Emerging Voices: What’s in a Mandate? Protecting Civilians in South Sudan

by Bart Smit Duijzentkunst

[Bart L. Smit Duijzentkunst recently received his PhD in international law from the University of Cambridge. He will be teaching international law at the Fletcher School of Law and Diplomacy, Tufts University, in the 2015 fall semester.]

When, in December 2013, the United Nations Mission in South Sudan (UNMISS) opened its gates to thousands of civilians fleeing violence in the wake of an alleged coup, it also opened a new chapter on the UN’s commitment to the protection of civilians. Two decades earlier UN troops had received vague orders to protect “safe areas” in Bosnia and Rwanda—with disastrous consequences. Today UNMISS is explicitly authorised to use “all necessary means” to protect civilians. Yet while the language of UN mandates has evolved, so have developments on the ground. UN policy-makers originally envisioned protection of civilians measures as short-term, localised interventions to ensure the physical safety of persons in acute emergency situations. In South Sudan, however, 18 months after the outbreak of hostilities almost 140,000 people continue to reside in so-called “protection of civilians sites” across the country. As a result, UNMISS peacekeepers are not simply called upon to protect against external threats, but also to maintain public safety and security within protection of civilians sites. But does their mandate cover these activities? This post briefly discusses the evolution of peacekeeping mandates before offering some reflections on UNMISS’ authority.

Protection of civilians mandates emerged in UN Security Council practice on the eve of the new millennium. In “traditional” mandates, the protection of civilians had been an afterthought, the fortuitous consequence of other peacekeeping objectives. For example, the mandate of UNPROFOR, operating in the Balkans in the mid 1990s, merely called upon the mission to deter attacks on so-called “safe areas”, to monitor cease-fires and to promote the withdrawal of military and paramilitary units from these areas. UNPROFOR could only take “all necessary measures”, including the use of force, in self-defence. Similarly, when UNAMIR in Rwanda was authorised to establish “secure humanitarian areas” in 1994, the UN Security Council recognised that the mission might be required to take action in self-defence to protect the areas, but did not explicitly authorise it to use force to do so.

Propelled by the failures in Bosnia and Rwanda, and encouraged by the emerging idea that the international community held a “responsibility to protect” vulnerable populations, in 1999 the UN Security Council started to explore the protection of civilians as an objective of peacekeeping. It began passing dedicated resolutions and included protection of civilians clauses in operational mandates. These “robust” mandates reflect a recognition by the Security Council that impartiality of UN peacekeeping operations “is not the same as neutrality or equal treatment of all parties in all cases for all time” and that in certain circumstances “peacekeepers may not only be operationally justified in using force but morally compelled to do so.”

In the same year, the UN Security Council vested certain missions with far-reaching administrative powers. UNMIK in Kosovo and UNTAET in East Timor were tasked to provide administrative functions while developing domestic institutions. In line with their “executive” mandates, these missions were empowered to draft local laws, implement domestic policies and administer justice, including arresting and sentencing alleged criminals, until these powers were transferred to local governments (in 2008 and 2002 respectively).

With these differences between traditional, robust and executive mandates in mind, let’s return to the situation of UNMISS. Following South Sudan’s independence on 9 July 2011, UNMISS’ initial mandate focussed on state-building and conflict resolution efforts; the protection of civilians was buried deep in its sub-clauses. These political ambitions went up in flames with the outbreak of violence on 15 December 2013, when an alleged coup triggered a civil war between Government forces, led by President Salva Kiir, and the Sudan People’s Liberation Movement/Army – In Opposition (SPLM/A-IO), headed by former vice-President Riek Machar.

In light of the persistent fighting and the massive influx of internally displaced persons and refugees onto UNMISS premises, the UN Security Council revised UNMISS’ mandate in November 2014 to make the protection of civilians its top priority. The new, robust mandate removes references to “imminent” threats, simply authorising UNMISS to “use all necessary means” to “protect civilians under threat of physical violence, irrespective of the source of such violence”. While housing, food and sanitation are principally provided by humanitarian organisations, UNMISS is in charge of “maintain[ing] public safety and security within and of UNMISS protection of civilians sites”.

