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Prosecuting the Crime of Attack on Peacekeepers: A Prosecutor's Challenge

Published online by Cambridge University Press:  02 February 2010

MOHAMED A. BANGURA
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Abstract

The crime of attack on peacekeepers has gained specific attention in the practice of various international courts and tribunals, including the Special Court for Sierra Leone and the International Criminal Court. This article revisits the historical origins, the foundations, and the main issues from a prosecutorial perspective arising in the interpretation and litigation of this crime. It argues that the crime poses unique challenges in relation to charging practice and evidence.

Keywords

International Criminal CourtpeacekeepersSpecial Court for Sierra LeoneUN Charterwar crimes
Type
HAGUE INTERNATIONAL TRIBUNALS: Reflections from Practice
Information
Leiden Journal of International Law , Volume 23 , Issue 1 , March 2010 , pp. 165 - 181
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2010

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References

1 Art. 33(1) of the UN Charter.

2 The first UN peacekeeping mission was established in 1948, when the Security Council authorized the deployment of UN military observers to the Middle East to monitor the armistice agreement between Israel and its Arab neighbours. For a survey of lessons learned and best practices, see the Report of the Panel on United Nations Peace Operations (Brahimi Report), UN Doc. A/55/305-S/2000/809) (2000), available at www.un.org/peace/reports/peace_operations/, and United Nations Peacekeeping Operations: Principles and Guidelines (2008), available at http://pbpu.unlb.org/pbps/Library/Capstone_Doctrine_ENG.pdf.

3 Information available at www.un.org/Depts/dpko/dpko/.

4 UN Secretary-General, Report to the General Assembly on the Work of the Organization, UN Doc. A/63/1, 2008, para. 40.

5 SCSL, Prosecutor v. Sesay, Kallon and Gbao, Case No. SCSL-04-15-T, Judgment, 2 March 2009.

6 Information available at www.un.org/Depts/dpko/dpko/.

7 The West African intervention force ECOMOG was viewed as a peace enforcement force in the early part of the Liberian conflict in the 1990s.

8 Hague Regulations, Art. 3, cited in J.-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules (2005), 11–12.

9 Arts. 48, 51(2) and 52(2) of Additional Protocol I to the Geneva Conventions of 1949.

10 Henckaerts and Doswald-Beck, supra note 8, at 3.

11 Arts. 48 and 52(2).

12 Henckaerts and Doswald-Beck, supra note 8, at 25.

13 The Additional Protocol was formally adopted on 8 June 1977.

14 ICC Statute, Art. 8(2)(b)(iii) and (e)(iii); Statute of the Special Court for Sierra Leone, Art. 4(b).

15 The practice of Australia, Germany, the United Kingdom and the United States, cited in Henckaerts and Doswald-Beck, supra note 8, 112, at 113.

16 See the various UN Security Council Resolutions, namely 757, 788, 794, 802, 804, 1004, 1009, 1118, 1180, and 1187; ECOWAS First Summit Meeting of the Committee of 9 on Liberian Crisis, Final Communiqué; OIC, Conference on Ministers of Foreign Affairs, Res. 1/6 – EX; 88th Inter-Parliamentary Conference, Resolution on Support for the Recent International Initiatives to Halt the Violence and Put an End to the Violations of Human Rights in Bosnia and Herzegovina, cited in Henckaerts and Doswald-Beck, supra note 8, 112, at 113.

17 1997 Geneva Protocol I, Arts. 37(1)(d) and 38(2). See also 1980 UN Convention on Certain Conventional Weapons, Art. 9; its Protocol II on mines, Art. 8; its 1996 Amended Protocol II, Art. 12.

18 Text available at www.un.org/law/cod/safety.htm.

19 Art. 2(2).

20 See A. Roberts and R. Guelf, Documents on the Laws of War (2005), 624.

21 Art. 12.

22 Arts. 13–15.

23 Art. 16.

24 States under the dualist concept typically require a parliamentary process of approval or ratification.

25 SCSL, Prosecutor v. Sesay, Kallon, Gbow, Case No. SCSL-2004-15-PT, Corrected Amended Consolidated Indictment, 2 August 2006, Counts 16–18.

