28 Oct 2019

Global Security and UN Peacekeeping:

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Kennedy Graham

Jayden van Leeuwen’s column on UN peacekeeping and its accounting to the global community raises some important issues that thematically fall within the Centre’s global security programme.

Jayden addresses the problem of sexual abuse by personnel in UN peacekeeping missions – and the ‘startling lack of accountability’ applied to contributing member states.  The main barrier to accountability is the ‘legal status quo’ imposed by the Status of Forces Agreements under which individuals in UN missions are subject to the jurisdiction of the contributing State for any criminal offence committed in the host country.

As Jayden observes, the foundation of the UN system is state consent, so the UN can only pursue non-legal accountability, such as financial assistance to victims and support for whatever redress the contributing State decides, which is usually inadequate.   

The UN itself acknowledges that it lacks ‘the authority or legal mandate to criminally prosecute individuals’, and can only refer allegations to the ‘relevant national authorities’ for action.

The broader message of Jayden’s piece, I suggest, is this.  The inability of the UN to assert governance over criminal acts within operations established under its mandate highlights the inadequacy of our 20th c. international system to deal with its responsibilities towards the emerging global community in the 21st c.

The central concept in the UN Charter is the maintenance of international peace and security.  For this, chapter VII empowers the UN (through the Security Council) to resort to the legitimate use of force in the name of collective security.  The paralysis of the Council through the veto meant that collective security in response to aggression has not worked, the only significant cases being Korea (1951) and Iraq (1991).

In its place, the phenomenon of UN peacekeeping emerged, essentially as a backstop. Its origin was in unarmed UN truce observers (1948 Middle East; 1949 South Asia). UN peacekeeping involving armed troops commenced in 1956 (Middle East) but, under ‘classical peacekeeping’, force is to be used only in self-defence.

Since the early 1990s, ‘modern’ UN peace operations have developed, for both military stability and civilian rebuild. Proactive force may be employed against any action designed to thwart mission objectives. This applies across all regions where such operate – Africa, Middle East, Asia, Pacific and America.

All missions, however, have been reliant upon voluntary contributions from UN member States and governed by SOFAs in which responsibility for individual behaviour remains with the contributing State.  This extends to the enforcement missions as well as peacekeeping.   In Korea the original UNC (UN Command) was authorised by the Security Council on the basis that it would be under the operational command of the US with multinational forces which continues to this day.  The Council authorised the UN flag to fly alongside the national flags of contributing countries, but the operational and jurisdictional command remained with the US.  The recent development in which North and South Korea share observation responsibility, at the demilitarised zone, does not change this underlying framework.  In Japan, the UNC-Rear provides logistical supplies to the UNC in Korea under a SOFA between the UN and Japan which makes it clear that jurisdiction remains with the US.

Clearly, the UN is largely impotent in lacking any ability to control its peacekeeping forces, because of the 20th c. constraint of State consent. The only way to resolve this is to progress beyond the practice of member State contributions to UN peacekeeping.

In 1992 the Security Council, noting the ‘new favourable international circumstances’ in a time of ‘momentous change’, requested the Secretary-General to recommend ways the UN could strengthen its work in peace and security.  The SG’s report (Agenda for Peace) proposed a conceptual framework: preventive diplomacy, peace-making, peacekeeping and peace-building.  Within peace-making, he proposed the creation of ‘peace enforcement units’ under his operational control as UN Secretary-General.  Although the report laid the basis for effective peacebuilding missions, the peace-making proposal for enforcement units was never adopted.

In 2000 the Brahimi Report, noting the broad criticism of slow peacekeeping deployment, proposed among other things a standing army and a standing police force.  The report did not mince its words.

Many Member States have argued against the establishment of a standing United Nations army or police force, resisted entering into reliable standby arrangements, cautioned against the incursion of financial expenses for building a reserve of equipment or discouraged the Secretariat from undertaking planning for potential operations prior to the Secretary-General having been granted specific, crisis-driven legislative authority to do so. Under these circumstances, the United Nations cannot deploy operations ‘rapidly and effectively’ within the timelines suggested.

In 2015, the Horta Report sought to strengthen the contemporary peacekeeping system.

The Panel believes it is past time to institutionalize a framework to engage troop-and police-contributing countries and the Secretariat to truly forge a common and realistic understanding of the mandate and what capabilities and standards are required to implement the mission.

