U ntil n o t so long ago the accountability o f the United N ations (UN) for violations o f hum an rights w ould have probably been labelled as an “academic question”, w here the w o rd “academic” has the rather disparaging meaning o f ‘scholarly to the point o f being unaware o f the outside w orld’.1 Nowadays, however, it is evident that international institutions, and the UN in particular, have developed the functional capacity to have a direct impact on individuals. Indeed, there are various situations in w hich states have relinquished functions and responsibilities, and even effective power an d control over a territory, to UN bodies and agencies. In examining the U N ’s obligations in the sphere o f human rights and its accountability for their violation, this thesis focuses on the provision o f humanitarian assistance, and on the assumption o f administrative control by the UN over a territory and a population both de jure (for instance, in the international administrations in Bosnia and in Kosovo) and de facto (as is the case in refugee camps).
T h e topic for this thesis was conceived in the course o f research on refugee rights w hich I conducted in E ast Africa in 1997, while employed as a research officer at the Refugee Studies Programm e, University o f O xford. A disquieting finding o f this research was th at some o f the m ost glaring abuses o f the rights o f refugees were in practice the result o f actions, omissions and policies o f humanitarian agencies, and
especially o f the Office o f the United N ations High Commissioner for Refugees (UNHCR). D uring one o f my first visits to a refugee camp, in Kenya in 1997,1 found evidence o f the imposition o f collective punishm ent on the entire population o f the cam p on two separate occasions. Refugees, w hose survival depended almost entirely o n food aid, were subjected to the punitive suspension o f food distribution after protest had taken place in the camp against som e U N H C R policies and practices. It soon became clear that, in part through the establishment - alongside other parallel institutional arrangements - o f an extra-judicial and administrative system separate from that o f the state, U N H CR exercised effective control in this and other refugee camps.2
1 Oxford English Dictionary (2nd ed.).
2 In the course o f subsequent fieldwork in Kenya, Tanzania, Uganda, Sierra Leone and Liberia, I could verify that what had happened in Kakuma was not an isolated incident and that human rights violations in refugee camps are endemic.
T h e example o f collective punishm ent in refugee camps illustrates one o f the main propositions in this thesis, i.e. that the UN has developed the capacity to have a direct im pact on individuals and to violate their fundamental rights in the course o f its operations. T he other side o f my argument is that, despite the applicability o f human rights obligations to the UN, the international legal framework regulating UN operations and U N accountability is inadequate failing to take into account the wide powers th at are in practice exercised by the U N in these circumstances.
O n e difficulty w ith defining the topic for this thesis was that UN operations have grown in quantity and quality to such an extent as to make a cohesive all- encom passing approach to their study almost impossible. Factual and legal differences between different U N operations and interventions are significant. There are at least five categories o f operations in which hum an rights violations can occur, or have indeed been reported to occur:
(a) The activities o f international financial institutions. The W orld Bank and the International M onetary Fund have been accused o f imposing projects and policies that violate hum an rights o r that are detrimental to the environment. T he im pact o f these organisations on individuals, albeit considerable, is, however, usually mediated rather than direct; it is normally the consequence o f the political pressure they exercise on the state, often in conjunction with bilateral donors.
(b) Security Council action. The Security Council has been accused o f violating human rights, and humanitarian law, mainly as a result o f the use o f its Chapter V II powers. Examples include sanctions (Iraq), the implementation o f a military enforcem ent action (Iraq), the imposition o f an arms embargo that prevents people facing genocide from defending themselves (Bosnia), and the failure to intervene to prevent a genocide (Rwanda or Cambodia). The acts and omissions in question are imputable to the Security Council w hose members would bear ultimate political (and, if applicable, legal) responsibility.
(c) Peacekeeping operations. This category overlaps to some extent with (b). Peacekeeping operations vary significantly in terms o f mandate, size, and com m and
structure. As a result, the risk, o r actual occurrence o f violations o f humanitarian law and hum an rights can change remarkably from one operation to the other.
(d) H umanitarian assistance. The provision o f emergency humanitarian assistance has becom e one o f the main areas o f multilateral action. Within the UN, at least four o f the main agencies are primarily or significantly devoted to it — UNHCR, the UN D evelopm ent Program m e (UNDP), the UN Children’s Fund (UNICEF) and the W orld Food Programm e (WFP). In many an emergency, UN agencies are the primary providers o f essential services, such as water, food, sanitation, health, and education. T he pow er they exercise in these circumstances is enormous, as is their direct impact on the lives o f the millions o f people w ho depend on this assistance.
