1. Introduction
Conflict is an inescapable reality of life. As differences in opinion, beliefs, and values remain acceptable facts of human life, so does conflict, a logical and inevitable consequence of those differences. Often, conflicts are manifested in violent and destructive ways, tearing apart societies, consuming our humanity, and even threatening our extinction.
Managing conflict has thus, over time, become a major preoccupation of societies, essential not only to bring about immediate calm and equanimity, but also to ensure survival, longevity, and the reassurance of an enduring atmosphere of growth and development.
When the United Nations was formed in 1945, it was from the ashes of the most violent conflict the world has ever seen, and in the wake of a failure by the League of Nations to prevent another conflict from occurring, after the Great War of 1914–18. As part of the world community's resolve and determination to prevent another global conflict of similar or even greater magnitude, mechanisms for a more realistic and practicable approach to managing conflict were adopted and implemented, in furtherance of the already existing traditional pacific conflict management mechanisms such as negotiation, inquiry, mediation, conciliation, arbitration, and judicial settlement.Footnote 1 International peacekeeping emerged as a practical, and over time proved to be a resoundingly effective, tool for achieving international peace and security.
In their early beginnings,Footnote 2 peacekeeping activities involved strictly military tasks, such as maintaining ceasefires or stabilizing situations on the ground, so that efforts could be made at the political level to resolve the conflict. It was also pretty straightforward. Conflicts were international, between states, and most often there was a ceasefire or a peace agreement to be implemented. However, over the years, particularly in the post-Cold War era, peacekeeping activities have expanded significantly to assume a complex ‘multidimensional’ role, designed to ensure the implementation of a more comprehensive and sustainable peace. Statistics currently indicate that a total of 63 UN peacekeeping operations have been conducted around the world since 1948.Footnote 3 The Secretary-General, in his Report to the General Assembly on the work of the Organization, stated that the United Nations in 2008 had 19 missions with more than 130,000 men and women, including troop and police contributions from 117 member states, supported by a budget of US$7 billion.Footnote 4
With the successes in peacekeeping operations have also come failures and mishaps. Difficulty has been experienced largely in the area of accepting the legitimacy of the force: a lack of consent on the part of conflicting parties to the deployment, on the basis of an absence of impartiality on the part of a troop-contributing country. Resentment of the initial deployment or withdrawal of consent after deployment has thus often led to violent clashes and confrontation with peacekeepers, with resulting fatalities, or the destruction and/or seizure of installations, equipment, and materiel.
This article focuses on some of the challenges a prosecutor faces in prosecuting crimes committed by conflicting parties against peacekeepers. Often, such a legal process comes quite a few years after the conflict has ended, the situation has cooled down, and peace has returned. Often, too, the peacekeeping mission will have completed its mandate, and the participating troops, observers, and civilian support personnel from contributing countries will have returned home. Most typically, participating troops and civilian personnel, once home, are redeployed to other duties across the country or may choose to pursue some other interest or career in another part of the world. The difficulty for the prosecutor in all of these scenarios is the risk of losing potential evidence through the demobilization of the force or the mission.
The article deals first with a brief historical development of the protection of peacekeepers from state practice to its crystallization as a norm of customary international law, and then its adoption in the statutes of international criminal tribunals.
Next, the article examines the scope of the statutory provisions proscribing the practice as against a range of malicious acts reported to have been carried out against peacekeepers during missions, and makes a determination as to the adequacy of their coverage. In carrying out this analysis a comparative approach is adopted, having regard to the statutes of the various international tribunals empowered to try offenders, but paying close attention to the practice of the Special Court for Sierra Leone (SCSL), which is the first international court to have produced a conviction for the offence of ‘intentionally directing attacks against peacekeepers’.Footnote 5
Identifying and locating suitable witnesses, as well as securing their attendance at the trial, are a big hurdle. The process is often multilayered, involving a maze of contacts at diplomatic and governmental levels through which a prosecutor would need to go to secure a witness's attendance. This process is examined and the peculiar constraints associated with it are highlighted.
