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Chapter 2
 
Human Rights Law and UN Peace Operations in
Post Conflict Situations
 
 
 
Boris Kondoch*
 
 
 
Respect for the rights of others is peace.[1]
 
Today’s human rights violations are the causes of tomorrow’s conflicts.[2]
 
 
Introduction
From the deployment of the first UN peacekeeping force during the Suez crisis in 1956 (UNEF I), international lawyers have traditionally analysed the law relating to UN peace operations by asking the following questions[3]:
 
a)      What is the legal basis of international peacekeeping?
b)      Which is the competent organ to establish peacekeeping missions?
c)      Who bears the costs of peacekeeping operations?
d)     Under what circumstances may peacekeepers use force?
e)      Is international humanitarian law applicable to UN peacekeeping forces?
f)       What are the responsibilities and liabilities, as well as the legal status and means of protection of peacekeepers under international law?
 
The following chapter focuses on an aspect of international peacekeeping which has only recently attracted the attention of international lawyers and political scientists,[4] namely the relationship between human rights and peace operations.[5] The subject can be approached from different perspectives. Some of the issues worthy of being discussed can only be briefly mentioned. Since the UN’s involvement in Somalia[6] members of UN peacekeeping missions have been occasionally accused of human rights abuses ranging from disproportionate use of weapons to torture and involvement in prostitution.[7] It is possible, therefore, to discuss the human rights standards applicable to the activities of UN peacekeepers by considering the cases of alleged human rights violations.[8] One further problem concerns the way in which the human rights of peacekeepers are themselves protected. Many peacekeepers have been victims of crimes such as killing, kidnapping, hostage-taking and armed robbery. In May 2000, for example, more than 500 UNAMSIL peacekeepers were held hostages by the Revolutionary United Front rebels in Sierra Leone.[9] This raises the question how peacekeepers are protected under international law and what measures have been adopted by the UN and its member states in response to these attacks.[10] Another important issue is related to the situations when peacekeepers are faced with mass violation of human rights, such as genocide, crimes against humanity or war crimes. After the fall of Srebrenica, in July 1995, several thousand Muslim men and boys were summarily executed by the Bosnian Serb army. The worst single war crime committed in Europe since World War II occurred in the presence of the Dutch Battalion of the United Nations Protections Force (UNPROFOR). Even more tragic in the number of deaths was the genocide of Rwanda which took place in 1994. Approximately 800.000 people were killed despite early warnings of genocidal attacks against Tutsis by Hutu extremists and the presence of the United Nations Assistance Mission for Rwanda (UNAMIR). When the massacres started the UN forces were withdrawn and no further action was taken by the Security Council. What could have been done by the peacekeeping troops in these cases? Was there a legal obligation resting upon the peacekeepers to intervene? For example, should the Dutchbat have only left Srebrenica after granting unopposed withdrawal to the whole Muslim population or could UNAMIR have prevented those radio stations from broadcasting materials used to incite and instruct how to carry out the genocide?[11] If peacekeepers are not mandated to take further actions in case of mass violations of human rights does a legal duty exist for the Security Council to intervene?
 
The following chapter will pursue none of the above mentioned questions. However, it will focus on the incorporation of human rights into peacekeeping operations during the post-conflict phase,[12] that is the situation after the cessation of hostilities. The study will address the issue in the following way. Section 2 briefly examines the various generations of peacekeeping operations and the legal framework in which they take place. Section 3 will then survey the way how peacekeeping and human rights are connected with each other as well as how UN peace operations have been developed as a mechanism for the promotion and protection of human rights. Section 4 then examines the extent to what and the different ways how human rights law becomes applicable to UN peace operations. The conclusions of the study are set out in Section 5.
 
 
The legal basis of UN peace operations
 
UN peacekeeping operations may be divided into four different kinds of generations.
 
 
First generation or traditional UN peacekeeping operations
 
The institution of international peacekeeping was invented during the Suez Crisis by Prime Minister Lester Pearson, the President of the General Assembly at that time, Secretary-General Dag Hammarskjöld and Under-Secretary-General Ralph Bunche when the United Nations Emergency Force (UNEF I) was established by the General Assembly.[13] The missions which followed in the next 32 years can, with the notable exception of the United Nations Force in the Congo (ONUC), all be called first-generation or traditional peacekeeping operations. Their basic function was to act as a buffer between the parties to the conflict and to monitor cease-fires. They were based on the concept that the consent of the parties was required and they did not constitute enforcement measures under chapter VII of the UN Charter, therefore the use of force was only allowed in self-defence.
 
The UN Charter does neither explicitly authorise peacekeeping operations nor does it mention peacekeeping, but it is generally accepted that the legal basis for peacekeeping operations falls between chapter VI and chapter VII[14], which Dag Hammarskjöld referred to as the mythical ‘chapter VI and a half’.[15]
 
 
Second generation or multi-dimensional UN peacekeeping operations
 
Since the end of the cold war there has been a change in the mandate of UN peacekeeping missions. While the UN was increasingly faced with internal rather than international conflicts, a new generation of more complex peacekeeping operations emerged which may be labelled as multi-dimensional peacekeeping or second generation peacekeeping. In functional terms, these mission have served various purposes such as election monitoring, demobilisation and reintegration of former combatants, human rights monitoring, partial civil administration or mine clearance. Multi-dimensional peace operations often consist of a military component, civilian experts and civilian police. Examples are the UN Transition Assistance Group in Namibia (UNTAG, 1989-90), the United Nations Transitional Authority in Cambodia (UNTAC, 1992-93) and the UN Observer Mission in El Salvador (ONUSAL, 1991-95). Like traditional peacekeeping missions they were still based on the consent of the parties.
 
 
Third generation UN peacekeeping operations
 
The third generation of UN peacekeeping operations combines military and humanitarian components. These operations are also called robust, enlarged, quasi-enforcement peacekeeping or muscular peacekeeping.[16] Examples are the United Nations Operation in Somalia II (UNOSOM II, 1992-94) and the United Nations Protection Force in the Former Yugoslavia (UNPROFOR, 1992-95).[17] Unlike their predecessors they are authorised to take enforcement actions under chapter VII of the UN Charter and are no longer based on the consent of the parties to the conflict. However, before deciding on an enforcement action, the Security Council is obliged to determine the existence of ‘any threat to peace, breach of the peace, or act of aggression’ under article 39 of the Charter.
 
 
Fourth generation UN peacekeeping operations
 
The newest type of UN peacekeeping is represented by the UN administrations in Kosovo and East Timor. Unlike earlier experiences of the United Nations in governing a territory the United Nations Transitional Administration in East Timor (UNTAET, 1999-2002) and the United Nations Interim Administration in Kosovo (UNMIK, 1999-to date) were both established under chapter VII by the Security Council.
 
These missions are unprecedented in the history of United Nations peacekeeping. In both cases the UN administrations took over the functions of a state because the UN was authorised to exercise all legislative and executive powers of both territories including the administration of justice. The administrations have been called by some new trusteeships, protectorate style forces or the fourth generation of peacekeeping. Neither resolution 1244 in regard to UNMIK, nor resolution 1272 in connection with UNTAET, specified which article of the Charter authorised the Security Council to establish the missions. Under chapter VII the Security Council has two forms of enforcement actions available to it. According to article 41, actions not involving the use of armed force and according to article 42 military actions by air, sea and land forces. Article 42 serves as the legal basis for the military component of each administration but a closer analyses is required to see whether article 41 is the legal basis of the civilian component.
 
Article 41 states:
 
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decision, and it may call upon the members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio and other means of communication, and the severance of diplomatic relations.
 
