31 May The Obligation to Ensure Respect for IHL in the Peacekeeping Context – Progress, Lessons and Opportunities by Leanne Smith
[Dr Ray Murphy is Professor at the Irish Centre for Human Rights, National University of Ireland Galway. ]
Leanne Smith’s chapter seeks to examine the complexities posed by ensuring respect for IHL in the peacekeeping context. It also explores the relationship between humanitarian actors and peacekeepers. A real strength of the chapter is that much of it is written from what the author refers to on page 153 as a policy practitioner’s perspective. This gives the research an original perspective and provides insights and recommendations for those working at all levels in peacekeeping, including military, police, and civilian personnel. The chapter makes a case for a stronger policy and training framework within UN peacekeeping and points the way to existing entry points for strengthening this in the current UN peacekeeping context.
Although originally there was some doubt about the applicability of IHL to UN forces, it is now generally accepted that UN forces are bound by IHL, whether performing duties of a peacekeeping or enforcement nature.
In his seminal work on UN forces, D.W. Bowett addressed the issue of the application of IHL to UN operations by examining two preliminary questions: first, what different types of functions a UN force may assume, and, secondly, the question of the different types of command structure that may be adopted for a UN Force. An analysis of the different types of functions that may be entrusted to UN Forces suggests that the application of IHL may be relevant to certain types of functions, but not to others. The most fundamental difference to identify in the first instance is that between enforcement action under Chapter VII of the Charter and traditional peacekeeping, though in recent years the distinction is less clear, especially with the advent of multi-dimensional mandates and stabilization operations. Bowett’s two questions are also inextricably linked, as the command structure will largely depend on the function of the force. The issue of who commands the force, the UN or the states concerned, is especially relevant in operations involving ‘coalitions of the willing’. The status of a UN or similar force depends on the underlying authority upon which the force is present in the host state, and on the nature and mission of the force.
Smith identifies collaboration between the UN and the International Committee of the Red Cross (ICRC) as one way to implement the obligation to ensure respect for IHL.
The ICRC’s position is that IHL principles, recognised as part of customary international law, are binding upon all states and all armed forces present in situations of armed conflicts. IHL does not just bind armed forces of the state. Other armed groups and individuals belonging to them are also bound by its provisions. In recent years, various Security Council resolutions have called upon ‘all the parties to the conflict’ to respect IHL. The UN Secretary-General has also issued a Bulletin to the effect that the fundamental principles and rules of IHL are applicable to UN forces when in situations of armed conflict they are actively engaged therein as combatants. IHL is also concerned with protecting basic human rights in armed conflict and other situations of violence. However, in situations where IHL does not apply, the international accountability of such groups for human rights abuses remains unclear (though such acts would be criminalized under domestic criminal law).
Asserting Basic Principles
The majority of UN operations are now authorized under Chapter VII of the UN Charter. This provides the legal basis for so-called robust peacekeeping or assertive action to implement the mandate. Nonetheless, central to the UN doctrine on peacekeeping remain the three principles that underpin all peacekeeping operations – consent, impartiality, and non-use of force. The complexity and challenges of adhering to the basic principles and implementing a Chapter VII mandate at the same time are sometimes underestimated. This situation is further complicated when there is a lack of political agreement and there is no actual peace to keep.
The multi-dimensional nature of mandates means that there are a range of tasks for peacekeepers to perform. Sometimes the mandates read more like a wish list than a realistic mission with achievable objectives. In addition, mandates often reflect a range of cross-cutting thematic issues, including women, peace and security, children and armed conflict, and protection of civilians.
Consent remains at the heart of peacekeeping. However, this is more nuanced in mission areas such as Mali (MINUSMA) and the DRC (MONUSCO). It can prove especially challenging to the relationship between the peacekeeping operation and the host state in situations where state actors are responsible for attacks on civilians. The Human Rights Due Diligence Policy sought to address this issue (see below).
Protection of Civilians (POC)
Smith correctly points out that the mandate to protect civilians is the responsibility of the whole mission, civilian and military components. This is reflected in the 2015 Policy on the Protection of Civilians in United Nations Peacekeeping and the 2018 Action for Peacekeeping Declaration on UN Peacekeeping Operations. It is a principle that is also shared with humanitarian organizations. However, the approach to achieving this can be very different, especially when the use of force is involved.
Tensions often come to the fore in supporting efforts to achieve humanitarian access while maintaining humanitarian independence (p. 148). Smith considers that the Humanitarian Cluster system offers the best opportunity to overcome the range of obstacles that multiple agencies and organizations confront in the field (p. 151).
Mission POC strategies are based on three inter-dependent tiers of activity that are much broader than resorting to the use of force. These include short-term and long-term policies involving political, physical, and institution/capacity building contributions to protection. The ultimate aim of all branches of a peacekeeping mission is protection through political process; protection from imminent threat of physical violence; and creating a protective environment (p. 149). Continual efforts need to be made to focus on these strategies as opposed to more militarized options.
A Case for a Stronger Policy and Training Framework within UN peacekeeping.
The International Court of Justice in the Advisory Opinion on Nuclear Weapons looked at the relationship between IHL and international human rights law (IHRL). The Court affirmed that they are two distinct bodies of law and that human rights law continues to apply in time of war unless it has been lawfully derogated from. In this way there has been a significant overlap and convergence in humanitarian and human rights law, and the strict separation of the two is not always conducive to providing the maximum protection to victims.
