The Security Council and Peacekeeping: Part II – A New Framework
By Kirthi Jayakumar
Although one may be wont to perceive these provisions as reason enough for the establishment of peacekeeping missions as falling under the Security Council’s functions, the insufficiency and inadequacy of legal provisions cannot be overemphasized. A Security Council Resolution may reflect the ethos prevalent in the international community, but it is not law for the simple reason that it has too many political connotations to it as opposed to legislative value.
For starters, the UN Charter does not explicitly authorize peacekeeping. But the Security Council has built the edifice of its peacekeeping missions in Chapters VI and VII. This is, of course, not the only instance of a violation of the UN Charter – there are several international practices that side-step some of the core values of the UN Charter – falling outside the scope of this paper and hence reserved for another time. On a closer look, even the sets of provisions that the Security Council relies on do not, in their grammatical meaning, authorize anything beyond what they speak of. Chapter VI speaks of peaceful settlement of disputes and grants, where the Security Council has the authority only to make recommendations, and not to take military action, and that all member states are to carry out the decisions so taken.[1]Under Chapter VII the Security Council can take measures that include the use of force, to maintain or restore international peace and security without the consent of the parties concerned.[2]Peacekeeping does not fall under either category. The establishment, implementation and evaluation of a peacekeeping mission fall squarely outside the ambit of Chapter VI, which only offers room for dispute referrals and settlement recommendations. It does not fall under the ambit of Chapter VII either, because a necessary precondition for a peacekeeping venture is the parties’ consent. With no actual basis for legitimacy, as former UN Secretary General Dag Hammarskjold said, the legal foundation of traditional peacekeeping lies in “Chapter VI1/2”.[3] In support of Chapter V1/2, proponents argue that though it relies on consent of the parties, the consent spoken of is “constructive, even fictive: acquiescence rather than vocal agreement, consent by a de jure leader who lacks local control, or a de facto war lord who lacks any representative legitimacy.[4]
Although in its initial days, peacekeeping operations did involve consent[5]more recent ones have relied on Chapter VII, and have taken place without prior consent of parties concerned.[6]But this actual lack of legal basis for the birth of peacekeeping missions under the aegis of the Security Council has never been questioned, nor been a cause for concern. As many as 69 peacekeeping missions since 1945 have come into operational existence.[7]There has neither been a move nor an attempt to establish a legislative framework to authenticate any peacekeeping venture so far. Instead, the extant regime has been upheld as valid by different courts and tribunals. The International Court of Justice, in 1962 ruled that traditional peacekeeping was valid in law, on account of the fact that it warranted the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, and thus was not ultra vires.[8]The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) ruled that the UN Security Council had broad discretion in determining measures that may be taken under Chapter VII of the UN Charter, and that it had a very wide “margin of discretion under Article 39 to choose the appropriate course of action and to evaluate the suitability of measures chosen.”[9]If this interpretation were to be adopted as “the correct way”, it would automatically mean that the Security Council enjoys the legitimate authority to carry out peace operations of any kind – whether traditional or otherwise. This interpretation is myopic at best. There have been doubts on the line of thought advanced in legitimizing peacekeeping under the rubric of the Security Council’s powers even within the United Nations.[10]
There is a general tendency to overstretch existent laws to cover every gap that arises. But that is an inappropriate approach when it comes to handling a dynamic realm – for the law itself is necessarily expected to be as dynamic as the realm it governs and handles. The Security Council may be able to stretch the textual framework to handle peacekeeping within its fold. But, it is invariably a much tougher task to deliver time and again in implementation.[11]There is no basis for the regulation of a peacekeeping mission, save for a mandate that is created on a need-of-the-hour basis. The Status of Forces Agreement is exclusively confined to the deployment and logistics concerning the deployment of military and political personnel, and the jurisdictional control over them. It does not establish standards and practices that must guide behaviour, and does not offer a framework for the peacekeeping operation in itself. There is no code of conduct, nor any tool for monitoring and evaluation. Consequently, there is neither a standardized basis for behaviour for peacekeepers, nor a tangible means to measure the impact of each mission, nor a legitimate law that lays down the permitted spectrum of activity.
What should A New Framework Call for?
A typical law governing peacekeeping must address several questions. What body should regulate a peacekeeping mission? Who determines if a situation is ripe enough to warrant intervention by peacekeeping? Can force be used? Who can use force? When can force be used? How much force can be used? What happens if a peacekeeper indulges in continuing a state of impunity? These questions will continue to remain blurred lines until there is an effective law to address them.
Primarily, peacekeeping must pursue a just cause centered on the agency of those whose peace must be kept. A situation warranting the need for peacekeeping will essentially be one in need of creating lasting conditions of peace – and on the terms of those that need to keep that peace. Situations that could warrant peacekeeping could involve anything from a state representing the proclivity towards large-scale human rights abuses, genocide, ethnic cleansing, or a state where such things have already begun taking place, or a situation where the state has collapsed and its people are in danger. It is necessary to evaluate the facts particular to each situation – only when a state is found either incapable, or capable but unwilling, to rise to the challenge and to help its people, that external intervention would be justified.
Second, there should be an authority to oversee the peacekeeping process. Aside from authorization of the process itself, it is necessary, as much as possible, to keep the analysis of each situation as objective as possible. An authority to oversee the peacekeeping process can remain unbiased and engage with the finer details of whose peace is being kept, for what purpose, and how. This would also pave the way for dispute resolution and course correction if the need so arises in the process.
