Peacekeeping missions and impunity in CAR: how does the application of IHL to peacekeeping missions affect impunity?

October 14, 2018

Table of contents

 

I. Introduction

 

II. Applicability of IHL to United Nation peacekeeping missions

   A. Jus ad bellum and Jus in bello

   B. 1994 Convention on the Safety of United Nations and Associated Personnel and the principle of equality between belligerents

  C. 1999 Secretary-General’s Bulletin on the Observance by United Nations Forces of International Humanitarian Law

 

III. Violations of IHL by peacekeeping forces in CAR

   A. Sexual abuse under IHL

   B. Who is in charge of prosecution? 

   C. Immunity and third states

   D. The National Courts in practice

   E. Need of special institutions to ensure the prosecution

 

IV. Special Criminal Court

 

V. Conclusion

 

ANNEXES 

   Annex I: Map of Central African Republic

   Annex II: Graph of the International Engagement in CAR

 

 

I. Introduction

 

The question of the applicability of International Humanitarian Law, hereafter IHL, to the United Nations peacekeeping missions is worthy to be discussed for many reasons. Firstly, it is more and more likely that peacekeeping operations are deployed in states characterised by ongoing conflicts [1] rather than post-conflict states. In the case of Central African Republic, for example, UN interventions took a post-conflict approach, although clashes in the country are ongoing and there is no peace to be kept. Secondly, since the first peacekeeping mission was deployed in 1948, UN peace operations have been expanding in number and in purpose, but the way IHL is applied to them is not universally endorsed yet. Equally, the violations of IHL and Human Rights Law committed by peacekeepers raise questions about the responsibility to prosecute them. Those situations are related to the lack of justice in many of the countries where peacekeeping missions take place, such as CAR, where the current hope to fight against impunity is the Special Criminal Court.

 

Peacekeeping missions have been evolving. One of the main tasks of the peacekeeping forces is the responsibility to protect. But since the battlefields have changed, it is more difficult to accomplish this task. Combatants and civilians are difficultly distinguishable, and in most cases,  peacekeepers have to deal with a number of non-state armed groups, whose level of organisation is difficult to depict. At this respect, CAR is a perfect example. In a territory which is approximately the size of France, there are 14 recognised armed groups. The main divisions are ex-Séléka and Anti-Balaka, but these two groups are not homogeneous and their alliances vary according to the province and over time [2]. Claudio Tarchi, responsible for CAR at the Milan’s desk of COOPI [3], confirms that the specificity of CAR compared to the other countries where they operate is that the armed groups are highly fragmented and the situation is very changeable, both over time and according to the provinces, making it hard to plan and bring humanitarian help.

 

Central African Republic has been nicknamed “the world champion of peacekeeping” for having hosted the highest number of peacekeeping missions. The last one, the United Nations Multidimensional Integrated Stabilisation Mission in the Central African Republic (MINUSCA) was deployed in April 2014 with 12,000 personnel. Its mandate was renewed and more troops were deployed on the 15th of November 2017. Despite the international engagement’s accomplishments in the country, there are some recurrent features in the history of CAR’s missions that need to be highlighted: 

 

- Short Reactive intervention to the peaks of the crisis [4]: the missions did not address the main drivers of the conflict;

 

- Multidimensional mandate: it makes it difficult for the missions to be effective since efforts and resources have to be shared among many priority tasks [5];

 

- Peacekeeping missions have been also been accused of not making use of the force they are entitled to,  in case they are authorised by the Security Council [6]; 

 

The present paper will look at the uncertainty about the application of IHL to UN peacekeeping forces and at how this affects the impunity of peacekeepers who committed violations of IHL during the conflict in Central African Republic. 

 

The first section will address the question of the applicability of IHL to the UN peacekeeping missions. The second section will deal with the violations of IHL by peacekeeping forces in CAR and in particularly with the question of impunity.

 

The last section will illustrate the example of the Special Criminal Court, which is not strictly related to the debate around peacekeeper’s violations but which is a source of inspiration for potential future institutions and which shows how national and international legal framework should collaborate to fight impunity in CAR. 

 

 

II. Applicability of IHL to United Nation peacekeeping missions

 

The question of the applicability of IHL to a UN peacekeeping mission has evolved overtime. This issue has become particularly important since the mid-1990, when the civilian casualties increased substantially on the field [7]. In fact, in today’s battlefields it is always more difficult to distinguish combatants and civilians, and more often civilians are used as a target by armed groups. Equally, it is much more common for civilians and children to take active part in hostilities. 

