Between 1948 – when international armed forces were first deployed to oversee ceasefires in Kashmir and Palestine1‘United Nations – Peacekeeping, Peacemaking, And Peace Building’ (Encyclopedia Britannica, 2022) https://www.britannica.com/topic/United-Nations/Peacekeeping-peacemaking-and-peace-building– and the present, the UN has undertaken more than 70 independent peacekeeping missions.2‘Our History’ (United Nations Peacekeeping, 2022) https://peacekeeping.un.org/en/our-history Over time and across operations, however, there has been a marked disconnect between the role originally envisioned for peacekeeping operations (PKOs) and the realities of peacekeeping. Today, peacekeepers are increasingly likely to become embroiled in hostilities beyond what could reasonably be considered self-defense in modern day conflicts. The evolving ambit of the use of force in peacekeeping operations has prompted the question: can peacekeeping operations be considered a party to a conflict? And if yes, what are the consequences of this change of status? In order to answer the question – around which the debate is ongoing amongst international law experts – this article seeks to establish the legal foundation that authorizes the existence of PKOs, explore the precedent set by the UN in the application of IHL to peacekeeping operations and how this has been used as a justification as to why, up until recently, it was implausible for PKOs to be considered a party to the conflict.
Legal Basis for UN Peacekeeping Operations
Since the conception of the United Nations, the responsibility for overseeing matters of peacekeeping, intervention and global security has been broadly vested in the Security Council. As such UN peacekeeping operations find their legal justification in the mandate of the UNSC as authorized by the UN Charter.3‘Mandates And The Legal Basis For Peacekeeping’ (United Nations Peacekeeping, 2022) https://peacekeeping.un.org/en/mandates-and-legal-basis-peacekeeping Though the UN Charter does not explicitly provide for “peacekeeping”, there are several chapters that are widely considered to the be the legal basis for the authorization of peacekeeping operations i.e. Chapters VI, VII and VIII.4Ibid.
Linking UN peacekeeping with a particular section of the Charter, however, is reductive and misleading especially in terms of operational planning, training and mandate implementation. For these purposes Troop Contributing Countries (TCCs) and Police Contributing Countries (PCCs) are typically guided by the mandate assigned to a specific PKO by the Security Council, along with the missions Rules of Engagement (ROE) for the military component and the Directives of Use of Force (DUF) for the police component.5United Nations Peacekeeping Operations: Principles And Guidelines (United Nations Department of Peacekeeping Operations 2008), pg.14 https://peacekeeping.un.org/sites/default/files/capstone_eng_0.pdf
Predominantly, UN peacekeeping operations function according to mandates issued by the UNSC which are tailored according to the challenges posed and measures necessitated by the nature of the conflict.6Ibid, pg.16. Generally, PKOs are deployed where there is need to uphold ceasefire or more comprehensive peace agreements and so the enabling UNSC mandates are influenced by the content of the agreement reached by the parties to the conflict.7Ibid, pg.14 Given that all PKOs serve a broader goal of peacekeeping there are three landmark Security Council resolutions that underly the role and responsibilities of PKOs. Namely, UNSCR 1325 (2000)8UN Security Council, Security Council resolution 1325 (2000) [on women and peace and security], 31 October 2000, S/RES/1325 (2000), available at: https://www.refworld.org/docid/3b00f4672e.html on women, peace and security; UNSCR 1612 (2005)9UN Security Council, Security Council resolution 1612 (2005) [on children in armed conflict], 26 July 2005, S/RES/1612 (2005), available at: https://www.refworld.org/docid/43f308d6c.html on children and armed conflict; UNSCR 1674 (2006)10UN Security Council, Security Council resolution 1674 (2006) [on protection of civilians in armed conflict], 28 April 2006, S/RES/1674 (2006), available at: https://www.refworld.org/docid/4459bed60.html on the protection of civilians in armed conflict.
Outside of the Charter and UNSC specific mandates, the normative legal framework of UN peacekeeping operations includes compliance with international human rights law and international humanitarian law. Regarding the latter, the fundamentals principles and rules of international law applicable to UN peacekeepers have been detailed in the Secretary General’s Bulletin on the Observance by the UN Forces of International Humanitarian Law (1999).11UN Secretary-General (UNSG), Secretary-General’s Bulletin: Observance by United Nations Forces of International Humanitarian Law, 6 August 1999, ST/SGB/1999/13, available at: https://www.refworld.org/docid/451bb5724.html12United Nations Peacekeeping Operations: Principles And Guidelines (United Nations Department of Peacekeeping Operations 2008), pg. 15 https://peacekeeping.un.org/sites/default/files/capstone_eng_0.pdf
Distinction Between "Peacekeeping" and "Peace Enforcement"
In the simplest terms the distinction between peacekeeping and peace enforcement can be reduced to the ability, necessity and authorization to use military force.
