UN PEACE OPERATIONS AND INTERNATIONAL LAW. EVOLUTION THROUGH CONTINUITY

By Eleonora branca

INTRODUCTION:

Peace operations are the “invention of the United Nations” [1], they have developed by way of practice, in the absence of any UN Charter provision, to overcome the inaction of the Security Council to maintain international peace and security during the Cold War. UN Peace operations consist in a very complex and varied set of activities that range from peace-making to robust peacekeeping, to peace building. Notwithstanding the differences among these types of missions, some fundamental principles have been identified along the development of their practice.            

The core tenets regulating UN peace operations are generally identified in the triad composed of the following elements: 1) the consent of the host State, 2) impartiality and 3) limited use of force. It must be noted that these principles stem primarily from UN practice and UN doctrine, but they are now recognised by all international organisations. International law scholars also agree on the relevance of these three characteristics.[2] The first theorisation of the triad dates back to the 1958 Hammarskjold report on United Nations Emergency Force (UNEF).[3] Subsequently, from 1958 on these three principles have been constantly and consistently recalled in all UN documents on peace operations. Thus, these key elements have progressively emerged from peace operations’ practice over the last 60 years and are now crystallized in the major pieces of UN documents and military doctrines as well.

The article discusses the core elements of peace operations, namely consent of the main parties to the peace process, impartiality and the limited use of force to demonstrate that UN peace operations have evolved around landmark events, even though this evolution is characterized by relevant aspects of continuity.

 

THE CONSENT OF THE MAIN PARTIES:

‘Consent’ is generally referred to as the first key element of UN peace operations. Its centrality can be understood in light of the core principles regulating international relations and international law, mainly the sovereign equality of States and the prohibition to interfere or intervene in domestic affairs, as enshrined in article 2 paragraph 7 of the UN Charter.[4] Also the law of State responsibility for internationally wrongful acts has a bearing on the notion of consent, that is considered a circumstance precluding wrongfulness in the purview of art. 20 of the International Law Commission Draft Articles on the Responsibility of States for Internationally Wrongful Acts.[5] This reminds us that the valid consent of the State confers not only legitimacy but also legality to the conducts that may otherwise amount to internationally wrongful acts.[6] It thus comes with little surprise that consent is seen as the cornerstone of the delicate equilibrium of UN peace operations. While it might seem obvious that consent to deploy a UN mission must be derived from legitimate governments in the aftermath of an inter-state conflict, the issue is less clear in civil wars, intra-state struggles between armed groups, and failed States.

In a first phase, when peace operations were deployed mainly as interposition forces to enforce a ceasefire between two States, the legitimate actor to express consent was generally identified in the State’s government on whose territory the operation was to be deployed. This was the case, for example, of the United Nations Emergency Force (UNEF), established following the consent of Egypt and Israel.

In the post-cold war era, the parties to the conflict are no longer (former belligerent) States, but more likely a State and local armed groups, different militias guided by warlords in the absence of a legitimate government, a State and its neighbouring countries financing paramilitary groups to fuel the intra-state conflict. In this changed geo-political scenario, it was not always easy for the UN to identify whose consent was to be sought for a mission’s deployment. In some cases, on a non-consistent basis, the UN has sought the consent of the ‘main parties’ intended as representatives of groups, former combatant now willing to participate in the peace process, as in the case of United Nations Operation in Somalia (UNOSOM I) in 1992. In other situations, instead, the UN has preferred to achieve the consent of neighbouring countries to a broad peace framework, rather than to involve the warring factions present in the territory, as in the case of the 1999 Lusaka ceasefire signed prior to the establishment of MONUC in the Democratic Republic of the Congo. The attempt at obtaining the consent of numerous warring parties in an intra-state conflict has exposed the UN to a risk of manipulation from these actors that aimed at binding the mandate for their own interest, as shown for example by certain negotiations of the mandate of the United Nations Interim Force in Lebanon (UNIFIL).[7]  

Eventually, we should bear in mind that under the UN doctrine the principle of consent does not imply cooperation - also referred to as ‘tactical consent’- of local actors. Cooperation may, however, significantly affect the success of an operation as well as influence the level of force required. When cooperation from local actors is lacking and some actors behave as spoilers, affecting the implementation of the mandate, the peace operation generally increases the level of force through a robust mandate.

In order to reconcile this fragmented practice, the UN Capstone Doctrine has utilized the concept of ‘consent of the main parties to the conflict’[8]. Therefore, we can conclude that, given the terrific changes undergone in the nature modern conflicts, where UN peace operations have been deployed since the 1990s’, the broader the consent will be, the better for the mission’s success. Nevertheless, we should not forget that under international law the host State’s consent rests the sole key element that divides peace operations from enforcement. Only when the State’s consent is completely absent the operation is (or becomes) an enforcement operation.