Finally, the article addresses the legal quagmire in which a prosecutor often finds himself, due to his inability freely and easily to use evidence in the custody of the United Nations, because of its institutional policy of imposing restrictions on disclosure to third parties. The wider and far-reaching ramifications such restrictions have on the work of a prosecutor are highlighted, in particular how they impede his carrying out his duty to pursue transparent justice.
2. Deployment of a mission
Although modalities vary from case to case, the deployment of a UN peacekeeping mission in a conflict-torn country is usually authorized by the UN Security Council through a resolution under Chapter VII of the Charter. This decision is dictated by the situation on the ground in the afflicted country. In particularly devastating conflicts with high rates of civilian casualties and severe humanitarian concerns, an urgent need arises to put a temporary cessation to hostilities through the observance of a ceasefire, followed by evacuation of victims, if necessary, while opening up corridors to facilitate the movement of humanitarian supplies. These imperatives, constituting largely the traditional role of peacekeeping, override all other considerations at that stage.
As the ceasefire holds, often through the implementation of confidence-building measures among the warring factions and political talks, the wider, ‘multidimensional’ aspects of modern-day peacekeeping then kick in. This may include some or all of a myriad of activities, such as monitoring human rights, strengthening the rule of law, building sustainable institutions of governance, providing electoral support, promoting power-sharing arrangements, encouraging security-sector reform, conducting disarmament, demobilization, and reintegration programmes for former combatants, and promoting social and economic development.Footnote 6
A whole range of non-military personnel forming an integral component of the mission's workforce thus gets involved in the peacekeeping process at this stage. These may include police officers and civilian personnel from various fields of expertise.
A decision to authorize a peacekeeping deployment typically rests on an important precondition or presupposition: that there is consent by the host country, or as in current situations of internal conflicts, that the various warring factions within the country agree to the deployment. As highlighted above, the absence of consent or the subsequent withdrawal of consent after the deployment often signals problems. Depending on the reason(s) for the refusal or withdrawal, feelings of hostility against the mission then develop, culminating in open confrontation and violence against mission personnel, their personal belongings, and equipment.
It is important to note from the outset that the term ‘peacekeeping’ or ‘peacekeepers’ is being used in a very generic sense here, and could apply to two kinds of mission, depending on their mandate. Where the mandate is to hold, keep, or maintain peace, the use of force by the mission will generally be prohibited or limited only to purposes of self-defence and, to the extent necessary, to ensuring the effective execution of the mission's mandate. In effect, the force must remain impartial for its members to enjoy the protection normally accorded civilians not taking part in a conflict. In these cases, the mission is equipped in a manner suitable only for maintaining peace. The mission loses this protection if its members engage in the use of force other than in the manner prescribed. They become combatants.
Where, on the other hand, the mandate is to enforce peace as against keep it, the force becomes a part of the conflict. It is equipped differently to ensure that its robust role is fulfilled, and its members are regarded as combatants. They do not enjoy any protection as they are not impartial.Footnote 7
Unless otherwise expressly indicated, references to ‘peacekeeping’ or ‘peacekeepers’ in this paper are to operations or missions with a mandate to keep peace, not enforce it.
3. Criminalizing the practice
Traditionally, the practice common among states was to grant protection to only two categories of soldiers in conflict situations of an international character; these were medical and religious personnel. All members of the armed forces of a party to a conflict were considered ‘combatants’, a categorization derived largely from the Hague Regulations, according to which ‘the armed forces of the belligerent parties may consist of ‘combatants’ and ‘non-combatants’.Footnote 8
Since the advent of UN peacekeeping operations, state practice has shifted as regards persons considered to be entitled to protection from attack in conflict situations. As they are not a party to the conflict while serving in this role, members of a peacekeeping mission deserve special protection. They are thus deemed to be entitled to the same protection against attacks as is accorded civilians, as long as they do not take a direct part in hostilities. This consideration in effect puts peacekeepers under the first rule of protection for civilians under the laws of war, which, after their adaptation from Additional Protocol I of the Geneva Conventions,Footnote 9 read as follows:
The parties to the conflict must at all times distinguish between civilians and combatants.