Traditionally, peacekeeping pertains to non-coercive and peaceable means (including diplomatic channels) to foster peace by bringing two warring parties to the table for negotiations or implementing a ceasefire agreement or facilitating the execution of a peace agreement.13‘Terminology’ (United Nations Peacekeeping, 2022) https://peacekeeping.un.org/en/terminology
Peace enforcement involves the use of coercive measures including the use of military force (through explicit authorization by the Security Council) against an act of aggression14Ibid. or for the purposes of “self-defense and/or the defense of the mandate”.15Richard Caplan, ‘Peacekeeping / Peace Enforcement’ (The Princeton Encyclopedia of Self-Determination, 2022) https://pesd.princeton.edu/node/561 Usually peacekeeping operations become involved with the consent of the belligerent parties, whereas peace enforcement can become involved even without the consent of and even against the belligerent parties.16Ibid.
Over the years, the distinction between peacekeeping and enforcement has become increasingly blurred with enforcement becoming a common and key feature of many peacekeeping operations in response to the “realities of modern conflicts”.17Patryk Labuda, ‘UN Peace Operations: Tracking The Shift From Peacekeeping To Peace Enforcement And State-Building’ (Ejiltalk.org, 2015) https://www.ejiltalk.org/un-peace-operations-tracking-the-shift-from-peacekeeping-to-peace-enforcement-and-state-building/ For example in the mandates for the UN Missions in the Democratic Republic of the Congo (MONUSCO)18UN Security Council, Security Council resolution 2098 (2013) [on extension of the mandate of the UN Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO) until 31 Mar. 2014], 28 March 2013, S/RES/2098 (2013), available at: https://www.refworld.org/docid/519dfcfc4.html and Mali (MINUSMA),19UN Security Council, Security Council resolution 2100 (2013) [on establishment of the UN Multidimensional Integrated Stabilization Mission in Mali (MINUSMA)], 25 April 2013, S/RES/2100 (2013), available at: https://www.refworld.org/docid/519dffbe4.html the Security Council pre-authorized the use of military force in order to “carry out targeted offensive operations…to prevent the expansion of all armed groups, neutralize these groups and to disarm them” and to “stabilize the key population centers,…to deter threats and take active step to prevent the return of armed elements”.20Patryk Labuda, ‘UN Peace Operations: Tracking The Shift From Peacekeeping To Peace Enforcement And State-Building’ (Ejiltalk.org, 2015) https://www.ejiltalk.org/un-peace-operations-tracking-the-shift-from-peacekeeping-to-peace-enforcement-and-state-building/
This increasing trend towards mandates with the authorization to use force has created ambiguity regarding the protected status of UN peacekeeping operations and the extent to which IHL is applicable to UN peacekeeping personnel. Additionally, it raises questions regarding the system of accountability that should be utilized both for UN personnel and those who fight against them during a conflict.21Ibid.
How Has IHL Been Applied to Peacekeeping Operations
Generally, the default position regarding the status of UN peacekeepers under IHL is that they enjoy the same status and protection as civilians.22Lilly, D. The United Nations as a Party to Armed Conflict, Journal of International Peacekeeping, 20(3-4), 313-341.(2016) doi: https://doi.org/10.1163/18754112-02003011 But this is insufficient to account for the evolving nature of and role played by peacekeeping missions in conflict zones.
According to the Secretary General’s Bulletin on the Observance by the UN Forces of International Humanitarian Law (1999)23UN Secretary-General (UNSG), Secretary-General’s Bulletin: Observance by United Nations Forces of International Humanitarian Law, 6 August 1999, ST/SGB/1999/13, available at: https://www.refworld.org/docid/451bb5724.html the application of IHL to a PKO should be contingent on the mandate rather than the conduct of peacekeeping personnel and that a region must already be embroiled in a previous, ongoing conflict.24Bianca Maganza, From Peacekeepers to Parties to the Conflict: An IHL’s Appraisal of the Role of UN Peace Operations in NIACs, Journal of Conflict and Security Law, Volume 25, Issue 2, July 2020, Pages 209–236, https://doi-org.eres.qnl.qa/10.1093/jcsl/krz032 In having this provision, the document provides that in using force to uphold their mandate (whether it be for their own self-defense, defense of civilians or defense of the mandate itself) peacekeepers have not acted or used force beyond authorization and hence cannot be considered parties to the conflict. Furthermore, the applicability of IHL is also based on who used force first and so using force in an act of self-defense sets grounds that absolves the UN forces from being considered active participants in the conflict.25Ibid.
