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Abstract
The role of force in United Nations peacekeeping has changed dramatically since the first observer mission in 1948. Once, peacekeepers used force only in the most exceptional circumstances and only in self-defense. By the mid-1970s, peacekeepers were authorized to defend the mandates of their operations, still as a variant of ‘self-defense’ but with greater scope for offensive force. Since the turn of the century, corresponding with the ‘Brahimi Report’, the language of self-defense is no longer in use in peacekeeping mandates. Instead, the Security Council routinely finds the existence of threats to international peace and security and vest ‘robust’ peacekeeping operations with the ability to use offensive force. The role of the controversial ‘responsibility to protect’ doctrine in peacekeeping is examined; however, it is concluded that, as yet, the doctrine has had limited impact on the legal framework relating to peacekeeping.
Key Words:
Notes
1 Included here is the practice of dividing peacekeeping into first-, second- or third-generation operations or categorizing operations through reliance on various adjectives signaling (frequently in a very imprecise way) their nature: ‘traditional peacekeeping’, ‘complex peacekeeping’, ‘new peacekeeping’, ‘multifunctional peacekeeping’, etc.
2 The five-phase approach adopted herein is by no means the only way to chart the use of force in peacekeeping operations. Other commentators have identified more or fewer phases and have defined the phases differently. The literature on the ‘stages’, ‘phases’ or ‘generations’ of peacekeeping – as regards the use of force of such operations, as well as with regard to other aspects – is vast.
3 As discussed below, the level of force used by a peacekeeping force is often far less than that authorized. Commanders in the field are aware that a robust use of force by a peacekeeping mission may have the effect of changing irrevocably the character of the peacekeeping operation and its relationship with certain third parties.
4 The distinction between the two terms is somewhat unclear. Many would characterize only the Security Council-authorized operations in Korea and Iraq/Kuwait as enforcement based on their scale and objectives and use the term peace enforcement for forceful operations of a smaller scale.
5 Issues relating to when a civilian is considered to have taken ‘direct part in hostilities’ (see article 51(3) of Additional Protocol I and article 13(3) of Additional Protocol II, both to the 1949 Geneva Conventions) and when that individual may be considered to have regained his or her civilian status are complex and unsettled. See, e.g, ICRC, ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’ (Geneva 2009), <www.icrc.org/eng/resources/documents/publication/p0990.htm>. See also Dapo Akande, ‘Clearing the Fog of War? The ICRC’s Guidance on Direct Participation in Hostilities’ 59 ICLQ (2010), 180, 189.
6 For the UN Secretariat’s listing of past and present peacekeeping operations see <www.un.org/en/peacekeeping/operations/>.
7 Article 2(4) of the UN Charter.
8 Article 39 of the UN Charter.
9 Article 42 of the UN Charter.
10 Article 51 of the UN Charter.
11 Article 24(1) and 48(1) of the UN Charter.
12 The resolution authorizing the use of force in the Korean Peninsula could be passed by the Security Council due to of the refusal by the USSR to attend Security Council meetings at the time. Arguably, a second exception to the Security Council’s unwillingness to authorize force during the Cold War was in the context of the peacekeeping operation ONUC in the Congo in the early 1960s (and the subsequent expansion of its mandate). This operation is considered below.
13 With the end of the Cold War the force of the impediments, both legal and political, to the Security Council authorizing force and delegating the use of force to a state or coalition of the willing has subsided.
14 Soviet states and France had certain misgivings about the nature of the expenses of the operations in Egypt (UNEF I) and the Congo (ONUC). See International Court of Justice, Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion of 20 July 1962 (ICJ Reports 1962), 151.
15 Articles 2(1) and 2(7) of the UN Charter.
16 In the early history of the UN, when Cold War tensions meant that the Security Council was at times unable to act, the General Assembly was involved in the establishment or modification of three UN peacekeeping operations: the United Nations Special Commission in the Balkans (UNSCOB) in 1947, the first United Nations Emergency Force in the Suez (UNEF I) in 1956 and the United Nations Security Force in West New Guinea/West Irian (UNTEA/UNSF) in 1962. Since then, all UN peacekeeping missions have been created and modified by the Security Council.
