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The Relationship between IHL and IHRL in Peacekeeping Operations: Articulating the Emerging AU Position

Published online by Cambridge University Press:  13 February 2017

James Fowkes
James Fowkes*
Affiliation:
University of Pretoria
*
[email protected]
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Abstract

Modern peacekeeping is increasingly expansive, and much of it occurs in Africa. The African Union's attitude to the challenges of regulating this modern peacekeeping is therefore an important source for the associated legal debates, but one that is often neglected (in part because the sources are limited and often in draft form). This article seeks to articulate and then critique the AU's emerging view on the application of international humanitarian law and international human rights law to peacekeeping activity and the relationship between the two bodies of law in this context. It argues that the AU's emerging position treats international humanitarian law as a narrowed lex specialis, only displacing international human rights law in relation to peacekeepers while they are actively engaged in armed conflict. Even this position, however, underestimates the extent to which the pervasive rights-based concerns in AU sources imply a still more pervasive application of international human rights law to its peacekeeping activities.

Keywords

International humanitarian lawinternational human rights lawlex specialispeacekeepingAfrican Union
Type
Research Article
Information
Journal of African Law , Volume 61 , Issue 1 , February 2017 , pp. 1 - 22
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Copyright
Copyright © SOAS, University of London 2017 

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Footnotes

* LLM, JSD (Yale). Senior researcher, Institute for International and Comparative Law in Africa, University of Pretoria, South Africa. Research for this article was supported by the South African National Research Foundation, grant no 81358. The author is grateful to Erika de Wet, Michaela Hailbronner, Bruce “Ossie” Oswald, Daphna Shraga and an anonymous reviewer for their comments on earlier drafts of this article. Responsibility for any remaining errors is the author's.

References

1 Jeng, A Peacebuilding in the African Union: Law, Philosophy and Practice (2012, Cambridge University Press) especially at 175–77, 180–201, 282–84 and 286–92CrossRefGoogle Scholar; see also Murray, C Human Rights in Africa: From the OAU to the African Union (2005, Cambridge University Press)Google Scholar.

2 This power is asserted in the face of art 53(1) of the UN Charter that states: “… no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council”. See further de Wet, E “Regional organizations and arrangements and their relationship with the United Nations: The case of the African Union” in Weller, M (ed) The Oxford Handbook on the Use of Force (2014, Oxford University Press) 314 Google Scholar.

3 Protocol on Amendments to the Constitutive Act of the African Union, opened for signature 11 July 2003 (not yet in force), at 2.

4 See the documents discussed below.

5 See for example Shraga, D “The interplay between human rights and international humanitarian law in UN operations” in de Wet, E and Kleffner, J (eds) Convergence and Conflicts of Human Rights and International Humanitarian Law in Military Operations (2014, Pretoria University Law Press) 211 at 212–13Google Scholar; Muruthi, T “The African Union's evolving role in peace operations: The African Union Mission in Burundi, the Africa Union Mission in Sudan and the African Union Mission in Somalia” (2008) 17 African Security Review 70 Google Scholar; Breau, SC “The impact of the responsibility to protect on peacekeeping” (2006) 11 Journal of Conflict & Security Law 429 CrossRefGoogle Scholar; Jeng Peacebuilding, above at note 1, chaps 7–8.

6 See SC res 2098, UN SCOR, 68th sess, 6943rd meeting, UN doc S/RES/2098 (28 March 2013); SC res 2136, UN SCOR 68th sess, 7017th meeting, UN doc S/RES/2136 (30 January 2014); SC res 2147, UN SCOR, 68th sess, 7150th meeting (28 March 2014).

7 UN United Nations Peacekeeping Operations: Principles and Guidelines (2008, United Nations Secretariat) (Capstone).

8 See sources cited in note 21 below.

9 The Responsibility to Protect is an emerging international legal doctrine under which all states have obligations to respond to genocide, war crimes, ethnic cleansing and crimes against humanity whenever they occur.