 

There is a lacuna of the IHL in this sense: the 1949 Geneva Conventions were reflecting a completely different reality. They were a reaction to the Second World War and thus they dealt with large armies, at the service of the state, and battlefield located far from civilians’ centres. Similarly, the 1977 Protocol was reactive to the National Liberation Movements against colonial governments, and it facilitated to gain the Prisoner of War (POW) status.

 

Both legal instruments were focused on membership, not on a person’s singular activity.

Therefore, being part to a specific army was the main criteria to be identified as a combatant.

 

Today’s asymmetric warfare is characterised by trans-national armed groups, composed by combatants who do not wear uniforms or carry their weapons openly and who may act as civilians during the day and combatants during the night. To this end, some scholars believe IHL need a fourth protocol to the Geneva Conventions [8].

 

This changing battlefield caused multinational forces to change their purpose as well: they were no more in charge for ensuring cease fires or keeping the peace after a peace agreement was signed. They were directly and militarily involved against non-state armed groups [9]. Consequently, the UN had to address questions of the applicability of IHL to peacekeeping missions more specifically. Some contradictions arose, specifically due to the fact that the UN is not part of the Geneva Convention and as an international organisation, it does not have the same characteristics as states to which the Geneva Convention refers. Consequently, it was argued that the UN forces were not under the obligation to comply with IHL.

 

A. Jus ad bellum and Jus in bello

 

The debate over the applicability of IHL on peacekeeping forces triggered, therefore, the distinction between jus ad bellum and jus in bello: the first concerning the decision to take part to the conflict, taking into account the reasons and modality. The latter regulates the conflict between two or more parties, no matter why the conflict started. The two bodies of laws should never be mixed, in the sense that a party’s justification to take part to the conflict should never be used to determine the application of the jus in bello (IHL). However, some states try to hide the nature of the peacekeeping missions, arguing that since the international community is supposed to be neutral and not to take part to hostilities as a party of the conflict, IHL should not be applied to peace interventions, even if, de facto, a conflict was taking place on the field. Some of the troop-contributing countries (TCCs) expressed this point of view, such as the French Minister of Foreign Affairs Bernard Kouchner in 2008 during NATO operations in Afghanistan [10]. In 2011 the UN Secretary-General stated, with regard to the UN forces’ operation in Côte d’Ivoire in 2011: “let me emphasise that the ONUCI is not party to the conflict. In line with its Security Council mandate, the mission has taken this action in self-defence and to protect civilians”. 

 

This argument seems to have been rejected by the international community more recently, since it compromised the typical distinction existing between jus ad bellum and jus in bello. Also, in the case in which IHL would not apply, there would have been a legal gap, since no other body of law could apply in that context [11]. What determines if IHL can be applied or not is not the mandate of international forces, but it is rather the situation on the field. Once the criteria triggering IHL application according to Articles 2 and 3 of the Geneva Conventions of 1949 are met, it should be applied. 

 

Having said that, there are two sources of law raising contradictions when applying IHL to peacekeeping forces:

 

- the 1994 Convention on the Safety of United Nations and Associated Personnel

 

- the 1999 Secretary-General’s Bulletin on the Observance by United Nations Forces of International Humanitarian Law

 

 

B. 1994 Convention on the Safety of United Nations and Associated Personnel and the principle of equality between belligerents

 

Article 2(2) of the 1994 Safety Convention, which should define when IHL applies and when the Convention itself applies to the UN forces, is quite confusing and has been criticised multiple times for its ambiguity [12]: “the protection afforded by the 1994 Safety Convention to UN forces and associated personnel continues to apply when these troops are engaged in NIACs”.

 

The safety convention grants immunity to UN peacekeeping forces involved in a NIAC. This implies that attacks against them are criminal acts, while under IHL they would not be categorised as such. The fact that UN forces are granted with a special immunity undermines the principle of equality between belligerents, since other peace forces or non-state armed groups would not benefit from it. However, according to Tristan Ferraro, there are reasons to believe that the influence of this Convention should not be overestimated. The Convention also states the intention to preserve the integrity of IHL [13]. 

