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Magdalena Pacholska

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Magdalena Pacholska

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Magdalena Pacholska

This book is about the responsibility of the UN for complicity in serious human rights and international humanitarian law violations in the context of peacekeeping. It discusses how the UN peace operations evolved from being unarmed neutral forces to offensive and stabilization operations, effectively supporting the governmental forces against the rebels, and analyses the legal exposure resulting from such a change. In five substantive chapters, the monograph examines the following issues: the evolution of UN peacekeeping from the traditional impartial missions to heavily militarized operations tasked with extending State authority regardless of the ongoing conflict; the responsibility of the UN for the conduct of UN peacekeepers; the conditions under which the UN may be legally complicit in war crimes, crimes against humanity and genocide; the implementation of the UN Human Rights Due Diligence Policy and the shared or joint responsibility of the UN and the troop contributing countries.

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Magdalena Pacholska

UN peace operations, that is multinational forces under the operational command of the UN, have evolved over the years. Contemporary ‘offensive and stabilization’ missions, tasked with the ‘extension of State authority’ in the midst of hostilities are much more complicity-prone than traditional peacekeeping. When the principle of impartiality is stretched, three types of complicit conduct may occur: strategic, operational and tactical. Offensive peace-enforcement UN missions may give rise to strategic complicity in two cases. First, when the UN peacekeepers provide operational and logistical support to the defense and security forces of the Host State. Second, when UN troops fail to use force to discharge their Chapter VII task to ensure ‘protection of civilians’ under threat of violence. UN peacekeepers routinely avoid the use of force because troop contributing countries (TCCs) often impose national caveats and introduce red cards holders with authority to veto on given tasks according to national directives.

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Magdalena Pacholska

Draft Articles on the Responsibility of International Organizations (ARIO) resemble Draft Articles on State Responsibility (ARS). The UN bears international responsibility for an internationally wrongful act if a conduct attributable to it constitutes a breach of an international obligation of the UN. The UN is bound by customary international human rights law and customary rules of international humanitarian law. The UN is responsible for actions and omissions of peacekeepers when it exercises effective control over their conduct or when it acknowledges and adopts their conduct as its own. The UN tends to accept responsibility for troops under its operational command to protect TCCs from liability, but as long as it does not waive its jurisdictional immunity or provide reparations to the victims of human rights abuses, such victims will sue TCCs in domestic courts. In the long run, that might discourage States from contributing troops to UN peace operations.

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Magdalena Pacholska

ARS and ARIO contain two rules regulating responsibility for providing support to other States/international organizations (IOs). The first concerns aid or assistance in the commission of an internationally wrongful act. Under the second, no State or IO shall render aid or assistance in maintaining a situation created by a serious breach of a peremptory norm. Conditions regulating the provision of support in the commission of serious breaches of the jus cogens obligations remain unclear. Review of CA 1 to Geneva Conventions, Arms Trade Treaty (ATT), UN Charter, Article 2(5) and examination of State/IOs practice and opinio juris concerning provision of support to States involved in conflicts in Yemen, Ukraine, Syria, Myanmar, DRC and the Sahel region (G5 Sahel Joint Force) show that a new customary rule has crystallized. The aggravated complicity rule, premised on constructive knowledge, prohibits any support which substantially facilitates the commission of genocide, crimes against humanity and war crimes.

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Magdalena Pacholska

While an overlap exists between complicity and due diligence, the existence of one does not cast doubt on the usefulness of the other. Due diligence is neither a primary nor a secondary norm. It is a standard of care used for assessing a State/international organization (IO) compliance with obligations of conduct. In international law the concept of due diligence is not self-standing, it always requires a nexus to a primary obligation with its specific parameters. Due diligence can neither extend the territorial scope of applicability of the primary obligation, nor can a failure to exercise due diligence be ascertained without reference to a specific rule. The ‘should have known’ standard of the aggravated complicity rule is measured by the due diligence standard of care. Properly implemented due diligence policy, including risk assessment, should prevent a State or an IO from being ascribed with the responsibility for complicity in serious human rights abuses.

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Magdalena Pacholska

When UN peacekeepers provide support that clearly and substantially facilitates the commission of genocide, crimes against humanity and war crimes of jus cogens status, both the TCC and the UN can bear international responsibility for such conduct. Such responsibility is not subsidiary. Under ARS and ARIO, a wrongful action or omission may give rise to the responsibility of more than one State or international organization. Concurrent responsibility of the UN and the TCC for ‘joint complicity’ in the context of peacekeeping will most frequently arise in two scenarios. First, when the UN Force Commander gave an order which the National Contingent Commanders should have identified as potentially manifestly unlawful and consulted their home authorities before complying with it. Second, when a wrongful omission was attributable to the TCC because the National Contingent Commander refused to follow the UN orders, but the UN nonetheless accepted its responsibility for the given conduct.

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Magdalena Pacholska

Under public international law, aid or assistance in the commission of genocide, crimes against humanity and war crimes of jus cogens status is prohibited if such support would clearly and directly further the perpetration of atrocities and the assistance provider should have been aware of that. Proper implementation of the UN HRDDP will prevent UN responsibility for complicity. Immunity from suit and the absence of proper judicial mechanisms of enforcing international responsibility of IOs does not mean that the UN is unaccountable. Legitimacy of the organization and the future of UN peace operations depend on the UN’s reputation for complying with international law. Contemporary stabilization operations and other forms of strong allegiance with State parties to armed conflicts, such as MINUSMA operational and logistical support to the G5 Sahel Joint Force, carry a very high risk of the UN being exposed to allegations of complicity in international human rights law (IHRL) and international humanitarian law (IHL) violations.

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Complicity and the Law of International Organizations

Responsibility for Human Rights and Humanitarian Law Violations in UN Peace Operations

Magdalena Pacholska

This timely book examines the responsibility of international organizations for complicity in human rights and humanitarian law violations. It comprehensively addresses a lacuna in current scholarship through an analysis of the mandates and modus operandi of UN peace operations, offering workable normative solutions and striking a balance between the UN’s duty not to contribute to international law violations and its need to discharge mandated tasks in a highly volatile environment.