Nations adopt the Draft Convention on CriminalAccountability and open it to ratification to all members of the United Nations.

188 Zeid Report, supra note 22, at 31–32.


This will unfortunately not solve the issue of the criminal responsibility ofmembers of national contingents who are seemingly still protected via immu-nities and the lack of will of troop-contributing states to haul members of theirown armed forces before national courts. In this regard the United Nations mustensure that it consistently follows up the state of national proceedings and inves-tigation once the United Nations has established that a national of a troop-con-tributing state indulged in sexual criminal behavior.

433

FINAL CONCLUSIONS AND REMARKS BY THE EDITOR

Peacekeeping has undergone major changes since its creation. Nowadayswe can find several types of intervention, ranging from traditional peacekeep-ing to so-called robust peacekeeping and law enforcement. All these types ofmeasures to reestablish and maintain international peace and security underChapters VI and VII of the UN Charter were referred to in this book under theumbrella notion of peace support operations (PSOs).

The experiences made by most authors in Iraq, Uganda and the Balkansshow that often the decisions taken in the capitals, at the headquarters of min-istries of defense, are driven by political needs that are difficult to implementin the field. This difficulty is accentuated by the need to act in conformity withdomestic and international law. For this reason, the commander deployed to thefield will often avail him- or herself of a legal and a political adviser. Neitherlaw nor political science are exact sciences, meaning that the more “heads” areinvolved in the decision-making process, the more difficult it will be to reachconsensus and a univocal position. Moreover, the legal adviser in the field willoften have to consider both the theoretical background of the legal frameworkhe or she is called upon to apply, as well as the practical difficulties of the real-ity. It is for this reason that this handbook was conceived as a means to bringtogether academics, who have been in strong contact with the military, andlawyers, who are active in the field, be they members of the military, non-gov-ernmental organizations (NGO) operators or members of the InternationalCommittee of the Red Cross (ICRC), and who are aware of the needs of thoseworking in the field and practitioners. The aim was to entrust the first to findsolutions to the problems posed by the latter, taking into account also the expe-riences made and their suggestions.

The outcome is that a sound knowledge of both international and domes-tic law is needed, in order to be prepared to face the legal problems related toPSOs in the field. On the other hand, however, a crucial element is training ofall members of the military in human rights and international humanitarian law(IHL). The higher the level of command, the higher the knowledge should be.It is in fact inconceivable to expect a commander who has never heard the wordIHL to be prepared to listen to the suggestions of his/her legal advisers, whowill be seen as a troublemakers rather than a “trouble solvers.” Another out-come is that the military cannot always rely on legal advisers. Decisions some-times need to be made quickly, and it is unthinkable to have a hotline with alegal adviser always ready to intervene. Ultimately, moreover, the responsibil-ity of all decisions lies with the commander. Therefore, as in every field, train-ing is the key element.


In order to do so, however, it is important to know what needs to be trained.In this handbook practitioners have illlustrated the problems that may arise dur-ing a PSO, providing a means to convey their know-how to future legal advis-ers. They have also illustrated checklists that may be used, conducts that maybe taken and solutions that may be adopted at the tactical level.

With regard to the strategic level, the authors have shown that it is alwayscrucial to keep an open line of communication between headquarters and fieldmissions: those at headquarters may have the bigger picture of a PSO in sight,whereas those in the field may focus on more practical and specific problemsto be solved. The two pictures need to be brought together, in order to accom-plish a mission. For instance, the prosecution of indictees of international crimesmay be viewed as a non-military task by some. However, the importance toentrust a PSO with this task is important to achieve the overall goal of stabil-ity and, thus, peace building.

Likewise, a lower-ranked peacekeeper may not immediately understand theneed to avoid certain red light districts and perceive it just as a measure to spoilhis leisure time. From a bigger perspective, however, measures aimed at imped-ing military personnel from attending certain areas, as discussed in Part IV ofthe book, may have a very strong impact on the achievement of stability in aspecific region where peacekeepers are deployed, since enforced prostitutionmay be a measure to finance the illegal trade in arms by groups who are ruin-ing the achievement of peace building. At the same time, training and the respectof international law are crucial for the image of a peacekeeping mission: assoon as peacekeepers are viewed as possible perpetrators of crimes by the pop-ulation, there is the risk of losing its “hearts and minds” and, therefore, failingin the accomplishment of the mission.

