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A Failure to Protect in Peacekeeping Operations: a Commander’S Responsibility? Obligations and Responsibilities of Military Commanders in UN Peacekeeping Operations

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A Failure to Protect in Peacekeeping Operations: a Commander’S Responsibility? Obligations and Responsibilities of Military Commanders in UN Peacekeeping Operations Sprik, Lenneke H.M. (2017) A failure to protect in peacekeeping operations: a commander’s responsibility? Obligations and responsibilities of military commanders in UN peacekeeping operations. PhD thesis. http://theses.gla.ac.uk/8613/ Copyright and moral rights for this work are retained by the author A copy can be downloaded for personal non-commercial research or study, without prior permission or charge This work cannot be reproduced or quoted extensively from without first obtaining permission in writing from the author The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given Enlighten:Theses http://theses.gla.ac.uk/ [email protected] A Failure to Protect in Peacekeeping Operations: A Commander’s Responsibility? Obligations and Responsibilities of Military Commanders in UN Peacekeeping Operations Lenneke (H.M.) Sprik Submitted in fulfilment of the requirements for the degree of Doctor of Philosophy School of Law College of Social Sciences University of Glasgow October 2017 Abstract Inaction by UN peacekeeping troops in the face of the commission of genocide in Srebrenica and Kigali raised significant questions regarding the duty owed by UN peacekeeping forces to those under their protection. Recent court judgments have recognised that the Netherlands and Belgium were to a certain extent legally responsible to protect those under the care of each state’s peacekeeping troops, and that also the role of individual peacekeeping commanders may be questioned. While peacekeeping commanders may have a moral responsibility to act, it is not realistic to argue that peacekeeping commanders have a legal duty to do so. As a result, the use of the existing options to establish criminal liability for a failure to act under domestic and international law would not be justified in relation to the conduct committed. This thesis argues that alternative options to the existing forms of criminal responsibility for military commanders should be considered, possibly focusing more clearly on failing to fulfil a norm of protection that is specific to peacekeeping and distinct from protective obligations under international human rights law and international humanitarian law. Establishing law tailored to the context of peacekeeping would be an important step towards clarification of the obligations and responsibilities held by military commanders in UN peacekeeping missions. 2 Table of Contents Abstract ......................................................................................................................................................... 2 Table of Contents .......................................................................................................................................... 3 Acknowledgements ....................................................................................................................................... 7 Author’s declaration ...................................................................................................................................... 9 Abbreviations .............................................................................................................................................. 10 Chapter 1: Introduction ............................................................................................................................... 13 1.1 Context .............................................................................................................................................. 13 1.2 Structure ............................................................................................................................................ 23 Chapter 2: Peacekeeping Failures and their Legal Aftermath .................................................................... 27 2.1 Introduction ....................................................................................................................................... 27 2.2 Case Studies ...................................................................................................................................... 27 2.2.1 Kigali .......................................................................................................................................... 27 2.2.2 Srebrenica .................................................................................................................................. 31 2.3 Legal Steps taken in Domestic Courts .............................................................................................. 35 2.3.1 Belgium: Prosecutor v Marchal and Mukeshimana-Ngulinzira and others v Belgium and others ............................................................................................................................................................ 35 2.3.2 The Netherlands: Mothers of Srebrenica and Nuhanović/Mustafić ........................................... 40 2.4 Command and Control within PKOs ................................................................................................ 45 2.4.1 Chain of command ..................................................................................................................... 45 2.4.2 Memorandum of Understanding ................................................................................................ 48 2.5 Looking Beyond the State as Actor Bearing Responsibility for Human Rights Protection.............. 50 2.5.1 Mustafić & Nuhanović v Karremans, Franken & Oosterveen ................................................... 54 2.5.2 Article 2 of the European Convention on Human Rights: the Duty to Investigate .................... 56 2.6 Conclusion ........................................................................................................................................ 62 Chapter 3: Omission Liability in Domestic Law ........................................................................................ 64 3.1 Introduction ....................................................................................................................................... 64 3.2 Omission Liability: A Definition ...................................................................................................... 65 3.3 General Perspectives in Common and Civil Law Compared ............................................................ 67 3.4 Elements Required for Omission Liability ....................................................................................... 69 3.4.1 Actus Reus: Failure to Act despite a Duty to Act ...................................................................... 69 3 3.4.2 The Interpretation of the Actus Reus: Reasonableness & Ability to Act ................................... 74 3.4.3 Mens rea ..................................................................................................................................... 79 3.4.4 Causation .................................................................................................................................... 88 3.5 Degree of Liability ............................................................................................................................ 91 3.6 Practical Limitations to Domestic Adjudication of Peacekeeping Conduct ..................................... 94 3.7 Comparative Perspective and Concluding Remarks ......................................................................... 97 Chapter 4: Scope for Omission Liability under International Law? ........................................................... 99 4.1 Introduction ....................................................................................................................................... 99 4.2 Jurisdiction of the International Courts and/or Tribunals ................................................................. 99 4.2.1 Qualification of Conduct: a domestic or international crime? ................................................. 102 4.2.2 Genocide .................................................................................................................................. 103 4.2.3 Crime(s) against Humanity ...................................................................................................... 105 4.2.4 War Crimes .............................................................................................................................. 106 4.3 Command Responsibility ................................................................................................................ 110 4.4 Omissions: Point of Departure in International Criminal Law ....................................................... 113 4.5 The Elements of Omission Liability in International Law .............................................................. 120 4.5.1 Actus Reus: Duty to Act .......................................................................................................... 120 4.5.2 Actus Reus of Aiding and Abetting: the Contribution Required ............................................. 125 4.5.3 Specific direction ..................................................................................................................... 129 4.5.4 Mens Rea ................................................................................................................................
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