Is the Lack of a Formal Legal Framework Governing the Use of Force in UN Peacekeeping Missions an Advantage or a Disadvantage?

-Edited by Peerajit Phasitthanaphak

The United Nations Peacekeeping missions are essential for helping countries ‘navigate the path from conflict to peace’ (United Nations, n.d.). They involve traditional Peacekeeping, conflict reconstruction, support missions, humanitarian missions and enforcement missions that are conducted in accordance with Chapter VI and Chapter VII of the UN Charter. Since their inception, the UN has deployed Peacekeeping missions 72 times and currently has 12 active missions (United Nations, n.d.). They are approved by the Security Council (UNSC) and are often undertaken with the explicit consent of the state they are going to be located in (United Nations, n.d.). Currently, there are only a few formal legal frameworks that govern the missions. Firstly, the very UNSC resolutions that approve the mission contain provisions in which the mission objectives and legal obligations of the Peacekeepers are highlighted. Secondly, there are a smaller batch of periphery documents that govern Peacekeeping behaviour during missions, such as the ‘Status of force agreements’ (SOFAs) and ‘Status of Mission Agreements’ (SOMAs) which govern the specificities of each different mission. However, there is no formal legal framework governing the use of force. This essay will tackle that question by arguing that a lack of formal framework is a disadvantage. It will address the benefits of a lack of formal legal framework governing the use of force and will then provide a counterargument for each benefit discussed. Firstly, it will analyse how a lack of framework allows the Peacekeepers to adapt to their situations through the UN mission in the Central African Republic (CAR). Secondly, it will assess it helps the Peacekeepers be more impartial and enforce UN mandates by looking at the UN mission in Cyprus (Cyprus). Thirdly, it will examine the relationship between the lack of a formal legal framework and how it helps the UN navigate the complex politics of the UNSC and Troop Contributing Countries (TCCs). Finally, it will assess how the lack of a formal legal framework allows the Peacekeepers to be more streamlined and deploy in less time by re-examining its mission in the CAR. After this, the essay will demonstrate how a lack of formal legal framework leads to a lapse in accountability by exploring the UN mission in the Congo (Congo). Then it will argue that a lack of formal framework leads to escalation of hostilities by exploring the UN mission in Rwanda (Rwanda). For the purposes of this essay, it will treat an ‘advantage’ or ‘disadvantage’ in relation to the relative success of the mission.

Advantage- Flexibility due to Operational Independence

Christian Henderson notes that the use of force has become ‘an everyday reality and is integral to… the mission’ (Henderson, 2018). The combat situation can change dramatically over a short period of time and the lack of a formal legal framework gives the Peacekeepers more independence. Here, it proves to be beneficial as it allows them to do what is beneficial for the mission on the ground without hinderance. It allows them to innovate and experiment with new strategies for conflict resolution and the maintaining of mission security. No two missions are the same. For example, CAR is carried out in a wholly different environment to Cyprus, meaning that there needs to be room for improvisation according to the circumstances. The lack of a legal framework makes it easier for the Peacekeepers to do so. The lack of legal framework proved to be an advantage in the CAR mission. Established in 2014 after UNSC Resolution 2149 in response to a deteriorating security situation, the mission required there to be a large response force that deployed to the region to usher in stability (United Nations, n.d.).  Aside Peacekeepers, there were other auxiliary forces that were also deployed. With the increase in personnel, the mission became riskier. In early 2021, the Peacekeeping mission encountered a challenge as it was tasked with securing the upcoming elections against undemocratic interference. This resulted in additional requirements for the 12,500 Peacekeepers, who were now tasked with preserving the stability of the elections, as well as continuing their overall mission statements (United Nations, n.d.). With there being some leeway in how the Peacekeepers could approach their new task, the elections were successful, despite threats of contestation and other controversies (United Nations, n.d.). Civilian polling booths were targeted and other political infrastructure was targeted, leading to widespread violence. However, despite the violence, the elections went through (Buchanan-Clarke, 2021). And on January 13th, when insurgents from the CPC launched a attack on the capital and overran the local garrisons to overturn the results of the elections, they were driven back by the UN Peacekeepers (Buchanan-Clarke, 2021). The Peacekeepers, who were caught off guard, had to adapt quickly to the situation and recapture the city (Serefio, 2019). Arguably, the lack of legal framework concerning the use of force proved to be advantageous in this situation, as it allowed the Peacekeepers to adapt to the situation and counter the threat. By following their own intuition, they managed to secure the capital and legitimise the elections, preventing further violence. This event was a key part of the mission and symbolised its success, as the UN forces, working alongside other actors, were able to secure the nation’s elections amidst extreme turmoil and conflict (Howard, 2020).  Therefore, the lack of formal legal framework governing the use of force proves to be advantageous as it allows the Peacekeepers to practice flexibility and adapt to every situation as it comes.