In sum, it may be concluded that every action taken during a PSO needsto have a sound legal basis. International law, however, has increasingly becomecomplicated, with its sub-headings like IHL, ius ad bellum, international crim-inal law, international operational law. Legal advisers are there to help the com-mander make the right decision. The right decision, however, can be more easilytaken if the members of the military are trained, not only at the tactical level,but also about the basics of international law. By doing so, the application ofROEs will be simplified. At the same time, legal advisers must also be trainedto face the problems that may arise in the field. This book hopes to simplifytheir work and to give those who work at headquarters an opportunity to gaininsight into the realities of the field.

Dr. Roberta ArnoldLugano, July 16, 2007

435

INDEX

Abduction 37 (n.28), 41, 139, 148,151ss., 197, 300, 304, 355, 363, 382

Abetting 16, 68, 111, 202, 307Abu Ghraib 247, 425Abuse xxiv, 59, 153, 179, 183, 199, 219,

221, 239, 261 (n.10), 262 (n. 14),271 (n. 41), 296ss, 316ss, 329ss.,353ss, 363ss, 384, 387, 392, 400ss,422–429.

Accountability 128, 198ss, 206,208–213, 217ss, 259 (n.3),318–319, 329ss, 340, 402 (n.15),404–416, 427, 429 (n. 183), 430

Accused (rights of the) 141–155, 180,285ss, 295ss, 389

Achille Lauro 14Acholi 36–37, 48–49Adjudication (criminal) 142, 258, 266ss,

291ssAfghan National Army (ANA) 98, 100Afghan National Police (ANP) 98, 100Afghan Security Forces 98, 101Afghanistan 4, 8, 13, 18, 61 (n.30), 75,

81 (n.13), 82, 94ss, 244, 250 (n.91),312 (n.4), 328 (n.94)

African Union 54 (n. 3), 269, 281African Union’s Peace Mission in Spain

(AMIS) 268, 270, 281Agim Murtezil 144Aiding 16, 68, 111, 202, 307Akayesu Case 413Al Amarah 129Al Jedda Case 201, 229ss., 254Al Maqil prison 136Al Muthana 133Al Qaeda 99Al Skeini 220, 230, 232, 233, 244, 249,

252, 253 Albania 89, 351, 370AMIS 261ss, 181 (n.80)

Amnesty 44–45, 190, 194 Amnesty International (AI) 71ss, 252 (n.

100), 276 (n.65), 285 (n.103), 340(n. 172), 353

Angola 14, 312 (n.7), 318Anthropology investigation 180ssApprehension xxiii, 83, 139ss., 151ss,

201, 238, 253, 285 (n. 103) Archaeological work 180ss.Argentine 180–195, 255, 410 (n.69)Argentine Forensic Anthropology Team

(EEAF) 179ssArmed attack 3, 5, 7, 13ss, 15 Armed conflict (international) xxi, 6ss.,

13ss, 123ss, 423Armed conflict (non-international) 141,

423Arms’ trade 82, 352Arrest warrant xxii, 39ss, 140ss, 305ss.As Sinaiyah prison project 136Aston Cantlow PCC v. Wallbank 234aut dedere aut iudicare 263

Baghdad 130, 231, 232, 237Bala Haradin 144Balkans 81 (n. 13), 83 (n. 22), 84 (n.24),

88, 95, 148 (n. 45), 175 (n. 81), 202(n. 26), 250, 272, 313 (n.7), 329ss,358ss, 433

ballistics 180Bankovic Case 237Barajana and Western Sirmium 151Basra 129ss, 232, 237 Behrami Case 107 (n.4), 230Bin Laden Osama 144Binaisa GodfreyBlackmailing 76, 78Blue boxes 69Board of Inquiry 334, 335, 336, 427Bonn Agreement (2001) 95ssBorder controls 368, 375


