Author: Marten Zwanenburg
Dossier: 75 jaar Mensenrechten-verklaring en VN-Vredeshandhaving: Een verkenning van de toekomst
Editor: Vereniging voor de Verenigde Naties (NVVN)
Seventy-five years after its adoption, the Universal Declaration of Human Rights (UDHR) still provides an important touchstone for the realisation of international human rights. The declaration is addressed primarily to states. The preamble declares that it is “a common standard of achievement for all peoples and all nations.”
It is generally accepted that in addition to states, the United Nations (UN) also has an important role to play in promoting respect for human rights. This follows from the UN Charter, which provides in Article 55 that the UN shall promote universal respect for, and observance of, human rights and fundamental freedoms for all. Increasingly, UN peace operations have become one of the instruments used by the UN to pursue this goal. This seems broadly although not universally accepted, notwithstanding the fact that it is debated how successful they are in this endeavour. Indeed, the UN itself states that “international human rights law is an integral part of the normative framework for United Nations peace operations.”[i]
Human rights accountability of UN peace operations
Against this background, one would expect that much attention is paid to ensuring that UN peace operations themselves respect human rights. One would also expect that when they do not, everything possible is done to ensure that the victims are able to obtain redress for. After all, the right to redress is itself a fundamental right, which is also set out in the UDHR.
However, this is currently not the case. Several recent studies have pointed out gaps in the protection of individuals against violations by UN peace operations.[ii] First, there remains conceptual confusion concerning both the legal source of human rights obligations that bind UN peace operations, as well as on the question of the substance of those obligations. Second and more importantly, the possibilities for victims of human rights violations by UN peace operations to obtain redress are limited at best. The UN and its personnel have immunity from jurisdiction in both host States of peace operations as well as third states, based on Status of Mission Agreements, the UN Charter and the Convention on the Privileges and Immunities of the UN. This essentially means that cases cannot be brought before domestic courts, unless immunity is waived. The UN has shown in recent years that it is unwilling to waive these immunities when called to account for alleged human rights violations. Whereas the UN has created a claims settlement system to deal with claims arising from peace operations, this system is not independent and has far-reaching limitations built into it. For example, it only recognises very limited forms of damages. Finally, the UN cannot be brought before international courts as those courts only have jurisdiction in respect of states.
The combination of factors described above has led to victims of alleged human rights violations by UN peace operations in Haiti, Kosovo and elsewhere remaining empty-handed. In some cases, victims have resorted to trying to hold the troop contributing states responsible. In limited cases, such as those against the Netherlands concerning conduct by Dutchbat III, this has been successful.
Strengthening accountability and providing redress
This situation has the potential to undermine the efforts of peace operations, and the UN more generally, in the field of human rights. How can the UN credibly call on states and other actors to respect human rights when it does not have its own house in order? What will happen if troop contributing states are increasingly held responsible for conduct of peacekeepers while the UN is shielded by its immunity? It is not unimaginable that this could further complicate the Secretary-General’s task of convincing member states to contribute troops to UN peace operations.
It is therefore important that action is taken to fill the ‘human rights gap’ in UN peace operations.
A valuable first step would be to clarify the human rights obligations of UN peace operations. One way in which this could be done is through a Secretary-General’s Bulletin. In 1999, fifty years after the adoption of the four Geneva Conventions of 1949, the UN Secretary-General issues a Bulletin on the observance by UN forces of International Humanitarian Law. This document sets out rules of IHL that UN peace forces are expected to respect. Now would be a suitable moment to do the same for human rights.
A much more meaningful step would be to strengthen the system for holding UN peace operations accountable for human rights violations, and providing victims with a remedy. This could begin with a re-evaluation of the way that claims of a private law nature are dealt with in the context of peace operations. The existing local claims review boards could be replaced with the more independent standing claims commission envisaged in the model Status of Forces Agreement between the UN and Host States. The existing limitations on the types of claims that the commission can deal with and the type and amount of compensation that can be provided to victims could be revisited, and thought given to providing also for other types of reparation than financial compensation. Claims commissions should also be properly staffed and be accessible for the local population of the host state. Other useful proposals have recently been made in academic literature to adapt the framework of claims commissions in UN peace operations, including the suggestion that systematic violations could be investigated by a truth commission established by such a commission.
Conclusion
Implementing these measures will require political will and cooperation from UN member states. In many ways, the UN is the sum of its parts. In other words, of its member states. This may not be easy at a time when international tension runs high. It is however vital to strengthen trust among stakeholders that UN peace operations are working toward the ideals and objectives as formulated by the organisation, in particular in the UDHR. This will ultimately strengthen their acceptance and thereby their effectivity. This is not a new idea: the more than 150 states that have endorsed the UN Secretary-General’s Declaration of Shared Commitments in UN Peacekeeping Operations recognise that “progress in strengthening security, national reconciliation, the rule of law, human rights and sustainable development needs to occur in parallel.” The seventy-fifth anniversary of the UDHR and UN peacekeeping is a very appropriate moment to take meaningful steps towards this goal by strengthening the human rights accountability of UN peace operations.
Marten Zwanenburg is Professor of Military Law at the University of Amsterdam and at the Faculty of Military Sciences of the Netherlands Defense Academy. He studied international and civil law at the University of Leiden, and defended his PhD entitled ‘Accountability under International Humanitarian law for UN and NATO Peace Support Operations’ at the same university in 2004. Professor Zwanenburg has published widely on peace operations, human rights law, International Humanitarian law, and international responsibility.
[i] UN, Human Rights in United Nations Peace Operations and Political Missions (2011).
[ii] See in particular Steven van de Put, Accountability for Human Rights Violations by UN Peacekeepers: A Legal and Theoretical Perspective (PhD thesis Maastricht University, 2023); Sylvia Maus, United Nations Peace Operations and Human Rights (2020).