The international legal responsibility of UN peacekeepers to protect civilians against crimes in host states: challenges and prospects of prosecuting their failures and other criminal acts
thesisposted on 2022-03-29, 02:50 authored by Tareq Hamid Al-Fahdawi
Throughout history, humanity has experienced, and is still suffering from, crimes committed during armed conflicts, which invariably make innocent and unarmed civilians the main victims. Of many other wartime sufferings endured by these civilians, their suffering caused by the failure of the United Nations (UN) peacekeeping operations in the host states has become a daunting challenge for the UN. This problem has emerged after the failure of the UN peacekeeping forces to prevent genocides in Rwanda in 1994 and Srebrenica in 1995, which caused hundreds of thousands of civilian lives to be lost. Despite serious efforts by the UN and international community to resolve this problem, the commission of crimes against civilians, such as killings, rapes and sexual violence, and violations of their human rights, by some of the UN peacekeepers and local army and/or insurgents (third parties) remain serious problems. After decades of genocides, the UN peacekeepers are still failing to protect civilians under the UN peacekeeping mandates. Concrete measures are lacking to address the failure of the UN peacekeepers to prevent crimes against civilians in many UN peacekeeping operations. This thesis singles out and examines the failures of the UN-mandated peacekeeping missions to protect civilians from atrocity crimes committed by some of the UN peacekeeping personnel and third parties in the host states. In particular, it focuses on the UN peacekeeping operations in the Congo and South Sudan to analyse the reasons for their failures, which is the first step in determining whether the incidents of these crimes are deliberate neglect or the outcomes of inability to prevent their commission. These two case studies would help suggest a suitable strategy to prevent prospective offenders from targeting civilians and determine the jurisdictional gaps that must be bridged and the shortcomings of the UN peacekeeping operations to be addressed. These issues are critically analysed in a bid to answer the central research question of the thesis: How can UN peacekeeping operations be conducted more effectively to provide adequate civilian protection in the host states? The thesis explains the reasons that the protection of civilians during the UN peacekeeping operations is paramount and must be addressed urgently; the duties of UN peacekeeping forces and the reasons they go unpunished when they neglect their duty; and the legal steps required to establish an accountability regime within the UN. By way of improving the protection of civilians in armed conflicts, the thesis recommends some measures to be adopted, including (a) scrapping the impunity of the UN peacekeepers when they themselves commit crimes or deliberately neglect their duty to prevent the crimes being committed by third parties against civilians that they are mandated to protect; (b) examining whether their immunity can be waived to prosecute them if their failure is considered a crime; (c) criminalising their deliberate neglect as a crime of omission to ensure that the UN peacekeepers are aware that they will be held responsible for their own criminal conducts and for not preventing criminal activities against civilians by the third parties; (d) prescribing legal ways to criminalise the failure in duty as a crime of omission; and (e) establishing an independent judicial body with necessary jurisdiction to prosecute those responsible. The thesis purports to challenge the status quo of UN impunity for its peacekeeper perpetrators prevailing over justice to victims in an era when immunity is no defence against gross violation of human rights and dignity amounting to heinous crimes in international law -- abstract.
Table of ContentsChapter 1. Introduction -- Chapter 2. Roles and mandates of the UN Peacekeepers in host states -- Chapter 3. Obligations of the UN Peacekeepers to protect civilians under international humanitarian law -- Chapter 4. Failure of the UN Peacekeepers to protect civilians in host countries: case studies of the Democratic Republic of Congo and South Sudan -- Chapter 5. Failure to protect civilians as a crime under international criminal law -- Chapter 6. Prosecuting UN Peacekeepers who have immunity: current problems and future prospects -- Chapter 7. Conclusions and recommendations -- Bibliography.
NotesTheoretical thesis. Bibliography: pages 273-301
Awarding InstitutionMacquarie University
Degree TypeThesis PhD
DegreePhD, Macquarie University, Faculty of Arts, Macquarie Law School
Department, Centre or SchoolMacquarie Law School
Year of Award2020
Principal SupervisorM Rafiqul Islam
RightsCopyright Tareq Hamid Al-Fahdawi 2020. Copyright disclaimer: http://mq.edu.au/library/copyright
Extent1 online resource (xvi, 301 pages)
Former Identifiersmq:72329 http://hdl.handle.net/1959.14/1283736
United Nations -- Privileges and immunitiesinternational legal responsibilitycrime of omissionHumanitarian lawPeacekeeping forces -- Moral and ethical aspectsUnited Nations -- Peacekeeping forcesUnited Nationsinternational criminal lawPeacekeeping forcesprotection of civiliansinternational humanitarian lawUN Peacekeepers