Bosnia and Herzegovina (BiH) xxi, xiii,29 (n.31), 58 (n. 21), 75, 82ss, 105,110 (n.18), 111, 118 (n.34), 119,140 (n.3), 144 (n.22), 148–149, 150(n. 57), 152, 154 (n. 76),157ss,163ss, 173ss, 202ss, 236, 268,272ss, 274, 276 (n. 65), 285 (n.103),290, 305,306, 327, 329, 363, 369 (n.49), 370 (n.56), 399, 400, 410 (n.68), 416 (n.107), 418, 420, 429

Bosnia Genocide Convention case 236Brahimi Report 312 (n.3, 5), 320 (n.49),

321 (n.52), 323 (n.61)Brazil 185British forces Divisional Temporary

Detention Facility 232Brothels 89, 329, 351ss, 358ss, 377ss,

417Bulletin on the Observance by United

Nations Forces of InternationalHumanitarian Law, 27, 205 (n. 34),214 (n. 68, 69, 71), 215 (n. 73), 216(n. 76), 260 (n.10), 262 (n.14, 16,17) 324 (n.71), 332 (n.122), 403(n.23, 24), 415 (n.99)

Bunia 269, 281 (n.78), 330Burial sites 182, 185, 188, 194Burundi 312(n.4), 329

Cambodia 173, 267, 270ss, 288ss, 312(n.6), 314, 322, 329, 400,

Camp Bondsteel Detention Facility 65Canadian troops in Somalia 401Capital punishment 251ssCarabinieri 84Carl Bildt 160Carla Del Ponte 149, 172 Caveats (national) 92, 98, 99, 101, 102,

106 (n.2), 107, 117Ceasefire agreement 36, 55, 60, 67, 90,

264, 268, 272, 281, 381 Celebici Case 413, 414 (n.93), 421 (n.

140)Central Poppy Eradication Force

(Afghanistan) 100Centrex Central Police Training and

Development Authority (UK) 327Cessation of hostilities 79, 83, 283 (n.87)

Chain of command 59, 109, 208, 210,213, 217, 219, 223, 225, 227, 239,249, 253, 260, 343, 349, 354, 375

Chapter VI UN Charter: xxi, xxiii, 21Chapter VII UN Charter xxi, xxiii, 7, 21,

24, 28, 29, 39, 55, 56, 61, 62, 71,83, 97, 141, 142, 150, 155, 236,241, 253, 272, 289 (n. 127), 306,374, 427

Checklist 199, 222, 374, 395, 434 Checkpoints 367, 375ssChild soldiers 267 (n. 24), 319, 339, Chile 182, 185, 190, 194, 327, 328, 341

(n.175)Chilean Peacekeeping Training Course

(CECOPAC) civil military coordinators (CIMIC)

367–368, 375CIVPOL 80, 90, 92, 313 (n. 9), 322, 333

(n. 126), 409 Coalition Provisional Authority (Iraq) 23

(n.2), 130 (n.23), 231, 252Coalition Provisional Authority (Iraq)

23, 130 (n. 23), 231, 252Code of Conduct 136, 205, 209, 298,

315ss, 325 (n.74), 330, 338, 342ss,406, 417 (n.112)

Collective security 29Colombia 182, 183Combatants 7, 9ss., 46, 125, 126, 204,

317, 339, Command responsibility 62 (n.34), 208,

260, Commissions of inquiry 183, 401 (n.13)Compensation 151, 213, 218, 223 Complaints register 219, 228Congo 266, 269, 279ss, 313, 330ss, 353,

392, 399ss, 409, Contractors (sub-) 79, 99, 298, 299, 301,

361, 366, 370, 403, 405, 426Copyright infringement 82Corruption 76, 79, 100, 102, 297, 331,

