Monograph 121: Who Guards the Guards? The International Criminal Court and Serious Crimes Committed by Peacekeepers in Africa, Max

Increasingly, the abuse of civilians at the hands of peacekeepers on the African continent has been recognised as a problem by the international community.  The authors begin by examining the nature and extent of the problem, which is situated in its historical context.  The considerable difficulties that arise in prosecuting crimes committed by peacekeepers are discussed in general terms, following which the authors focus on whether or not international criminal law and the newly established International Criminal Court (ICC) may have a role to play in this area.  The authors trace the rise of the ICC and discuss the different crimes in its jurisdiction.  Thereafter they seek to establish the extent to which the ICC may be expected to play a practical role in the prosecution of peacekeepers in Africa for serious crimes committed while involved in peacekeeping operations. 

The authors are driven to the conclusion that, in all probability, the role of the ICC will be limited due to the following principal factors: first, the types of crimes over which the ICC exercises jurisdiction are strictly defined.  Secondly, the jurisdiction of the court is limited by the principle of `complementarity`.  Each of these factors is discussed in detail, this followed by an examination of the particular problems related to peace-keepers from the United States of America.  The authors conclude with a discussion of further responses to crimes by peacekeepers, which do not involve prosecution in terms of national or international law.  The overall conclusion is that the role of the ICC in relation to crimes committed by peacekeepers in Africa will be limited.  Although there may be exceptions, serious crimes committed by United Nations (UN) peacekeepers in Africa are isolated, and the perpetrators do not possess the necessary intent to enable such crimes to be classified as genocide or as crimes against humanity.  It is more likely that serious crimes committed by peacekeepers may amount to war crimes, although it is clear that the ICC is more concerned with war crimes committed on a wide scale, rather than with isolated incidents. 

Furthermore, even if certain crimes committed by UN peacekeepers may be said to fall within the categories of genocide, crimes against humanity or war crimes, the principle of complementarity ensures that most such crimes are investigated and prosecuted by the state of the offending peacekeeper.  The authors expect that prosecutions of peacekeepers in Africa will, in the main, continue to be conducted by the national state of the peacekeeper concerned, but conclude that this is not necessarily a bad thing, since: "The ICC will be effective when its very existence operates to encourage domestic institutions to comply with their responsibilities under international humanitarian law to investigate and prosecute all those guilty of international crimes, including peacekeepers."