Third, there should be a set of principles guiding the process of peacekeeping. The process of peacekeeping is not retaliatory. Peacekeepers must adhere to expected conduct and not indulge in immoral activities of any sort, nor be a part of the reason for the continued subsistence of the conflict that they are meant to control. As it currently stands, peacekeeping forces do not fall under the jurisdictional control and ambit of the United Nations, but remain under the control of their own countries and their commands. The United Nations has no troops to its own credit – and instead, therefore, requires that member countries contribute troops as required. To this end, the perceptions of the troop contributing countries and peacekeeping mission does play a part in so far as the appropriateness of the mission itself is concerned.[12]Consequently, there is no singular and unified method of checking impunity, and there is no singular chain of command. A case in point is sexual violence, rape and prostitution that was found rampant in the DR Congo and Burundi.[13]
Having the troops respond to the UN for peacekeeping duties, but their own countries’ military force authorities decentralizes the chain of command, which can destroy the fabric of the system. Fourthly, peacekeeping should be peaceful, using force only as the last resort. Non-military options need to be exhausted entirely, and only when they fail to achieve results, should force be contemplated. Peacekeepers do not retaliate, nor use force in principle. However, if there is a need to use force, it should be a matter of last resort, and when push comes to shove, in situations of absolute necessity, it should be proportionate and non-military in nature. Use of force can be of two kinds – strategic, where the very process of using force is a part of a concerted, planned and driven strategy to wage force as an offence, and, two, tactical, where the process relates to using force as a response mechanism, in self-defence.[14]The only acceptable form of force till date is the use of force in self-defence, countering an armed attack. Per Article 51, the force used as self-defence must essentially be proportionate to the force that was used in the armed attack. This is an oft-emphasized rule, be it in customary law or in judicial opinion. As to what is proportionate, only an analysis of the facts and circumstances peculiar to each case could prove useful in determining the quantum of force to be used.
[1] UN Charter Articles 33–38.
[2] UN Charter Articles 39-51.
[3] General Assembly President Says United Nations Peacekeeping Activities Should Be Strengthened as Effective Tool for Maintaining Peace, U.N. GAOR Press Release, at 2, U.N. Doc. GA/SM/66 (1998)
[4] Ruth Wedgwood, The Evolution of United Nations Peacekeeping, 28 Cornell International Law Journal 631, 636 (1995)
[5] UNMOGIP (Kashmir), UNFICYP (Cyprus); See generally Bruno Simma et al (eds.) The Charter of the United Nations: A Commentary (Oxford University Press, 1995) 578
[6] Jarat Chopra, The Space of Peace-Maintenance, 15 Political Geography 335, 341 (1996); Michael Stopford, Peace-Keeping or Peace- R Enforcement: Stark Choices for Grey Areas, 73 University of Detroit Mercy Law Review (1996) 499, 500–02
[7] www.un.org/en/peacekeeping/
[8] Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), 1962 International Court of Justice 151, 168 (July 20)
[9] Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 35 International Law Materials 32, ¶ 32 (International Criminal Tribunal for Former Yugoslavia, Appeals Chamber, October 2, 1995)
[10] Panel on United Nations Peace Operations, ¶ 19, UN Doc A/55/305-S/2000/809 (2000), stating “without significant institutional change, . . . the United Nations will not be capable of executing the critical peacekeeping and peace-building tasks that the Member States assign it in coming months and years.” This was later reiterated by the Secretary General: “Given the potentially large challenges and costs such comprehensive peacebuilding often encompasses, it is essential to ensure that all key parts of the United Nations system are fully engaged in a collaborative and constructive fashion. . . . [N]o single department or agency can be expected to devise and implement, on its own, all the elements of a comprehensive peace strategy.”
[11] Simon Chesterman, International Peace Academy Project on Transnational Administrations, You, the People: The United Nations, Transitional Administration, and State Building 2 (2003), available at http://www.ipacademy.org/PDF_Reports/YOU_THE_PEOPLE.pdf
[12] Alex J. Bellamy and Paul D. Williams, ‘UN Force Generation: Key Lessons and Future Strategies’, in Bellamy and Williams, Providing Peacekeepers, 439
[13] in 2004, the UN investigated as many as 150 allegations of sexual misconduct by members of the peacekeeping troops in Burundi and the DR Congo. These included, among other things, rape, paedophilia and even prostitution. Especially in the DR Congo, there have been tremendous numbers where instances of sexual violation are concerned. The Office of the Internal Oversight Services took up a four-week investigation study in early 2006 in the DRC. They documented 217 allegations of sexual abuse and exploitation that were committed specifically by 75 UN peacekeepers. The victims aged between fifteen and eighteen, and many of these girls consented to the sexual mistreatment because they were promised money, food, clothing and other aid requirements. Many of the girls were found pregnant with babies fathered by erring peacekeeping staff. The OIOS’ report revealed that only one girl was open to being quoted on record, so that her case could be actionable. See generally: “Report of the Office of Internal Oversight Services on its investigation into allegations of sexual exploitation and abuse,” 5 April 2007, Paragraphs 26b & 26c [UN doc. A/61/841]; “UN Peacekeepers Failed DR Congo Rape Victims,” story published by Radio Netherlands Worldwide, 8 September 2010. http://www.rnw.nl/international- justice/print/177178; “The UN has Suspended Two Peacekeepers Serving in Burundi following Allegations of S exual Misconduct,” by Susannah Price, BBC News, United Nations , 27 December 2004; “UN High Commissioner for Human Rights Calls Peacekeepers’ Prostitute Use Sexual Exploitation,” Agence France-Presse , Helsinki, 2 December 2004
[14] See generally Anthony Clark Arend and Robert J. Beck, International Law and the Use of Force: Beyond the UN Charter Paradigm (Routledge, 1993)