The list of possible measures and actions is illustrative and not exhaustive. Therefore, the Council can take other measures and actions than those found in article 41. This interpretation has been reaffirmed by the practice of Security Council in the 1990s when it imposed a variety of new mechanisms under chapter VII like the subsidiary organs (the UN Boundary Commission, the United Nations Special Commission and the United Nations Compensation Commission) created pursuant to Security Council resolution 687 (1991) which Iraq had to accept to end the second Gulf War, as well as the establishment of International Criminal Tribunal for the Former Yugoslavia (ICTY) by resolution 827 (1993) and the International Tribunal for Rwanda (ICTR) by resolution 955 (1994). Further support can be found in the decision of the Appeals Chamber of the International Tribunal for the Former Yugoslavia in the Tadic Case.[18] Therefore one can conclude that the Security Council can take under article 41 of the UN Charter[19] non-military measures such as the UN administrations for Kosovo and East Timor.[20] Before adopting measures under article 41, the Security Council must have determined in accordance with Article 39 of the UN Charter ‘the existence of any threat to the peace or breach of peace, or an act of aggression’.
 
 
UN Peace Operations after the Brahimi Report
 
One may ask the question how and to what extent the Report of the Panel on United Nations Peace Operations (the so-called Brahimi Report)[21] has changed the concept of UN peace operations. The Brahimi Report is the work of a panel chaired by the former Foreign Minister of Algeria, Lakhdar Brahimi. The Panel’s task was ‘to undertake a thorough review of the United Nations peace and security activities, and to present a clear set of specific, concrete and practical recommendations to assist the United Nations in concluding such activities better in the future’. The recommendations focus to a large degree on structural and management problems, but the Panel also commented on the doctrine, upon which peace operations should be conducted. Although the Panel states that the ‘consent of the local parties, impartiality and the use of force only in self-defence should remain the bedrock principles of peacekeeping’ the Brahimi Report calls for more robust mandates and does not only question but also modifies the traditional approach to peacekeeping concerning the consent of the parties, the principle of impartiality and the non-use of force.[22]
 
In regard to the use of force, the Panel recommends that ‘rules of engagement should not limit contingents to stroke-for-stroke response but should allow ripostes sufficient to silence a deadly force that is directed at United Nations troops or the people they are charged to protect and in particularly dangerous situations, should not force United Nations contingents to cede the initiatives to the attackers’. However, ‘mandates should specify an operation’s authority to use force’. This is a clear departure from previous practice where robust mandates were the exception. The rationale for the traditional concept of peacekeeping was explained by UN Secretary-General Boutros Boutros-Ghali in the ‘Supplement to the Agenda for Peace’ of 1995, where he argued that ‘the logic of peacekeeping flows from political and military premises that are quite distinct from those of enforcement; and the dynamics of the latter are incompatible with the political process that peace-keeping is intended to facilitate. To blur the distinction between the two can undermine the viability of the peace-keeping operation and endanger its personnel’.[23] However, the calls for robust peacekeeping in order to stop and prevent future massacres and genocides like in Srebrenica and Rwanda are not new. Therefore, UN Secretary-General Kofi Annan came to different conclusions than his predecessor in 1998 by stating ‘we learned, the hard way, that lightly armed troops in white vehicles and blue helmets are not the solution to every conflict. Sometimes peace has to be made – or enforced – before it can be kept’.[24]
 
Corresponding with the call for more robust peacekeeping, the Panel on United Nations Peace Operations defines impartiality no longer as the equal treatment of the parties to a conflict under all circumstances but as ‘adherence to the principles of the Charter and to the objectives of a mandate that is rooted in those Charter principles’. Such an understanding of impartiality allows peacekeepers to distinguish between aggressors and victims. Less clear are the recommendations concerning another important requirement: the consent of the parties to a conflict. In this regard the Panel observes that ‘consent may be manipulated in many ways by the local parties’ but draws no obvious conclusion regarding what should happen in cases where the consent once given is partly or completely withdrawn. The Panel does also not address the question whose consent is necessary in case of conflicts with many groups of belligerents or where there is a situation of a failed State with no effective Government.
 
Whether the call for more robust peacekeeping and the doctrinal approach proposed by the Brahimi report will be implemented remains to be seen.[25] As Christine Gray correctly commented ‘it is not clear that the Brahimi Report support for “robust peacekeeping” will be acceptable to those who support a more limited concept of peacekeeping ... The call for bigger forces, better equipped and more costly, able to pose a credible deterrent, contrasts with the symbolic, non-threatening presence that characterized traditional peacekeeping’.
 
Neither the Security Council nor the Special Committee on Peacekeeping Operations affirmed the doctrinal shift proposed by the Panel. The Council which welcomed the report in generalemphasized that rules of engagement ‘should be fully consistent with the legal basis of the operation’ and should ‘clearly set out the circumstances in which force may be used to protect all mission components and personnel, military and civilian’.[26] However, the Council did not come to the conclusion that rules of engagement contain an implicit or automatic authorisation to use force for the protection of a civilian population.
 
 The Special Committee on Peacekeeping Operations stresses in the latest report that ‘respect for the basic principles of peacekeeping, such as the consent of the parties, impartiality and the non-use of force except in self-defence, is essential to its success’ but no reference is made to the doctrinal approach of the Brahimi Report.[27]
 
 
UN peacekeeping and human rights
 
The involvement of peacekeeping missions in the protection and promotion of human rights is of recent origin. Before the end of the cold war United Nations peacekeepers had no specific mandate in connection with human rights. The vast majority of the missions were traditional peacekeeping missions with a mandate to monitor cease-fire agreements and buffer zones. However, two valid points can be made. On the one hand, their basic function to prevent the renewal of hostilities and to freeze a conflict helped in many cases to restore a situation of normality in which human rights could develop. On the other hand, basic human rights such as the right to life always had to be respected by UN peacekeeping forces during their missions.
 
Human rights were for the first time incorporated into the mandate of the peace operations in the early 1990s.[28] During this decade human rights moved generally to the forefront of the United Nations[29] and the global agenda. As parts of a global trend towards the protection of human rights Karen Kenny identified: ‘a) a wider range of actors as potentially responsible for the protection human rights, from transnational corporations to intergovernmental organisations, armed opposition groups and individuals; b) an expansion of mechanisms used to protect human rights ... and c) the increased involvement of populations in ‘ownership’ of human rights ...’. On the level of the UN, one may mention various positive developments like the express policy ‘to enhance its human rights programme and integrate into the broad range of the Organisation’s activities’[30] and the creation of the Office of the High Commissioner of Human Rights (OHCHR). The rule of the Security Council evolved with respect to human rights,[31] for example by setting up the ICTY and ICTR, and responded to humanitarian crisis on several occasions. In some cases the Council even considered massive and purely internal human rights violations as a threat to peace.[32] All these measures indicate that the Council no longer regards human rights violations as a domestic matter essentially within the jurisdiction of its member states.
 
The idea of incorporating human rights into UN peace operations must be seen in the light of the relationship between peacekeeping and peacebuilding.[33] Before declaring a UN peace operation successful, comprehensive measures must be taken by the UN during the post- conflict phase. In the 1992 Agenda for Peace, these measures have been defined by the Secretary General of the United Nations as ‘actions to identify and support structures which will tend to strengthen and solidify peace in order to avoid a relapse into conflict’ and stated that the main tasks of peacebuilding are ‘disarming the previously warring parties and the restoration of order, the custody and possible destruction of weapons, repatriating refugees, advisory and training support for security personnel, monitoring elections, advancing efforts to protect human rights, reforming or strengthening governmental institutions and promoting formal and informal processes of political participation’.[34] The common understanding that ‘human rights violations are often a cause, and not merely a consequence of insecurity and instability, and that addressing them is a pre-condition for peace’,[35] led to the assignment of various human rights functions to second-generation peacekeeping operations and other types of human rights operations.[36]
 
The very first mission with an explicit human rights component was the United Nations Observer Mission in El Salvador (ONUSAL, 1991-1995)[37] established by resolution 693 of 20 May 1991. The initial mandate restricted ONUSAL to a Human Rights Division verifying the San José agreement.[38] According to the agreement the task of the human rights division was, inter alia, to receive reports of human rights violations from all parties to the conflict, to implement an information and educational campaign and to undertake legal action to defend human rights. After the signing of the peace accord in 1992 a military and police component was added to ONUSAL and in 1993 an electoral division. The mission was widely regarded as a success: it proved the viability of a UN human rights presence before or instead of the deployment of a military force, the number of human rights abuses such as summary executions and torture dramatically decreased and mechanisms were introduced for handling past human rights abuses, for example, through a Truth Commission.[39]
 