Attacks may only be directed against combatants.
Attacks must not be directed against civilians.Footnote 10
By the same token, state practice also considered objects involved in peacekeeping operations to be civilian objects, and therefore protected against attacks. This aspect of the norm providing protection against objects, after adaptation from Additional Protocol I of the Geneva Conventions,Footnote 11 reads as follows:
The parties to the conflict must at all times distinguish between civilian objects and military objectives.
Attacks may only be directed against military objectives.
Attacks must not be directed against civilian objects.Footnote 12
As is obvious, these rules relate to the protection of civilians and civilian objects. They fall under a rule of international humanitarian law of the modern age, known as the ‘principle of distinction’, a principle which specifies that a distinction must be made between civilians and combatants when directing an attack during a conflict situation. Before attaining this status, the principle was part of state practice that crystallized into a norm of customary international law. The practice of this principle thus pre-dates the adaptation of rules formulated under it in Additional Protocol I of the Geneva Conventions.Footnote 13
Even after their adaptation, this practice was recognized by states not then parties to Additional Protocol I. Recognition thus continued until the specific adoption of the rules under this principle by international criminal tribunals as crimes covered by their statutes, and over which they can exercise jurisdiction.Footnote 14
In addition to state practice leading up to the adoption of these rules by international tribunals, attacks against peacekeeping personnel and objects have generally been condemned by states,Footnote 15 and by the United Nations and other international organizations.Footnote 16
Other provisions exist in conventions and treatiesFootnote 17 that afford some protection to UN forces not a party to an armed conflict who are subject to attack by belligerent forces. The most relevant for purposes of this study is the 1994 Convention on the Safety of UN and Associated Personnel.Footnote 18
This convention came into existence from an urgent need to focus on the growing problem of inadequate protection against attacks accorded to persons engaged in UN peacemaking and peace-building activities, in particular, peacekeeping and humanitarian assistance missions. According to the preamble, a concern which prompted the establishment of the convention was the growing number of deaths and injuries resulting from deliberate attacks on UN and associated personnel. In this regard, state parties were conscious of the fact that existing arrangements for ensuring the safety of UN and associated personnel, as well as existing measures of protection for these personnel, were inadequate. Most importantly, the convention expressly states that its provisions do not cover UN operations authorized as an enforcement action under Chapter VII, wherein personnel are engaged as combatants.Footnote 19
The convention seeks to prevent, and to provide protection against, attacks of all kinds on UN forces on missions involving peacekeeping and humanitarian assistance work, as well as other activities, as long as those activities do not amount to enforcement action authorized under the United Nations’ Chapter VII powers. Article 7(1) specifically deals with the protection of UN peacekeepers and associated personnel, their equipment, and premises, stating that they ‘shall not be made the object of attack or any action that prevents them from discharging their mandate’. Article 7(2) obliges state parties to take all appropriate measures to ensure the safety and security of such personnel and their equipment, while Article 7(3) requires state parties to co-operate with the United Nations and other state parties in the implementation of the convention.
In effect, the convention establishes the proscription of acts of attack against UN and associated personnel generally, along with a structure for enabling co-operation among state parties in preventing and punishing specific crimes resulting from such attacks, through the exercise of universal jurisdiction.Footnote 20 Article 9(1)(a–e) lists acts criminalized, which may result from attacks – murder; kidnapping, or other attacks on the liberty of a personnel; a violent attack on official premises, private accommodation, or means of transport likely to endanger person or liberty; a threat to commit such acts; an attempt to commit such acts; being an accomplice in the commission of such attacks by others or organizing or ordering the attacks. For the exercise of jurisdiction, Article 10 obliges state parties ‘to take such measures as are necessary to establish jurisdiction over the crimes’. Other provisions enabling the exercise of universal jurisdiction under the convention include, inter alia, communication of information,Footnote 21 extradition,Footnote 22 and mutual assistanceFootnote 23 among member states.