Awareness raising is important for both IHL and IHRL. This starts with the drafting and adoption of the mandate, but should be incorporated into every facet of the mission.
Enhanced cooperation between the Office of the United Nations High Commissioner for Human Rights (OHCHR) and UN Department of Peacekeeping Operations (DPO) on policy development and implementation is critical. There is also scope for greater collaboration between the DPO and the ICRC on ensuring respect for IHL in particular.
The Human Rights Due Diligence Policy (HRDDP) seeks to regulate the support provided to non-UN security forces by all UN actors who must exercise “due diligence” by conducting a human rights risk assessment before support is given in the field and thereafter monitor human rights compliance. The policy is based on existing de jure and de facto standards that states have accepted through their membership of the UN. In this way, the policy does not place new requirements, obligations, or responsibilities on Member States.
IHL and Peacekeeping
The UN Peacekeeping Operations Principles and Guidelines (2008) reaffirm the requirement for peacekeepers to have a clear understanding of the principles and rules of IHL and observe them when they apply. This is consistent with the 1999 Secretary-Generals Bulletin on the Observance of UN Forces of International Humanitarian Law. There has been much debate and controversy as to the precise implications of these policy documents. This is especially so in situations when a UN mandate permits the use of pre-emptive force to protect civilians. This raises important questions. Do such offensive operations constitute participation in hostilities and bring about a change in the status of peacekeepers? Does the primary responsibility for adhering to IHL principles lie with the UN or the Troop Contributing States? Some clarity would be provided by adopting the policy that peacekeepers will be bound by IHL rules whatever the circumstances, regardless of whether IHL is formally declared to be applicable.
The recommendations from the Swedish armed forces arising from their experience in Eastern DRC remain relevant:
- Clearer instructions on the duty of all personnel to report crimes under international law;
- Guidance on how to act when commanders or superiors commit crimes or fail to report them;
- Guidance on the role of the legal adviser in a mission in supporting reporting;
- Improvements in training and education before deployment.
The revised joint OHCHR and DPO policy provides a good example of the integration of human rights standards into UN peacekeeping (p. 155). This joint policy initiative could be a useful template for incorporating IHL principles also. Further research is warranted into how many of the UN guidelines provide support to the obligation to ensure respect for IHL as part of its comprehensive approach to respecting international law, especially IHRL (p.157). Smith also points out that mandated tasks related to institution building and capacity development create opportunities for peacekeepers to work with a range of partners to ensure respect for IHL (p. 159).
UN forces can take on many different forms, but the status and nature of a force is important to evaluating the applicability of IHL principles. The difference between peacekeeping and enforcement action operations is fundamental, but robust or stability operations, which while not constituting enforcement action as originally envisaged under the Charter, possess certain of the characteristics of both types of operations. There is also the problem of distinguishing between UN-mandated operations and those merely authorised to be carried out on behalf of the UN by a coalition of the willing. While these issues are important in determining the extent of the application of IHL and IHRL to UN forces, a fundamental question remains the existence of an armed conflict. Ultimately, it is the fact of participation in hostilities, not the existence of authority to do so, that is most significant.
In addition, it is an accepted principle of IHL that it applies in equal measure to all parties involved, irrespective of any other considerations, including the issue of the legality and objective of the resort to the use of force. There is broad agreement that IHL norms do apply to UN military operations. This view is supported by the terms of the relevant Conventions. There is no doctrine of ends and means in the application of humanitarian principles, and the terms of the Geneva Conventions require that ‘the High Contracting Parties undertake to respect and ensure respect for the present Convention in all circumstances’.
The essence of the ICRC position is that IHL principles, recognised as part of customary international law, are binding upon all states and upon all armed forces present in situations of conflict. If these rules are binding on all states, then they must be binding on an international organisation that resorts to the use of force on their behalf. This is especially so when this Organisation is an independent subject of international law and it was established by those states bound by the principles in the first place. In this context, the status of the parties or the legality of the use of force is not an issue that will determine the applicability of IHL.
As the UN is not a state, the source of its obligation to observe human rights is not without controversy. Although not a party to the major human rights treaties, it remains a subject of international law. One way around the problem of applying human rights norms to the UN itself is to regard the UN Charter and its accompanying instruments as forming a constitution. In this way the relevant treaties and related instruments govern UN as well as state activities. According to Smith, the comprehensive system for pre-deployment and in-mission training is a key entry point for improving awareness and commitment for adhering to IHL and IHRL principles among all mission components (p. 159).
The author makes a compelling case that UN peacekeepers do have responsibilities to respect and ensure respect for IHL. She also provides examples of how UN peacekeeping has the capacity to develop strategies and policies to support this obligation, not just in respect of IHL but also IHRL. Violations cannot be ignored and silence amounts to complicity. To be able to respond effectively to situations requires training, awareness and guidance. Relationships with humanitarian partners is key to this. The precedent created by co-operation between OHCHR and the then DPKO provides a template for future endeavors in the promotion and implementation of IHL.
UN military and civilian field personnel cannot be silent witnesses to gross violations of IHRL or IHL. The legal obligations of peacekeeping and other UN military forces should reflect the notion that they will affirmatively seek to prevent abuses. The Brahimi Report suggested a more assertive and interventionist approach in such cases and stated that ‘UN peacekeepers – troops or police – who witness violence against civilians should be presumed to be authorised to stop it, within their means’.
Smith brings a wealth of personal experience and examination of the issues to inform the reader. Her insights and broader analysis provide an excellent backdrop to her recommendations and conclusions.