Guest Post: The ICC intervenes in Georgia–When is a Peacekeeper a Peacekeeper?

[Patryk I. Labuda is a Ph.D. Candidate at the Graduate Institute of International and Development Studies and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights.]

As Kevin noted last week, the ICC Prosecutor has officially requested authorization to proceed with an investigation into alleged crimes committed during the 2008 Russo-Georgian war. Anticipated by ICC observers for some time, the announcement has prompted speculation about the prospects of a full-blown investigation involving a P5 country (Russia), as well as the geopolitical ramifications of the ICC finally leaving Africa. In this post, I would like to focus on a discreet legal issue with ramifications that may turn out to be equally important in the long run: the Prosecutor’s charges relating to crimes against peacekeepers and why this matters for the future of peacekeeping operations.

In her submission to the Pre-Trial Chamber (PTC), the Prosecutor identifies two primary sets of war crimes and crimes against humanity that fall within her jurisdiction. In addition to the forcible displacement and persecution of ethnic Georgians, the Prosecutor plans to investigate “intentionally directing attacks against Georgian peacekeepers by South Ossetian forces; and against Russian peacekeepers by Georgian forces (Request PTC, para. 2).”

Under the ICC Statute, attacks on peacekeepers are criminalized directly as war crimes. The two relevant provisions are articles 8 (2) (b) (iii) and 8 (2) (e) (iii), which apply to international and non-international armed conflict respectively:

Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict (emphasis added).

If, as is expected, the Pre-Trial Chamber grants the request to open an investigation, the key question facing the Prosecutor will be whether the peacekeepers in the 2008 conflict were really just that – peacekeepers?

While this may seem like an unusual question, it should be emphasized that the facts are highly unusual, too. The Joint Peacekeeping Force (JPKF) in South Ossetia, which was established by the 1992 Sochi Agreement, comprised three battalions of 500 soldiers each provided by Russia, Georgia and North Ossetia. Though not formally a UN-mandated mission, it appears both the Security Council and the Organisation for Security and Cooperation in Europe recognized the JPFK as a peacekeeping operation (para. 149). However, the key point is that, unlike UN-mandated peacekeeping, the peacekeepers in South Ossetia were nationals of two of the three parties to the 2008 conflict: Russians and Georgians (South Ossetians were not allowed on the premises of the JPKF). In other words, the ICC Prosecutor’s charges relate to attacks against Russian and Georgian troops – deployed as part of a peacekeeping mission – in the context of an armed conflict where Russian, Georgian and South Ossetian troops fought against one another.

Why does this matter? Although it appears that peacekeeping involving parties to a conflict is not prohibited (e.g. the UN does not appear to have an explicit policy against it, even if peacekeeper nationality has, in the past, been a contentious issue in UN operations), the composition of the JPKF in South Ossetia raises important questions about the application of international law to peacekeeping, and in particular the applicability of international humanitarian law and international criminal law to the attacks that the ICC Prosecutor plans to investigate. Irrespective of whether such peacekeeping is allowed ‘on paper’, I argue that the unusual composition of the JPFK will likely negate some protections that peacekeepers normally enjoy.

The key legal issue that is likely to come before the ICC is who is entitled to peacekeeper status under international law? Although there is no international convention on peacekeeping (the UN Charter is silent on the matter as well), the rules applicable to peacekeeping are derived from over half a century of military practice, and it is generally accepted that three core principles apply: 1) consent of the parties, 2) impartiality and 3) non-use of force beyond self-defence. While there is much debate about the scope of these three principles, especially in recent peace operations, for the purpose of the Georgia investigation the important question will be whether the impartiality criterion was met.

Though preliminary in nature, the Prosecutor’s submission already suggests there were serious problems with the application of this principle. Of particular note is the allegation that both Georgian and Russian peacekeepers provided coordinates of military targets to their respective militaries, and that this information was then used to carry out attacks on peacekeeping personnel and infrastructure (para. 177 and 183). Elsewhere Russian peacekeepers are alleged to have allowed South Ossetian troops to use the peacekeeping mission’s infrastructure during the conflict (para. 181). Although the Prosecutor notes that “under the Sochi agreement and the applicable protocols, a degree of coordination between peacekeepers and parties to the conflict was allowed” (para. 183), it is not hard to see why such ‘coordination’ is extremely problematic in light of the impartiality requirement, especially once military operations are underway. The JPKF’s command structure raises additional questions about the mission’s impartiality since its three battalions appear to have operated under the joint command of a Russian officer, nominated by the Russian Ministry of Defense (para. 22, 148). If confirmed at trial, these aspects of the JPKF and its operations cast serious doubt on the impartiality of the mission as a whole, and – consequently – whether it should be considered a peacekeeping mission at all.

But the problems only begin there. Even if we assume that the JPKF was a peacekeeping mission, it must be remembered that the ICC Statute only criminalizes attacks on peacekeepers “as long as they are entitled to the protection given to civilians” under IHL. In other words, it is not a crime to attack a peacekeeper who no longer enjoys protected status under IHL.