Counterargument- A Lack of Self-Policing

However, it is this lack of rigid protocol and need for self-assessment that proves to be a problem. Although the Peacekeepers were successful in creating an environment where the nation could resume its democratic processes, it remains pertinent to highlight the negative impacts of extreme flexibility. Although CAR was successful in protecting the democratic integrity of the nation, the lack of rigidity concerning the Peacekeepers’ use of force led to there being large cases of physical and sexual abuse that went unpunished (Askin, n.d.). The mission, which later became plagued with repeated instances of Peacekeeper-led violence against civilians, led to repeated calls for greater oversight and stronger punitive measures to be taken against transgressors.

Advantage- Impartiality and Enforcement of UN mandates

The lack of a formal legal framework governing the use of force is an advantage for Peacekeeping missions as it aids the Peacekeepers in maintaining impartiality. As every mission is different, it would be apt for the Peacekeepers to follow a specific mission statement given by the UN and not a universal framework which may conflict with the UN Charter. This was clarified in 2000 in the Brahimi report, which stated that impartiality meant an ‘adherence to the principles of the charter… not the same as neutrality, which can amount to appeasement’ (Brahimi, 2000, p.9). Therefore, force may be needed to enforce impartiality and it makes sense for the Peacekeepers to rely on the guidelines enforced by the UNSC in regards to the mission rather than universal or rigid legal framework which may overlook the specifics of the mission and simply address Peacekeeper use of force without context. A lack of legal framework proved to be positive in carrying out Cyprus. The mission commenced in 1964 to prevent further fighting between Greek Cypriot and Turkish Cypriot communities on the Island. After the subsequent breakdown of government and Turkish intervention, the UN has maintained the ceasefire and a buffer zone across the island. Since its establishment, the mission has worked behind the scenes to prevent bad actors from breaking the peace. Here Peacekeepers often find themselves in the middle of disputes in the island. Recently, many UN personnel were injured in clashes with the Turkish-Cyrpiot troops after the latter began to build illegal structures in the buffer zone (Reuters, 2023). Though these are more recent examples, the mission faced considerable challenges in enforcing its mandate. This was seen during 1974, where Canadian Peacekeepers defended the Cyprus airport from Greek and Turkish forces and later negotiated a ceasefire that divided the island in two (Veterans Affairs Canada, 2024). Here, it is clear the benefits a lack of formal legal framework provides. Firstly, it allowed the Canadian Peacekeepers to do whatever they deemed necessary for the mission, secondly it also put a damper on the hostilities of both the Greek and Turkish forces and reinforced the need for impartiality. By opposing both the Greek and Turkish forces, the UN forces had managed to show impartiality and their combat success allowed them to negotiate from a position of strength. Therefore, it would be pertinent to argue that the lack of a formal legal framework concerning the use of force is beneficial because it means that the Peacekeepers can devote more focus to their mission mandates and enforce the UN charter, using force if needed.