348, 356, 364, 377, 381, 384, 385,389,

Côte d’Ivoire (Ivory Coast) 21 (n. 78),402

Counterfeiting 76, 89crime (juvenile) 135

Index 437

Crime scene security 106Crimes against humanity 33, 35, 38ss,

109, 172, 175, 202, 204, 252, 258,259, 216, 278, 280, 282, 286, 290,312, 363, 420, 421ss

Criminal Code of Bosnia andHerzegovina (BiH) 363

Criminal procedure 112ss, 387Crisis management 3ss, 27Croatia 84, 149, 191, 267, 272ssCrop eradication 99ssCustody 113, 118, 136, 141, 144, 146,

147, 152, 172, 185, 187, 202, 216ss,348, 429,

Cyprus 197, 201, 313 (n.9)

Damjanovic case 160Darfur 269ss, 281ss, 425Dayton Agreement 58, 83, 85, 157, 161,

165, 203, 268, 273, 275, 276Death penalty 131, 160, 252, 315, Delalic case 201, 239Democratic Republic of Congo (DRC)

266, 269 (n.32), 279ss, 312, 330ss,353, 392, 399

Denmark 136, 328Detainee register 219, 228Detainees 197ss, 213ss, 219ss, 248, 250,

254, 342Detention (provisional) 285Detention 54, 63ss, 70ss, 109, 113ss,

127, 139, 142ss, 197ss, 213ssDirect participation 9Djukic Djordje 161Dominic Ongwen 40, 41DRC Democratic Republic of Congo

185, 266, 268ss, 279, 281, 312,330ss, 353, 392, 399

Drug trafficking 76, 88, 89, 91, 92, 96,101

DynCorp 99, 100, 328

East Timor 73, 157, 198, 313, 319, 322,329, 399, 401

Eastern Slavonia 151El Mozote burial site 185, 191El Salvador 185, 186, 191, 314Electoral process 36, 95, 160, 173, 269,

319, 322

EUFOR ARTEMIS 269, 280 (n.78)EUFOR Athea 272, 273ss, 285EUPM 85, 86, 369ssEuropol 76ssEvidence 81, 86, 92, 95, 105ss, 108ss,

112ss, 117ss, 141, 144, 151, 159ss,172, 174, 176, 179ss, 187, 189,191ss, 209, 219, 226, 232, 238,245ss, 259, 280, 284ss, 293, 294,334, 352, 366ss, 375ss, 387ss, 392,402, 411ss, 427, 429

Executions (summary) 109, 112, 312, 316Exhumation 112, 181, 185, 186, 193, 195

Falklands 255Fauchille doctrine 28FBI 5Federal Republic of Yugoslavia 64, 67,

151, 152, 272 (n. 49), 273, 274 (n.59), 277 (n. 68), 306

Financial Investigation Unit (Kosovo) 92Firearms (basic rules for the use of) 69,

205 (n. 34), 316, 323, 334, 346, Force (lethal) xxiiForce (use of) 3ss, 69, 125ss, 209ss, 275,

282, 283 (n.84), 286 (n. 104), 297,300, 304, 316, 319, 333, 346, 363,382, 417

Forensic work 183ss, 190, 191Freezing of assets 81, 149, 150ssFurundzija Case 210 (n.52), 413, 423

(n.155) FYROM 360, 379 (n. 68)

Gaza 10–11Gendarmerie 84, 117Genocide 30, 33, 35, 38, 46, 109, 112,

172, 182, 189, 198, 202, 204, 236,258, 266, 268, 290, 312, 346, 420,421ss

GFAP 83, 158, 160, 166, 171Gotovina Ante 147Grandmothers of Plaza de Mayo 181Guerrilla 16Gulu 36, 45

Haiti 185, 190, 198, 312, 314, 329, 401Handover 213, 214, 217ss, 226ss, 230,

252, 285


Hilmand 96 (n.62, 64), 98 Holbrooke Richard 161Holy Spirit Mobile Force (Uganda) 36, 37 Host state/nation xxi, 4, 53 (n.2), 54,