Over time it seems this justification and “special protected status” of UN peacekeepers seems outdated and incompatible to the current metrics used to establish the applicability of IHL. Presently, the existence of an armed conflict and the consequent application of IHL is dependent not on adherence to any mandate but rather on “the factual evaluation of a situation”.26Ibid. The legality of the use of force, while important, should be secondary to the conduct deployed on the ground by the UN personnel, and should be determined by considerations such as whether the force used meets the threshold required to trigger the application of IHL.27Ibid. For example, even if the mandate supports the use of force and there is no use of force, it follows that IHL would not apply in those situations. Conversely, in situations where the mandate does not enable the use of force, using force that reaches a certain threshold would trigger the application of IHL. It is also pertinent to note that under a law enforcement paradigm, in the case of self-defense of a single personnel or peacekeeping unit, use of force would not be of sufficient intensity to trigger the applicability of IHL.28Ibid.
Can Peacekeepers Become Party to a Conflict
Though the debate is ongoing, legal experts are beginning to reach the general consensus that peacekeepers can in fact become party to conflict – provided of course it is established that there is an active state of armed conflict. For example, in the case of MONUSCO, in the Democratic Republic of Congo, experts claim that by engaging in combat operations (reaching a certain threshold of use of force under IHL), the mission did become party to the conflict especially in engaging in fighting in support of Congolese Armed Forces.29Marie O’Reilly and More;, ‘In Congo, UN Peacekeepers Are Becoming Party To The Conflict: Interview With Arthur Boutellis’ (IPI Global Observatory, 2022) https://theglobalobservatory.org/2013/08/interview-with-arthur-boutellis/ The mandate for MONUSCO’s Intervention Brigade (the military arm of MONUSCO) as per UN Resolution 2098 (2013) marked the first time the UN explicitly authorized a peacekeeping mission to proactively use offensive operations to engage with the conflict.30Lilly, D. The United Nations as a Party to Armed Conflict, Journal of International Peacekeeping, 20(3-4), 313-341.(2016) pg. 314 doi: https://doi.org/10.1163/18754112-02003011 Regarding the Intervention Brigade the widely accepted view is that they were a party to the conflict and should be subject to the IHL as combatants rather than civilians as was formerly the norm for UN peacekeeping personnel.
This is not to say that prior to MONUSCO’s revised mandate in 2013, there were no instances of legal ambiguity in terms of UN peace enforcement methods. The 1993 UN operation in Somalia (UNOSOM II) and the UN Protection Force in Bosnia (UNPROFOR) saw the missions respond to the deteriorating situation on the ground by engaging in hostilities. However, the UN maintained that even if IHL could apply to the missions, they could not be considered a party to the conflict because they were acting in self-defense according to Chapter VII of the UN Charter or upholding their (non-military) mandates for “broader humanitarian objectives”.31Ibid.
Historically, the issue of whether or not UN forces can become party to a conflict revolves around the UN’s unique constitution as an international institution since only states can accede to the Geneva Conventions. That being said, the UN still has a legal personality of its own which confers upon the UN various rights and duties.32Reparation for Injuries Suffered in the Service of the United Nations, ICJ 1949 (Advisory Opinion of 11 April 1949), p. 174 By virtue of its legal personality the UN is clearly “capable of being responsible for internationally wrongful acts” and if not directly a party to the Geneva Conventions is still beholden to provisions under customary IHL.33Lilly, D. The United Nations as a Party to Armed Conflict, Journal of International Peacekeeping, 20(3-4), 313-341.(2016), pg. 327-8 doi: https://doi.org/10.1163/18754112-02003011 Therefore, the UN’s “subsidiary organs” which include peacekeeping operations should fall within the purview of IHL, in addition to whatever legal obligations are attributed to the contributing state(s).34Ibid, pg. 327-328
Legal Implications and Way Forward
The most significant consequence of UN peacekeeping operations becoming party to the conflict is the loss of their “special protected status”. Up till now the assumption has been that UN peacekeepers as a collective entity retain their protected or civilian status35This “DPH paradigm” (as Bianca Maganza puts it) particularly evoking self-defense and defense of the mandate as a justification for not being regarded as a party to the conflict was originally derived from the case law of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR),was reiterated in the jurisprudence of the Special Court for Sierra Leone (SCSL) and the International Criminal Court (ICC). The tribunals ruled that attacks against peacekeepers were illegal as long as they enjoyed protections entitled to civilians. and if there is ever a loss of this protected status it is only in the case of individual peacekeepers who have directly participated in hostilities during the conflict not the mission as a whole.36Bianca Maganza, From Peacekeepers to Parties to the Conflict: An IHL’s Appraisal of the Role of UN Peace Operations in NIACs, Journal of Conflict and Security Law, Volume 25, Issue 2, July 2020, Pages 209–236, https://doi-org.eres.qnl.qa/10.1093/jcsl/krz032 By revoking this civilian status, peacekeepers will become lawful military targets and attacks on them can then no longer be considered war crimes.37Lilly, D. The United Nations as a Party to Armed Conflict, Journal of International Peacekeeping, 20(3-4), 313-341.