By Charuka Ekanayake
PhD candidate, Griffith Law School
UN Peace Support Operations (PSO)1 have evolved in numerous directions to various degrees. The majority of these transitions have been reactive, being responses to failures such as Rwanda2 and Srebrenica3. While much has undeniably been achieved – the frequency with which conflict evolves continues to pose novel challenges in this realm. This post will consider briefly, how policy and law should coalesce in one area of activity that is central to the success of PSOs, their use of force when deployed into settings that satisfy the armed conflict threshold.
While Art. 39 of the Charter empowers the United Nations Security Council (UNSC) to determine the existence of threats to international peace and security, Art 42 permits responsive measures such as ‘action by air, sea or land forces’ in order to restore same. Apart from obvious examples such as instances of aggression, concerted human rights violations are now considered to represent threats to international peace and numerous authorising resolutions expressly mandate UN forces to ‘use all necessary means’ to protect ‘civilians under imminent threat of violence’.4 Other resolutions go to the extent of authorising these forces to support military campaigns that are waged against identified groups5 or even neutralise particular armed actors.6
These developments do not however eradicate the fundamental (and now well recognised) distinction between PSOs (which can include peacekeeping, peace enforcement and peace making elements) and traditional warfare. While the former does not define an enemy and only seeks the enforcement of a mandate (through uses of force tailored to this end), the latter is waged against an enemy and designed to achieve military victory. The main source of this distinction lay in PSOs adherence to the principle of impartiality which today means;
‘…adherence to the principles of the Charter and to the objectives of the mandate that is rooted in those Charter principles. Such neutrality is not the same as equal treatment of all parties in all cases for all time, which can amount to a policy of appeasement.’7
This novel approach makes a crucial conceptual change in making the mission mandate, the baseline against which impartiality must be operationalised in practice. All uses of force by PSOs must therefore be directed towards a specific breach of the mandate, be linked to a defined outcome and be conducted discriminately and proportionally.8 What this means in the larger picture is that individual tactical level decisions made by PSO troops have potential to influence (and sometimes irreversibly modify) the strategic direction of these missions. The converse of this possibility is exemplified by potential gaps that may exist between what UN missions are required to do at the strategic level and what they actually do at the tactical level. Taken together, these two eventualities constitute the ‘gap between promises and results’. It is at this point that attention must be drawn to reducing or eliminating these ‘gaps’ and an answer may be found in altering the rules by which uses of force are regulated.
While International Humanitarian Law (IHL) regulates conduct during armed conflict, the premises on which its content is based focus on the legitimate purpose of the conflict, namely the complete or partial submission of the enemy at the earliest possible moment with the minimum expenditure of life and resources.9 This is not the end – state PSOs pursue and there is thus a mismatch at the basic conceptual level which in turn creates numerous mismatches at the level of practice. For instance, IHL dictates when force can be used with reference to the overarching concept of military necessity which permits the status based targeting of individuals10 and the targeting of military objects (i.e. those satisfying the effective contribution and military advantage criterion).11 It does not impose an affirmative duty to use force, particularly where such use does not confer a tactical military advantage which is exactly what the Protection of Civilians mandate requires PSOs to do when civilians become targeted. Moreover, IHL permits lethal force to be used on human targets (without reference to a proportionality assessment). Such a permission can easily contribute to negative imaging by the local population of the PSO and more importantly, of the peace process they often represent. Similar difficulties can also be identified as regards IHL proportionality.12
It therefore becomes necessary to assess how these regulatory difficulties can be rectified. International Human Rights Law’s (IHRL) innate concepts such as necessity, proportionality and emphasis on preventive action have an obvious and powerful potential to provide the relevant answers. Its application must however be justified in terms of other factors such as effective control. Even if it is conceded that IHRL can theoretically apply to PSO uses of force, the results returned by an application of IHRL rules to a particular situation often contradict those returned by an application of the corresponding IHL rules – giving rise to genuine conflicts of law.
It must also be noted that the aforementioned disparities are partially caused by a disconnect that exists between the ad bellum and in bello aspects of the relevant use of force. The root therefore lay at the deeper, more conceptual level and this is where just war proportionality’s (which is a moral calculation that balances the goods and vices of a potential resort to force) interaction with the in bello use of force13 has a crucial role to play.14 All actions taken in the conduct of a mission must contribute to the ‘goods’ element of the ad bellum proportionality assessment and failing to respect this truism means that what is being practiced/waged is different from that for which the ad bellum approval was granted.