202ss, 212, 243, 251, 257 (n.1),298, 299ss, 318, 320ss, 337, 340,342, 354, 356, 359ss, 384ss, 393,405ss, 409ss, 427ss

Hostile Act 19ss Hostile Intent 19ssHouse searching 91HSMF 36–37Human rights law 60ss, 107, 114, 144,

153ss, 164, 182ss, 190ss, 200, 202,205ss, 218, 220, 229ss, 242, 243ss,246, 251ss, 257, 279ss, 282, 297,311ss, 324ss, 333ss, 337, 339ss,358, 364ss, 370ss, 379, 384, 399,408, 412,

Human trafficking 76, 82, 89, 93, 303,311ss, 351ss, 372ss, 399ss

Humanitarian intervention 76

ICC xxiii, 17, 21, 33ss, 286ss, 426ss, ICJ 61 (n.29, 31)ICRC 136, 142, 432, 214, 218, 219ICTR xxi, 34, 56, 107, 113, 266, 284ss,

413, 421, 423 ICTY 56, 84, 107, 109, 111ss, 140ss,

154ss, 158ss, 171ss, 201, 266,272ss, 284ss, 293, 306, 413ss

Identification 109, 111, 180–183, 188ss,190, 193, 194, 303, 369, 382, 387,

IDF 10ss, 271Idi Amin Dada 36IDP 37, 41, 170, 280IFOR 83, 91, 203, 268, 272, 273, 275,

277, 285 Illegal immigration 357Ill-treatment 210ss, 218ss, 227ss, 247Immunity 57, 59, 246, 259ss, 361, 364,

374, 392, 393, 408, 420, 425ssIn camera proceedings 284ss, 293 Inhuman or Degrading Treatment 38,

211Intelligence 4, 9, 60, 80, 81, 84, 86,

91–94, 102, 106, 109, 114ss, 232,238, 239, 247, 248, 250, 388, 390,

INTERFET 127 (n.16), 198

Interim Criminal Procedure Code (2004)of Afghanistan 113

international criminal law 16, 20, 48–49,195, 201, 202, 262, 400, 409ss,

International humanitarian law (IHL),xxi, xxiii, 10, 11, 24–31, 61, 62, 70,106ss, 116, 140–142, 155, 158,172–174, 201, 205, 209, 229ss,246ss, 251, 253–255, 257, 261, 274,279, 324, 433

internet 154, 378, 384, 395ssInvestigation 164, 174, 178, 179,

180–200, 202, 208, 213, 219ss,227ss, 244ss, 253, 267ss, 273ss,280, 283, 284, 287, 289, 291, 295,303, 305, 316, 319, 332ss, 352ss,368, 376, 378, 382, 387ss, 393ss,402, 406ss, 411, 426, 427ss

IOM 358, 396IPTF 83ss, 133, 369 Iraq xxiii, xxiv, 23ss, 56, 123ss, 230ss,

244ss, 253ss, 433Iraqi criminal code 131, 134, 251Ireland v. UK case 246, 249ISAF 4, 94ss, Isak Musliu 144Israel 8, 30, 152 (n.64), 271, 283(n.87)Israeli Supreme Court 6ss.Israeli Wall Case 14Istanbul Summit of June 29, 2004, 364Ituri region 269Ius cogens 29ss

Joint operations 119JSAP 167, 170Judiciary 64, 119, 133ss, 170ss, 186,

190, 193, 279, 282, 388ssjurisdiction 33, 35, 38ss, 46, 47, 57, 59,

81, 107, 114, 141ss, 153, 155, 159,172ss, 175, 177, 199, 209, 230ss,241, 244, 246, 258, 262, 264, 266ss,304, 323, 337ss, 359ss, 394, 400,405, 406, 408ss, 420, 423ss

Kabul 96–97, 102Kadi case 254Kampala 36, 37, 45 (n.97)Kampuchea 267(n.27), 288, 296Karadzi’c Radovan 150, 175, 290, 306

