Bruce Oswald

Detention by United Nations Peacekeepers: Searching for Definition and Categorisation

A key purpose of this article is to contribute to the development of a United Nations detention policy by examining two issues: (1) the definition of detention; and (2) the categorisation of detainees. This article examines the practice of United Nations peacekeepers taking and handling detainees and in that context develops a definition of detention that focuses on the nexus between the deprivation of an individual’s liberty and their consent in relation to that deprivation. The practice of United Nations peacekeepers suggests that there are at least two categories of detainees – those that are detained because they are suspected criminals, and those detained because they are considered a security threat to the operation.

Privileges and Immunities of United Nations Police

This paper examines the law concerning the privileges and immunities of international police serving in UN peace operations. It describes the legal framework concerning privileges and immunities in UN peace operations and focuses on the key legal privileges and immunities that UN police are granted. More specifically the paper describes the immunity of UN police from criminal and civil jurisdiction of the host State.

The INTERFET Detainee Management Unit in East Timor

‘As far as the question of treatment of detainees is concerned, the conduct of INTERFET has been exemplary. The delegation met with detainees in conditions in which it could be confident that the detainees would have no fear of speaking frankly of any complaints as to their treatment. There were none. ICRC, which has full access, confirmed that it too had received no complaints from any of the detainees. The tone was set by the Force Commander who, especially in the beginning, established the pattern by personally visiting the detention area. The establishment of the detention-management team also acts as a safeguard against abuse.’

Developing a Course on the Law of Peace Operations: Method and Practice--Making Ends Meet.

This paper reflects on my personal experience conceptualising and teaching the law of peace operations course at The Melbourne Law School. More specifically, the paper examines some of the key challenges I have faced in developing the most appropriate conceptual framework and teaching methodologies to assist graduate students to better understand how the normative frameworks can better support diplomatic, political and military efforts to achieve and maintain international peace and security. Recognising that the law of peace operations is a relatively unrecognised area of peace education, I hope some of the issues raised in this paper will assist academics and instructors to develop more effective courses for teaching the myriad of legal issues that impact on ensuring peace operations assist to achieve sustainable peace and security.

Combating the Trafficking of Persons on Peace Operations

This article responds to the growing problem of trafficking of persons for the purposes of economic or sexual exploitation during peace operations. The article recognises the fact that many of the victims of trafficking find themselves exploited in areas where peace operations are conducted, reinforcing the need for peacekeepers to develop practical and effective means and methods for dealing with those responsible for people trafficking, and protecting and assisting their victims. This article seeks to encourage peacekeepers to consider the multidimensional and complex nature of trafficking of persons, and to provide a framework through which they can vigorously oppose the trafficking of persons in their area of operation, in cooperation with appropriate agencies and organisations.

Sexual Exploitation and Abuse in UN Peace Operations: Challenges and Developments

Since 2003, the UN has sought to develop responses to combat sexual exploitation and abuse by UN personnel serving on peace operations. Almost 15 years later, the UN is still facing challenges in dealing effectively with allegations of sexual exploitation and abuse committed by peacekeepers. With the adoption of Security Council Resolution 2272 (2016) on 11 March 2016; the UN Secretary-General’s reports of 16 February and 23 June 2016; and General Assembly Resolution A/RES/70/286 in 2016; the UN appears to have stepped up its efforts to combat sexual exploitation and abuse by peacekeepers. The first part of this paper seeks to outline the development of the UN’s strategy to deal with sexual exploitation and abuse by peacekeepers. The second part identifies the key issues that underlie the UN’s strategy. The third part reflects on three components of that strategy: the zero tolerance policy for sexual exploitation and abuse by peacekeepers, the accountability of UN peacekeepers where allegations of sexual exploitation and abuse have been substantiated, and reparations for victims of sexual exploitation and abuse by UN peacekeepers.

The Copenhagen Process: Principles and Guidelines on the Handling of Detainees in International Military Operations

The Copenhagen Process Principles and Guidelines on the Handling of Detainees in International Military Operations are intended to contribute both to the humane treatment of detainees and the effectiveness of military operations. This article seeks to stimulate discussion concerning the Principles and Guidelines. It also provides the international community with a better understanding of a very successful process for developing normative standards or soft law. Finally, it explains some of the main issues dealt with during the Process, and some of the key aspects of the provisions contained in the Principles and Guidelines.

The Copenhagen Principles, International Military Operations and Detentions

The primary purpose of this article is to introduce the Copenhagen Process Principles and Guidelines so as to better understand how they relate to detentions in military operations. The Copenhagen Principles and Guidelines were “welcomed” by a number of states in October 2012 and concern the taking and handling of detainees in non-international armed conflicts and peace operations.

Some controversies of detention in multinational operations and the contributions of the Copenhagen Principles

This paper discusses three main areas of controversy relating to detention in the context of multinational operations: the relationship between international humanitarian law and human rights law; the principle of legality in the context of relying on United Nations Security Council resolutions as a justification for taking detainees; and the transfer of detainees where there is, for example, a substantial risk of torture or cruel, inhuman or degrading treatment or punishment. The paper then considers how the Copenhagen Principles address these issues.

Informal Justice and United Nations Peace Operations

This paper seeks to address how UN military members undertaking UN peacekeeping operations should engage with customary or informal justice systems that they encounter. The relevant guidance that exists suggests that, as a policy matter, informal justice systems should not be allowed to deal with matters of serious crime because of the danger they may violate basic rights, and because dealing with serious crime is a key prerogative of the state. However, there is a growing movement away from adopting a unitary, state-centric rule of law orthodoxy approach, towards viewing the rule of law from the perspective of legal pluralism. Using that perspective, and in acknowledging that military members of UN peace operations are highly likely to be confronted by informal justice systems during peace operations, this paper maps three principles that UN military members should apply when dealing with informal justice systems in the context of UN peace operations: giving due regard to applicable informal justice systems, maintaining oversight of the application of informal justice norms and practices, and avoiding corrupting informal justice systems.