Since ONUSAL the UN established several peacekeeping missions with a formal human rights component. Further examples are the United Nations Verification Mission in Guatemala (MINUGA, 1997) and the United Nations Transitional Authority in Cambodia (UNTAC, 1992-93). MINUGA was established by Security Council resolution 1094 of 20 January 1997. Like ONUSAL is was deployed before the conclusion of the cease-fire. It was mandated to verify the compliance with the Comprehensive Agreement on Human Rights. The main tasks of MINUGA were to receive, consider and follow up complaints regarding human rights violations, to strengthen national institutions for human rights as well as to establish the occurrence of human rights violations. MINUGA was generally considered quite successful in reducing instances of torture and forced disappearances but a culture of impunity remained.[40]
 
Another important mission in the present context was the UN Transition Assistance Authority in Cambodia (UNTAC) established by Security Council Resolution 745 of 28 February 1992. The unprecedented role of UNTAC to carry out key aspects of the civil administration of a member state was laid down in the 1991 Agreement on a Comprehensive Political Settlement of the Conflict in Cambodia.[41] UNTAC’s tasks were to control directly ‘all administrative agencies, bodies and offices acting in the field of foreign affairs, national defence, finance, public security and information’ and to supervise other agencies that could influence the outcome of the elections. Furthermore, UNTAC had to repatriate the refugees, disarm the Cambodian factions, monitor and enforce human rights, train the police, as well as prepare and oversee the elections.[42] One of the key goals of the peace accords was to guarantee ‘the non-return to the policies and practices of the past’ and the preamble of the agreements stated ‘that Cambodia’s tragic recent history requires special measures to assure protection of human rights’. Consequently UNTAC’s human rights component was mandated to develop and implement a program of human rights, to exercise general human rights oversight, to investigate human rights complaints and, where appropriate, to take corrective actions. The achievements of the mission were mixed. UNTAC’s presence signalled the end of the civil war and the mission could establish the roots of civil society. Many of the refugees were peacefully repatriated. However, UNTAC failed to guarantee the cease-fire and to canton, de-mobilise and disarm the military factions. UNTAC could not establish an independent and functional justice system and human rights abuses continued despite its presence.[43] However, a major criticism concerns the problem that the question of individual accountability in respect to the atrocities committed by the Khmer Rouge was not addressed in the peace accords and therefore bringing perpetrators to justice was not within the mandate of UNTAC. The mission stands for a dilemma which the UN often has to face in post-conflict societies and has not solved yet: how can the UN build peace without addressing the atrocities of the past and does accountability for human rights abuses promote or undermine peacebuilding?[44]
 
Human rights related activities within the framework of UN peace operations may include, among others, monitoring of human rights violations, investigation of specific cases, deterrence of violations by active presence, facilitating reconciliation and confidence building and the promotion of human rights through education and public information. Such tasks may involve communication with local people, about how they are treated by the police, the military and other authorities as well as educational measures. In some cases human rights activities are also carried out by the OHCHR as an integral part of UN peacekeeping missions. Examples are the UN Observer Mission in Georgia (UNOMIG, 1993-to date)[45] and the United Nations Mission in Sierra Leone (UNAMSIL, 1999-to date)[46]. In other cases human rights field presences by the OHCHR operated independently from the peacekeeping mission such as the HRO in Rwanda present at the same time as the United Nations Assistance Mission in Rwanda (UNAMIR, 1993-1996).[47] In November 1999, the co-operation between the OHCHR and the Department of Peacekeeping Operations (DPKO) was further developed by concluding a memorandum of understanding.[48] The purpose of the agreement is to increase the effectiveness of UN peacekeeping and human rights activities by strengthening the co-operation between the OHCHR and the DPKO. According to the agreement the OHCHR should be involved at an early stage in the planning and implementation of human-rights activities of UN peace operations. The annex to the memorandum contains a plan for action identifying seven areas of co-operation which are related to: a) the planing, design and establishment of human rights components; b) institutional arrangements for human rights components of peace-keeping operations; c) reporting and public statements; d) administrations and funding; e) human rights training; f) information alert and exchange; and g) joint initiatives. In practice the agreement has been very useful, for example in regard to the selection and recruitment of human rights personnel for peacekeeping operation. The memorandum of understanding is currently under review in order to be revised and improved.
 
The increase of the OHCHR’s capacity to support peace operations has been recommended by the Brahimi report. The Secretary-General, Kofi Annan, followed the proposal and argued among others in the first report on the implementation of the Brahimi report that the OHCHR needed to be able:
 
-          to analyse the experience of past peace operations and draw therefrom lessons;
-          to develop best practices;
-          to develop guidelines and methodological tools;
-          to develop a standardised information management system for information;
-          to develop training materials on human rights, provide and assist international, national and regional partners in providing training for peace operations staff;
-          to develop arrangements for the staffing of human rights components, as well as the fielding of human rights specialists to other components;
-          to develop standard profiles for human rights staff of field operations.[49] 
 
Even if UN peace operations do not contain explicit human rights components, human rights can nevertheless play an important role in the performance of a UN peace mission. This can be illustrated by the UN administrations in Kosovo and East Timor. Although UNTAET and UNMIK differ in their operational structure (UNMIK is composed of four pillars led by the UN, the UNHCR, the OCSCE and the EU,[50] the administration on East Timor is entirely run by the UN), in respect to human rights the UN has chosen a very similar approach in both cases. By Resolution 1244 the Security Council explicitly decided that the promotion and protection of human rights is one of the main objectives of UNMIK. Such a paragraph is missing in Resolution 1272 by which the Security Council authorised UNTAET. Nevertheless, human rights standards are embedded in the same way in all activities of both administrations. Like the trusteeship system, which was aimed at encouraging respect for human rights in the trust territory (see article 76 paragraph (c) of the United Nations Charter), the UN administrators on East Timor and Kosovo have to guarantee the human rights of the inhabitants.[51] According to UNTAET Regulation No 1/1999 and UNMIK Regulation No. 1/1999 in connection with Regulation No. 24/1999 everybody undertaking public duties or holding public office in East Timor and Kosovo shall recognise international human rights standards as reflected, in particular in:
 
The Universal Declaration on Human Rights of 10 December 1948;
The International Covenant on Civil and Political Rights of 16 December 1966 and its Protocols;
The International Covenant on Economic, Social and Cultural Rights of 16 December 1966;
The Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965;
The Convention on the Elimination of All Forms of Discrimination Against Women of 17 December 1979;
The Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment of 17 December 1984;
The International Convention on the Rights of the Child of 20 November 1989.
 
Additionally, the European Convention for Human Rights and Fundamental Freedoms 1950 and its Protocols is applicable to UNMIK. By promulgating these regulations human rights became the primary consideration in all the activities of both administrations.[52]
 
 
Legal limitations under human rights law
 
Irrespective of the fact that States cannot escape their individual obligations under human rights law when they put personnel at the disposal of the United Nations, legal constraints arising from human rights law may be found in legal sources specifically related to UN peace operations and general sources of international law.
 
 
Human rights obligations arising from legal sources specifically related to UN peace operations
 
UN Charter
 
The UN Charter contains a number of human rights provisions. Article 1 of the UN Charter lays down as one of the purposes of the UN the promotion and encouragement of respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. Of key importance is article 55 which provides, inter alia, that ‘the United Nations shall promote: ... universal respect for, and observance of human rights and freedoms for all’. Although the Charter refers only generally to human rights and lacks precise definitions to scope and content, it is clear that UN peace operations should strictly observe human rights as the promotion of human rights is one of the purposes and principles of the UN.[53]
 
 
The mandate
 
The mandate provides the legal basis of a UN peace operation. In the majority of cases it is formulated in an enabling resolution by the Security Council or exceptionally in a General Assembly resolution. The mandate states primarily the goals and functions of the mission which can include the promotion and protection of human rights. It also decides on the size, structure and other basic details.
 