 

Moreover, Article 8 of the Rome Statute of the International Criminal Court (ICC) says that once UN forces have become a party of the conflict, they must comply with IHL.  Obviously , the original problem persists in the case of countries which did not ratify the Rome Statute, and not all of the TCCs did it.

 

C. 1999 Secretary-General’s Bulletin on the Observance by United Nations Forces of International Humanitarian Law

 

According to the Secretary-General’s Bulletin, principles and rules of IHL apply to a peacekeeping mission “whenever it engages in such a level of hostilities with a state or sufficiently organised non-state armed group as would render it a ‘party to a conflict’” [14].

 

Therefore, to trigger the application of IHL, there is a threshold that that has to be met which is not clearly defined.  There is a tendency to apply a higher threshold when it comes to UN peace forces.

 

Since the Secretary-General’s Bulletin is very synthetic, we need to look at the literature on it to better define this threshold. In particular, Daphna Shraga [15] provided two conditions that must be met to talk about armed conflict involving UN forces: the presence of an armed conflict in the area of deployment of the forces and the engagement of the UN forces’ members as combatants in the conflict. 

 

Summing up, there is a widespread consensus over the importance of the situation on the field. The International Committee of Red Cross is one of the main advocates of the thesis that whether it is an international or a non-international armed conflict, if the conditions to trigger IHL are met [16], the body of law will apply to UN forces. Having confirmed that IHL applies to UN peacekeeping forces, we state that the cause of impunity is not at this level. Consequently, we should look for it at the implementation and prosecution stage.

 

III.  Violations of IHL by peacekeeping forces in  CAR

 

The question of the impunity of the peacekeepers who violated norms of International Humanitarian Law or International Human Rights Law became particularly important in the last decade, when many cases of sexual abuse by peacekeepers were reported by the Secretary General. In 2015, which is the last year covered by the Report of the violations’ Mapping [17] by the Office of the United Nations High Commissioner for Human Rights (OHCHR), 22 allegations were received against peacekeepers of the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA). 15 allegations out of 22 concerned sexual exploitation and abuse [18]. 

 

The matter is of primary importance for several reasons: firstly, UN peacekeeping forces are the ultimate entity that are supposed to be neutral and to protect civilians; secondly, in a time where interest in funding peacekeeping missions is not very high, since they are seen as inefficient and never- ending investments [19], their credibility is even more important. Thirdly, the resulting impunity is evidence of a dysfunction and a lack of political will to prosecute the offenders.

 

A. Sexual abuse under IHL

 

The crime of sexual exploitation and abuse is widely covered by IHL concerning both international and non-international armed conflicts under different norms. In the case of CAR, the conflict was non -international and therefore the following norms apply.

 

Firstly, the Common Article 3 to the four Geneva Conventions has been interpreted by the International Court of Justice (ICJ) as implicitly refereeing to sexual violence [20]. Secondly, the 1977 Additional Protocol II (AP II) complete it, prohibiting “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault” for “all persons who do not take a direct part or who have ceased to take part in hostilities” [21]. Thirdly, customary IHL can also be triggered: “According to the ICRC Customary Law Study, this prohibition (to commit sexual abuse and exploitation) has been found to apply both in international and non-international armed conflicts and protects women, girls, boys and men.” [22] The main task of the UN in cases of sexual abuse is more to investigate and report the violations and to protect the victims, than to prosecute the alleged offender. This task requires rapid action. In this case, a team of independent experts condemned the weakness of the UN in the accountability of the perpetrators [23]. 

 

The two legal frameworks which apply when a crime is committed by a UN peacekeeping force are:

 

- Secretary General’s Report on Special Measures for protection from sexual exploitation and abuse policies (“SEA”). This legal tool does not apply to troops that are not under the command of the UN. 

 

- UN’s human rights mandate.

 

In the case of the allegations against the French Sangaris Forces, for example, the UN was accused of an extremely slowly and bureaucratic response, and of a failure to promptly offer protection to the victims of the sexual abuses. Independent experts suggested to harmonise the legal framework, which nowadays creates confusion among UN staff. According to the team that was the main reason of the delay in responding and protecting the victims.

 

B. Who is in charge of prosecution? 

 

The state of the nationality of the peacekeeper who committed the violation is in charge of prosecuting, according to Section 4 of the Secretary-General’s Bulletin on Violations of IHL: 

 

“In case of violations of international humanitarian law, members of the military personnel of a United Nations force are subject to prosecution in their national courts”.