So how does a peacekeeper lose this status? There are two ways in which this can happen. First, if a (nominally) peacekeeping mandate authorizes enforcement measures under Chapter VII of the UN Charter, then peacekeepers engaged in hostilities should be considered parties to the conflict. Strictly speaking, they are not even peacekeepers, which is precisely why peace operations with enforcement mandates, such as the UN’s current mission in the Democratic Republic of Congo, are so problematic (more on this below). Second, by analogy to civilians, peacekeepers are protected under IHL “unless and for such time as they take a direct part in hostilities” (art. 50, Additional Protocol I, 13 (3) Additional Protocol II). Confirmed by the Secretary General’s Bulletin on the Observance by United Nations forces of IHL, the idea is that peacekeepers are protected unless “in situation of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement” (art. 1.1, Bulletin). At the same time, we must remember that peacekeepers are armed and authorized to use force in self-defence. As a result, a peacekeeper does not lose his or her protected status if he or she uses force in self-defence, so long as this use of force doesn’t amount to directly participating in hostilities.

From the Prosecutor’s submission, it is clear that she will have her work cut out determining who fired the first shots, and – by extension – whether Georgian and Russian peacekeepers directly participated in hostilities. If, as some evidence suggests, Georgian (para. 166 and 169) and Russian (para. 180-183) peacekeepers engaged in hostilities, this implies they were legitimate targets and, consequently, there will be no international crime of killing those peacekeepers (provided other IHL violations, such as a disproportionate attack, did not occur).

Yet, aside from the purely evidentiary challenges and factual complexity of these cases, the Prosecutor’s investigation is also bound to raise more fundamental legal questions about the nature of peacekeeping. Given that many attacks occurred in different locations in the space of a few days (para. 164 and 176), the question is when individual self-defense (allowed for peacekeepers) reaches the threshold of direct participation in hostilities (not allowed, in the sense that peacekeepers lose their protected status). The international criminal tribunals (Prosecutor v. Karadzic, ICTY IT-95-5/18-AR73.9, Prosecutor v Abu Garda, ICC-02/05-02/09, Prosecutor v. Ndindiliyimana, ICTR-00-56-T, Prosecutor v. Sesay, SCSL-04-15-T) have dealt primarily with isolated attacks on peacekeepers, which is quite different from a sustained barrage of fighting in the context of an all out war. Another problem is how such a determination affects the status of the peacekeeping mission. Given the JPKF’s mixed composition, and the fact that its two peacekeeping battalions were attacked by different belligerents, the question is whether the entire JPKF lost its protected status. An example illustrates this problem: if, for the sake of argument, it is assumed that Georgian peacekeepers directly participated in hostilities and lost their protected status, does this mean that Russian peacekeepers also lost their protected status under IHL? They were, after all, part of the same peacekeeping mission, but it would certainly lead to a paradoxical outcome: because Georgian peacekeepers attacked Russian troops, Georgian troops would be allowed to attack Russian peacekeepers without violating IHL.

To be fair, there are no easy answers to these questions and, in her submission to the PTC, the Prosecutor underlines on several occasions that her factual findings are tentative (para. 163, 167 189,). To her credit, the Prosecutor has not ruled out any possibility at this stage and even added – compared to the 2014 Preliminary Examination report – charges linking Georgian troops to attacks on Russian peacekeepers. By contrast, her analysis of peacekeeping doctrine and how it applies to the JPKF remains, for the time being, extremely superficial. Particularly troubling are the Prosecutor’s self-referential citations to the ICC’s Abu Garda case (para. 143-159), which concerned a UN-mandated peacekeeping mission operating in a completely different set of circumstances and in accordance with different rules.

As important as these legal questions are to the Prosecutor’s investigation in Georgia, it should be emphasized that what the ICC decides will have implications extending well beyond this specific situation. If and when these cases go to trial, the ICC’s determinations about the JPKF’s impartiality and the use of force by peacekeepers will carry enormous precedential value for the UN, whose recent peacekeeping operations are facing new legal challenges. Since 2013, an Intervention Brigade (IB) within the DRC peacekeeping mission is carrying out enforcement activities against selected rebel groups, which – according to some observers – deprives the entire mission of protection from attack. If correct, it means that not just the IB’s soldiers, who are expected (and required) to engage in hostilities, but also the mission’s other peacekeepers – and even civilian personnel! – could be targeted under IHL. Other UN operations have received (Mali) or are expected to (Central African Republic, South Sudan) receive wider authorizations to use force, which implies their peacekeepers may also be attacked in the future, without it necessarily being an international crime. In short, while the South Ossetian JPKF’s composition is unusual for a peacekeeping mission, the ICC’s investigation in Georgia may have wide-ranging reverberations for peacekeeping well beyond that specific context.