 
UN regulations
 
One method of making human rights applicable to UN peace operations in post conflict situations is to promulgate a regulation which proclaims the adherence to human rights found in different human rights. This approach has been chosen in case of East Timor and Kosovo and has one main advantage. Instead of relying on rules of customary international law which may be difficult to define in a given case both administrations could operate under the clear guidance of international human rights instruments. However, it is regrettable that no independent judicial body could check the compatibility of legislative or executive acts by UNTAET or UNMIK with human rights standards.
 
 
Status of forces agreements and participation agreements
 
Since the mandate only contains the basic details of a UN peace operation it is common practice that the United Nations concludes agreements with the troop contributing States, so called Participation Agreements and with the host State, so called Status of Forces Agreements (SOFAs) or Status of Missions Agreements (SOMAs). Participation agreements define among others the duties of the operation and its members. SOFAs usually establish the consent of the receiving State and contain the basic rights, privileges and immunities of peacekeeping personnel, as well as other regulations on property and dispute settlement.[54] The Model Status-of-Forces Agreement for Peacekeeping Operations and the Model Agreement between the United Nations and Member States Contributing Personnel and Equipment to United Nations drafted by the Secretary-General serve as a basis for future agreements with troops contributing countries and host countries.[55] They both reflect established practice and drawn upon earlier agreements.
 
Neither the SOFAs nor the participation agreements[56] in the past drew attention to human rights issues.[57] The same holds true for the model agreements. The model SOFA only contains a provision stating that UN peacekeepers ‘shall respect all local laws and regulations’[58] but no reference is made to international human rights law. The model agreement between the UN and Member States contributing personnel and equipment to UN peace-keeping operations provides only that UN peace-keeping operation ‘shall observe the principles and respect of the general international conventions applicable to the conduct of military personnel’, including the Geneva Conventions of 1949 and their Additional Protocols of 1977 and the UNESCO Convention of 1954 on the Protections of Cultural Property.[59]
 
 
Rules of engagement
 
Rules of engagement (ROE) are a key document in any UN peace operation during times of peace and conflict providing the parameters within which UN peacekeeping personnel may use force. The rules of engagement contain provisions for carrying and restoring weapons as well as definitions of the circumstances and rules for the justifiable use of force. They are viewed as operational guidelines and based on international law and domestic law. Well established principles of humanitarian law, like the principle of distinction and proportionality, are normally reflected in rules of engagement. However, in the light of the alleged human rights violations perpetrated by United Nations contingents engaged in peace operations, one might come to the conclusion that rules of engagements should contain explicit references to human rights obligations as well.[60]
 
 
Rules of conduct for peacekeepers
 
Since 1995, the DPKO has provided all military personal and nowadays also civilians participating in UN peace operations with a blue card containing the Ten Rules of Personal Conduct for Blue Helmets.[61] This code of conduct is not legally binding but gives guidance to an individual peacekeeper how to act during a peacekeeping mission. According to the Ten Rules of Personal Conduct for Blue Helmets human rights of all are required to be respected by all, in particular peacekeepers should not indulge in immoral acts of sexual, physical or psychological abuse or exploitation of the local population or United Nations Staff.
 
 
General sources of international law as human rights limitations
 
Human rights limitations applicable to UN peace operations may also be found in the general sources of international law, which are reflected in the terms of Art. 38 of the Statute of the International Court of Justice (ICJ). According to this provision the general sources are international treaties, international custom as evidence of a general practice accepted as law and the general principles of law recognised by civilised nations.
 
 
Treaties
 
Human rights law is principally contained by multilateral treaties. Although the United Nations is the sponsor of important international human rights treaties such as the International Covenant on Civil and Political Rights of 1966 and the International Covenant on Economic, Social and Cultural Rights of 1966 it is not a party to the treaties therefore not directly bound by them.[62]
 
One may argue that the UN Charter together with the international covenants and the Universal Declaration of Human Rights 1948 could be regarded as the constitution of the organisation and therefore these human rights instruments are applicable to UN peace operations.[63] This argument must be rejected. Neither the international conventions nor the Universal Declaration of Human Rights were conceptualised by the UN or by member states to become together with the UN Charter the constitution of the organisation. Nevertheless, provisions of human rights treaties can be indirectly applicable to UN peace operations if they reflect customary international law or a general principle of law.
 
 
Customary international law
 
The UN possesses legal personality which means that it can be bound by customary international law mutatis mutandis and conclude treaties with other subjects. As the International Court of Justice stated in the Reparation case[64] the duties of the United Nations in respect to international law depend on the ‘purposes and functions as specified or implied in its constituent document and developed in practice’. As the promotion and protection of human rights belongs to the purposes of the UN there can be no doubt that UN peacekeepers have to abide by international human rights law.
 
Human rights obligations may be derived from civil, cultural, economic, political and social rights. UN peacekeepers must be aware of group rights. Refugees, internally displaced people, women, minorities and children often require special protection. Lack of space prevents a thorough analysis of all rules of customary law binding on the organisation.[65] Only the most important ones applicable to UN peace operations are therefore discussed here.
 
 
Jus cogens
 
In case of UN peace operations established under chapter VII it is questionable whether the UN are bound by rules of customary law. It has been argued that the Security Council can act above international law when acting in the context of chapter VII and therefore no legal limitations exists on measures adopted by it under Chapter VII.[66] This interpretation is based on the wording of articles 103 and 25 of the UN Charter. Specifically, article 103 states that ‘in the event of a conflict between the obligation of the Members of the United Nations under the present Charter and their obligation under any other international agreement, their obligation under the present Charter shall prevail’. According to article 25 the UN members ‘agree to accept and carry out the decisions of the Security Council in accordance with the Charter’. This interpretation cannot however, be accepted for the following reasons. First, according to article 24(1) read together with articles 1 and 2 of the UN Charter the Council’s decisions must be in accord with the purposes and principles of the United Nations.[67] Promoting and encouraging respect for human rights and fundamental freedoms are among these purposes, and therefore the Council must always take them into account when acting under chapter VII. Secondly, limitations are also imposed by legal norms regarded as jus cogens. The doctrine of jus cogens was developed in the late 1960s. As defined by article 53 of the Vienna Convention on the Law of Treaties, 1969 these norms of jus cogens are ‘recognized by the international community of states as a whole from which no derogation is permitted’. It is generally accepted that these standards also apply to Security Council enforcement measures taken under chapter VII of the UN Charter.[68]
 
Since all major human rights instruments allow derogations from certain rights in times of emergency, there are only few human rights which may be considered as jus cogens.[69] Among those are the right of life and the right to be free from torture or cruel, inhuman or degrading treatment and they have to be respected by UN peacekeepers at all times.
 