10 See for example Cassimatis, AE “International humanitarian law, international human rights law and the fragmentation of international law” (2007) 56 International and Comparative Law Quarterly 623 at 630CrossRefGoogle Scholar, noting that conflict between the peremptory norms of the two bodies of law is “probably only a theoretical possibility”.

11 See the well-known statements by the International Court of Justice on the issue in Legality of the Threat or Use of Nuclear Weapons ICJ Rep 1996 226, para 25 and Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory ICJ Rep 2004 136, para 106; the court subsequently cited these decisions without specifically referring to IHL as the lex specialis in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) ICJ Rep 2005 168, para 216. Useful discussions from the extensive literature on these statements and related sources include Dennis, M “ICJ advisory opinion on construction of a wall in the occupied Palestinian territory: Application of human rights treaties extraterritorially in times of armed conflict and military occupation” (2005) 99 American Journal of International Law 119 CrossRefGoogle Scholar; Droege, C “The interplay between international humanitarian law and IHRL in situations of armed conflict” (2007) 40 Israel Law Review 310 CrossRefGoogle Scholar; Prud'homme, N “Lex specialis: Oversimplifying a more complex and multifaceted relationship?” (2007) 40 Israel Law Review 355 CrossRefGoogle Scholar; Sarkin, J “The historical origins, convergence and interrelationship of international human rights law, international humanitarian law, international criminal law and public international law and their application since the nineteenth century” (2007) 1 Human Rights and International Legal Discourse 125 Google Scholar; Milanović, M “Norm conflicts, international humanitarian law and human rights law” (2009) 14 Journal of Conflict and Security Law 459 CrossRefGoogle Scholar; Hathaway, OA et al. “Which law governs during armed conflict? The relationship between international humanitarian law and human rights law” (2011–12) 96 Minnesota Law Review 1883 Google Scholar; Jinks, D “International human rights law in time of armed conflict” in Clapham, A and Gaeta, P (eds) The Oxford Handbook of International Law in Armed Conflict (2014, Oxford University Press) 656 Google Scholar; I Scobbie “Human rights protection during armed conflict: What, when and for whom?” in de Wet and Kleffner (eds) Convergence and Conflicts, above at note 5, 3; and Alston, P, Morgan-Foster, J and Abresch, W “The competence of the UN Human Rights Council and its special procedures in relation to armed conflicts: Extrajudicial executions in the ‘War on Terror’” (2008) 19 European Journal of International Law 183 at 191–97CrossRefGoogle Scholar. It should be noted that, since the publication of the last-mentioned article, the US has changed its position on the issue of the application of IHRL during conflict that the article discusses, and the US now accepts that the IHRL and IHL “are in many respects complementary and mutually reinforcing”; see Fourth Periodic Report of the USA to the UN Committee on Human Rights Concerning the International Covenant on Civil and Political Rights (30 December 2011), para 507.

12 The African Standby Force, composed of troop contributions from member states, is the force contemplated by the founding instrument of the AU Peace and Security Council to enable it to conduct peace missions and other interventions under the AU Constitutive Act. See Protocol Relating to the Establishment of the Peace and Security Council of the African Union (AU PSC Protocol), art 13.

13 African Standby Force “Peace support operations doctrine” (draft dated November 2006), available at: <http://civilian.peaceau.org/index.php?option=com_docman&task=doc_download&gid=120&Itemid=61&lang=en> (last accessed 15 December 2016).

14 It joins a number of other efforts to re-think peacekeeping doctrine in light of the developments of recent years; see further for example Murphy, R UN Peacekeeping in Lebanon, Somalia and Kosovo: Operational and Legal Issues in Practice (2009, Cambridge University Press) at 16–21 Google Scholar.

