Peacekeeping at the intersection of International Law: Force, Accountability, and Legal Norms Natalie Bookout Institute for Youth in Policy Abstract The creation of Chapter VII of the United Nations Charter gives the Security Council the power to take “collective action” to maintain peace and security. Since then, many peacekeeping missions have been created across the world. This work aims to show the framework for United Nations peacekeeping while also examining the constitutional and institutional UN frameworks as they pertain to peacekeeping missions. I also talk about the legal implications of peacekeeping and talk about civilian protection mandates as it pertains to the usage of force. I also recommend a path forward for more institutional accountability as it pertains to peacekeeping and International Law.

Keywords: International Law; peace operations; peacekeeping; UN; security studies

Introduction The intersection of International Law and peacekeeping is pivotal as peacekeeping stands between war and peace during times of conflict. Peacekeeping refers to measures and mandates to maintain or restore peace. Chapter VII of the UN Charter sets out the UN Security Council’s powers to maintain peace and allows the council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression" and to take military and nonmilitary action to "restore international peace and security. " Peacekeeping is not explicitly stated in Chapter VII of 1 the UN Charter but has become an instrumental force in recent UN mandates. Recently, the Security Council has utilized Chapter VII for peacekeeping missions in post-conflict societies where the state is unable to maintain public order or security . In 1962, the International Court of Justice 2 determined that both the Security Council and General Assembly could mandate consensual peacekeeping and therefore peacekeeping missions in the Middle East and Congo were lawful, as the court found these peacekeeping missions fulfilled the purposes of the UN and did not violate any limitation found in the charter . The UN’s blue helmets have now been recognized around the 3 world since they entered into international relations in the 1940s. The last three decades of peacekeeping have seen a changing landscape for peacekeeping. With the rise of new technologies, new security methods, threats, and the rise of new non-state actors within conflict the definitions and ideas of security have changed for state actors and the UN. Over these last three decades, 3 White Nigel, Peacekeeping and International law (Oxford: Oxford University press, 2015), 43-57 2 Meiske, Maline, and Andrea Ruggeri. “Peacekeeping as a Tool of Foreign Policy.” Oxford Research Encyclopedia, 5 March 2024, https://oxfordre.com/politics/display/10.1093/acrefore/9780190228637.001.0001/acrefore-9780190228637-e-462.

Accessed 7 April 2024.

1 “Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression (Articles 39-51) | United Nations.” the United Nations, https://www.un.org/en/about-us/un-charter/chapter-7. Accessed 31 March 2024.

peacekeeping has become a more comprehensive way of conflict and crisis management . This 4 paper examines peacekeeping and international law, and how it pertains to the use of force, institutional accountability, and proposes a new path forward to not only increase the effectiveness of peacekeeping but also to increase institutional accountability.

Peacekeeping Norms As stated by the UN the three principles of peacekeeping are: (i) consent of the parties involved, (ii) impartiality, and (iii) no use of force except in cases of self-defense and defense of the mandate . Beyond the norms of peacekeeping, the United Nations has norms stated within its 5 charters and institutional text. The UN and peacekeeping norms go hand in hand with the overall goal of protecting international peace and security. The issue arises when talking about peacekeeping roles within active conflict and how that arises for peacekeeping mandates.

Peacekeeping missions are based on the consent of the state party or parties. This consent granted by the host party allows the UN peacekeepers to operate both politically and physically and allows the mandate to be followed. UN officials also acknowledge that without the consent in the mandates the peacekeepers can become a party in the conflict, being drawn towards enforcement action, and away from keeping peace within the conflict region. As peace operations have become more complex, the need to remain neutral is critical, and in modern peacekeeping missions, peacekeepers must be impartial to force or impartial to dealing with parties involved in the conflict. To be clear, this impartiality does not mean that the peacekeepers are neutral in their execution of the mandate.

5 “Principles of peacekeeping.” United Nations Peacekeeping, https://peacekeeping.un.org/en/principles-of-peacekeeping. Accessed 5 April 2024.

4 Meiske, Maline, and Andrea Ruggeri. “Peacekeeping as a Tool of Foreign Policy.” Oxford Research Encyclopedia, 5 March 2024, https://oxfordre.com/politics/display/10.1093/acrefore/9780190228637.001.0001/acrefore-9780190228637-e-462.