 
The right of self-determination
 
The right of self-determination is one of the founding principles of the UN Charter. Although it is well recognised as a legal right under international law its precise scope and application is still subject to debate. It is almost undisputed that it does not entail the right of groups to secede from the state they belong to[70] or the right to third parties to implement such a right.[71] It may suffice to say in the present context that the right to self-determination postulates the right of a people to determine its own political status in a democratic way.[72]
 
It follows from this right that in post-conflict situations the United Nations therefore may not impose a particular form of government upon the population of a territory or a state even by invoking the enforcement provisions of the UN Charter against the will of the people concerned.[73]
 
 
The duty to respect the right to good or democratic governance
 
One of the issues at the heart of the current agenda of the United Nations is the issue of global governance. In the 1992 Agenda for Peace the former Secretary General of the United Nations, Boutros Boutros Ghali pointed out ‘there is an obvious connection between the democratic practices – such as the rule of law and transparency in decision making and the achievement of true peace and security in any new and stable political order. These elements of good governance need to be promoted at all levels of international and national political communities’. [74]
 
His successor, Secretary General, Kofi Annan has stated:
 
UN Programs now target virtually all the key elements of good governance, safeguarding the rule of law, verifying elections, training police, monitoring human rights, fostering investments, and promoting accountable administration. Good governance is also a component of our work for peace. It has a strong preventive aspect; it gives societies sound structures for economic and social development. In post conflict settings, good governance can promote reconciliation and offer a path for consolidating peace.[75]
 
It is questionable whether there is an obligation under international law upon the United Nations or States to practise good governance. The issue has been increasingly debated by legal scholars.[76] Thomas Frank has argued for example that there is an emerging right to democratic governance[77] but he did not come to the conclusion that such a right already exists.[78] It is true that neither the UN Charter nor conventional law deals with good governance or provide a precise definition of it. However, certain components which could be part of the right to good governance such as the right of self-determination are well established under international law. Article 25 of the International Covenant on Civil and Political Rights provides that every citizen has the right to take part in the conduct of public affairs, directly or through freely chosen representatives. Similar provisions can be found in the European Convention on Human Rights and the American Convention on Human Rights. Certain principles are also mentioned in the Charter of Paris of the CSCE of 1990 such as the commitment to the rule of law and human rights. On the other hand, customary international law has not yet developed to the point where it can be stated a constant and uniform usage of States exits in respect of the principle of good governance.
 
In any case, the United Nations is well advised to take the concept of good governance as a moral imperative by developing structures of self-governance, organising free and fair elections, taking into account the political aspirations of the people and assisting them in the development of political institutions.
 
 
The duty to respect due process rights
 
Due process rights belong to the fundamental rights accorded to individuals under international law. Certain due process rights, for example, the principle of non-retroactivity or the right to be recognised before the law allow for no derogation. A number of basic rights of the accused are enumerated in article 14 of the International Covenant on Civil and Political Rights of 1966 (the right to a fair trial, the right to legal counsel, the presumption of innocence, the right to be tried without undue delay, etc.).[79]
 
Although it is not clear whether all due process rights can be regarded as customary international law the UN should strictly observe due process rights and provide individuals with a legal remedy to challenge the actions of UN administrators.[80] In the latest UN administrations the UN did not have to face the questions whether due process rights could be considered as custom. Judicial guarantees as stipulated in the ICPCR became directly applicable by UN regulations. Despite this commitment of the UN to adhere to human rights standards, in practice several cases of unlawful detentions in Kosovo and East Timor were reported.[81]
 
 
The duty to respect the right to peace
 
The question arises whether peacekeepers are obliged to respect a human right to peace. This requires that such a right already exits in international law. Peace is among the primary purposes of the UN Charter and states are obliged to refrain from the threat and the use of force. This may indicate that States have the right to peace but States have never incorporated this right into any human rights convention. The same holds true for the assertion of an individual right to peace. While article 28 of the UDHR states that ‘everyone is entitled to a social and international order in which the rights and freedoms set forth in this declaration can be fully realised’ the article has not been reaffirmed by human rights conventions.
 
Irrespective of the existence of such a right the UN has shown its commitment to create conditions for sustainable peace by creating multi-dimensional peacekeeping operations which prevented in many cases the relapse into war.
 
 
The duty to prosecute mass violations of human rights
 
In the aftermath of many conflicts the problem arises how to address mass violations of human rights. If the UN takes over governmental functions it raises the question whether there is a duty upon the organisation to prosecute persons who are accused of serious international crimes, such as crimes against humanity. Such a duty may be derived from the duty to extradite or prosecute which exists for example in respect of genocide and torture. The United Nations is also bound by the aut dedere aut judicare obligation laid down in the Genocide Convention of 1948 and the Torture Convention of 1984 as the conventions constitute customary international law.[82] However, it is questionable whether such a duty exists in respect of crimes against humanity and in particular of war crimes in an internal conflict.[83] In respect to crimes against humanity no treaty exists imposing a duty to prosecute. In the absence of such a treaty, the universal jurisdiction of crimes against humanity is generally regarded as permissive but not mandatory.[84] The same arguments apply to war crimes committed in an internal conflict.
 
 
General Principles of Law
 
General principles of law have the function to fill possible gaps where treaties and custom failed to provide guidance. However, it is unclear whether the scope of general principles refers to general principles of international law or general principles of municipal law.[85] Widely acknowledged principles resulting from international law are basic human rights and elementary considerations of humanity.[86] They must be respected and protected also by UN peace operations.
 
 
Conclusion
 
UN peace operations are unique instruments of conflict resolution. The promotion and protection of human rights by UN peace operations play an important role during the peacebuilding process. The UN has incorporated human rights in two ways into peacekeeping operations, one was to establish a human rights component mandated with specific tasks in respect of human rights and the other one was to include in the mandate or in UN regulations the obligation for all components of UN peace operations to observe specific international human rights standards.
 
By analysing the general and specific legal sources related to the UN peace operations it becomes apparent that with the exception of jus cogens norms and UN regulations in East Timor and Kosovo, obligations with regard to human rights are defined only in general terms. It is also often difficult to determine which duties exits under customary international law. Unlike in the case of international humanitarian law[87] there is no formal document declaring the UN’ s adherence to human rights in peace operations. However, such a document could certainly end the controversy over rules of customary international law binding upon UN peacekeepers by declaring certain human rights legally binding.
 
 
 
 
 