 

FROM NEUTRALITY TO IMPARTIALITY:

Initially, the concept of ‘neutrality’ constituted the second core element of UN peace operations, where it was understood as ‘non-interference’ in domestic issues to be achieved by restricting the participation of troops whose involvement would compromise the mission’s objectivity. That is to say that the military forces deployed did not have to include neither units from any of the permanent Members of the UN Security Council, nor of States that might have a special interest in the situation.[9] This principle resulted in the significant participation to UN peace operations of neutral States that appeared to be ideal for this purpose.

In turn, the concept of neutrality was abandoned as the notion of ‘impartiality’ emerged in clear juxtaposition. In the first place, this change was driven by the dramatic shift in the geopolitical scenarios, namely from inter-states to intra-state conflicts and of the related emergence of non-state actors, that later led to the creation of the ‘spoilers’ category. Accordingly, peace operations were no longer required to act as neutral buffer entities to watch over the respect of ceasefires. In this changed setting, UN peace operations have been called upon to take active roles in fostering the fulfilment of the peace process between the parties, and sometimes against some parties considered spoilers of the peaceful settlement.

Moreover, the elaboration of the concept of impartiality has been the result of the shortcomings of peace operations in the 1990s. In particular, the failure to protect civilians in Somalia, in Rwanda and in Bosnia Herzegovina have shown structural problems, where peacekeepers have been accused to have acted as bystanders to atrocities perpetrated against the civilian population. In response to these accusations, the UN have developed more proactive policies, including wider mandates to protect civilians and a more robust use of force. Beginning with the Brahimi Report in 2000, the UN doctrine has expressly differentiated impartiality from neutrality in the following terms: “impartiality is not the same as neutrality or equal treatment of all parties in all cases for all time”.[10] The Capstone Doctrine has further elaborated on the concept of impartiality, clarifying that “United Nations Peacekeeping should be impartial in their dealings with the parties to the conflict, but not neutral in the execution of their mandate”.[11] In conclusion, peacekeepers must act as ‘good referees’, that is to say, super partes but strict in sanctioning infractions by actors that violate the peace process engagements.

Lately, in the opinion of some commentators, the principle of impartiality has been stretched to a risky breaking point when, in March 2013, the Security Council acting under chapter VII of the UN Charter created the ‘Intervention Brigade’ (IB) to be deployed as part of the Mission de l’organisation des Nations Unies pour la Stabilisation en République Démocratique du Congo (MONUSCO).[12] The IB cannot be defined as an impartial force, for its mandate prescribe to “carry out targeted offensive operation [...] to prevent the expansion of all armed groups, neutralize these groups, and to disarm them”.[13]  As a consequence, the IB is considered party to the conflict and it is expressly bound by international humanitarian law in the letter of the UN mandate.[14]

 

THE LIMITED USE OF FORCE:

Not differently from the principle of impartiality, the tenet of the ‘limited use of force’ in UN peace operations has undergone significant changes, starting from a very limited understanding of the use of force only in self-defence, that characterized the first interposition missions, to include nowadays very robust mandates that require peacekeepers to proactively resort to force to target spoilers of the peace process and to protect civilians under imminent threat of physical violence.

Initially, peacekeepers were authorised to resort to force exclusively in self-defence and were never allowed to take the initiative in the use of armed force. This was particularly evident in the 60s’ during the UNEF mission, the sole peace operations established by the UN General Assembly.

Some 30 years later, the failure to protect civilians during UN missions in Somalia, in Rwanda and in Bosnia Herzegovina, combined with the shift towards internal armed conflicts and the related emergence of spoilers, showed the main shortcomings of the UN approach to the use of force. As a consequence, the Brahimi Report in 2000 called for the development of a robust doctrine and realistic mandates, where “must be capable of defending themselves, other mission components and the mission’s mandate”[15]. This new trend towards a more extensive use of force in peace operations has led to the elaboration of the new formula: ‘non-use of force except in defence of the mandate’.

This evolution has brought about two main changes: first, in UN peace operations the use of force is no longer limited to self-defence, but also extends to the defence of the mandate, meaning security and freedom of movement of personnel and the protection to civilians under imminent threat of physical violence; second, as a direct consequence, UN peace operations are now often defined ‘robust’ or ‘militarised’.

This evolution of the principle of the limited use of force in UN peace operations has generated two main criticisms. On the one side, the new concept of ‘use of force in defence of the mandate’ has allowed the UN to deploy ‘offensive components’ in a peace operation, with the mandate of resorting to pre-emptive and pro-active use of force against targeted elements, generally considered spoilers. This was the case of ‘Operation Thunderbolt’ during UNAMSIL in Sierra Leone, and it is still the case of the MONUSCO Intervention Brigade. While pursuing the mission’s effectiveness, these types of ‘enforcement components’ risk to seriously undermining the very nature of UN peace operations, that are not meant to act as military inventions.

 On the other side, the use of force in modern peace operations is pervaded by what can be defined the ‘rhetoric of the protection of civilians’. The UN have issued far-reaching Chapter VII mandates to respond to its failures to protect civilians from mass atrocities. However, States are extremely reluctant to allow their contingents to resort to the use of force in defence of the mandate in peace operations. Generally, troop contributing countries are not willing to face the risk of escalation during an operation that the proactive use of force may cause, even when civilians are at risk.[16] This constant tension between the mandate’s expectations and the reality on the field tend to increase the well-known gap between what peacekeepers are asked to do and what they are actually able to deliver.

