Practice and Policies of Modern Peace Support Operations under International Law (International and Comparative Criminal Law)

LAW 8 RIES PRACTICE AND POLICIES OF MODERN PEACE SUPPORT OPERATIONS UNDER INTERNATIONAL LAW ROBERTA ARNOLD OEERT .JAN...

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LAW 8

RIES

PRACTICE AND POLICIES OF MODERN PEACE SUPPORT OPERATIONS UNDER INTERNATIONAL LAW

ROBERTA ARNOLD OEERT .JAN ALEXANDER KNOOPS

Transn

.l. ional

Publisher.

INTERNATIONAL AND COMPARATIVE CRIMINAL LAW SERIES

Editorial Board Series Editor

M. Cherij Bassiouni President, International Human Rights Law Institute, DePaul University President, International Institute of Higher Studies in Criminal Sciences, Siracusa, Italy, President, International Association of Penal Law, DePaul University Professor of Law, DePaul University, Chicago, IL, USA

Diane Amann Professor of Law University of California School of Law Davis, CA, USA Christopher L. Blakesley J. Y. Sanders Professor of Law Louisiana State University Law Center Baton Rouge, LA, USA Roger S. Clark Board of Governors Professor The State University of New Jersey School of Law Camden, NJ, USA John Dugard Member, International Law Commission, Geneva; Emeritus Professor of Law, University of Witwatersrand, South Africa; and Professor of Public International Law, University of Leiden, The Netherlands

Mario Pisani Professor of Criminal Procedure Faculty of Law, University of Milan Milan, Italy William Michael Reisman Myers S. McDougal Professor of Law and Jurisprudence, Yale Law School New Haven, CT, USA Leila Sadat Professor of Law Washington University in St. Louis School of Law St. Louis, MO, USA Michael P. Scharf Professor of Law New England School of Law Boston, MA, USA Kuniji Shibahara Professor Emeritus University of Tokyo, Faculty of Law Tokyo, Japan

Albin Eser Professor of Criminal Law, Albert Ludwig University; Director, MaxPlanck Institute for International and Comparative Criminal Law Freiburg, i. B., Germany

Brigitte Stern Professor of International Law University of Paris I Pantheon, Sorbonne Paris, France

Alfredo Etcheberry Professor of Criminal Law, National University of Chile; President, Chilean Lawyers' Association, Santiago, Chile

Otto Triffterer Professor of International Criminal Law and Procedure, Faculty of Law, University of Salzburg Salzburg, Austria

Jordan Paust Professor of Law University of Houston Law Center Houston, TX, USA

PRACTICE AND POLICIES OF MODERN PEACE SUPPORT OPERATIONS UNDER INTERNATIONAL LAW

Edited by

ROBERTA ARNOLD and GEERT-JAN ALEXANDER KNOOPS

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Published and distributed by Transnational Publishers, Inc. Ardsley Park Science and Technology Center 410 Saw Mill River Road Ardsley, NY 10502

Phone: 914-693-5100 Fax: 914-693-4430 E-mail: [email protected] Web: www.transnationalpubs.com

Library of Congress Cataloging-in-Publication Data Arnold, Roberta, 1974- . Practice and policies of modern peace support operations under international law / by Roberta Arnold and Geert-Jan Alexander Knoops. p.cm. Includes bibliographical references and index. ISBN 1-57105-361-1 1. Humanitarian intervention. 2. United Nations--Peacekeeping forces. 3. Peacekeeping forces. 4. Rule of law. 5. War (International law) 1. Knoops, Geert-Jan G. J. II. Title. KZ6374.A 762006 2006040439 Copyright © 2006 by Transnational Publishers, Inc. All rights reserved. This book may not be reproduced, in whole or in part, in any form (beyond that copying permitted by U.S. Copyright Law in Section 107, "fair use" in teaching and research, Section 108, certain library copying, and except in published media by reviewers in limited excerpts), without written permission from the publisher. Manufactured in the United States of America

TABLE OF CONTENTS List ofAbbreviations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

vii

Introduction: PSOs in Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ix

Part I: General Developments of Modern PSOs

Chapter 1:

Chapter 2:

Chapter 3:

PSOs: Establishing the Rule of Law Through Security and Law Enforcement Operations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Kwai HongIp

3

Promoting and Abiding by the Rule of Law: UN Involvement in Post-Conflict Justice . . . . . . . . . . . . . . . . . . . . Noelle Quenivet

35

Military and Legal Aspects ofPSOs-The Example of Austria's Deployment With KFOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Gerhard Scherhaufer

67

Part II: Concurrence of Modern PSOs and International Law

Chapter 4:

Chapter 5:

The Applicability of the Law of Occupation to Peace Support Operations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Roberta Arnold

91

The Age of Interventionism: The Extraterritorial Reach of the European Convention on Human Rights. . . . . . . . .. Josephine Lett

117

Chapter 6:

Securing Status and Protection of Peacekeepers. . . . . . . . . . . . . .. Dieter Fleck

Chapter 7:

So-Called "Non-Lethal" Weapons in Peace Support Operations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. Gergely T6th

141

157

Part III: Concurrence of Modern PSOs and International Criminal Law

Chapter 8:

Criminal Liability for Contemporary International Military (Crisis Management) Operations: Towards a Refined Adjudicatory Framework. . . . . . . . . . . . . . . .. Geert-Jan Alexander Knoops

v

183

vi

Chapter 9:

Practice and Policies of Modern Peace Support Operations

Migration and Border Management in Kosovo 1999-2005. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. Stefano Failla

Chapter 10: Trafficking in Human Beings for the Purpose of Sexual Exploitation-Legal Challenges in the Fight Against Modern Slavery in Crisis Regions: A Case Study of Bosnia and Herzegovina Valerie Wahl Chapter 11: Detention ofIndividuals During Peacekeeping Operations: Lessons Learned From Kosovo . . . . . . . . . . . . . . . . . . . . . . . . . . .. Pascal M. Dupont Chapter 12: Accountability for the Conduct of UN-Mandated Forces Under International Human Rights Law: A Case Study Concerning Sexual Abuse of the UN Mission in the Democratic Republic of Congo (MONUC). . . . . . . . . . . . . . . . . .. Sandra Katrin Miller Conclusions and Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

203

225

249

261

289

Table of Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

293

Index... .. . . .. . .. . .... . .. ... .... . . . . . . . .. . . . . . .. . ....... . . .. . . ....

295

LIST OF ABBREVIATIONS AP I AP II BiH BWC

CIVPOL CWC

DPKO ECHR ETS EU EUFOR GA Res. ICC ICCPR ICRC ICTR ICTY IHL ILM INTERFET KFOR KLA LNTS MINUSTAH MONUC MOU MSU MTA NATO NGO ONUB ONUC

Additional Protocol I of the Geneva Conventions Additional Protocol II of the Geneva Conventions Bosnia and Herzegovina Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction International Civilian Police Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction Department of Peacekeeping Operations European Court of Human Rights European Treaty Series European Union European Union Force UN General Assembly Resolution International Criminal Court International Covenant on Civil and Political Rights International Committee of the Red Cross International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia international humanitarian law International Legal Materials International Force for East Timor Kosovo Force Kosovo Liberation Army League of Nations Treaty Series UN Stabilization Mission in Haiti UN Organization Mission in the Democratic Republic of the Congo memorandum of understanding multinational specialized unit military-technical agreement North Atlantic Treaty Organization non-governmental organization UN Operation in Burundi UN Operation in the Congo vii

viii

oseE Ptp

PSF PSO ROE SC Res. SFOR SIrUS SOFA SOMA SRSG TCC TCN TiHB TS UDHR UK UN UNAMA UNAMSIL UNFICYP UNMEE UNMIK UNOCI UNOMIG UNSECOORD UNTAC UNTAET UNTS US


Organization for Security and Cooperation in Europe Partnership for Peace Peace Support Force peace support operation rules of engagement UN Security Council Resolution Stabilization Forces in Bosnia and Herzegovina Superfluous Injury or Unnecessary Suffering Project status of forces agreement status of mission agreement Special Representative of the Secretary-General troop contributing country troop contributing nation Trafficking in Human Beings Treaty Series Universal Declaration of Human Rights United Kingdom United Nations UN Assistance Mission in Afghanistan UN Missions in Sierra Leone UN Peacekeeping Force in Cyprus UN Mission in Ethiopia and Eritrea UN Interim Administration Mission in Kosovo UN Operation in Cote d'Ivoire UN Observer Mission in Georgia Office of the UN Security Coordinator UN Transitional Authority in Cambodia UN Transitional Administration in East Timor United Nations Treaty Series United States

INTRODUCTION: PSOs IN ACTION Contemporary international peace support operations (PSO) take place in a context which has dramatically evolved during the last decade. The practical problems encountered by PSOs nowadays differ and may prove more formidable. PSOs, consequently, have developed into two directions: classical peacekeeping and peace enforcement operations. The former is based on the neutrality of the intervening peace forces, while the latter concerns a more robust enforcement of a peace mandate.! Due to the changing world order, exemplified by the emergence of politically complex international and internal armed conflicts accompanied by gross human rights violations and a multiplicity of (non-state) fighting parties, another type of PSO has arisen i.e., that of international crisis response and management operations. This form of military intervention was shaped in order to enable the international community to actively terminate, by military means and force, humanitarian catastrophes fueled by sub-regional, regional and tribal politics. 2 The responsibility of the international community to maintain international peace and security may create conflicting pressures as to the extent and scope of military interventions and the compliance with international legal norms by the intervening military forces. Given the ongoing commission of atrocities in certain regions of the world, such as Congo, Darfur and Northern Uganda, the urgent goal would seem to be the termination of these geo-political conflicts, either by military intervention or negotiation. Yet, at the same time, the urgent policy question is whether international military crises response operations should be used by the international community to resolve regional or national internal political problems. Are such interventions not deemed to fail in the event the particular state itself is not able to find a solution to the instability at hand? Are we then not simply shifting such a political or security problem to that of the international community? For instance, some questions may be: If one is to militarily intervene, how should this be done, i.e., what are the rights and duties of PSO-forces? On the basis of which legal regime should their conduct be assessed? Ultimately, the legitimacy of military crisis response operations, as mechanisms to restore and resolve international and internal (political) conflicts, will be tested by the manyfold realities of international politics and See Martin Zwanenburg, Accountability under International Humanitarian Law for United Nations and North Atlantic Treaty Organization Peace Support Operations (2004). See Geert-Jan Alexander Knoops, The Prosecution and Defense of Peacekeepers under International Criminal Law 7-9, 35-44 (2004).

ix


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international (criminal) law, not the least of which will be their own compliance with the rule of law. In this regard, Part I of this volume, addressing general aspects of modern PSOs in view of the rule of law, delineates the formidable challenge that falls on all those who are involved in the execution of PSO mandates on the ground, especially how to set priorities among their crucial responsibilities and the inevitable political military consequences of these actions. Part II determines the magnitude of this challenge, by revealing the particular problems and implications, divided over various aspects of concern, by analyzing special topics like the issue of securing the status and protection of peacekeepers (Dieter Fleck), the legality of the use of non-lethal weapons in peace support operations (Gergely T6th), the application of human rights (Josephine Lett) and the law of occupation to PSOs (Roberta Arnold). It will further show that modern PSOs in theory and in action are different exponents calling for a more practical analysis. Henceforth, Part III of this volume manifests another dimension pressurizing the dilemmas within modern PSOs, namely the imposition of criminal law responsibilities on members of PSO forces on the ground, enforcing PSO mandates, which is a relatively new area. 3 With the development of international criminal responsibility, envisaged by the statutes of international and hybrid criminal courts, modern PSOs are faced with new legal and political challenges, especially when such forces are called to cooperate with these courts. In the manyfold of events, it may create an opposition between the PSO forces and the parties to the conflict and trigger responsibilities under international criminal law. Notwithstanding scant case law on this innovative aspect, Part III delves deeper into this type of responsibilities, based on the practical experiences of the authors, pertinent for the success or failure of future PSOs. The contributions by Stefano Failla (migration and border management in Kosovo), Valerie Wahl (trafficking in human beings for the purpose of sexual exploitation), Pascal M. Dupont (detention of individuals during PSO), Sandra Katrin Miller (accountability for the conduct of UN mandated forces) and Geert-Jan Alexander Knoops (criminal liability for crisis management operations) touch upon this intriguing interrelationship between PSOs and international criminal law aspects. Parts I-III of this volume provide a cross-disciplinary perspective on modern PSOs, i.e., contributions on the edge ofPSOs and general international law, international humanitarian law, human rights law and international criminal law. The understanding by the international community of the importance of these intersections is essential to fully comprehend the legal and social-political dynamics of modern PSOs. Parts II and III make especially clear that PSOs are governed by many and differing organizational, military-operational and

See id.

Introduction

xi

legal-political contexts. The chapters of Parts II and III illuminate a specific aspect of this larger context, whereas Part I explores the legal-political context in a broader form. After devoting so much attention to modern PSOs "in action," the book terminates with a consideration of conclusions and recommendations. Given that PSOs, in their wide inter-disciplinary manifestations, are still transforming and developing, the argument is that a variety of strategies, concepts and avenues must be pursued not only to protect those who are engaged in PSOs but also to enable them to effectively protect those they are called to protect. As mentioned, the basic tenet of this book is PSOs "in action." The applicable legal rules in the field will continue to be shaped by the policymakers and military service men and women engaged in PSOs, rather than legal textbooks. International peace and security and the endorsement of international law by peace support forces around the world will ultimately depend on the dissemination of this law within and by the PSO forces themselves. This book would like to make a small contribution to this process. It is, therefore, primarily meant for those called to apply the laws and doctrines pertaining to PSOs in the field, who shall have at their disposal the know-how acquired by eminent practitioners within PSOs. At the same time, in order to bridge the reality of theory and practice of contemporary PSOs and maximize their impact on international peace and security, it addresses also practitioners at headquarters, academics, policymakers and international lawyers. The undertaking of such an effort is especially important in order to attain unity as to the practical application of norms and doctrines that underpin PSOs. This book, therefore, is but one of the many to follow. Geert-Jan Alexander Knoops Roberta Arnold Editors January I, 2006

PART I

General Developments of Modern PSOs

CHAPTER 1 PSOs: ESTABLISHING THE RULE OF LAW THROUGH SECURITY AND LAW ENFORCEMENT OPERATIONS Kwai Hong fp*

I.

INTRODUCTION

This chapter will explore the challenges faced by military Peace Support Forces (PSF) in establishing the rule of law in post-conflict environments. The aim is to highlight legal and practical issues that impact law enforcement operations. The chapter will develop this through a brief analysis of peace support operations (PSO) authorized under UN Security Council resolutions to examine the authority to conduct law enforcement type duties and rules of engagement. It will consider how international humanitarian and human rights laws may apply to PSF, how these laws may be used as a guide during peace support operations and determine the extent that human rights obligations affect individual troop contingents. Finally, the chapter will illustrate the impact of human rights obligations on law enforcement type tasks, and the need to coordinate activity with civilian law enforcement authorities. Where appropriate, the chapter will discuss these themes with illustrations from PSOs in Kosovo from 1999 to 2005.

II. MILITARY PEACE SUPPORT OPERATIONSTHE AUTHORITY FOR LAW ENFORCEMENT OPERATIONS A. UN Security Council Resolutions 1.

General Tasks

PSOs authorized by a UN Security Council resolution will differ in terms of aims and mandate, and they may be limited in duration. It is important to acknowledge the difference between those PSOs that are authorized under UN Charter Chapter VI or Chapter VII with respect to the aims of the particular

* Kwai Hong Ip, Barrister (England and Wales), Attorney (California, USA). Senior International Legal Officer, Special Department for War Crimes, Prosecutor's 3


4

mission and the means that may be used. In general, traditional peacekeeping involves a Chapter VI mission that seeks to deal with disputes that endanger the maintenance of international peace and security. Such missions include those that rely on the consent of parties to a conflict for the peacekeeping force to monitor a ceasefire agreement or other cessation in hostilities. Peace enforcement is concerned with enforcement action under Chapter VII. The Security Council may authorize a PSF to "take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security,"! and the mandate may authorize the use of force as "necessary means" or "necessary measures" or "necessary action."2 To discern what is necessary, the Force may consider the purpose and type of tasks that have been authorized by the Security Council. The limitations and tasks from the mandate should shape PSF mission plans, directives and operating procedures.

2.

Institution Building

In recent complex and multifaceted peace-keeping and -building missions, PSOs have been authorized to establish transitional administrations or assist in institution building and regeneration in situations where there has been a collapse of law and order. The PSF's role in rebuilding wiII depend on the existence of viable police, judicial and correctional systems. The mandate generaIIy tailors tasks according to the situation. Parts of the infrastructure may still exist, albeit at a limited capacity. A civilian component of the PSO may be tasked to assume governance and nation-building duties with the military PSF providing a secure environment, and to support the work of the civilian component. In Kosovo, Security Council Resolution 1244 established an international civilian presence (UNMIK3) with the mandate to perform basic civilian administrative functions and organize and oversee the development of provisional institutions for

Office of Bosnia and Herzegovina. Former RAF Prosecutor; Assistant Legal Adviser KFOR, and Legal Officer, Criminal Division Department of Justice, UNMIK. The views expressed in this paper are the author's and should not be considered as statements of UN, NATO or UK MOD policy. UN Charter art. 42. For example, SC Res. 1244 (1999), S/Res11244, adopted by the Security Council at its 4011 th meeting, on June 10, 1999, para. II, "means" (Kosovo); SC Res. 1270(1999), S/Res11270, adopted by the Security Council at its 4054th meeting on Oct. 22,1999, para. 14, "action" (Sierra Leone); SC Res. 1575 (2004), S/Res11575, adopted by the Security Council at its 5085th meeting, on Nov. 22, 2004, paras. 14, 15 and 16, "measures" (Bosnia and Herzegovina). 3 SC Res. 1244, supra note 2, paras. 9(c) and 9(f).

Establishing the Rule of Law

5

democratic and autonomous self-government pending a political settlement. 4 KFOR (Kosovo Force) was tasked to maintain a secure environment, so that UNMIK could operate, support and coordinate with UNMIK. In other PSO missions, military and civilian components may be given the mandate to assist the existing government with the restoration of public order and safety, the maintenance of the rule of law and institutional strengthening including the re-establishment of the corrections' system. The military component may be tasked to report directly to the Special Representative through the force commander. 5 In other operations, a single nation may be tasked with a limited and short-term mission to support the UN Mission by re-establishing security and providing protection to the Mission and to civilians. 6

3.

Law Enforcement Tasking

Whether the PSF are authorized to execute law enforcement type tasks in the operation will depend on the terms of the mandate in the Security Council resolution. Particular mission mandates are often drafted in broad terms but may specifically provide for law enforcement tasks to be conducted either by the military component of a PSF, or jointly with a civilian police component or the national police force. For example, Security Council Resolution 1244 required the international security presence (KFOR) to ensure public safety and order until the international civil presence could take responsibility for this task; Security Council Resolution 1542 7 provided MINUSTAH8 with the mandate "to assist with the restoration and maintenance of the rule of law, public safety and public order in Haiti through the provision inter alia of operational support to the Haitian National Police and the Haitian Coast Guard." It may be even more specific, such as in Security Council Resolution 1577,9 where the Security Council requested "ONUBlO and MONUCII to continue to provide their assis-

SC Res. 1244, supra note 2, paras. 11 (b) and 11 (c). SC Res. 1542, adopted by the Security Council at its 4961 st meeting, on Apr. 30,2004, S/Resll542 (2004), paras. 4 and 7.I.(d). See also SC Res. 1528, adopted by the Security Council at its 4918th meeting, on Feb. 27, 2004, S/Resll528 (2004), para. 6( q)-authorizing the joint military and civilian UNOC! to re-establish the authority of the judiciary and the rule of law throughout Cote d'!voire. See SC Res. 1528, supra note 5, para. 16, where French forces were sent to Cote d'!voire to quell an escalation in violence. Supra note 5, relating to Haiti. UN Stabilization Mission in Haiti. Adopted by the Security Council at its 5093d meeting, on Dec. I, 2004, S/ResIl577 (2004), relating to Burundi. 10 UN Operation in Burundi. 11 UN Organization Mission in the Democratic Republic of the Congo.


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tance, within their mandate, to the Burundian and Congolese authorities, with a view to facilitating the completion of the investigation into the Gatumba massacre and to strengthening the security of vulnerable populations."12

4.

Other Law Enforcement Duties-Support to International Criminal Tribunals

Some resolutions may call on parties to bring to justice those responsible for crimes of genocide, crimes against humanity or war crimes and to facilitate measures in accordance with international law to ensure accountability for violations of international humanitarian law (IHL)I3 to put an end to impunity. 14 Under Additional Protocol I of 1977 (AP I), signatory states are obliged to assist the United Nations in response to serious violations in accordance with mandates or specific requests. IS These may include tasks such as conducting surveillance and search and arrest operations of persons accused or indicted for breaches of IHL. In relation to grave breaches under Article 147 of the fourth Geneva Convention of 1949 (IVGC)I6 committed against protected persons (civilians) and property, military forces have an obligation to search for persons on their territory suspected of committing grave breachesP This obligation may extend to forces of a High Contracting Party that are on occupied territory, but it is debatable whether this creates a legal duty on individual states contributing troops to PSFs that are conducting enforcement operations under a Security Council resolution mandate. However, it may be followed by a troop contributing nation or the PSF as a matter of policy and as a standard of best practice. Furthermore, the two ad hoc international tribunals I8 for the prosecution of war crimes and other serious offenses were established under Chapter VII of the UN Charter by Security Council resolution. The Security Council deter!d., para. 4. See SC Res. 1291, adopted by the Security Council at its 4104th meeting, on Feb. 24, 2000, S/Res/1291 (2000), para. 15. 14 See SC Res. 1542 (2004), supra note 5, para. 8. 15 Art. 89. 16 Convention relative to the Protection of Civilian Persons in Time of War (1949), United Nations Treaty Series, Vol. 75, at 287 [hereinafter IVGC]. 17 To complement and implement the principle established in Article 146 of IVGC that the primary responsibility for the prosecution of war crimes rests with individual states. 18 E.g., International Criminal Tribunal for the Former Yugoslavia pursuant to SC Res. 827, adopted by the Security Council at its 3217th meeting, May 25,1993, S/Res/827 (1993), and the International Criminal Tribunal for Rwanda pursuant to SC Res. 955, adopted by the Security Council at its 3453d meeting, on Nov. 8, 1994, S/Res/955 (1994). 12

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mined that accountability for such offenses would facilitate the maintenance and restoration of international peace and security. By virtue of Article 25 of the UN Charter, all member states are obliged to "accept and carry out the decisions of the Security Council." Therefore, the resolutions create an obligation on states to support the tribunal by fulfilling requests for assistance including the execution of law enforcement tasks by the armed forces of that state. In another development of international criminal practice, the International Criminal Court (ICC) was established in an attempt to ensure that crimes would no longer be committed with impunity. States party to the Rome Statute 19 of the ICC are obliged, in accordance with Article 86 of the Statute, to "cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court."

5.

Rules of Engagement (ROE)

In line with the recommendations of the Report of the Panel on United Nations Peace Operations,20 it is becoming more evident that Security Council resolutions will specify more clearly the objectives of the mission and, in particular, describe the occasions when the PSF may use force. In complex operations, the mandate may provide specifically that the PSF is to protect civilians and property. This clears up some of the uncertainty created by the principle of neutrality, which had been interpreted as preventing military peacekeepers from using force except in self-defense of the Force. This had terrible consequences when PSF and political commanders felt constrained by the principle during the massacres in Srebrenica, Rwanda and Congo. Recent resolutions have been very specific about the tasks under the mandate. 21 Now, PSFs may be specifically authorized to use force to protect PSF mission property, UN property and personnel and civilians. This can be interpreted as authorizing the use of force in preemptive self-defense against an anticipated attack when there is compelling evidence that an attack is imminent. 22

UN Doc. A/CONF. 183/9, reprinted in 37 ILM 999 (1998). UN Doc. A/55/305-S/2000/809. 21 See specific tasks that include the protection of civilians in SC Res. 1484, adopted by the Security Council at its 4764th meeting, on May 30, 2003, S/Res11484 (2003) (Congo); 1542 (2004), supra note 5 (Haiti) and SC Res.I528 (2004), supra note 5 (Ivory Coast). 22 See the International Peace Academy (IPA)-UNDPKO Workshop Report on the Use of Force in UN Peacekeeping Operations, Feb. 6, 2004 and the UNDPKO Best Practices Unit Report, Operation Artemis: The lessons of the Interim Emergency Multinational Force, October 2004, which describe the Uruguayan Battalion's insistence that since MONUC's mandate was authorized under Chapter VI, the Force could not use force except in self-defense but a later SC Res. 1291, supra note 13, at 9, provided for 19

20

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Therefore, the current trend may be to replace perceived constraints under the stifling principle of neutrality in peacekeeping with more robust and proactive guidance, which allows a PSF to project and use force to establish impartiality; whereas "neutrality has merely rendered UN forces impotent eyewitnesses to genocide. Impartiality implies that all who behave badly will be dealt with in the same way."23 In these circumstances, it is arguable that it is now becoming less important to interpret the difference between those PSOs that are authorized under UN Charter Chapter VI or Chapter VII to imply differences in rules of engagement for the use of force to protect civilians. Care should be taken to design ROE to defend civilians in an area where an armed conflict is taking place. Where the PSF is engaged in operations under a Chapter VII mandate, but not as a party to the conflict,24 the authorized ROE should restrict the use of force to occasions that cannot be interpreted as the PSF taking an active part in the hostilities as a party to the conflict.2s There is likely to be a fine distinction between engagement as a non-party and as a party when preemptive self-defense operations are conducted. In situations where there is no armed conflict, operation plans may include explicit orders and ROE that limit the PSF or troop contributing nation's (TCN) personnel from engaging in law enforcement operations. Nations have different, sometimes conflicting, legal or policy considerations or interpretations of international law in relation to the use of force and the weapons that may be employed in certain situations. Further, there may be restrictions when lethal force may be used for self-protection, protection of the force and its property, the protection of civilians, and MONUC's rules of engagement allowed the use of force for preemptive self-defense against an anticipated attack. 23 IPA-UNDPKO Workshop Report, supra note 22. 24 See Secretary General's Bulletin, Observance by United Nation's forces of international humanitarian law, UN Doc. ST/SGB/1999/13, Aug. 6,1999, Section 1.2, at http://www.un.org/peace/st_sgb_1999_13.pdf(last visited Aug. 23, 2005) [hereinafter Secretary General's Bulletin], explaining that the "Bulletin does not affect the protected status of members of peacekeeping operations under the 1994 Convention on the Safety of United Nations and Associated Personnel or their status as noncombatants as long as they are entitled to the protection given to civilians under the international law of armed conflict." 25 Note that the protections afforded to UN and Associated Personnel by the Convention on the Safety of the United Nations and Associated Personnel, UN Doc. A/49/49 (1994) may be lost. See Section 2.2., which provides, "this Convention shall not apply to a United Nations operation authorized by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies." The Convention came into force on Jan. 15, 1999. See http://www.un.org/law/cod/safety.htm (last visited Aug. 24, 2005).