Accessed 7 April 2024.

The chapter below will go into more detail on force within UN peacekeeping but it’s important to note that within peacekeeping norms peacekeepers are only allowed to use force for self-defense or the defense of the mandate.

Peacekeeping and Force The use of force within peacekeeping has been the subject of conversation and controversy since the creation of it post-WWII. The intersection of Peacekeeping norms and International Humanitarian law has long been a debate and members of the United Nations have tried to clarify that debate. Most recently, the then Secretary General of the UN Kofi Annan stated, “The fundamental principles and rules of international humanitarian law set out in the present bulletin apply to United Nations forces when in situations of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement. They are accordingly applicable in enforcement actions, or peacekeeping operations when the use of force is permitted in self-defense. ” Self-defense is a vital part of UN peacekeeping as it intersects with the use of force.

6 Over the decades of peacekeeping, there has been constant confusion on the usage of force within peacekeeping mandates. Since the 1990s a shift in the type of peacekeeping missions to larger missions in conflict regions, these new missions emphasized peacekeepers’ authority to defend mission personnel and property. The UN started to use the defensive mandate position to ensure freedom of movement among peacekeepers. Furthermore, the understanding of peacekeeping still exists mostly in the self-defense area but has shifted to represent defensive mandates. The legal basis for the usage of force is based on the mandate and the resolutions reflected in the Security 6 “Observance by United Nations forces of international humanitarian law - ICRC.” International Committee of the Red Cross, 31 December 1999, https://www.icrc.org/en/doc/resources/documents/article/other/57jq7l.htm. Accessed 7 April 2024.

Council Mandates . It’s important to note that the use of peacekeepers and civilian protection 7 through a mandate complates the system as Nigel D. White states, “increasing pressure is on peacekeepers to use force to protect civilians under attack or under threat of attack; and for them to protect the peace agreement and process from spoilers who want to undermine it. With the greater use of weapons that this entails, it becomes a problem as to which legal regime should be applicable to modern peace operations- that applicable in armed conflict law (international humanitarian law), or the norms of international human rights law. ” 8 Issues with Institutional Accountability Military members involved in peacekeeping operations have status, privileges, and immunities found in Article 105 of the UN Charter as well as in the 1946 UN convention on privileges and immunities of the UN. Article 105 of the charter states, “1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes. Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization. 3. The General Assembly may make recommendations to determine the details of the application of paragraphs 1 and 2 of this Article or may propose conventions to the Members of the United Nations for this purpose. .” However, if a crime is committed during a mandate by a peacekeeper they are rarely 9 9 “Chapter XVI: Articles 104 and 105 — Charter of the United Nations — Repertory of Practice of United Nations Organs — Codification Division Publications.” United Nations - Office of Legal Affairs, 12 July 2023, https://legal.un.org/repertory/art104_105.shtml. Accessed 7 April 2024.

8 White Nigel, Peacekeeping and International law (Oxford: Oxford University press, 2015), 52 7 Hanna Bourgeois, Patryk I Labuda, When May UN Peacekeepers Use Lethal Force to Protect Civilians? Reconciling Threats to Civilians, Imminence, and the Right to Life, Journal of Conflict and Security Law, Volume 28, Issue 1, Spring 2023, Pages 1–65, https://doi.org/10.1093/jcsl/krac027

tried as the person's home state is reluctant to prosecute . When peacekeepers commit crimes the 10 United Nations can in theory get rid of their immunity but as good as this sounds it very rarely happens. Furthermore, if a peacekeeper fails to protect civilians, it is hard to hold them legally accountable because there are unclear guidelines on how to prosecute them . Following sufficient 11 evidence of sexual abuse by peacekeepers in the UN operation in the Congo (MONUC) a draft was created called the ‘Draft Convention on the Criminal Accountability of United Nations Officials and Exports on Mission.’ Yet, this convention has not been adopted and would most likely not account to military personnel were a Troop-Contributing Country (TCC) retains criminal and legal jurisdiction . The UN only takes liability for crimes committed under their jurisdiction and not 12 under the jurisdiction of a TCCs.