17 Hammarskjöld described the right of self-defense for UN peacekeepers as ‘generally accepted’ (United Nations, ‘Summary Study of the Experience Derived from the Establishment and Operation of the Force [Report of the Secretary-General]’ (UN Doc. A/3943), 9 Oct. 1958, para 179) and ‘inherent’ (United Nations, ‘Note [Transmitting the Statement by the President of the Security Council Concerning the Item Entitled ‘An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-Keeping’]’ (UN Doc. S/25859), 28 May 1993, 1). See also Trevor Findlay, ‘The Use of Force by Peacekeepers Beyond Self-Defence: Some Politico-Legal Implications’ in Alex Morrison, Douglas A. Fraser and James D. Kiras (eds), Peacekeeping with Muscle: The Use of Force in International Conflict Resolution (Clementsport, Nova Scotia: The Canadian Peacekeeping Press 1997), 51–76, 73, endnote 5.
18 United Nations, ‘Second and Final Report of the Secretary-General on the Plan for an Emergency International United Nations Force Requested in Resolution 998 (ES-I), Adopted by the General Assembly on 4 Nov. 1956’ (UN doc A/3302), 6 Nov. 1956, para. 12. See also the Secretary-General’s 1958 Summary Study, para. 15.
19 Second and Final Report, para. 12.
20 Summary Study, para. 167.
21 Second and Final Report, para. 12.
22 Summary Study, para. 178.
23 Ibid.
24 Ibid., para. 179 (emphasis in original).
25 Ibid., para. 179.
26 Ibid.
27 UN, ‘Report to the General Assembly in Pursuance of General Assembly resolution 1123 (XI) on Israeli Withdrawal’, 24 Jan. 1957 (UN doc. 3512/1957), part 2 (A), para. (5)(b).
28 Following a threatened veto of a Security Council resolution on the subject by France and the UK, UNEF I was established by the General Assembly in emergency special session, pursuant to its powers under its ‘Uniting for Peace’ resolution (GA res 377 A(V) of 3 Nov. 1950).
29 See the discussion of the Security Council’s Chapter VII powers above.
30 With the UN Operation in the Congo (1960–64), the level of force authorized and used went considerably beyond that discussed by Hammarskjold. This operation will be considered below.
31 The only arguable exception here is UNTEA/UNSF established in 1962 – though many do not consider this operation to be a peacekeeping operation.
32 Indar Jit Rikhye, ‘The Use of Force in International Conflict Resolution’, in Alex Morrison et al., Peacekeeping with Muscle, 17–23, 19.
33 United Nations, ‘Report by Secretary-General U Thant on the Deployment of UN Forces in Cyprus’ (UN doc. S/5960), 10 Sept. 1964.
34 United Nations, ‘Report of the Secretary-General on the Implementation of Security Council Resolution 340 (1973)’ (UN doc. S/11052/Rev.1), 27 Oct. 1973.
35 Ibid.
36 SC res. 341 of 27 Oct. 1973.
37 Ibid. With the establishment of the United Nations Interim Force in Lebanon (UNIFIL) in 1978, the Security Council, for the first time, specifically included defense-of-mandate as part of its definition of self-defense in a resolution (SC res. 467 of 24 April 1980). (Christine Gray, International Law and the Use of Force, 3rd ed. (Oxford: OUP 2008), 303).
38 United Nations, General Guidelines for Peacekeeping Operations (United Nations (DPKO) (UN/210/TC/GG95)), on file with author, para. 35.
39 For example, the Security Council mandated UNEF II to supervise its demand that a ceasefire be observed and to prevent a recurrence of the fighting (see SC res. 341 of 27 Oct. 1973).
40 Nigel White, The United Nations and the Maintenance of International Peace and Security (Manchester: MUP 1990), 201.
41 Adam Roberts, ‘From San Francisco to Sarajevo: The UN and the Use of Force’, Survival 37/4 (1995–96), 7, 14. See also Marrack Goulding, ‘The Evolution of United Nations Peacekeeping’ International Affairs (Royal Institute of International Affairs 1944-) 69/3 (1993), 451, who noted that it was rare for peacekeepers ‘to open fire on, for instance, soldiers at a roadblock who were denying passage to a United Nations convoy’ (455); Ray Murphy, ‘United Nations Peacekeeping in Lebanon and Somalia, and the Use of Force’ Journal of Conflict and Security Law 8/1 (2003), 71, 83.
