International Humanitarian Law and Peacekeeping

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Introduction

As of January 2022, there are twelve active UN peacekeeping missions in operation around the world deploying more than eighty-seven thousand personnel and there have been seventy-one missions since 1948.¹ In 1988, UN peacekeeping forces were awarded the Nobel Peace Prize for their contribution “to reducing tensions where an armistice has been negotiated but a peace treaty has yet to be established”.² Peacekeepers were initially established with a limited mandate mostly confined to that of monitoring and observing ceasefires. Since the Cold War, however, their mandates have evolved to include more robust and aggressive forms of peace-enforcement as well as more traditionally state prerogatives of peacebuilding such as rule of law operations and the promotion of human rights. While peacekeepers have done much praiseworthy work in missions, there have also been many allegations of complicity in human rights abuses, the commission of criminal conduct, and in particular allegations of sexual abuse against civilians in their host state.³

This month at the Diplomacy, Law and Policy Forum we will be looking at peacekeeping operations in some depth. Our articles focus on the principles underpinning such missions, the ability for peacekeepers to become a party to the conflict, and the accountability gap in prosecuting those who have committed offences. They take a critical look at the failures and drawbacks of the ‘blue helmets’ perceiving the erosion of trust caused by the lack of accountability to be a key challenge for the UN in the foreseeable future.

History of Peacekeeping Missions

The first peacekeeping mission was deployed in 1956 to Egypt for the Suez Crisis with the mandate to observe the ceasefire and ensure the withdrawal of forces.⁴ The force had little authority to intervene and the guiding principles of future peacekeeping operations would emerge from this one, namely, impartiality, consent of the host state, and the non-use of force except in self-defence and in defence of the mandate.⁵ Since then, these operations have evolved and many missions are now no longer so passive. Peacekeeping has sometimes graduated into the more aggressive ‘peace-enforcement’ with no clear line between the two.⁶ This development began in March 2013, when the Security Council created the Intervention Brigade within the peacekeeping operation in the Democratic Republic of the Congo.⁷ The Brigade was allowed to offensively engage with rebel combatants and neutralise armed groups, a sharp departure from the traditional three principles of peacekeeping.⁸ It has been argued that these more aggressive operations blur the lines between peacekeeper and peacemaker and may have dangerous repercussions on the safety of UN personnel whose blue helmets no longer signify elements which are not party to the conflict.⁹

Operations have also evolved to include more complex ‘peacebuilding’ activities which are usually considered to be the prerogatives of nation states. Multifunctional missions are now being established which are deployed to post-conflict situations to engage in peacebuilding.¹⁰ This generation of peace operations includes the provision of services such as election monitoring, promotion of human rights, disarmament, humanitarian assistance, rule of law-activities, and even the administration of a territory.¹¹ It is not always clear what law is applicable to such situations and this leads to confusion in determining which mission is mandated to perform which task and at what stage of the conflict, namely whether they are there for peacekeeping, peacemaking, peacebuilding, or even a mix of all three.¹²

Peacekeeping Operations and the Law Applicable

Peacekeeping operations find no mention in the Charter of the United Nations, however, most agree that the legal basis for consensual operations fall between Chapter VI and Chapter VII which was conceptualised by Dag Hammarskjold as “Chapter VI and a half”.¹³ The Security Council has also used enforcement action under its Chapter VII mandate to maintain or restore international peace and security. These operations do not require the consent of the host state and peacekeepers may take sides in a conflict and use offensive force.¹⁴ Peacekeeping troops serve under the UN flag but wear their own state’s military uniform and they are identifiable as UN peacekeepers by a blue helmet or beret and a badge.¹⁵ Their forces are formed from the voluntary contributions of member states who are asked to participate by sending their national troops.¹⁶ An area about which there has been much debate is regarding what law applies to such forces and at what stage, which is not clearly demarcated in the literature available.

The Applicability of IHL

The applicability of international humanitarian law to peacekeeping operations has long been a controversial question. The UN attempted to clarify the debate in 1999 when the Secretary General issued a bulletin which, while not legally binding, articulates a set of cardinal principles and rules of IHL which apply to UN forces when they are in an armed conflict.¹⁷ It states that:

The fundamental principles and rules of international humanitarian law set out in the present bulletin are applicable to United Nations forces when in situations of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement.¹⁸

Those peacekeepers not engaged in conflict are viewed, as confirmed by the Special Court for Sierra Leone, as “civilians only insofar as, they do not take direct part in the hostilities”.¹⁹ The Court also held that their protection would not cease if they used force in self-defence provided it is limited to such use.²⁰ Once they do use force to engage in a conflict, however, they are bound by certain IHL principles. These principles include: protection of civilian populations from attack, restrictions on the use of means and methods of warfare which cause unnecessary suffering, prohibition on ordering no quarter, prohibitions on attacking cultural objects or objects indispensable to the survival of the civilian population, and requirements regarding the specific treatment of civilians, those hors de combat, prisoners and wounded.²¹