Counterargument- Creating a ‘Negative Peace’

While it is difficult to criticise the benefits of impartiality, it is important to note that it often leads to a ‘negative peace’ (Levine, 2010, p.9). Some scholars, as well as UN personnel, have raised criticisms towards such missions, stating that the UN’s labelling of the prevention or lowering of ‘large scale violence’ cannot be seen as a victory in itself as it neglects the other peace processes and overlooks a ‘positive peace’, which often lasts longer and requires less outside intervention (Levine, 2010). There is some truth to this. One could argue that the UN emphasis on impartiality and its ability to participate in hostilities has led to nations seeing the Peacekeepers as the be-all end-all to their domestic instability.  In addition, it is apt to examine the situation in Cyprus currently. The UN’s approach to the situation is one of the reasons that tension still remains in Cyprus. Daniel Levine supports this argument, saying that the emphasis the UN places on fulfilling its mission statements leads to a weak peace process in favour of their mission (Levine, 2010). He argues that this leads to a neglect of the peace process and leads to problems later on, stating that the UN’s striving for political victories can sometimes lead to mischaracterisations of the results (Levine, 2010).

Advantage- Navigating Complex Political Situations

As mentioned previously, no two peacekeeping missions are the same. And the situations of every missions vary. Here, a lack of legal framework proves to be advantageous as it allows the Peacekeepers to have some freedom in choosing how they respond to situations, especially when navigating the complex political climates of the nations they are sent to. In particular, nations that are going through political turmoil require a force that is aware of the political situation and can navigate it. Somewhat similarly to the previous paragraph, the political situation in the countries that require Peacekeeping forces is often fragmented and chaotic, with multiple groups struggling for power over the whole nation or parts of it. In addition, it also helps the Peacekeepers navigate the external politics that may play out in the UN (Allen & Yuen, 2014). This is helped by the fact that the missions rely on a specific mandate for every mission (Allen & Yuen, 2014). Scholars argue that the mandates of the mission, though they are determined largely by the UNSC, are undertaken with the knowledge that the Peacekeepers are acting on behalf of the UN and not their TCCs or a third parties (Allen & Yuen, 2014). Firstly, the very nature of the missions themselves is more altruistic than other missions, as it draws upon the UN’s striving for world peace. They also precede any self-motivated concerns the UNSC members may hold. This played out during the Bosnian War, where Phillip Corwin, the UN’s chief political officer in Sarajevo, stated that NATO’s bombing had ruined the goodwill the UN Peacekeepers had built up since their arrival (Allen & Yuen, 2014). Somewhat similarly to the previous point, he accused NATO of jeopardising the UN’s ‘future support for missions from financial and TCCs’ (Allen & Yuen, 2014, p.623). And this only supports the need for an absence of a rigid legal framework. As the Peacekeeper forces are often on the ground, they are unable to gain a full view of the situation and must carry out orders from their mandate and superiors. The absence of a rigid legal framework also means that the peacekeeping missions are free from exploitation by other states for their own interests. There are less legal barriers for states to exploit for their own benefit. In addition, the reliance of the Peacekeepers on the UNSC mandates is beneficial for a mission. As stated previously, the ability of the UN to solely pursue humanitarian goals means it remains a neutral actor enforcing a specific mandate according to the situation and not an entity looking to advance its political or material position.

 Counterargument- Overreliance on the UNSC

Although the peacekeeping missions themselves are secure from untoward political interference, their very existence depends on the UNSC. This was seen throughout the Cold War, where the US and USSR used vetoes to supress any Peacekeeping missions they felt might hinder their agendas. And this did not stopped. In 2012, the UNSC approved a supervision mission in Syria that involved 278 military observers and was instructed to ‘monitor a cessation of violence’ (United Nations, n.d.). However, the mission was dissolved after three months and the UN’s mandate went unfulfilled. This was due to Russia blocking a proposed aid route extension into Syria at the UNSC after the end of the mandate, stating that the aid route would only be active for six months (Al Jazeera, 2023). Critics accused Russia of supporting their interests regarding Assad, as the aid route indirectly helping rebel groups within Syria (Al Jazeera, 2023). Thus, it becomes clear to surmise that the Peacekeeping missions themselves are reliant on the atmosphere of the UNSC, providing a valuable counterpoint to the previous argument. While the reliance on the mandate proves to be beneficial for the mission, there needs to be an acknowledgement that the mandate is ineffective if the UNSC doesn’t implement it, or if there are roadblocks to approving the mandate. And while it is possible that the mandate gets approved, there is no guarantee that the mandate will not have the political aspirations of the various UNSC members superimposed on it.

