Emerging Voices: Distinction without a Difference – The UN’s Attempt to Fight A War Without Fighting A War

by Leslie Schildt

[Leslie Schildt is a criminal prosecutor at the Monroe County District Attorney’s Office in Rochester, New York and previously worked in the Office of the Prosecutor at the International Criminal Court in the Hague.]

Earlier this year, the United Nations created its first ever offensive combat force – the “Intervention Brigade.”  It enters the Democratic Republic of Congo (DRC) as part of MONUSCO, the long-standing United Nations peacekeeping operation in the DRC.  According to Security Council Resolution 2098, the Intervention Brigade will act unilaterally or alongside the Congolese army.  The Brigade is a creature of Chapter VII of the UN Charter, which governs peace enforcement operations.  The force will execute “robust, highly mobile … targeted offensive operations” to find, engage, “neutralize,” and disarm the heavily armed rebel forces.  This is an unprecedentedly aggressive humanitarian combat force that arguably is the first of its kind.

The Intervention Brigade raises serious questions regarding how the offensive mission might affect the non-combatant peacekeepers in MONUSCO.  To understand the potential dangers to peacekeepers and how to avoid them, one must first understand the core legal distinctions between peacekeepers and peace enforcers.

UN peacekeeping operations operate under three bedrock principles: (1) Consent of the main parties, (2) impartiality, and (3) non-use of force except in self-defense and in defense of mandate.  Consent of the parties requires commitment and acceptance from the main parties to the conflict.  Without consent, “the peacekeeping operation risks becoming a party to the conflict; and being drawn towards enforcement action.”  Impartiality requires the peacekeepers’ even-handed treatment of all parties to the conflict, but not neutrality in execution of their mandate.  Indeed, where one party commits blatant violations, “continued equal treatment of all parties by the United Nations can in the best case result in ineffectiveness and in the worst may amount to complicity with evil.” (Brahimi Report)  Peacekeepers also cannot use force except in self-defense or in defense of mandate.  “Defense of mandate” may accommodate offensive use of force in some circumstances (e.g., to protect civilians under imminent threat), but peacekeepers certainly cannot lawfully conduct offensive seek-and-disarm missions.

Because peacekeepers are not “used outside the humanitarian function to conduct hostilities,” they remain protected as civilian non-combatants.  During an armed conflict, “all persons who are neither members of the armed forces of a party to the conflict . . . are entitled to protection against direct attack unless and for such time as they take a direct part in hostilities.”  This attribute enables combatants to distinguish lawful enemy targets from protected persons.  However, it is another matter entirely when peace enforcement units conduct aggressive seek-and-pacify operations.

Peace enforcement is the “application, with the authorization of the Security Council, of a range of coercive measures, including the use of military force . . . to restore international peace and security.”  Unlike peacekeepers, peace enforcers do not enjoy protected status because they are a party to the armed conflict.  Peacekeepers’ protected status is inapplicable to UN forces acting under Chapter VII when “any of the [UN] personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies.”

Armed military groups become a party to the conflict whenever there is “at least a de facto relationship between an organized military group and a party to the conflict.” The relationship may be official or “expressed through tacit agreement or conclusive behaviour that makes clear for which party the group is fighting.”  Under this status, a UN force can be subjected to lawful military attack.

When a combatant ignores the distinction between peacekeepers and lawful enemies and attacks peacekeepers, that combatant can be prosecuted for war crimes. See Prosecutor v. Bahar Idriss Abu Garda and Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus (prosecuting three rebel commanders for leading an attack on African Union peacekeepers in Darfur.)  However, a successful prosecution requires the prosecutor to prove that the peacekeepers were “entitled to the protection given to civilians . . . under the international law of armed conflict” and that “the perpetrator was aware of the factual circumstances that established the protection.”  To prove these elements, prosecutors often point to the peacekeepers’ distinctive uniforms, colors, and emblems to argue that the attackers knew that they were attacking protected peacekeepers, not an enemy force.

Blurring the lines between the Intervention Brigade and civilian branches of MONUSCO compromises the legal status of all UN peacekeepers in the DRC.  The Intervention Brigade will likely use the normal UN uniforms, colors, and insignia – baby blue helmets, white vehicles and structures, the UN emblem, and the UN flag.  Much like the Red Cross, Red Crescent, and other humanitarian organizations, the rationale behind the UN colors and insignia was to make UN personnel and objects highly visible and clearly distinguishable from “enemy” personnel and objects and thereby prevent attacks on UN personnel and objects.

If UN forces become a party to an internal armed conflict while using the same uniforms, colors, insignia, and basecamps as the non-combatant units of MONUSCO, the UN will have created a distinction without a difference.  This could endanger personnel and bases regardless of whether they are soldiers with the Intervention Brigade or civilian volunteers.  Given the rebels’ history of blatantly violating international law, it is unlikely that the rebels will endeavor to make fine legal distinctions when some “blue helmets” are attacking them and other “blue helmets” are supposedly-protected civilians.

Were a civilian peacekeeper targeted and killed in a rebel attack, the blurred legal distinctions between peacekeepers and the Intervention Brigade could preclude the prosecution of the perpetrator under the laws of armed conflict, as it would be a daunting, if not impossible, task to demonstrate the perpetrator knew he was attacking “protected” civilians.

The Intervention Brigade is an unquestionably essential and worthwhile venture.  However, the UN must draw a bold line of demarcation between the Intervention Brigade and civilian MONUSCO peacekeepers.  This should include the use distinctive uniforms, colors, insignia, and base camps so that no reasonable person could ever confuse the two.  Ultimately, without vivid distinctions between the Intervention Brigade and MONUSCO, there is an imminent danger that civilian peacekeepers in the DRC will be injured or killed, and the perpetrators would escape prosecution because no prosecutor could prove that the perpetrator knew he was attacking protected civilians.

http://opiniojuris.org/2013/07/29/emerging-voices-distinction-without-a-difference-the-uns-attempt-to-fight-a-war-without-fighting-a-war/

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