9

or protection of non-force personnel and property. PSF personnel may have to follow the domestic law of their nations that restricts the use of lethal force to protect property or the use of non-lethal weapons such as riot control agents, whether during armed conflict or not. While multinational force or lead nation ROE may allow the use of lethal force to protect property or persons when designated with special status, national constraints may mean that particular national contingents will apply the ROE more strictly.26 This will be considered further in the section dealing with the use of force and human rights obligations. More strategic restrictions may be borne of domestic legislation that either restrict the use of national forces to certain types ofPSOs and/or circumscribe the scope of their duties. 27 Some nations have posse comitatus 28 type legislation, which, in effect, prohibits the use of troops entirely, or allows only military police, to conduct law enforcement duties. It is a matter of domestic law whether these restrictions relate only to a domestic situation29 rather than where forces act under the authority of an international organization or the United Nations. Therefore, military forces engaged in peacekeeping/peace-building operations will have to explore whether domestic law allows law enforcement tasks and whether the applicable PSF, and contributing nation military plans, allow for close cooperation 30 with law enforcement and judicial authorities. If law enforcement duties are to be conducted, it is important to establish procedures for and to train personnel to comply with the applicable law, international stan-

26 These matters may have been disclosed during negotiations for troop contributions. 27 See discussion at Part III of Challenges of Peace Operations into the 21st Century, 1997-2002, ajoint study conducted by partner organizations from 14 leading peace operations countries, at http://www.peacechallenges.net/roach/CONCLUDING_REPORTS.do?pageId=52 (last visited Aug. 18, 2005). 28 Literally, the "power of the county." In this context, it is used to mean the prohibition against the use of military forces for law enforcement purposes or the execution or enforcement of civilian law by military forces of the state. The principles behind this historic division between civilian and military roles include: the maintenance of civilian superiority over the military, the enhancement of military readiness and to prohibit the use of military forces in a domestic setting where it is not warranted by the exigencies of the situation. 29 For an example of territorial limitations of the rule, see Chandler v. United States, 171 F.2d 921,936 (1st Cir. 1950), where the court held that "unwarranted to assume that such a statute was intended to be applicable to occupied enemy territory, where the military power is in control and Congress has not set up a civil regime." 30 Assuming that national caveats/restrictions do not proscribe such activity. For an open source description of the command structure and national restrictions of troop contributing nationslNATO led operations, see the European Commission for Democracy through Law (Venice Commission) Report, CDL-AD (2004)033, Opinion on Human Rights in Kosovo: Possible establishment of Review Mechanisms, paras. 16 and 79.

10


dards of human rights and principles derived from international humanitarian law (IHL). Military operations and individual missions are likely to be judged against these criteria.

II. APPLICABLE PRINCIPLES OF INTERNATIONAL HUMANITARIAN AND HUMAN RIGHTS LAW A key to mission success must be the maintenance of legitimacy through the observance of international standards of human rights and the rule of law. The PSO is accountable for its actions and the behavior of its personnel. UN forces are guided by the Secretary-General's Bulletin 3 ! to apply fundamental principles and rules of IHL during armed conflict, enforcement actions and peacekeeping operations. 32

A.

International Humanitarian Law

When the PSF is engaged in operations pursuant to a Chapter VI or Chapter VII of the UN Charter, particular provisions of the Geneva Conventions33 may apply where there is an armed conflict. It is being a party to an armed conflict and not the particular mandate that is determinative. The Secretary-General acknowledged that UN forces, and those under unified command, may be deployed under UN auspices to engage in or become involved in an armed con3! Secretary General's Bulletin, supra note 24, section 1. See also SC Res. 1265, adopted by the Security Council at its 4046th meeting, on Sept. 17, 1999, relating to the protection of civilians, where the Security Council urged parties to conflicts to respect international humanitarian, human rights and refugee law. 32 Secretary General's Bulletin, supra note 24, Section 1.1. provides that "the fundamental principles and rules of international humanitarian law set out in the present bulletin are applicable to United Nations forces when in situations of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement. They are accordingly applicable in enforcement actions, or in peacekeeping operations when the use of force is permitted in self-defence." 33 Geneva Conventions, signed Aug. 12, 1949, and the two additional Protocols of June 8, 1977. Convention I, For the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, Aug. 12, 1949. Convention II, For the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, Aug. 12, 1949. Convention III, Relative to the Treatment of Prisoners of War, Geneva, Aug. 12, 1949. Convention IV, Relative to the Protection of Civilian Persons in Time of War, Geneva, Aug. 12, 1949 [hereinafter IVGC]. Protocol I, Additional to the Geneva Conventions of Aug. 12, 1949, and relating to the Protection of Victims of International Armed Conflicts, June 8, 1977 [hereinafter AP IJ. Protocol II, Additional to the Geneva Conventions of Aug. 12,1949 [hereinafter AP IIJ, and relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977.


11

flict.3 4 The United Nations and regional organizations are not states and therefore are not parties to the Geneva Conventions or the Additional Protocols thereto, but TCNs may well be. The forces of individual troop contributing nations that are high contracting parties to the Geneva Conventions are bound by these provisions when party to an armed conflict, even if another party to the conflict is noPs Where the PSF or the forces of a contributing state are not involved in an armed conflict, the applicable provisions may be used as guidance when conducting PSOS.36 In particular, where the PSO is mandated to exercise the powers of a transitional authority, the situation has similarities with IHL that applies to occupying powers. It is an inescapable fact that, where an area or territory is placed under the authority of a PSO, the PSF may be empowered to exercise an element of authority over persons in that area or territory. This may suffice to trigger the application of Article 2 of IVGC and the applicable provisions relating to the law of occupation, which establishes certain rights and duties between the occupying power and the civilian population. 37 Whether in strict law the situation demands that the law of occupation applies or not, the principles derived from these provisions may serve as a guide to the minimum standards that should be applied while administering the territory and may be consulted in cases where the Force is conducting security or other operations. 38 ----

--~-.-~-.----

See Secretary General's Bulletin, supra note 24. 35 See Common Article 2 to the Geneva Conventions. Also, see Common Article 1 to the Geneva Conventions that provides that states parties "to respect and ensure respect for the present Convention in all circumstances." See J-M. Henckaerts, "Study on Customary International Humanitarian law," 87.857 International Review of the Red Cross Rule 140, at 310 (Mar. 2005). 36 Alexandre Faite & Jeremie Labbe Grenier (eds.), The Report of the Expert Meeting On Multinational Peace Operations Applicability of International Humanitarian Law and International Human Rights Law to UN Mandated Forces [hereinafter Report of the Expert Meeting-ICRC], Geneva, Dec. 11-12,2003, at 24-25, for examples of forces that have acknowledged that they were guided by international humanitarian law in the conduct of military operations. 37 Report of the Expert Meeting-ICRC, supra note 36, at 13-14, notes that the experts pointed out, regarding de jure applicability, "that international humanitarian law and the law of occupation apply independently of the legitimacy of the intervention, and drew attention to the traditional separation between jus ad bellum and jus in bello. In principle, therefore, the legal basis for the occupation is irrelevant to the question of applicability of the Fourth Geneva Convention. It does not matter whether occupation takes place by only one or several States, or withi;J- the framework of a UN mandate." Executive Summary, at .2. available at http://www.icrc.org/Web/Eng/siteengO.nsf/htmla1ll5UPD5E/$File/ReporCMultinat]eace_Ops_TOGO.pdf (last visited Aug. 26, 2005). 38 See the application of international humanitarian law to Australian Defense Force operations in East Timor as part ofINTERFET pursuant SC Res. 1264 (1999), S/RESI1264, Sept. 15, 1999, as discussed in "Legal Aspects of Australia's Involvement in the International Force for East Timor," 841 International Review of the Red Cross 101 (1999). 34

12


The law of occupation is contained in the Hague Regulations of 1907,39 the IV Geneva Convention of 1949 40 (IVGC), and Additional Protocol I of 1977 (AP I). Finally, the humanitarian safeguards arising from certain provisions of Additional Protocol II of 1977 (AP II), which supplements common Article 3 to all the Geneva Conventions, should be considered for two reasons. Firstly, the situation is not one that demands the observance of any particular convention by strict application of the law, but it is intended to form the principles that may guide action. Secondly, it is Part II of AP II that is of note because that part imposes human rights provisions, namely humane treatment.

B.

International Human Rights law

International human rights law may apply both in times of war and peace. 41 These laws comprise international and regional standards that include treaties, conventions, protocols, declarations and other instruments. They articulate broad guarantees regarding the rights of all human beings and include the Universal Declaration of Human Rights42 (UDHR) (1948), the International Covenant on Civil and Political Rights 43 (ICCPR) (1966), and the European Convention on Human Rights44 (ECHR) (1950). There are a number of ways in which human rights laws may be imported into a peace enforcement operation. It has been argued that since the Security Council resolution deploys the PSO under the auspices of the United Nations, all members of the UN Mission and the associated components should comply with the purposes of the United Nations, including the promotion of human rights, whether or not the resolution provides so specifically.45 Also, the prin39 Arts. 42~56, Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, the Hague, Oct. 18, 1907 (Hague Regulations). 40 IVGC, supra note 16, arts. 27~34 and 47~78. 41 See International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. Advisory Opinion, July 9, 2004, para. 106, where the court confirmed that "the protection offered by human rights conventions does not cease in case of armed conflict." 42 Adopted and proclaimed by GA Res. 217 A (III), Dec. 10, 1948. 43 6 ILM 368 (1967). 44 GA Res. 2200A XXI, 999 UNTS 171, Dec. 16, 1966 (entered into force May 23, 1976), reprinted in Convention for the Protedtion of Human Rights and Fundamental Freedoms, Council of Europe Treaty Series No. 005 (CETS No. 005), as amended and replaced by Protocol No. II (CETS No. ISS) as from the date of its entry into force on Nov. 1, 1998. 45 See John Cerone, "Minding the Gap: Outlining KFOR Accountability in PostConflict Kosovo," 12.3 European Journal of International Law 469, 474 (2001).


13

ciple of automatic succession for human rights obligations may imply that the UN Mission, which exercises the functions of a public authority in a territory, may be bound by those obligations assumed by the former government where the territory remains part of that sovereign state. This would include a PSF that is granted executive powers to maintain security.46 However, the final and more appealing argument is that troop contingents may be bound by the human rights obligations of their sending states, thus making the individual state accountable and, possibly, subject to remedy. In relation to troop contingents of states parties to the European Convention of Human Rights, the contracting state may be held responsible for acts or omissions that amount to an unlawful interference of an individual's rights and freedoms set forth in the Convention, that occur within their jurisdiction.47 As observed by the ECHR in the Issa case: State's responsibility may be engaged where, as a consequence of military action-whether lawful or unlawful-that State in practice exercises effective control of an area situated outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control, whether it be exercised directly, through its armed forces, or through a subordinate local administration. 48 The rationale is that the jurisdiction requirement under the Convention cannot be interpreted so as to allow a state party to perpetrate violations of the Convention on the territory of another state, which it could not perpetrate on its own territory.49 More importantly for present purposes, a state may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State, but who are found to be under the former state's authority and control through its agents operating-whether lawfully or unlawfully50-in the latter state. 51 46

!d. at 474.

See llascu and Others v. Moldova and Russia, [GC], No. 48787/99, § 311, ECHR 2004. 48 See Issa and others v. Turkey, Application No. 31821/96, Judgment, Nov. 16, 2004, para. 69, at http://cmiskp.echr.coe.int/tkpI97 /view.asp?item= l&portal=hbkm& action=html&highlight=bankovic&sessionid=3596766&skin=hudoc-en (last visited Aug. 26, 2005). It must be noted that this decision is criticized for imposing duties outside of the "legal space" of the ECHR and is in conflict with another decision of the same Court. See infra note 54. 49 Id., para. 71. 50 Under international law, a "State is responsible for the acts of its agents undertaken in their official capacity and for their omissions, even when those agents act outside the sphere of their authority or violate internallaw": Velasquez-Rodriguez, judgment of July 29, 1988, Inter-AmCHR (1988) Series C, No.4, at paras 169-170. 51 Issa, supra note 48, para. 71. 47

74


A similar approach 52 has been adopted by the Human Rights Committee for breaches ofICCPR and the Inter-American Commission on Human Rights for obligations under the American Declaration of the Rights and Duties of Man. 53 However, the ECHR made the determinations in a European context and the ICCPR is not universally ratified. Furthermore, whether a human rights convention can reach outside its "legal space" is in question. 54 Therefore, it remains in doubt whether the extraterritorial application of human rights obligations can apply to all PSOs. Nevertheless, if it applies, the forces of a troop contributing state may be considered agents of the state, and the actions of these troops may be assessed in accordance with the obligations in the relevant human rights document wherever they are operating.

C. PSF Immunity

An enforcement operation authorized under a Security Council resolution mandate often causes controversy when the acts of the PSF are assessed against human rights obligations. The operation carried out under a Security Council resolution does not change how IHL or human rights laws may apply, though it may affect whether they are enforceable. PSFs are generally accorded the privileges and immunities from process by courts of member states and other international institutions. This may be done through the application of the UN Charter, the Convention on the Privileges and Immunity of the United Nations,55 status of forces agreements (SOFA) or memoranda. The purpose of the privilege is to ensure that the Force can perform its tasks without undue and uncoordinated interference by courts from individual states and other international institutions with their respective different legal systems. There is, however, a difference between the immunity of an international organization as such and the immunity of its individual state representatives. Individual state accounta-

52 See the views adopted by the Human Rights Committee on July 29,1981 in the cases of Lopez Burgos v. Uruguay and Celiberti de Casariego v. Uruguay, Nos. 52/1979 and 56/1979, at §§ 12.3 and 10.3; and Coard et al. v. the United States, the Inter-American Commission of Human Rights decision of Sept. 29, 1999, Report No. 109/99, Case No. 10.951, §§ 37,39,41 and 43. 53 OAS Res. XXX, adopted by the Ninth International Conference of American States (1948), at OEA/Ser.L.V/II.82 Doc. 6 Rev. 1 (1992). 54 European Court of Human Rights, Bankovic a. o. v. Belgium and 16 Other Contracting States, Dec. 12,2001, Application No. 52207/99, admissibility decision (rejected). The Court stated that: "the Convention is a multi-lateral treaty operating [... J in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States. [... J The Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States." 1d., para. 80. 55 Adopted by the General Assembly on Feb. 13, 1946.


15

bility is the issue. Considering that TCNs retain significant control over their forces when placed under unified command of a lead nation or regional organisation, there is likely to be sufficient authority and control imparted by the sending state to find that they have jurisdiction over the acts committed by their forces. Even if a TCN devolves a higher degree of command and control to an international organization, it is doubtful whether the individual state can claim to be shielded from the application of enforcement provisions in human rights treaties. They may be accountable for having freely entered into a multinational operation if human rights violations result. 56 Indeed, the absence of a means to obtain remedy for any violation and a lack of accountability would contradict the aims of human rights law.

D. Derogations Individual states may enter derogations to certain human rights obligations in accordance with the provisions of the relevant treaty during times of public emergency, though certain rights are non-derogable. 57 The level of emergency required is placed at a high level.5 8 However, it is doubtful that derogations can be made by a state and be limited to the area where their troop contingent is operating during a PSO.

56 See Waite and Kennedy v. Germany (Judgment), Application No. 26083/94 Feb. 18, 1999, para. 67 where the court "is of the opinion that where States establish international organizations in order to pursue or strengthen their cooperation in certain fields of activities, and where they attribute to these organizations certain competencies and accord them immunities, there may be implications as to the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention, however, if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution. It should be recalled that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective." 57 ICCPR, supra note 43, art. 4(1); ECHRsupra note 44, art. 15(2) and American Convention on Human Rights, OAS Treaty Series No. 36, 1144 UNTS 123, entered into force July 18, 1978 (ACHR), art. 27(2). 58 See General Comment No. 29, issued by the UN Human Rights Committee in 2001, which confirmed that human rights can be derogated from only in emergency cases and placed the threshold for such emergency situations very high. Indeed, "even during an armed conflict measures derogating from the Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the nation" (General Comment 29, States of Emergency (Article 4), UN Doc. CCPRlC/211Rev.lIAdd.ll (2001».

16

E.


Justifications for Necessity

Certain rights may be interfered with in certain circumstances where the necessity to do so outweighs the right interfered with. These include justifications that are stated in various ways but include: in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of rights and freedoms of others. 59 In order to apply this reservation, the PSF should consider that the closer the situation reaches normality, the more difficult it is to justify operations that interfere with certain rights. Where the right requires that necessary interference is done in accordance with law, civilian law enforcement authorities should be encouraged to assume an increasing competence in enforcing the law and take over more of the internal security duties as their capacity and the security situation allows. In any case, the PSF should use force reasonably and to the extent necessary to complete the task.

F.

Assessment

The law of occupation provides a framework for administering a territory, establishes duties for the PSF and imposes non-derogable humanitarian safeguards. However, where IHL is in conflict with human rights law, for example the remedy of habeas corpus, IHL should outweigh human rights obligations where it applies stricto sensu. 60 Clearly, the application of human rights in the context of special situations that arise out of complex missions poses an enormous challenge for a PSF commander. The PSF may enter a theater of operations where the legal status is post-conflict and not armed conflict but the security environment is similar. The Force will have to balance the necessity to establish security by applying robust ROE bUT, at the same time, consider to what extent human rights law impacts enforcement operations in relation to the means and methods used, and under which circumstances they may be carried out. Security tasks are closely allied to the prevention and detection of crime and may involve restraint and detention operations, searches and the seizure of items in order to maintain a secure environment. How the limitations described above impact certain security operations will be discussed in the following part, which will focus on the experience in Kosovo. 59 60

See for example, ECHR, supra, art. 8. On a lex specialis application of international humanitarian law.


77

III. ELEMENTS OF LAW ENFORCEMENT-A KOSOVO PERSPECTIVE

A.

Immediate Actions

After NATO's military intervention in Serbia during MarchlJune 1999, Serbian forces withdrew from the semi-autonomous province of Kosovo pursuant to a Military Technical Agreement. 61 This gave operational space for the NATO-led peacekeeping force to execute a mandate provided by Security Council Resolution 1244.62 Immediately after the withdrawal of the Serbian Forces, the Kosovo Liberation Army (KLA) assumed responsibility for internal security functions. Even while the KLA was undergoing demilitarization63 during the summer of 1999, it was the de facto body taking charge of law and order in many parts of the province. Under the mandate, the international security presence,64 known as KFOR, had the responsibility to maintain public safety and order until the international civilian presence, otherwise known as UNMIK,65 could take over. 66 Acting as a rudimentary police force, KFOR conducted law enforcement duties. It was assisted initially by a small UN Civilian Police Force (CIVPOL) detached from the International Police Task Force in Bosnia. 67 On June 30, 1999, KFOR had 23,518 troops in the province,68 and there were 38 international civilian police officers. 69 The murder rate was 50 persons per week. 70 By November 1999, of 61 Military Technical Agreement signed by the International Security Force (KFOR) and the military representatives of the Federal Republic of Yugoslavia and the Republic of Serbia on Wednesday June 10, 1999. 62 SC Res. 1244 (1999), supra note 2. 63 Undertaking of Demilitarization and Transformation by the UCK, June 20, 1999, at http://www.nato.intlkfor/kfor/documents/pdf/uck.pdf (last visited Aug. 25, 2005). 64 The term used in SC Res. 1244, supra note 2, for the PSF, more commonly known as Kosovo Force, or KFOR. 65 The United Nations Interim Administrative Mission in Kosovo established as the "International Civilian Presence" under SC Res. 1244, supra note 2 [hereinafter UNMIK]. 66 SC Res. 1244, supra note 2, para. 9(d). 67 UNMIK/PR/4: Press Release, June 28, 1999, at http://www.unmikonline. org/press/press/pr4.html (last visited Aug. 6,2005. Under SC Res. 1244, supra note 2, para. II(i), CIVPOL had executive police powers in Kosovo and were not merely police monitors. Later, CIVPOL were joined by members of the Kosovo Police Service and are known as UNMIK Police. 68 Just over half the size of Wales and around 2 million inhabitants. 69 Letter from UN Secretary-General to the President of the Security Council, UN Doc. S/1999/767,Ju\y 8,1999. 70 NATO, NATO Factsheets-Kosovo Facts and Figures, as of27 November 2000, updated on Dec. 5, 2000, at http://www.nato.int/docu/facts/2000Ikosovo-ff.htm (last visited July 27, 2005).

18


the 6,000 CIVPOL requested by the Security Council, 1,900 police officers were deployed. In order to establish a sense of order, UNMIK very quickly took steps to deal with the climate of impunity and lawlessness. However, in June 1999, the applicable law was uncertain. UNMIK passed Regulation 199911 71 to vest in itself, all legislative and executive authority with respect to Kosovo, including the administration of the judiciary. It also provided that the laws enacted prior to March 24, 1999,72 would be in force so long as they were consistent with international human rights standards. This caveat heeded, in principle,73 the provisions in the IVGC of 1949 74 relating to passing penal laws, that laws may be amended that are unreasonable, cruel, inhumane or discriminate. Immediately, the majority ethnic Albanian legal community in Pristina expressed their deep concern that this body of law would include discriminatory "Serbian" laws that were passed since 1989. Unfortunately, these laws included many Serb wartime emergency powers that violated peacetime human rights standards. The few recently appointed ethnic Albanian judges and prosecutors rejected them and continued to use the Kosovo Criminal Code that was repealed in 1989, but adopted the Yugoslav Criminal Procedure Code and elements of the Yugoslav criminal code that provided for war crimes. 75 This maintained the legal confusion. 76 UNMIK issued a statement on July 4, 1999 to reiterate KFOR's mandate under Security Council Resolution 1244 to ensure public safety, civil law and order until UNMIK could take full responsibility for this and that KFOR had

71 UNMIK Regulation 1999/01, July 25,1999, entered into force July 24,1999, but deemed to have been in force since June 10, 1999, at http://www.unmikonline.org/regulations!l999/re99_0 l.pdf (last visited Aug. 26, 2005). 72 At the insistence of the Russian government, see Simon Chesterman, Report of the International Peace Academy, Justice under International Administration: Kosovo, East Timor and Afghanistan, Sept. 2002, at http://www.ipacademy.org/Publications/ Publications.htm (last visited Aug. 22, 2005). 73 As discussed above, this study takes no position whether UN peace operations involving transitional administrations should or must comply with the laws of occupation but they may serve as guidelines. 74 IVGC, supra note 16, art. 64. 75 For a report on the use of International Judges and Prosecutors to seize control of the war crimes prosecutions initiated by the ethnic Albanian judges and prosecutors, see Michael E. Hartmann, International Judges and Prosecutors in Kosovo: A New Modelfor Post-Conflict Peacekeeping, Special Report of the United States Institute of Peace, at http://www.usip.org/pubs/specialreports/srI12.pdf (last visited June 26, 2005). 76 Eventually, there was a revision of the Regulation in UNMIK Regulation 1999/24, Dec. 12, 1999, declaring that the laws in force on Mar. 27,1989 would be the applicable law in force, at http://www.unmikonline.org/regulations!l999/re99_24.pdf (last visited Aug. 25, 2005).