 

First, it is important to identify the IHL treaties and Conventions ratified by Central African Republic:

 

- 1949 Geneva Conventions and their Additional Protocols of 1977 in 1984. Since the conflict in CAR is of a non-international character the norms that apply are specifically the Common Article 3 to the Geneva Conventions of 1949 and Additional Protocol II to the Geneva Conventions;

 

- Rome Statute of the ICC in 200124;

 

- 1997 Anti-Personnel Mine Ban Convention ratified in 2002.

 

United Nations peacekeeping forces are also bound by the Status of Forces Agreement (SOFA): this agreement is signed between the UN and the State where the peacekeeping operation is being deployed and it “requires, inter alia, full respect for the principles and rules of the international conventions applicable to the conduct of military personnel” [25].

 

Since IHL applies when peacekeeping forces become a party of the conflict, to trigger IHL in case of a sexual abuse it is necessary to prove the nexus between the violation and the armed conflict. If it is proven, then when the violation is “serious enough,” it can be considered as a war crime, and the perpetrators can be held responsible individually and can be tried before the International Criminal Court. If this nexus, ( which is not easy to prove [26]), is not found, the crime will still be covered by other legal frameworks, such as International Human Rights Law. 

 

In the case of CAR, the serious violations committed by MINUSCA mentioned above could not be related to a conflict for lack of evidence and as such would not constitute violations of IHL or war crimes. However, some incidents that could be considered as violations of IHL were reported. Among those, one occurred in June 2015 in Mambéré [27]: the illegal arrest and torture of four men, and the murder of two among them by UN peacekeepers from the Republic of the Congo. 

 

The International Commission of Inquiry on the Central African Republic [28] concluded the investigations about the soldiers of the French operation Sangaris [29] stating that they were engaged in hostilities and the crimes they committed were violations of IHL. The sending state, in this case France, was in charge of prosecuting the offenders. Three investigations were opened by the Public Prosecutor office in Paris, but in January 2017 a declaration was issued by the Investigating Judges declaring that the evidence necessary to proceed with the investigation was not found.

 

C. Immunity and third states

 

The violations of IHL committed by peacekeepers can be attributed to the UN. However, as international organisation, the UN does not have the capacity to provide criminal reparation30, which is responsibility of the state of nationality of the perpetrator. The Status of Forces Agreements (SOFAs) and the Status of Nations Agreement (SOMA) contain the same rule of exemption from the criminal jurisdiction of the State where the crime is committed. 

 

However, the immunity of peacekeepers varies according to their function:

 

- Military contingents benefit from personal immunity “for any kind of criminal act and regardless of the circumstances under which this act was committed” [31],

 

- Civilian personnel benefit from functional immunity. In other words, they are immune from the jurisdiction of the host State while they are exercising their official duties.

 

In fact, there are different components in a peacekeeping operation: military, civilian and civilian police and different disciplinary procedures apply to them.  One of the shortcomings of the 2003 Secretary- General’s bulletin is that it “does not, of its own force, apply to all three categories” [32].

 

Moreover, according to the Geneva Conventions, a third state (which is not the state of nationality neither the state where the violation took place) has the right to intervene and repress an international crime, and so to exercise international criminal jurisdiction. To what extend does the absolute immunity prevent third states from intervening? 

 

One of the possible ways would be to give the priority of jurisdiction to the peacekeeper’s state of nationality and in the case where for any reason the state refuses to take jurisdiction or it is unable to provide it, a third state may intervene to grant justice. “Any other solution would lead to impunity for wrongdoing peacekeepers, and thus a denial of justice to their victims” [33].

 

D. The National Courts in practice

 

The cases in which peacekeepers were sentenced by national courts are few [34]. There can be many obstacles, legal and political, to the reparation by the state of nationality. More often, offenders are sent home, where, if they are tried they are often acquitted. In other cases the national tribunal’s interpretation of IHL in peacekeeping operations may be doubtful. Many are problems with implementation by the national courts:

 

- The national law could have a specific definition of “serious crimes,” and not consider the violation committed in the armed conflict as such.

