Author: Bruce Oswald

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.

In: International Organizations Law Review
Editors: Gregory Rose and Bruce Oswald
Detention of Non-State Actors engaged in Hostilities: The Future Law explores legal dilemmas facing detention management during military missions overseas. Armed forces increasingly find themselves facing non-international armed conflict with non-state actors, such as insurgents, terrorists or other civilians, whom they might be permitted to kill or capture in some circumstances.

The book considers the legal powers of military forces to apprehend non-State actors and to hold them in ongoing detention or to transfer them to judicial authorities for prosecution. It deals with both theoretical approaches and practical case studies concerning management and treatment of detainees. It concludes by synthesizing the options and delivering a detailed set of guidelines that are proposed as emerging norms for the detention of non-state actors in an armed conflict.

From August 1994 until February 1995 I served as an Australian Defence Force legal officer with the Australian Medical Support Force which was a component of the United Nations Assistance Mission for Rwanda. During this deployment three duties I engaged with still stand out for me 25 years later: investigating the mass grave site at Ntarama, the use of force to defend the mandate and individual self-defence, and detention. This paper, in large part, engages with my reflections of these issues in the context of my military law practice, and academic research and writing. I conclude by making six observations from my experiences in Rwanda.

In: Journal of International Peacekeeping

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.

In: Journal of International Peacekeeping

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.

In: Journal of International Peacekeeping

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.

In: Journal of International Peacekeeping
In: Detention of Non-State Actors Engaged in Hostilities
In: Detention of Non-State Actors Engaged in Hostilities
In: Detention of Non-State Actors Engaged in Hostilities