Identifying Legal Gaps in International Humanitarian Law Governing Peace Operations
By Varun VM
Published on 29 November 2023
This post highlights the importance of identifying legal gaps in international humanitarian law (IHL) applicable to peacekeeping operations. It explores the complexities of peacekeeping, including the multidimensional nature of missions and the challenges associated with distinguishing combatants from non-combatants. Additionally, it emphasises the need for a comprehensive review of IHL to address the evolving dynamics of peacekeeping and ensure the protection of personnel involved in peace operations.
The Dynamic Evolution of Peacekeeping
The genesis of United Nations (UN) peace operations can be attributed to the indispensable requirement of maintaining international peace and security, and their evolution is shaped by the practice of the UN to respond effectively to the dynamic nature of armed conflict. Traditionally, the capstone doctrine i.e., the principles and guidelines governing UN peacekeeping operations, encompassed three mutually reinforcing principles: consent of the parties, impartiality, and non-use of force. However, there has been a notable evolution in the capstone doctrine resulting from the transition from two observation and monitoring-based peacekeeping operations established in the late 1940s (the United Nations Truce Supervision Organization and the United Nations Military Observer Group in India and Pakistan), to the first armed peacekeeping operation deployed to address the Suez Crisis in 1956 (the UN Emergency Force), and subsequently to the 21st century United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA) with robust mandates. This evolution encompasses a shift in the approach to the use of force, progressing from a strict prohibition on its use, to the restriction of force solely for self-defence purposes, and ultimately to the authorisation of force to defend the mission’s mandate. The chronicle of UN peace operations, encompassing more than 70 missions, stands as a testament to the unwavering dedication and selflessness displayed by peacekeepers, including the ultimate sacrifice made by over 3,000 personnel defending the ‘blue flag’.
Crimes committed against peacekeepers experienced a notable upsurge from the year 2013 onwards, which engendered a climate of impunity that subsequently escalated in the perpetration of malicious acts targeting peacekeepers. States and International Organisations have indeed expressed strong condemnation towards these crimes. However, the upward trajectory of crime rates has persisted at a significant level despite the implementation of various resolutions, such as UNSC 2589 (2021), initiatives like the Secretary General’s Action for Peacekeeping and Action for Peacekeeping+.
The primary objective of the recently launched Project on the implementation of UNSC 2589 (2021), which focuses on promoting accountability for crimes against peacekeepers, is to address the operational and technical deficiencies that contribute to crimes against peacekeepers and the resulting lack of accountability. However, as Thierry Kaiser & Carlijn Ruers concluded, UN Peacekeepers are parties to a conflict when engaged in contemporary peace operations, which makes it significant to analyse the present legal framework, specifically focusing on the protection granted to peacekeepers in accordance with IHL.
What justifies the necessity for a revaluation of the legal framework?
The revaluation of the legal framework regulating peacekeeping operations is undertaken with a careful consideration of the established rules of international law pertaining to armed conflict. In this nuanced approach, the objective is to address the evolving nature of peacekeeping operations by consolidating disparate legal provisions into a coherent and comprehensive framework. The revaluation is anticipated to serve as an instrumental tool for identifying and addressing gaps within the current legal regime.
International organisations are bound by customary international law (CIL). This legal framework holds particular significance in the context of peacekeeping forces, CIL, demonstrating its practical relevance. However, the crux of the matter is whether CIL, originating from state practice, adequately reflects the unique needs and contemporary operational realities of UN peacekeeping forces.
