The Human Rights Treaty Obligations of Peacekeepers

Author: Kjetil Mujezinović Larsen
Publisher: Cambridge University Press
ISBN: 9781107017078
Published In: July 2012
Format: Hardback , 508 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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Do States, through their military forces, have legal obligations under human rights treaties towards the local civilian population during UN-mandated peace operations? It is frequently claimed that it is unrealistic to require compliance with human rights treaties in peace operations and this has led to an unwillingness to hold States accountable for human rights violations. In this book, Kjetil Larsen criticises this position by addressing the arguments against the applicability of human rights treaties and demonstrating that compliance with the treaties is unrealistic only if one takes an 'all or nothing' approach to them. He outlines a coherent and more flexible approach which distinguishes clearly between positive and negative obligations and makes treaty compliance more realistic. His proposals for the application of human rights treaties would also strengthen the legal framework for human rights protection in peace operations without posing any unrealistic obligations on the military forces.

• Examines a wide spectre of legal and policy arguments for why human rights treaties should or should not apply to peace operations, thereby giving the whole picture and demonstrating how questions are interrelated

• Combines legal and pragmatic perspectives, allowing readers to operationalise and apply the offered views

• Analyses the legal impact of the concern that it is unrealistic to require compliance with human rights treaties in peace operations and provides realistic tools for strengthening the legal human rights framework and the accountability mechanisms in peace operations