The provisions of the convention appear sufficient in addressing international concern over the issue of preventing or punishing the crime of attack on peacekeepers. However, those provisions beg an answer to the question of why the International Criminal Court (ICC) and the SCSL subsequently specifically adopted a special provision in their statutes to address the same issue.
First, the provisions of the convention are applicable only to state parties who have signed up to it. They are inapplicable where the attack occurs within the territory of a non-state party.
Second, the provisions are applicable to state entities, not non-state entities, such as ad hoc or permanent international tribunals, which are independently created bodies that cannot be signatories, and whose constitution and jurisdiction are provided for in their statutes.
Third, even among state parties, the effective operation of the convention rests on co-operation by such parties, with each other and with the United Nations. In the absence of such co-operation by an unwilling or an unable member, the provisions are rendered ineffective.
Fourth, effective application of the convention also depends on the willingness or ability of some member statesFootnote 24 to domesticate provisions and make them applicable locally. As is often the case, many states sign up to international conventions and treaties but fail to take steps to make their provisions applicable domestically. This creates uncertainty about their applicability when a situation occurs locally.
4. Interpretative challenges
4.1. Are other acts punishable as crimes before international tribunals?
A question which may come to the mind of a prudent enquirer at this stage is whether international tribunals prosecute and punish only those acts specifically adopted as crimes against peacekeepers, and not others.
In a word, the answer to this question is ‘no’. There are several other acts perpetrated against peacekeepers that have been charged and tried by international criminal tribunals, which are not specifically adopted in their statutes as crimes against peacekeepers.Footnote 25 Some of these other acts have equally been condemned by the United Nations. They include acts of harassment, abuse, intimidation, violence, detention, and maltreatment.
4.2. Is the protection limited to peacekeepers involved in a UN peacekeeping operation only?
A second question which may come to the mind of the astute enquirer is whether the protection under this rule applies only to members of a mission performing a peacekeeping role under a UN mandate.
One view is that the rule of protection applies to all forces in a peacekeeping role that are not directly involved in hostilities, whether or not they are on a peacekeeping operation established by the United Nations.Footnote 26 However, the formulation of the wording in these provisions as adopted by the ICC and the SCSL seems to suggest a restrictive application of the rule.
The provisions under the ICC StatuteFootnote 27 are contained in Article 8, which states that the Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.Footnote 28 It continues,
For the purpose of this Statute, ‘war crimes’ means:
. . .
(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law
. . .
(e) Other serious violations . . . in armed conflicts not of an international character, within the established framework of international law.Footnote 29
For both situations the wording of the statute is the same, stating that the acts prohibited may include:
Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;Footnote 30
Equally, in the case of the SCSL,Footnote 31 Article 4 of the Statute provides protection in exactly the same words as the ICC provisions.
The wording of this provision, by the ordinary rule of interpretation, clearly qualifies the category of peacekeepers afforded protection as those whose involvement in such work is ‘in accordance with the Charter of the United Nations’. Without reading more into the provision, it excludes peacekeepers whose mission is not authorized by the United Nations. This brings up a jurisdictional issue. To what extent are the activities of peacekeepers acting under a regional mandate not directly authorized by the United Nations protected? Equally, how protected are the activities of peacekeepers acting under a regional mandate not derived from the United Nations? If they are on a peace enforcement mission, their mandate makes them combatants, but what if they are not?
The UN Charter provides under Chapter VII for a role to be played by regional organizations in the maintenance of international peace and security. However, few practical provisions exist under the Charter as to how these regional organizations are to deal with threats to, or breaches of, peace.Footnote 32 The exigency of a situation usually impels an intervention under a regional mandate, while political and diplomatic channels are explored in order to regularize the situation. Since the 1990s, there has been considerable emphasis on and growth in regional peacekeeping in conflicts around the world. Some activities are carried out by regional bodies operating under a ‘sub-contracted’ mandate from the United Nations,Footnote 33 while others are not.Footnote 34 If they operate under a UN mandate being implemented by a regional body, they are clearly protected by the rule.