UN peacekeeping does not fall within the category of, international armed conflict, which involves one or more States taking recourse to armed force against another State. UN peacekeeping operations do not neatly fit into the traditional definition of non-international armed conflict either, which typically involves protracted armed violence between a state’s armed forces and dissident or rebel groups, or between multiple non-state actors within a state that may not involve government troops. UN peacekeeping operations fit into a sui generis category, unless they are mandated to engage directly in hostilities. The example of MINUSMA’s militarisation illustrates how a UN peacekeeping mission can provide military assistance to the armed forces of a host country, becoming a party to the conflict. However, the ‘law’ is readily applied to the situation, an international or non-international armed conflict, without taking into account the underlying objectives and motivations of the parties to conflict. The question is whether there is an any distinction between UN peacekeeping acting under the mandate of the Security Council and in the interest of the international community, and state or non-state actors who pursue their own agenda/political gain. The inquiry concerns whether peacekeeping operations that entail robust mandates or enforcement elements can be distinguished from non-international armed conflicts. It also considers whether the practices of the UN and the progressive development of IHL necessitate the recognition of a distinct third category, separate from the existing categories of international and non-international armed conflicts. The justification for the third category rests on motives underlying the actions of the conflicting parties. The current process of determining the existence of armed conflict relies exclusively on two criteria: the intensity of the conflict and the organisational structure of the involved parties. Within this framework, the purpose of armed forces in engaging in acts of violence or pursuing additional objectives is deemed irrelevant. Nevertheless, the lack of consideration for the ‘motive of parties,’ though challenging to ascertain, particularly in instances of non-international armed conflict, may predispose a biased perception, potentially leading to the misclassification of peacekeepers as parties to the conflict.
A second justification revolves around the notion of ‘military necessity’ and ‘legitimate military purpose.’ In armed conflicts, the only military necessity is to weaken the military capacity of other parties to the conflict. In contrast, in the context of peacekeeping, the mandate typically encompasses various activities such as disarmament, demobilisation, and reintegration of ex-combatants (DDR), mine clearance, security sector reform, protection and promotion of human rights, electoral assistance, support for the reestablishment of state authorities, and the promotion of social and economic recovery and development. These mandates highlight the multifaceted nature of peacekeeping operations which is distinct from military necessity. Moreover, scholarly literature corroborates the assertion that the ‘multidimensional’ character of UN peacekeeping, which incorporates military, police, and civilian elements, amplifies the susceptibility of deployed forces to harm, as the opposing faction may lack the capacity to differentiate between individuals with combatant status and non-combatants who enjoy absolute protection against attack. This indicates that there is a need to undertake a comprehensive examination of how the new model of peacekeeping aligns with the fundamental tenets of IHL, including the principle of distinction. The challenge of considering the entire mission as a party to the conflict emerges due to the internal structure of the mission, characterised by a lack of clear distinctions. Illustrated by the case of the UN Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO), the Force Intervention Brigade (military component) and diverse civilian components operate from a shared military base and rely on other infrastructural aspects. This amalgamation blurs the lines between the military and civilian components, creating a compromised delineation that has the potential to undermine the protection provided.
A third justification pertains to the impartiality and independence of peacekeeping missions. This is of the utmost importance to troop contributing countries (TCC). November 2022 witnessed France, United Kingdom and Côte d’Ivoire withdrawing their troops from MINUSMA. According to a report by Reuters, the withdrawal of peacekeeping forces was purportedly motivated by the alleged collaboration between the Malian government and the Wagner Group, a Russian paramilitary entity. While this reason may not have direct relevance to the topic under discussion, it still highlights the fact that political decisions made by the host government can impact the presence and operations of peacekeeping missions. Hence, it is argued that the existing practice, as outlined in the capstone doctrine, should be formally codified into law. This would entail legally recognising the principles of impartiality and independence of peacekeeping missions. By enshrining these principles in legal frameworks, it would provide a solid foundation for respective governments to uphold transparency and accountability in their dealings with peacekeeping operations, thereby fostering public trust and confidence.
Way ahead
In December 2022, a coalition of prominent TCCs established an informal group known as the ‘Group of Friends to Promote Accountability for Crimes Against Peacekeepers’ to facilitate the implementation of UNSC 2589. During a recent meeting, the participating countries emphasised the significance of close coordination among the United Nations Secretariat, the Peacekeeping Missions, and the host state to enhance accountability for crimes against peacekeepers. Future deliberations may include inviting the views of States on the legal framework governing peacekeepers. In this regard, during the recently concluded 61st Annual Session of the AALCO, Professor (Dr.) Bimal N Patel, a Member of the International Law Commission (ILC), stated that he put forth a proposal to incorporate the topic of promoting accountability for crimes against peacekeepers into the ILC’s long-term programme of work. Recognised as an ideal platform, the ILC is poised to undertake a comprehensive examination of the rules governing the safety and security of peacekeepers, with a specific focus on addressing any legal voids within the framework of IHL.
About the Author Varun VM is an Assistant Professor (Research) at the RRU Centre for International Law, Rashtriya Raksha University, India.