Foreword	xvi
Preface	xx
Table of cases	xxiii
List of abbreviations	xli
Part I Background and context
1 Introduction and overview	3
The main research question	4
Scope of analysis	6
Treaty law as the relevant basis of human rights obligations	6
UN-mandated peace operations: some terminology	7
Preparing the stage	11
Whose obligations towards whom?	11
The obligations of states	11
Military forces as the relevant state agents	13
Civilians as the relevant rights-holders	13
A selection of substantive norms: the protection of an individual's physical integrity	14
Human rights treaties in context: the legal framework of peace operations	16
The immunities and privileges of the United Nations	20
Clarifications concerning method	21
Principles of interpretation: human rights treaties	21
Judicial activism vs. judicial self-restraint in human rights bodies	25
The interpretation of UN Security Council resolutions	27
The interpretation of other instruments	32
The relevance of international customary law	34
Outline of the book	36
2 The context	42
The emerging relevance of human rights law in UN-mandated peace operations	42
The increased complexity of peace operations	43
Globalism vs. regionalism	45
The mainstreaming of human rights in the United Nations	48
Two trends in peace operations: the protection of civilians and the protection of human rights	49
The protection of civilians	49
The protection of human rights	53
The failure of peace operations to respect or protect human rights	55
The ‘humanisation’ and the ‘human-rightism’ of international law	57
The other side of the coin: the alleged inappropriateness of applying human rights treaties	60
The two approaches of the European Court of Human Rights and the United Nations Human Rights Committee: an example of the fragmentation of international law?	61
The fundamental policy consideration: peace and security vs. human rights	64
Peace and human rights	65
(National) security and human rights	66
The relevance for UN-mandated peace operations	70
Conflicting values in peace operations: the effectiveness of peace operations and the effectiveness of human rights	71
The ‘square peg, round hole’ argument	76
Part II Two fundamental arguments for non-applicability of human rights treaties
3 The argument of non-applicability ratione personae	85
Overview of the chapter	85
The capacity of actors in peace operations to bear responsibility under international human rights law	87
Troop contributing states	87
The human rights obligations of international organisations	87
The relevance of international legal personality	88
The international legal personality of the United Nations and NATO	91
Objective and subjective personality	98
Attribution of conduct during UN-mandated peace operations	99
The context	99
The responsibility of states and of international organisations	99
Are the general principles of international responsibility relevant for human rights law? The notion of ‘self-contained regimes’	102
The relevance of the issue for the present book	105
Overview of the further analysis	107
Attribution of conduct of military forces during peace operations: rules and principles of general international law	108
Relevant provisions in the Articles on State Responsibility	108
Relevant provisions in the Draft Articles on Responsibility of International Organizations	111
The legal status of peace operations	112
Application of the general rules and principles in UN-mandated peace operations	113
Attribution of conduct under human rights law: a lower threshold?	121
Direct responsibility	121
‘Indirect responsibility’: the concept of positive obligations	125
The Behrami/Saramati case	129
Introduction to the case	129
The content of the ‘ultimate authority and control’ test	132
Developments ‘post-Behrami/Saramati’	136
The European Court of Human Rights: cases applying the ‘ultimate authority and control’ test	136
Domestic case law: the Al-Jedda case	138
The European Court of Human Rights tries again: the Al-Jedda case	141
Domestic case law: the Dutch cases concerning Srebrenica	142
Domestic case law: the Belgian Mukeshimana-Ngulinzira case	144
Reactions from the UN and states	144
The (lack of an) approach of the UN Human Rights Committee	146
A normative assessment of the ‘ultimate authority and control’ test	146
The incompleteness of the Behrami/Saramati decision: two unexplored avenues to holding contracting states responsible when conduct is (also) attributable to the United Nations	151
Dual and multiple attribution	151
The responsibility of member states for acts of the organisation	156
Conclusions	164
4 The argument of non-applicability ratione loci	165
Territory and jurisdiction	165
The extraterritorial application of the ECHR: general starting points	167
The settled issue: the ECHR can apply extraterritorially	167
‘Jurisdiction’ defined as the exercise of authority and control	169
The contentious issues: an overview of the further analysis	173
A basis for comparison: the position under the ICCPR	177
The ICCPR can also apply extraterritorially	177
The similar definition of ‘jurisdiction’	180
The application of the ICCPR in UN-mandated peace operations	181
The exercise of extraterritorial jurisdiction in peace operations: four categories	185
Exercise of authority or control over a territory	185
The general principles	185
Transitional administration	190
‘Safe areas’, ‘security zones’, and other places of protection	194
Buffer zones	198
Combat operations	202
Exercise of authority or control over individuals	204
Arrest	204
Detention	207
An individual is killed by a state agent	211
Extraterritorial effects of territorial or extraterritorial conduct	215
Extradition and expulsion	215
Cross-border incidents	217
The requirement of a close connection between the conduct and the injury	217
Effects of a foreign state's conduct	218
The Manoilescu/Dobrescu and Treska cases: the birth of a ‘due diligence’ doctrine, or a slip of the tongue?	220
The discussion of an ‘espace juridique’ limitation	224
A sidestep: the universality of human rights	224
