The human rights treaty obligations of peacekeepers / Kjetil Mujezinović Larsen.
2012
KZ6376 .L37 2012 (Map It)
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Details
Title
The human rights treaty obligations of peacekeepers / Kjetil Mujezinović Larsen.
Published
Cambridge, UK : Cambridge University Press, 2012.
Copyright
©2012
Call Number
KZ6376 .L37 2012
ISBN
9781107017078 (hardback)
1107017076 (hardback)
1107017076 (hardback)
Description
xlii, 473 pages ; 24 cm.
System Control No.
(OCoLC)779264949
Bibliography, etc. Note
Includes bibliographical references (pages 439-460) and index.
Record Appears in
Table of Contents
Foreword
xvi
Preface
xx
Table of cases
xxiii
List of abbreviations
xli
pt. I
Background and context
1.
Introduction and overview
3
The main research question
4
Scope of analysis
6
Treaty law as the relevant basis of human rights obligations
6
UN-mandated peace operations: some terminology
7
Preparing the stage
11
Whose obligations towards whom?
11
The obligations of states
11
Military forces as the relevant state agents
13
Civilians as the relevant rights-holders
13
A selection of substantive norms: the protection of an individual's physical integrity
14
Human rights treaties in context: the legal framework of peace operations
16
The immunities and privileges of the United Nations
20
Clarifications concerning method
21
Principles of interpretation: human rights treaties
21
Judicial activism vs. judicial self-restraint in human rights bodies
25
The interpretation of UN Security Council resolutions
27
The interpretation of other instruments
32
The relevance of international customary law
34
Outline of the book
36
2.
The context
42
The emerging relevance of human rights law in UN-mandated peace operations
42
The increased complexity of peace operations
43
Globalism vs. regionalism
45
The mainstreaming of human rights in the United Nations
48
Two trends in peace operations: the protection of civilians and the protection of human rights
49
The protection of civilians
49
The protection of human rights
53
The failure of peace operations to respect or protect human rights
55
The `humanisation' and the `human-rightism' of international law
57
The other side of the coin: the alleged inappropriateness of applying human rights treaties
60
The two approaches of the European Court of Human Rights and the United Nations Human Rights Committee: an example of the fragmentation of international law?
61
The fundamental policy consideration: peace and security vs. human rights
64
Peace and human rights
65
(National) security and human rights
66
The relevance for UN-mandated peace operations
70
Conflicting values in peace operations: the effectiveness of peace operations and the effectiveness of human rights
71
The `square peg, round hole' argument
76
pt. II
Two fundamental arguments for non-applicability of human rights treaties
3.
The argument of non-applicability ratione personae
85
Overview of the chapter
85
The capacity of actors in peace operations to bear responsibility under international human rights law
87
Troop contributing states
87
The human rights obligations of international organisations
87
The relevance of international legal personality
88
The international legal personality of the United Nations and NATO
91
Objective and subjective personality
98
Attribution of conduct during UN-mandated peace operations
99
The context
99
The responsibility of states and of international organisations
99
Are the general principles of international responsibility relevant for human rights law? The notion of `self-contained regimes'
102
The relevance of the issue for the present book
105
Overview of the further analysis
107
Attribution of conduct of military forces during peace operations: rules and principles of general international law
108
Relevant provisions in the Articles on State Responsibility
108
Relevant provisions in the Draft Articles on Responsibility of International Organizations
111
The legal status of peace operations
112
Application of the general rules and principles in UN-mandated peace operations
113
Attribution of conduct under human rights law: a lower threshold?
121
Direct responsibility
121
`Indirect responsibility': the concept of positive obligations
125
The Behrami/Saramati case
129
Introduction to the case
129
The content of the `ultimate authority and control' test
132
Developments `post-Behrami/Saramati'
136
The European Court of Human Rights: cases applying the `ultimate authority and control' test
136
Domestic case law: the Al-Jedda case
138
The European Court of Human Rights tries again: the Al-Jedda case
141
Domestic case law: the Dutch cases concerning Srebrenica
142
Domestic case law: the Belgian Mukeshimana-Ngulinzira case
144
Reactions from the UN and states
144
The (lack of an) approach of the UN Human Rights Committee
146
A normative assessment of the `ultimate authority and control' test
146
The incompleteness of the Behrami/Saramati decision: two unexplored avenues to holding contracting states responsible when conduct is (also) attributable to the United Nations
151
Dual and multiple attribution
151
The responsibility of member states for acts of the organisation
156
Conclusions
164
4.
The argument of non-applicability ratione loci
165
Territory and jurisdiction
165
The extraterritorial application of the ECHR: general starting points
167
The settled issue: the ECHR can apply extraterritorially
167
`Jurisdiction' defined as the exercise of authority and control
169
The contentious issues: an overview of the further analysis
173
A basis for comparison: the position under the ICCPR
177
The ICCPR can also apply extraterritorially
177
The similar definition of `jurisdiction'
180
The application of the ICCPR in UN-mandated peace operations
181
The exercise of extraterritorial jurisdiction in peace operations: four categories
185
Exercise of authority or control over a territory
185
The general principles
185
Transitional administration
190
`Safe areas', `security zones', and other places of protection
194
Buffer zones
198
Combat operations
202
Exercise of authority or control over individuals
204
Arrest
204
Detention
207
An individual is killed by a state agent
211
Extraterritorial effects of territorial or extraterritorial conduct
215
Extradition and expulsion
215
Cross-border incidents
217
The requirement of a close connection between the conduct and the injury
217
Effects of a foreign state's conduct
218
The Manoilescu/Dobrescu and Treska cases: the birth of a `due diligence' doctrine, or a slip of the tongue?