26 See Henckaerts and Doswald-Beck, supra note 8, 112, at 114.

27 Text of the Rome Statute circulated as UN Doc. A/CONF.183/9 of 17 July 1998 and corrected by procès-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001, and 16 January 2002. The Statute entered into force on 1 July 2002.

28 Art. 8(1).

29 Art. 8(2)(b) and (e) (emphasis added).

30 Arts. 8(2)(b)(iii) and 8(2)(e)(iii) (emphasis added).

31 The Statute of the SCSL is annexed to the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, signed 16 January 2002.

32 See A. Alao, J. Mackinlay, and F. Olonisakin, Peacekeepers, Politicians, and Warlords: The Liberian Peace Process (1999), 3, at 8.

33 For example, ECOMOG, under ECOWAS, in Liberia and Sierra Leone; see also S. Neil MacFarlane, ‘Regional Peacekeeping in the CIS’, in R. Thakur and A. Schnabel (eds.), UN Peacekeeping Operations: Ad Hoc Missions, Permanent Engagement (2001), 77.

34 For example, NATO and its partners in Bosnia and Kosovo; see MacFarlane, supra note 33, at 77.

35 United Nations Mission for Sierra Leone (UNAMSIL).

36 ICC Statute, Art. 5(1)(a–c).

37 Prosecutor v. Sesay, Kallon and Gbao, SCSL-04-15-T, Corrected Consolidated Amended Indictment, 2 August 2006.

38 Punishable under Art. 4(b) of the Statute.

39 Punishable under Art. 2(a) of the Statute.

40 Punishable under Art. 3(a) of the Statute.

41 Punishable under Art. 3(c) of the Statute.

42 See ICC, Prosecutor v. Bahr Idriss Abu Garda, Case No. ICC-02/05-02/09.

43 Paragraphs 46–48 of the First Indictment, 24 July 1995.

44 ICTY, Prosecutor v. Karadžić and Mladić, Case No IC-95-5-I, Initial Indictment (Bosnia and Herzegovina), 24 July 1995.

45 See ICTY, Prosecutor v. Karadžić, Case No. IT-95-5/18-PT, Third Amended Indictment, 27 February 2009. The offence is charged under Count 11, and is punishable under Arts. 3, 7(1), and 7(3) of the ICTY Statute.

46 ICTR, Prosecutor v. Theoneste Bagosora, Case No. ICTR-96-7-I, Amended Indictment, 12 August 1999.

47 Report of the Secretary-General on the Establishment of the Special Court for Sierra Leone, UN Doc. S/2000/915, 4 October 2000, para 16.

48 This position reflects the statement in the Report of the Secretary-General on the Establishment of the Special Court.

49 Adopted from Art. 49(1) of Additional Protocol I to the Geneva Conventions of 1949.

50 Prosecutor v. Sesay, Kallon and Gbao, SCSL-04-15-T, Judgment, 2 March 2009, at 86.

51 The ICC Statute, Art. 54(1)(a) for instance, obliges the Prosecutor with respect to his duties and powers of investigations, to ‘investigate incriminating and exonerating circumstances equally’.

52 Practice varies among states and organizations. UNHCR has been known to attach a condition that a lawyer representing its interests must be present when such witnesses are interviewed and when they testify in court. A similar practice may be used by other UN bodies and international NGOs.

53 See SCSL, Prosecutor v. Norman, Fofana, Kondewa, Case No-SCSL-03-14-I, trial transcript for TF1-218, 7–8 June 2005 (protective measures apply to this witness; testimony was in a closed session).

54 Rule 68 of the Rules of Procedure and Evidence of the SCSL requires disclosure of exculpatory material by the prosecution.

55 ICC Rules of Procedure and Evidence, Rule 73(6).

56 ICC, Prosecutor v. Thomas Lubanga Dyilo, Decision on the Release of Thomas Lubango Dyilo, ICC-01/04-01/06-1418, 2 July 2008.

57 ICC Statute, Art. 73; ICC Rules of Procedure and Evidence, Rule 73(4–6).

58 ICTY, Prosecutor v. Simić, Decision on the Prosecution Motion under Rule 73 for a Ruling Concerning the Testimony of a Witness, 27 July 1999 (Red Cross Decision).

59 Ibid., para 76.