42 Goulding, ‘The Evolution of United Nations Peacekeeping’, 455.
43 Ibid.
44 In addition, the UN Operation in the Democratic Republic of the Congo (MONUC), which was established in Nov. 1999 (SC res. 1279 of 30 Nov. 1999) without any Chapter VII authorization was, after two months, given civilian protection tasks pursuant to an invocation of Chapter VII (SC res. 1291 of 24 Feb. 2000). See the discussion of MONUC and its successor MONUSCO below.
45 SC res. 143 of 14 July 1960.
46 Lumumba, who had been jailed by a rival government, was killed in January 1961; his death was announced on 13 Feb. 1961 (Rosalyn Higgins, United Nations Peacekeeping 1946–1967: Documents and Commentary, Vol. III: Africa (Oxford: OUP 1980), 394).
47 SC res. 161 of 21 Feb. 1961.
48 Ibid., Part A.
49 SC res. 169 of 24 Nov. 1961.
50 Note that the defense-of-mandate approach to defining self-defense, discussed above, had not been articulated at this point in the UN’s history.
51 In one of his first tasks after taking up the Secretary-Generalship, Boutros-Ghali was requested by the Security Council (sitting for the first time at the Head of State or Head of Government level) to set forth his ideas on ways of strengthening and making more efficient peacekeeping and related activities. The report that emerged revealed the new Secretary-General’s desire to engage in fresh thinking with regard to peacekeeping operations, including a willingness to challenge the ‘fundamental principles’. United Nations, ‘An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-Keeping’ (UN Doc A/47/277-S/24111), 17 June 1992.
52 SC res. 743 of 21 Feb. 1992.
53 United Nations, ‘Further Report of the Secretary-General Pursuant to Security Council Resolution 721 (1991)’ (UN doc. S/23592), 15 Feb. 1992, 6.
54 SC res. 836 of 4 June 1993.
55 In the words of Yasushi Akashi, formerly the Secretary-General’s Special Representative for the former Yugoslavia, the ‘combination of Chapter VII and the “authorization” of the use of force in self-defense has further compounded the degree of confusion, even among knowledgeable observers, over the conditions in which force can be used by UNPROFOR’. (Yasushi Akashi, ‘The Use of Force in a United Nations Peace-Keeping Operation: Lessons Learnt from the Safe Areas Mandate’, Fordham International Law Journal 19 (1995–96), 312, 317).
56 UNOSOM was established by SC res. 751 of 24 April 1992. The mission was withdrawn in Dec. 1992 and it resumed in March 1993 after security was restored. Some refer to the initial phase of the operation as UNOSOM I and its second phase as UNOSOM II.
57 It was to undertake such tasks as preventing ‘any resumption of violence and, if necessary [taking] appropriate action against any faction’ violating the ceasefire, securing the disarmament of the factions, and maintaining security (SC res. 814 of 26 March 1993).
58 SC res. 837 of 6 June 1993.
59 It may be noted that the UN Secretariat, itself, characterized the operation as peacekeeping.
60 See, for example, Simon Chesterman, The Use of Force in UN Peace Operations (2004) External Study for the UN DPKO, <http://smallwarsjournal.com/documents/useofforceunpko.pdf>; Akashi, ‘The Use of Force in a United Nations Peace-Keeping Operation’; and Rosalyn Higgins, ‘Peace and Security: Achievements and Failures’ European Journal of International Law 6 (1995), 445.
61 United Nations, ‘An Agenda for Peace’.
62 United Nations, ‘Supplement to an Agenda for Peace: Position Paper of the Secretary-General on the Occasion of the Fiftieth Anniversary of the United Nations’ (UN doc. A/50/60-S/1995/1), 3 Jan. 1995, para. 33.
63 SC res. 1246 of 11 June 1999. The operation was charged with conducting a popular consultation to ascertain whether the East Timorese wanted full independence or autonomy within Indonesia.