220
The discussion of an `espace juridique' limitation
224
A sidestep: the universality of human rights
224
The possible relevance of the `espace juridique'
227
The relationship between the host state and the peace operation
233
Competing `jurisdictions'
233
Conflicting international obligations
236
Conclusions
237
pt. III
Circumstances that may exclude or modify the application of the treaties
5.
The applicability of human rights law during armed conflicts
243
The settled issue: human rights law applies, in principle, during armed conflicts
243
The contentious issue: the relationship between IHL and human rights law
247
Overview
247
The relevance of the issue for the present book
248
The applicability of IHL to troop contributing states in UN-mandated peace operations
248
The applicability of the law of belligerent occupation
250
The right to life
252
The right to liberty and security
255
Prohibition against torture
255
The lex specialis theory
256
The complementarity theory
259
The `most favourable protection of victims' theory
260
The human rights-based theory
261
The practice under the ECHR and the ICCPR
263
The jurisdiction of the European Court of Human Rights and the UN Human Rights Committee to apply IHL
263
Methodological and practical challenges
268
The case law of the European Court of Human Rights
272
The views of the UN Human Rights Committee
282
The Committee's General Comments
282
The Committee's country-specific practice: Concluding Observations to Periodic State Reports
285
The Committee's country-specific practice: jurisprudence
289
Advantages and disadvantages of the application of IHL by human rights tribunals
290
Can a general theory be identified?
293
Implications for the application of the ECHR and the ICCPR when peace operations are involved in armed conflicts
296
6.
Derogations
298
The legal basis for derogations
298
Derogation from human rights treaties in peace operations
299
The emergency requirement: the problem of extraterritorial derogations
299
A threat to the `life of the entire nation' or to the `life of affected parts of the nation'?
302
A similar test for extraterritorial derogations?
306
Consistency with other obligations under international law
311
A way to avoid the `absurdity' argument
312
7.
Norm conflicts between UN Security Council mandates and human rights treaties
314
The UN Charter Article 103
314
Introduction to the problem
314
A necessary background: constitutionalism vs. legal pluralism
315
Charter obligations and Charter body decisions
318
Obligations and authorisations
319
The general prevailing effect of Article 103
322
Norm conflicts between Charter obligations and human rights
323
The special situation of human rights
323
Human rights norms as a substantive limitation of the competence of the UN Security Council
323
The right to life, freedom from torture, and the right to liberty and security, as a substantive limitation of the competence of the UN Security Council
328
Is there a presumption of human rights compliance?
332
A review of relevant case law
333
The European Court of Human Rights: the Behrami and Saramati cases
333
The UN Human Rights Committee: the Sayadi and Vinck case
335
The European Court of Justice and the Court of First Instance: the Kadi and Al-Barakaat case
338
The UK House of Lords: the Al-Jedda case
344
The European Court on Human Rights tries again: the Al-Jedda case
346
Norm conflicts between authorisations under the UN Charter and rights under the European Convention on Human Rights: the (uncertain) lex lata solution
347
Attempts to reconcile the cases
347
An explanation of the view of the European Court of Human Rights
349
Norm conflict in practice in peace operations: the interpretation of resolutions authorising `all necessary means'
351
8.
Legal challenges relating to the interrelationship between troop contributing states
353
Regional differences
353
Interoperability from a human rights perspective
355
The mutual dependence between states
357
Indispensable third parties - the `Monetary Gold' principle
360
pt. IV
Application in concretu: the right to life, to freedom from torture, and to liberty and security
9.
Selected issues relating to the application of substantive provisions
367
The distinction between positive and negative obligations
367
Overview
367
The starting point: the indivisibility of human rights
367
Are human rights `divisible' in peace operations? Building a case for separating negative and positive obligations
368
The right to life
374
The relevant treaty provisions
374
Use of lethal force
375
Introduction to the authority to use lethal force in peace operations
375
Personal self-defence
378
Defence of the mission
379
Chapter VII authorisation: the situation during combat operations
381
Positive obligations under Article 2
386
General content: relevance for peace operations
386
Mandates concerning the protection of civilians under `imminent threat of physical attack', and similar limitations
391
The right to liberty and security
393
Detention
393
The prohibition against arbitrary arrest and detention
393
The right to be brought promptly before a judge
397
The right to judicial review
399
Positive obligations under Article 5
400
Transfer of detainees: the principle of non-refoulement
401
The application of the ECHR and the ICCPR on the transfer of detainees
401
Bilateral detainee transfer agreements: ISAF
404
Bilateral detainee transfer agreements: the Coalition Provisional Authority
406
The impact of the agreements: the question of diplomatic assurances
408
The prohibition against torture
418
The obligation not to subject anyone to torture
418
The scope of the prohibition
419
Positive obligations under Article 3
423
Final reflections: is it `absurd' to require compliance with the ECHR?
427
pt. V
Conclusions
10.
Conclusions
433
Many obstacles to the applicability of human rights treaties
433
Inherent or invented obstacles?
434
The better approach: transparent adaptations to the ordinary application of the treaties
436
Sources and materials
439
Selected UN documents
439
Books, articles and other literature
439
Index
461