* Research Fellow, Institute of Public Law, Johann Wolfgang Goethe University, Frankfurt am Main. The author is grateful to Rita Silek (Ministry of Foreign Affairs/ Hungary). Remaining errors are, of course, the author’s sole responsibility. This chapter is dedicated to the memory of my mother.
[1] Benito Juarez, quoted in Spanish on the wall of the UN headquarters.
[2] Mary Robinson, United High Commissioner for Human Rights, Oxford, England, 1997. Quoted in J.-A. Bishop, Human Rights and Field Reports 1999 (2001), http://www.carleton.ca/cifp/docs/hrfo1.pdf
[3] For a comprehensive overview of these legal issues, see M. Bothe, ‘Peace-Keeping’ in B. Simma (ed.), The Charter of the United Nations (Oxford: Oxford University Press, 2002), p. 648; H. McCoubrey and N.D. White, The Blue Helmets: Legal Regulations of United Nations Military Operations (Aldershot: Dartmouth, 1996); R. Sommereyns, ‘United Nations Forces’ in R. Bernhardt, (ed.), Encyclopedia of Public International Law, Vol. IV (Amsterdam, 2000) p. 1106; E. Suy, ‘United Nations Peacekeeping System’ in R. Bernhardt, (ed.), Encyclopedia of Public International Law, Vol. IV (Amsterdam, 2000) p. 1143; W.G. Sharp, Jus Paciarii. Emergent Legal Paradigms for U.N. Peace Operations in the 21st Century (Tafford, Va.: Paciarii International, 1999).
[4] See for example, M. Brand, ‘Institution-Building and Human Rights Protection in Kosovo in the Light of UNMIK Legislation’, Nordic Journal of International Law, 70 (2001), 461; R.W. Eno, ‘United Nations Peacekeeping Operations and Respect for Human Rights’, South African Yearbook of International Law, 24 (1999), 76; N. Graeger, ‘Human Rights and Multinational Peace Operations’ in R.G. Patman (ed.), Universal Human Rights (Basingstoke: Macmillan, 2000), p. 175; A.H. Henkin (ed.), Honoring Human Rights (The Hague: Kluwer, 2000); T.H. Irmscher, ‘The Legal Framework for the Activities of the United Nations Interim Administration in Kosovo: The Charter, Human Rights, and the Law of Occupation’, German Yearbook of International Law, 44 (2001), 352; M. Katayanagi, Human Rights Functions of United Nations Peacekeeping Operations (The Hague: Kluwer, 2002); R. Marx, ‘A Non-Governmental Human Rights Strategy for Peacekeeping?’, Netherlands Quarterly of Human Rights, 14 (1996), 127; R. Opie, ‘International Human Rights Promotion and Protection Through Peace Operations: A Strong Mechanism?’, International Peacekeeping-The Yearbook of Peace Operations, 7 (2001), 98; C. Thornberry, Peacekeeping, Peacemaking and Human Rights (1995), available at http://www.incore.ulst.ac.uk/home/publication/occasional/cedric.html; M. Zwanenburg, ‘Compromise or Commitment and International Humanitarian Law Obligations for UN Peace Forces’, Leiden Journal of International Law, 11 (1998), 229. An excellent study of the subject is the paper prepared by Amnesty International, Peace-keeping and Human Rights (1994), AI Index: IOR/40/01/94.
[5] ‘UN peace operations’ are understood as an umbrella term comprising the various types of peacekeeping missions carried out by the UN. According to the Brahimi report UN peace operations entail the activities of conflict prevention and peace making, peacekeeping and peacebuilding. Outside the scope of this study are operations subcontracted or mandated by the United Nations which are not under the direct command of the UN but derive their mandate from a Security Council resolution under Chapter VII. See on terminology used in peacekeeping operations, A. Demurenko/ A. Nikitin, Basic Terminology and Concepts in International Peacekeeping Operations: An Analytical Review, available at http://www.bits.de/NRANEU/docs/demurenko_nikitin97.htm.
[6] See Report of the Commission of Enquiry into the Deployment of Canadian Forces to Somalia, Dishonoured Legacy, available at http://www.dnd.ca/somalia/somaliae.htm.
[7] See for example, B. Crossette, ‘When Peacekeepers Turn Into Troublemakers’, The World, 7 January 1996; ‘UN Peacekeeper Accused of Assaulting Congo Girl’, 3 January 2002 and the bibliography compiled by the network Peace Women, available at http://peacewomen.org/un/pkwatch/bib.html.
[8] There has been only few decisions of court martials and enquiries dealing with the violations of international law committed by members of UN peacekeeping missions, see N. Lupi, ‘Report by the Enquiry Commission on the Behaviour of Italian Peacekeeping Troops in Somalia’, Yearbook of International Humanitarian Law, 1 (1998), 375. R v Brocklebank, Court Martial Appeal Court of Canada, Apr. 1996, Case File No. CMAC-38, published in 106 Canadian Criminal Cases (3rd) 24. For a commentary, see K. Boustany, ‘Brocklebank: A Questionable Decision of Canada’, Yearbook of International Humanitarian Law, 1 (1998),371. See also the judgment of the Belgian Military Court regarding violations of international humanitarian law in Rwanda and Somalia, Nr. 54 A.R. 1997, November 20, 1997, published in (24 April 1998) Journal des tribunaux 286-289. For a commentary, see M. Cogen, Yearbook of International Humanitarian Law, 1 (1998),413.
[9] ‘Sierra Leone Rebels Said to Release Remaining U.N. Hostages’, The Associated Press, 29 May 2000, available at http://www.globalpolicy.org/security/issues/sierra/00-05-29.htm.
[10] E.T. Bloom, ‘Protecting Peacekeepers: The Convention on the Safety of United Nations and Associated Personnel’, American Journal of International Law, 89 (1995), 621; Sharp, Jus Paciarii, 31-204.
[11] See for further discussion, J.B. Donovan/R.P. McLaughlin, ‘United Nations Peacekeepers and International Humanitarian Law: Can There Be an Affirmative Duty to Prevent War Crimes and Crimes Against Humanity?’, New England International & Comparative Law Annual, 5 (1999), http://www.nesl.edu/intljournal/vol5/donovan.htm; G. Robertson, Crimes against Humanity: The Struggle for Global Justice (London: Penguin, 2000) p. 71 et seq. and R.C.R Siekmann, ‘The Fall of Srebrenica and the Attitude of Dutchbat from an International Legal Perspective’, Yearbook of International Humanitarian Law, 1 (1998), 301; R. Wedgewood, ‘United Nations Peacekeeping Operations and the Use of Force’, Washington University Journal of Law & Policy, 5 (2001), 69; R. Weiner/F. Ni Aolanian, ‘Beyond the Laws of War: Peacekeeping in Search of a Legal Framework’, Columbia Human Rights Law Review, 27 (1996), 293 as well as the UN reports on Rwanda and Srebrenica: Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda and Report of the Secretary-General Pursuant to General Assembly Resolution 53/35: The Fall of Srebrenica, UN Doc. A/54/549 of 15 November 1999.
[12] O. Ramsbotham suggests to use the term post-settlement instead of post-conflict, since “‘post-conflict’ is precisely what is not. On the contrary, the peace-agreement is not the end of the conflict, but ‘the means through which the parties hope to resolve the unfinished business of war’.” See O. Ramsbotham, ‘Reflections on UN Post-Settlement Peacebuilding’, International Peacekeeping (Frank Cass), (1/2000), 169, 173.
[13] Despite some earlier observer missions, the first mission explicitly labelled as peacekeeping was the UN Emergency Force (UNEF I).
[14] Under chapter VI the Security Council can adopt various techniques in pursuit of the peaceful settlement of disputes (mediation, negotiation, etc.). Under chapter VII the Security Council may take enforcement measures to maintain or restore international peace and security.
[15] Nonetheless, there is a dispute among international lawyers which charter provisions is exactly the legal basis of international peacekeeping. For example, Art. 34 of the UN Charter has been invoked. Some writers refer to different articles within chapter VII (Art. 39, 40, 42, 42 and 48), either alone or in conjunction with each other. Others have argued that there is no need to find an express charter base because the United Nations possesses either an inherent or implied power to perform activities like peacekeeping or the legal foundation can be found in the customary rule of the law of the United Nations. See for summaries of the legal discussion, D. Ciobanu, ‘The Power of the Security Council to Organize Peace-Keeping Operations’, in A. Cassese (ed.), United Nations Peace-Keeping. Legal Essays (Alphen aan den Rijn: Sitjhoff & Noordhoff, 1978), p. 15; F.-E. Hufnagel, UN-Friedensoperation der zweiten Generation (Berlin: Duncker und Humblot, 1996), p. 25 and McCoubrey and White, The Blue Helmets, p. 39.
[16] For further reading see C. Gray, International Law and the Use of Force (Oxford: Oxford University Press, 2000), p. 165.