64 T. Findlay, The Use of Force in UN Peace Operations (Oxford: OUP for the Stockholm International Peace Research Institute (SIPRI) 2002), 287.
65 Ibid.
66 SC res. 1264 of 15 Sept. 1999.
67 SC res. 1272 of 25 Oct. 1999.
68 Ibid.
69 Ibid.
70 SC res. 1319 of 20 Sept. 2000.
71 This fifth phase of operations is distinguished from the operations in the fourth phase primarily on the basis that the Security Council vested the operations with Chapter VII powers from the outset – and did so in a routine manner. It may be noted, however, that with some of the operations considered hereunder, the Chapter VII nature of the operation was progressive. That is to say, only certain tasks were established under Chapter VII but, as time passed and matters on the ground deteriorated, the number and nature of the Chapter VII tasks increased.
72 United Nations, ‘Identical Letters Dated 21 August 2000 from the Secretary-General to the President of the General Assembly and the President of the Security Council [Attaching ‘Report of the Panel on UN Peacekeeping Operations’]’ (the ‘Brahimi Report’) (UN docs A/55/305 and S/2000/809), 21 Aug. 2000, para. 21.
73 Brahimi Report, para. 48.
74 Ibid, para. 53.
75 Ibid, para. 55.
76 Ibid., para. 62.
77 Ibid., para. 49.
78 Ibid, para. 1.
79 Ibid., para. 51.
80 Neither United Nations Mission in Ethiopia and Eritrea (UNMEE), (July 2000–July 2008) nor United Nations Supervision Mission in Syria (UNSMIS), (April 2012–Aug. 2012) were vested with Chapter VII powers. Chapter VII was not invoked by the Security Council in relation to the functioning of United Nations Mission in Central African Republic and Chad (MINURCAT) when it was established in Sept. 2007; however, it was strengthened in Jan. 2009 and authorized under Chapter VII to undertake certain tasks. Also during this period, the United Nations Interim Force in Lebanon (UNIFIL) was given a retrospective upgrade in terms of the amount of force it was authorized to use. Chapter VII, however, was not explicitly invoked.
81 Previously, Chapter VII had only been invoked in relation to the functions of peacekeeping operations rarely, as discussed earlier: once implicitly (ONUC) and three times explicitly (UNOSOM II, UNPROFOR and UNTAET). In addition, Chapter VII was invoked in relation to the United Nations Iraq-Kuwait Observer Mission (UNIKOM) in the aftermath of the Gulf War (SC res. 689 of 9 April 1991). With UNIKOM, as with UNPROFOR, the Security Council’s Chapter VII authorization was tempered by a – somewhat incongruous – call for the operation to use force only in self-defense (see United Nations, ‘Report of the Secretary-General on the Implementation of Paragraph 5 of Security Council Resolution 678 (1991)’ (UN doc. S/22545), 5 April 1991). While the Security Council had previously invoked Chapter VII in resolutions establishing three other peacekeeping missions – UNCRO and UNTAES in Croatia and UNMIK in Kosovo – its use of Chapter VII was not in relation to the functioning of the peacekeeping operation; rather it was directed at the authorization of support operations by member states arising from the same resolutions.
82 The United Nations Integrated Mission in Timor Leste (UNMIT) which functioned from Aug. 2006-Dec. 2012 was not vested with an authorization to use force under Chapter VII.
83 This is a re-christened version of the MONUC; see above (note 44).
84 SC res 1590 of 24 March 2005.
85 As was seen with the 2011 intervention in Libya, the concept of ‘civilian protection’ may be mean different things to different people, up to and including regime change.
86 SC res. 1291 of 24 Feb. 2000.
87 SC res. 1493 of 28 July 2003.
88 MONUC was renamed United Nations Organization Stabilisation Mission in the Democratic Republic of the Congo (MONUSCO) in 2010.
89 SC res. 2098 of 28 March 2013.
90 International Commission on Intervention and State Sovereignty, The Responsibility to Protect: Report of the International Commission on Independence and State Sovereignty, Dec. 2001, <http://responsibilitytoprotect.org/ICISS%20Report.pdf>, VII.
