Current peace operations are often based on a mandate by the Security Council decided under chapter VII of the UN Charter. These operations, where force is authorized to carry out defined tasks, are often commanded by the UN, NATO, EU or another international governmental organisation and a large number of states contribute with military forces. The authority to use force emanates from the UN Charter while limitations on the use of force largely derive from human rights law and international humanitarian law. The relation between the different actors (e.g. the UN, NATO, troop contributing states and the host state) complicates the question of responsibility under international law for the use of force. The military troops, contributed by states, carry out acts decided by the organisation leading the operation. The troop contributing states generally put their troops at the disposal of an international organisation. These organisations are, however, not parties to central human rights law or international humanitarian law treaties. The discrepancies between the international law obligations of states and international organisations lead to a complex situation in relation to the application of these legal frameworks. The purpose of the research project is to analyse the authority to use force in peace operations, the norms limiting such force and the responsibility under international law for any violation of these norms in relation to the different actors involved. The purpose of the project has not changed during the research.

Results

Of the three most important results the first relates to the term "effective control" as a criterion to determine to which subject of international law a certain conduct is attributed. There is not a requirement of exclusive control since the states do not transfer full control over their troops but only the operational control. The states retain for example exclusive criminal jurisdiction over their forces and responsibility for administrative matters. The employment of the criterion effective control means that the organisation exercising operational command or control over the operation as such, is generally responsible for the conduct of the military personnel. This should, however, be interpreted as merely a presumption that conduct is attributed to the organisation. This presumption can be rebutted if the troop contributing state in specific situation had a decisive influence over the conduct. While this solution is based on rather extensive practice it has also been perceived as an unsatisfactory outcome as international organisations generally are bound only by customary law norms and are not parties to relevant international treaties. There is also a lack of effective legal institutions to hold organisations accountable. In this respect the question of shared responsibility between states and international organisations is subject of international research in many fields. Some practice support a legal development towards an enhanced responsibility of troop contributing states.

A second result relates to the specific characteristics of peace operations which no doubt complicate legal analysis in relation to applicable law and responsibility of states and organisations. Although peace operations lack a common definition they are generally structured in a similar way. Peace operation as such is not a subject of international law nor can it be regarded as sui generis in relation to international law. Rather it is a specific structure where the relation between the international organisations and states need to be carefully analyzed. The sui generis character of peace operations has been most prominently argued in relation to international humanitarian law where, for example, it has been held that the character of an armed conflict shall be judged differently only because military members of a peace operation become involved in the conflict. The sui generis arguments are not supported within the research project.

As a third, overarching, result the research has identified three factors to which the complexity of legal analysis of peace operations may largely be connected: 1) the operational control over the military troops is transferred from the troop contributing state to an international organisation through a Transfer of Authority -process. This process largely have the effect that it is no longer the contributing state that acts through its personnel but rather the organisation to which disposal the state organ has been placed; 2) the peace operation troops are never used on their national territory and are therefore always present in a extraterritorial context. This context has repercussions on primarily the application of human rights law; 3) the mandate of the Security Council has the potential to limit the responsibilities of states and international organisations under other legal frameworks than the UN Charter. In case there is a clear conflict of obligations stemming from a Security Council resolutions and obligations under other rules of international law (not of a jus cogens character) the former will prevail. Most questions in the research project could be tied to one of these three problem areas.

It should be noted that the research area is not static and practice from both national and international courts is expected to contribute to the legal development in this area. An interesting development is also the work of the EU to become a party to the European Convention of Human Rights.

During the research new questions have been identified. The most apparent is the role if national law which is more important than was initially perceived. Identifying the role of national law, and how international law is incorporated into the national legal systems, provides a new perspective on the research. Examining, for example, what troop contributing states considers to be a criminal behavior in a peace operation provides guidance on the rules these states consider to be applicable to their forces when participating in such operations. A limited research reveals that a number of states lack specific legislation regulating the use of force by their military personnel when participating in a peace operation.

The research project is by its nature internationally anchored. A large research project on shared responsibility administrated by Amsterdam University has together with the Swedish National Defence College so far held two expert seminars on questions of responsibility in multinational operations. These have been held in Stockholm and in Amsterdam. During the autumn of 2010, results of the project were presented at the International Society of Military Science (ISMS) conference in Stockholm. Results was also presented in Oslo at a seminar on The Interplay between Human Rights Law, International Humanitarian Law and International Criminal Law (1-2 mars 2011), and at a conference on international organisations and responsibility for human rights in peace operations arranged by the International Committee of the Red Cross and College of Europe (20-21 October 2011). Results of the project have also been presented at a conference in Lund on the topic of Swedish peacekeeping operations (19-20 May 2011) and at a conference on a similar topic at Armémuseum (5 October 2011).

In 2010 I was appointed as an expert in the Governmental Inquiry on the use of force in multinational military operations (Våld och tvång under internationella militära insatser) SOU 2011:76. The project has moreover contributed to the development of a new course on international law at the National Defence College. The course on International law and peace operations (Folkrätten och fredsfrämjande insatser) is a course of 15 hp on B-level and was given for the first time in the spring of 2013.

The project has produced three publications. The two most important are Multinational Peace Operations Forces Involved in Armed Conflict: Who are the Parties? in 60 Years of Humanity: The Status of the Principle of Humanity in International Humanitarian Law, eds., Gro Nystuen, Kjetil Mujezinovi? Larsen & Camilla Guldahl (2012) Cambridge University Press, and Fredsfrämjande insatser i svensk rätt, in Folkrätten i svensk rätt, eds., Inger Österdahl and Rebecca Stern, Liber Förlag. The first publication analyses the importance of control over military forces in a multinational operations from an international humanitarian perspective but also from a broader perspective of responsibility under international law. The relation to international humanitarian law has been subject to interesting debate and provides some answers to the question whether the troop contributing states could be regarded to be at war when the troops that have been put at the disposal of an international organisation participate in an armed conflict. The other publication focus on the role of national law and the relation between national law and international law obligations of states to international law after the authority of the troop has been transferred to an international organisation. The article also notes that Sweden lacks legislation authorizing the military personnel to use force in peace operations.
The results of the project as a whole will be presented in a monograph which is yet to be finalized. A reasonable estimate is to present a manuscript by the end of this year (2013). Contacts with international publishing companies will be taken during the autumn.

Publications

•    Multinational Peace Operations Forces Involved in Armed Conflict: Who are the Parties? i 60 Years of Humanity: The Status of the Principle of Humanity in International Humanitarian Law, eds., Gro Nystuen, Kjetil Mujezinović Larsen & Camilla Guldahl (2012) Cambridge University Press, pp. 233-271.

•    Fredsfrämjande insatser i svensk rätt, i Folkrätten i svensk rätt, redaktörer Inger Österdahl och Rebecca Stern, (2012) Liber Förlag ss. 98-120
•    Attribution of Conduct in Peace Operations (2010) 26 sidor, Rapport till Försvarsdepartementet. Presenterades vid ISMS-konferensen i Stockholm 2010.

•    Presentation vid Bruges Colloquium 20-21 oktober 2011, anordnat av det Internationella Kommittén för det Röda korset och College of Europe, publicerad i Proceedings of the Bruges Colloquium, No. 42 Autumn 2012, International organisation’s Involvement in Peace Operations: Applicable Legal Framework and the Issue of Responsibility ss. 66-72.