My Doctoral thesis argues that the aforementioned conflict of laws can be resolved by reference to the ‘common contact point’15 (CCP) version of the lex specialis principle. In using the CCP though, care must be taken to ‘factor in’ the abovementioned link between the ad bellum and in bello aspects of PSO use of force, to the relevant contact points (the relevant points here being the party using force and the target of the use of force). The extent to which IHRL should be so infused into a particular IHL rule will vary on the context. It is submitted however, that when operationalised correctly, the CCP illuminates why and how IHRL should play a greater role in PSO conduct regulation – ultimately reducing the gap between ‘promises and results’.
[1] Defined as;
‘multifunctional operations, conducted impartially, normally in support of an internationally recognised organisation such as the UN or Organisation for Security and Cooperation in Europe (OSCE), involving military forces and diplomatic and humanitarian agencies. PSOs are designed to achieve a long term political settlement or other specified conditions. They include Peacekeeping and Peace Enforcement as well as conflict prevention, peace-making, peacebuilding and humanitarian relief’; Allied Joint Doctrine, 3.4.1 – Peace Support Operations, para 0202 (NATO, 2001)
[2] Summarised recaps available at https://www.history.com/topics/africa/rwandan-genocide and https://www.bbc.com/news/world-africa-26875506
[3] Summarised recap available at https://www.bbc.com/news/av/world-europe-33496830/srebrenica-massacre-explained-in-under-two-minutes
[4] Refer for instance UNSC Res 1270, UN Doc. S/RES/1270 (22 October 1999) (para. 14) which concerned the United Nations Mission in Sierra Leone (UNAMSIL) — the first ever mission to be granted a protection of civilians mandate
[5] UNSC Res 1925, UN Doc. S/RES/1925 (28 May 2010) para. 12 H on Mission De L’ Organisation des Nation Unies Pour La Stabilization En Rd Congo (MONUSCO)
[6] UNSC Res 2098, UN Doc. S/RES/2098 (18 March 2013) para. 12 B on MONUSCO
[7] Report of the Secretary General, ‘Comprehensive review of the whole question of peacekeeping operations in all their aspects (2000) UN Doc A/55/305 — S/2000/809, paras 48 -50 (Brahimi Report)
[8] A. Bellamy and P. Williams, ‘Understanding Peacekeeping’, 2nd ed (Polity, 2010) 281
[9] The Joint Service Manual of the Law of Armed Conflict JSP 383 (Joint Doctrine and Concepts Centre – Ministry of Defence, The United Kingdom, 2004) 21
[10] The principle of Distinction has now attained customary status in both International as well as Non-international Armed Conflict; JM Henckaerts and L Doswald-Beck, ‘Customary International Humanitarian Law’ Vol 1 (Cambridge University Press, 2005) 3
[11] This criterion is now considered to have attained customary status in both International as well as Non-international Armed Conflict; supra n. 10, 29
[12] Supra n. 10, Rule 14
[13] A.J. Coady, ‘The leaders and the led: Problems of just war theory’ (1980) 23 Inquiry 275, 286. A similar approach is found in one of M. Walzer’s earlier articles, refer Michael Walzer, ‘Moral judgment in time of war’ in R. Wasserstrom (ed) War and Morality (Wadsworth 1970)
[14] Refer Alex Bellamy, ‘When is it right to fight? International law and jus ad bellum’ (2009) 8 (3) Journal of Military Ethics 237 on the relevance of the Just War doctrine to uses force under the UN Charter
[15] The CCP argues that specialty is conferred on the rule that is capable of encompassing the greater contact surface area of the factual matrix. It deconstructs the matrix into its composite elements and then assesses the extent to which a rule accommodates each element. Refer erred to in Marco Sassoli, ‘The Role of Human Rights and International Humanitarian Law in New Types of Armed Conflicts’ in Orna Ben Naftali (ed), International Humanitarian Law and International Human Rights Law: Pas de Deux (Oxford University Press 2011) 35,71 with acknowledgment of first use.