An effective law is required to regulate peacekeeping missions; one that provides a standardized basis for the behaviour of peacekeepers, including issues such as the potential use of force and questions of impunity.
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By Kirthi Jayakumar
A perusal of international conventions and treaties will reveal that the word “peacekeeping” is conspicuous by its absence. The establishment of the United Nations and the coming into force of the UN Charter was the birth of a new world order and a new foundational document for the world community to adhere to. The UN Charter had several aims that encouraged its birth and still drives its existence, the most prominent of which is the idea of saving the succeeding generations from the scourge of war. This notion has given birth to the ambition of maintaining international peace and security, and, under this, the process of peacekeeping was born. Despite the absence of provisions that mandate or regulate peacekeeping in the sense that it has come to be, by and large, the legal basis for such action has been provisions under Chapters VI (Pacific Settlement of Disputes), VII (Action with Respect to Peace, Breaches of Peace and Acts of Aggression) and VIII (Regional Arrangements) of the UN Charter. In recent days, though, the Security Council has adopted the practice of invoking Chapter VII of the UN Charter while authorizing deployment of UN peacekeeping operations in volatile post-conflict settings. However, the ascription of peacekeeping as a part of any particular provision under the UN Charter is misleading. The ambit of peacekeeping encompasses much more than just the process of keeping peace – there is a whole range of activities to the functional side of peacekeeping, such as the planning, operation, training, equipping, briefing, standard setting and implementation.
Humanitarian Law is also cited as a basis of peacekeeping operations, especially in places and times where they apply. In post-conflict environments, the situation is largely volatile, and the propensity for the re-ignition of conflict is very real. The Geneva Conventions and their Additional Protocols tackle the dual aspect of the Laws of War – Jus ad bellum (or the law that governs conduct while going in for war) and Jus in bello (or the law that governs the modus of conflict itself). Human Rights have often been a basis of the normative framework underlying peacekeeping missions. UN peacekeeping missions are expected to cater to the immediate and pressing concerns under human rights – such as abuses, violations and such. While often it is expected that peacekeeping missions adhere to basic standards of human rights while in operation, their hand in impunity is not to be ignored. Nevertheless, although liberally cited, none of these provisions have so much as a mention of peacekeeping, let alone establishing a regulatory framework for it.
Another source from which peacekeeping operations derive legitimacy are Security Council Resolutions. Though Security Council Resolutions do not per se reflect law, they can be taken as a reflection of some of the normative debates and ideological perspectives of the members of the international community. One cannot call it international law technically so much as one might deem them appropriate depictions of state practice – which is determined as a source of International Law. Nevertheless it is wrong to surmise that one resolution is a unanimous basis for all peacekeeping operations – each resolution underlies a different mandate, outlining the expected scope of operations that the missions are supposed to perform. These mandates therefore differ from situation to situation – fit to suit the conflict and the situation as it best requires. In pursuit of certain mandates, the Security Council has passed some resolutions that are cross-cutting, contemporaneous and thematic in that they pertain to all conflict zones and peacekeeping missions. There is no overarching document in International Law exclusively governing peacekeeping. Except UN Security Council Resolution 1674 (2006), which does not exclusively concern peacekeeping, there is no document regulating the process. There is a certain ambiguity, a lack of clarity in the way things must be carried out. There is no exposition of how activities true to each mission will be regulated, nor any explanation of the authorities in charge of these activities at the grass-root.
The need for a Peacekeeping Law
Although one may be wont to perceive these provisions as reason enough for the establishment of peacekeeping missions as falling under the Security Council’s functions, the insufficiency and inadequacy of legal provisions cannot be overemphasized. A Security Council Resolution may reflect the ethos prevalent in the international community, but it is not law for the simple reason that it has too many political connotations to it as opposed to legislative value.
For starters, the UN Charter does not explicitly authorize peacekeeping. The Security Council has, however, built the edifice of its peacekeeping missions in Chapters VI and VII. This is, of course, not the only instance of a violation of the UN Charter – there are several international practices that side-step some of the core values of the UN Charter – falling outside the scope of this paper and hence reserved for another time. On a closer look, even the sets of provisions that the Security Council relies on do not, in their grammatical meaning, authorize anything beyond what they speak of. Chapter VI speaks of peaceful settlement of disputes and grants, where the Security Council has the authority only to make recommendations, and not to take military action, and that all member states are to carry out the decisions so taken. Under Chapter VII the Security Council can take measures that include the use of force, to maintain or restore international peace and security without the consent of the parties concerned. Peacekeeping does not fall under either category. The establishment, implementation and evaluation of a peacekeeping mission fall squarely outside the ambit of Chapter VI, which only offers room for dispute referrals and settlement recommendations. It does not fall under the ambit of Chapter VII either, because a necessary precondition for a peacekeeping venture is the parties’ consent. With no actual basis for legitimacy, as former UN Secretary General Dag Hammarskjold said, the legal foundation of traditional peacekeeping lies in “Chapter VI1/2”. In support of Chapter V1/2, proponents argue that though it relies on consent of the parties, the consent spoken of is “constructive, even fictive: acquiescence rather than vocal agreement, consent by a de jure leader who lacks local control, or a de facto war lord who lacks any representative legitimacy.