19

the right to apprehend and detain persons suspected of offenses against public safety and order, including murder, rape, kidnapping, arson or war crimes.7 7 This message evidences the intent to fulfill the mandate and to comply with the obligation in the Hague Regulations for the occupying authorities to restore and ensure, as far as possible, public order and safety.78 To assist this aim, UNMIK passed Regulation 1999102 on August 12, 1999, to provide that the relevant law enforcement authorities: may temporarily remove a person from a location, or prevent access by a person to a location, if this is necessary in the opinion of the law enforcement authorities and in light of the prevailing circumstances on the scene, to prevent a threat to public peace and order. 79 This is within the remit of an occupying power under the provisions of IVGC to subject the population to provisions that are essential to enable it to fulfill its obligation to maintain orderly government of the territory,80 and, subject to the reservations to the minimum standards of treatment of protected persons, to take necessary measures of control and security.81 The short term of restraint provided under this Regulation, which limited it to a maximum of 12 hours, is generally consistent with what was necessary. KFOR contingents were assigned areas of responsibility and displayed force through presence on the ground. However, for a multitude of reasons, KFOR could not curb the displacement and killings of Kosovo's minorities in the first months. 82 A significant number of people disappeared, some seen to be taken by persons who appeared to be KLA soldiers. These disappeared include ethnic Albanians, purportedly for having collaborated with the Serbian Forces during the internal struggle. 83 KFOR troops were immediately involved in restraining and detaining those who destroyed homes and buildings, committed homicide, arson and rape. Where the arrest of a civilian is conducted during a post-conflict emergency situation, the obligations and standards of treatment found at Article 75 77 UNMIKlPRJ7 Press Release, July 4,1999, at http://www.unmikonline.org/press/ press/pr7.html (last visited Aug. 6,2005). 78 Supra note 39, art. 43. 79 Article 1.1., UNMIK Regulation 1999/02, at http://www.unmikonline.orglregulationsll999/re99 _02.pdf (last visited Aug. 28, 2005). 80 IVGC, supra note 16, art. 64, para. 2. 81 !d., art. 27, para. 4. 82 See Chapter 17, Human Rights Watch Report, Under Orders: War Crimes in Kosovo [hereinafter Under Orders], at http://www.hrw.org/reportsI2001/kosovo/undword2c.html (last visited Aug. 25, 2005). 83 See Amnesty International's Recommendations for UNMIK, EUR 701006/2000, Feb. 4, 2000, at http://web.amnesty.org/library/Index/engEUR700062000 (last visited Aug. 6, 2005).

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of Additional Protocol 184 may guide the actions of PSF personnel. The arrested person shall be informed promptly, in a language he understands, of the reasons why these measures have been taken and, except in cases of arrest for penal offenses, such persons shall be released with the minimum delay possible and, in any, event as soon as the circumstances justifying the arrest or detention have ceased to exist. 85 There are special provisions for the treatment ofwomen86 and children 87 in AP 1. In any event, the PSF must act humanely88 and should ensure that they respect IHL and international standards of human rights. Also, the national law of the territory should apply where it exists and the PSF should facilitate any subsequent criminal proceedings in order to comply with "the fundamental notion to respect the applicable local law: that the penal legislation in force must be respected by the Occupying Power."89 Where there is no threat to force protection or otherwise to its own security, the local penal code and rules of procedure should be applied. 90 In terms of the law of occupation, the 1VGC provides a further restriction that occupying powers may not prosecute and punish protected persons for acts, other than breaches of the laws and customs of war, that they are alleged to have committed before the territory was occupied. 91 In practice, permitting persons accused of committing offenses prior to entry to remain at large may encourage violent acts of revenge and impact the PSF's ability to maintain peace and security. Revenge occurred in Kosovo. Immediately after KFOR entered Kosovo, the ethnic Serbian and Roma minority, a large number of which were believed to have collaborated with the Serbian forces, were harassed, beaten and driven out of their homes, which were then burned.92 The Secretary-General's Special Representative93 (SRSG) reported in December 1999 that: 84 Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and relating to the Protection of Victims ofInternational Armed Conflicts (I 977) (Protocol I), UN Doc. A/321I44, Aug. 15, 1977. [hereinafter AP 1]. 85 !d., art. 75, para. 3. 86 Jd., art. 76. 87 Id., art. 77. 88 Including the standards in Common Article 3 to the Geneva Conventions 1949. 89 See Jean S. Pictet (ed.), Commentary to the Geneva Convention IV of 12 August 1949, ICRC, 1958, (first reprint, 1994, Geneva), art. 64, at 335. 90 IVGC, supra note 16, art. 64, para. I; Hague Regs, supra note 79, art. 43. 91 IVGC, supra note 16, art. 70. 92 Under Orders, Chapter 17, supra note 82, reports that the "KLA and ethnic Albanian civilians carried out widespread burning and looting of homes belonging to Serbs, Roma and other minorities, and destroyed many Orthodox churches and monasteries in the immediate aftermath of KFOR's arrival in Kosovo. Attackers combined this destruction with killings, harassment and intimidation designed to force people from their homes and communities, a pattern which continues today. Members of minority groups in Kosovo have been detained, beaten, and sometimes tortured, with as many as 1,000 Serbs and Roma reported unaccountcd for after abductions since the end of the conflict." 93 Dr. Bernard Kouchner.


27

young people, some only 10 or 12 years old, harassing, are beating and threatening people, especially defenceless elderly victims, solely because of their ethnicity. This cruel behaviour cannot be accepted. Sometimes adults use children to commit abuses because the adults know that KFOR will not detain juveniles since there is no juvenile detention facility. 94 Where suspects were detained, most were released within a few days for there were inadequate facilities to house them. The SRSG95 stated that: killings, kidnapping, forced expulsions, house burnings and looting are a daily occurrence. These are criminal acts. They cannot be excused by the suffering that has been inflicted in the past. Kosovo's future must be built on justice, not vengeance. 96 The general population, in particular the minority ethnicities, were not "at all times protected against all acts of violence or threats thereof,"97 nor were they guaranteed the right to life, liberty or security,98 and certainly, the freedom of movement was circumscribed. 99 KFOR was greatly disadvantaged in trying to enforce the rule oflaw through justice, in part because the applicable laws were not in a language most contingents could understand. There was confusion over the legal procedure and its application was unacceptably slow as it required an investigating judge to take evidence. There were very few judges and no local police force. Prior to the conflict, most of the police, prosecutors and judges in Kosovo were Serbian, due to the purges and resignations of the ethnic Albanians in 1989 and the early 1990s. 100 When the Serbian forces left, so did the justice sector. UNMIK very quickly appointed five judges and three prosecutors on June 30, 1999, to deal with the 221 suspects KFOR had detained in the first three weeks of entry into KoSOVO IOI and to enforce the law that had recently been dec1ared. 102

94 In the forward to OSCE Mission in Kosovo Report, On the Human Rights Situation in Kosovo 1999. 95 Sr. Sergio Vieira de Mello. 96 UNMIKlPRl9 Press Release, July 24, 1999, at http://www.unmikonline.org/ press/press/pr9.html (last visited Aug. 6, 2005). 97 IVGC, art. 27. 98 Universal Declaration of Human Rights (UDHR), art. 3, adopted and proclaimed by GA Res. 217 A (III), Dec. 10, 1948; ECHR, supra note 44, art. 5 and ICCPR, supra note 43, art. 6. 99 UDHR, supra note 98, art. 13( 1). 100 Hartmann, supra note 75, at 3. JOI UNMIK/PR/5 Press Release, June 30, 1999, at http://www.unmikonline. org/press/press/pr5.html (last visited Aug. 6, 2005). 102 See UNMIK Regulation 1999/01, supra note 71.

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In relation to war crimes, there were very few KFOR personnel who could undertake the patient and detailed investigation tasks required. In the majority of cases where allegations and reports of war crimes were received, they could not be investigated. In any case, KFOR was not logistically configured for large scale investigations. This created problems for war crimes prosecutions conducted in the Kosovo courts that came later. Witnesses' memories faded, stories were embellished and some were concocted. Without a comprehensive and detailed statement taken near the time of the offense, witnesses' credibility and reliability were easily challenged. Many cases are unlikely to reach the evidentiary standard required for an indictment. A significant number of cases remain unsolved and are still under investigation. The sheer volume of reports was overwhelming. Where KFOR troops were active in conducting investigations into alleged war crimes, the statements were, in most cases, disclosed to investigating authorities including representatives from the ICTYI03 and UNMIK Police. In the circumstances, UNMIK and KFOR delegated the obligation to investigate grave breaches of the Geneva Conventions 104 to the ICTY, which was supported by investigators 105 and forensics teams seconded from national police and other forces. I06 KFOR troops were assigned to secure investigation sites and provided protection to these investigators. Numerous international and national non-governmental organizations (NGOs) began to interview the victims and their families. It was reported that: by December 1999, over 500 mass grave and killing sites were recorded by the ICTY, KFOR and other international organizations. The total number of bodies reported to the ICTY at over 500 gravesites was over 11,000. Of these 500-plus sites, the ICTY confirmed completion of field investigations at about 200 sites, as of early November 1999. International Criminal Tribunal for the Former Yugoslavia. Art. 146, para. 2, "Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to anotru:.r High Contracting party concerned, provided such High Contracting Party has made out a prima facie case." 105 For example, a team of 56 Federal Bureau ofInvestigation personnel-including Special Agents, crime scene investigators, scientists, and forensic experts-and four forensic specialists from the Armed Forces Institute of Pathology (AFIP) were sent to Kosovo to begin searching for evidence of war crimes at two sites where the bodies of victims of alleged atrocities were found. See the Press Statement of the US FBI Director, June 23, 1999, at http://www.fbi.gov/pressrellpressreI99/kosovol.htm (last visited Aug. 28,2005). 106 The teams were deployed by 15 nations: Austria, Belgium, Canada, Denmark, Finland, France, Germany, Iceland, Luxembourg, Netherlands, Spain, Sweden, Switzerland, the United Kingdom and the United States. 103

104


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Over 2,100 bodies had been confirmed to be found by investigators at over 160 sites, or an average of about 11 bodies per site. lo7 According to Carla del Ponte, the ICTY Chief Prosecutor, 526 mass graves have been identified in Kosovo and more than 4,000 bodies have been exhumed. Investigators have found evidence that, in some cases, bodies were removed from mass grave sites before the arrival of international teams. 108 Overall, KFOR and UNMIK were under-prepared to fulfill its obligations qua occupying power. 109 The armed conflict was over, and the withdrawal of Serbian forces was completed within the time frame agreed. On entry into Kosovo, there was no credible and manned police force and no functioning judicial and penal system. There was insufficient KFOR personnel to contain all the violence that erupted. There was no immediately available and dedicated law enforcement component to the UN Mission to deal with the high level of crime and public disorder directly after the cessation of hostilities, and there was a lack of appreciation of the status of the judicial sector and its capacity. The PSF was predominately a combat force ready to enforce the provisions of the MTA, not specifically configured to confront post-conflict turmoil and undertake transitional law enforcement duties.

B. Transition to Normality-Law Enforcement Activity Once the environment transitions towards normality, or at least where there is no widespread disorder or lawlessness, the PSF should routinely consider whether exigent circumstances exist to justify interfering with individual rights. There is likely to be a divergence of opinion when assessing whether the environment is secure enough so that the force should desist from exercising its authority to use all necessary means to fulfil its mandate and comply fully with international human rights standards. During the initial phases ofthe PSO, KFOR apprehended and detained persons suspected of having committed offenses against public safety and order, including serious offenses. Following the disintegration of law and order that was the aftermath of the conflict, KFOR retained the power to take action where

107 See US State Department Report, December 1999, at http://www.ess.uwe. ac.uk/Kosovo/Reports/atrocit.html (last visited Aug. 28, 2005). 108 NATO Factsheets, supra note 70. 109 R. Jeffrey Smith, "Kosovo Still Seethes as U.N. Official Nears Exit," The Washington Post, Dec. 18, 2000, at 20, reporting the departing speech of SRSG Bernard Kouchner: "peacekeeping missions need a judicial or law-and-order "kit" made up of trained police officers, judges and prosecutors, plus a set of potentially draconian security laws or regulations that are available on their arrival. This is the only way to stop criminal behavior from flourishing in a postwar vacuum of authority."

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necessary to maintain a secure environment. I 10 After the arrival of CIVPOL and the formation of the Kosovo Police Service, primary competence for law enforcement was gradually transferred to the civilian police through a memorandum of understanding (MOU) prepared between UNMIK and KFOR Multinational Brigades. I II This satisfied the transition strategy foreseen in the Security Council resolution, it acknowledged the fundamental notion to respect the applicable local law and permitted an accountable government authority to take responsibility for conducting law enforcement duties.

C. Arrests or Restraints

When persons are observed committing criminal offenses, PSF personnel may need to conduct short-term detentions, searches and immediate investigations. These situations may arise during patrols or security operations, notably searches for weapons and explosives. Even with effective coordination, the local police forces may be delayed or absent so that the PSF may need to secure the site and restrain the suspects. In relation to apprehending criminal suspects, the PSF should consider firstly, whether there is authority under the mandate, the ROE and the applicable local law to restrain and, secondly, the level of force that is applied and how the suspect is handled. The first issue may rest on an interpretation of the mandate and the authority under local law. Security Council Resolution 1244 may be interpreted to confer on KFOR the power to conduct law enforcement tasks. In general, KFOR Commanders resisted the force being labeled a law enforcement agency for the purposes of the law on criminal procedure, as it would be inconsistent with the authority in its military plans. However, it did not prevent some UNMIK Regulations from including KFOR as a "relevant law enforcement authority" for the purposes of the regulation. II2 The applicable local criminal procedure code was silent on the question whether there was a power for individuals, who were not law enforcement authorities, to temporarily restrain those caught in delicto jlagrante. Il3 Though local practice allowed such action, KFOR seemed to rely on SC Res. 1244, supra note 2, para. 9(a). From 2000 to 200 I. 112 For example, Regulation 2000/62, On The Exclusion ofPersons For a Limited Duration to Secure Public Peace, Safety and Order, Nov. 30, 2000, at http:// www. unmikonline.org/regulations/2000/re2000_62.htm (last visited Aug. 25, 2005), conferred the power on KFOR and UNMIK Police to issue an exclusion order requiring a person to leave and/or stay away from a prescribed area and was specifically created to deal with certain individuals who were prominent instigators of violent public disorder. 113 This lacunae was filled when the law was revised and the Provisional Criminal Procedure Code of Kosovo was implemented in April 2004. 110

III


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the authority contained in the Resolution to effect restraints, which were tantamount to being arrests, of persons observed committing crimes. However, the position is less clear when someone is only suspected ofhaving committed or planning to commit a criminal offense. In conducting peace enforcement operations, which include counter-terrorist and force protection missions, PSF personnel may engage in locating and detaining suspects that have been developed through intelligence activities, rather than catching the suspect during the commission of a crime. In these situations, the PSF should consider and apply international human rights standards and determine whether the information is sufficiently credible and reliable for a restraint operation. The UDHR,114 ICCPR,ll5 and ECHRl16 provide for the right to liberty and security of the person, including the right that no one shall be subjected to arbitrary arrest or detention. Both the ICCPR and the ECHR allow for the deprivation of liberty on grounds and in accordance with the applicable law on criminal procedure, but the ECHR enumerates a particular standard to be met before arrest. ECHR Article 5.1.(c) provides: the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so. Having a reasonable suspicion presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offense.ll7 What may be regarded as reasonable will, however, depend on all the circumstances. I 18 However, this does not mean that the suspect's guilt must be established. That is the role of the investigation to determine the reality and nature of the offenses alleged, I 19 and the sub-section does not presuppose that the arresting authority should have obtained sufficient evidence to bring charges at the point of arrest. 120 But any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very pur-

Supra note 98, art 3. Supra note 43, art. 9. 116 Supra note 44, art. 5. 117 Labita v. Italy [GC], No. 26775/95, § 155, ECHR 2000-IV 118 See Fox, Campbell and Hartley v. the United Kingdom, Judgment of Aug. 30, 1990, Series A, No. 182, at 16, para. 32. 119 See Murray v. the United Kingdom, Judgment of Oct. 28, 1994, Series A, No. 300-A, at 27, para. 55. 120 See Erdagoz v. Turkey, Judgment of Oct. 27, 1997, Reports 1997-VI, at 2314, para. 51. 114

lIS

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poses of ECHR Article 5, and ICCPR Article 9, namely to protect an individual from arbitrary detention. 121 The relevant provisions under the ICCPR and the ECHR require that a detainee is entitled to take proceedings before a court that may decide without delay on the lawfulness of detention and order release if it is not lawful. I22 Therefore, the PSF should consider the legal authority under which the suspect will be restrained and the duration of it. If the suspect is going to be detained, the PSF should consider whether the suspect will be handed over immediately to the civilian authorities or if a joint operation can be conducted. If not, the force must consider its detention powers under the mandate and whether the situation allows for non-judicially imposed detention. 123 If the suspect is to be handed over immediately and not detained under the PSF's authority, the applicable laws in force will determine whether the suspect can be held in custody. A thorough comprehension and understanding of the applicable local legal standards, rules of evidence and witness protection measures are essential. The intelligence information that forms the basis for the operation must be releasable; human intelligence information should be converted to witness statements; human sources must be converted to witnesses; evidence collected by covert measures must be admissible. This information may be required for proceedings to determine the legality of detention and for the purposes of pre-trial detention or custody. Further, before the operation is carried out, the PSF should consider whether the force can coordinate with the judicial authorities to obtain any necessary orders or warrants to effect an arrest in accordance with the local criminal law. This may depend on a number of factors, including the level of confidence and trust in keeping the information confidential, operational security, and protecting the necessary prosecutors and judges from reprisal and intimidation. In the circumstances, the necessity for the operation may not justify the breach of an applicable human rights obligation. Subject to derogation, human rights law does not provide grounds for an arrest outside the procedure pre121 See Chahal v. the United Kingdom, Judgment of Nov. 15, 1996, Reports 1996V, at 1864, para. 118. 122 ICCPR, supra note 43, art. 9, para 4 and RCRR, supra note 44, art. 5, para. 4. 123 For a discussion on the use of Executive Detention in Kosovo, see The Report of the Legal Systems Monitoring Section, Organisation for Security and Cooperation in Europe's Mission in Kosovo, Kosovo Review O/The Criminal Justice System September 200l-February 2002, at 45-51, the report comments on KFOR Commander's Directive 42, which provides for the use of detentions, and states "OSCE understands that KFOR has assumed its detention authority from the provision of the UN SCR 1244 authorising the international security presence in Kosovo (KFOR) to use "all necessary means" to fulfill its responsibilities. Moreover, KFOR feels that it is authorised to detain people in order to maintain a "safe and secure environment" in Kosovo for as long as "civilian authorities are unable or unwilling to take responsibility for the matter," at http://www.osce.org/documents/mik/2002/04/9653n.pdf (last visited Aug. 25,2005).


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scribed by law. Noting earlier that it is doubtful that derogations by a contracting state can be limited to its peace enforcement forces outside the state itself, a PSF may find it difficult to justify the execution of a restraint and detention operation outside a procedure provided for by law. Nevertheless, in the context ofPSOs, extrajudicial detentions have been justified on various grounds including assertions that the peace enforcement mandate specifically provides for it, or that the operation is excused by exigent circumstances such as an emergency situation evidenced by widespread violent civil disorder or where there is a real threat that this may occur.

D. Use of Force During Arrest

Every arrest implies an element of coercion and it is often necessary to use force to apprehend a suspect. The level of force used must be necessary to complete the act but military troops are not always trained to use graduated force and may not have non-lethal weapons to assist them. This has lead to grave reservations to giving military forces the power to arrest. However, by failing to demonstrate a will to exercise this power and by acceding to the threat, the credibility and authority of the force could come into question. This had dire consequences in the riots that occurred in Kosovo during March 2004.124 Between March 17-19, 2004, there was province-wide rioting and individual acts of violence targeted against the Serbian minorities and UNMIK. Nineteen deaths were attributed to the rioting, three of which were acknowledged as a result of KFOR operations. The violence was condemned in a joint statement of the Kosovo political leaders, the Quint Nations,125 the EU Presidency and SRSG Harri Holkeri: 124 See comments in the report of the International Crisis Group (lCG), ICG Europe Report No. 155, Apr. 23, 2004, at 19 which assessed that "KFOR was caught without a contingency plan. Its troops often appeared to lack a coherent use-of-force continuum, caught between ineffectively attempting to stop mobs with their bare hands and firing live rounds at them~a last resort which, again to soldiers' credit, was used sparingly. KFOR did a creditable humanitarian job, but a terrible military one. Except at Caglavica, it was defeated," at http://www.crisisgroup.orgllibrary/documents/ europe/balkans/I 5530llapse_in_kosovo_revised.doc (last visited Aug. 28, 2005). Also, see Amnesty International Report, The March Violence: KFOR and UNMIK sfailure to protect the rights of the minority communities, at http://www.amnestyusa.orgiracial_profiling/document.do?id=4070400D98F709C680256EC30052BC92 (last visited Aug. 28, 2005). 125 The term "Quint" is often used to identify the following states: U.S., Great Britain, Italy, Germany and France that formed an informal "core" group of the NATO member states that worked to ensure and fostered consensus within NATO states during the air campaign in March-June 1999. See the role of the "QUint" as described by Peter Beaumont & Patrick Wintour, The Observer, July 18, 1999, available at http://

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the police and KFOR will take care of security and they must be allowed to do their work. The events of today and the last days will be investigated, and those responsible for deaths and acts of violence will be prosecuted.

In isolated incidents, ethnic Serbian villages located outside two different KFOR bases, were allowed to be razed to the ground after UNMIK Police and KFOR troops had evacuated them. 126 In another, a historic Orthodox church was destroyed by rioters after KFOR troops left their post, which was to guard the property, after asking the mob for time to remove their possessions first. 127 Individual KFOR contingents reacted in different ways to control their areas of responsibility in accordance with their national caveats on the use of lethal or non-lethal force. Some took a more aggressive posture and prevented the loss of life and widespread crime and violence. Others allowed the mobs to rampage. Later, in a press conference, the KFOR spokesperson remarked that: we had an option either to protect the people of Kosovo or the buildings of Kosovo. We chose to protect the people of Kosovo. We only had so many soldiers here on the ground and those were our options and that is what we did. 128 While multinational force ROE authorize the use of lethal force in certain situations, commanders and national governments will control the occasions when lethal force may be used during peace enforcement operations. There is no substitute for the rigorous training of soldiers to adhere to operational procedures 129 that provide for how it is to be used. Considering that PSFs may well be tasked with law enforcement duties, it may be apt to consider the standards which civilian security forces, including police, may be assessed against. In relation to the use of force, the ICCPR provides that every "human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."130 The Human Rights Committee noted the following:

observer.guardian.co.uk/milosevic/story/O, 10639,5201 77,OO.html (last visited Oct. 8, 2005). 126 Belo Polje village, Peje/Pec Region and Svinjare/Frasher village, Mitrovica Region. 127 Prizren town. 128 KFOR Spokesperson, Jim Moran, in the UNMIK Press Briefing on Apr. 7, 2004, at http://www.unmikonline.org/press/2004/trans/tr070404.pdf (last visited Aug. 28,2005). 129 May be reduced to instructions on printed cards and issued to soldiers for that particular theater or operation. 130 ICCPR, supra note 43, art. 6, para. I.


29

The protection against arbitrary deprivation of life which is explicitly required by the third sentence of article 6 (1) is of paramount importance. The Committee considers that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities. 131 As a guide, the United Nations issued a set of basic principles on the use of force by law enforcement officials,I32 which provides variously: Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life ... 133 law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms, with sufficient time for the warnings to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident. I34 ECHR Article 2, provides instances when "the deprivation of life shall not be regarded as inflicted in contravention of the article when it results from the use of force which is no more than absolutely."[Kl] These include: acts in defense of any person from unlawful violence; acts to effect a lawful arrest or to prevent the escape of a person lawfully detained; action lawfully taken for the purpose of quelling a riot or insurrection. These grounds do not expressly include the use of lethal force in defense of property, but the article may be interpreted inclusively. The UN Guidelines limit the intentional lethal use of firearms to See General Comment No.6, Article 6, l6th Sess. (1982), para. 3. United Nations, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, Aug. 27 to Sept. 7, 1990, at http://www.unhchr.ch/html/menu3/b/h_comp43.htm (last visited Aug. 30,2005). 133 Id., para. 9. 134 Id., para. 10. 131

132

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when it is strictly unavoidable in order to protect life. This is a narrower rule than provided for in the ICCPR. While multinational PSF ROE may designate certain property with a special status and authorize the use of lethal force to defend it, national contingents may apply a more restrictive application and prohibit such action. The treaty obligations of states prevail. Applicable human rights obligations fix the responsibility for producing procedural safeguards on the nation itself. Article 2 of the ECHR: does not grant a carte blanche. Unregulated and arbitrary action by State officials is incompatible with effective respect for human rights. This means that, as well as being authorised under national law, policing operations must be sufficiently regulated by it, within the framework of a system of adequate and effective safeguards against arbitrariness and abuse of force. 135 Therefore, at least on this basis, the promulgation of policy and guidelines on the use of lethal force should be an individual nation's prerogative. TCNs are likely to provide procedures for their own forces that may not correspond with another State's or with that of the lead nation or international organization. This is one reality of multinational PSF operations.

E.