15 AU PSC Protocol, art 7(1)(b)–(d).

16 See especially AU “African Peace and Security Architecture (APSA): 2010 assessment study”, available at: <http://www.peaceau.org/uploads/report-of-the-apsa-assessment-study-july-oct-2010-eng.pdf> (last accessed 15 December 2016) and AU “Indicative elements for the APSA Roadmap 2011–13”, available at: <http://www.peaceau.org/uploads/indicative-elements-apsa-roadmap-2011.pdf> (AU Indicative Elements) (last accessed 15 December 2016). For recent updates, see AU / EU “Joint communiqué” (ninth meeting of the Joint Coordination Committee of the African Peace Facility, Addis Ababa, 3 June 2014), available at: <http://www.peaceau.org/uploads/final-jcc-communique-au-rm.pdf> (last accessed 15 December 2016); AU / UN “Joint communiqué” (eighth UN-AU Joint Task Force meeting on peace and security in Africa, Addis Ababa, 2 February 2014), available at: <http://www.peaceau.org/uploads/au-un-8-jtf-communiquy-02-02-2014.pdf> (last accessed 15 December 2016); AU PSC “Information note on the implementation status of the decision of the Assembly of the Union on the establishment of the African capacity for immediate response to crises” PSC/MIN/3(CCCLXXXVII) (29 July 2013), available at: <http://www.peaceau.org/uploads/psc-387-report-asf-caric-29-07-2013-en.pdf> (last accessed 15 December 2016); and “Progress report on the implementation of the conclusions of the Nouakchott ministerial meeting of 17 March 2013” (second ministerial meeting on the enhancement of security cooperation and the operationalization of the African Peace and Security Architecture in the Sahelo-Saharan Region, Ndjamena, Chad, 11 September 2013), paras 11–12, available at: <http://www.peaceau.org/uploads/auc-report-ndjamena-ministerial-meeting-11-09-2013.pdf> (last accessed 15 December 2016).

17 AU Indicative Elements, sec 2.

18 AU “Report of the Commission on the 2nd conference of ministers of defence and security on the operationalisation of the African Standby Force” (24–28 June 2008, Sharm El Sheikh, Egypt) EX.CL/427 (XIII), available at: <http://www.peaceau.org/uploads/ex-cl-427-xiii-e.pdf> (2nd Operationalisation Report) (last accessed 15 December 2016).

19 See <http://www.peaceau.org> (last accessed 15 December 2016).

20 Although this article will cast the net somewhat wider still, it is also worth noting that the International Law Commission's emerging approach to the sources relevant to identifying customary law treats “resolutions, declarations, recommendations and decisions” of regional organizations as potentially valuable evidence. See the first report of the special rapporteur, Michael Wood, International Law Commission, report of the 65th session (2013) A/68/10, para 95.

21 See for example Doctrine, chap 2, secs 9 and 22 and chap 4, secs 4–6 and 35; 2nd Operationalisation Report at 51; AU “Policy framework for the establishment of the African Standby Force and the Military Staff Committee” (document adopted by the third meeting of African chiefs of defense staff, 15–16 May 2003, Addis Ababa) Exp/ASF-MSC/2(1), especially secs 1.4(a), 2.2 and 2.12–2.21, available at: <http://www.peaceau.org/uploads/asf-policy-framework-en.pdf> (last accessed 15 December 2016); see also Sarkin, J “The responsibility to protect and humanitarian intervention in Africa” (2010) 2 Global Responsibility to Protect 371 CrossRefGoogle Scholar; Muruthi, T “The African Union at ten: An appraisal” (2012) 111 African Affairs 662 CrossRefGoogle Scholar; de Wet “Regional organizations”, above at note 2.

22 Stewart, JG “Towards a single definition of armed conflict in international humanitarian law: A critique of internationalized armed conflict” (2003) 85 International Review of the Red Cross 313 CrossRefGoogle Scholar especially at 319–23 (with an open question at 332–33 as to how many African conflicts might be said to have been internationalized); Sivakumaran, S “Re-envisaging the international law of internal armed conflict” (2011) 22 European Journal of International Law 219 CrossRefGoogle Scholar; Blum, G “Re-envisaging the international law of internal armed conflict: A reply to Sandesh Sivakumaran” (2011) 22 European Journal of International Law 265 CrossRefGoogle Scholar; Sivakumaran, S “Re-envisaging the international law of internal armed conflict: A rejoinder to Gabriella Blum” (2011) 22 European Journal of International Law 273 CrossRefGoogle Scholar; Scobbie “Human rights protection”, above at note 11 at 8–13.

