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

The international regime of responsibility for the human rights violations of UN peacekeepers up to the time of this article’s writing was divided and wrongheaded. This article provides a comprehensive critical analysis of that regime. I argue that both the United Nations and troop-contributing states are subject to human rights law, including the fundamental duty to remedy human rights violations for which they are responsible, and that these duties apply extraterritorially in many peacekeeping contexts. Contrary to legal authorities up to the time of writing, I then argue that the determination of whether the troop-contributing state or the United Nations should be held responsible in a given context must be driven by an assessment of which entity held the levers of control most likely to be effective in lawfully preventing the wrong in question. To that end, I propose a five-category framework of responsibility. This framework expands the responsibility of troop-contributing states and advocates the joint responsibility of the state and the United Nations in a significantly greater number of contexts than had been recognized by courts and other authorities up to the time of writing. The proposed regime maximizes the avenues to remedy for victims without prejudice to the fairness and effectiveness of a framework that accurately locates those most responsible. I conclude by addressing several legal and policy objections.

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

JEL Classification: K33