Advantage- Rapid Response to Threat Emergence

One of the benefits that a lack of legal framework presents Peacekeeping missions is the ability for the mission to be deployed relatively quickly in response to threats. This was seen most clearly in the CAR, where the UN approved the CAR mission in relatively short time (United Nations, n.d.). The mission was proposed before the UNSC on 10 April 2014 and the mission was ready in September, less than six months later (United Nations, n.d.). And though the timeframe doesn’t initially appear rapid, the UN had managed to gather the logistics and the framework for the mission in those months, culminating in the transfer of nearly 10,000 personnel from various nations around the world to the CAR, in addition to nearly 3000 auxiliary personnel, which included a trained police force and other military observers who would aid the Peacekeepers (United Nations, n.d.). In addition to that, there are other factors to consider. Although surface observations included military personnel and those sent to aid them, they did not count for the other logistical constraints the UN had to consider. Waste management, nutrition, showering facilities and other facilities have to be arranged before the UN Peacekeepers can even land there.  Therefore, adding red tape to the process in the form of a formalised legal framework on force would only risk increasing the timeframe that the peacekeeping missions can be deployed in. Therefore, it would seem that employing a formalised legal framework would be a disadvantage for the Peacekeeping missions as it would only delay the logistical processes that need to take place before the missions can be deployed.

Counterargument- A Legal Framework would help speed up the Deployment process.

However, there is a very plausible reasoning behind arguing that the current UN process is already archaic and slow, with this not being a deep-rooted problem, but rather a simple problem that can be solved by streamlining the current processes. The current six-month timeframe for organising a mission is scrutinised by critics and the Department of Peacekeeping Operations (DPKO) alike, stating that it is too long and can even endanger the Peacekeepers’ lives as critical mission intelligence could potentially be leaked (Willmot, 2015). In addition, the DPOK has also admitted that its solutions to the problems, seen in the form of inter-mission co-operation, generated a whole host of legal and political challenges that it was unprepared to deal with (Willmot, 2015). And in the case of MINUSCA, the mission itself was not averse to logistical failures, with troop equipment not arriving on time and ammunition reserves being miscounted (Willmot, 2015). Another problem with this is the increasing unwillingness of member states to provide a ‘blank cheque’ commitment to the Peacekeeping Missions in the form of sharing assets or information due to the worsening image of UN Peacekeeping missions, particularly in Africa (Willmot, 2015). Here, a formalised legal framework around the use of force would be a potential positive for the UNDPOK. They could potentially allow them to assuage any concerned states by providing more concrete assurances against Peacekeeper misbehaviour and lend more legitimacy to the missions.

