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Speaking at the United Nations in September, Secretary of State Hillary Clinton called the improvement of U.N. peacekeeping forces a “humanitarian and strategic imperative.” Yet, while much has been said about strengthening their technical capability, there has been little discussion of enhancing peacekeepers’ legal accountability.
From July 30-August 2, more than 300 people were raped by a rebel militia in Mpofi, Congo, while U.N. forces were stationed less than 20 miles away. Email excerpts published by The New York Times showed that peacekeepers were informed on the first day that the village had “just fallen into the hands of the FDLR,” a rebel group whose leadership fled neighboring Rwanda after the 1994 genocide. The note, while brief, stated, ”a woman was raped there,” — an alarming point given that the FDLR is known for using mass rape to terrorize villages in eastern Congo. Even though the U.N. mandate in Congo gives the local government “primary responsibility” for civilian protection, it was the peacekeepers who had the first notice of the attacks. Yet, they took no action for at least three days.
Despite an obligation to “ensure respect” for the Geneva Conventions, a patchwork of informal legal opinions and non-binding directives has led to a situation where bystanding by peacekeepers is incentivized. The renewed focus brought by the atrocities in Mpofi is an opportunity to close these loopholes and bring new vitality both to peacekeeping endeavors and the bedrock principles that they strive to uphold
The Obligation to “Ensure Respect”
Article 1 of the Fourth Geneva Convention imposes a duty on “the High Contracting Parties” to “ensure respect” for the rights the Convention enshrines “in all circumstances.” This includes preventing “outrages upon personal dignity, in particular, humiliating and degrading treatment,” from being inflicted on civilians. The plain language of ‘ensuring respect in all circumstances’ goes beyond controlling one’s own soldiers, and compels parties to ensure that others do not commit violations either. Yet critics, relying on the drafting history of the Conventions, argue that the obligation to ensure respect is what lawyers call “merely hortatory,” meaning that parties should aspire to fulfill it, but that there are no legal consequences if it is ignored. This is misguided.
Under the Vienna Convention on the Law of Treaties, drafting history is only relevant in one of two situations. The first is if a term is “ambiguous or obscure.” Yet, the International Committee of the Red Cross, the authoritative interpreter of the Conventions, has found no such ambiguity and has repeatedly stated that the obligation to “ensure respect” extends to all signatories. The only other time drafting history should be consulted is where taking the words at face value “leads to a result which is manifestly absurd or unreasonable.” But there is nothing absurd about expecting peacekeepers to take proactive, preventative action when they have actual knowledge that systematic outrages on human dignity may be taking place nearby.
The Geneva Conventions and the U.N.
During the 1994 Bosnian war, reluctant peacekeepers were persuaded to protect a hospital in the U.N.-declared “safe area” of Bihac after a U.N. civil affairs representative argued that action was compelled under the Geneva Conventions. Afterwards, the U.N.’s Office of Legal Affairs , or OLA, countered that the peacekeepers had not been obligated to do so, because the U.N. is not a state. Rather, the OLA asserted that peacekeepers could be bound “only by their Security Council mandate.” Thus, even though each soldier was a citizen of Geneva signatory, OLA took the position that they were not bound by the Conventions when wearing the U.N.’s blue berets, even though they would be if wearing their national military uniforms.
This interpretation lasted until 1999, when Kofi Annan issued a Secretary-General’s Bulletin (pdf) proclaiming: “fundamental principles and rules of international law ... are applicable to United Nations forces.” Here, it seemed, was definitive commitment. But the Bulletin is not legally binding. Although peacekeepers are under the operational control of the U.N., they remain under the command of their home nations, which alone may discipline them. The argument, then, is that U.N. control frees peacekeepers from their Geneva obligations (not a state), while national command frees them from the Secretary General’s Bulletin (no disciplinary authority).
This series of contradictions points not to a principled immunity, but to a gap in the law. This is a crisis point for peacekeeping. The attacks in Congo, which occurred with the full knowledge and capability of peacekeepers to prevent them, came barely a month after the 10-year anniversary of the Brahimi Report, the U.N.’s last attempt to reform peacekeeping.
The world has two choices: We can ignore the failure in Congo, virtually ensuring its eventual repetition, or we can highlight this gap in the existing system as a way of adding greater urgency to peacekeeping reform. Far more lives can be saved by the latter. Peacekeepers should be held to the same standards as any standing national military, including having a proactive obligation to prevent outrages on personal dignity. Deployments must be given the resources to fulfill their mandates, but those mandates should also be appropriately tailored to make peacekeepers legally responsible for fulfilling them.
James Bair is a graduate of Northeastern University School of Law in Boston, MA. He helped establish the Victims Unit at the Extraordinary Chambers in the Courts of Cambodia and has published on the rights of victims under international criminal law.