Index 439

Karzai Hamid 96ssKFOR 54ss, 63ss, 118, 198, 257, 260,

268, 277ss, 360ss, 370Kidnapping 151, 352ss, 389Kitgum 36KLA/UCK 87, 90ss, 118 (n.35), 144Kony 37, 40ssKosovo (2004) upheavals, 65, 68Kosovo, xxi–xxii, 54, 63ss, 74, 82, 87ss,

277ss, 358ss, 370, 381, 399, 401KPS 69, 90ssKrsmanovic Aleksa 161Krsti’c Radislav 109ssKrstic case 109 (n.15), 112Kunarac case 210 (n. 53), 413 (n.90),

414 (n.94), 418, 419 (n. 129, 130,132), 423 (n.152)

Kupreski´c case 422 (n.149)Kuwait 56, 124

Lakwena Alice 36ss. Lebanon 14, 56, 267, 271ss, 273ss,

288ss, 296ssLegal adviser 432ssLimaj Fatmir 111 (n.20), 147LOAC 125ss, 131, Lockerbie case 28Loizidou v. TurkeyLooting 41, 132Lord’s Resistance Army (Uganda)LRA xxiii, 33ss, 266Lukwiya Raska 40, 42

Macedonia 57 (n.12), 91, 268 (n.29), 272(n.49, 53), 370, 379 (n. 68)

Mafia 358male captus bene detentus 153Mass graves 109, 112ss, 319Mato Oput 47Maysan 132 (n.30), 133Medical treatment 214ss, 378, 388Mercenaries 201Military observers 333ss, 403Military police 65, 71 (n.70), 84, 90,

116ss, 134ss, 197, 244ss, 303, 354,367, 374, 376

Milosevic 161Ministry of Afghan Counter Narcotics

100

MINUSTAH 198, 312, 314Mladi’c Ratko 175Model training program 328Money laundering 89Monseñor Romero 191MONUC 268ss, 279ss, 331, 402 (n.15), MTA-Kosovo (Military Technical

Agreement-Kosovo) 66–68, 278(n.68)

N’djamena Agreement (see Darfur PeaceAgreement) 269ss, 282

NAC 275Nation-building 28, 75, 78, 83, 124,

129ss, 134, NATO 4, 15, 63, 70, 79, 83ss, 90, 99ss,

107, 126 (n.9), 140, 147, 260ss,272ss, 290, 298, 300ss

NATO Policy on Human Traffickingxxiv, 297ss, 351ss

NATO ROE 4, 17, 20, 69 (n.64)Nicaragua case 3 (n.1), 15ssNikolic Case 152Non-State Actors 13ss, 96, 152ss, 314NRA 36ssNRM 35, 37

Objectives (military) 7Obote Milton 36ssOccupation xxiii– xxiv, 8, 23ss, 61,

124ss, 139, 140, 154, 197 (n.1), 199(n.9), 230ss, 252,

Odhiambo Okot 40Offensive security operations 4–5Oil Platforms case 18OIOS 330, 402, 403, 411, 412, 417

(n.117), 428ssOkello Tito 36Operation Desert Storm 56Operation Enduring Freedom

(Afghanistan) 99ss Operation Enduring Freedom (Iraq) 124

(n.3)Operational detention 54, 63, 67. 70ssOrganized crime (transnational) 75, 261,

297ss, 365, 382ssOtti Vincent 40–41

Paulo Muwanga 36


Pavle Strugar 146Peace enforcement xxi ss, 5–6, 13, 19,

83, 353 (n.8)Peace Implementation Council (BiH) 158

(n.7), 275Peace talks 46ssPeace-building 33ss, 43ss, 54ss, 68, 73,

76, 192, 264ss, 313, Peace-keeping 71, 83 (n.22), 343 Peru 182ssPillaging 41–42Piracy 76, 89Pocket cards 377ssPolicing 68, 72, 80ss, 90, 101, 125, 132ss,

172, 319ss, 328, 340, 381, 391President Izetbegovic 161President Tudjman 161Pre-trial detention 113Prince Zeid Ra’ad Zeid Al-Hussein 331,