In view of the fact that the majority of all international peacekeeping activities around the world are carried out either directly by the United Nations or by regional bodies authorized by it, it can be understood why rules about protecting peacekeepers are, probably inadvertently, fashioned this way. However, it cannot be said that state practice which developed into a norm of customary international law actually qualified protection as applying only to peacekeepers working under a UN mandate, nor can such qualification be implied only on the basis that international peacekeeping grew largely as a task of the United Nations, the guarantor of world peace and security.
The position, then, is that, in relation to attacks directed against peacekeepers deployed in Sierra Leone during the conflict, for instance,Footnote 35 the statute aptly deals with the crime charged, because the mission was in accordance with the UN Charter. Also, the Special Court is an ad hoc tribunal, whose mandate is limited to dealing with crimes committed in the conflict in Sierra Leone only, and therefore it should have no reason to address itself to questions that arise in an open-ended and permanent situation as does the ICC, whose mandate remains open to try any and all crimes of attack directed against peacekeepers acting in accordance with a UN mandate. At some stage an ICC prosecutor may have to ask himself whether a particular act of attack is covered by the scope of the statute. It may even boil down to a situation where the prosecutor, in investigating crimes of genocide, crimes against humanity, or war crimesFootnote 36 relating to a conflict where a regional peacekeeping operation was undertaken not under the authority of the United Nations, finds himself unable to prosecute a crime of an attack directed against the peacekeepers for reason of the qualification contained in this provision.
4.3. Scope of the protection
Although the crime of ‘intentionally directing attacks’ is the only one so far adopted by international criminal tribunals, these tribunals do charge and prosecute perpetrators for other acts committed against peacekeepers arising from the same course of events. Within the range of other acts so far charged and tried are murder, taking hostages, pillaging, and cruel treatment.
4.3.1. SCSL practice
In the RUF case,Footnote 37 the Prosecution brought four counts arising from the same chain of events relating generally to attacks on UN peacekeepers in Sierra Leone. Of these, only one count was charged as an ‘OTHER SERIOUS VIOLATION OF INTERNATIONAL HUMANITARIAN LAW’ under Article 4 of the statute. The other counts were charged as War Crimes and Crimes Against Humanity under other provisions:
Count 15: Intentionally directing attacks against personnel involved in a humanitarian assistance or peacekeeping mission, an OTHER SERIOUS VIOLATION OF INTERNATIONAL HUMANITARIAN LAWFootnote 38
Count 16: For the unlawful killings, Murder, a CRIME AGAINST HUMANITYFootnote 39
Count 17: Violence to life, health and physical or mental well-being of persons, in particular murder, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL IIFootnote 40
Count 18: For the abductions and holding as hostage, taking of hostages, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL IIFootnote 41
There were convictions for counts 15 and 17, and acquittals under counts 16 and 18. The judgment in this case, as we already know, set a groundbreaking record for being the first to pronounce convictions for the offence of ‘intentionally directing attacks’ against peacekeepers and their objects, under Count 15.
4.3.2. ICC practice
The ICC has so far charged one person, Bahr Idriss Abu Garda,Footnote 42 with the offence of ‘intentionally directing attacks’. He awaits trial. The offence arose from an attack allegedly carried out by a movement headed by the accused, the JEM-CL, against peacekeepers of the African Union Mission in Sudan (AMIS) operating under a UN mandate, in Haskanita, North Darfur. The attack took place on 29 September 2007. Twelve peacekeepers were killed in the attack and eight were wounded, and communications installations, dormitories, and vehicles and other materials belonging to AMIS were destroyed, stolen, or pillaged. The preferred charges, subject to confirmation, are:
violence to life in the form of murder, whether committed or attempted, within the meaning of article 8(2)(c)(i) of the Statute;
intentionally directing attacks against personnel, installations, material, units or vehicles involved in a peacekeeping mission within the meaning of Article 8(2)(e)(iii) of the Statute; and
pillaging within the meaning of Article 8(2)(e)(v) of the Statute.