The conclusion is that, despite the three reports, nothing substantive has been done by Member States to fundamentally change the operational nature and jurisdictional framework of UN peace operations since its inception.  Changes have been made at the margin and these have made a useful difference, but marginal improvement is not fundamental change.

Until the nature of the mission progresses to a qualitatively new framework with a standing UN contingent, directly recruited, financially and logistically supported, operating under the direct jurisdiction of the UN Secretary-General, and accountable to the UN operationally and to the ICC for any individual criminal liability, we shall not be answering properly to the legitimate interest of the global community of peoples.      

Dr Kennedy Graham is Director of the NZ Centre for Global Studies  

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27 Oct 2019

UN Peace Keeping and the Global Community:

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Jayden van Leeuwen

The United Nations (UN) is a key actor in the international sphere, and plays an integral role in the maintenance of peace and security across the world. One of the key mechanisms for doing so are its peacekeeping operations, which see peacekeepers inserted into some of the direst situations on the planet. The work of peacekeepers is absolutely crucial, but the UN has been marred by decades of scandal, as its peacekeepers have carried out instances of sexual exploitation and abuse while on mission. Not only does this significantly affect the credibility of the UN and its peacekeeping missions, but it also has truly horrific impacts on the victims, their families, and their communities. Successive Secretaries-General have strived to tackle this issue, with mixed success – at its heart, there is a startling lack of accountability, with the perpetrating peacekeepers often being subjected to little sanction.

One of the biggest barriers to the accountability of peacekeepers accused of sexual exploitation and abuse is the legal status quo created by the Status of Forces Agreement (SOFA). The SOFA outlines the rights and responsibilities of the host state, troop contributing country and UN management in respect of individual peacekeeping missions, and as such, is an integral part of any operation. Problematically, the Model SOFA of 1990, which is used by all peacekeeping missions, states that “military members of the military component of the UN peacekeeping operation shall be subject to the exclusive jurisdiction of their respective participating States in respect of any criminal offences which may be committed by them in the host country.” This provides absolute immunity from host state jurisdiction for peacekeepers accused of sexual exploitation or abuse while on mission, and notably differs from the more standard functional immunity granted to most other UN employees. Accordingly, this leaves primary responsibility for accountability with the troop contributing countries themselves, while the UN is restricted to internal investigations and at most, mandatory repatriation of the offending peacekeeper. Unfortunately, troop contributing countries are notorious for failing to take meaningful action to hold these peacekeepers to account – it is not uncommon for the only response to be disciplinary, as opposed to legal.

Given this problematic status quo, the UN has had to resort to a variety of alternative mechanisms in order to attempt to provide some level of accountability, and to repair the damage caused by sexual exploitation and abuse. With the SOFA creating a significant barrier to the achievement of legal accountability, the UN has begun to develop non-legal accountability mechanisms that provide support to victims, and seek to force action by troop contributing countries – 2007 saw the introduction of minimum standards of assistance, and the Trust Fund on Victim Assistance was established in 2016.The Secretary-General’s 2017 Report on Ending Sexual Exploitation and Abuse in particular can be noted for its efforts to provide direct non-legal accountability to victims, through its introduction of a number of new initiatives.

Firstly, the Report called for the appointment of a Victims’ Rights Advocate, who is a system-wide official who leads the UN’s response to sexual exploitation and abuse, and provides not only guidance to UN bodies, but also assistance and support to victims. Secondly, the Report recommended that payments due to peacekeepers accused of sexual exploitation and abuse should be withheld, and transferred to the Trust Fund on Victim Assistance should the troop contributing country fail to carry out or complete a proper investigation. While the first Victims’ Rights Advocate was appointed in 2017 and has been active ever since, the General Assembly has thus far failed to adopt the recommended changes to the Trust Fund.

While mechanisms such as these have been criticised for not providing legal accountability, or for failing to bring about the end of sexual exploitation and abuse, it is crucial to note that the UN is significantly hamstrung in respect of what it can do to tackle this truly abhorrent issue. The foundation of the UN system is state consent, meaning the Model SOFA is likely to remain as it is. Although other organisations, such as NATO, only provide their peacekeeping personnel with functional immunity (immunity in respect of actions that are part of their official duties), proponents for change have been unsuccessful in seeing any redrafting of the UN’s Model SOFA. Given this practical reality, the UN has little option other than to pursue these kinds of non-legal accountability, in the hopes that they can provide some form of closure and support to the victims, and to force action by troop contributing countries. Until such a time as troop contributing countries see fit to either grant only functional immunity, or to commit to fully exercising their retained jurisdiction, the UN will have to continue inventing alternative mechanisms. Ultimately, this may well be the best that can be hoped for – it is, after all, better than nothing.