Although in its initial days peacekeeping operations did involve consent , more recent ones have relied on Chapter VII, and have taken place without prior consent of parties concerned. Yet this actual lack of legal basis for the birth of peacekeeping missions under the aegis of the Security Council has never been questioned, nor been a cause for concern. As many as 69 peacekeeping missions since 1945 have come into operational existence. There has neither been a move nor an attempt to establish a legislative framework to authenticate any peacekeeping venture so far. Instead, the extant regime has been upheld as valid by different courts and tribunals. The International Court of Justice, in 1962 ruled that traditional peacekeeping was valid in law on account of the fact that it warranted the assertion that it was appropriate for the fulfilment of one of the stated purposes of the UN, and thus was not ultra vires. The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) ruled that the UN Security Council had broad discretion in determining measures that may be taken under Chapter VII of the UN Charter, and that it had a very wide “margin of discretion under Article 39 to choose the appropriate course of action and to evaluate the suitability of measures chosen.”  If this interpretation were to be adopted as “the correct way”, it would automatically mean that the Security Council enjoys the legitimate authority to carry out peace operations of any kind – whether traditional or otherwise. This interpretation is myopic at best. There have been doubts on the line of thought advanced in legitimizing peacekeeping under the rubric of the Security Council’s powers even within the United Nations.
There is a general tendency to overstretch existent laws to cover every gap that arises. This, however, is an inappropriate approach when it comes to handling a dynamic realm – for the law itself is expected to be as dynamic as the realm it governs and handles. The Security Council may be able to stretch the textual framework to handle peacekeeping within its fold, however, it is invariably a much tougher task to deliver time and again in implementation. There is no basis for the regulation of a peacekeeping mission, save for a mandate that is created on a need-of-the-hour basis. Consequently, there is neither a standardized basis for the behaviour of peacekeepers, nor a tangible means to measure the impact of each mission; nor a legitimate law that lays down the permitted spectrum of activity. A typical law governing peacekeeping must address several questions. What body should regulate a peacekeeping mission? Who determines if a situation is ripe enough to warrant intervention by peacekeeping? Can force be used? Who can use force? When can force be used? How much force can be used? What happens if a peacekeeper indulges in continuing a state of impunity? These questions will continue to remain blurred lines until there is an effective law to address them.
Kirthi Jayakumar is a Lawyer, specialized in public international law and human rights. A graduate of the School of Excellence in Law, Chennai, Kirthi has diversified into research and writing on public international law and human rights. She has worked as a UN Volunteer, specializing in human rights research in Africa, India and Central Asia and the Middle East. She also runs a journal and consultancy that focuses on international law, called A38.
1) Harvey J. Langholtz, Principles and Guidelines for UN Peacekeeping Operations, 2010, p. 5
2) Ibid, p.6
3) See The Secretary-General’s Bulletin on the Observance by United Nations Forces of International Humanitarian Law of 6 August 1999 (ST/SGB/1999/13)
4) Article 38 (1) (b), Statute of the ICJ, 1945
5) See Resolutions 1325 (2000) on Women, Peace and Security; 1612 (2005) on Children and Armed Conflict; 1674 (2006) on the Protection of Civilians in Armed Conflict.
6) UN Charter Articles 33–38.
7) UN Charter Articles 39-51.
8) General Assembly President Says United Nations Peacekeeping Activities Should Be Strengthened as Effective Tool for Maintaining Peace, U.N. GAOR Press Release, at 2, U.N. Doc. GA/SM/66 (1998)
9) Ruth Wedgwood, The Evolution of United Nations Peacekeeping, 28 Cornell Int’l L.J. 631, 636 (1995)
10) UNMOGIP (Kashmir), UNFICYP (Cyprus); See generally The Charter of the United Nations: A Commentary 578 (Bruno Simma et al. eds., 1995)
11) Jarat Chopra, The Space of Peace-Maintenance, 15 Pol. Geography 335, 341 (1996); Michael Stopford, Peace-Keeping or Peace- R Enforcement: Stark Choices for Grey Areas, 73 U. Det. Mercy L. Rev. 499, 500–02 (1996)
12) Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), 1962 I.C.J. 151, 168 (July 20)
13) Prosecutor v. Tadi´c, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 35 I.L.M. 32, ¶ 32 (Int’l Crim. Trib. Former Yugoslavia, Appeals Chamber, Oct. 2, 1995)
14) Panel on United Nations Peace Operations, ¶ 19, U.N. Doc. A/55/305-S/2000/809 (2000), stating ““without significant institutional change,…the United Nations will not be capable of executing the critical peacekeeping and peace-building tasks that the Member States assign it in coming months and years.” This was later reiterated by the Secretary General: “Given the potentially large challenges and costs such comprehensive peacebuilding often encompasses, it is essential to ensure that all key parts of the United Nations system are fully engaged in a collaborative and constructive fashion….[N]o single department or agency can be expected to devise and implement, on its own, all the elements of a comprehensive peace strategy.”
15) Simon Chesterman, International Peace Academy Project on Transnational Administrations, You, the People: The United Nations, Transitional Administration, and State Building 2 (2003).