23 This reflects how, especially in contexts where legal details are not the foremost concern, substantive issues tend to cut across standard IHL distinctions. See further Duxbury, A “Drawing lines in the sand: Characterising conflicts for the purposes of teaching international humanitarian law” (2007) 8 Melbourne International Law Journal 259 Google Scholar.

24 See for example Engdahl, O “The status of peace operations personnel under international humanitarian law” (2008) 11 Yearbook of International Humanitarian Law 109 CrossRefGoogle Scholar; Wills, S Protecting Civilians: The Obligations of Peacekeepers (2009, Oxford University Press), chaps 2–3CrossRefGoogle Scholar; Engdahl, O “Compliance with international humanitarian law in multinational peace operations” (2010) 78 Nordic Journal of International Law 513 CrossRefGoogle Scholar; D Fleck “The law applicable to peace operations” in Clapham and Gaeta (eds) The Oxford Handbook, above at note 11, 206 at 234–38; M Zwanenburg “The interplay between international humanitarian law and international human rights law in peace operations” in de Wet and Kleffner Convergence and Conflicts, above at note 5, 153.

25 On the “very sparse” literature on these issues in relation to African (judicial and quasi-judicial) institutions, see F Viljoen “The relationship between international human rights and humanitarian law in the African human rights system: An institutional approach” in De Wet and Kleffner id, 303 at 303. On these issues in other contexts for the purposes of drawing analogies, see for example Mégret, F and Hoffmann, F “The UN as a human rights violator? Some reflections on the United Nations changing human rights responsibilities” (2003) 25 Human Rights Quarterly 314 CrossRefGoogle Scholar; Reinisch, A “Developing human rights and humanitarian law accountability of the Security Council for the imposition of economic sanctions” (2001) 95 American Journal of International Law 851 CrossRefGoogle Scholar; Reinisch, A “Securing the accountability of international organizations” (2001) 7 Global Governance 131 Google Scholar; see also the critique by Shraga “The interplay”, above at note 5 at 214–15.

26 AU PSC Protocol, arts 3(f), 4(c) and 7(1)(m). Its obligations are of course stricter in relation to breaches of IHL that constitute war crimes, genocide and crimes against humanity.

27 51 African countries have ratified the four main Geneva Conventions and the International Covenant on Civil and Political Rights; 49 have ratified Additional Protocol I. The relationship between the responsibility of the sending state and the control it exercises has been the subject of important recent European developments. See especially Hasan Nuhanović v the Netherlands ILDC 1742 (NL 2011); Al-Jedda v United Kingdom (app no 27021/08, 7 July 2011); and see further for example Dannenbaum, T “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” (2010) 51 Harvard International Law Journal 113 Google Scholar; Boutin, B “Responsibility of the Netherlands for the acts of Dutchbat in Nuhanović and Mustafić: The continuous quest for a tangible meaning for ‘effective control’ in the context of peacekeeping” (2012) 25 Leiden Journal of International Law 521 CrossRefGoogle Scholar.

28 See for example the AU's most recent (draft) position in “The African Standby Force: Draft Maputo strategic work plan (2016–2020)”, available at: <http://www.peaceau.org/uploads/draft-asf-strategic-work-plan-2016-2020-.pdf>  (last accessed 16 January 2017).

29 AU “Proposed guidelines for the protection of civilians in African Union peace support operations for considerations [sic] by the African Union” at 9, available at: <http://www.operationspaix.net/DATA/DOCUMENTTEXTE/8763.pdf> (last accessed 15 December 2016).

30 Id at 6.

31 “Policy framework for the establishment of the African Standby Force and the Military Staff Committee” (adopted by the third meeting of African chiefs of defense staff, 15–16 May 2003, Addis Ababa), secs 2.12–2.13.