4.3.3. ICTY practice
Between 26 May 1995 and 2 June 1995, Bosnian Serb military personnel, allegedly under the direction and control of Radovan Karadžić and Ratko Mladić, seized 284 UN peacekeepers in Pale, Sarajevo, Gorazde, and other locations, and held them hostage in order to prevent further NATO air strikes. The peacekeepers were held in captivity by force or by the threat of force. After seizing the UN peacekeepers, Bosnian Serb military personnel immediately selected some among the hostages to use as ‘human shields’ at potential NATO air targets, including ammunition bunkers, a radar site, and a nearby communications centre, in order to render these locations immune from further NATO air strikes. High-level Bosnian Serb political and military delegations inspected and photographed the UN hostages who were handcuffed at the ammunition bunkers.Footnote 43
The ICTY statute does not have specific provisions dealing with the offence of ‘intentionally directing attacks’ against peacekeepers. Karadžić and Mladić were charged in the initial indictmentFootnote 44 with ‘taking hostages’ and ‘cruel treatment’ under four counts. Following several amendments, the charge against Karadžić in respect of these events is now a single count, of ‘taking hostages, a violation of the laws or customs of war’.Footnote 45 His trial is now under way.
4.3.4. ICTR practice
At the ICTR, crimes relating to the killing of ten Belgian peacekeepers serving under the UN Mission to Rwanda (UNAMIR), at Camp Kigali, after their arrest at the prime minister's residence, were charged and prosecuted. The ICTR statute does not specifically provide for the offence of ‘intentionally directing attacks’. However, charges were brought under other provisions within the statute. Theoneste Bagosora was charged with the following offences in relation to those killings:
Count 5: murder as a crime against humanity;
Count 11: murder, as a war crime.Footnote 46
Bagosora was found guilty of murder as a crime against humanity for failing to prevent the killings. Interestingly, but perhaps unnecessarily, the Trial Chamber considered their status as UN peacekeepers and that they were disarmed; the Trial Chamber was satisfied that the victims could not be considered combatants. The fact that one of the Belgians was able to obtain a weapon and use it in self-defence during the course of the attack did not alter their status.
These examples demonstrate amply that these are ordinary crimes known to law and covered by existing international humanitarian law provisions. What makes the adopted provision different is the special protection it provides to persons in a particular group against certain acts perpetrated against them in defined circumstances. A prosecutor should therefore be able to charge an accused, as appropriate, with other acts in addition to ‘intentionally directing an attack’, under existing provisions. The Trial Chamber in the RUF judgment, reflecting the views of the Secretary-General,Footnote 47 summarized the position as follows:
The prohibition against attacks on peacekeeping personnel does not represent a new crime. Instead, as personnel and objects involved in a peacekeeping mission are only protected to the extent that ‘they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict’, this offence can be seen as a particularisation of the general and fundamental prohibition in international humanitarian law against attacks on civilians and civilian objects.Footnote 48
5. Elements of the offence: what to prove?
The SCSL, being the vanguard institution in prosecuting the crime of ‘intentionally directing attacks’ against peacekeepers, in the RUF judgment fleshed out the elements to be proved by a prosecutor in order for the offence to be held to have been committed. These can generally be identified from the words of the statute creating the offence. The following were outlined:
The Accused directed an attack against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations;
the Accused intended such personnel, installations, material, units or vehicles to be the object of the attack;
Such personnel, installations, material, units or vehicles were entitled to that protection given to civilians or civilian objects under the international law of armed conflict; and
The Accused knew or had reason to know that the personnel, installations, material, units or vehicles were protected.
From the Trial Chamber's analysis of the elements, a few observations can be made, intended either to highlight some implications for the prosecutor or simply to help our better understanding of the analysis.