A path forward toward accountability International Humanitarian Law and UN peacekeeping missions must have effective implementation in both areas. Peacekeeping missions must be educated in International law and International Humanitarian Law practices to ensure that peacekeepers understand the legal framework of the missions. Furthermore, strengthening independent and transparent accountability tools through independent investigative teams while also strengthening the Office of Peacekeeping Strategic Partnership (PSP) would increase accountability for peacekeeping missions. By strengthening the PSP the office can provide dedicated resources for civilian protection and 12 Report of the Secretary General, “A Comprehensive Strategy to Eliminate Future Sexual Exploitation and Abuse in United Nations Peacekeeping Operations,” UN Doc A/59/710 (2005) (Zeid Report) 11 Shahid, Areesha. “Peacekeeping Operations and Accountability.” DLP Forum, 18 May 2022, https://www.dlpforum.org/2022/05/18/peacekeeping-operations-and-accountability/. Accessed 7 April 2024.

10 “International Humanitarian Law and Peacekeeping.” DLP Forum, 11 May 2022, https://www.dlpforum.org/2022/05/11/international-humanitarian-law-and-peacekeeping/. Accessed 7 April 2024.

accountability measures. The UN must have a system in place to guarantee that host nations prosecute peacekeepers for human rights violations committed during peacekeeping operations.

According to Chatham House the Royal Institute of International Affairs, “a blacklisting method was suggested that would have the UN blacklist countries that consistently fail to hold their nationals accountable for abuses and in so doing would stop a particular state from being able to contribute to peacekeeping operations until inadequacies were rectified. ” This could be a possible 13 solution for UN accountability but would draw difficulties in getting troops to participate in peacekeeping missions. Furthermore the importance of strengthening independent forms of analysis and research is vital to creating accountability for peacekeeping missions that strikes a balance of international politics and transparency. And finally, the UN and other stakeholders must work towards a more cohesive accountability system by streamlining accountability processes, improving coordination between parties involved in the structure, broadening the accountability tools available to all stakeholders, and tracking the protection of civilians in peacekeeping missions.

13 Sheeran, Scott, et al. “Peacekeeping and Accountability.” Chatham House, 28 May 2014, https://www.chathamhouse.org/sites/default/files/field/field_document/20140528PeacekeepingAccountability.pdf.

Accessed 10 April 2024.

References “Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression (Articles 39-51) | United Nations.” the United Nations, https://www.un.org/en/about-us/un-charter/chapter-7. Accessed 31 March 2024.

Meiske, Maline, and Andrea Ruggeri. “Peacekeeping as a Tool of Foreign Policy.” Oxford Research Encyclopedia, 5 March 2024, https://oxfordre.com/politics/display/10.1093/acrefore/9780190228637.001.0001/acrefore-9780190 228637-e-462. Accessed 7 April 2024.

White Nigel, Peacekeeping and International law (Oxford: Oxford University press, 2015), 43-57 Meiske, Maline, and Andrea Ruggeri. “Peacekeeping as a Tool of Foreign Policy.” Oxford Research Encyclopedia, 5 March 2024, https://oxfordre.com/politics/display/10.1093/acrefore/9780190228637.001.0001/acrefore-9780190 228637-e-462. Accessed 7 April 2024.

“Principles of peacekeeping.” United Nations Peacekeeping, https://peacekeeping.un.org/en/principles-of-peacekeeping. Accessed 5 April 2024.

“Observance by United Nations forces of international humanitarian law - ICRC.” International Committee of the Red Cross, 31 December 1999, https://www.icrc.org/en/doc/resources/documents/article/other/57jq7l.htm. Accessed 7 April 2024.

Hanna Bourgeois, Patryk I Labuda, When May UN Peacekeepers Use Lethal Force to Protect Civilians? Reconciling Threats to Civilians, Imminence, and the Right to Life, Journal of Conflict and Security Law, Volume 28, Issue 1, Spring 2023, Pages 1–65, https://doi.org/10.1093/jcsl/krac027 “Chapter XVI: Articles 104 and 105 — Charter of the United Nations — Repertory of Practice of United Nations Organs — Codification Division Publications.” United Nations - Office of Legal Affairs, 12 July 2023, https://legal.un.org/repertory/art104_105.shtml. Accessed 7 April 2024.