[17] Both missions were deployed in situations where there was no peace to keep and no real cease-fire in place. Therefore, they are outside the scope of this study. On human rights related issues see, W. Lubin, ‘Towards the International Responsibility of the United Nations in Human Rights Violations During Peacekeeping Operations: The Case of Somalia’, International Commission of Jurists–The Review, 52 (1994), 47; T. Modibo Ocran, ‘How Blessed Were the UN Peacekeepers in Former Yugoslavia? The Involvement of UNPROFOR and Other UN Bodies in Humanitarian Activities and Human Rights Issues in Croatia’,Wisconsin International Law Journal, 18 (2000), 193.
[18] Prosecutor v Tadic, Appeal on Jurisdiction, No. IT-94-AR72, paras. 32-38 (Oct.2, 1995), reprinted in International Legal Materials, 35 (1996), 32.
[19] Another possible approach is to see the legal basis in the implied powers of Security Council as argued by M. Ruffert, ‘The Administration of Kosovo and East-Timor by the International Community’, International and Comparative Law Quarterly, 50 (2001),620. In particular, A.J.J. de Hoogh rejects the idea that article 41 serves as the basis for the Security Council’s power to grant legislative powers to a peace keeping operation ‘since it (the Council) always exercises its powers under chapter VII to a particular case or situation’ and ‘does not determine or elaborate rules that would be applicable to any future situation’. Therefore he concludes that the attribution of legislative powers to UNTAET is based on the Security Council’s implied power to determine the specific, concretised measures necessary to maintain and to restore international peace and security, see in detail, A.J.J. de Hoogh, ‘Attribution or Delegation of (Legislative) Power by the Security Council? The Case of the United Nations Transitional Administration in East Timor (UNTAET)’, International Peacekeeping-The Yearbook of Peace Operations, 7 (2001), 1.
[20] The UN Charter also allows others forms than the UN governance under the trusteeship system regulated in chapter XII and XIII. Article 78 only precludes the application of the trusteeship system to members of the United Nations but does not prohibit the establishment of other mechanisms of UN governance.
[21] Report of the Panel on United Nations Peace Operations, UN Doc. A/55/305-S/2000/809, 21 August 2000.
[22] See in detail C. Gray, ‘Peacekeeping after the Brahimi Report: Is there a Crisis of Credibility for the UN?’, Journal on Conflict and Security Law, 6 (2001), 267; H. Spieker, ‘Changing “Peacekeeping” in the New Millenium? – The Recommendations of the Panel United Nations Peace Operations of August 2000’, International Peacekeeping (Kluwer Law International), 6 (2000), 144, S. Vöneky/R. Wolfrum, ‘Die Reform der Friedensmissionen der Vereinten Nationen und ihre Umsetzung nach deutschem Verfassungsrecht’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 62 (2003), 569; N.D. White, ‘Commentary on the Report of the Panel on United Nations Peace Operations (The Brahimi Report)’, Journal on Conflict and Security Law, 6 (2001), 127.
[23] Supplement to An Agenda for Peace, UN Doc. A/50/60-S/1995, 13 Jan. 1995.
[24] UN Doc. SG/SM/6732, 6 Oct. 1998.
[25] See for an overview on the implementation of the Brahimi Report, W.J. Durch, V.K. Holt, C.R. Earle and M.K. Shanhan, ‘The Brahimi Report at Thirty (Months): Reviewing the UN’s Record of Implementation’, International Peacekeeping-The Yearbook of Peace Operations, 8 (2002), 1; W.Kühne, ‘Der Brahimi-Report – ein Jahr später’, SWP-Aktuell, September 2001.
[26] SC Res. 1327, 13 Nov. 2000.
[27] Comprehensive Review of the Whole Question of Peacekeeping Operations in All their Aspects, UN Doc. A/57/767, 28 March 2003, para. 46. 
[28] The importance of integrating human rights into peacekeeping operations was also recognised in ‘An Agenda for Peace, UN doc. A/47/277-S/24111, 17 June 1992, para. 52; and Article 97 of the Vienna Declaration and Programme of Action, UN doc. A/CONF.157/23, 12 July 1993.
[29] See for a general overview on the UN and human rights, H. Boekle, ‘The United Nations and the Protection of Human Rights’, International Peacekeeping, 6 (1999), 182; M. Freeman, ‘The United Nations and the Promotion and Protection of Human Rights: Identifying Strengths, Weaknesses and Limitations in a Complex System’, Vierteljahresschrift für Sicherheit und Frieden, 19 (2001), 110.
[30] ‘Renewing the United Nations: A Programme for Reform’, Un doc. A/51/190, 14 July 1997.
[31] B.G. Ramcharan, ‘Thinking Aloud the Security Council, Human Rights and Humanitarian Issues’, United Nations Chronicle, 4 (2001), available at http://www.un.org/Pubs/chronicle/2001/issue4/0104p23.html.
[32] See for example, SC Res. 734, 3 Dec. 1992 concerning the situation in Somalia, SC Res. 918, 17 May 1994 concerning the situation in Rwanda and SC Res. 1272, 25 Oct. 1999 concerning the situation in East Timor.
[33] See in detail Opie, ‘International Human Rights promotion’, 108-113.
[34] ‘An Agenda for Peace’, UN doc. A/47/277-S/242111, 17 June 1992, para. 55.
[35] K. Kenny, Towards Effective Training for Field Human Rights Tasks (Dublin: Human Rights Trust, 1996), p. 2.
[36] There is no general definition of human rights operations (HROs) or human rights field operations (HRFOs). They are set up by an international organisation like the UN, the OAS or the OSCE. In case of the HROs set up by the UN, the mandate stems from the authorising UN body or on the basis of an agreement between the UN and the host country. HROs are based in a country for several months. Their main functions include observing, monitoring, documenting and/or reporting on human rights violations. See for further detail, Bishop, Human Rights and Field Reports, 49 et seq..
[37] See in detail the article by the Director of the Human Rights Division of ONUSAL; D. Garcia-Sayan, ‘Human Rights and Peace-keeping Operations’, University of Richmond Law Review, 29 (1994), 41; Katayanagi, Human Rights Functions, 67.
[38] San José Agreement on Human Rights, 26 July 1990, El. Sal.-FMLN, reprinted in Note Verbale dated 14 August 1990 from the Charge d’Affaires a.i. of the Permanent Mission of El Salvador to the United Nations addressed to the Secretary-General, UN doc. A/44/971-S/21541.
[39] Amnesty International, Peacekeeping and Human Rights, 6; Human Rights Watch, The Lost Agenda. Human Rights and U.N. Field Operations (1993) 13; I. Johnstone, Rights and Reconciliation. UN Strategies in El Salvador (1995).
[40] See in more detail, T. Flores, ‘The UN Mission in Guatemala’, International Peacekeeping, 3 (1996), 89.
[41] Reprinted in International Legal Materials, 31 (1993), 180.
[42] See in detail, Katayanagi, Human Rights Functions, 101; S.R. Ratner, ‘The Cambodia Settlement Agreements’, American Journal of International Law, 87 (1993),1.
[43] See Human Rights Watch, The Lost Agenda,p. 37; M. Kirby, ‘Human Rights, the United Nations and Cambodia’, The Australian Quarterly, 67 (1995), 26; O. Korhonen, ‘International Governance in Post-Conflict Situations’, Leiden Journal of International Law, 14 (2001),515-19.
[44] See for further discussion, S.R. Ratner, ‘Peacebuilding and Human Rights Abuses: Towards a Strategy for Accountability’, International Peacekeeping (Kluwer), 5 (1999), 75.
[45] On 24 August 1993, UNOMIG was set up by SC Res. 858. The human rights office was established on 22 October 1996 by SC Res. 1077 and is jointly stuffed by UN and the OSCE. It is under the authority of the Head of Mission, who reports to the High Commissioner of Human Rights. The mandate is to promote respect for human rights, protect the human rights of the Abkhazia, contribute to a safe return of refugees and internally displaced persons and to report on human rights developments.
[46] UNAMSIL was established by SC Res. 1270, October 1999. The human rights section is, inter alia, tasked with monitoring, documenting and reporting on the human rights situation in Sierra Leone as well as capacity building and providing training for the Sierra Leonean Police, the Army and civilian organisations. The OHCHR assisted the government of Sierra Leone in drafting the law on the Truth and Reconciliation Commission. Furthermore, it designed within the human rights section of UNAMSIL specialist positions that are addressing the most pressing human rights needs such as gender issues and children rights.
[47] See for a list of OHCHR field presences, http://www.unhchr./html/menu2/5/field.htm.