This is not the first time that the UN has provided shelter to civilians on its premises: from East Timor to Palestine, over the last decades civilians have flocked to UN bases in the face of violence. The UN has developed various policies to deal with these situations, which range from setting out general principles to providing specific guidelines on civilians seeking protection at UNMISS sites (the latter drafted prior to December 2013). All these documents stress the exceptional and temporary nature of these measures: they speak of protection in terms of hours or days, not weeks or months. Yet as the conflict in South Sudan persists and peace remains elusive, what might have seemed a temporary measure at first has turned into a prolonged situation with few prospects of resolution.

With the passing of time the nature of the threats to displaced persons has changed. While outside threats remain, life inside the protection of civilians sites is becoming increasingly dangerous. Lack of employment and education opportunities causes rising frustration among the population. Reports of sexual harassment and criminality are the order of the day. In May of this year, a dispute over an alleged impregnation led to mass fighting among the population of the protection of civilians site in Juba, culminating in civilian deaths and the expulsion of thousands from the site.

How should UNMISS respond to these issues? UNMISS has argued that while it enjoys a robust mandate to respond to external threats, it lacks an executive mandate to effectively administer the protection of civilians sites: it has limited powers to draft its own rules, enforce them on the sites and punish violators. In its view, the law of South Sudan still applies to the sites and the government has the principal responsibility for upholding it.

This is an overly narrow reading of the UNMISS mandate, for at least three reasons. First, the labels “robust” and “executive” are descriptive, not prescriptive; they appear nowhere in the relevant resolutions, but have been developed in peacekeeping doctrine. The scope of UNMISS’ authority can only be determined on the basis of an interpretation of the text of its mandate, not by reference to artificially imposed categories.

Second, it turns on a flawed a contrario argument, according to which the lack of comprehensive administrative powers disables UNMISS from effectively responding to specific and contained situations. Particularly in light of the collapse of South Sudanese state institutions, absence of full executive authority cannot abscond UNMISS from its responsibility to effectively protect civilians residing on its premises.

Third, it disregards the actual language of the mandate, which authorises UNMISS to “use all necessary means” to “maintain public safety and security within and of” the protection of civilians sites. Nothing seems to bar UNMISS from taking temporary measures to establish law and order on the sites, such as prolonged detention of criminals, even if this goes against current UN policies.

The debate over UNMISS’ mandate mirrors discussions over the ability of MONUSCO to establish an “Intervention Brigade” in the Democratic Republic of the Congo. While the UN Security Council specifically authorised its creation, Major General Patrick Cammaert, the former UN Force Divisional Commander for MONUC, argued that this was not a legal requirement. In his view, “[t]he issue is not that proactive operations are not already authorized, but that troop contributors are risk averse, and show time and again a lack of political will to employ a full reading of the mandate, leading to accusations that it lacks robustness.”

Resolving tensions in protection of civilians sites in South Sudan is by no means an easy task. It requires creativity to think of new approaches, courage to implement them and cunning to navigate the political obstacles. UNMISS must face these challenges upfront and not be allowed to hide behind a terminological façade. As Major General Cammaert noted, a “mandate is only as strong as the will of the leadership and the [troop contributing countries] to implement it.” Bosnia and Rwanda have demonstrated what may result from a lack of political will. Now is the time for the UN to show how robust its commitment to the protection of civilians really is.

This post benefits from research conducted in collaboration with the Norwegian Refugee Council. Views expressed are those of the author alone and cannot be attributed to any organisation that he is or has been affiliated with.

http://opiniojuris.org/2015/08/11/emerging-voices-whats-in-a-mandate-protecting-civilians-in-south-sudan/

4 Responses

  1. Bart, thanks for this interesting peace. I sympathise with what you are arguing for, but I think you underestimate the impact of such contra legem interpretations of SC resolutions.