Searches

KFOR conducts province-wide search operations to locate and remove unauthorized weapons from circulation. Searches of private residences occur daily. These amount to an interference with the rights to privacy 136 and, where items are seized, impact the right to peaceful enjoyment of possessions. 137 KFOR justifies this intrusion on the necessity to maintain a safe and secure area, and frequent press releases elaborate this reasoning. Where a peace support operation transitions towards normality, the PSF should state its mandated search policy clearly-that it is necessary in the interests of security and the prevention of disorder or crime. KFOR search operations are conducted w1thout judicial warrants. Under the applicable law, warrants are required unless there are exigent circumstances for the search or the home owner consents. While such searches are justifiable 135 Makaratzis v. Greece, Application No. 50385/9, Dec. 20, 2004, para. 58; see also, mutatis mutandis, Hilda Hafsteinsdottir v. Iceland, No. 40905/98, June 8, 2004, para. 56; and, Human Rights Committee, General Comment No.6, art. 6, 16th Sess. (1982), para. 3. 136 UDHR, supra note 98, art. 12; ICCPR, supra note 43, art. 17 and ECHR, supra note 44, art. 8. 137 ECHR, supra note 44, First Protocol, art. I.


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under the Security Council resolution mandate, those conducted in support of the police and, at their behest, without a warrant have prevented the admission of search evidence at trial under the exclusionary rules of evidence contained in the applicable criminal procedural law. There are procedural and criminal penalty safeguards built into the local criminal law to deter unlawful searches by police officers. But it is not unlawful for KFOR personnel to conduct searches without a warrant since KFOR have expressly reserved their security role and ensured that the amended criminal procedure code did not make them subject to the provisions that relate to safeguards against arbitrary government interference with an individual's human rights. At present, it remains unclear whether evidence uncovered by KFOR during a search, which the Force initiates and conducts without a warrant, is admissible. In some significant counter-terrorism and organized crime operations, KFOR have coordinated their activities with the relevant police departments and public prosecutors, in order to obtain judicial warrants for searches. This cooperative approach goes a long way to ensure that an individual's rights are protected and facilitates a criminal prosecution. However, this does not appear to be standard procedure. Where weapons are found, the civilian police are normally summoned to take charge of the crime scene, secure the weapons, except where they are an explosive ordnance device, and to initiate the investigation. 138 However, it is common for regular KFOR troops to leave without providing any reports or statements of the operation to the investigators. Even where the search is conducted against known criminal elements, commanders are often reluctant to involve their personnel in a criminal case and invoke their immunity from process. The individual soldiers, who conduct the search, do not assist criminal prosecutions by providing statements or appearing as witnesses. The search commander may prepare a general report, but, often, this lacks sufficient detail of the exact location of the find for prosecution purposes.

F.

Cooperation With Law Enforcement Authorities and Criminal Prosecutions-Re-Establishing the Rule of Law

In order to establish and maintain the rule of law, it is imperative that the PSF maintains close cooperation with the law enforcement authorities to facilitate prosecutions, whether by collecting evidence, producing statements or giv138 Under the Provisional Criminal Code ofKosovo, Article 328 provides that it is an offense to possess a weapon without authorization and the penalty is from one to eight years or a fine of7,500 Euro. However, in relation to the vast numbers of weapons that have been seized, a very small proportion of them result in a conviction. This is partly due to the fact that the courts are overwhelmed with cases and unlawful weapons possession cases are treated as low priority because pre-trial detention is not generally imposed for such offenses.

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ing evidence in court. It should be done as a matter of practice and out of a sense of duty. If not, the PSF jeopardizes the re-establishment of the rule of law and fosters impunity. KFOR employs specialized military/special police forces such as the Italian Carabinieri and the Austrian and French Gendarmes, to form multinational specialized units (MSU). The MSU augments and provides the force with a specialised law enforcement capability to deal with riots, targeted searches, counter terrorism and counter-organized crime operations. They are directly tasked and commanded by the KFOR Headquarters. The role played by the MSU in Kosovo demonstrates the impact and synergy of coordinated activity between military security forces and civilian police. Also, it should serve as a model for regular units to follow. 139 Relatively early on in the Mission, an understanding was reached between the MSU and UNMIK Police to improve coordination. Now MSU and other specialized units often cooperate with UNMIK Police in the fight against armed extremist elements, organized crime and in apprehending persons charged with war crimes. Joint operations have resulted in arrests of members of proscribed terrorist groups, the location of large weapons caches, persons involved in the trafficking of women and smuggled contraband. In general, UNMIK Police assume primacy for the arrest and search, and they coordinate with public prosecutors to develop the criminal case. 140 This level of coordination has also been achieved with specialized assets who assist in capturing persons wanted for war crimes investigations. Therefore, the unity of effort of military forces and the civilians in the justice system is crucial for success. Where the PSF compartmentalizes its military tasks, it destroys the synergy of coordinated action with the civilian authorities. At times, an exaggerated and excessive need for force protection has justified non-cooperation, and victims have not seen justice. In most cases, 139 In marked contrast, the level of participation of individual US troops in Iraq with the criminal justice system is illuminating. It is reported that they are conducting investigative actions because "the decision to treat insurgents as criminals has forced soldiers to act as cops and has authorities scrambling to build cases against thousands of detainees in U.S. run prisons. Some soldiers say running rebels through the courts places American forces at a disadvantage, burdening soldiers in a guerilla war with peacetime rules." Soldiers are "drilled from the moment they arrive on the importance of gathering evidence, getting sworn statements from witnesses and taking good pictures that may later be used in court" and that vehicles are stocked with an evidence kit which includes blank sworn-statement forms, a digital camera, plastic gloves and a spray that detests gunpowder residue." Gregg Zoroya & Rick Jervis, USA Today, Aug. 9,2005, available at http://www.usatoday.com/news/world/iraq/200 5 -08-09-troops-detectivecover_x.htm (last visited Aug. 23, 2005). 140 Where operations are in support of the judicial authorities, it is often essential for forces to consult with the competent prosecutor prior to setting a firm date and time to ensure that time-sensitive court orders are prepared in time and that preliminary arrangements are made and that courtrooms, detention facilities and security details are available.


33

it is simply the failure to appreciate the need to safeguard evidence. For example, KFOR troops have released corpses without autopsies; they have failed to hand over physical evidence collected at crime scenes, including: shell casings needed for ballistics forensic testing, weapons seized from suspects and even balaclavas, which were recovered in circumstances linking persons to crimes, that required an examination for DNA. In most search operations, weapons and other contraband are handled without gloves and moved from their original locations. At explosive detonation crime scenes, military personnel often unnecessarily contaminate the scene by not restricting movement after searching for secondary devices, personnel move items of potential evidence unnecessarily, objects are taken away for examination without proper chain of custody procedures being followed and often never returned. A significant impediment to criminal prosecutions has been the classification of criminal evidence collected by KFOR personnel and the reluctance to share intelligence information. Operational security is crucial, but witnesses should not be classified as sources automatically. Once statements are entered into military intelligence archives, it is generally more difficult to declassify and release. In an environment where witness intimidation is rife,141 witnesses usually wish to tell their story so long as they know they will not be summoned as witnesses. This serves to protect the perpetrators of crime and lead to impunity. To the contrary, they should be encouraged to give evidence. Witness protection measures contained in the criminal procedure code are available and, in significant cases, witnesses may be entered into available witness protection programs. Intelligence information should be developed with a view to producing admissible evidence and being shared with authorized law enforcement personnel so as to be exploited to its greatest advantage. PSFs should appreciate that the only way to re-establish the rule of law is through the successful criminal prosecution of offenders. Short-term security detentions are only short term solutions.

v.

CONCLUSIONS

Whichever method of conflict resolution 142 is employed to forestall a relapse into conflict, there must be an environment secure enough to allow a peaceful 141 See Michael Farquhar, Witness Intimidation a Serious Problem in Kosovo, Institute for War and Peace Reporting, Apr. 1,2005, at http://www.globalpolicy.orglintljustice/tribunals/yugo/2005/040 I witness.htm (last visited Aug. 29, 2005); and, OSCE Mission in Kosovo, Department of Human Righ.ts and Rule of Law, Kosovo Review of the Criminal Justice System (March 2002-April 2003), Protection o/Witnesses in the Criminal Justice System, May 20, 2003, at http://www.osce.org/documents/mik/2003/ 05/8593n.pdf (last visited Aug. 28, 2005). 142 Oliver Ramsbotham (ed.), Reflections on UN Post-Settlement Peacebuilding, in Peacekeeping and Conflict Resolution, 169-189 (2000), discusses the peace support model where military forces operate under the aegis of the United Nations and labels it the "UN's post-settlement peacebuilding 'standard operating procedure'."

34


resolution of disputes, for necessary governmental and democratic institutions to be built and for them to function with an acceptable level of impact in the belief that the secure environment is and can be maintained. 143 Reestablishing the rule of law and enforcing the law must be a priority in postintervention strategy along with the tasks of providing relief and humanitarian aid, development, reconciliation and re-establishing governance. It addresses the root cause of conflict and is the prerequisite for the emergence of a stable and peaceful society by the successful implementation of longer term development strategies. Therefore, it is increasingly common for Security Council resolution mandated peace enforcement operations to include law enforcement type duties for peace support forces. Combat troops may be given tasks that are more appropriate for professional law enforcement personnel. PSFs must undertake these duties because only they possess sufficient combat power to deal with postconflict turmoil. However, they have a responsibility to understand and respect relevant aspects of international humanitarian law and human rights law. In doing so, the Force will maintain legitimacy and public support that is key to mission success. While the immediate priorities may be to establish public order and security, PSF directives and policies should encourage the direct participation of force personnel in law enforcement type duties and their cooperation with criminal prosecutions. "In complex operations, peacekeepers work to maintain a secure local environment while peacebuilders work to make that environment self-sustaining. Only such an environment offers a ready exit to peacekeeping forces, making peacekeepers and peacebuilders inseparable partners."144

143 For an example of perceptions in Afghanistan on the importance of security, see A Call for Justice, 2004, Report of the Afghanistan Independent Human Rights Commission, at http://www.aihrc.org.af/Rep_29_Eng/rep29_1_0Sca1l4justice.pdf (last visited July 29,2004). 144 Report of the Panel on United Nations Peace Operations, supra, Executive Summary, at 1, UN Doc. A/SS/30S-S/2000/809, at http://www.un.org/peace/reports/peace_ operations/ (last visited Jan. 17, 2006).

CHAPTER 2 PROMOTING AND ABIDING BY THE RULE OF LAW: UN INVOLVEMENT IN POST-CONFLICT JUSTICE Noelle Quenivet*

Throughout the world [... ] the victims of violence and injustice are waiting. They are waiting for us to keep our word. They notice when we use words to mask inaction. They notice when laws that should protect them are not applied. I

I.

INTRODUCTION

The atrocities committed during the Second World War led the international community to wish for more peace and security, a task ascribed to the United Nations, which soon realized that its guidance was mostly required in states that had suffered from internal conflicts or wars of national liberation and that peacekeeping had to include peacebuilding elements. 2 In its involvement in post-conflict rebuilding of states, two concepts transcend the UN activities, namely the rule oflaw and human rights because "[t]he rule oflaw is the foundation of a civilised society."3 Hence, it quickly became a widespread tru-

* Noelle Quenivet (B.A., Strasbourg; LLM, Nottingham; Ph.D. Essex) is Researcher at the Institute for International Law of Peace and Armed Conflict of the Ruhr-University Bochum (Germany). This chapter was written in the framework of a project on "Post-Conflict Nationbuilding" led by the Law Faculty of the University of Hanover (Germany) and the Institute for International Law of Peace and Armed Conflict of the Ruhr-University Bochum (Germany) and funded by the German Foundation for Peace Research. In particular I would like to thank Bernard Dougherty, Dr. Hans-Joachim Heintze, Simon Meisenberg, Jan Wetzel and Kerstin Wirth for their valuable comments. United Nations, Secretary-General's Address to the General Assembly, New York, Sept. 21, 2004. See in this regard S. Mohamed, "From Keeping Peace to Building Peace: A Proposal for a Revitalized United Nations Trusteeship Council," 105 Columbia Law Review 810 (2005). Office of the High Representative in Bosnia, Our Reform Agenda-Rule of Law, Peace Implementation Council, Oct. 4, 2002. 35

36


ism that post-conflict states in the process of rebuilding their institutions need the rule of law and that "today the rule of law is at risk around the world."4 As Kofi Annan explains "[i]t is by reintroducing the rule of law, and confidence in its impartial application, that we can hope to resuscitate societies shattered by conflict."5 The basic idea is that "[the] rule of law [is] a prerequisite for maintaining and building peace, consolidating democracy and promoting sustainable development."6 With this view, for the last few decades, the United Nations has considered itself a benevolent promoter of the rule of law, but this does not mean that it has always regarded the rule of law as a core function of all its post-conflict peace operations. Besides, as of now, the issue concerning the obligation of the United Nations to ensure that all its peace-building programs conform to the rule of law has not been raised. The logic demands that if the United Nations is to promote the rule of law it should also abide by its standards. However, this question has yet not found any definite legal answer despite the fact that undoubtedly the United Nations affects the conception as well as the implementation methods of the rule of law of the state institutions that it attempts to rebuild. It is true that "the Achilles' heel of post-conflict peace operations is that of justice/rule of law [... ]."7 Nevertheless, simply establishing programs in field of the rule of law is not sufficient as it does not necessarily foster the population's confidence in this concept. 8 In this regard it is of utmost importance that in its endeavor to set up mechanisms that comply with the rule of law, the United Nations ensures that the bodies it helped create are successful and are seen as such by the local population. The first part of this chapter briefly discusses the definition of the rule of law and in particular that espoused by the United Nations in its post-conflict rebuilding activities. The second part examines whether the United Nations is United Nations, Secretary-General s Address to the General Assembly, New York, Sept. 21, 2004. Id. ECOSOC also "[ r ]ecogniz[ es] the importance of the rule oflaw in postconflict reconstruction and the consolidation of peace." ECOSOC, The Rule of Law and Development: Strengthening the Rule of Law and the Reform of Criminal Justice Institutions, with Emphasis on Technical Assistance, including in Post-Conflict Reconstruction, Res. 2004/25, July 21, 2004. High-Level Representatives of the Council of Europe, the Organization for Security and Co-operation in Europe and the United Nations, Multilateral Organisation s Rule of Law Pledge, Strasbourg, Feb. 18, 2005. S. Darvill, The Rule of Law on Peace Operations from the Perspective of an Institutional Donor, Paper Presented at the Asia-Pacific Centre for Military Law (in association with the Department of Defence and the University of Melbourne Law School), Nov. 11,2002, at 13. S.R. Quast, "Nation-Building: Lessons from the Past and the Challenges Ahead: Rule of Law in Post-Conflict Societies: What is the Role of the International Community?," 39 New England Law Review 46-47 (2004).

Promoting and Abiding by the Rule of Law

37

only a benevolent promoter of the rule of law or whether it is itself bound by the rule of law and must therefore in all its programs ensure that the rule of law is upheld. Finally, this article investigates whether in rebuilding judicial institutions, taking those addressing past abuses as examples, the United Nations has always promoted and abided by the rule of law. The stress is put on mechanisms supported and/or created by the United Nations to tackle past abuses of human rights and humanitarian law because, often, those who suffered during the conflict want justice to be done and they will only trust the rule of law if they are convinced that those who decide on the rules of the game also comply with them.

II. DEFINING THE RULE OF LAW

The concept of the rule of law is the focus of lengthy discussions because it may take different colors according to legal cultures and historical conditions. 9 Generally agreed upon is the Aristotelian proposition that it is better that law should rule rather than any single citizen.lo Today, confusion as to the scope of the notion of the rule of law as compared with other concepts is predominantly due to the fact that it is one of the components in the bundle "human rights, democracy, justice and rule of law" that is adopted in state-building operations.

A. The Definition of the Rule of Law

Generally, the precept of the rule of law can be placed on a continuum between a minimalist and a maximalist approach. As elements that may be incorporated in the rule of law, Peereboom enumerates human rights, economics, democracy and good governance, and geopolitical stability and global peace. I I Casper, almost in unison, considers the rule of law under four everexpanding angles: consistency of the law, economic development, human rights and democracy.12 In reality, these approaches can be splintered into those stressG. Casper, Rule of Law? Whose Law?, CDDRL Working Papers, No. 10, Aug. 13 2004, at 4. 10 This principle can be found in the Magna Charta that considered the rule of law as a means of protection from the arbitrariness of rule by man and from the abuse of power by the state. This view is also embraced nowadays. Addressing the General Assembly, UN Secretary-General Kofi Annan declared that "a vision of 'a government of laws and not of men' is almost as old as civilisation itself." Secretary-General sAddress to the General Assembly, New York, Sept. 21, 2004. II R. Peerenboom, "Human Rights and Rule of Law: What's the Relationship?," 36.1. Georgetown International Law Journal 3 (2005). 12 Casper, supra note 9.


38

ing the formal or instrumental aspects of law and those referring to the existence of "good laws" which include economic arrangements, forms of government or conceptions of human rights. 13 First, at its minimum basis, the rule of law means that legislation is consistent. The rule of law hence imposes meaningful restraints on state power and the ruling elite. A second step is to perceive the rule of law as a vessel to promote and provide for sustained and viable economic growth. 14 In a third step l5 human rights and in a fourth democracy are integrated into the idea of the rule of law. For instance, the report of the Secretary-General includes principles such as "separation of powers" and "participation in decision-making,"16 thereby assuming that democracy is part of the rule of law. 17 Since this chapter focuses on the rule of law in the framework of the establishment of post-conflict judicial mechanisms for previous violations, the ensuing discussion on the definition of the rule of law concentrates on two notions, namely human rights and justice.

B.

Rule of Law and Human Rights

As broached earlier, a certain conception of the rule of law argues in favor of the inclusion of human rights within this precept. While theory argues for the distinction of the two notions, it is true that, in practice, especially in field work, the rule of law and human rights tend to overlap. Nonetheless, the two concepts are not interchangeable and their relationship must be clarified. Peerenboom, supra note II, at 16. Discussing the rule of law in Kosovo, the French representative to the Security Council explained that "[t]he rule ofIaw, economic development and the creation of an equal society for all were inextricably linked imperatives." UN Security Council, Security Council Following Briefing by Special Representative for Kosovo, Welcomes Progress, Reaffirms Importance ofRule ofLaw, Statement by J.-D. Levitte, Press Release SC/7375, Apr. 24, 2002. 15 Casper's idea of a third step on the continuum is supported by the assumption that "[r]ule of law is closely related to economic development, which in turn is closely associated with better performance on human rights measures and other indicators of wellbeing." Casper, supra note 9. 16 UN Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc. S/2004/616, Aug. 23, 2004, para. 6. 17 Mani states that "[i]n contemporary parlance, the rule oflaw embraces democracy and good governance." Irremediably the question posed relates to whether democracy and governance are two separate notions or cover the same issues. This issue can only broached here since the aim ofthis paper is to discuss the definition of the rule of law. R. Mani, "Conflict Resolution, Justice and the Law: Rebuilding the Rule of Law in the Aftermath of Complex Political Emergencies," 5.3 International Peacekeeping 10 (1998). 13

14


39

As Louise Arbour, UN High Commissioner for Human Rights, elucidates "when I speak about the law, I do not mean of course any law. Law, as any other institution, is subject to abuse."18 Her statement does not surprise inasmuch as this agency's task is to link and frame the rule of law in human rights objectives. 19 Along this line, the Secretary-General defines in his report on The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies the rule of law as "a principle of governance in which all persons, institutions and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards."20 The definition propounded by the Secretary-General inevitably weaves together the rule of law and human rights: human rights are a component of the rule of law to the degree that the rule of law cannot exist without its human rights element. The rule of law is not merely a formal principle but also contains a substantial normative value for the best of mankind so that human rights are not a sub-category of the rule of law but stands on a par with it. Indeed certain human rights such as the tenet nullum crimen sine lege, the role of the judiciary to verify the actions of the executive, remedy to excessive detention, access to court, rights of the accused, no retroactivity of the laws etc., provide the basis for the rule of law. The independent adjudication of conflicting claims 21 or legal certainty and equality before the law 22 are also considered as human rights that are at the core of the rule of law. Generally, the right to a fair trial embraces most of the aforementioned rights. Nevertheless, the rule of law encompasses more than the aforementioned individual rights.2 3 18 L. Arbour, Security under the Rule of Law, Biennial Conference of the International Commission of Jurists, Berlin, August 27,2004, at 2. 19 "The Office of the High Commissioner has made the promotion of the rule oflaw a priority in its technical cooperation programmes, recognizing the link between the rule of law and respect for human rights." UN General Assembly, Report of the Secretary-General: Strengthening of the Rule of Law, UN Doc. Al57/275, Aug. 5, 2002, para. I. 20 UN Secretary-General, supra note 16, para. 6 (emphasis added). 21 In this regard, the United Nations developed a set of rules called the "Basic Principles on the Independence of the Judiciary." GA Res. 40/32, UN Doc. AlRES/40/32, Nov. 29,1985, and GA Res. 401146, UN Doc. A/RES/40/146, Dec. 13, 1985. See, in particular, F.B.W. Kelly, An Independent Judiciary: The Core of the Rule of Law, International Centre for Criminal Law Reform and Criminal Justice Policy, 1997, available at http://www.icclr.law.ubc.calPublications/Reports/An_IndependanCJudiciary.pdf (last visited Aug. 15,2005). 22 UN Secretary-General, supra note 16, para. 6. 23 Indeed, the rule of law also "requires professional police. It requires competent civil servants. It requires an accessible legal profession that is properly trained and that maintains the highest standards of professional conduct and integrity. It requires

40


Hence, to perceive the rule of law through the lenses of human rights can only reduce one's view of the broad scope covered by this notion. Turning the relationship between rule of law and human rights law upside down, one can also argue that the rule of law is necessary for the effective protection of human rights by domestic legal systems. "The principle of the rule of law can thus also be described as an overarching principle in the field of human rights protection because, where it does not exist, respect for human rights becomes illusory."24 Human rights laws are useless if there is no effective means to enforce respect for such laws. 25

C. Rule of Law and Justice

Further, "[t]he concept of the rule of law provides a framework for the various dimensions of the legal system and the institutions, procedures and principles related to the administration of justice."26 Again in Arbour's words, "[t]he law that must guide us is that law which is capable of dispensing justice and providing remedies for grievances."27 The concept that judges and prosecutors are truly independent belongs not only to the realm of the rule of law but also to the notion of justice. Other elements are that justice be delivered swiftly and efficiently, that the judicial system ensures that crimes be investigated and those suspected of having committed these crimes be arrested and charged and, if found guilty, convicted and punished. 28 Prosecution of those who transgress the rules seems to be the keyword in the relationship between the rule of law and justice. Indeed, of major importance is the population's confidence in the judicial system and, hence, the need to show the population that justice is being done. that is fair and impartial, and that commands consent." Office of the High Representative, supra note 3. A similar opinion is propounded by the Secretary-General who declares that equally important to the independence of the judiciary "are the other institutions of the justice sector, including lawful police services, humane prison services, fair prosecutions and capable associations of criminal defence lawyers." UN Secretary-General, supra note 16, para. 35. 24 Office of the High Commissioner for Human Rights in Cooperation with the International Bar Association, Human Rights in the Administration ofJustice: A Manual on Human Rights for Judges, Prosecutors and Lawyers, Geneva, 2001 at 6. 25 See in particular the preamble of the UN Declaration of Human Rights that states "Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law." GA Res. 217 A (III), Dec. 10, 1948. 26 Mani, supra note 17, at 3. 27 Arbour, supra note 18, at 2. 28 Office of the High Representative, supra note 3. There is no doubt that these tenets are also understood as human rights. See in particular Article 6 of the European Convention on Human Rights.


41

For the purpose of this study the rule of law is understood in the terms used by the Secretary-General in his report on the rule of law. Since this definition seems to be the outcome of some internal discussions within the United Nations it, thus, may be presumed to best fit the approach taken by UN bodies. Moreover, it also binds the rule of law to human rights, a notion to which various agreements, mandates and other documents refer. Besides, as the aim of this chapter is to examine whether the United Nations applied the rule oflaw in its support and creation of judicial mechanisms dealing with past atrocities, the human rights approach must be taken into account. Indeed "[t]he human rights dimension of the rule oflaw programming is [... ] apparent in the relationship between the rule of law and the principle of accountability for gross human rights violations."29 In this respect human rights and the rule of law are two sides of the same com.

III. OBLIGATIONS OF THE UNITED NATIONS IN PEACE-BUILDING OPERATIONS REGARDING THE RULE OF LAW

In past decades the United Nations got engaged in a series of peace-building operations embracing rule of law elements. Remarkably, the United Nations does not appear to be bound by general norms to set up rule of law programs when engaged in rebuilding states' institutions; rather its mandate and thereby obligation to design such programs relies on ad hoc agreements and resolutions.

A. The Role of the United Nations in Terms of Rule of Law Standards According to General Norms

Instead, the United Nations has, on several occasions, heralded that it was tasked with the promotion of the rule of law, notably basing its activities on the UN Charter and this despite any evident reference to this tenet in the said document. One of the clearest pieces of evidence is the Secretary-General's report on the rule oflaw in post-conflict societies which asserts that "[t]he normative foundation for [the] work [of the United Nations] in advancing the rule of law is the Charter of the United Nations itself"30 and further declares that "[t]he 'rule oflaw' is a concept at the very heart of the Organization's mission."3! The World Conference on Human Rights also "recommend[ ed] that a comprehensive programme be established within the United Nations in order to 29 International Peace Academy, Rule of Law Programs in Peace Operations: Toward a Conflict-Sensitive Perspective: A Concept Paper, New York, Oct. 29, 2004, at 2. 30 UN Secretary-General, supra note 16, para. 9. 3! !d., para. 6.