First, the Trial Chamber opined that the prosecutor must prove only that an attack was carried out and that the primary object of the attack must be the personnel, installations, materiel, units, or vehicles involved in a humanitarian assistance or peacekeeping mission. The Chamber also opined that there is no requirement to prove actual damage to personnel or the objects of the attack. For a definition of the word ‘attack’, the Chamber adopted the meaning ‘act of violence’.Footnote 49
This analysis indicates that what is intended to be protected is, simply, the sanctity of the UN peacekeeping and humanitarian mission activities, respect for the authority and dignity of the United Nations in establishing these missions, and protection of the mission's status itself. Thus mere interference with the mission's activities through any act of violence, irrespective of its consequences, is punishable. This position reinforces the view earlier expressed that acts which flow from the attack itself are punishable under existing law. As already observed, acts of murder, hostage taking, pillage, and cruel treatment arising from attacks on peacekeepers have all been charged by the various tribunals under other existing provisions in their statutes.
Second, the element that the personnel and their objects being attacked must be involved in humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations also underscores a view put forward earlier, that the protection is restrictive and not applicable to peacekeepers not operating under a UN mandate.
Third, in relation to the mental element requirement, that the accused knew or had reason to know that the personnel and their objects were protected as civilians or civilian objects under the international law of armed conflict, the Chamber stated that the totality of the circumstances at the time will have to be taken into consideration to make a determination of the accused's knowledge. It is not a requirement, however, that the accused should actually have legal knowledge of the protection to which personnel and their objects are entitled under international humanitarian law. The circumstances to be examined include:Footnote 50
the relevant Security Council resolutions for the operation;
the specific operational mandates;
the role and practices actually adopted by the peacekeeping mission during the particular conflict;
their rules of engagement and operational orders;
the nature of the arms and equipment used by the peacekeeping force;
the interaction between the peacekeeping force and the parties involved in the conflict;
any use of force between the peacekeeping force and the parties in the conflict; and
the nature and frequency of such force and the conduct of the alleged victim(s) and their fellow personnel.
The facts that need to be examined to establish knowledge are certainly not mutually exclusive. Therefore it would require proof of quite a few of them to get over the criminal threshold of ‘proof beyond reasonable doubt’. This poses some practical challenges for the prosecutor, in terms of the range and amount of evidence to call to prove knowledge.
A more serious challenge often overlooked by prosecutors is the range of possible defences that are available to an accused charged with an offence. A prudent prosecutor will not only focus on familiarizing himself with the inculpating elements and evidence as he prepares his case, but will also keep an eye open for exonerating ones too.Footnote 51 Some of those exonerating circumstances, if not the facts, can be read from the language of the provision itself, just like the inculpating elements. For instance, by the extent to which a provision limits the scope of the offence being charged, so it increases the potential defences or exonerating circumstances relative to that offence. Some of those that can be inferred from the judgment are:
Mission operating under a UN mandate. Was the mission authorized by the UN under a UN Security Council resolution with Chapter VII powers?
Entitlement to protection as civilians or civilian objects. Did the mission force breach its impartiality by taking sides with a faction, or did they actually engage in fighting against one or more of the factions?
Action in self-defence. Was there any use of force at any time by a member of the mission? If so, in what circumstances? Against whom, and to what extent? What was the threat posed?
Scope of operational mandate. What does the operational mandate authorize about the use of force? Was this a peacekeeping or a peace enforcement mission?
Scope of rules of engagement. If force was used by a member of the mission, what kind of force was used? What was the type of weapon used?
6. Some matters of practical consideration
The prosecution of every crime comes with its unique challenges. An astute prosecutor would often try to know his case before embarking on the exercise of preferring a charge or an indictment, not the other way round. Knowing your case as a prosecutor typically involves:
1. an understanding of the offence and the legal elements to be proved;
2. an understanding of the basic relevant facts of the case – the events;
3. an identification of the elements needed to be proved in the particular case, having regard to the facts;
4. a determination of the nature and type of evidence required;
5. finding the evidence, stage I – ascertaining the existence or availability of such evidence;
6. finding the evidence, stage II – making a practical assessment of how to obtain the evidence; and
7. considering admissibility issues.