Disadvantage- A Lack of Accountability

Though it was previously mentioned, it is beneficial to explore how the lack of a formalised legal framework can contribute to a palpable lack of accountability. Without a legal framework for Peacekeepers and detractors alike to consult, there is a higher likelihood of the Peacekeepers falling out of favour with the local populations.  This was seen most clearly in the Congo mission, where the public, after a series of alleged Peacekeeper abuses, staged violent demonstrations against the presence of the Peacekeepers, stating that they were using their status to abuse the locals (Amnesty International, 2022). These demonstrations came after a string of sexual abuse allegations against Peacekeepers (Rolley & Mahamba, 2023). As stated previously, the lack of a rigid framework allows Peacekeepers to adapt to their situations and take actions with less oversight and more independence. That can, however, have disastrous consequences if left unchecked. Between 2015 and 2022, the mission faced 184 accusations of sexual abuse, alongside other accusations of the Peacekeepers using the threat of violence to further their individual agendas (Rolley & Mahamba, 2023). Organisations such as Human Rights Watch (HRW) have highlighted how Congo was riddled with instances of human rights abuse. In addition, HRW highlighted how the UN was very slow to act against the allegations, accusing it of using bureaucratic processes to shield the offenders (Amnesty International, 2022). Furthermore, the UN was accused of aiding the Congolese government in stemming the flow of discontent by supporting their crackdown on protests (Amnesty International, 2022). Peacekeeping missions often involve working closely with elements of the local governments. Linking back to the previous argument, one can argue that their adherence to the tenet of impartiality means that they must ensure that local governments follow the UN Human Rights Charter and International Humanitarian Law. However, in the DRC, it was discovered that the Peacekeepers did not investigate breaches of IHL, particularly in the Kinhasa District, where the Governor outlawed protests and supressed them using extreme police brutality (Amnesty International, 2022). This can all be linked to the lack of formal legal framework. As there is no specific code governing the use of force by Peacekeepers, lapses such as these become more common as blame is passed around the corps. The same factors that allow Peacekeepers to take certain liberties when active become the same reasons for lapses and failures in UN oversight. Here, it is palpable the way in which a lack of formal legal framework both leads to Peacekeeper oversight and later, UN oversight.

Disadvantage- Risk of Escalation

In addition, without there being a concrete framework to fall back on, it stands to reason that there is a high risk of escalation, particularly in situations of tension and violence. This was seen most clearly in Rwanda, where UN inaction led to the Rwandan Genocide (Human Rights Watch, 2023). HRW accused the mission of trying to appear successful politically, thereby prioritising non-intervention over following the UN charter (Human Rights Watch, 2023). This is a twofold criticism. As previously mentioned, the lack of a rigid framework of laws regarding the use of force both allowed the Peacekeepers to adapt to their situations and the absence of a formal legal framework allowed the UN to keep TCCs placated. Here, however, it proved to be a disaster. The Peacekeepers rigidly enforced their mandate, letting the violence spread uncontrollably (Human Rights Watch, 2023). Furthermore, the TCCs intervened and extracted their various troops instead of stemming the flow of violence, highlighting the collapse in operational capacity (Human Rights Watch, 2023). Furthermore, the rigid adherence to their mandate spiralled into repeated efforts to de-escalate through negotiation and a strict aversion to the use of force (Human Rights Watch, 2023). And though Belgium asked for a revision to the mandate, the UN’s rejection of it meant that the ground troops were still confined to their current situation (Human Rights Watch, 2023). This failure can be linked heavily to the overreliance on the UN mandates, as many ground staff were unable or unwilling to deviate from them. For example, Belgian Peacekeepers did not fire back at aggressors as they were told to adhere to their orders and prioritise verbal de-escalation over returning fire (Human Rights Watch, 2023). Knowing this, it becomes much more difficult to argue that the lack of a formal legal framework is beneficial, as it led to lapses of security and a freezing of mission operations because Peacekeepers are unable to consult another source of authority in emergency, thus becoming rigid in their self-enforcement, which can have disastrous consequences.

Conclusion

To conclude, the lack of a formal legal framework is a disadvantage for the UN Peacekeepers. Though it presents some benefits, they would still exist with a legal framework and would not be hindered by the it. For example, TCCs would be more motivated to send troops or overlook political lapses if they were assured of troop conduct when deployed. In addition, there would be more accountability if a formal legal framework was introduced to the Peacekeeping process. Not only would it allow the Peacekeeping process to be more transparent, but it would also cut down on deployment time as the UNSC would have less on its hands and members would find it more difficult to insert their political aspirations into UN missions. Also, it would help to shore up the disadvantages that the current advantages possess. The Peacekeepers would also be given confidence by a legal framework for the use of force, allowing them to avoid future calamities such as the one in Rwanda. Furthermore, it would serve to benefit the UN as it would lend more legitimacy to the missions and provide detractors and critics with avenues for reform and a platform for genuine criticism. Currently, there are advantages to there not being a legal framework. However, they are not strong enough to maintain the status quo and often come at the expense of civilian livelihood. Therefore, the current lack of a legal framework pertaining to the use of force in UN Peacekeeping missions is a disadvantage.

