Translating the Standard of Effective Control into a System of Effective Accountability: How Liability Should be Apportioned for Voliations of Human Rights by Member State Troop Contingents Serving as United Nations Peackeepers

Abstract:     
When United Nations peacekeepers violate human rights, they do immeasurable damage to their victims, their missions, and themselves. Reparation for these wrongs is essential for both rebuilding the trust that is needed for effective peacekeeping and affirming the human dignity of those who suffer the abuse. However, because of the unique status of peacekeepers as both troops in their respective national services and members of an international U.N. force, the question of which entity is liable for reparation is particularly complicated. This Article provides a comprehensive analysis of the law and practice of reparation for the human rights abuses of U.N. peacekeepers and advances a new interpretation of how the “effective control” standard of liability attribution should be applied in this context. Specifically, this Article finds that both the United Nations and troop-contributing states are subject to human rights law under certain circumstances. It also finds that both the United Nations and the troop-contributors are subject to the fundamental duty to remedy human rights violations for which they are responsible. The key question is how to determine, for a given situation, which international person is responsible for the human rights abuses of peacekeepers. Effective control is the correct governing principle. However, rather than “overall operational control” as advocated by a number of jurists and as applied in some courts, effective control must be understood to mean “control most likely to be effective in preventing the wrong in question.” Applying this revised principle to the peacekeeping context, this Article proposes a five-category framework through which to assess the appropriate locus of responsibility for peacekeepers’ human rights violations. Emphasizing the importance of considering the full complexity of the command and control relationships between states, the United Nations and peacekeepers, this framework significantly expands the liability of troop-contributing states from what remains de facto immunity under existing interpretations in the vast majority of situations. Finally, by implementing joint and several liability wherever feasible within the confines of effective control, the proposed framework seeks to maximize the avenues to remedy for victims without prejudice to the fairness and effectiveness of a framework that accurately locates those most responsible.

Keywords: Peacekeeping, Effective Control, Reparations, Human Rights, Behrami

JEL Classifications: K33

Accepted Paper Series