 

- Sometimes state do not extend their jurisdiction to nationals in a foreign country. When this happens, if they commit crimes, the state has no legal basis to prosecute them. As stated by Prince Zeid’s Report:

 

“the prosecution of staff or experts on mission for crimes committed in such a State depends on whether the State of nationality of the suspect has conferred extraterritorial jurisdiction on its courts to take such action and whether it can, in the circumstances of the case, effectively take such action. But this would tend to be the exception rather than the rule” [35].

 

- Most of the troops contributing countries (TCCs) of peacekeeping missions are developing countries with quite weak institutions and security sectors. The main TCCs for MINUSCA are Pakistan, Bangladesh, Egypt, Rwanda, and Zambia. They have difficulties in dealing with complex cases that took place far from the national courts or they may not have the necessary funds to compensate the victims [36].

 

- IHL is not thought to govern relations between individual and states. An individual triggering IHL in a state court could face some procedural obstacles. For example, applicants triggering Article 3 of the 1907 Hague Convention (IV) related to compensation have been answered that “Article 3 grants a right to compensation

only to a state, not to an individual” [37].

 

E. Need of special mechanisms to ensure the prosecution

 

There is a need to improve, on one side the UN investigation, report and remedial action (victim assistance) and on the other side IHL implementation and the offenders’ prosecution. 

 

As national courts have proven to be ineffective in this task, the UN should establish some standard mechanisms that could fill this gap. In other words, while it is clear that the state where violations are committed cannot have jurisdiction on the peacekeepers, it is necessary that the organism responsible to prosecute the offender is present in the state where the violation has been committed. A closer relation between the investigators and the prosecutors is fundamental, firstly to ensure that facts are not disrupted and misinterpreted, and secondly to speed up the process and compensate the victim in a reasonable time.  If the violation was committed in the context of an international operation and if at the moment of the violation IHL applied, an international institution should be triggered to judge perpetrators. In this respect, the composition of the Special Criminal Court in CAR is an interesting example, although we should bear in mind that it is not allowed to try peacekeepers yet.

 

IV. Special Criminal Court 

 

The special criminal court is the main hope for the ones who wish the long history of impunity in CAR to get to an end. It is a crucial step toward the reconstitution of a national judicial system and to deliver the message that serious violations will no longer be tolerated nor forgotten [38]. The Court was supposed to be operational at the beginning of 2018. On May 29th   2018 the Parliament has adopted rules of procedures and evidence.  The Special Criminal court will have jurisdiction over serious violations of HR and IHL, according to the international treaty ratified by CAR and as stated by the National Penal Code.

 

The Court has the task to cover the gaps between national and international legislation: in the case in which the national law does not cover a specific issue, or where the interpretation of a national law is uncertain, or again where there is incompatibility between international and national laws, the Court can refer to the international norms and in particular to International treaties ratified by CAR or to customary law. The court can investigate war crimes committed from the 1st January 2003. The 2017 OHCHR report, mentioned several times in the present paper, will provide a basis for the Special Criminal Court’s initial work. Despite the implementation of this Court represents an important development in the justice-building process in CAR, there are some challenges identified by Amnesty International that it will have to overcome:

 

- Amnesty: until now, many leaders of armed groups have been granted the amnesty in order to proceed to political negotiation. Contradictory insights came from the Bangui Forum on National Reconciliation held in 2015 and from the Sant’Egidio peace agreement last June 2017, where the priority seemed to be the political reconciliation rather than justice. It has also been argued that the President Touadéra’s real intentions, through the last reshuffle of the cabinet, may be to gain more political support possible in view of the next elections. The Court will have to take position on the issue of the amnesty.

- Non- retroactivity:  the Special Criminal Court has primary jurisdiction, but regional courts in CAR can try similar cases. A problem of non- retroactivity could arise since the SCC law is not automatically extended to regional courts. They will, therefore, have to refer to the National Penal Court. The latter, however, only included international crimes in 2010. Consequently, the Mapping Report suggests two possible solutions for the SCC to deal with crimes committed from 2003 [39]: the Rome Statute could be used as a source of “domestic substantive criminal law”; or in alternative, crimes committed prior to 2010 could be prosecuted as domestic ones.

 

- Resources: to set the SCC there is a need for many resources. Despite the initial help to fund the Court, funding has just partially been raised from US, France, Netherlands and MINUSCA [40].

