CIAO DATE: 04/2013
December 2012
The Geneva Centre for Security Policy
Modern UN peacekeeping operations almost inevitably contain a civil police and justice component. UN police and justice elements are regularly called upon to help re-establish law and order and rebuild the rule of law in societies whose civil infrastructure has been destroyed by years of internal conflict. Where their mandate charges them to secure law and order, however, UN police often has difficulties in establishing the law to be applied. As a consequence, UN police often cannot act with the necessary clarity and decisiveness in their early phase of deployment. The ensuing legal vacuum may allow crime to flourish, nurturing doubt about the capacity of the UN to act in accordance with the rule of law. As promulgated by the Secretary-General in 2004, the rule of law requires legal certainty, predictability of the content of the law, fairness and equality in its application and full accountability of all state agents to the law. Whereas it is undisputed today that UN personnel must abide by international human rights standards, current legal guidance for UN police is unclear about which norms of criminal law and procedure are to be applied where the local law is unknown or does not meet these international standards. This paper argues that for reasons of their own accountability and that of the Organization, UN police cannot be left alone with the task of establishing the applicable norms in an ad-hoc way. From a rule of law perspective, the current practice of basing UN police work on not more than a general reference to the human rights compatibility of the local law – in the agreements between the UN and the host country or the police contributing states – is insufficient. Falling back on the national laws and police practices of the respective police officer or contingent equally does not meet the requirements of the rule of law. More precise guidance is needed on what should replace any insufficient law, at least in the areas where UN police work directly affects the rights of citizens of the host state. The paper therefore calls on the UN and member states to improve the framework for UN police in post-conflict peace operations. It recommends that the apparent void be filled by adopting a set of basic interim norms through the General Assembly to govern police work and criminal procedure, which can be made applicable and legally binding at the local level until the local law has been brought into full conformity with applicable international human rights law.
Resource link: Taking the Rule of Law Seriously: More Legal Certainty for UN Police in Peacekeeping Missions [PDF]