16 Children’s Legal Rights Journal [Vol. 38: 1 2018]
blue helmets, since the effectiveness of States’ efforts to prosecute them is
questioned by many scholars. 70
Yet it should be recognized that international peacekeepers with a variety of military and non-military roles, whether, for instance, UN specially recruited mission-specific experts or officials,
troops, police and civilians integrated into a military contingent of a troop sending State, are still
bound by law. 71 The question then, as Di Martino points out, is not one of immunity per se, but
rather of determining the proper procedure and legal forum in which to address criminal or civil
liability for one or more of the following: ( i) crimes set out under the host country’s domestic laws;
(ii) crimes under the sending State domestic law (that may or may not be crimes in the host country
where troops were deployed) committed extra-territorially while on mission; 72 iii) international
crimes (as defined under the Rome Statute); and d) other international treaty crimes.
More generally, the duty to abide by domestic and international rules –in
particular, rules of international law of human rights and international
humanitarian law– remains untouched by immunity: being immune does not
mean being legibus solutus73 from a substantive point of view.
In other words, once… it is clear that the act of which the defendant is accused
would indeed amount to an offense (be it under the Statute of the International
Criminal Court [ICC], customary international criminal law, the law of the
territorial State or that of the sending State), any question as to the
jurisdictional competence is a (merely) procedural one. 74
It is important to understand that immunity does not imply impunity for military
or civilian members of the forces of a sending state or international
organisation. Neither can immunity limit the accountability of that state or
international organisation. Rather, it bars the host state from taking direct action
against the members of a visiting force, whereas the sending state and/or the
international organisation is accountable. Individual perpetrators are to be
prosecuted by the sending state… (emphasis added). 75
70 Alberto di Martino, Crimes Committed by Peacekeepers: Immunity v. Principles of Criminal Jurisdiction: A Brief
Outline, in CHINA AND ITALY’S PARTICIPATION IN PEACEKEEPING OPERATIONS: EXISTING MODELS, EMERGING
CHALLENGES, 333, 333-34 (Andrea de Guttry et al. eds., 2014). Also available at
71 Alberto di Martino, supra note 69 (explaining that crimes such as SEA are not part of what can be covered by
immunity as such conduct is not encompassed by official duties).
72 Alberto di Martino, supra note 69 (stating that, for civilians from the troop contributing country who are integrated
with the sending State’s troops, SEA of children while in the host State may be prosecutable in the courts of the troop
sending State only if that State’s laws allow for SEA crimes under its domestic laws to be prosecuted also if the crimes
were perpetrated extraterritorially).
73 Aaron X. Fellment & Maurice Horwitz, Guide to Latin in International Law 164, Oxford Univ. Press (2009) (refers
to “being released from the laws”).
74 Alberto di Martino, supra note 69, at 336.
75 Dieter Fleck, supra note 39, at 616.