(2016) pg. 314 doi: https://doi.org/10.1163/18754112-02003011 Additionally, peacekeepers could also become prisoners of war, have to detain combatants and face increased scrutiny regarding unlawful conduct during hostilities. This creates an ambiguity regarding the applicability of existing laws dealing with the protection and safety of peacekeepers, such as the Convention on the Safety of the UN and Associated Personnel,38Convention on the Safety of United Nations and Associated Personnel, GA Res. 49/59, UN Doc. A/RES/49/59 (1994). Entered into force on 15 January 1999. and the Rome Statute of the International Criminal Court.39Article 8 (2) (e) (iii) of the Rome Statute makes intentionally attacking UN peacekeeping personnel and objects a special category of war crime in both IACs and NIACs, provided they are entitled to the protection given to civilians and civilian objects under IHL. According to the Safety Convention attacking UN personnel and objects is illegal in all circumstances (NIAC or IAC) which contradicts the Rome Statute which states that if UN personnel are party to the conflict, they are lawful targets in an IAC.40Lilly, D. The United Nations as a Party to Armed Conflict, Journal of International Peacekeeping, 20(3-4), 313-341.(2016) pg. 314 doi: https://doi.org/10.1163/18754112-02003011
Given the nature of UN peacekeeping operations, loss of protected status also raises important questions about the ability to distinguish between various components (military, civilian, and police personnel) of a peacekeeping mission and to determine the scope of who is considered a party to the conflict.41Bianca Maganza, From Peacekeepers to Parties to the Conflict: An IHL’s Appraisal of the Role of UN Peace Operations in NIACs, Journal of Conflict and Security Law, Volume 25, Issue 2, July 2020, Pages 209–236, https://doi-org.eres.qnl.qa/10.1093/jcsl/krz032 For example, in the MONUSCO case should only the Intervention Brigade be considered a party to the conflict or the whole mission? It is understandable that this endangers civilian factions of the operation given that belligerents would be less likely to distinguish between lawful peacekeeper targets and unlawful targets. However, based on the factual conduct on the ground, guided by the principles of IHL, it stands to reason that all armed components who participated in hostilities regardless of whether they were fighters for MONUSCO or the Intervention Brigade should be considered party to the conflict.42Lilly, D. The United Nations as a Party to Armed Conflict, Journal of International Peacekeeping, 20(3-4), 313-341.(2016) pg. 314 doi: https://doi.org/10.1163/18754112-02003011
Finally, the evolving nature of peacekeeping operations has exposed the inconsistencies that are a product of peacekeeping guided by two separate regimes at the same time. A temporal application of IHL i.e. the ability of peacekeepers and peacekeeping units to jump in and out of “protected status”, while actively engaging in hostilities, violates the principle of the equality of belligerents and flagrantly undermines the spirit of IHL.43Ibid.
When peacekeeping operations were exclusively passive and meant only to enforce peace treaties and ceasefire agreements, it was a reasonable assertion that PKOs could not be nor should be considered parties to the conflict. However, with the evolution of operations to a hybrid of peacekeeping and peace-enforcement missions, the UN has created a situation where the involvement of PKOs could reasonably render them party to the conflict. Given that, previously, individual peacekeepers who used force at a certain threshold were subject to the constraints of IHL, it seems disingenuous that the “defensive of the mandate” argument is utilized to exempt whole missions from IHL regardless of their conduct on the ground.
For the UN to even begin to tackle these legal intricacies arising from this shift in peacekeeping, it must first formally acknowledge that UN peacekeeping operations can in fact become party to the conflict and in becoming so cease to enjoy any special or preferential status that allows them selective applicability of IHL. The UN has already set a precedent through the MONUSCO mandate where the role of peacekeeping has vastly overextended beyond its original intention. By revising its special provisions regarding peacekeeping operations including the Secretary General Bulletin, and Convention on Safety of UN Personnel, to accommodate a new era of PKOs, it can potentially mitigate legal ambiguity in present-day conflicts where peacekeeping may necessitate proactive use of force to meet its objectives.
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Noor Waheed is a legal research and policy professional. She is presently a consultant for Justice Project Pakistan.