Article by Amin R. Yacoub
The United Nations (“UN”) has been the strongest supporter of Human Rights since its invention. The term “human rights” appeared seven times in the UN’s founding Charter. In 1948, the Universal Declaration of Human Rights (“UDHR”) reaffirmed that human rights obligations have become an inseparable part of international law. Since that time, the UN has “diligently” worked on promoting and protecting human rights through legal instruments and on ground activities.
The engagement of the UN peacekeeping missions in the on ground activities was not always clear of disastrous breaches to human rights. The UN Stabilization Mission in Haiti (“MINUSTAH”) gravely breached the human rights of Haitian citizens. The mission soldiers raped women and men, engaged in multiple raids that killed hundreds of civilians including women and children, and was the main reason for the cholera outbreak that led to the death of more than 30,000 Haitian citizens. Most of these violations were reported in the detailed investigations conducted by both the independent investigative body and the UN internal unit of investigation. As a response, the UN denied responsibility for the Cholera outbreak for more than 6 years, discharged a few Pakistani soldiers for raping a 14-year-old boy after an attempt to cover up the scandal, and did nothing else to mitigate its grave human rights breaches than giving a mere apology. One wonders if a UN Secretary-General’s apology is enough for Haitians who have witnessed nothing but misery for the past 14 years. Or whether the UN swallowing up its fake pride would warrant a waiver for its responsibility for grave violations of human rights obligations under UDHR. This leaves us with the question: who holds the UN accountable for its human rights breaches?
While the UN can be immune from responsibility before national Courts for its diplomatic protection, it is not generally immune under International Law. In order to accurately determine the responsibility of the UN for human rights breaches, we must distinguish between three classes of acts. First, political decisions that are attributable to the UN (usually the UNSC). Second, acts that can be attributed to specific soldiers in peacekeeping missions. Finally, collective acts that cannot be attributed to specific soldiers but can be attributed to the UN peacekeeping forces collectively.
First, the political decision of the UN Security Council (“UNSC”) to deploy MINUSTAH in Haiti was initially questionable. The UN Security Council (“UNSC”) indicated in its resolution No. 1542 (2004) that MINUSTAH was deployed under Chapter VII of the UN Charter (offensive military action in cases of armed conflict), Haiti alleged that it never had an armed conflict that allows for the application of a Chapter VII peacekeeping mission. Only Chapter VII confers the right to UNSC to interfere in the internal affairs of sovereign states and deploy military missions without their consent. In the absence of an armed conflict, the UNSC simply cannot trigger the application of Chapter VII and must rely on Chapter VI (defensive military action) which requires the State’s consent. Nonetheless, the UNSC never actually obtained the consent of Haiti for deploying MINUSTAH.
This is an example of a political decision that is attributable to the UN. If the UN did not comply with its charter, the UN must be held responsible for its unsubstantiated interference in a sovereign state’s internal affairs. The ICJ might come to mind as a first candidate that can hold the UN responsible for such a decision since it is the main judicial organ of the UN. However, Art. 34 (1) of the ICJ statute provides that the competence of the ICJ is limited to states’ disputes and does not include International Organizations. Further, although it is theoretically plausible, it might be practically impossible to hold the UN responsible for the UNSC resolutions or decisions due to their political nature.
Second, the acts of MINUSTAH which can be traced to specific soldiers such as rape and killing civilians. UN initially refers the matter of misconduct of the concerned soldiers to their national governments with regards to both investigation and punishment. Only when their national governments refuse to investigate the matter, the UN Office of Internal Oversight Services (OIOS) reassumes the right to investigate. The UN may take disciplinary measures against soldiers who engaged in misconduct such as repatriating such soldiers and banning them from joining the peacekeeping operations in the future. However, the criminal and civil liability of the soldier involved are solely reserved to the soldier’s national jurisdiction. We consider this mechanism to be accurate with regards to criminal liability. Soldiers who have committed crimes within their role as a peacekeeping mission can only be held accountable in accordance with their national laws. The only criticism directed at this mechanism regarding criminal accountability is that it resulted in many of MINUSTAH’s soldiers dodging accountability for raping and sexually assaulting hundreds of Haitian women by fleeing to their home countries where Courts do not have access to witnesses and victims. It would be more compliant with justice to try the concerned soldiers in the country where the peacekeeping mission sits applying the national law of their jurisdiction. This would allow for a more reliable judicial process for collecting evidence and hearing witnesses and victims. The only time, to our knowledge, the UN Peacekeeping soldiers were tried, a Pakistani military Court convened in Haiti to try Pakistani soldiers. As a result, two Pakistani soldiers were imprisoned for a year for raping the 14-year-old boy after multiple attempts of MINUSTAH trying to cover it up. Had it not been a widely spread scandal, the UN might not have been so “harsh” on the “poor” Pakistani soldiers.