    Yes, it is theoretically possible to argue that MONUSCO already had the authority to deploy offensive military force against rebels in the DRC… one could easily construct an argument that the use of force ‘in defense of the mandate’ (not just ‘protection of civilians’) provides cover for neutralising spoilers, and so Res 2098 was “not a legal requirement”.

    Likewise, in South Sudan you can interpret the legal text of the SC resolutions in the way that you propose, ie maintaining law and order not just in support of the South Sudanese state, but in lieu of it.

    This is plausible as a matter of legal argumentation, but it has rather profound implications on the ground. Contrary to what you argue, (“Particularly in light of the collapse of South Sudanese state institutions”), the South Sudanese state has not collapsed. Sure enough, it does not exercise authority over the entirety of South Sudanese territory, but that is not the same as ‘collapse’. The South Sudanese government is very much in control of most of its territory, and can rather easily withdraw consent for UNMISS’s deployment. I don’t think it would do that, especially over this specific issue, but there are already serious tensions regarding more volatile issues (human rights violations, accusations of war crimes), so doing something contrary to established UN practice (by that I mean UN doctrine and local practice between South Sudan and the UN) probably requires more than a clever reading of the mission mandate.

    This point should be even clearer with respect to the DRC where deploying troops to implement offensive operations can backfire very quickly – as soon as troops start coming home in body bags, political support for any kind of peacekeeping evaporates. The UN knows it can’t take such decisions without the express support of TCCs.

    In that sense, yes, I agree with you that the obstacles are political, not legal. But that’s why I don’t fully understand your conclusion that “UNMISS must face these challenges upfront and not be allowed to hide behind a terminological façade”. Isn’t the root cause of the problem back in New York, where the SC can’t muster the courage to do what needs to be done? I don’t think it’s UNMISS’s role to be devising interpretations of SC mandates that – to put it charitably – would violate established peacekeeping doctrine (less charitably, one would simply say ‘illegal’). One could easily use your argument against you – isn’t it a ‘terminological facade’ to say that UNMISS already has the authority to do what you are arguing for?

  2. Response…dear Bart congratulations!!! I am proud that I know you as a great friend and now great specialist of international law. All the best to you Great Internationalist in all your beginnings. Best wishes, Lusine

  3. An outstanding piece of clear thinking and practical advice from a great young scholar of international law – well done Bart!

  4. Lusine and Mike, many thanks for your kind messages – I hope all is well!

    Patryk, I am very grateful for your thoughtful response and I hope you will forgive the holiday-induced tardiness of my reply. I appreciate the operational complexities involved in running a peace operation such as UNMISS and I greatly admire those having to balance the competing – and often contradictory – demands of host states, TCCs and UN HQ. I also agree that the blame for political reticence must principally lie with the political organs, in particular the SC, rather than with UNMISS itself.

    In my view, the situation in South Sudan demonstrates – and this is the wider point the post is trying to make – a gap in peacekeeping doctrine in cases where the main spoiler is the host state itself. Yes, state institutions in South Sudan are nominally functional, but most of those on UNMISS Protection of Civilian sites are seeking refuge from exactly these institutions. UNMISS may not have the authority to replace the state and engage in “executive” acts, but the conventional interpretation of its “robust” mandate also prevents it from effectively responding to incursions and provocations by state organs. Since peacekeeping doctrine does not provide a clear solution, UNMISS has been forced to turn operational concerns (what it can do) into legal argument (what it should do). This is the “terminological façade” that I – perhaps slightly polemically – take aim at. I do hope UNMISS is able to tear it down, but it won’t be able to do so just by itself. Peacekeeping doctrine has come a long way since Srebrenica and Rwanda, but there is still plenty of room for improvement.

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