42


help states in the task of building and strengthening adequate structures which have a direct impact on the [... ] maintenance of the rule of law."32 The United Nations is further urged to "increase considerably the resources allocated to programmes aiming at the establishment and strengthening of national legislation, national institutions and related infrastructures which uphold the rule oflaw."33 The United Nations is encouraged to not only assist countries but also expedite efforts to promote the rule of law. This means that ultimately the United Nations felt the need to develop its own legal basis for its numerous assistance programmes including elements of the rule of law. Sadly, there are few documents evidencing the UN will to be bound on a broad basis by the rule of law in its worldwide engagement. One of them is the report on the rule of law and transitional justice in conflict and post-conflict societies in which the United Nations expresses its willingness to abide by universally applicable standards adopted under its auspices. 34 Hence, the United Nations has bound itself to promoting and respecting the rule of law which includes, according to its own understanding, human rights standards. Another manner therefore to compel the United Nations to comply with rule of law standards is to do so indirectly by way of its members in a type of "functional treaty succession by international organizations to the position of their member states,"35 bearing in mind the UN claim to be entrusted by the UN Charter with the promotion of the rule of law and states' claims to comply with the rule of law standards. Consequently, according to this proposition, the United Nations cannot claim to be a leading actor in the promotion of rule of law while it is itself not bound by its standards. Further, one must examine whether the United Nations is bound by rules enshrined in international customary law as far as practice and opinio juris regarding the rule of law can be ascertained. Although countless states have endorsed the rule of law, closer scrutiny of the espoused conceptions shows that only a minimalist rule of law is universally accepted. 36 As to the opinio juris, undoubtedly the principle of the rule of law is considered by the United Nations as a fundamental precept of international law and recognized as guiding its actions. Similarly states believe the rule oflaw to be a legal norm directing their actions, for a plethora of states "express [... ] their resolve to strengthen respect for the rule of law in international as in national affairs"37 and request 32 Vienna Declaration and Programme of Action, UN Doc. AlCONF.157124, June 14-25,1993, para. 69. 33 Id., para. 31. 34 UN Secretary-General, supra note 16, paras. 9-10. 35 A. Reinisch, "Securing the Accountability of International Organizations," 7 Global Governance 143 (2001). 36 Peerenboom, supra note 11, at 14. 37 ECOSOC, The Rule of Law and Development: Strengthening the Rule of Law and the Reform of Criminal Justice Institutions, with Emphasis on Technical Assistance, including in Post-Conflict Reconstruction, Res. 2004/25, July 21, 2004.


43

the technical assistance and advisory services of the United Nations in support of introducing reforms in their criminal system so as to abide by the rule of law. 38 Hence, opinio juris can be established. One may argue that if the rule of law is indeed of customary nature, only its minimalist approach is likely to have reached that status as the universality of the components of the maximalist approach, i.e., human rights and democracy, may be questioned.3 9 Should human rights and the rule of law be as closely interconnected as the United Nations pretends, then one must analyze whether customary law protects human rights. It is widely recognized that most parts of the 1948 Universal Declaration of Human Rights (UDHR) are of customary nature. 40 Further treaties can be considered as the codification of customary norms of human rights.41 Nonetheless, one must treat such comments with extreme caution inasmuch as much disagreement exists as to which human rights have reached the status of customary norms. No doubt that the right to legal personality or the right to fair trial, which are connected to the rule of law, are considered as core human rights that cannot be derogated in times of armed conflict and, hence, more likely to be viewed as of customary nature. 42 As a consequence, though we come to contradicting conclusions on the customary nature of the rule of law and human rights, the combination of a minimalist approach to the rule of law and human rights tend to demonstrate that a maximalist approach to the rule of law, incorporating a human rights element may be viewed of customary nature.

B.

Binding the United Nations by the Rule of law on an Ad Hoc Basis

Another model propounded by some authors is that under certain circumstances an analogy may be drawn between states and the United Nations. According to Eagleton, states' obligations and responsibilities are based on UN General Assembly, supra note 19, para. 4. The 1993 Bangkok Declaration challenges the universalism of human rights on the basis that it is Western-biased. Report of the Regional Meeting for Asia of the World Conference on Human Rights, Bangkok Declaration, UN Doc. A/CONF.157/ ASRM/8, Apr. 7,1993. 40 International Court of Justice, United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, 1980 ICJ para. 91 (May 24). 41 H.G. Schermers & N.M. Blokker, International Institutional Law: Unity within Diversity 824 (1995). 42 In this respect, one must sound a note of caution because the exact content of each of these rights is highly debated. That a certain right is of customary nature does not automatically mean that there is agreement on its content (see for example the right to defense incorporated in Article 14 of the International Covenant on Civil and Political Rights). On this issue, see C.lM. Safferling, Towards an International Criminal Procedure (2003). 38

39

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states' capacities to control individuals within their territory.43 Hence, some argue that should the United Nations be able to control a certain population residing in a certain portion of territory, then it acts like a quasi-state and, thus, must comply with similar rules. The latest activities of the United Nations tend to show that in some instances the United Nations has accepted taking on governance functions labeled postconflict peace building. 44 Especially in failed states or in entities with a seemingly indefinite status, the United Nations has to fill the vacuum in order to replace a non-existent government. 45 "As a result, conceptions of sovereignty and of responsibility also have transformed,"46 and so it is conceivable that the United Nations may have to abide by rules that are generally designed for states, inasmuch as the United Nations is recreating state structures and, thereby, mimicking traditional forms of governmental power. In its efforts to rebuild state structures and organs from scratch, the United Nations itself becomes the government. In reality, the United Nations is endowed with all state attributes and is effectively acting as a sovereign power.47 In some specific cases, such as East Timor4 8 and KOSOVO,49 the UN Security Council by way of a binding resolution 43 e. Eagleton, "International Organization and the Law of Responsibility," 76 Hague Recueil des Cours 386 (1951). 44 See M. Ruffert, "The Administration of Kosovo and East-Timor by the International Community," 50 International and Comparative Law Quarterly 613-631 (2001). 45 In contrast, the United Nations only "assumed the role of caretaker of a transition [... J whereas in Kosovo and East Timor it more closely resembles a midwife to new states." M. Griffin & B. Jones, "Building Peace through Transitional Authority: New Directions, Major Challenges," 7.4 International Peacekeeping 82 (2000). 46 Mohamed, supra note 2, at 835. 47 1. Chopra, "The UN's Kingdom of East Timor," 42 Survival 29 (2000); Griffin & Jones, supra note 45, at 77. It must, however, be stressed that all Security Council's resolutions pertaining to territories administered by the United Nations underlined the sovereignty of the state, e.g., of the Former Republic of Yugoslavia in the case of Kosovo. See for example the preamble of Resolution 1244 (1999) which "Reaffirm[ sJ the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other states of the region [... J." SC Res. 1244, UN Doc. S/RESIl244 (1999), June 10, 1999. 48 The UN Transitional Administration in East Timor (UNTAET) was given "the overall responsibility for the administration of East Timor" which meant that it would "exercise all legislative and executive authority, including the administration of justice." SC Res. 1272, UN Doc. S/RESIl272 (1999), Oct. 25,1999. UNTAET mandate was conceived following the interpretation and specification of Resolution 1244 (1999) concerning UNMIK's mandate. SC Res. 1244, supra note 47. 49 UNMIK is perceived as the administrator and government of Kosovo. "Justice and police powers were reserved to the United Nations, and [... J the management and control of the justice system were firmly in the hands of the international community." 1.e. Williamson, "Establishing the Rule of Law in Post-War Iraq: Rebuilding the Justice


45

under Chapter VII, granted some bodies of the United Nations the powers to "reign" over a certain territory and population. From the mere responsibility to promote the rule of law, the United Nations becomes the body to guarantee this principle. 50 From the previous discussion it derives that the United Nations is, under these circumstances, obliged to abide by the rule of law. Yet, should there be some doubts about this method of binding the United Nations to the tenet of the rule of law, one must examine the wording of the Security Council resolutions. Unfortunately none of the initial resolutions relating to Kosovo or East Timor directly refers to the rule of law, albeit some do to human rights. 51 By contrast, in the case ofIraq, the Security Council empowered some UN organs to "promote the protection of human rights, national reconciliation, and judicial and legal reform in order to strengthen the rule of law in Iraq."52 Although this resolution refers to the rule of law, it only requests the United Nations to promote the rule of law, i.e. to assist the national government in its endeavors to stimulate a legal and judicial environment that conforms to this principle. The United Nations may be vested with a rule of law mandate by a peace agreement especially when the sovereignty of the state is undisputed. Given the circumstances under which a peace agreement is signed, i.e., between warring parties that finally decided to settle their dispute to build up a new future for the country, the United Nations is unlikely to be in charge of the reconstruction of the state and, therefore, of the installation of the rule of law. The newly formed government, usually composed of members of all sides of the past conflict, prefers to itself engage in this task and seeks UN assistance whenever it deems it necessary. 53 A glaring illustration is the Agreement on Provisional System," 33 Georgia Journal of International and Comparative Law 229 (2004). See also United Nations, Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, UN Doc. S/1999/779, July 12, 1999, para. 35: "The Security Council, in its resolution 1244 (1999), has vested in the interim civil administration authority over the territory and people of Kosovo. All legislative and executive powers, including the administration ofthe judiciary, will, therefore, be vested in UNMIK"; and Ombudsperson Institution in Kosovo, Special Report No. 1 addressed to Mr. Hans Haekkerup Special Representative of the Secretary General of the United Nations, para. 23: "[ ... ] in Kosovo, where the interim civilian administration (United Nations Mission in Kosovo-UNMIK) in fact acts as a surrogate state." (Emphasis added) 50 It signifies that the United Nations is also obliged to ensure that the laws chosen to apply on the territory it administers comply with the principle of the rule oflaw. It is, however, not the aim of this chapter to examjne, on a general basis, which laws were retained from the past and which laws were modified. 51 See e.g., SC Res. 1244, supra note 47, para. I1G). 52 SC Res. 1546, UN Doc. S/RES/1546 (2004), June 8, 2004, para. 7(b )(iii). 53 Thus, it is recommended that "such an agreement [... ] include a strategy for building the rule of law [as well as] references to specific international human rights instruments." C. Ahlund, "Nation-Building: Lessons from the Past and the Challenges

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Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions dated May 12, 200l. In this case, although the United Nations is not in charge of the country, as Article I.3 stipulates that "the interim Authority shall be the repository of Afghan sovereignty," it is asked to shepherd the launching of "a Judicial Commission to rebuild the domestic justice system in accordance with Islamic principles, international standards, the rule of law and Afghan legal traditions."54 Further, the United Nations is requested to guide the Interim Administration in setting up an independent Human Rights Commission55 in addition to its investigative activities concerning human rights violations. 56 As an outcome, whenever the United Nations is entrusted with broad powers that transform it into a government, then one may assert that it has to comply with the rule of law in all its endeavors to rebuild the state structure. On the other hand, if the United Nations is not endowed with such competences, then it is at least obliged to promote the rule of law when setting up programs to assist in the reconstruction of a state's institutions. IV. THE PROMOTION OF THE RULE OF LAW IN SETTING UP POSTCONFLICT JUDICIAL MECHANISMS

De Mello elucidates that "[t]he best chance for preventing, limiting, solving and recovering from conflict and violence lies in the restoration and defence of the rule of law."57 Since accountability is an essential pillar to the re-establishment of the rule of law 58 there is no doubt that the litmus test, whether the Ahead: Major Obstacles to Building the Rule of Law in a Post-Conflict Environment," 39 New England Law Review 43 (2004). 54 Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions, May 12, 200 I, art. II(2). 55 !d., art. II(C)(6). 56 Id., Annex II, art. 6. 57 Sergio Vieira de Mello, Message of the United Nations High Commissioner for Human Rights on Human Rights Day, Dec. 10,2002. Concerning the case of Kosovo, the United Nations reports that "[t]he creation of [the KWEC] is a factor in the re-establishment of the rule of law, in consolidating peace through justice and in paving the way towards reconciliation." United Nations, Report of the Secretary-General of the United Nations Interim Administration Mission in Kosovo, UN Doc. S/2000/538, June 6, 2000, para. 60. In the case of East Timor, "[a] first step towards instilling the conceptual foundations for the rule of law is to ensure that justice be done in respect of the serious crimes prior to, and during, 1999." S. Marshall, The East Timorese Judiciary: At the Threshold of Self-Sufficiency? Update, Conference "Co-operating with Timor-Leste," Darwin, June 17-18,2005, at 1. 58 UNHCHR, Statement by the UNHCHR at the United Nations Security Council Presentation of the Report of the Secretary-General on the Protection of Civilians in Armed Conflict, New York, Apr. 23, 2001, para. 42.


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United Nations upholds the rule of law, is to investigate its activities in the birthing and maintenance of mechanisms dealing with past atrocities. 59 To ensure that no mass perpetrator be granted impunity, the United Nations has fostered and nurtured various kinds of tribunals and mechanisms to ensure that justice be meted out and that victims see justice being done. 60

A. Prevention of Impunity

The fundamental idea behind the establishment of various regimes dealing with crimes committed before the crisis or conflict is to curb impunity, thereby ensuring that criminals do not participate in public affairs, and to foster confidence in justice. Supposedly, such mechanisms launch a new era of justice, human rights and rule of law. 6l The High Commissioner for Human Rights declared that "[t]o end the century and the millennium tolerating impunity for those guilty of these shocking violations would be a betrayal of everything the United Nations stands for regarding the universal promotion and protection of human rights."62 Indeed, in situations of post-conflict reconstruction "we must start from the principle that no one is above the law, and no one should be denied its protection."63 Firstly, "States should abrogate legislation leading to impunity for those responsible for grave violations of human rights such as torture and prosecute such violations, thereby providing a firm basis for the rule of law."64 Parties bargaining in peace negotiations often feel the compulsion to include amnesties 59 Indeed, "[t]he process of addressing the past is important not only for itself but also for the restoration of the rule of law. Addressing the past presents a first challenge for the rule of law. It reinforces the institutions and principles of the rule of law and equally puts them to the test." Mani, supra note 17, at 19. "The manner and degree to which a justice system addresses the population's sense of vulnerability and injustice fundamentally affects the pacification and reconciliation process." W.S. Betts, S.N. Carlson & G. Gisvold, "The Post-Conflict Transitional Administration of Kosovo and the Lessons-Learned in Efforts to Establish a Judiciary and Rule of Law," 22 Michigan Journal of International Law 380 (2001). 60 UN Secretary-General, supra note 16, para. 12. 61 "The purpose of such an attempt is to impose accountability in war-torn societies and replace the 'culture of impunity' with that of the rule of law. It is an intrinsically external and even interventionary attempt." H. Shinoda, Peace-building by the Rule of Law: An Examination of Intervention in the Form of International Tribunals, Institute for Peace Science, Hiroshima University, 2001, at 2, available at http;llwww.theglobalsite.ac.uk (last visited Aug. II, 2005). 62 UNHCHR, supra note 58, para. 48. 63 United Nations, Secretary-General s Address to the General Assembly, New York, Sept. 21, 2004. 64 Vienna Declaration and Programme of Action, supra note 32, para. 60.

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and impunity in the final agreement. Whereas amnesties have been accepted, even reluctantly as part of a necessary evil in the past,65 the United Nations has recently been very vocal in condemning such pieces of legislation when they grant immunity to those who committed war crimes, crimes against humanity, genocide or serious violations of human rights.66 The UN bodies involved in peace building activities accept only amnesties for less serious crimes, conditional and limited in accordance with international law. 67 The local population, on the other hand, reacts to amnesties in various ways. For example, "after 35 years of civil war the majority of ordinary Guatemalans viewed the peace accords concluded in December 1996 as a failure of justice when the government passed a National Reconciliation Law establishing a general amnesty for the armed forces and police."68 On the other hand, the wide amnesty offered by the authorities in Mozambique to all fighters on both sides of the internecine conflict set the stage for a peaceful life. 69 A similar stance was adopted regarding the conflict in South Sudan. Secondly, new mechanisms are set up. Operationalizing the rule of law when looking for mechanisms addressing past atrocities means considering the particular needs and nature of the society shattered by years of conflict. Until recently UN intervention in response to international crimes "was restricted almost exclusively to 'criminal prosecution' ."70 Dealing with past crimes via criminal law may not always be the best solutions, all the more as "criminal law itself always consolidates some hegemonic narrative, some understanding 65 S. Chesterman, "Rough Justice: Establishing the Rule of Law in Post-Conflict Territories," 20 Ohio State Journal on Dispute Resolution 74-77 (2005). 66 See in particular C. Stahn, "United Nations Peace-Building, Amnesties and Alternative Forms of Justice: A Change in Practice," 84.845 International Review of the Red Cross 191-205 (2002). One must, however, note that the United Nations is rather inconsistent in its policies as it sometimes opines to amnesties concessions whereas it refuses them in others. An example is the protection indirectly offered to ECOMOG soldiers before the Special Court for Sierra Leone inasmuch as the Court must step over the hurdles of complementarity and the agreement of the Security Council (see Article I of the Statute). Statute of the Special Court for Sierra Leone, available at http://www.scsl.org/scsl-statute.html (last visited Aug. 28, 2005). 67 It was thus difficult for the United Nations to see how the negotiators to the Bonn agreement discussed whether or not there would be an amnesty for past abuses. N. Kritz, "Reluctant Nation Building: Securing the Rule of Law in Post-Tali ban Afghanistan: Promoting a Formal System of Justice," 17 Connecticut Journal of International Law 453 (2002). 68 Mani, supra note 17, at 10. 69 1. Baptista Lundin, The Peace Process and the Construction of Reconciliation Post Conflict-The Experience of Mozambique, International Seminar "Experiences of Penal Alternatives in Peace Processes," Centre for Strategic and International Studies, Barcelona, February 27-28, 2004. 70 R. Haveman, "The (Ir)rationality of Supranational Prosecutions," at I, available at http://www.isrc!.org/Papers/2004/Haveman.pdf (last visited Aug. 18, 2005).


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of the political conflict which is a part of that conflict itself."71 Hence, the political as well as the socio-economic aspects of the country must be assessed and put in the balance so as to prompt a rule of law mechanism tailored to the situation. Slowly, the United Nations has recognized that supplying ready-made solutions is not appropriate and that it should focus on case-specific responses. Not all conflict-wracked societies are willing to install such mechanisms; they believe that the lack of prosecution will, contrary to the now commonly held view,n foster peace and reconciliation. Mozambique decided against the setting of any mechanism to address the past7 3 probably because a "lack of a clear distinction between "good guys" and "bad guys" makes a penal approach less obvious."74 Thus, some authors contend that rule of law programs must be "demand rather than supply-driven."75 At first glance, this understanding seems however to contradict the principle of rule of law that summons the United Nations to equally apply norms of international law. In reality, it demonstrates that in UN decisions to set up new mechanisms, political considerations are of great importance, especially when these decisions are taken by the Security Council. The author therefore argues in favor of providing the United Nations with more rule of law tools so as to ensure that the principle of equality before the law is respected throughout the world.

B. Setting Up Post-Conflict Judicial Mechanisms Assuredly, by choosing a certain mechanism or body to tackle past abuses, the United Nations designs a certain path to reaching the rule of law,76 and gives its legal and judicial imprimatur. "[T]he initial choice of institutions and the way they operate and evolve over time is influenced to a large extent by a host 71 M. Koskenniemi, "International Law and Hegemony: A Reconfiguration," 17.2 Cambridge Review of International Affairs 210 (2004). Haveman also opines that "[i]t is a well-known fact that the victorious in a conflict have the power to define the situation." Haveman, supra note 70, at 3. 72 The general view is that "[ w ]ith respect to war crimes and crimes against humanity, the affected society and the international community need to have the events not only recognized, but acted on." Betts, Carlson & Gisvold, supra note 59, at 380. 73 Mani, supra note 17, at 18. 74 Haveman, supra note 70, at 3. 75 International Peace Academy, supra note 33, at 3. 76 "In those circumstances where an international justice role is seen as necessary to ensure justice for war-time atrocity crimes, the strategic planning for that role should nonetheless point toward the development of a sustainable national legal system, and not simply focus on what will suffice for near-term justice." Partnership Program on Peace-building and Rule of Law, Program on Peace-Building and Rule of Law, available at http://pbpu.unlb.org/PBPUlDownload.aspx?docid=455 (last visited Aug. 28, 2005).

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of contingent, context-specific factors"77 in addition to those dictated by the United Nations or by certain states after a political decision that is the product of a power struggle between states and institutions.7 8 The United Nations cannot afford bolstering up mechanisms that are not committed to the rule of law, human rights and a responsible public discourse.7 9 More importantly, "[i]t is not simply well articulated laws and finely conceived institutional structures that lead to a credible judicial system. The application of laws, observance of due process, and the visible functioning of the judiciary are equally imp ortant."80 Undoubtedly the United Nations has generally observed the rule of law in its peace-building operations, although unfortunately some blunders have blighted its record, sometimes to the degree that the population has lost faith in its works and in the rule of law itself.

1.

Setting Up an International or Internationalized Tribunal

In setting up international criminal tribunals or internationalized courts, the United Nations is assuredly assuming quasi-regal ian functions. 8! As explained above, since the United Nations is, under these conditions, working like a government, it is bound by the rule of law. On the other hand, when the regimes set up include more national than international components, the United Nations cannot be considered as working like a state, e.g., in Afghanistan or in BosniaHerzegovina. In this case the obligation to guarantee the rule of law is left in the hands of the state, and the United Nations is only required to promote this tenet. One of the preferred mechanisms of the United Nations to cope with past atrocities is the creation of tribunals, be they international, internationalized or embedded in the domestic system yet containing international elements.

i. The Legal Foundations of Such Tribunals

In any case, the newly created judicial structure must have the clout and support to effectively exercise the powers and competences vested in it so that Peerenboom, supra note 11, at 21. "Delicate balance of power and interests best explain why international tribunals are established in some cases but not in others." M. Othman, "East Timor: A Critique of the Model of Accountability for Serious Human Rights and International Humanitarian Law Violations," 72 Nordic Journal of International Law 455 (2003). 79 UN Secretary-General, supra note 16, para. 19. 80 Othman, supra note 78, at 460. 81 F. Megret & F. Hoffmann, "The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibilities," 25 Human Rights Quarterly 340 (2003). 77 78


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the population believes in the rule of law. The manner in which the first two international criminal tribunals were installed led to a plethora of legal literature because some argued that the Security Council was not empowered to create such an organ. At the heart of the inquiry into international criminal tribunals is whether the establishment of such institutions does not contravene the precept of the rule of law. Indeed, in pursuance of this tenet, law determines who, when and according to which criteria such bodies are built. The question therefore relates to the powers of the body, in this instance the Security Council, which institutes the international criminal tribunal. While criticism flourished in the aftermath of the institutionalization of these courts, the first opponents seem to have settled on the position that the decision to design such an international criminal court was in conformity with Article 41 of the UN Charter that empowers the Security Council to take any measures to ensure the world's peace and security. Such change in the perception of the legality of the creation of the tribunal according to the rule of law was prompted by the decision of the ICTY in the jurisdiction case on Tadic. 82 Yet the great selectivity of the UN Security Council in setting up international criminal tribunals in some countries though not in others, is questioned by many authors. No doubt that "each war crimes trial is an exercise in selective justice to the extent that it reminds us that the majority of war crimes go unpunished."83 Undoubtedly, the rule of law, and the principle of equality before the law, in particular, is paying the high price of international politics and national interests. For example, one may astutely ask why no such tribunals were ever mentioned in the framework of the conflicts in Colombia, Congo, Chechnya or South Sudan. A further ground for criticism relating to the creation of the ad hoc international criminal tribunals is that the Security Council can at any time terminate the proceedings if it believes the courts to have completed their work or forward the cases to the domestic courts. Collegiality was, however, respected in this case, and a completion or exit strategy was designed by the ICTY in collaboration with the OSCE and the Security Council. 84 A worse mechanism was put into place in the ICC Statute that allows the Security Council to stay the proceedings and thereby steer the investigations in a particular direction or simply close the case. 85 The rule of law is terribly constrained under these cir82 ICTY, Prosecutor v. Tadic (Jurisdiction), IT-94-l-AR 72, Appeals Chamber, Oct. 2 1996, para. 34 et seq. 83 G.J. Simpson, "War Crimes: A Critical Introduction," in T.L.H. McCormack & G.J. Simpson (eds.), The Law of War Crimes: National and International Approaches 11 (1997). 84 M. Bohlander, "Last Exit Bosnia-Transferring War Crimes Prosecution from the International Tribunal to Domestic Courts," 14 Criminal Law Forum 59-99 (2003). 85 For a critique, see R.C. van Ooyen, "Der Internationale Strafgerichtshofzwischen Normativitiit, Machtpolitik und Symbolik," 4 Internationale PoUtik und Gesellschaft

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cumstances. A ray of hope is that the next generation of tribunals, such as the Special Court for Sierra Leone, which was stimulated with too much impulse of the Security Council, does not face this challenge.

ii. Rule of Law and Human Rights: A Molotov Cocktail?

