Escalation of Violence in Bangui: Has MINUSCA Become Party to a Conflict in CAR, and What Would That Mean?

by Bianca Maganza

[Bianca Maganza is a PhD candidate in International Law and a Teaching Assistant at the Graduate Institute of International and Development Studies in Geneva.]

Some days ago, the United Nations Multidimensional Integrated Stabilisation Mission in the CAR (hereinafter, MINUSCA) got involved in heavy fire exchange with an armed group known as KM5 in Bangui, the capital of the Central African Republic (hereinafter, CAR). Security in CAR is rapidly deteriorating since some weeks, and accidents such as the one just mentioned are becoming, if not the norm, for sure no longer the exception. Indeed, it is not the first time that a situation of direct confrontation between the UN mission and the rebels arises. Although facts are not fully confirmed and the situation is still unfolding at the time of writing, it seems worth considering the consequences that the episode may entail under international humanitarian law (hereinafter, IHL).

The issue of the role played by IHL in the context of so-called peace operations is a much-debated and complex one (see, for example, the recently published Leuven Manual on the International Law Applicable to Peace Operations). Crucial aspects such as those related to the consequences of the application of IHL on issues of targeting and on the international prosecution of crimes committed in relation to the situation have been brilliantly covered elsewhere, and I will not discuss them here. The same is true for jus ad bellum considerations vis-à-vis the mandate and the evolution of traditional peacekeeping into “stabilisation” missions. While the main case study in this respect has so far been that of MONUSCO in the DRC, in particular as regards its Intervention Brigade, it has been rightly claimed that MINUSCA is the new frontier for such discussion.

In this post, I want to focus on a specific aspect of the situation, namely the possibility that – provided that some factual circumstances are reached – a multinational mission spearheaded by the UN becomes as such party to a conflict with the armed group against which it is fighting. This case is different from the one following the so-called support-based approach developed by Ferraro, which I am not discussing here. Although the fact that IHL may apply to situations in which a multinational operation is involved is nowadays accepted, states and international organisations are generally reluctant to admit that a peace operation has become party to an armed conflict. Such possibility has been often discussed but frequently let sink through the lines and rarely tackled head on. If, on the one hand, the capacity of a multinational operation to become party to the conflict is often taken for granted, the concretisation of such a possibility is on the other hand never explicitly acknowledged in terms of its consequences.

The facts that recently took place in Bangui provide the occasion to discuss the legal significance of such a case.

The facts

After the failure of a first attempt undertaken some days before, in the night between 7 and 8 April 2018, what was announced as joint law enforcement operation of MINUSCA, the Central African Armed Defense Forces (FACA) and the Internal Security Forces (ISF) aimed at disarming and arresting some criminal groups in the PK5 area of Bangui turned into violent fire confrontation between the armed groups and the mission.

According to the press statement released by MINUSCA, at a given moment, “heavily armed elements of criminal groups in the area deliberately fired on international forces, prompting a return of fire to push these elements back”. According to other sources, it is the MINUSCA contingent that entered the area shooting in the first place. As a result, eight peacekeepers were wounded, and one died. Some civilian casualties are also reported. In any case, it is quite clear that the operation was not a success for MINUSCA: for the second time in a matter of few days, the contingent had to leave the area and had been the object of subsequent attacks.

A conflict between MINUSCA and the armed group?

Regardless of who started the fire exchange, it is more than legitimate to ask whether the threshold for IHL applicability has been reached with the incident of 8 April – if not even before. In fact, despite the careful employment of the language of law enforcement in MINUSCA’s press releases – referring to “criminal groups”, “gangs” and “disarmament operations” – the reality on the ground seems to point to another direction.

Working on the hypothesis that a conflict, if any, ought to be a NIAC due to the involvement of non-state armed groups against the contingent spearheaded by the UN, the situation has to be analysed under the two criteria of intensity of hostilities and organisation of the parties as developed by the ICTY in the Boškoski case.

Intensity

Applying the first prong of the test to the single incident under analysis, video footage clearly shows MINUSCA troops engaging the area through the use of heavy weaponry. The presence of civilian casualties and fleeing civilians, if confirmed, is a further factor to consider when assessing the intensity of the armed confrontation. The episode must be assessed against the broader background of the situation in CAR. The general secrecy regarding the number, details and nature of MINUSCA operations cannot hide the fact that incidents like the one discussed here are not isolated but had already happened and keep happening in the country. The recent security deterioration in the area and the repeated, unsuccessful attempts by MINUSCA to seize the neighbourhood testify to the seriousness of the situation. The situation remains unchanged after the incident of 8 April, and following the main incident the mission has been the object of subsequent attacks in another area of the city. It is highly probable that the mission will attempt yet another operation to gain control of the neighbourhood – possibly, deploying more force to be able to finally overcome the enemy.

In light of the above, it seems at least plausible to argue that the intensity level has been reached either regarding the single attack under analysis – in fact, a NIAC can be a matter of hours or days (see, in addition to the case law of the ICTY, Abella v. Argentina, known as “La Tablada” case, before the Inter-American Commission of Human Rights) – or as a result of the series of episodes involving MINUSCA and the armed group since some time. Assuming that this is the case, for the sake of argument, the next step is an assessment of the organisation of the parties involved.

