Enforcement of victims’ right to reparation for violation of International humanitarian law by peacekeepers

Abstract

This study explores the scope of the duty to provide reparations, the individual victims' right to reparation and the process to obtain or enforce reparations for misconduct committed by peacekeepers, which constitutes a violation of international law, particularly international humanitarian law. The study is motivated by the increasing reports against peacekeepers for the crimes they commit in their host countries. The achievements and the challenges of peacekeepers are well documented in the literature. However, in several peacekeeping missions, peacekeepers have been reported to have committed such misconduct as murder, torture and sexual exploitation and abuse, particularly rape against vulnerable civilians they are mandated to protect in their host countries. Thus, such misconduct as murder, torture, and sexual exploitation and abuse committed by peacekeepers not only constitute a violation of the prohibited conduct under international humanitarian law but also a violation of the protected rights of the individuals under international human rights law. Under international law, while the international organisations and the states variously bear the responsibility to provide reparations for internationally wrongful acts attributed to them, the victims of such internationally wrongful acts are entitled to reparations for the injury suffered as a right recognised under international law. However, given the nature of peacekeeping operations, requiring collaborations between the United Nations and the member states, there is always an issue in determining the entity to which the conduct of peacekeepers and the responsibility to provide reparations for victims of the misconduct committed by peacekeepers is attributed between the United Nations and the troop-contributing states. Furthermore, in the instances where the conduct of peacekeepers and the responsibility to provide reparations is attributable to the United Nations, the individual victims are faced with another challenge of legal incapacitation to bring legal action against the United Nations to enforce their right to reparations. The individual victims’ challenge in enforcing their right to reparation against the United Nations is in two folds. First, the legal system of the United Nations does not allow individual action against the Organisation. Second, the United Nations enjoys immunity in the legal jurisdiction of the state courts and the regional judicial tribunals. The study examines the relevant provisions of international law to establish the obligation of the state and international organisations to provide reparations for international humanitarian law violations committed by peacekeepers. It also examines the scope of individual victims’ right to reparation for injuries arising from such violations committed by peacekeepers. Given that the legal system of the United Nations precludes individual victims from bringing legal claims to enforce their right to reparation against the Organisation, the study further examines the adequacy of the mechanisms adopted by the United Nations to settle peacekeeping-related third-party claims. The study concludes that the inability of the victims of the internationally wrongful act committed by peacekeepers to enforce their right to reparation against the responsible state or the United Nations through judicial means owing inter alia, to the immunity of the United Nations amounts to a denial of access to justice and frustration of their right to reparations. It notes that the current mechanism adopted by the United Nations to settle peacekeeping-related third-party reparation claims against the Organisation is inefficient and recommends a model mechanism to improve efficiency in the United Nations peacekeeping-related third-party reparation claims procedure.