 

- Insecurity: the insecurity and the lack of infrastructure could make it difficult to reach the areas outside Bangui, where most of the war’s victims live. Moreover, there is a deep sense of mistrust among the population toward the justice system, which could hinder the credibility of the hybrid tribunal for international crimes.

 

- Staff quality has been questioned: it is the first time that a court in the country has dealt with international crimes and the weak educational system in CAR may indicate a lack of professionals with adequate experience. The mixed composition and impartiality of the court is equally crucial, since religion and ethnic divisions are particularly intense in CAR. Women and muslims should be equally represented among the court’s judges.

 

- Collaboration with the ICC is also of primary importance: for the first time a Court will be operational in the same country where the ICC is also investigating.

 

V. Conclusion

 

The paper has showed first how IHL applies when peacekeepers are involved in the conflict , and second how sexual violence is recognised as a crime in IHL in the context of a Non International Armed Conflict under different norms. As a consequence, impunity in CAR does not depend on legal gaps in the application of IHL to peacekeeping missions. It is rather caused by a weak investigation, legal implementation and prosecution by the national courts. Some improvements are necessary at different levels.

 

At the UN level of investigation, there is a need to harmonise the legal framework applicable to sexual abuse committed by peacekeepers in order to avoid UN officers from interpreting a grave violation of human rights or IHL as a “misconduct as a disciplinary matter” [41].  The state of nationality should actively participate in the investigations. “That will ensure that the investigation gathers evidence in a manner that satisfies the requirements of national law” [42]. 

 

At the implementation and prosecution level, the application of rules and principles of IHL by national courts undermine the independence of the UN [43] since they could have ratified different international treaties or be ineffective in prosecuting violators. Therefore, the UN needs to envisage an efficient international instrument to standardise implementation and prosecution procedures, and to ensure effective prosecution and justice to the victims. A special court on sexual abuse and exploitation should be appointed in the state where a peacekeeping mission is being deployed, composed of both national and international judges, and it should be given the jurisdiction on peacekeepers of any nationality. In this respect, the composition and scope of SCC in CAR is an interesting example, although it is not authorised to judge peacekeepers. A further development of this Court would be to extend its jurisdiction on MINUSCA peacekeepers, even if this would imply the lift of their immunity. 

 

The ratification of some international treaties such as the Rome Statute should be a sine qua non condition for the TCCs to take part in a peacekeeping mission. The need for troops that western countries cannot provide is understandable, but this should not undermine the applicability of IHL or IHRL in the context of an international peacekeeping mission under a UN mandate. Even in this case, the principle of complementarity would make it compulsory for national courts to prosecute offenders first.

 

Considering the reactive nature of IHL and the timing of the international law’s development, the scandal of crimes among peacekeepers is relatively recent. There is a long way to defeat impunity, especially taking into account the erosion of the TCCs’ sovereignty that the  lift  of immunity would imply, that countries are not willing to lose.  Governments may be pressured to lift the peacekeepers’ immunity and to ensure the application of the national law in the country were the violation was committed. 

 

 

In: Genta Akasaki, Emilie Ballestraz, and Matel Sow (2015) “What went wrong in the Central African Republic? International engagement and the failure to think conflict prevention”, Geneva Peacebuilding Platform, 2015 White Paper No.12

 

1 United Nations Department of Peacekeeping Operations, Department of Field Support (2008), “United Nations Peacekeeping Operations Principles and Guidelines”.

 

2 Skype interview with Carlo Tarchi, desk responsible for Central African Republic, 01/12/2017, Cooperazione Internazionale (COOPI).

 

3 COOPI is the oldest NGO to be active in the country.

 

4 See Annex II.

 

5 A positive development was the reduction of the priority tasks from 8 to 4 by the Security Council last month, November 2017,  in occasion of the renew of MINUSCA’s mandate (Resolution 2387).

 

6 United Nations Department of Peacekeeping Operations, Department of Field Support (2008) United Nations

Peacekeeping Operations: Principles and Guidelines. 

 

7 Daphna Shraga (2000), UN Peacekeeping Operations: Applicability of International Humanitarian Law and Responsibility for Operations-Related Damage, The American Journal of International Law, Vol. 94, No. 2 (Apr., 2000), pp. 406-412. 