White Nigel, Peacekeeping and International law (Oxford: Oxford University press, 2015), 52 “International Humanitarian Law and Peacekeeping.” DLP Forum, 11 May 2022, https://www.dlpforum.org/2022/05/11/international-humanitarian-law-and-peacekeeping/. Accessed 7 April 2024.

Shahid, Areesha. “Peacekeeping Operations and Accountability.” DLP Forum, 18 May 2022, https://www.dlpforum.org/2022/05/18/peacekeeping-operations-and-accountability/. Accessed 7 April 2024.

Report of the Secretary General, “A Comprehensive Strategy to Eliminate Future Sexual Exploitation and Abuse in United Nations Peacekeeping Operations,” UN Doc A/59/710 (2005) (Zeid Report) Sheeran, Scott, et al. “Peacekeeping and Accountability.” Chatham House, 28 May 2014, https://www.chathamhouse.org/sites/default/files/field/field_document/20140528PeacekeepingAcco untability.pdf. Accessed 10 April 2024.

References “Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression (Articles 39-51) | United Nations.” the United Nations, https://www.un.org/en/about-us/un-charter/chapter-7. Accessed 31 March 2024.

Meiske, Maline, and Andrea Ruggeri. “Peacekeeping as a Tool of Foreign Policy.” Oxford Research Encyclopedia, 5 March 2024, https://oxfordre.com/politics/display/10.1093/acrefore/9780190228637.001.0001/acrefore-9780190 228637-e-462. Accessed 7 April 2024.

White Nigel, Peacekeeping and International law (Oxford: Oxford University press, 2015), 43-57 Meiske, Maline, and Andrea Ruggeri. “Peacekeeping as a Tool of Foreign Policy.” Oxford Research Encyclopedia, 5 March 2024, https://oxfordre.com/politics/display/10.1093/acrefore/9780190228637.001.0001/acrefore-9780190 228637-e-462. Accessed 7 April 2024.

“Principles of peacekeeping.” United Nations Peacekeeping, https://peacekeeping.un.org/en/principles-of-peacekeeping. Accessed 5 April 2024.

“Observance by United Nations forces of international humanitarian law - ICRC.” International Committee of the Red Cross, 31 December 1999, https://www.icrc.org/en/doc/resources/documents/article/other/57jq7l.htm. Accessed 7 April 2024.

Hanna Bourgeois, Patryk I Labuda, When May UN Peacekeepers Use Lethal Force to Protect Civilians? Reconciling Threats to Civilians, Imminence, and the Right to Life, Journal of Conflict and Security Law, Volume 28, Issue 1, Spring 2023, Pages 1–65, https://doi.org/10.1093/jcsl/krac027 “Chapter XVI: Articles 104 and 105 — Charter of the United Nations — Repertory of Practice of United Nations Organs — Codification Division Publications.” United Nations - Office of Legal Affairs, 12 July 2023, https://legal.un.org/repertory/art104_105.shtml. Accessed 7 April 2024.

White Nigel, Peacekeeping and International law (Oxford: Oxford University press, 2015), 52 “International Humanitarian Law and Peacekeeping.” DLP Forum, 11 May 2022, https://www.dlpforum.org/2022/05/11/international-humanitarian-law-and-peacekeeping/. Accessed 7 April 2024.

Shahid, Areesha. “Peacekeeping Operations and Accountability.” DLP Forum, 18 May 2022, https://www.dlpforum.org/2022/05/18/peacekeeping-operations-and-accountability/. Accessed 7 April 2024.

Report of the Secretary General, “A Comprehensive Strategy to Eliminate Future Sexual Exploitation and Abuse in United Nations Peacekeeping Operations,” UN Doc A/59/710 (2005) (Zeid Report) Sheeran, Scott, et al. “Peacekeeping and Accountability.” Chatham House, 28 May 2014, https://www.chathamhouse.org/sites/default/files/field/field_document/20140528PeacekeepingAcco untability.pdf. Accessed 10 April 2024.