However, the Bulletin poses more questions than it answers as it leaves open the question of when combatants are deemed to be ‘actively engaged’ in a conflict.²² It may be difficult in the field where hostilities are taking place to determine whether the threshold of an armed conflict has been reached and whether IHL applies.²³ The UN may also be wary of accepting that it has become a party to the conflict due to the principle of impartiality.²⁴ The application of IHL is all the harder when it comes to non-international armed conflicts as it remains unclear what legal rules apply to forces in such operations.²⁵

Whittle suggests that peacekeeping operations be delineated from peacemaking operations as a lack of distinction between the two could lead to deleterious consequences for those peacekeepers who are not party to the conflict.²⁶ He argues that this could be achieved by forgoing the blue beret or blue helmet for enforcement operations as well as the use of UN white vehicles and instead that different insignia or logos entirely should be used.²⁷ This would allow for combatants to know at a glance which personnel can be targeted and which cannot.²⁸ He also notes that it may even be perfidy to use UN insignia and logos without modifying them, given their protected status.²⁹

Issues relating to the applicability of IHL compound problems with accountability for peacekeepers. It has been argued that the difficulty in prosecuting peacekeepers by international courts is due to the fact that there is no clear position regarding the applicability of IHL to them.³⁰

SOFAs/SOMAs

The laws otherwise applicable to peacekeepers are determined by Status of Forces or Status of Missions Agreements. Status of Forces Agreements (SOFAs) are signed between the UN and the host state and it defines the legal status of both the operation and individual peacekeepers’ conduct while on their mission. The UN provides a Model SOFA as a template which also includes provisions relating to jurisdictional immunity and the mission’s territorial limitations.³¹ The consent of the host state to the peacekeeping operation is usually also formalised in the SOFA.³² Most SOFAs contain provisions stating that peacekeeping forces are to respect the laws of the host state – however, practically this has little effect and is mere lip service to the fact that the law of the country forces are in should be complied with.³³ Moreover, it is not always easy to follow this law, as it may not be clear what the law is or there may be concerns if it is of a discriminatory nature or does not meet universal human rights standards.³⁴

The criminal law of the troop contributing state applies extraterritorially to military personnel who can be tried in their home state for actions committed abroad.³⁵ SOFAs will usually provide for peacekeepers to be subject to the exclusive criminal jurisdiction of their home state for all offences committed in their host state.³⁶ This can be problematic given the lack of legal certainty as the law that applies will vary from person to person in the peacekeeping force depending on which country they are from.³⁷ Moreover, there is no requirement that the troop contributing state criminally prosecute the actions of repatriated peacekeepers.³⁸ If local authorities want to bring charges against a peacekeeper they require special permission from a representative of the Secretary General who will carry out their own investigation and then decide, with the host state’s government, whether proceedings should be instituted.³⁹

Issues with Accountability

Military members of national contingents in peacekeeping operations fall under the ‘exclusive jurisdiction’ of the troop contributing country as provided under paragraph 47(b) of the Model SOFA.⁴⁰ This is because most troop contributing countries would not allow their personnel to be governed by foreign jurisdiction.⁴¹ Those who are not considered to be military members of the contingent and provide a civilian role are covered by UN personnel status and immunities.⁴² UN peacekeeping missions are subsidiary organs of the UN and therefore these members enjoy the status, privileges, and immunities found in Article 105 of the UN Charter as well as in the 1946 UN Convention on the Privileges and Immunities of the UN.⁴³

The Secretary-General has stated that “[i]f the rule of law means anything at all, it means that no one, including peacekeepers, is above the law.”⁴⁴ However, peacekeepers have rarely been prosecuted for crimes committed during their missions as their home states are reluctant to prosecute them for abuse of their station.⁴⁵ Some UN reports have stated that there exists a jurisdictional gap when a crime is committed in a host state which is unable to prosecute the peacekeeper responsible, either because of the conflict in the country or due to instability.⁴⁶ There are also arguments made that where the host state has a ‘dysfunctional legal system’ it may not be in the interests of the UN to agree to that state exercising jurisdiction, especially if the local system cannot fulfil internationally recognised standards of criminal law which may violate the right to a fair trial.⁴⁷

If the troop contributing country then does not hold the offender responsible, the alleged criminal will remain unpunished.⁴⁸ They may also not be punished enough leading to a perception of impunity for criminal acts committed abroad. For instance, a Canadian Court Martial Appeal Court in 1996 acquitted a peacekeeper for aiding and abetting the commission of torture of a 16-year old Somali civilian.⁴⁹ Moreover, Belgian paratroopers who roasted a Somali boy above a brazier were sentenced to only one month in prison and a 200 dollar fine.⁵⁰ Similarly, Italian peacekeepers who were allegedly involved in sexual abuse and rape in Somalia only had disciplinary action taken against them, as their acts were not considered criminal conduct.⁵¹ This is not to say that all countries contribute to this perception of impunity as there are also examples of states who have prosecuted their own peacekeepers. For instance, Canada held an inquiry investigating the conduct of its peacekeepers in Somalia which found that they had claimed that they had misunderstood the level of use of force authorized through their rules of engagement, and one of them was found guilty of second-degree murder.⁵² However, the issues relating to accountability remain systemic as they depend on troop contributing countries and their willingness to hold their forces accountable.