 

8 Edited by William C. Banks (2011), “New Battlefields Old Laws: Critical Debates on Asymmetric Warfare”, 2011 Columbia University Press

 

9 Tristan Ferraro (2013), “The applicability and application of international humanitarian law to multinational forces”, International Review of the Red Cross (2013), 95 (891/892), 561–612.

 

10 Ibid. 

 

11 Ibid.

 

12 Ibid, p.571.

 

13 Article 20 of the Convention.

 

14 Katarina Grenfell (2013), “Perspective on the applicability and application of international humanitarian law: the UN context”, International Review of the Red Cross, 95 (891/892), 645–652.

 

15 Former senior legal adviser at the UN Office of Legal Affairs who was involved in drafting the Bulletin.

 

16 Tristan Ferraro (2013), The applicability and application of international humanitarian law to multinational forces, International Review of the Red Cross (2013), 95 (891/892), 561–612. 

 

17 OHCHR (2017), Report of the Mapping Project documenting serious violations of international human rights law and international humanitarian law committed within the territory of Central African Republic between January 2003 and December 2015. 

 

18 UNSG report (16 February 2016), Special measures for protection from sexual exploitation and sexual abuse A/70/729.

 

19 Genta Akasaki, Emilie Ballestraz, and Matel Sow (2015) What went wrong in the Central African Republic? International engagement and the failure to think conflict prevention,  Geneva Peacebuilding Platform, 2015 White Paper No.12

 

20 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),

Judgment, ICJ Reports 1986, para. 218. See also ICJ, The Corfu Channel Case, Judgment, ICJ Reports 1949,

p. 22.

 

21 AP II, Art. 4(2) (e).

 

22 Gloria Gaggioli (2014), “Sexual violence in armed conflict”, International Review of the Red Cross, 96 (894), 503–538.

 

23Marie Deschamps, Chair Hassan B. Jallow, Yasmin Sooka (17 December 2015), “Taking action on sexual exploitation and abuse by peacekeepers Report of an Independent Review on Sexual Exploitation and

Abuse by International Peacekeeping Forces in the Central African Republic”.

 

24After the ratification the ICC could open two investigations. The first refers to the years 2002 – 2003: the Court convicted and sentenced the Congolese rebels’ leader Jean-Pierre Bemba. The second one is ongoing.

 

25 See supra note 19.

 

26 Gaggioli, supra note 27.

 

27 Sangha-Mbaéré Prefecture, Central African Republic.

 

28 See note 23.

 

29Sangaris was a French military operation deployed in CAR in December 2013 (Resolution 2127) to support the African Union’s mission MISCA. The operation was under a Security Council mandate but not under its command. French soldiers were accused of sexual violence committed at the M’Poko IDP camp near Bangui airport.

 

30 Maria TELALIAN (2008), Violations of international humanitarian law committed during peaceoperations and individual criminal responsibility , 31st Round Table on Current Problems of International Humanitarian Law Sanremo, 4-6 September 2008..

 

31 Ibid.

 

32 United Nations General Assembly (2005), “Comprehensive review of the whole question

of peacekeeping operations in all their aspects”, A/59/710. Also called “Prince Zeid’s Report”.

 

33 See note 31.

 

34 For example, Belgian peacekeepers operating in Somalia (United Nation's "Operation Restore Hope" mission in Somalia in 1993) where sentenced in a Military Court in Brussels.

 

35 United Nations General Assembly (2005), See supra note 37, p.6. 

 

36 Chapman, Peter F. (2009), "Ensuring Respect: United Nations Compliance With International Humanitarian Law." Human Rights Brief 17, no. 1, p.3-11.

 

37 Ibid.

 

38 International Crisis Group (ICG), Avoiding the Worst in Central African Republic (28 September 2017), Africa Report N°253. 

 

39 The year when the court can start to investigate violations.

 

40  Erica Bussey (2 October 2017) Progress and challenges in establishing the Special Criminal Court in the Central African Republic, Amnesty International.

 

41 George Russell  (18 December 2015), “Independent panel blasts U.N. for inaction and cover-up in sex abuse cases”, www.foxnews.com/world/2015/12/18/independent-panel-blasts-u-n-for-inaction-and-cover-up-in-sex-abuse-cases.html

 

42 United Nations General Assembly (2005), “Comprehensive review of the whole question

of peacekeeping operations in all their aspects”, A/59/710.

 

43 Chapman, supra note

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