The path to deal with past crimes by way of criminal law is often criticized, predominantly because international criminal law incorporates human rights notions that are not widely accepted. 86 In administrating justice, the United Nations must ensure that it scrupulously complies with international standards of human rights.87 It is argued that this imposition of human rights norms is for the best of the country, for these rules "were not subject to regional conflicts [and are therefore] expected to be contributory to pinning the ethical standard of conflict-ridden areas."88 However, the international community sometimes may propound norms that are at odds with local customs and traditions and most notably with local norms for punishment. Quite illustratively the International Criminal Tribunal for Rwanda cannot condemn a person found guilty to death, while this is possible for local criminal courtS. 89 Thus, those who were in charge of or committed the most egregious crimes may not meet death whereas those who participated at the lowest levels of the hierarchy may face the death penalty. For the Rwandan population, this difference is incomprehensible inasmuch as those who devised and organised the genocide may get off lighter than those who simply carried out the orders.90 Yet, for the Secretary-General, it is clear that UN engagement in the formation of post-conflict judicial mechanisms is bound by certain rules such as the prohibition of capital punishment. 91 110-123 (2002), N. Quenivet" 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 29-51 (2003). 86 Peerenboom, supra note II, at 67. 87 UN Secretary-General, supra note 16, para. 10. 88 Shinoda, supra note 61, at 9. 89 For example, "[t]he first two defendants convicted of genocide and rape were both sentenced to death by a Rwandan court, even though they were seemingly minor players in the genocide." G. Erasmus & N. Fourie, "The International Criminal Tribunal for Rwanda: Are all Issues Addressed? How Does it Compare to South Africa's Truth and Reconciliation Commission?," 321 International Review of the Red Cross (1997), available at http://www.icrc.org (last visited Aug. 18, 2005). 90 M. Bakaramusa, "IdentifYing and Prosecuting War Crimes: Two Case StudiesThe Former Yugoslavia and Rwanda," 12.3 New York University Law School Journal of Human Rights 648 (1995). 91 UN Secretary-General, supra note 16, para. 10. The lack of UN imprimatur is evident in the Iraqi Special Tribunal, since convicts may be sentenced to death.


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Further, as Peerenboom points out "the requirement of transitional justice and a [minimalist] rule oflaw are often at odds. Holding former leaders accountable may require setting aside laws that legitimated their actions ignoring amnesty agreements entered into as a condition for relinquishing power."92 In Sierra Leone, while the peace brokers in 1999 granted complete amnesty to all combatants the United Nations dismissed this clause when it set up the Special Court for Sierra Leone in agreement with the new government. Article 10 of the Statute creating the tribunal stipulates that no one can rely on the absolute and free pardon of the 1999 Lome Peace Agreements. 93 Later, in the Kallan and Kamara case, the Tribunal confirmed that amnesties are not considered as valid in international tribunals. 94 The current position of the UN SecretaryGeneral underlined in his report on the rule of law, is that the United Nations cannot and will not tolerate amnesties for genocide, war crimes, crimes against humanity and gross violations of human rights.95 Overriding an earlier national decision, the United Nations imposed its own version of the rule of law, which included a human rights component. 96

iii. The Principle of Equality Before the Law

The principle of equality of all before the law, which is at the core of the rule of law, is also strained in international criminal courts. Countless individuals, states and groups criticize the selectivity of those indicted and convicted inasmuch as, for example, more persons of Serbian than of Bosnian or Croat origin were brought before the ICTy'97 This, in their opinion, shows not only the selectivity of the Court but also of the international community that Peerenboom, supra note 11, at 75. Statute of the Special Court for Sierra Leone, supra note 67. Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, Freetown, Jan. 16, 2002, available at http://www.scsl.org. (last visited Aug. 18, 2005). 94 Prosecutor v. Kallon and Kamara, Case No. SCSL-2004-15AR72(E) and SCSL-2004-16 AR72(E), Decision on Challenge to Jurisdiction: Lome Accord Amnesty, Mar. 13,2004. See also S. Meisenberg, The Lome Amnesty Decision of the Special Court for Sierra Leone, Bofax No. 274, Institute for International Law of Peace and Armed Conflict, June 28, 2004. For a discussion on this case and amnesties in Sierra Leone see S. Meisenberg, "Legality of amnesties in international humanitarian law The Lome Amnesty Decision of the Special Court for Sierra Leone," 856 International Review of the Red Cross 837-851 (2004). 95 UN Secretary-General, supra note 16, para. 10. 96 Nonetheless, one must bear in mind the previous comments pertaining to UN ambivalence towards the adoption of amnesties. See in particular its position regarding Afghanistan. 97 K. Chiedu Moghalu, "Image and Reality of War Crimes Justice: External 92

93

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created and is financing this body. Rapidly, the idea of victors' justice came to the mind of those who considered themselves as victimized by the policy of the Tribunal. Yet, this criticism is seriously flawed because it is a fact that the majority of the crimes perpetrated during the armed conflicts on the territory of the Former Yugoslavia were perpetrated by persons of Serb origin. Besides, in order to compensate this imbalance the ICTY indicted some Bosnian Muslims who had committed less violent crimes than Serbian indictees. As Jones explains, this can be regarded as prosecution to establish a moral equality.98 Moreover, illustratively, detractors of the ICTY also claim that the decision not to prosecute the leaders of the countries that carried out the March-April 1999 bombings in Kosovo was not based on legal but on political grounds. This choice, however, was taken on the basis of other grounds such as the lack of criminal intent. 99 Victors' justice is also reflected in the national prosecution of mainly Serb defendants in Kosovar courts, which are overwhelmingly manned by Albanians. 100 "Evidence of bias on the part of the local judiciary against minorities-both as victims of crime and as defendants" was indeed found by a report of the OSCE in 2000. 101 Further, as the Kosovar Serb defendants refused to be defended by Kosovar Albanians, UNMIK appointed international lawyers to satisfy the need for credible neutrality in the proceedings. 102 To ensure that judges were available in areas widely inhabited by Serb and other minorities, where civil unrest was preponderant and the judicial response inadequate, UNMIK appointed international judges 103 hoping to build public confidence in the judicial Perceptions of the International Criminal Tribunal for Rwanda," 26.2 Fletcher Forum of World Affairs 38 (2002). 98

J.R.W.D. Jones, "The Gamekeeper-Turned-Poacher's Tale," 2 Journal of

International Criminal Justice 486-494 (2004). 99 See, e.g., N. Quenivet, "Report of the Prosecutor of the ICTY Concerning NATO Bombing against the FRY: A Comment," 41.3 Indian Journal of International Law 478-495 (2001); P. Benvenuti, "The ICTY Prosecutor and the Review of the NATO Bombing Campaign against the Federal Republic of Yugoslavia," 12.3 European Journal

of International Law 503-530 (2001). 100

EM. Lorenz, "The Rule of Law in Kosovo: Problems and Prospects," II

Criminal Law Forum 133 (2000). The United Nations acknowledges that "Kosovo Serbs

comprise about 5 per cent of all judges and 4 per cent of all prosecutors." United Nations, Report of the Secretary-General on the United Nations Interim Administration Mission to Kosovo, UN Doc. S/2004171, Jan. 26, 2004, para. 25. 101 OSCE, Oct. 17, 2000, reported in United Nations, Report of the SecretaryGeneral on the United Nations Interim Administration Mission in Kosovo, UN Doc. S/200071196, Dec. 15,2000, para. 44. Similar problems were pointed out in Bosnia

where trials were considered as opportunities for dispensing ethnic justice. Consultants' Report to the OHR, The Future of Domestic War Crimes Prosecutions in Bosnia and Herzegovina, May 2002, Annex 5, at 5-7. 102 Betts, Carlson & Gisvold, supra note 59, at 381. 103 UNMIK, Regulation 200016 On the Appointment and Removal from Office


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system. I04 Later these judges were dispatched to other districts, but their role was not limited to examining past abuses. Although in 2000 the United Nations reported that they were involved in war and ethnically related crimes,I05 this was not the case anymore in 2003 when it declared that they worked as normal lawyers and were not particularly entrusted with sensitive cases l06 as the ability of the local judiciary to take on sensitive cases improved. lo7 Besides, the Kosovo War and Ethnic Crimes Court was promoted as an interim tribunal to tackle, among others, war crimes, crimes against humanity and genocide. Yet, in September 2000 the United Nations discarded the idea, preferring to rely on international staff placed in the five judicial districts in KosOVO.I0 8 Selectivity is more generally present in the prosecutorial policies of the international criminal tribunals, which are slated for charging those against whom it is easy to find evidence I09 or those who can easily be physically brought to justice. For instance, one may rightfully ask whether alleged perpetrators of crimes committed in Kosovo, who are residing outside the province, will even be brought to justice. 110 UN lack of will to put pressure on the government of Serbia and Montenegro impairs its credibility and effectiveness in the administration of Kosovo according to the rule oflaw. In contrast the ICTR is hailed of International Judges on International Prosecutors, UN Doc. UNMIKIREG/2000/6, Feb. 15,2000. See United Nations, Report of the Secretary-General of the United Nations Interim Administration Mission in Kosovo, UN Doc. S/2000/1n, Mar. 3, 2000, para. 110. For an excellent analysis of the role of international judges in the promotion of the rule of law in Kosovo, see A. Schroder, Der Beitrag internationaler Richter und Staatsanwiilte zur Entwicklung der Rechtsstaatlichkeit im Kosovo, Zentrum fUr Internationale Friedenseinslitze, Aug. 2004, available at http://www.zif-berlin.org/ Downloads/Internationale_Richter_und_Staatsanwaelte.Kosovo.pdf (last visited Aug. 19,2005). 104 United Nations, Report of the Secretary-General of the United Nations Interim Administration Mission in Kosovo, UN Doc. S/2000/538, June 6, 2000, para. 60. 105 !d., para. 60. The same is declared in United Nations, Report of the SecretaryGeneral of the United Nations Interim Administration Mission in Kosovo, UN Doc. S/2003/113, Jan. 29, 2003, para. 33. 106 "There are also 17 international judges and 10 international prosecutors placed at the District and Supreme Courts of Kosovo and the Office of the Public Prosecutors. They handle approximately 3 per cent of criminal cases considered as sensitive." United Nations, Report of the Secretary-General on the United Nations Interim Administration Mission to Kosovo, UN Doc. S/2003/421, Apr. 14,2003, para. 16. 107 United Nations, Report of the Secretary-General of the United Nations Interim Administration Mission in Kosovo, UN Doc. S/2003/996, Oct. 15,2003, para. 23. 108 International Crisis Group, Finding the balance: The scales ofjustice in Kosovo, Balkans Report No. 134, Sept. 2002, at 20. 109 D. Pankhurst, "Issues of Justice and Reconciliation in Complex Political Emergencies: Conceptualising Reconciliation, Justice and Peace," 20.1 Third World Quarterly 249 (1999). 110 Betts, Carlson & Gisvold, supra note 59, at 387.

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as a triumph: the general population has an increasingly positive image of the work carried out by the Court because of the "tribunal's successes in apprehending the 'big fish,' accused persons whom most Rwandans knew were effectively beyond the reach of the domestic judicial system."111 Selectivity can also be enshrined in the peculiar choice of the international community which, in the case of East Timor, preferred to approve a two-track, both national (one in East Timor and one in Indonesia), approach to bringing perpetrators to justice. 112 However, this decision left free from prosecution all alleged wrongdoers of Indonesian origin who had to be hauled into an ad hoc Human Rights Court in Jakarta, which, unfortunately, acquitted most suspects. It is incontrovertible that the Indonesian judicial system is unwilling to dispense justice in this regard. Although the Special Panels for Serious Crimes in Dili could prosecute any person suspected of genocide, crimes against humanity, war crimes and torture, as well as murder and sexual offenses, 113 their work was severely hampered by the inability of the prosecutor to obtain the extradition of nationals of East Timor who had found refuge in Indonesia. I14 Inevitably the viability and credibility of an accountability mechanism, which claims to be based on the rule of law, depends on whether it can summon perpetrators to justice. The number of expectations were very high, victims felt that justice had not been meted out and "concern [was expressed] about the performance of UNTAETI15 and the East Timorese judicial system in delivering justice,"116 which led various associations of Timor Leste to call for the establishment of war crimes trials. ll7 As soon as 2001 118 a group ofNGOs lobbied for the birthing III K. Chiedu Moghalu, "Image and Reality of War Crimes Justice: External Perceptions of the International Criminal Tribunal for Rwanda," 26.2 Fletcher Forum of World Affairs 28 (2002). 112 UN Security Council, Report of the Security Council Mission to East Timor and Indonesia, UN Doc. S/2000/l105, Nov. 20, 2000, para. 28. 113 UNTAET, Regulation 200011 IOn the Organization of Courts in East Timor, UN Doc. UNTAET/REG/2000111 (2000), Mar. 6,2000. 114 Concerning the lack of cooperation between Indonesia, the government of East-Timor and the United Nations, see more generally L. von Braun, "Die Strafverfolgung von Menschenrechtsverbrechen aus der Praxis: Entwicklung, Struktur und Leistungsrahigkeit des Sondergerichts in Osttimo~" 2 Journal ofInternational Law of Peace and Armed Conflict 102-104 (2005). 115 One should not forget that Security Council Resolution 1272 bound UNTAET to hold accountable those responsible for serious international humanitarian law violations. See SC Res. 1272, UN Doc. S/RES/l272 (1000), Oct. 25,1999, para. 17. 116 S. Pritchard, "United Nations Involvement in Post-Conflict Reconstruction Efforts: New and Continuing Challenges in the Case of East Timor," 24.1 University of New South Wales Law Journal 186 (200 I). See also s. Linton, "Prosecuting Atrocities at the District Court of Dili," 2 Melbourne Journal ofInternational Law 456-458 (2001). 117 Marshall, supra note 57, at 11. 118 See, for example, Justicefor East Timor, June 13,2001, at http://www.globalpolicy.org/intljustice/tribunals/200 1/07 I 3intlcall.htm (last visited Aug. 18, 2005).


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of an international tribunal for East Timor to bring to justice perpetrators of crimes against humanity and gross violations of human rights. As a partial answer to these calls, on February 18, 2005 the UN Secretary-General announced the establishment of a commission tasked to review the prosecution of serious human rights breaches committed in Timor-Leste in 1999. 119 It thereby recognised UNTAET's failure in prosecuting perpetrators of past abuses and delivering justice according to the rule of law.

iv. The Independence of the Judicial Apparatus

The question of the independence of judges and, more generally, of the personnel employed in tribunals addressing past crimes must be raised. First, legal personnel must be free from corruption. Nonetheless, due to realities on the ground, national personnel are often linked to particular factions or families who are in power in political institutions. Second, in the particular context of prosecuting those involved in past atrocities, the United Nations must ensure that judges, prosecutors and lawyers alike are free from bias regarding the past. In Bosnia "[0 ]ne serious mistake was to retain the old judicial system more or less intact for several years, which, to a high degree, helped preserve the strong ethnic tensions long after the war was over. It is not until the last few years that a major overhaul of the judiciary has been carried out, which has proven to be a major step forward."I20 In contrast, Geoffrey Robertson, one of the judges of the Special Court for Sierra Leone had to resign after the defense argued that his opinion was biased, inasmuch as he had depicted Sierra Leone's rebels as bloodthirsty criminals in a book.l2l In Kosovo, a further hurdle emerged notably that national judges might be appointed on a short-term contract subject to periodical renewal by the international administration. I22 In this context, one may legitimately raise the issue of the independence of judges who may wish to see their contracts renewed and, therefore, do everything in their power to please the international admin119 UN Security Council, Letter dated 26 January 2005 from the President of the Security Council addressed to the Secretary-General, UN Doc. S/2005/97, Feb. 18, 2005. 120 Ahlund, supra note 53, at 40. 121 Special Court for Sierra Leone, Prosecutor v. Sesay, Decision on defense motion seeking the disqualification of Justice Robertson from the Appeals Chamber, SCSL-04-15-PT-058, Mar. 13,2000 and Special Court for Sierra Leone, Prosecutor v. Sesay, Decision on defense motion seeking clarification of the decision on the disqualification of Justice Robertson from the Appeals Chamber, SCSL-04-IS-PT-140, May 25, 2004. 122 C. Stahn, "Justice under Transitional Administration: Contours and Critique of a Paradigm," in H. Fischer & N. Quenivet, Post-Conflict Reconstruction: Nationand/or State-Building? 157 (2005).

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istration. International judges there are also bound to the United Nations as they enjoy the status of UNMIK civil employees and, hence, their contract is in the hands of the UN administration. 123 "Non-extension [of contracts] may, in particular, be a means of holding judges accountable for specific conduct undertaken within the term of their offices, which is manifestly incompatible with the independence of the judiciary."124 Removal is also a fairly quick affair since the United Nations is allowed to dismiss international and national judges for "serious misconduct" or "failure in the due execution of office," grounds that may be viewed as rather indeterminate. 125 Further, according to Regulation 2000/64, cases are assigned to international judges by the Special Representative of the Secretary-General and not in a random fashion. 126 This situation undoubtedly questions the independence of the judicial system that addresses past abuses. In contrast, in international criminal courts, prosecutors and judges are nominated by the United Nations. For example, judges of the ICTY are nominated and elected by the UN General Assembly on the basis of a list approved by the UN Security Council. The Chief Prosecutor is appointed solely by the Security Council on the recommendation of the Secretary-General. "To avoid drawing criticism that the chief prosecutor merely serves the interests of the powerful, council members have carefully selected 'neutral' parties for this position."127 Further, the independence shown by certain prosecutors, such as Carla del Ponte, unassailably proves that they act free of political pressure. This system seems to be firmly grounded in the rule oflaw. Nevertheless, in Rwanda, the events following the release of Barayagwiza tend to demonstrate the contrary. The Prosecutor managed to reverse the decision of the Appeals Chamber after the Rwandan authorities announced the suspension of its cooperation with the ICTR. The suspect was eventually tried but Barayagwiza and several other detainees went on strike claiming that this was victor's justice coming from Kigali. 128 However, the prosecutor's act must be understood in the light of Rwanda's duty to cooperate fully with the international tribunal. Inevitably,

123 OSCE, Review o/the Criminal Justice System, Sept. 2001-Feb. 2002, at 25 and OSCE, Review o/the Criminal Justice System, Mar. 2002-Apr. 2003, at 28. See also Schroder, supra note 103, at 14. 124 Stahn, supra note 122, at 157. 125 Id. 126 UNMIK, Regulation 2000/64 On Assignment 0/ International Judges/ Prosecutors and/or Change o/Venue, UN Doc. UNMIKlREGI2000/64, Dec. 15,2000. See also Schroder, supra note 103, at 14. 127 C. Rudolph, "Constructing an Atrocities Regime: The Politics of War Crimes Tribunals," 55.3 International Organization 663 (2001). 128 1. Metcalfe, "The Politics of Justice at the ICTR," Internews, Mar. 1,2000, available at http://www.allafrica.com/storiesI200003230064.html(lastvisitedAug.II , 2005); ICTR, "ICTR Detainees Announce 'Strike' ," Press Release, ITR/INFO-9-2246.EN, Arusha, Oct. 26, 2000.


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such pressure on the ICTY would have been useless, inasmuch as non-cooperation meant that Rwanda was violating the Security Council's resolution that created the tribunal and that, inevitably, the Security Council would have summoned Rwanda to resume its cooperation with the tribunal.

v. The Right to a Fair Trial Generally it can be asserted that all those hauled into court for crimes against humanity, genocide and breaches of international humanitarian law are given a fair trial. However, some specific points need to be raised, which shows the deficiencies of favoring certain types of judicial mechanisms over others. The East-Timorese judiciary was plagued by a lack of qualified personnel, as a result of which some defendants were not aware of their rights or understood little of the proceedings in which they were involved. 129 The dearth of proficient translators also impeded communication between the defendant and the international staff. Slowly, legal aid services were established, and all accused received legal representation so that "the requirements of fair trial and due process [were] being modestly met."\30 Undoubtedly this demonstrates that should the United Nations choose to set up a court ensconced in the national judicial system, albeit composed of mixed international and national staff, it must ensure that it also provides adequate training for the national legal and translating personnel, or, otherwise, the rule of law may be violated. Another human rights guarantee intertwined with the rule of law is the right of the defendant to be charged within an appropriate time period. From the outset, the ICTR was reprimanded for excessive delays in bringing suspects to trial. In the Appeals Chamber, the judges found that the infringements of the defendant's right to freedom from arbitrary detention and to be tried within a reasonable time were so egregious and detrimental to the Court's integrity that the indictment had to be dismissed and the accused released. l3l This position was however abandoned in later cases. In another case, the ICTR, in contravention of human rights best practices, refused to indemnify a person wrongly detained, as he was mistaken for another person. 132 The situation in the national Pritchard, supra note 116, at 187. Othman, supra note 78, at 465. 131 ICTR, Prosecutor v. Barayagwiza, Case No. ICTR-97-19-1, Appeals Chamber, Nov. 3, 1999. See also W. Schabas, "Barayagwiza v. Prosecutor," 94 American Journal of International Law 638---ti45 (2000). In East Timor due to the slow pace taken by the Special Panels and the failing detention capacities, some alleged perpetrators were released. Ie. Beauvais, "Benevolent Despotism: A Critique of UN State-Building in East Timor," 33 New York University Journal of International Law and Politics 1155 (2001). 132 Amnesty International, United Nations International Criminal Tribunal for Rwanda: Trials and Tribulations, AI Index lOR 40103/98, Apr. 1998. 129 130


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judicial system of Rwanda may be qualified as worse, as, burdened with processing some 120,000 suspects who had been arrested in 1994, it only decided in 200 I to surrender some of them to the Gacaca courts, realizing its inability to cope with the monumental task of hauling them into court. Yet, despite this release en masse, some suspects have been held for years without being formally charged. Although the United Nations may not be directly blamed for this calamity, there is no doubt that it could have been a guiding hand in the process, inasmuch as it was already involved in the prosecution of genocide suspects in Rwanda by an international ad hoc court and it had pledged its support in rebuilding and reinforcing the legal system. 133 These cases inevitably demonstrate the current constraints of international law, inasmuch as it allows for the United Nations to be involved in certain activities as far as state sovereignty allows it.

2.

Setting Up a Domestic Mechanism

As Kritz explains "[i]t's fine to talk about the establishment of an international criminal court. It's fine to establish tribunals for Yugoslavia or for Rwanda. The fact is, those institutions serve important functions. But they don't change the fact that societies, locals, need to come to terms with problems in their own societies."134 In reality, the incapacity of the United Nations to mete out justice in all cases is one of the most significant reasons for turning towards the domestic realm; the United Nations cannot accept impunity and, therefore, must consider domestic judicial or traditional mechanisms. 135 Such mechanisms, revived and given a new meaning or maintained with even more legitimacy, are built either instead of criminal prosecution or concurrently. In any case, the international community identifies them as more or less ideal conduits for delivering justice and reconciliation. In addition, the national judicial system may be used to address crimes that occurred during the conflict. In the beginning, the United Nations was skeptical as to the viability of such a solution but the idea gained momentum when 133 Pankhurst, supra note 109, at 252. In addition, the ICTR has recently decided to forward some cases to the national level in Rwanda. S. Maupas, "Le TPIR veut transferer des detenus au Rwanda," Le Monde, Mar. 3,2005, at 4. 134 Kritz, supra note 67, at 452. 135 "The pervasive culture of impunity so prevalent in contemporary armed conflicts has challenged the international community to find more immediate 'rule oflaw' solutions and new ways to interact with the perpetrators of genocide, ethnic cleansing and other atrocities collectively referred to as 'crimes against humanity.' It has also raised the prospect of some perpetrators being held to account through traditional systems of justice." Darvill, supra note 7, at 6.


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the United Nations realized that it would not be able to install international mechanisms everywhere.

i. Truth and Reconciliation Commissions and Traditional Institutions Away from criminal proceedings, Truth and Reconciliation Commissions are employed by post-conflict societies to come to terms with past atrocities. Although it is true that the first commissions were ensconced under national procedures away from the eyes of the United Nations, their future existence is likely to be influenced by international organizations. I36 For instance, even though the Commission for Reception, Truth, and Reconciliation of East Timor was an original idea of the National Council of Timorese Resistance, it formally came into being by a UNTAET regulation. I37 On the other hand, the United Nations hindered the creation of such a commission in BosniaHerzegovina, claiming its own right to decide on the most appropriate fashion to handle past crimes. I38 In particular, the ICTY, in the belief that it was the sole guarantor of justice, peace and reconciliation in Bosnia-Herzegovina, rejected any attempt to design a domestic reconciliation regime since that would, in its opinion, impede the work of the ICTYI39 Should such a commission be set up, that could only be done on the basis of its subordination to the international judicial body. As a result "the interests and wishes of the people living in Bosnia are difficult to discern-all as a consequence of the international community's own preferential policies."I4o This shows that, in some instances, the United Nations was instrumental in installing such institutions; yet, as the example of the Gacaca illustrates, the United Nations simply had to admit their

136 For example, in El Salvador, the government refused to acknowledge the findings of the UN truth commission, although it committed itself under the peace agreement to abide by its conclusions. Indeed the commission found that the political party, which supported the government, had been involved in past atrocities. As a result the rule of law was trampled from the very outset of the new era under the "rule oflaw." 1. Johnstone, Rights and Reconciliation: UN Strategies in the Transition in EI Salvado (1995). 137 UNTAET, Regulation 2001110 On the Establishment o/a Commission/or Reception, Truth and Reconciliation in East Timor, UN Doc. UNTAET/REG/20011J0, July 13,2001. 138 Kritz, supra note 67, at 454. 139 M. Bohlander, "Last Exit Bosnia-Transferring War Crimes Prosecution from the International Tribunal to Domestic Courts," 14 Criminal Law Forum 63 (2003). 140 T.W. Waters, "Contemplating Failure and Creating Alternatives in the Balkans: Bosnia's Peoples, Democracy, and the Shape of Self-Determination," 29 Yale Journal 0/ International Law 430 (2004).