392Principle of complementarity 44, 419ss,

424ss, Principle of necessity 207 (n.41), Prisoner of war 38, 126ss, 135, Prisoners (Basic Principles for the

Treatment of ) 126, 136, 207, 346,347

Prohibition of torture 62 (n.34), 210ss, 324Property xxii, 19ss, 26, 38, 54, 63, 68ss,

212ss, 224ss, 288 (n.121), 343, 361,368, 389,

Prosecutor v. Slavko Dokmanovi´c, 144(n.26), 151ss

Provisional release 145ssPRT (Afghanistan) 98Psychological assistance 191ssPublic order and safety 26 (n.16), 31,

123, 125, 127 (n.12), 129, 201

Quark Fishing case 241Questioning 143ss, 186, 199, 211ss,

224ss, 246, 264, 387Quick Impact Projects (Iraq) 137

Rafah case 10–11Ramush Haradinaj case 145–146Rape 204, 211, 262 (n.16)Reconciliation 44ss, 84, 173, 202, 263,

265, 277, 299, 306, 339

Recording 185ss, 211, 212, 218ss Red boxes 69Red light districts 358, 369, 372, 434Refugees 64, 77, 84, 99, 159, 160, 165,

191, 277, 279ss, 307, 357, 402 Registration of detainees 213ssRelease 216, 225, 228, 232, 238, 239,

245, 260, 285, 290, 356, 370, 377Reparation 71 (n.69), 109ss, 368Repatriation 262ss, 330, 335, 338, 353,

370, 378, 388, 394, 427, 428Reprisals 216ssRepublika Srspka 64, 67 (n.60), 89, 148,

149, 150, 158, 159, 164, 167, 168,274 (n.59), 306,

Revival of Islamic Heritage Society 81Rhodesia 56Rule of law 48, 53 (n.2), 73, 82, 85, 101,

103, 105, 108, 114, 115, 176–177,202, 206, 209, 211, 277 (n.67), 282,306, 312, 318, 320–321, 327, 328,339, 357, 367, 381, 385ss, 392, 395

Rules of the Road (RoR) procedure 157,159ss, 305, 306

Saddam Hussein 231, 252Sanctions 148, 149ssSarajevo 161, 169, 273Sarajevo’s District Military Court 160Saramati case 230Saranwal 113Search operations 119ss, 141, 181, 192,

198, 281 (n.73)Searching (body) 152, 211, 212, 215,

216, 224, 340, Self-defence (personal) 17Self-defence (state) 3, 7 (n.17), 13ss, 17,

21Selmouni v. France 249September 11th, 13ss, 56, 75, 251, Serbia (see Republika Srpska)Sexual abuse 261 (n.10), 262 (n.14),

319, 329 ss, 337, 340, 353 (n.12),387, 393 (n.19), 400 (n.2), 401ss,406, 407, 409, 412ss, 422, 423, 428,429

Sexual exploitation (see abuse)Sexual harassment (see abuse)Sexual slavery (see abuse)

Index 441

SFOR 83, 84, 140, 147, 152, 202, 268,272, 273, 277, 285, 370

Sierra Leone 114 (n.30), 155, 173, 267,270ss, 288ss, 312, 319, 330ss,401ss, 418

Simic case 10Site protection 186Slovenia 147Smuggling 76ss, 82, 87ss, 91ss, 101,

334, 372, 379, 383Solomon Islands 203South Africa 14, 186, 252, 401Special Tribunal for Lebanon 267, 288ss,

291, 296Standing operating procedure 53ss, 62,

65, 66, 71, 335, 360, 367 State sovereignty 59 (n.24), 138, 151,

154, 233, 424Status of Forces Agreement xxii, 53ss,

59, 261ss, 359, 360ss, 404ss, 426Status of Mission Agreement 259Stefan Todorovic 202STOP 369Sudan 267, 269, 270, 281, 282, 291, 312 Surrender 40, 44ss, 139, 141ss, 145ss,