Organisation of the parties

That of organisation of the parties contains in itself the two other interdependent criteria of control over the troops and capacity to comply with the rules of war – both in abstract, through a disciplinary system and chain of command, and through the concrete possibility of respecting the most basic principles such as those of distinction and precaution. These seem, to me, the features that differentiate a collective entity having the capacity to become party to a conflict from a random group of individuals involved in armed violence.

Most of the analyses of situations of multinational operations potentially involved in an armed conflict stop at the assessment of the organisation of the armed group for the sake of establishing the existence of a NIAC. However, it seems to me that the only way to fully satisfy the test is to apply the analysis to both sides. As evident as the result may be, to be able to claim that MINUSCA has become party to a conflict with KM5, one shouldn’t stop at whether the armed group is sufficiently organised to reach the threshold of a NIAC but also ought to address the features of the mission itself.

In the case at stake, it seems undeniable that KM5 shows and deploys a considerable amount of organisation. To a certain extent, it can be argued that it even controls the neighbourhood known as PK5: it was indeed following continuous requests by the residents of the area that MINUSCA decided to act to disarm the armed group and try to “liberate” PK5. As we have seen, MINUSCA attempted to take the neighbourhood back more than once, without success. As for elements of control, KM5 is organised in auto-defence patrols, therefore showing capacity to coordinate action and logistics, and acts in execution of the orders given by its leader, Nimery Matar (known as “Force”), who even recently released a video declaring to be ready to fight in case MINUSCA would have dared entering the area he controls. While we would need more facts to weigh the group’s potential compliance with IHL, the existence of a command structure can arguably point to such abstract capacity.

When it comes to the UN mission, all three accounts seem equally warranted. The mission has by definition a clear organisational structure and a chain of command. Moreover, respect for IHL is part of its mandate and generally warranted by the 1999 UN Secretary General’s Bulletin. Even though the Status of Forces Agreement (hereinafter, SOFA) between MINUSCA and CAR is not publicly available, respect for IHL is included in the model UN SOFA and usually reflected in single SOFAs concluded with host countries.

MINUSCA as party to a conflict

The purpose of this post is not directly that of taking a position on whether or not the situation in CAR amounts to an armed conflict between MINUSCA and the armed group against which it is fighting. Even though the facts reported above seems to point to a considerable level of intensity, full confirmation of what happened is still awaited and sources are scattered and not always reliable. My point is rather that, in case the required intensity threshold is reached, both sides have the capacity to become parties to a conflict.

The main consequence of considering MINUSCA as party to an armed conflict – a NIAC, in this case – would be that the mission as a whole is bound to respect at least the provisions of CA3 plus any other customary international law rule deemed applicable to the situation. More specifically, MINUSCA would have to respect and ensure respect for IHL by its armed forces and other persons or groups de facto acting on its instructions, or under its direction or control (Rule 139) and train its armed forces in IHL (Rule 142). These obligations seem particularly relevant in light of the problems often posed by issues of legal interoperability in the context of multinational operations. Seeing the mission as one single entity for the sake of IHL would allow deeming it responsible for the training and subsequent conduct of its peacekeepers independently of – but not in contradiction with – the repartition of command and control between the international organisation and troop contributing countries. Concretely, this would mean that, in addition to the obligations of each troop contributing country, the UN should take the responsibility of substantively training the contingent and making sure it respects and applies the same rules of IHL as whole, instead of a patchwork of obligations deriving from the law applicable to single member states. Arguably, such a scenario does not differ too much from what already happens in practice through the joint training of peacekeeping missions before deployment, and the respect of a basic, uniform set of IHL rules is the aim of the Secretary General’s Bulletin. However, the idea that those obligations might directly derive from the status of party to the conflict under IHL sounds very unlikely to be accepted for the consequences it might entail when it comes to issues of attribution and allocation of responsibility for wrongdoings between the member states and the international organisation. For all that, it seems undeniable that acting under a unified legal framework has the potential for being a game changer at least in terms of prevention of violations of IHL.

No less important consequences derive from the potential role of MINUSCA as a party to the conflict under international criminal law. As aptly noted by Labuda, although the UN keeps denying the existence of an armed conflict between the mission and the armed groups in CAR, it at the same time reiterates that any attack against peacekeepers may amount to a war crime. Leaving aside the contradictory nature of statements of this kind, what is interesting is that incidents such as the one of 8 April are likely to fall under the jurisdiction of the recently established Special Criminal Court for CAR. Further judicial pronouncement is needed to shed some light on the features of the crime of attacking peacekeepers in a situation of armed conflict. The premise that because of the status of a peacekeeping mission as party to the conflict members of its military branch could be targeted as forming part of the armed forces thereof has never, so far, been accepted in the case law of international criminal tribunals. Will the Special Court choose to do so, indirectly saying the unsaid? We will need to wait and see if the whispered possibility of considering a UN mission as a party to the conflict will be finally made explicit in such a way.

http://opiniojuris.org/2018/04/16/escalation-of-violence-in-bangui-has-minusca-become-party-to-a-conflict-in-car-and-what-would-that-mean/

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