08 Sep Protection of Civilians Symposium: Some Thoughts on the Use of Force by UN Peacekeeping Operations to Protect Civilians
[Marten Zwanenburg is legal counsel at the Ministry of Foreign Affairs of the Netherlands. The views expressed herein are his own and do not necessarily reflect the views of the ministry of Foreign Affairs of the Netherlands.This post is a part of the Protection of Civilians Symposium.]
In this post, I will focus on Mona’s chapter in “Protection of Civilians”, in which she addresses the issue of the use of force by UN peacekeeping operations for the protection of civilians.
Mona’s main point is that the mandate to use force to protect civilians is broad and deeply founded. However, a number of factors may have an inhibiting effect on the use of force by UN peacekeepers beyond self-defence and for the protection of civilians.
She points to a number of legal considerations that may impede carrying out a PoC mandate. While these undoubtedly play a role, I cannot escape the thought that the main obstacle appears to be unwillingness of TCC to put their troops in harm’s way, as well as the limited capabilities and resources available to many missions.
One of the factors Mona argues contributes to peacekeeping operations not fulfilling their PoC mandate is “complacency regarding the legal consequences of failure to fulfil the mandate.” This refers to the ultimate accountability of the Force Commander for both acts of commission and acts of omission when it comes to the use of force by military contingents under the mandate and ROE. This forms an interesting parallel to the question discussed by Siobhan whether the UN mandate imposes a positive obligation on a peacekeeping operation to protect civilians, In this context, Mona states when discussing self-defence that UN forces have not only the right but also the duty, under Chapter VII of the UN Charter, to use force where and when necessary and appropriate to pre-empt, prevent, deter and/or respond to targeted or systematic attacks on civilians within the limits of their capabilities and deployment. She thus appears to see the mandate as imposing a duty to use force in certain circumstances. This in contrast to Siobhan, who argues that a Chapter VII mandate authorizing use of force to protect civilians does not create an obligation to use force (although it may create an obligation to provide protection).
Another consideration Mona mentions is an inhibition to use force arising from fear of criminal accountability or loss of protected status (under IHL). Personally I wonder whether fear of loss of protected status plays an important role. This would assume that peacekeepers have an expectation that their opponents will act in accordance with IHL and respect their protected status under IHL as long as they do not directly participate in hostilities. I wonder whether they really do have such an expectation, for example vis-a-vis armed groups in the DRC or in Mali. Fear of criminal prosecution on the other hand seems a plausible factor in the minds of peacekeepers, judging from my own experience talking to military personnel. Although she doesn’t say to explicitly, Mona probably has fear of prosecution for the use of force in mind. Interestingly, the more protection of civilians is propagated as an obligation, the more likely that not using force may lead to prosecution. In this context, an interesting development in recent years was the (unsuccessful) attempt by relatives of men killed by the Bosnian Serbs in Srebrenica to have three members of Dutchbat prosecuted for not protecting those men.
A final consideration that Mona refers to is unwillingness to use force due to perceived contravention of the basic principles of peacekeeping. Her argument, with which I agree, is that the interpretation and application of these principles have evolved, to varying degrees, in a similar and corresponding manner as operations have evolved to become increasingly robust and operate in volatile environments. I find the development of a nuanced interpretation of consent particularly interesting in this regard. Traditionally, consent of the parties was seen as a fundamental principle of peacekeeping. As the High Level Independent Panel on Peace Operations stated: “In conflict management settings today, where fighting continues and is not confined to two parties, there may be practical obstacles to obtaining consent beyond that of the government. Clearly the consent of the government is fundamental for the deployment of a mission, and this should be reinforced. Obtaining and maintaining the consent of the other parties remains an important objective of any mission and should be pursued to the extent possible.” Even consent of the government is not always as black-and-white as this statement might suggest, however. Such consent may be equivocal and be manifested only to a limited degree in practice. This is illustrated by the recent initial refusal of the government of South Sudan to accept the deployment of additional UNMISS personnel, even though this increase was already part of a resolution adopted by the UN Security Council.