91 Ibid., VIII.
92 Ibid., p. XI.
93 The ICISS Report makes reference to the Brahimi Report, noting that it focused for the most part on ‘traditional peacekeeping and its variations, not the more robust use of military force’ and invoking the Brahimi Report’s statement that ‘the United Nations does not wage war. Where enforcement action is required, it has consistently been entrusted to coalitions of willing states’ (ibid., para. 7.2, p. 57). ‘The use of only minimum force in self-defence that characterizes traditional peacekeeping would clearly be inappropriate and inadequate for a peace enforcement action, including a military intervention’ (ibid., para. 7.26, p. 62). The drafters of the ICISS Report were not aware, of course, of the significant changes in the use of force in peacekeeping that were to occur in the aftermath of the Brahimi Report.
94 Ibid, para. 1.23, p. 5.
95 ‘[H]umanitarian protection operations will be different from both the traditional operational concepts for waging war and for UN peacekeeping operations’ (ibid., para. 7.50, p. 66).
96 Ibid., para 7.2, p. 57.
97 UN General Assembly, ‘UN World Summit Outcome, 2005’, 15 Sept. 2005, para. 138.
98 Ibid., para. 139.
99 SC res. 1674 of 28 April 2006.
100 The ICISS Report on the other hand noted that ‘if the Security Council fails to discharge its responsibility in conscience-shocking situations crying out for action, then it is unrealistic to expect that concerned states will rule out other means and forms of action to meet the gravity and urgency of these situations’ (ICISS, The Responsibility to Protect, para. 6.39, p. 55).
101 Edward C. Luck, ‘The United Nations and the Responsibility to Protect’, Policy Analysis Brief of the Stanley Foundation (Aug. 2008), 3.
102 United Nations, ‘Implementing the Responsibility to Protect [Report of the Secretary-General]’, (UN doc. A/63/677), 12 Jan. 2009.
103 The examples given are peacekeeping operations charged with preventive deployment, such as those in the former Yugoslav Republic of Macedonia during the period 1992–99 (ibid., paras. 41–2).
104 Ibid., para. 52.
105 For example, the Report envisages that where the UN has a peacekeeping presence, the operation could have a role of countering incitement to racial hatred (ibid., para. 55).
106 SC res. 1706 of 31 Aug. 2006.
107 SC res. 1769 of 31 July 2007.
108 A. J. Bellamy, Global Politics and the Responsibly to Protect: From Words to Deeds (Abingdon, UK: Routledge 2011), 29.
109 For a detailed analysis of the efficacy of the use of force by UN peacekeeping operations, see James Sloan, The Militarisation of Peacekeeping in the Twenty-first Century (Oxford: Hart 2011).
110 After a spate of kidnapping of UN peacekeepers, a UK military force was sent to Sierra Leone to assist UNAMSIL. Subsequently, the peacekeeping force was able to achieve many of its objectives.
111 A recent series of articles in Foreign Policy offer a deeply disturbing analysis of UNAMID’s inability to protect civilians and, indeed, itself. (Colum Lynch, ‘They Just Stood Watching’, ‘Now We Will Kill You’ and ‘A Mission That Was Set Up to Fail’, Foreign Policy, <http://www.foreignpolicy.com/articles/2014/04/07/special_report_darfur_united_nations_peacekeeping_investigation>).
112 See, e.g., Christoph Vogel, ‘Congo: Why UN peacekeepers have a credibility problem: Unravelling a war involving nine countries and 40 rebel groups was never going to be easy. But there’s a glimmer of hope’, The Guardian.com, 30 Aug. 2013, <http://www.theguardian.com/world/2013/aug/30/congo-un-peacekeepers-problem>.
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James Sloan
James Sloan is a Senior Lecturer in International Law at the University of Glasgow, School of Law, where he specializes in the Law of the United Nations, International Human Rights Law and International Criminal Law. He was Visiting Professor at the University of California, Hastings College of the Law. Prior to joining the School of Law, he worked for the United Nations in different capacities, including for the UN Political Office in Bougainville. He has advised a number of intergovernmental and non-governmental organizations on international legal matters. He has been admitted to the Bars of New York and Ontario.