150, 305Suspects 141ssSwiss armed forces 370, 371, 372, 374Swiss military criminal code 373Swisscoy xxii, 75Switzerland xxii

Taleban/Taliban 4, 13, 18, 95, 99, 100, 101Taylor Charles 142Telephone intercepts 115, 132, 388Ten Rules: Code of Personal Conduct for

Blue Helmets 315 (n.19)The Beijing Rules 317The Tokyo Rules 316Timor Leste 267, 312 (n.4)Torture 12, 37, 38, 59, 62 (n.34), 153,

189, 207, 209, 210ss, 222, 223,246ss, 312, 313, 316, 324, 346

Training 65, 80, 85, 100, 102, 118(n.35), 124, 125ss, 133, 135, 138,154, 182, 193, 209ss, 221, 260(n.10), 261, 297, 298, 300, 301,302ss, 303, 311ss, 354, 364ss,371ss, 387, 388, 389, 391ss, 433

Transfer xxiii, 38, 71, 80, 92, 93, 109,115, 116, 118, 128, 136, 139, 140,141ss, 153, 154, 161, 162, 172ss,186 (n.3), 199, 213, 217ss, 224,225ss, 231, 232, 237ss, 244, 246,251ss, 276, 285, 297, 300, 304, 306,355, 363, 382, 386, 391

Transitional authority 53ss, 70, 72, 73,257, 261, 264, 270, 282, 290, 292,322,

Travel restrictions 150, 151Trickery 151ssTruth commission 179, 182, 184ss,

190ss, 319

UAE 232UÇK Ushtria Çlirimtare e Kosovës

(Albanian name of KLA) 64, 66, 67,87, 90, 91

Uganda National Liberation Front 36Uganda People’s Democratic Army 36Uganda xxiii, 33ss, 43ss, 45, 266 (n.23),

268ss, 433Ugandan People’s Defense Force 40, 41,

46, 47UK v. Soering case 251–252UN Model SOFA (Status of Forces

Agreement) 57, 58, 61UN Rules of the Protection of Juveniles

Deprived of their Liberty 317UN Staff Regulations and Rules 404UN Standardized Generic Training

Modules (SGTMs) 312 (n.6), 313(n.8), 313 (n.11), 325, 340

UN volunteers 403, 404, 426UNAMIR 268UNAMSIL 270, 278, 312, 330UNEF I, 197, 203, 204 (n.31)UNFICYP 201UNIFIL 271, 283, 288UNIIIC 291, 292UNIOSIL 270UNMEE 319UNMIBH 166UNMIH 312UNMIK 58 (n.20), 63ss, 71ss, 87, 89ss,

92ss, 116, 118 (n. 34, 35), 146, 157,268, 278ss, 312, 330, 351, 359, 360(n.28), 361ss, 368, 370, 375


UNMIL 312UNMIS 312UNOCI 202UNODC 382 (n.1), 387UNOMSIL 270UNOMSIL 270UNOSOM II 201–202UNPOL 312 (n.4), 313ss, 326ss. 339UNPROFOR 267, 268, 272, 273, 322UNTAC 270, 322UNTAC 270, 322UNTAES 151UNTAET 73, 157UPDA 36UPDF 40–41, 46–47Uruzgan 4US 14, 15, 99, 100, 149, 150, 193, 251,

252, 328, 425 (n.163)USFK 377, 378

Vetevendosje movement 68

Victim Advocacy and Assistance Unit(Kosovo) 93

Vukovar 151, 191

Walking out policy 94War Crimes 109, 139, 140, 142ss, 146,

154, 157ss, 171ss, 182, 202, 258,259, 266, 273ss, 290, 305ss, 311,312, 324 (n.70), 413, 420, 423–424.

Wesley Clark 321Witness protection 118, 174, 195, 257ss,

388, 395

Yoweri Museveni 35ss, 46, 47Yusuf case 254Yusuf Lule 36

Zaire 268Zimbabwe 194

Law Enforcement within the Framework of Peace Support Operations

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