32 Shraga “The interplay”, above at note 5 at 214.

33 Doctrine, chap 3, secs 24–25.

34 Id, chap 3, sec 13.

35 Id, chap 3, sec 15.

36 2nd Operationalisation Report at 22. The report was endorsed by the Executive Council; see “Decision on the report of the Commission on the Operationalization of the African Standby Force”, EX.CL/Dec.430 (XIII), available at: <http://www.peaceau.org/uploads/ex-cl-dec-430-xiii-e.pdf> (last accessed 15 December 2016).

37 J Fowkes “Armed conflicts and the lex specialis debate in Africa: Implications of the emerging women's and children's rights regimes” (forthcoming).

38 Doctrine, chap 3, sec 5.

39 Id, sec 77.

40 Id, sec 91.

41 Capstone, above at note 7 at 87–88.

42 Doctrine, chap 3, sec 11.

43 Capstone, above at note 7 at 32 and 36–37.

44 Doctrine, chap 3, sec 6.

45 Id, chap 3, sec 6.

46 That is not to say, of course, that strict regimes of legal punishment, such as those contemplated by international criminal law, are necessarily the best way to achieve post-conflict goals, an important question not to be begged. See further Charlesworth, H “Law after war” (2007) 8 Melbourne Journal of International Law 233 Google Scholar.

47 Doctrine, chap 3, sec 37.

48 Id, sec 22–23.

49 Capstone, above at note 7 at 14–15.

50 Doctrine, chap 3, sec 36.

51 Art 3 of the Geneva Conventions “offers minimum protection to persons taking no active part” in “armed conflict not of an international character”.

52 Capstone, above at note 7 at 33–34.

53 Doctrine, chap 3, sec 38.

54 Id, sec 3.

55 Id, sec 33.

56 Capstone, above at note 7 at 14–15.

57 Doctrine, chap 1, sec 5.

58 See for example Prud'homme “Lex specialis”, above at note 11 at 386–92; Sassòli, M and Olson, LM “The relationship between international humanitarian law and human rights law where it matters: Admissible killing and internment of fighters in non-international armed conflicts” (2008) 90 International Review of the Red Cross 599 CrossRefGoogle Scholar; Hathaway et al “Which law governs”, above at note 11 at 1906–08 and 1910–23; Bethlehem, D “The relationship between international humanitarian law and international human rights law in situations of armed conflict” (2013) 2 Cambridge Journal of International and Comparative Law 180 CrossRefGoogle Scholar. See also Sivakumaran “Re-envisaging”, above at note 22 at 240–42.

59 See Shraga “The interplay”, above at note 5 at 213; Droege “The interplay”, above at note 11 at 344–47.

60 Doctrine, chap 2, sec 20.

61 Id, sec 21.

62 Id, chap 4, sec 41.

63 On the uncertainties of the lex specialis doctrine in the practice of international tribunals, see especially Lindroos, A “Addressing norm conflicts in a fragmented system: The doctrine of lex specialis” (2005) 74 Nordic Journal of International Law 42 CrossRefGoogle Scholar; and the study led by Martti Koskenniemi: International Law Commission “Study of the function and scope of the lex specialis rule and the question of ‘self-contained regimes’”: UN doc ILC(LVI)/SG/FIL/CRD.1; and International Law Commission “Report of the fifty-sixth session” (2004) A/59/10, paras 303–30.

64 See for example Kruger, H “A conflict of norms: The relationship between humanitarian law and human rights law in the ICRC customary law study” (2006) 11 Journal of Conflict & Security Law 265 CrossRefGoogle Scholar.

65 Sassòli and Olson “The relationship between”, above at note 58 at 613.

66 Fowkes “Armed conflicts”, above at note 37.

67 Doctrine, chap 4, sec 68.

68 Fowkes “Armed conflicts”, above at note 37.

69 Cassimatis “International humanitarian law”, above at note 10 at 638.

70 Lindroos “Addressing norm conflicts”, above at note 63 at 66.