(e) Administration o f territory. International administration o f territory has attained prom inence in the media in recent years as a result o f the establishment o f UN administrations in Bosnia, Cambodia, Kosovo and E ast Timor. International administrations are not, however, an entirely new phenom enon, and are presumably going to be increasingly resorted to in the future as a means o f post-conflict intervention. In other situations, UN agencies assume administrative powers in a de
facto manner. With millions o f refugees living in them the world over, UNHCR-
administered refugee camps are the main example o f de facto administration, and one o f the best kept “secrets” o f international governance.
In this thesis, I focus on the last two categories o f operations - the provision o f emergency humanitarian assistance, and the administration o f territory by the U N - mainly because o f the marginal attention that these operations have so far received from legal scholars. Humanitarian assistance has been examined from various viewpoints, b ut so far the contribution o f lawyers has for the m ost part dealt with questions such as the existence o f a right to humanitarian assistance, whilst the question o f compliance with human rights law by the international institutions providing this assistance - or indeed by non-governmental organisations (NGOs) - has been neglected. There is also a gap between the social sciences literature in this area, which has drawn attention to the socio-economic im pact o f international actors, and the legal literature, which has remained for the m ost part oblivious to these denunciations. As far as the administration o f territory is concerned, only a few
authors have dealt with de jure administrations, while the de facto exercise o f governmental authority has been almost entirely ignored. This thesis also contains num erous references to peacekeeping operations, which bear im portant similarities w ith the operations I am examining. I did n o t devote a separate chapter to peacekeeping, however, because it has already been the object o f extensive scholarly work. M oreover, the pervasive role o f troops-contributing states in the conduct o f
peacekeeping operations distinguishes them from humanitarian operations and from the administration o f territory.
There are also im portant inherent differences between the categories o f operations on w hich I have chosen to concentrate, and the other categories — the activities o f international financial institutions and Security Council action. Firstly, it is in the provision o f humanitarian assistance and in the administration o f territory that the direct im pact upon individuals o f the institutional activities o f the UN is m ost evident. Secondly, violations o f human rights in the course o f these operations are normally the direct result o f actions and decisions o f UN personnel, rather than o f decisions o f representatives o f states (as is the case with the Security Council). They are an expression, albeit a pathological one, o f the bureaucracy o f the Organisation. Finally, the institutions in category (a) — the W orld Bank and the IM F — are specialised agencies o f the UN, and have a different legal status.
This thesis first examines the origins o f the international legal regime th at regulates international institutions and humanitarian multilateralism (Chapter I). A genealogical analysis o f norm s is fruitful as part o f a critical approach to the concrete functioning o f a legal regime. Some o f the basic norms regulating international institutions were crystallised at a time w hen international institutions w ere facing an upward struggle for self-affirmation in an entirely state-centric world. Humanitarian struggles have often been conducted unilaterally, and the process o f canvassing support and organising a multilateral effort has been fraught with difficulties, as the history o f the centennial campaign to end the slave trade demonstrates.
Chapter II examines one o f the key legal issues, the applicability o f international human rights law to the UN (with some references to humanitarian law). T he rules on international institutional responsibility are also dealt with in this chapter. Although
the examples are for the m ost part drawn from the operations examined in Chapter III and IV, the legal arguments developed in this chapter are susceptible o f application to other international institutions and to the full spectrum o f institutional activities.
Chapter III looks into the provision o f humanitarian assistance by the UN. I t discusses the general international legal framework applicable to the provision o f such assistance, and examines a case-study — the provision o f multilateral assistance in Afghanistan — th at illustrates some o f the legal difficulties and dilemmas in this type o f operation. It is submitted that the provision o f humanitarian assistance by the U N in Afghanistan in 1996-2000 violated the principle o f non-discrimination.
C hapter IV examines the assumption o f administrative powers by the UN. I t discusses the practice o f the UN in de jure administrations, with a brief reference to the experience o f the League o f Nations. The Chapter then analyses the exercise o f de facto
governmental authority by U N H CR in refugee camps, using refugee camps in Kenya as the main case-study.
Finally, C hapter V discusses existing mechanisms for accountability. Their effectiveness is assessed both in the light o f existing practice and on the basis o f their hypothetical application to some o f the situations examined in the previous Chapters. In discussing th e effectiveness o f existing mechanisms, some proposals for change and im provem ent are p ut forward. Most, b ut n o t all, o f these suggestions are made n o t so much from a law-as-it-should-be (lexferenda o r droit desiderable) perspective, bu t rather as a way o f reviving ‘juristic conceptions’, as well as existing legal principles and categories to make sure that they can effectively address the realities o f these situations rather than ‘obscure them ’.3 In the conclusion, I outline some o f the challenges that lie ahead.
3 Lighthouses of Crete and Samos (France v. Greece), Judgment, (1937) PCIJ Series A /B , No. 71 at 127 (diss. op. o f Judge Hudson).