Some argue that this is a problem as most peacekeeping operations consist of troops from developing countries who are often not provided with sufficient training or equipment and in fact these countries participate so that they can acquire this as well as the attendant monetary incentives.⁵³ Developed countries are also less likely to commit their troops to the UN as they are unwilling to risk their soldiers’ lives, sometimes, such as in Liberia, they have refused to participate outright.⁵⁴ Moreover, on the Security Council, the USA, UK and France are often involved in drafting resolutions which recommend robust mandates leading to accusations from the global South that these states “are pursuing an agenda that put other troops on the frontline while western states stay on the sidelines”.⁵⁵ However, that said, most of the examples of impunity including those looked at above are of peacekeepers from developed countries in developing countries.

Responsibility of the UN

Article 5 of the International Law Commission’s Draft Articles on the Responsibility of International Organizations prescribes the use of the ‘effective control’ test to determine whether the conduct of peacekeeping forces is attributable to the UN. This test applies to each specific unlawful act in order to determine whether the act in question was performed under the control of the UN or the sending state. If it was carried out under the direction and control of the UN, it will be responsible for the conduct, whereas if it was executed under the instructions of the sending state, the conduct would be attributable to that state.⁵⁶ It has been argued that peacekeepers are generally under the effective control of the UN for so long as they are placed at the organisation’s disposal except for when the troop contributing country may override the Force Commander’s instructions and assume effective control.⁵⁷ Though not in all cases; a decision by the Dutch Supreme Court held that the Netherlands was responsible for the deaths of three Bosnian Muslim men in the 1995 Srebrenica massacre after Dutch peacekeepers forced them to leave the UN compound during the massacre and they were then killed.⁵⁸ The Supreme Court found that though both the UN and the Dutch government had some control over the troops, the Dutch government had ‘effective control’ during the time that the conduct occurred and was therefore responsible for the peacekeepers’ actions.⁵⁹

Some argue that dual attribution may also be possible when instructions are jointly issued, however, in practice attribution has usually been to only one entity.⁶⁰ Leck argues that the “numerous instances of peacekeepers taking directions from home countries over that of the Force Commander’s instructions illustrates that the UN has no real authority or means to control the peacekeepers, absent the TCC’s concurrence” and thus it would be appropriate to consider peacekeepers as under the dual or joint control of the UN and their sending state.⁶¹

Article 6 of the Draft Articles further state that conduct which exceeds the authority of the organ or contravenes instructions remains attributable to the international organization so long as they are performed in their official capacity. The UN has accepted responsibility for the ultra vires acts of peacekeepers in Congo and in the UN Emergency Force who opened fire and killed civilians without receiving any instructions to do so.⁶² On the other hand, the UN has stated that it is not responsible for the ‘off-duty’ conduct of peacekeepers, this includes for instance acts of sexual exploitation and abuse or human trafficking.⁶³ It would then fall to the troop contributing country to exercise its jurisdiction for such crimes committed by members of its military contingent.⁶⁴ A key issue is what constitutes a non-official and therefore private act. In the case of The Government of Israel v. Papa Coli Ben Dista Saar, it was held that a Senegalese member of the United Nations Interim Force in Lebanon (UNIFIL) accused of smuggling explosives into Israel could not claim immunity under the SOFA.⁶⁵ The court established that a private, illegal act by a peacekeeper while off-duty could not be attributed to the UN.⁶⁶

Conclusion

Peacekeeping forces should be guided by principles and standards that are clear and detailed so that local populations can be confident about the parameters within which they operate and the functions and tasks they are mandated to carry out.⁶⁷ It is important to identify and prosecute those responsible for violations in the host state as credibility is critical to the missions’ success.⁶⁸ It is also crucial because lack of accountability may lead to tensions with local communities which could compromise the efforts of a peacekeeping mission and erode the trust placed in them. The purpose of such operations is to protect individuals who are in situations of suffering.⁶⁹ Radhika Coomaraswamy, Special Rapporteur on Violence against Women, stated that the UN would lose ‘its moral force if it fails to respond when those within the United Nations system violate human rights’.⁷⁰ The UN would also be perceived to be complicit in such violations if they were not prosecuted or if they were cloaked by UN immunity.⁷¹ The organisation’s main challenges in the foreseeable future are to address the accountability gap and questions of responsibility, as well as ensuring the protection of civilians as part of ever-expanding peacekeeping mandates.