This unfortunate reality should not be one that completely dissuades agitation for change. Peacekeepers operate in vulnerable communities, and should not be able to exploit their positions of power. In an increasingly dynamic world, where the UN is under pressure to fulfil its mandate, the work of peacekeeping cannot be allowed to be undermined by the actions of a depraved few. In the meantime, innovative alternatives should be sought and enacted, to make as much of a difference as possible – civil society should be prepared to provide leadership if required.

[For further information and analysis, see Jayden van Leeuwen Addressing the Gap: Accountability Mechanisms for Peacekeepers Accused of Sexual Exploitation and Abuse (2019) 50 VUWLR 135.]

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10 Oct 2019

The Multilateral Crisis in Trade:

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Renee Moorjani

The 2018 G20 Buenos Aires summit saw the Director-General of the WTO lament the multilateral crisis, stating that it is the worst crisis “not only for the WTO but for the whole multilateral trading system since the GATT in 1947”.

No doubt, the foundations of trade in the WTO were laid in an economy that no longer exists- the exponential growth of the service industry, e-commerce and the rise of emerging economies pose a fatal threat to the operating modalities of the WTO. Trade tensions are amplified by a lack of periodic performance evaluations, failure of the Doha Round in 2001, pursuit of strategic interests by China and others, aggressive unilateralism by USA and the consequent engagement in trade negotiations outside the auspices of WTO.

Why are these trade tensions of such pertinence to us as the youth of New Zealand?

Large and small countries have stakes in the WTO and benefit from the multilateral trading regime.

This is because most global trade concerns require cooperation between a wide range of trading partners in a globalized economy. Bilateral agreements are less likely to endure pressures from the market; and plurilateral agreements risk fragmenting the global value chain and offer only partial solutions to companies seeking disciplines on trade-distorting policies.

The failure of cooperation between WTO members coupled with the uncertainties that accompany our generation (the biggest one being the Climate Crisis and others including the digitization of production) exacerbate the issues brought about by protectionist measures being adopted by many WTO members. Trade distorting actions such as non-tariff policies, agricultural support policies, tariff escalation that constrain developing countries from moving up the value chain, tax incentives to attract foreign investment and the use of subsidies to support local production are increasingly used to bypass WTO obligations. Digitization of the economy has negative trade spillovers that have implications for all countries. All these, together with the extent of Chinese regional engagement and USA unilateralism call for reform of the trading system at the very least, if not for a completely new course of action.

The way forward in today’s climate is anyone’s guess. Reform of the system would require certain urgent actions. These include cooperation between members first and foremost, fleshing out new methods to address trade that are relevant to this ever-evolving economy and resolving the deadlock in the WTO dispute settlement mechanism, the Appellate Body (AB). For any of this to occur, it is essential that the key players (US, China, Japan and the EU) open a discussion on the future of the WTO, negotiate with the aim to come to an agreement and apply whatever is agreed to on a most-favoured nation (MFN) basis. Members must deliberate whether certain interpretations of WTO provisions carry the intent of WTO membership I.e; is consensus being used the way it was originally intended? Additionally, if there are no re-appointments or agreement with the USA, the AB will cease to function at the end of this year (2019!!). If this dispute resolution mechanism is not saved, or a new one not implemented, trade tensions with the USA can only get more severe.

Unfortunately, there is a sense of fear associated with reform. Many fear that while several discussions have and will continue to take place, for as long as powerful nations hold the stage, they will have strong influence of the agenda during the talks and broader criticisms of the system, and the plight of the developing world will be ignored. Academics state that the talks often result in “old wine in new wineskins”.  Calls for a new trading system, however, are also plagued with questions. Trade liberalization is hailed as a promise for welfare while poverty-stricken nations suffer in the economy. While Critical Mass Agreements (CMA) are proposed as a viable way forward for negotiating important agreements, current international projects focus on the stability of operating environments and meeting legitimate expectations in a system that needs rethinking.