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existence. Indeed, the Gacaca 141 are working besides the ICTR and national criminal courts, providing a third and non-legal forum to investigate the past without any relation to the United Nations. As to the procedural and substantial work of these commissions and traditional mechanisms, the United Nations is unable to have any leverage on them since "[t]here is no role for outsiders except supporting their spiritual efforts toward reconciliation behind the scene."142 An exception to this rule is the Truth and Reconciliation in Sierra Leone, as several of its members were not citizens from this country (but from Canada, the Gambia and South Africa) and, thereby, provide an outsider's view on the conflict in this part of Africa. 143 This reluctance to tolerate foreigners is due to the fact that the primary aim of such commissions is to uncover truths in order to achieve national reconciliation. The United Nations can only be a mediator in the creation of such institutions and not a party to the debate since it would then impose its own perception of the conflict. In this case the United Nations is unable to instil the rule of law in the proceedings of such mechanisms. However, since these mechanisms do not prosecute and punish offenders, violations of the principle of rule of law and the consequences thereof may be of lesser gravity. Yet, it can also, e contrario, be argued that such mechanisms breach the rule of law because they foster impunity. On the other hand, by carefully considering the history, culture and development of the society disturbed by a conflict, the United Nations may be put in a position where it may support a traditional system that does not abide by the rule of law and human rights standards as defined by the United Nations. Not only "[s]imply because [these mechanisms] exist outside the control of the state does not guarantee that they embody any qualities of morality or concern for the greater good"144 but also they might work in gross contravention of the rule oflaw as understood by the United Nations. Drumbl poignantly shows that traditional systems of settling disputes in Afghanistan not only violate the rule of law in terms of procedure and substantial issues but may also lead to gross

141 The Gacaca, though called courts, have little to do with the Western understanding of this term. They are, in fact, a traditional communal dispute resolution mechanism stressing dialogue, reconciliation, confessions, and leniency. On the Gacaca, see, e.g., J. Sarkin, "Promoting Justice, Truth and Reconciliation in Transitional Societies: Evaluating Rwanda's Approach In the New Millennium of Using Community Based Gacaca Tribunals To Deal With the Past," 2.2 International Law FORUM du droit international 112-121 (2000), and A.E. Tiemessen, "After Arusha: Gacaca Justice in PostGenocide Rwanda," 8.1 African Studies Quarterly 57-76 (2004). 142 Shinoda, supra note 61, at 8. 143 Further, one notes also that Tomuschat (Germany) was a member of the Truth and Reconciliation Commission in EI Salvador. 144 Pankhurst, supra note 109, at 247.


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violations of human rights with regards to reparation and punishment. 145 Consequently it is hoped that the United Nations will not support initiatives to employ such mechanisms to tackle past abuses.

ii. National judicial System Most truth commissions operate as an alternative to criminal prosecutions. Nonetheless the national judicial system should also be considered as an alternative venue for tackling past abuses all the more as these courts will, in the future, be the only ones to which the local population will be able to turn. Unfortunately, a recurrent failure of the international community is to believe that states emerging from years of conflict are able to come to terms with the past without any support at all. The Secretary-General also recognized this mistake: "Restoring the capacity and legitimacy of national institutions is a long-term undertaking. However urgent action to restore [... ] rule oflaw cannot be deferred. Thus, United Nations peace operations are often called upon to help fill this rule of law vacuum."146 Cambodia and Afghanistan are two tragic illustrations of the UN gullibility towards national goodwill with regard to the creation of legislation dealing with past atrocities, the implementation of such rules by national courts and the arrest of suspects. For example, due to its limited if not non-existent mandate in terms of rule of law, the United Nations was not heavily involved in such programs in Cambodia. Although "UNTAC [... ] had its own prison, prosecutors, and judges, and it participated in drafting new laws for Cambodia,"147 it refused to be involved in the prosecution of past atrocities because a tribunal was not in the strategic interests of many states. 148 Moreover, the performance of Cambodian courts failed to attract the population's support in the judicial system and in the rule of law, 149 and Cambodia broke its engagement laid down in the Paris agreement to abide by human rights law. In retrospect, the UN Mission in Cambodia should have been endowed with a broader mandate and the means to establish genuine institutions abiding by the rule of law or provide extensive financial, material and vocational support to those in charge of the legal and judicial system. Years later, the local Cambodian population "continue[ d] to demand jus-

145 M.A. Drumbl, "Rights, Culture, and Crime: The Role of Rule of Law for the Women of Afghanistan," 42 Columbia Journal of Transnational Law 349-390 (2004). 146 UN Secretary-General, supra note 16, para. 27. 147 w.G. O'Neill, "Gaining Compliance without Force: Human Rights Field Operations," in S. Chesterman, Civilians in War 100 (2001). 148 Rudolph, supra note 127, at 675. 149 K.E. Neilson, They Killed all the Lawyers Rebuilding the Judicial System in Cambodia, Occasional Paper No. 13, Centre for Asia-Pacific Initiatives, Oct. 1996, at 17.

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tice [... ] for the past"ISO so that in 1997 Cambodia requested the assistance of the United Nations in relation to past crimes committed by the Khmer Rouge. IS I Subsequently the United Nations, in agreement with the Cambodian government, in March 2003, decided in favor of the launching of the Extraordinary Chambers in the Courts of Cambodia that will prosecute breaches of international humanitarian law, crimes against humanity as well as genocide. A decade later the United Nations is in a similar position in Afghanistan despite several warnings. IS2 Having left the leading role in the process of judicial reconstruction to the Afghan Interim Administration, the United Nations was confined to assuming a role of technical assistance. ls3 UNAMA's mandate is interpreted as requiring the United Nations to facilitate rather than lead in the state-building process. Ahlund complains that "[t]he nebulous nature of that formula [used in Article 1.3 of the Bonn agreement] explains at least some of the disarray, which today characterizes the Afghan judicial system."IS4 The judicial reform is running slowly. As a result of the reality on the ground, very few officials implicated in past human rights abuses have been brought to justice. ISS What is more, former leaders implicated in past abuses are now holding official positions in Afghanistan's ministries while others are running for election.ls6 The outgrowth of this policy, wanted or not, is that total impunity in the name of national reconciliation is considered as an insult to victims and an affront to justice. IS7 Whereas straight after the Bonn agreement the government could have established a judicial mechanism when the various orchestrators of massive breaches of international law were not yet formally involved in governmental structures, the time lapse played in favor of those suspects who managed to gain key positions in the meantime. Leaving too much time IS8 to the Mani, supra note 17, at 7. For a historical view on the process, see B. Rajagopal, "The Pragmatics of Prosecuting the Khmer Rouge," I Yearbook ofInternational Humanitarian Law 189-204 (1998). 152 Kritz warned in 2002 that "the Afghan criminal justice system will be incapable, at least in the short term, and I would argue for the medium term probably as well, to take on many of these difficult and politically very sensitive cases in terms of prosecuting past major abuses." Kritz, supra note 67, at 454. 153 See Stahn, supra note 122, at 161-162. 154 Ahlund, supra note 52, at 44. 155 Human Rights Watch, An Open Letter to President Hamid Karzai, Dec. 3, 2004. 156 Human Rights Watch, Afghanistan: Bring War Criminals to Justice. Special Court Neededfor Past Atrocities, Press Release, July 7, 2004; and F. Chipaux, "Kaboul joue la carte de la reconciliation nationale avec les talibans," Le Monde, May 25, 2005, at 2. 157 Human Rights Watch, supra note 156. 158 The Secretary-General notes that "rule of law reforms and transitional justice activities often occur simultaneously with post-conflict elections, as well as with 150 151


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new government was evidently detrimental to the rule of law in Afghanistan. Now more and more claims stemming from various NGOs active in human rights request the establishment of some type of mechanism tackling past crimes, notably encouraging the Afghan Independent Human Rights Commission to suggest an appropriate institution that would hold accountable those having committed war crimes and crimes against humanity,159 as well as the establishment of a Special Court to try offenders. 160 In 2004 the Commission set up a division to investigate possible transitional justice mechanisms, a creation complicated by the official positions held by those who are likely to be indicted by the judicial system. 161

V. CONCLUSION The imposition of a certain type of rule of law in peace-building missions has been slightly counter-productive; it has not necessarily imbued the confidence of the local population in the rule of law as the example of SerbiaMontenegro shows. "The view has to be considered that, where the international community, and particularly the UN, implements international laws, it is imposing inappropriate values on societies which had no say in their design, and is furthering a project of oppression, of imperialism, or some other form of global dominance."162 Consequently, solutions suggested by the United Nations must be anchored in local views and accepted by the population who is going to build upon the institutions and rules created under the auspices of the international community. On a more general tone, the Secretary-General clearly recognized this necessity in the report A More Secure World: Our Shared Responsibility as he declared that "the core task of peacebuilding is to build effective public institutions that, through negotiations with civil society, can establish a consensual framework for governing within the rule of law."163 At the end of the continuum, leaving responsibility for the institutionalization and implementation of the rule oflaw in local hands has proved to be disastrous. Yet, I do not argue in favor of a steady and almighty intervention of the United Nations in designing post-conflict mechanisms. There is no need to devise the unfolding of fragile peace processes. Careful sequencing of such processes is vital to their success and legitimacy." UN Secretary-General, supra note 16, para. 21. 159 Human Rights Watch, supra note 155. 160 Human Rights Watch, supra note 157. 161 R. Garrison, Rebuilding Justice: The Challenges ofAccountability in Policing in Post-Conflicting Afghanistan, Conference of the International Society for the Reform of Criminal Law, Montreal, Aug. 8-12, 2004, at 8. 162 Pankhurst, supra note 109, at 254. 163 United Nations, A More Secure World: Our Shared Responsibility, Report of the High-level Panel on Threats, Challenges and Change, 2004, para. 229.

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ambitious schemes for international justice in all post-conflict situations. The United Nations should leave to the government and the local population the right to decide upon which regime best fits, yet be a guiding hand. If the choice is settled for a national mechanism, and it is evident that neither the legislation nor the judicial institutions are adequate, the United Nations should assist the government in this regard. The most significant contribution may be in providing vocational training,164 as well as financial and material support, for those who will prosecute, adjudicate and defend an alleged perpetrator's case. The United Nations could adopt a two-track approach based on the sovereignty of the states in which it is intervening and on the capacity of the new government to fulfill its international obligations according to the rule of law. If the United Nations is administering a certain population and territory, it is its duty to ensure that wrongdoers be punished according to the rule of law; if the United Nations is assisting a state in rebuilding its legal and judicial system, it should ensure that its guiding hand directs the state towards an effective rule of law. In both cases communication with local actors must be reinforced so that the adopted mechanisms instil general trust in the rule of law, and, further, judicial and legislative institutions can build upon this newly acquired and ingrained principle of law.

164 Strohmeyer believes that vocational training also gives a voice to the local population. H. Strohmeyer, "Making Multilateral Interventions Work: The UN and the Creation of Transitional Justice Systems in Kosovo and East Timor," 25 Fletcher Forum o/World Affairs 124 (2001).

CHAPTER 3 MILITARY AND LEGAL ASPECTS OF PSOS-THE EXAMPLE OF AUSTRIA'S DEPLOYMENT WITH KFOR Gerhard Scherhaufer*

The decisive requirements for the success of a peace support operation (PSO) are the legal basis and the political will to enforce it. Somalia, the UN Missions in Bosnia and Herzegovina (BiH) and the March riots in 2004 in Kosovo are examples of cases in which UN missions almost failed, particularly due to the lack of will of the political authorities or the impossibility for the peacekeeping troops-dictated by the lacking legal authority-to resort to the use of force. Contingents deployed abroad need to be entrusted with sufficient powers, adapted to the circumstances, in order to guarantee reliability and solidarity for their international partners. The aim of this chapter is to illustrate the relationship between the military-political goals 1 and the legal framework ofPSOs.

I.

INTRODUCTION: THE RELATIONSHIP BETWEEN THE POLITICO-MILITARY AND LEGAL FRAMEWORK

The Austrian Armed Forces' (AAF) participation in international missions has general international politico-military reasons. An important objective in foreign politics, of both a military and political nature, for instance, is the showing of solidarity within the international community in keeping international peace and security.2 By increasing its participation in PSOs, Austria will be

* Legal Adviser in the Austrian Armed Forces, former Legad ofKFOR in Kosovo (2001-2005), and Legad of EUFOR in Bosnia (2005-2006). Particular thanks go to Col (GS) Christian Platzer, who, in 2004, was deployed with the author to Kosovo (KFOR). "Bundesverfassungsgesetz tiber Kooperation und Solidaritat bei der Entsendung von Einheiten und Einzelpersonen in das Ausland (KSE-BVG)," 6BGBl. I No. 38/1997 in the version 6BGBl. I No. 3011998, 3511998 (original version): § 1. Einheiten und einzelne Personen kiinnen in das Ausland entsandt werden 1. zur solidarischen Teilnahme an Ma13nahmen der Friedenssicherung einschlie13lich der Fiirderung der Demokratie, Rechtsstaatlichkeit und Schutz der Menschenrechte im Rahmen einer internationalen 67

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increasingly accepted and well-reputed by its international partners, particularly other troop contributing nations (TCN). The more "caveats" (reservations) Austria places on its participation in these missions, be these of a political or legal character, the less it will be credited. The political profit Austria and its armed forces are going to gain depends on the scope and amount of these reservations. From the international community's perspective, in particular that of the multinational command, these kinds of reservations are particularly cumbersome because they limit the options to use the contingent, thereby reducing its value to the mission. On the other hand, purely administrative reservations, such as financial restrictions, are less important. A loss of profitability of the contingent is perceived in particular when the TCN does not provide its own troops with the rules of engagement (ROE) of the mission-leading organization, which are based on international law. This aspect becomes particularly relevant in relation to the possibility to resort to force (e.g., use of lethal weapons). The deployment of the Kosovo Force (KFOR) was based on a Security Council resolution based on Chapter VII of the UN Charter,3 namely Resolution 1244 (1999), authorizing NATO to organize and lead the Force. It was then necessary to frame KFOR's powers and rights accordingly.4 Reference was made Organisation oder der Organisation fUr Sicherheit und Zusammenarbeit in Europa (=OSZE) oder in Durchfiihrung von Beschliissen der Europaischen Union im Rahmen der Gemeinsamen AuBen- und Sicherungspolitik oder. ... Dabei ist auf die volkerrechtlichen Verpflichtungen Osterreichs, die Grundsatze der Satzung der Vereinten Nationen sowie der SchluBakte von Helsinki und auf die Gemeinsame AuBen- und sicherheitspolitik der Europaischen Union auf Grund des Artikels V des Vertrages tiber die Europaische Union Bedacht zu nehmen. Unofficial translation: § 1. Units as well as single persons can be sent I. to jointly participation on a) measures ensuring peace including the promotion of Democracy, Rule of Law, Protection of Human Rights within the frame of an International Organization or the OSCE or in execution of resolutions of the EU within the ESDP or ... Within that there have to be considered the international obligations of Austria, the principles of the Charta of the UN, the Final Acts- of Helsinky, and the ESDP as given in art. V of Treaty on European Union. 3 San Francisco, June 26, 1945, oBGBl. No. 12011956 in the version oBGBI. No. 633/1973. 4 SC Res. 1244 (1999), para. 9 decides that the responsibilities of the international security presence to be deployed and acting in Kosovo (KFOR) will include, inter alia, the deterring of renewed hostilities, maintaining and where necessary enforcing a ceasefire and ensuring the withdrawal and preventing the return into Kosovo of Federal and Republic military, police and paramilitary forces (of the Former Federal Republic of Yugoslavia and now Federation of Serbia and Montenegro), the demilitarizing of the Kosovo Liberation Army (KLA) and other armed Kosovo Albanian groups and the ensuring of public safety and order until the international civil presence can take responsibility for this task.

Military and Legal Aspects of PSOs

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to NATO Directive MC 36211, which catalogues several ROE, according to different thinkable types of operations. This catalogue was dictated by the diversity of the several legal systems within the Euro-Atlantic space, which had to be coordinated at the political level. The ROE are constructed in a modular way, with each module detailing specific rights (especially the right to arrest). Therefore, when framing a mission, a political and military decision-making process is initiated choosing the relevant modules from the MC 36211. The single rule of engagement may only need to be further substantiated according to the specific needs of the mission. Thanks to the existence of this catalogue of rules, which has been agreed upon by NATO members when coordinating the different legal systems, the political discussion can focus on the specific powers to be granted to a specific mission. If it is accepted that NATO did sensible work in compiling this menu catalogue, it can be assumed that each right contained therein can be attached to a mandate in conformity with international law. It is a well-accepted principle of the law applicable to international armed conflicts, as well as to police forces or in case of self-defense, that the rights provided for in the ROE need to be applied in accordance with the principles of proportionality and necessity. In many deployments, life-threatening force will only rarely be used to accomplish the mission, but still the use of lethal force should be authorized. This applies also to Chapter VII missions, particularly those based on Article 42 UN Charter. In most dangerous situations, a solution may be to resort to the principle of self-defense (ordinary and extended). 5 However, a more comprehensive legal basis is necessary to grant the right to resort to the lethal use of force, when it is required to enforce a mandate established by a Security Council resolution. The notions of self-defense and extended self-defense are defined in Part II of MC 36211. However, MC 36211 itself does not provide for authorization. The domestic legal provisions of the respective national contingents apply. This is stated explicitly in MC 36211. The members of the Austrian Armed Forces, e.g., are subject to Article 3 of the Austrian Criminal Code. In order to solve the material differences between the notions of self-defense and extended selfdefense in the different domestic legal systems of the TCN, MC 36211 provides for specific ROE regulating situations of "hostile act" and "hostile intent." It is evident that the doctrine of self-defense per se does not provide a sufficient legal basis for the conduct of robust peacekeeping operations. This holds true for all those missions that are authorized under Chapter VII of the UN Charter, in particular peace-making missions, as mentioned in the "Petersberg tasks."6 Peacekeeping missions mandated by a Security Council resolution based In German there is a difference between irresistible compulsion "Not stand" (when the defensive act is directed towards a third person or an object differing from the aggressor) and self-defense "Notwehr" (when the defensive action is directed at the aggressor). In this chapter the term "self-defense" will include both options. In 1992 the WEU Council took a historic decision in Petersberg when it defined

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on Article 42 UN Charter are legitimate even if the parties to the conflict have not consented to their presence. But precisely these missions require more extensive rights of intervention: in case of necessity, the troops shall be allowed to resort to the force necessary to restore and keep international peace and security even if the parties to the conflict resist. In this respect it is particularly important for Austria to have symmetry between its politico-military objectives, on the one hand, and the legal framework, on the other hand, in order to minimize the likelihood of reservations as a TCN. If the legal framework for participation in international missions-and thus for adherence to their political aims-is insufficient, it must be adapted or completed. Otherwise, reservations to the mission may be required. If the legal framework is not adapted, and reservations are not declared, the commander on the field will have enormous difficulties when faced both with the international community's expectancy to act and with the impossibility to do so due to conflicting national legal provisions.

II. THE RIGHT OF INTERVENTION UNDER ARTICLE 42 UN CHARTER

TCNs to a multinational mission mandated under Article 42 UN Charter usually submit their troops either to a command established directly by the United Nations or the command of an international organization (10) entrusted by the United Nations. In order to guarantee cooperation between different national troops in a multinational operation, ideally uniform ROE are required. Their scope and content must be clearly understood by the members of these troops. If a TCN does not allow its troops to perform certain types of intervention, the com-

the scope of the crisis-management operations to which the governments wished to respond. These include humanitarian and rescue missions, peacekeeping and missions of combat forces in crisis management (now known as the "Petersberg tasks"). The Petersberg concept still provides the guidelines for today's ESDP crisis-management missions. The revision of the Treaty on European Union in Amsterdam in 1997 brought the "Petersberg missions" into the Treaty. In Article 17, the expression "peacekeeping" (in German version "friedensschaffend") is used to describe these military tasks, In the Agenda for Peace (UN Doc. A!47!277-S!24I 11, June 17, 1992). on the one hand, the heading of "peacemaking" is used several times. The expression "peace enforcement" (in the German version "friedenserzwingend") is used, when referring to scenarios where military force shaH be applied. These terms describe the character of such missions more precisely. After 1992 WEU set about acquiring the necessary operating structures, and, in the years that foHowed, its new structures were put to the test when it undertook a number of missions in connection with the conflict in the Former Yugoslavia. For more details, see http://www.assembly-weu.org/en/presentationlhistorique.html.


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mander of the international peacekeeping force in charge of these troops will need to know these limitations (caveats) in detail. Under international law, a Security Council resolution may authorize multinational troops to infringe state sovereignty or third parties' rights. However, it is necessary to clarify the extent and the circumstances in which the rules of the laws of armed conflict or humanitarian law (IHL) apply to these troops. On the other hand, it is necessary to clarify the extent to which a Security Council resolution may lawfully mandate these infringements. Its authority does not include breaches of non-derogable rights of international law. The applicability of IHL depends on whether the contingent troops retain their national identity in missions based on Article 42 UN Charter or whether they acquire the status of UN troops. Unless the United Nations will become a party to IHL treaties,? their direct applicability to UN troops will be excluded. 8 On the other hand, troops retaining their national identity in missions based on Article 42 UN Charter and qualifying as international armed conflicts will be considered combatants under IHL. In both cases, however, it is necessary to distinguish between the-generally-unlawful political decision to attack, by military force, the members of a peacekeeping mission and the lawful conduct of military warfare operations under IHL. Otherwise, the difference between the law regulating the right to go to war (ius ad bellum) and the law regulating conduct in warfare (ius in bello) would be thwarted. 9 Although the application of customary rules, like Article 3 common to the four Geneva Conventions of 1949, will be undisputed, an analogous reasoning cannot be made for the other provisions. 8 It is questionable whether troops provided on the basis of Article 43 UN Charter lose their nationality and, therefore, their submission to the IHL obligations ratified by their state of nationality. There is no doubt that such forces are acting for the United Nations and, on that basis, are limited by their authorization. But even when, on request of the United Nations, another 10 employs an international force for that purpose, that force is bound and limited in the same way. A different legal status of forces, depending on whether they are employed in an unlawful attack or employed for self-defense of a state under Article 51 UN Charter (and must be regarded as combatants under 1HL), on the one hand, or within the system of individual or collective self-defense under Chapter VII of the UN Charter, on the other hand (and-for lack of a more precise determination of the status of peace keeping forces-do not qualify as combatants), would be in accordance with the principles of the theory of bellum iustum, which has been given up for good reasons. Under this doctrine, the extermination of the (evil) enemy was authorized without any legallimitations of methods and means. An attack with military means of an international person by another international person, and the defense of the attacked person with military means, constitute, without doubt an international armed conflict. Such an international armed conflict changes its character when forces mandated and authorized by a Security Council resolution, based on Article 42 UN Charter, intervene (the armed forces of the defending party can either continue to participate in the conflict on their own or as a part of or allied with the peacekeeping force, or abstain from any further action).