 

CONCLUDING REMARKS:

The study has illustrated that evolution is a key element to consider when analysing UN peace operations, which have shown to be a dynamic instrument of crisis management. The concept of ‘consent’, ‘impartiality’ and ‘limited use of force’ have been used as fixed terms while the very meaning of these principles has significantly evolved over time. The change in the core features of peace operations has unfolded around landmark events, namely the post-Cold War shift towards intra-state conflicts but also the main UN failures to protect civilians from mass atrocities during UNISOM in Somalia, UNAMIR in Rwanda and UNPROFOR in the Balkans.

The principle of consent does not concern anymore the sole host State of the missions but is potentially extended to the ‘main parties’ to the peace process, as a result of the proliferation of the actors involved in intra-State conflicts. The term neutrality has been abandoned to endorse the more elaborated notion of impartiality, where peacekeepers shall not be perceived anymore as bystanders but rather as actors able to protect civilians under imminent threat of physical violence. The non-use of force except in self-defence – understood as an inherent right of peacekeepers – has been superseded by the need to resort to force in order to face more complex and volatile scenarios.

Despite these non-insignificant transformations, the UN tend to employ the same ‘labels’ to indicate the core principles, in order to grant a sense of continuity in the evolution of peace operations.

It should be noted, however, that the extensive interpretation of the tenet of ‘impartiality’ and of the ‘use of force in defence of the mandate’, demonstrated for example by the deployment of the MONUSCO Intervention Brigade, may signal a new trend in the evolution of UN peace operations that is no longer characterised by continuity but rather by a tendency to blur the line dividing enforcement actions from peace operations. Therefore, this recent practice shall not be overlooked in order to identify the direction in which UN peace operations will evolve in the future.

 

[1]     An Agenda for Peace. Preventive Diplomacy, Peacemaking and Peace-keeping, A/47/277 – S/24111, 17 June 1992, para. 46.

[2]     Ex pluribus, Cassese (ed.), United Nations Peace-keeping. Legal Essays, Sijthoff and Noordhoff, 1997; Bothe, “Peacekeeping”, in Simma-Kha-Nolte (eds), The Charter of the United Nations: A Commentary, Oxford University Press, 3rd edition, 2012, pp. 1171-1199Gill T. et al. (eds), Leuven Manual on the International Law Applicable to Peace Operations, Cambridge University Press, 2017; De Coning-Peter (eds), United Nations Peace Operations in a Changing Global Order, Springer, 2019

[3]     Summary Study of the Experience Derived from the Establishment and Operation of the Force: Report of the Secretary-General, A/3943, 9 October 1958, hereinafter Hammarskjold Report.

[4]     Nolte, ‘Article 2 (7)’ in Simma (ed.), The Charter of the United Nations. A Commentary, 2nd ed., Oxford University Press, vol. 1, 2002, pp. 148-171; Kuning, ‘Intervention, Prohibition of’, MPEPIL, 2008.

[5]     Text adopted by the International Law Commission at its fifty-third session, in 2001, and submitted to the General Assembly as a part of the Commission’s report (A/56/10), in Yearbook of the International Law Commission, 2001, vol. II, Part Two.

[6]  Szurek, ‘The Notion of Circumstances Precluding Wrongfulness’, in Crawford-Pellet-Olleson (eds), The Law of Internaitonal Responsibility, Cambridge University Press, 2010, pp. 427-439; Ben Mansour, ‘Consent’, ivi, pp. 439-449.

[7]     Verardi, “La missione italiana in Libano”, in La Comunità Internazionale, vol.  2, 2011, pp. 261-281

[8]     United Nations Peacekeeping Operations: Principles and Guidelines, Department of Peacekeeping Operations, Department of Field Support, 18 January 2008, reviewed on January 2010, hereinafter Capstone Doctrine, at p. 31.

[9]     The Hammarskjold Report specifies that the UNEF mandate was designed to avoid Force’s “involvement in any internal or local problems and [...] to maintain its neutrality in relations to international political issues”, para. 149, italics added.

[10]    Report of the Panel on United Nations Peace Operations, A/55/305-S/2000/809, 21 August 2000, hereinafter Brahimi Report, at para. 50.

[11]    Capstone Doctrine, p. 33.

[12]    S/RES/2098, 28 March 2013, para. 12.

[13]    The first mandate was set with S/RES/2098, 28 March 2013, and currently it has been extended until December 2019 with S/RES/2463, 29 March 2019. The UN Intervention Brigade in the Democratic Republic of the Congo, International Peace Institute, Issue Brief, July 2013, at p. 7.

[14]    S/RES/2098, 2013, para. 9

[15]    Brahimi Report, p. IX.

[16]    Foley, UN Peacekeeping Operations and the Protection of Civilians. Saving Succeeding Generations, Cambridge University Press, 2017.