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

Abstract

When peacekeepers violate human rights, they do immeasurable damage to the victims, themselves, and their missions. 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 troops in their respective national services and members of an international UN force, the question of which entity is liable for that reparation is particularly complicated. This Paper provides a comprehensive analysis of the law and practice of reparation for the human rights abuses of UN peacekeepers and advances a new interpretation of how the “effective control” standard of liability attribution should be applied in this context. Specifically, the Paper finds that both the UN and troop-contributing states are subject to human rights law under certain circumstances, some of which certainly obtain during peacekeeping missions. It also finds that both the UN 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 which of these international persons is responsible for the human rights abuses of peacekeepers and in which situations. 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, the Paper 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 UN 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.