[48] Memorandum of Understanding between the Office of the High Commissioner for Human Rights and the Department for Peace-keeping Operations, 5 Nov. 1999, available at http://www.unhchr.ch/html/menu2/4/mou_dpko.htm.
[49] Report of the Secretary-General on the Implementation of the Report of the Panel on United Nations Peace Operations, UN Doc. A/55/502, 20 Oct. 2000, para. 145 .
[50] The civil administration in which public administration, police, and judicial affairs are integrated is run by the UN. The OCSE is responsible for democratisation, institution-building, elections, and human rights. UNHCR is in charge of humanitarian assistance and mine action and the EU co-ordinates the economic reconstruction. Outside of UNMIK KFOR functions as the military component.
[51] See section 2 of UNTAET/REG/1991/1.
[52] See for a critical assessment how human rights obligations were carried out in practice by the UN administrations, M. Brand, ‘Institution Building’; J. Cerone, ‘The Human Rights Framework Applicable To Trafficking in Persons and Its Incorporation into UNMIK Regulation 2001/4’, International Peacekeeping-The Yearbook of Peace Operations, 7 (2001),42; J. Frowein, ‘Die Notstandsverwaltung von Gebieten durch die Vereinten Nationen’ in Arndt/Knemeyer/Kugelmann/Meng,/Schweitzer (Hrsg.), Völkerrecht und Deutsches Recht (Munchen: C.H. Beck, 2001), 43; R. Opie, ‘International Human Rights Promotion’, 152 et seq.; C. Stahn, ‘International Territorial Administration in the former Yugoslavia: Origins, Developments and Challenges ahead’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 61 (2001), 151-65.
[53] SC Res. 1318, 2000.
[54] W.G. Sharp, Jus Paciarii, p. 224.
[55] See the Model Status-of-Forces Agreement for Peacekeeping Operations and the Model Agreement between the United Nations and Member States Contributing Personnel and Equipment to United Nations, reprinted in M. Bothe and T. Dörschel (Eds.), UN Peacekeeping - A Documentary Introduction (The Hague, Kluwer, 1999), p.59 et seq., 75 et seq..
[56] See in detail Zwanenburg, ‘Compromise or Commitment’, 238.
[57] In case of the early peace-keeping operations (United Nations Emergency Force (UNEF I, 1956-1967); United Nations Operation in the Congo (ONUC, 1960-1964); United Nations Peacekeeping Force in Cyprus (UNFICYP, 1964-to date) and United Nations Security Force in West New Guinea (UNSF, 1962-63) so-called force regulations were issued by the Secretary-General. They contained regulations on the privileges and immunities of the forces, the chain of command, administrative, executive and financial arrangements as well as provisions on the rights and duties of members of forces. Although the forces regulations called for respect for local law and conduct befitting international status they did not refer to international human rights. See for example, Regulations for the United Nations Force in the Congo, UN doc. ST/SGB/ONUC/1 of 15 July 1963, reprinted in R. Siekmann, Basic Documents on United Nations and Related Peace-Keeping Forces (Dordrecht: Nijhoff, 1989), p. 94.
[58] Model Status-of-Forces Agreement for Peacekeeping Operations, para. 6.
[59] Model Agreement between the United Nations and Member States Contributing Personnel and Equipment to United Nations, para. 28.
[60] The Sub-Commission on Prevention of Discrimination and Protection of Minorities, Respect for Humanitarian and Human Rights Law Provisions in United Nations Peacekeeping Operations, Sub-Commission Resolution 1997/34, 28 Aug. 1997.
[61] M. Eisele, Die Vereinten Nationen und das internationale Krisenmanagement (Knecht: Frankfurt am Main, 2000), p. 50.
[62] The two covenants were drafted by the UN Commission on Human Rights.
[63] This view is supported by academics who increasingly conceive the UN Charter as a constitution P.-M. Dupuy, ‘The Constitutional Dimension of the Charter of the United Nations Revisited’, Max Plank Yearbook of International Law, 1 (1997), 1.
[64] Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1969, 179.
[65] For an overview of international human rights relevant in human rights operations, see Office of the High Commissioner for Human Rights, Training Manual on Human Rights (2001) 29 and in the specific cases of East Timor and Kosovo, see Amnesty International, East Timor: Building a New Country on Human Rights, ai-index ASA 57/005/2000 and Amnesty International, Amnesty International’ s Recommendation of Human Rights in Post-Conflict Peace Building and Reconstruction in Kosovo, ai-index: EUR 70/091/1999. See for an overview regarding the different views on the customary status of human rights, B. Simma, P. Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’, Australian Yearbook of International Law, 12 (1989),82.
[66] See, for example, G. Oosthuizen, ‘Playing the Devil’ s Advocate: The United Nations Security Council is Unbound by Law’, LJIL, 12 (1999),549.
[67] V. Gowlland-Debbas, ‘Security Council Enforcement Actions and Issues of State Responsibility’, International and Comparative Law Quarterly,  43 (1994), 91.
[68] T.D. Gill, ‘Legal and Some Political Limitations on the Power of the UN Security Council to Exercise Its Enforcement Powers under Chapter VII of the Charter’, Netherlands Yearbook of International Law, 26 (1995), 33, 79.
[69] L. Hannikainen, Peremptory Norms (Jus Cogens) in International Law (Hlsinki: Finnish Lawyer’s, 1989), p. 425; S. Kadelbach, Zwingendes Volkerrecht (Berlin: Duncker und Humblot, 1992), p. 284.
[70] D. Thürer, ‘Self-Determination’ in R. Bernhardt (ed.), Encyclopaedia of Public International Law, 8 (1985), 474.
[71] P. Malanczuk, ‘The Kurdish Crisis and Allied Intervention in the Aftermath of the Second Gulf War’, European Journal of International Law, 2 (1991), 124.
[72] T.M. Frank, ‘The Emerging Right to Democratic Governance’, American Journal of International Law, 86 (1992), 52.
[73] T.D. Gill, ‘Legal and Some Political Limitations on the Power of the UN Security Council to Exercise Its Enforcement Powers under Chapter VII of the Charter’, NYIL, 26 (19995), 33, 74-79.
[74] An Agenda for Peace, reprinted in M. Bothe/T. Dörschel (Eds.), UN Peacekeeping - A Documentary Introduction (1999), p. 19.
[75] K. Annan, ‘The Quiet Revolution’, Global Governance, 4 (1998), 123.
[76] For example, B. Bauer, Der völkerrechtliche Anspruch auf Demokratie (Franfurt am Main: Peter Lang, 1998); J. Crawford, ‘Democracy and International Law’, British Yearbook of International Law, 64 (1993), 113; G.H. Fox and B.R. Roth (eds.), Democratic Governance and International Law (Cambridge: Cambridge University Press, 2000).
[77] T.M. Franck, ‘The Emerging Right to Democratic Governance’ American Journal of International Law, 86 (1992), 45.
[78] A. Cassese argues in a very similar way by stating that ‘it may be argued that a general norm is currently in process of coming into being which grants a right to democracy’ but it ‘… has not yet taken root either as a human right … or as a legal entitlement accruing to any state...’, see A. Cassese, International Law (Oxford: Oxford University Press, 2001), p. 371.
[79] However, it is disputed whether all basic human rights mentioned in article 14 of the ICCPR can be considered as custom. See for a critical assessment O. Schachter, International Law in Theory and Practice (Dordrecht: Nijhoff, 1991), p. 339.
[80] See Stahn, ‘International Territorial Administrations’, 143.
[81] Ibid., 143-149.
[82] Reservation to the Convention on Genocide, ICJ Rep., 1951, 23; Prosecutor v. Anto Furundzija, Judgment (IT-95-17/1-T) para. 156 et seq.
[83] In more detail see K. Ambos, ‘Völkerrechtliche Bestrafungspflichten bei schweren Menschenrechtsverletzungen?’, Archiv des Völkerrechts, 37 (1999), 318.; A.J.M. McDonald, ‘Sierra Leone’s Uneasy Peace: The Amnesties Granted in the Lome Peace Agreement and the United Nations’, Humanitäres Völkerrecht-Informationsschriften, 13 (2000), 18.
[84] M. Scharf, ‘The Amnesty Exception to the Jurisdiction of the International Criminal Court’, Cornell International Law Journal (1999), 519.
[85] See in detail, H. Mosler, ‘General Principles of Law’ in R. Bernhardt, (ed.), Encyclopedia of Public International Law, II (1995).
[86] See Corfu Channe case, ICJ Rep., 1949, 4 at 22.
[87] Secretary-General’s Bulletin on Observance by United Nations Forces of International Humanitarian Law, ST/SGB/1999/13, 6 Aug. 1999, reprinted in International Peacekeeping, 5 (1999), 160. See for a comment, M. Zwanenburg, ‘The Secretary-General’s Bulletin on Observance by United Nations Forces of International Humanitarian Law: Some Preliminary Observations’, International Peacekeeping, 5 (1999), 133.

 


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