A main weakness of UN peacekeeping operations is the lack of an overarching legal framework. As a result, there are systemic weaknesses and gaps in the laws particularly relating to accountability. Peacekeeping operations are undermined by the different immunities and jurisdictional gaps that exist when peacekeeping personnel (troops and civilians) commit criminal acts.
The current legal position is that (i) troops are immune from host state jurisdiction, and (ii) civilian personnel are immune from the jurisdiction of any national court. The counterbalance for troops is that TCCs are under a duty to prosecute troops who commit crimes. The counterbalance for civilian personnel is the existence of a waiver. In practice those counterbalances are deployed only very rarely. That (a) undermines peacekeeping operations and (b) is in violation of victims’ fundamental rights to access a court and a remedy.
The current laws have resulted in a culture of impunity. Personnel use the cloak of immunity to commit crimes knowing that they will not be held to account. Although the Zeid Report identified key reforms to address the culture of impunity surrounding sexual abuse, little has been done to implement those reforms. In order to strengthen peacekeeping operations’ legitimacy and activities it is vital to revisit and address the issue of immunity and jurisdictional gaps.
Rather than tinkering around the edges of existing laws, it is time to explore a more concrete and viable alternative. To counterbalance immunities, the UN must consider creating courts to prosecute individuals who commit criminal acts. Those courts could be (i) internal to the UN, along the model of the UN employment tribunals, or (ii) attached to each peacekeeping operation, along the model of local claims commissions. The courts could be internationalized or hybrid. They would have jurisdiction over all peacekeeping personnel and would ensure accountability for criminal acts committed by peacekeepers, thus addressing the culture of impunity that undermines peacekeeping operations.