Although such mechanism seems logical with regards to criminal responsibility since the military personnel composing the UN peacekeeping missions are primarily soldiers in the armies of their countries, one cannot leave this matter without further analysis with regards to civil liability. The concerned soldiers are indeed under the effective control of the UN not their individual states. Thus, one finds it hard to accept referring civil liability to be decided by their national jurisdiction since it would create a double standard under International Law. While acts of private parties are attributable to States when they have acted as agents of the State under Art. 4 of ILC articles of State Responsibility, acts of peacekeeping operations’ soldiers are not attributable to the UN even though they act as agents of the UN. It is worth noting that the recently drafted ILC Articles on International Organizations Responsibility (“IOR”) had adopted the right standard. Articles 6 and 7 provide for the responsibility of the International Organizations for the wrongful acts of their agents (defining agents as those who are under the effective control of the organization).
Third, collective acts of the MINUSTAH, such as the outbreak of Cholera, should naturally be attributed to the UN. Such acts cannot be attributed to specific soldiers since they are a result of a series of collective “bad” decisions of MINUSTAH as a mission. Article 13 of the ILC IOR covers the International Law breach consisting of a composite wrongful act that is composed of a series of actions and omissions. Thus, there is no reason under International Law for the UN to escape civil responsibility for the collective misconduct of the peacekeeping mission in Haiti. Finally, Article 36 of IOR provides for Compensation as a remedy for such breaches if restitution is not viable. It also highlights that this remedy is “an obligation” that the concerned International Organization must comply with.
In conclusion, while the UN may not be responsible for initially passing a resolution deploying MINUSTAH in Haiti, it can be held accountable for all the grave human rights breaches committed by the peacekeeping mission. This contradicts with the current UN mechanisms, however, it complies with the ILC draft articles of IOR drafted in 2011.
We suggest that the role for holding the UN accountable for International Law breaches should be conferred upon the Secretary-General of the UN. The General Assembly of the UN plays as a world parliament to some extent. As Abraham Lincoln laid down the cornerstone of democracy, the UN General Assembly represents the International Government of nations, for the nations, by the nations. Departing from this logic, the general assembly and the Secretary General seem to be in the best position to hold the UN accountable for its human rights breaches. Haiti, as a member of the general assembly, might have the option to file a resolution on the UN’s responsibility for the grave human rights breaches committed to the UN Secretary General citing all independent investigative reports. Further, such resolution shall be circulated to all member-states. The UN Secretary General shall call for a vote from each state on the accountability of the UN MINUSTAH mission. If the majority of States voted for the accountability of the UN, the Secretary-General shall compel the UN to provide adequate compensation to Haitian citizens in accordance with Art. 36 of the ILC Articles of IOR. However, the UN civil responsibility for the misconduct of its peacekeeping missions still remains a complex issue that requires further research and suggestions from International Law academics and practitioners.
Author’s note: For a detailed analysis of the UN Responsibility for its human rights breaches in Haiti and further suggestions on who may hold it accountable, see my forthcoming article “Who Holds the UN Responsible for its Human Rights Breaches? An Open Inquiry in the Haitian Case.”
About the Author: Amin R. Yacoub is a Junior Research Scholar, N.Y.U School of Law (2018); LLM, N.Y.U School of Law (2018); LL.B with High Distinction, Faculty of Law English Section, Cairo University (2015); Post-Graduate Diploma, Cairo University; Qalaa Holdings Scholar (2017/2018); Graduate Editor, NYU Journal of International Law and Politics (JILP), Vol. 50 (2017/2018); Co-editor-in-chief, International Review of Human Rights Law; Member of the Egyptian Bar Association.