The possible relevance of the ‘espace juridique’	227
The relationship between the host state and the peace operation	233
Competing ‘jurisdictions’	233
Conflicting international obligations	236
Conclusions	237
Part III Circumstances that may exclude or modify the application of the treaties
5 The applicability of human rights law during armed conflicts	243
The settled issue: human rights law applies, in principle, during armed conflicts	243
The contentious issue: the relationship between IHL and human rights law	247
Overview	247
The relevance of the issue for the present book	248
The applicability of IHL to troop contributing states in UN-mandated peace operations	248
The applicability of the law of belligerent occupation	250
The right to life	252
The right to liberty and security	255
Prohibition against torture	255
The lex specialis theory	256
The complementarity theory	259
The ‘most favourable protection of victims’ theory	260
The human rights-based theory	261
The practice under the ECHR and the ICCPR	263
The jurisdiction of the European Court of Human Rights and the UN Human Rights Committee to apply IHL	263
Methodological and practical challenges	268
The case law of the European Court of Human Rights	272
The views of the UN Human Rights Committee	282
The Committee's General Comments	282
The Committee's country-specific practice: Concluding Observations to Periodic State Reports	285
The Committee's country-specific practice: jurisprudence	289
Advantages and disadvantages of the application of IHL by human rights tribunals	290
Can a general theory be identified?	293
Implications for the application of the ECHR and the ICCPR when peace operations are involved in armed conflicts	296
6 Derogations	298
The legal basis for derogations	298
Derogation from human rights treaties in peace operations	299
The emergency requirement: the problem of extraterritorial derogations	299
A threat to the ‘life of the entire nation’ or to the ‘life of affected parts of the nation’?	302
A similar test for extraterritorial derogations?	306
Consistency with other obligations under international law	311
A way to avoid the ‘absurdity’ argument	312
7 Norm conflicts between UN Security Council mandates and human rights treaties	314
The UN Charter Article 103	314
Introduction to the problem	314
A necessary background: constitutionalism vs. legal pluralism	315
Charter obligations and Charter body decisions	318
Obligations and authorisations	319
The general prevailing effect of Article 103	322
Norm conflicts between Charter obligations and human rights	323
The special situation of human rights	323
Human rights norms as a substantive limitation of the competence of the UN Security Council	323
The right to life, freedom from torture, and the right to liberty and security, as a substantive limitation of the competence of the UN Security Council	328
Is there a presumption of human rights compliance?	332
A review of relevant case law	333
The European Court of Human Rights: the Behrami and Saramati cases	333
The UN Human Rights Committee: the Sayadi and Vinck case	335
The European Court of Justice and the Court of First Instance: the Kadi and Al-Barakaat case	338
The UK House of Lords: the Al-Jedda case	344
The European Court on Human Rights tries again: the Al-Jedda case	346
Norm conflicts between authorisations under the UN Charter and rights under the European Convention on Human Rights: the (uncertain) lex lata solution	347
Attempts to reconcile the cases	347
An explanation of the view of the European Court of Human Rights	349
Norm conflict in practice in peace operations: the interpretation of resolutions authorising ‘all necessary means’	351
8 Legal challenges relating to the interrelationship between troop contributing states	353
Regional differences	353
Interoperability from a human rights perspective	355
The mutual dependence between states	357
Indispensable third parties – the ‘Monetary Gold’ principle	360
Part IV *Application in concretu:* the right to life, to freedom from torture, and to liberty and security**
9 Selected issues relating to the application of substantive provisions	367
The distinction between positive and negative obligations	367
Overview	367
The starting point: the indivisibility of human rights	367
Are human rights ‘divisible’ in peace operations? Building a case for separating negative and positive obligations	368
The right to life	374
The relevant treaty provisions	374
Use of lethal force	375
Introduction to the authority to use lethal force in peace operations	375
Personal self-defence	378
Defence of the mission	379
Chapter VII authorisation: the situation during combat operations	381
Positive obligations under Article 2	386
General content: relevance for peace operations	386
Mandates concerning the protection of civilians under ‘imminent threat of physical attack’, and similar limitations	391
The right to liberty and security	393
Detention	393
The prohibition against arbitrary arrest and detention	393
The right to be brought promptly before a judge	397
The right to judicial review	399
Positive obligations under Article 5	400
Transfer of detainees: the principle of non-refoulement	401
The application of the ECHR and the ICCPR on the transfer of detainees	401
Bilateral detainee transfer agreements: ISAF	404
Bilateral detainee transfer agreements: the Coalition Provisional Authority	406
The impact of the agreements: the question of diplomatic assurances	408
The prohibition against torture	418
The obligation not to subject anyone to torture	418
The scope of the prohibition	419
Positive obligations under Article 3	423
Final reflections: is it ‘absurd’ to require compliance with the ECHR?	427
Part V Conclusions
10 Conclusions	433
Many obstacles to the applicability of human rights treaties	433
Inherent or invented obstacles?	434
The better approach: transparent adaptations to the ordinary application of the treaties	436
Sources and materials	439
Selected UN documents	439
Books, articles and other literature	439
Index	461