This is understood by the WTO, evident from their first ever youth-centered Public Forum on 8 October in New York which saw Millennials and GenZers provide their perspective on the way forward for the trading system to the Director-General of the WTO. The forum highlighted the failure of traditional trading practices in the current environment where businesses are geared towards inclusivity, highly varying employment patterns, new skillsets not covered by previous agreements and goals that couple profit with purpose. Panelists discussed the need for a trading system that considers the diverse needs of developing and least developing countries, environmental concerns and the continuing imperative of poverty reduction. Millennials expressed that traditional trade favours those with financial muscle and political power which they lack. They challenged the traditional nation-state model and asserted that they thrive in an unregulated economy- unfettered by taxes and capital restrictions.

So, it is upon us to press on and ask the important questions:

– What is the way forward for the WTO? How can the WTO facilitate cross-border service, trade and finance while protecting privacy and preventing reckless, unlawful behaviour?

– Should the WTO create rules for cross-border data flow or should a new system be conceived for a digitized economy?

– What can WTO members do to create a level playing field in a world with developed, developing and emerging economies?

– And most importantly, how can the WTO foster a positive trading environment for Millennials and the generations to come?

Over to you.

Renee Moorjani is a law student at University of Auckland, and Secretary of the NZ Centre for Global Studies.

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9 Oct 2019

Global Studies in a Time of Global Angst

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Welcome to this revamped website of the NZ Centre for Global Studies which has just gone live today.

After five-years of activity in research and policy prescription, the Board sees it now as time to reach out more to the general public with its research findings and individual conclusions and views – not least to the younger generation pursuing their study and commencing their careers.

Most of the content of the original website is retained in the new updated version, but the main innovation is the series of columns on global affairs, commencing today.  Four columns will be maintained, consisting of separate commentary from the Director, and from a member of the Board, a member of the International Advisory Panel, and of the Young Global Scholars Group. There will also be invited commentary from others.

In my introductory column, I first want to pay tribute to colleagues who have served on the Board since its inception.  They are a wonderful group of talented individuals who have devoted individual time beyond their own pressing commitments to collectively put the Centre on the map.  My personal thanks go to them for their professional dedication to the idea of ‘global studies’.

The idea of global studies has been explained in the Special Edition of Victoria University’s Policy Quarterly, back in early 2017 (see elsewhere on this website).

http://www.nzcgs.org.nz/about-us

In short, it studies contemporary issues confronting humankind, not from the traditional lens of mid-20th c. thought reflecting national sovereignty (times 193) but rather from the 21st c. viewpoint of an emerging global community.

This has profound implications for political and legal thought in the future.  ‘Structural’ issues of global citizenship, and global law and governance, and ‘thematic’ issues of global security and global sustainability form the basis of the Centre’s work programme.

At present, the ‘global mood’ is neither cohesive nor constructive.  Humanity cannot decide, does not know, whether it is primarily a single group, with essentially common interests and objectives or, rather, a slew of national groups, based on a complex mosaic of ethnicities and cultures, each competitively pursuing separate national interests that may, or may not, achieve a common end.

We do not know, or refuse to agree, that climate change is a global crisis and that a global emergency should be declared.  The vestige of denialism morphs into rationalisation and prevarication.  The same bipolar syndrome attends to the legality of nuclear weapons.  Meanwhile, some far-thinking academic institutes are studying existential risk management, on behalf of humanity, where governments fear to tread.

The bipolar mind-set is playing out in the various national statements delivered at recent annual sessions of the UN General Assembly, around the notion of a ‘rules-based order’.  The debate has taken a kind of intellectual rivalry between two apparent doctrines: on the one hand ‘patriotism’ articulated by, among others, the United States; and on the other hand, ‘universalism’ articulated by, among others, France and New Zealand.

It is important, for both intellectual and political reasons, not to belittle any statement of belief advanced at the United Nations, and not to engage in personal ad hominem criticisms.  Nothing is achieved, and much is placed in jeopardy in that event.

The underlying, and critically important, challenge is to explore what is meant by these concepts, and by the term ‘rules-based order’, including whether that order reflects 20th c. thought or the 21st.

That is what the Centre is about, and what future columns on this website will be about, in various individual views.

Next week, I shall go into this general subject in more depth, before proceeding to apply the findings to specific thematic issues – in global law and governance, and global security and sustainability.

And so, I expect, will other columnists.

Dr Kennedy Graham is Director of the NZ Centre for Global Studies  

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