All these steps would involve some investigation and preparatory work for trial. The context in which the offence of ‘intentionally directing attacks’ is committed provides us with its own unique challenges, specifically identification of the evidence, and locating and/or finding it. Because the crime has been committed against a mission consisting of peacekeepers or humanitarian assistance workers drawn from contributing forces from different countries, the evidence will peculiarly include factual witnesses to the events from one of those countries and documentary material in the custody of one or more of them, the mission headquarters, or the UN agency with oversight responsibility for the work of these missions, the United Nations Department for Peacekeeping Operations (UNDPKO). Relevant documentary material forming evidence may include internal memoranda, official reports of incidents including investigative material, statements by personnel, military sitrep summaries, and board of inquiry reports.
Witnesses to give live testimony are often much easier to find, although it is not always as easy to secure their attendance at the trial. Once a witness is identified, the next step is to locate his whereabouts, and then to seek official permission, not only for him to travel to testify, but more importantly, to enable him to testify about the matters he experienced relating to the incident. If the mission is still in operation when the case starts, then it is easier to request such permission from the mission headquarters, provided that his country still has its contingent in the mission. If not, or the mission's operation has ended, the problem then is from whom such permission is sought – the government of the contributing state of the witness or the UNDPKO? Either way, it is not unusual to have a response permitting testimony but imposing restrictions on the scope of the evidence the witness can give.Footnote 52
The position with documentary evidence is even more difficult and restrictive. Often, after an endless stream of correspondence, permission is granted for use of documents with severe restrictions imposed on disclosure to third parties.Footnote 53 This can kill the case for the prosecutor, because in pursuing fair and transparent justice not only must he able to make use of such evidence, but he has a statutory obligation to disclose it to the accused in advance, to enable the accused's preparation of his defence in relation to the use of that piece of evidence, or in case it contains exculpatory material.Footnote 54 A restriction of the kind imposed by the United Nations therefore puts the prosecutor in a more than difficult position with regard to his statutory obligations of disclosure. It could undermine a count or counts in the indictment and could even force a prosecutor to withdraw unsupported counts. Although provisions exist under the rules and statutes of some tribunals for the prosecutor to be able to negotiate disclosure of exculpatory material obtained on a confidential basis from an entity claiming or exercising privilege,Footnote 55 these provisions are not mandatory and do not always guarantee a satisfactory outcome for the prosecutor.
These situations often leave the prosecutor in a difficult position, because, on the one hand, he is involved in prosecuting crime(s) in the interests of the United Nations and the international community at large – a valid cause, it would appear. On the other, he cannot easily or freely make use of incriminating evidence in the custody of the United Nations or an associated entity which is necessary for proof of his case. Quite ironic, it would seem!
Justification for this practice rests in the view that as a matter of policy, material relating to UN operations should remain confidential and classified. How this policy helps in advancing the United Nations’ interest in pursuing transparent justice and ending impunity against war crimes and crimes against humanity remains questionable. The recent situation in the Thomas Lubanga case at the ICC is a pertinent example of the difficulties the prosecutor faces.Footnote 56
It must be stated, however, that the culture of protecting information or material in the custody of institutions involved in international human rights and humanitarian law protection work is not unique to the United Nations and its associated agencies. The International Committee of the Red Cross (ICRC), a leading international non-governmental organization in this field, enjoys special recognition in the statutes of a number of international tribunals concerning privilege to which it is entitled regarding disclosure of material or information at its disposal to third parties.Footnote 57 Decisions from other tribunals also recognize this position.Footnote 58 This privilege is based mainly on the need to protect the confidentiality of ICRC sources.Footnote 59
7. Conclusion
It is evident from the foregoing that the prosecution of the crime of ‘intentionally directing attacks’ against peacekeepers, like that of any other crime, poses unique challenges, in particular when, owing to the scope of protection afforded, only the attack itself is charged under the provision, while resulting harm from the attack is charged under other provisions. Furthermore, the consideration that a prosecutor might very well be faced with a situation where provisions of the act are inapplicable leaves questions as to the effectiveness of the protection it offers.
Nonetheless, the virtues of the provision must be trumpeted – the protection of the sanctity of UN peacekeeping and humanitarian mission activities, respect for the authority and dignity of the United Nations in establishing these missions, protection of the status of the mission itself once deployed, and a check on impunity with regard to these kinds of attack.