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On the other hand, it is necessary to determine the extent to which, under international law, a Chapter VII Security Council resolution may entrust an international peacekeeping force with the right of intervention. The United Nations has the monopoly on the lawful use (or authorization) of military force. By joining the United Nations, states have partly renounced their sovereignty. They have accepted that, on the basis of Chapter VII, military force may be used against them and against their will. Only within the framework of the right to self-defense are states allowed to resort to military force. This right, however, pursuant to Article 51 UN Charter, is only available until the United Nations decides to resort to collective security measures. Under Article 39 UN Charter the Security Council is vested with the authority to determine whether there has been a breach of international peace and security or an act of aggression. It further has the right to decide on necessary measures under Articles 41 or 42. Under Article 42, the Security Council can entrust the right to resort to military force to maintain international peace and security, when, in its opinion, measures under Article 4 I (i.e., those in which the use of armed force is not allowed) are no longer sufficient. A threat to international peace and security can originate from a lack of international or external security, or a combination of the two. 10 The use of military force on the basis of a Security Council Resolution shall be the ultima ratio, because otherwise the Security Council would restrict the "inherent right of individual and collective self-defence" of states under Article 51 UN Charter. In theory, therefore, no authorization to resort to military force can have a wider scope, in terms of lawfulness of intervention, than under Article 42 UN Charter. Thus, the authority vested in a peacekeeping mission will probably lie below the threshold set by Article 42. This applies, in particular, when less dramatic forms of intervention could achieve the mission established in the Security Council resolution. This assessment is for the Security Council to make. I I Only when the authority, vested in a speAccording to Article 103 UN Charter, obligations arising from the Charter shall prevail over any other treaty obligations, and, hence, even members of a peacekeeping force that is mandated by a Security Council resolution based on Article 42 UN Charter, engaged in an international armed conflict, would not be obliged to obey the rules of IHL (with the exception of ius cogens) insofar as these rules contradict the mandate. Such a change of the legal regime because of a change of the legal quality of conflicts would be a big step back on the road to implementing the principles of humanity in armed conflict. It is inadequate not to apply the rules of IHL even in such modern conflicts to all armed forces deployed, because, on the one hand, the number of military missions mandated by a Security Council resolution under Article 42 UN Charter increases, and, on the other hand, in modern conflicts, the distinctions between international armed conflict and non-international armed conflict, as well as between defense and internal security, tend to fade. 10 Bruno Simma (ed.), Commentary to UN Charter Nos. 5-8, on art. 39 UN Charter (1991). II The jurisdiction of an international criminal court over persons who represent


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cial peacekeeping mission, falls below the threshold set by Article 42 can the authorization of force (at the same time or at another time) be more permissive in other missions mandated by a Security Council resolution under Article 42 or, in the case of self-defense, under Article 51 UN Charter. If an Article 42 mandate authorizes a peacekeeping force, Article 51 remains applicable only insofar as such authorization of the use of force is insufficient to maintain international peace and security. This would imply that the Security Council resolution either has not made a proper assessment of which authorization is required or that the Security Council deliberately does not give the necessary authorization, presumably for political reasons. The former would contradict the principle of the monopoly of the United Nations on the lawful use and authorization of military force. But even in both kinds of missions, the above-mentioned limitations cannot be legally infringed. Therefore, there is no legal way to extend an authorization to use military force beyond a Security Council resolution based on Article 42. This special status of military forces deployed on the basis of a Security Council resolution is justified, since, under Articles 39 and 42 UN Charter, the Security Council can mandate troops with these tasks only if the measures under Article 41 can be expected to be, or have proven to be, inadequate. Since this rule aims at protecting international peace and security, it prevails over other provisions of international law, as established by Article 103, with the only exception being the rule of ius cogens. 12 Other rules can be derogated from, as long as these are inconsistent with the Security Council resolution. the members of the Security Council would be an adequate correction to the problem that the freedom of action of the Security Council is not subject to any other form of judicial review under the UN Charter. 12 So even Robert Kolb, 64.1 ZaoRV HJIL 21 et seq. and Heinz Schilling, 64.2 ZaoRV HJIL 343 et seq. Schilling however does not assume such a supremacy of SC resolutions in respect of nations, who, as a member of Security Council, vote for the adoption of a SC resolution, which contradicts their international treaty obligations, the reason for this being the principle that one must not frustrate personal obligations in this way (estoppel). But he does not sufficiently take into account that rules of internationallaw (as well as rules of national law) can always be changed in accordance with the respective rules on lawmaking. Such rules may be found both in customary international law and in general principles of international law. In theory only ius cogens could be excluded. This, in turn, would presuppose the eternal validity of such rules due to their supposed unchangeable character, which is at variance both with Article 53 of the Vienna Conventions on the Law of Treaties (as far as international law is concerned) and with practice concerning the history and development oflaw. Creation of new legal rules is possible, provided the rules on lawmaking are being observed, e.g., every nation can validly enter into international obligations when these contradict national law. It does not matter whether that nation harmonizes national law with such international obligations by adapting national law. The national legislator, in turn, can create valid national law that contradicts existing international obligations of this nation. It is possible to create law that interferes with existing contractual rights, as well as obligations

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Such Security Council resolutions usually relate to a specific conflict or crisis situation. Therefore their temporal and geographical scope of application is limited. Measures listed by Article 42 can be enforced only in the region posing a threat to international peace and security and only as long as the threat persists, as determined by the Security Council on the basis of Articles 39 and 42 UN Charter. International peace and security are important, not only for subjects of international law, but also for every individual person. 13 Their importance is universal. Article 1, paragraph 3 UN Charter also establishes that a Security Council resolutions based on Article 42 must observe and guarantee the respect of human rights. The Security Council, therefore, has to find a balance between the duty to guarantee international peace and security and the respect of human rights, according to the principle of proportionality. Such a balance depends on the circumstances. Taking into account the danger posed by the situation, it must be decided whether, and for how long, a partial or total derogation from human rights may be required and whether this would be proportionate, necessary and adequate. If Security Council Resolution 1244 (1999) did not sufficiently grant the observance of human rights, it would conflict with the UN Charter and would therefore be unlawful. But even without Article 103, it would be clear that Chapter VII resolutions providing for measures under Article 42, the latter being universal international law, prevailed over regional instruments like the European Convention on Human Rights. 14 In this case, the application of these treaties may be suspended by a Chapter VII Security Council resolution as long as required by the situation. The precedence of international rules, aimed at protecting international peace and security, over other provisions, aimed at protecting other values, may be inferred from the importance of the protected objectives. The legal effect of Article 42 UN Charter can be compared with the possibility, provided by most domestic legal systems, to derogate from certain of international persons, natural and legal persons. There is no doubt that law thus adopted is applicable to persons who, as members of the legislative organ, took part in the abovementioned legislative act, even when the treaty obligation concerned referred to them. Once the possibility to create contradicting rules of equal hierarchic rank is accepted, it remains to be considered whether one should take precedence over the other. 13 Even when admitting precedence of the legally protected interest of international peace and security to all other legally protected interests, every infringement in human rights, in order to protect international peace and security, has to be considered on the basis of the principles of necessity, proportionality and adequacy, even when that fundamental right is not a precondition for the protection of human rights, as well as all individual legally protected interests. See, for example, the German law on aviation security, Luftsicherheitsgesetz (Gesetz zur Neuregelung von Luftsicherheitsaufgaben vom Jan. 11, 2005, dBGBI. I 2005/78), which shows an increased awareness of this ambiguity together with the softening of the border between internal security and defense (external security). 14 Rome, Nov. 4, 1950.


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human rights in times of state emergency. Also in this case, however, these measures need to be necessary, proportionate and adequate.

III. RESERVATIONS BY AUSTRIA TO RIGHTS OF INTERVENTION AUTHORIZED BY THE SECURITY COUNCIL

Security Council resolutions provide for certain rights of intervention in state sovereignty and third parties' rights. This is possible as long as no hierarchically superior norms are being infringed. Customary international law, IHL customary provisions, the International Covenant for Civil and Political Rights (ICCPR), the contents of which may also be regarded as customary internationallaw l5 and the European Convention on Human Rights limit the use of force by states. As previously mentioned, however, under Article 103 UN Charter, a Chapter VII Security Council resolution has the authority to entrust troops with this right of intervention only if no higher norms are being infringed (e.g., ius cogens). For example, a Chapter VII Security Council resolution may authorize a state to intervene in the internal affairs of another state. Domestic law can lawfully authorize the intervention of forces outside the territory of their nation only on the basis of international law authorizing such intervention, and within its limitations. Any intervention without such legal basis would violate the sovereignty of the nation concerned and constitute a breach of international law. Security Council Resolution 1244 (1999) provides the legal basis for the intervention (e.g., use of military force) ofKFOR. In point 7, it authorizes UN member states and the competent 10 (NATO, according to attachment number. 2 of this Resolution) to organize the international security presence (KFOR) with "all necessary means" to fulfill the tasks set forth in point 9. If these rights were inconsistent with ius cogens provisions of international law, the Security Council would require unlawful action. This must not be assumed. The scope of KFOR's rights of intervention, framed by the formula "all necessary means," has not been clarified by the Resolution. This provision, however, has a normative effect only if it is assumed that, except for ius cogens provisions, it has precedence over other international law norms and that it authorizes intervention with all necessary and adequate means, which do not infringe ius cogens. If it were assumed that not only ius cogens but also other provisions of universal and regional international law could limit this authorization' it would be impossible for Security Council Resolution 1244 (1999) to grant rights and powers, rendering it meaningless. The European Convention on Human Rights (ECHR), as discussed above, does not conflict with Security Council resolutions providing for the right of intervention under Article 42 UN Charter. Moreover, the ECHR itself provides 15

New York, Dec. 19, 1966, 5BGBl. 1978/591.

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for the possibility to derogate from specific human rights under certain circumstances. Pursuant to Article 2, paragraph 2 ECHR, deprivation of life shall not be regarded as inflicted contrary to Article 2, paragraph I ECHR when it results from the use of force that is no more than absolutely necessary, either in defense of any person from unlawful violence or in order to effect a lawful arrest or to prevent the escape of a person lawfully detained or in action lawfully taken for the purpose of quelling a riot or insurrection. The right to liberty and security is enshrined in Article 5, paragraph I ECHR. According to its sub-paragraphs (a)-(f) no one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offense or when it is reasonably considered necessary to prevent his committing an offense or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition. A literal interpretation of Article 2, paragraph 1 ECHR does not suggest that a person's right to self-defense, if necessary by resorting to the lethal use of arms, is identical to the right of self-defense in the Austrian legal system or that such use of firearms is limited to the cases mentioned in Article 2, paragraph lea) ECHR. The literal content of this norm can be read as permitting self-defense, even when it will not only affect the aggressor, if this is necessary to prevent a danger. 16 Again, the principles of proportionality and adequacy must be observed. The possibility to use force only against the aggressor, however, has its limits, particularly in the context of riots and insurgencies as referred to in Article 2, paragraph 2( c) ECHR. It is certainly forbidden to interpret a norm in such a manner to fully deprive it of its content and objectives. Article 2, paragraph 1(c) and Article 2, paragraph 2(b) would be totally deprived of their content if the use of deadly force was lawful only when pre-suppositions of Article 2, paragraph lea) were completely fulfilled. It is evident that a 16 Otto Lagodny, in Wolfram Karl et al. (eds.), Internationaler Kommentar zur EMRK No. 83 et seq. On Article 2, ECHR, see Karl Doehring, in Liber Amicorum Mosler 146 (1983).


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targeted use of lethal weapons against a person who is not the aggressor is unlawful. The use of such weapons in the context of a riot or an insurrection, under Article 2, paragraph 1(c) ECHR, is allowed both to quell these situations and to defend a person from unlawful violence. Taking a sensible approach to this provision, in such extreme situations, sometimes even the mere presence of persons in riots or insurrections, because of the danger they represent, must be interpreted as allowing the use of force, since such persons may directly instigate the aggressor to act or may express their consent to his actions through their mere presence and thus instigate the aggressor or protect him so that he is enabled to act. In such cases, there is a high risk of escalation of violence. Article 2, paragraph 1(c) ECHR does not exclude defense of property, by the use of lethal weapons, when required to sedate a riot or insurrection. This aspect, however, must be discussed in more detail. Again, the principles of necessity, proportionality and adequacy must be observed. Pursuant to Article 15 ECHR, also in: time of war or other public emergency threatening the life of the nation any High Contracting Party any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. This provision applies to Article 2 ECHR, only in respect of deaths resulting from lawful acts of war. This exception, however, does not apply to Article 3 ECHR (prohibition of torture), Article 4, paragraph 1 ECHR (prohibition of slavery) and Article 7 ECHR (nullum crimen sine lege, nulla poena sine lege). When the UN Charter and the ECHR came into force, a threat to international peace was only conceivable within the context of an international armed conflict. Given the development and changing nature of conflicts and threats to subjects of international law, this will have to be considered also in relation to serious threats to the internal security of states. It has become clear thatnot only as a consequence of the coming into existence of the concept of noninternational armed conflicts but also of the new reality and relevance of threats posed by terrorism, particularly after the September 11 th attacks-threats to the internal and external security are getting increasingly mixed and are set on an equal footing, in many cases. Article 15, paragraph 2 ECHR, therefore, is going to be considered as an exception applicable also in the event of threats to the internal security of a state, if a SecuritY Council resolution considers these to pose a threat to international peace and security. Reference shall be made to Article 2, pararaph 2(c) ECHR. Moreover, Article 15, paragraph 1 ECHR applies not only in times of war but also in cases of "other public emergency threatening the life of the Nation" and provides for the suspension of other rights enshrined in the Convention, as well as the limits thereof.

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Article 15, paragraph 3 ECHR requires every high contracting party, availing itself of this right of derogation pursuant to Article 15 paragraphs 1 and 2 ECHR, to keep the Secretary-General of the Council of Europe fully informed of the measures taken and of the reasons for those. Regardless of the precedence over the ECHR of a mandate based on Article 42 UN Charter as discussed above (Article 103 UN Charter), the universality and publicity of the determination, by a Security Council resolution, of an exceptional case so grave as to pose a threat to international peace and security, requiring the intervention of international troops, and the declaration of high contracting parties, certainly constitute such information. The ECHR does not specify the form in which this information shall be given. By having renounced part of their sovereignty in the event of an intervention based on Article 42 UN Charter within their territory, states will have to tolerate more than the exercise of military force, even without their consent. Even if a Security Council resolution, giving a mandate on the basis of Article 42, did not take precedence over the ECHR such nations would, nevertheless, because of their renouncement of sovereignty, the publicity of the mandating resolution and the declaration of other nations to contribute by sending troops, have to accept that the issuing of the resolution by the Security Council, in conjunction with the aforementioned declaration of these other nations, constitutes a declaration in accordance with Article 15 ECHR, although directed to the Secretary of the Council rather than to them. For the same reasons, a separate declaration by TCNs to an international peacekeeping mission, on the basis of Article 15 ECHR, would likewise be superfluous. Apart from this, there is also the question of the difference between the liability of national contingents, contributed by states parties to the ECHR to multinational forces mandated by a Security Council resolution based on Article 42 UN Charter, and the liability of those states (or organs) in whose territorial sovereignty such a mission is being conducted. The liability of the state concerned by a mission on its territory does not imply liability of the national contingents of the international peacekeeping mission, although the application by analogy of the rules of ECHR may be agreed upon in a Status of Force Agreement (SOFA). This obligation would derive from the SOFA, not from the ECHR, and, consequently, the procedural mechanisms of the ECHR would not come into play. Such an obligation of the TCNs, however, will only be lawful if it does not conflict with the Security Council mandate that, as we have shown, takes precedence over the ECHR by virtue of Article 103 UN Charter. The tasks and rights of intervention of KFOR are set out in more detail by operational plans (OPLAN), military orders and directives of the competent political and military organs of NATO. Again, to assume that these are in breach of ius cogens would imply that NATO's organs act unlawfully. However, the mere fact that Austria has not declared a reservation to them would seem to indicate that it had not determined a breach of ius cogens by these directives. The rights of intervention exercised by KFOR on the basis of Security Council Resolution 1244 (1999) are conferred upon the troops by the mili-


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tary orders of the different command levels. From the point of view of the principle of certainty, these orders, especially those given as ROE, as long as they substantiate the right to use force contained in this Security Council resolution, assume the function of a general and abstract rule of law (law, directive) that is binding upon persons in Kosovo who are neither KFOR nor UNMIK (United Nations Mission in Kosovo) personnel and who, therefore, do not enjoy immunity. The mandate enacted by Security Council Resolution 1244 (1999) will remain legitimate only as long as the Security Council considers that there is a threat to international peace and security still present in Kosovo, requiring a military intervention on the basis of Article 42 UN Charter. In Austria, there are no specific domestic provisions regulating, in particular, the use of force by Austrian military forces deployed abroad on the basis of Section 2, paragraph 1(d) of the Army Law (Wehrgesetz 2001-W G 2001) 17 in an intervention authorized by an Article 42 Security Council resolution. The provisions of the Army Authorization Law ("Bundesgesetzes iiber Aufgaben und Befugnisse im Rahmen der militiirischen Landesverteidigung"-MBG)I8 are not applicable to all types of deployment of the Austrian Armed Forces. In particular, they do not apply to foreigners (combatants as well as non-combatants) in deployments on the basis of Section 2n paragraph 1(d) of the Army Law. In the event of an aggression on Austria, which would lead to an international armed conflict, such rights would derive from international humanitarian law (IHL). Moreover, in this case, the provisions of the MBG apply on both combatants and non-combatants. Thus, should Austrian soldiers, deployed to a mission in the sense of Article 2, paragraph 1(d) Army Law 2001, mandated by the Security Council Council on the basis of Article 42 UN Charter, be authorized to use lethal weapons in situations other than self-defense (and it has already been said that this may be necessary as ultima ratio in peace enforcement missions), this authority shall derive either directly from the mandate, IHL (even ifby analogy) or from any other Austrian legal provision. In any event, it is necessary to implement the international mandate (in casu UN Security Council Resolution 1244 (1999), the agreement between Austria and NATO regulating Austria's participation in the KFOR Mission and the rules enacted by NATO (in particular ROE) in an adequate manner. If the relevant international legal provisions (concerning both the right to use force and the status of the troops) were not considered to have become an integral part of the Austrian legal system, each action by Austrian soldiers within KFOR, as well as their permanence in Kosovo, a territory belonging to Serbia17

WG 2001, 6BGBI. I No. 146/2001 in the version 6BGBI. I No. 103/2002,

137/2003. 18 Militarbefugnisgesetz-MBG, 6BGBI. I No. 86/2000, in the version 6BGBI. I No. 10312000, 137/2003, 1612004, 11912004. Unofficial translation: Federal Law on the Tasks and Rights of the Military State Defense.

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Montenegro, would not have a legal basis. It would further mean that there would be no justification, under the Austrian legal system, for infringements of rights vested in third parties that may constitute a crime under the penal code, since international law, which has not been incorporated into the Austrian legal system, cannot constitute a justification before an Austrian court. Security Council Resolution 1244 (1999) cannot be part of the Austrian legal system at the same time. If this resolution is part of the Austrian legal system, it must own such hierarchic rank. Otherwise the resolution would-in part or as a whole-be inapplicable or breach Austrian constitutional law, insofar as its rules contradict Austrian law without a derogation. However, as far as the Resolution is applicable, it constitutes a justification under Austrian criminal law. With regard to those rights of intervention of KFOR, which conflict with Austrian domestic non-derogable legal provisions, Austria must declare reservations. The reservation not to participate in peace-enforcement operations was withdrawn by Austria. The mere reference to the fact that members of the Austrian KFOR contingent will not participate in peace-enforcement operations which conflict with Austrian law, does not change the situation, since this reference, in the general declaration made to NATO, is too undefined and unspecific and therefore does not constitute a reservation.

IV. LIFE-THREATENING USE OF ARMS TO PREVENT ATTACKS ON PROPERTY On the basis of Security Council Resolution 1244 (1999), the NATO ROE authorize KFOR the "use of minimum force." According to MC 36211 this includes the right to use "deadly force." The use of "deadly force" to protect property, under specific circumstances, has been regulated by NATO in the documents defining the Mission, since the beginning of the latter. Austria got acquainted with these documents when it accepted its international obligation to participate in KFOR on their basis. Since its withdrawal from the above-mentioned reservation Austria has not made any reservation to NATO concerning the manner or scope of the rights entrusted to KFOR in the ROE. The Austrian national legal system, concerning the authorization of the forces deployed, has not changed. There is no doubt that the life-threatening use of arms to protect property can be authorized only in observance of the principles of necessity, adequacy and proportionality and, therefore, only in exceptional circumstances. If it were to be assumed that such use is absolutely unlawful, then also those provisions contained in the ROE, which authorize the use of "minimum force' to protect property, would be contrary to the law. Extreme situations cannot be excluded. For example the theft of armored vehicles, weapons or other means of combat, or the burning of a facility can constitute an extreme situation posing threat to life and physical condition,


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which, at the time of their occurrence, may not be fully assessed, especially as far as the precise time and the specific persons being endangered are concerned. Even if it is the only means to prevent the theft of an armored vehicle or weapons or other means of combat, the use of life-threatening weapons will not be legitimate, if it is clear that, on the basis of the given circumstances, the resort at a later stage to other means not posing a threat to life and physical integrity will suffice to prevent the dangerous effects of these acts. In the event of the burning down of a building by a violent crowd (as well as in a situation in which such an intention is evident), it cannot normally be excluded with 100 percent certainty that this act constitutes a danger to the life and physical integrity of persons. Moreover, this escalating situation may destabilize the public order and security, thereby posing a general threat to the internal security and, as a consequence, to the life and personal security of a group of people that, at this stage, may not yet be identifiable. The theft of weapons, means of combat and vehicles does not only constitute a direct attack on property but also a "hostile intent" posing a threat to life and physical integrity of persons within the meaning of KFOR's ROE (based on MC 36211). More details will follow in Section VI. The Security Council usually authorizes a military intervention on the basis of Article 42 UN Charter to stop a threat to international peace when a region appears to be extremely unstable and dangerous for the internal and external security. Under these circumstances the international peacekeeping force cannot tolerate this kind of attack but has to prevent it with all possible means, subject to the principle of proportionality. This is required not only by the accomplishment of the mission in a strict sense, but also by the need, for the latter to be accepted and, thereby, to be able to fulfill its tasks. In this kind of unstable region, the use of average force, which would be sufficient in stable democratic states to prevent a threat, is inappropriate to guarantee the accomplishment of the mission and the acceptance of the international peacekeeping presence. In regions with intensive conflicts (this applies also to those periods in which movements toward riots and pogroms may be stopped by the deployed peacekeeping troops), in particular historical buildings may, for emotional, religious or ethnical reasons, have a very important political meaning. In Kosovo this holds true, e.g., for the Monasteries of Pec and Decani. The destruction of these symbolic assets does not just constitute the destruction of objects or things but may ignite violent disorders leading to civil war. Therefore, in light of the proportionality of measures aimed at protecting this type of monuments, it is necessary to adopt a different standard. In conclusion, in order to assess the measures to be undertaken to protect property; it is also important to consider the possible consequences resulting from their damaging or destruction. However, the prevention of the destruction of valuable property is to be assessed under a different standard in times of civil war than it is in peacetime. In civil war scenarios the containment of violence is very important. In this type of situation, violence is usually indiscriminately directed at people and

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things, resulting in a general threat to general order and security,19 to be fought with proportionate means. Often it cannot even be sufficiently assessed whether the destruction of things is going to threaten specifically and directly also the life and physical integrity of people. In particular, the burning of houses poses a serious threat when it has to be expected that the fires will affect other areas that cannot be isolated. This is often the case in villages. In these situations, the commander on the scene will rarely know for sure whether there are still people in the buildings and whether they will be able to leave them in time. In the examples mentioned above, the use of "deadly force," if proportionate and adequate, will be the only necessary, and not just adequate, means to efficiently repress the attack. In this case-not even mentioning cases previously referred to requiring the right to intervention in missions authorized on the basis of Article 42 UN Charter-the mere right of self-defense cannot be sufficient, because being realistic, it can be expected with a very high probability that peacekeeping troops, in casu KFOR, will be entrusted with the protection of an object, which has already been attacked or will be attacked soon. In this sort of a developing situation, further tasks and missions of this kind must usually be expected. If the troops entrusted with the protection of these objects first of all have to reach the area by fighting their way through the rioting crowds, they will not be able to fulfill their mission by resorting to the rights granted merely under the doctrine of defense (self-defense and extended selfdefense). The Austrian legal system includes the right to use force to protect property. Self-defense and extended self-defense pursuant to paragraph 3 of the Austrian Criminal Code justifY also the use of necessary force to prevent unlawful attacks on property. This rule does not exclude the use of life-threatening arms for this purpose but authorizes its proportional use. Article 19, paragraph 5 MBG, in extreme situations, allows a resort to these measures in military operations for the defense of the country according to Article 2, paragraph l(a) of the Army Law 2001. Only those provisions of the MBG applicable to situations other than the defense of the Austrian state and its territory by the Austrian Armed Forces (which are not applicable in international missions mandated under Article 42 UN Charter) exclude the use of life-threatening arms to protect property in peacetime.2°

19 Even in this context, the determination of the relationship between the legally protected fundamental interest of international peace and legally protected interests of individuals, by a balance of legally protected interests and proportionality, is essential. 20 Once national law authorizes use of deadly force to defend property as part of self-defense and extended self-defense when in accordance with the principles of necessity, proportionality and adequacy, a prohibition for executive (police) to do so too does not make sense under the political aim to minimize self-redress.


V.

83

USE OF (LIFE-THREATENING) WEAPONS, PARTICULARLY AGAINST CROWDS

The Austrian legal system contains rules concerning the use of arms against violent crowds. Article 33, paragraph 8 of the "Verordnung der Bundesregierung vom 9. Janner 1979 fiber die Allgemeinen Dienstvorschriflen for das Bundesheer'21 provides for the use of arms by military troops when required as a consequence of the use of violence, particularly if a call to re-establish the legal order was left unanswered. Pursuant to Article 7 of the "Bundesgesetz vom 27. Marz 1969 fiber den Waffengebrauch von Organen der Bundespolizei, der Bundesgendarmerie und der Gemeindewachkorper (WaffGebrG},"22 a resort to life-threatening use of weapons to repress a riot or insurrection is permitted. Under Articles 11-14 WaffGebrG, the use of arms by closed formations is permitted if done in pursuance of the objectives listed in Article 7, and if repeated calls for the re-establishment of the legal order under the menace of the use of arms have been in vain. Moreover, Article 19, MBG deals with this issue in its specific rules which are only applicable in the case of the defense of the country as well as IHL (concerning combatants). Particularly during darkness, it is difficult to identify the single perpetrators from violent crowds as well as the threat that these groups, as a whole, may pose. Thus, also in this case, the right to resort to force under the doctrine of self-defense is insufficient to efficiently fulfill the mission. In particular when considering proportionality, it is very difficult to assess the specific danger posed by violent agents (e.g., snipers), who act from within crowds, especially during darkness, to attack peacekeeping troops or third parties. Even the identification of such sources of danger within rioting crowds is very difficult. Obviously these are extreme situations, but, nevertheless, even in such situations, the application of the principle of proportionality cannot be questioned. However, due to the peculiarity of this situation, under such circumstances proportionality will have to be assessed by standards different to those in peacetime, when, e.g., confronted with a demonstration. Likewise, the arrest of people (e.g., persons indicted by the international criminal tribunal established by Security Council Resolution 808 (1993) in order to try suspects of serious violations of international humanitarian law during the conflict that affected the territory of the Former Yugoslavia from 21 "ADY," oBGBI. No. 43/1979 in the version oBGBI. II No. 7/1998, 134/2001, 31012002. Unofficial translation: Directive of Jan.

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