Der Schutz der Zivilbevölkerung durch UN-Friedensmissionen und die Rechtsfolgen bei Mandatsversagen

Throughout the over 50-years long history of the UN peacekeeping missions their man-dates have developed from mission to mission. Besides the ultimate goals of conflict resolution and post-conflict reconciliation the protection of civilians (POC) became an increasingly important component of peacekeeping mandates since 1999. Although the language of numerous UN documents fuel the impression that POC mandates are one of the many pillars of the Responsibility to Protect doctrine (R2P), both concepts should not be confused. The POC mandate is not limited to the prevention of grave offenses such as genocide, ethnic cleansing and crimes against humanity, as opposed to R2P. On the other hand it contains important situational constraints: The POC mandate applies to the local population under imminent threat of physical violence within the bounds of the mission's capacities and without prejudice to the responsibility of the host State. Most notably, the R2P concept has not yet rid itself of its political-programmatic origins, while POC has its legal roots in international humanitarian law and human rights law. Having said that, the POC mission mandates designed by the Security Council go far beyond what is required by the UN Charter and general international law. A general obligation under international law by the United Nations to protect civilians from grave human rights violations or war crimes exists only to a very limited extent. It may be at most deduced from Common Article 1 of the Geneva Conventions or Article 1 of the Genocide Convention and amounts to the duty of the Security Council not to construe mandates in such a way as to prohibit peace missions to protectively intervene in life threatening situations. In the theatre of operation, the UN mission's legal obligation to act may follow from the above-mentioned provisions if there is a real and viable possibility to influence or thwart violent third parties. In case of non-performance or malperformance of the POC mandates the UN-executive bodies are exclusively responsible to the Security Council but not to the Member States let alone the civil victims. Without prejudice to political accountability, the latter have no Charter based entitlement to the proper fulfillment of the mandate. It may be otherwise if the UN Missions infringe general international law: the legal approach of Dutch civil courts in the case of the genocide in Srebrenica exemplifies that civil law claims for damages are not completely unrealistic in case of a considerable POC failure. While the UN were able to abscond the tort action with reference to their jurisdictional immunity (Mothers of Srebrenica), the Netherlands were held accountable as the troop-contributing State (Nuhanovic and Mustafić). Given that the Netherlands have, together with the UN, exercised operative command over the UNPROFOR contingent Dutchbat, the former was liable for not giving the necessary orders to prevent Duchbat from exposing the victims to genocidal acts. The liability of the troop-contributing State, which the Dutch courts have affirmed in view of the shocking UN-failure in Srebrenica, will however remain an exception in practice. From the point of view of legal policy the liability grip is problematic for the United Nations in any case: how shall the organization fulfill the POC mandates on a worldwide scale if UN-Member States refuse to provide peacekeeping troops in the light of liability risks?