Bibliography

1.      Al Jazeera, ‘Russia Vetoes UN Vote to Extend Key Syria Aid Route.’, July 11, 2023. https://www.aljazeera.com/news/2023/7/11/russia-vetoes-un-vote-to-extend-key-syria-aid-route (Accessed March 20, 2024).

2.      Allen, Susan and Yuen, Amy. ‘The Politics of Peacekeeping: UNSC Oversight Across Peacekeeping Missions’, International Studies Quarterly, 58, (2014).

3.      Askin, Kelly. ‘Global: Ending Impunity for Crimes Committed by UN Peacekeepers.’ International Bar Association. https://www.ibanet.org/article/CEBC5F69-A238-49BB-B85A-5E8D878FE485 (Accessed March 20, 2024).

4.      Amnesty International, ‘Human Rights in Democratic Republic of the Congo.’, 2022 https://www.amnesty.org/en/location/africa/east-africa-the-horn-and-great-lakes/democratic-republic-of-the-congo/report-democratic-republic-of-the-congo/#:~:text=At%20least%2036%20people%20were,and%20nobody%20was%20held%20accountable (Accessed 20/03/2024).

5.      Brahimi, Lakhdar. ‘ Report of the Panel on the UN Peace Operations’, UNSC, 2000. https://peacekeeping.un.org/sites/default/files/a_55_305_e_brahimi_report.pdf (Accessed 20/03/2024).

6.      Buchanan-Clarke, Stephen. ‘What Is behind the Renewed Violence in Car?’ Al Jazeera, January 30, 2021. https://www.aljazeera.com/opinions/2021/1/30/what-is-behind-the-renewed-violence-in-car (Accessed 20/03/2024).

7.      Dr Howard, Lisa, et al., ‘Assessing the Effectiveness of MINUSCA’, EPON. https://effectivepeaceops.net/wp-content/uploads/2020/10/EPON-MINUSCA-Exec-Summary.pdf (Accessed 18/03/2024).

8.      Henderson, Christian. The Use of Force and International Law (Sussex,2018).

9.      Levine, Daniel. ‘Peacekeeper Impartiality: Standards, Processes and Operations’ (University of Maryland, 2010).

10.   N.d. ‘Ignoring Genocide’ (HRW Report - Leave None to Tell the Story: Genocide in Rwanda, March 1999). https://www.hrw.org/legacy/reports/1999/rwanda/Geno15-8-01.htm (Accessed March 20, 2024).

11.   Reuters. ‘UN Peacekeepers Hurt in Cyprus Buffer Zone Clash with Turkish Forces’, August 18, 2023. https://www.reuters.com/world/un-peacekeepers-hurt-cyprus-buffer-zone-clash-with-turkish-forces-2023-08-18/ (Accessed 20/03/2024).

12.   Rolley, Sonia and Mahamba, Fishton. ‘Eight UN Peacekeepers Detained in Congo over Sexual Abuse Claims’ Reuters, October 13, 2023. https://www.reuters.com/world/africa/un-suspends-some-peacekeepers-congo-denounces-sexual-abuse-2023-10-12/ (Accessed March 20, 2024).

13.   Serefio, Herve. ‘Two UN Peacekeepers Killed in Central African Republic Ambush, as 2021 Death Toll Rises to Nine Worldwide’, January 19, 2019. https://news.un.org/en/story/2021/01/1082442#:~:text=Two%20United%20Nations%20peacekeepers%20were,nine%20so%20far%20this%20month (Accessed 20/03/2024).

14.   UN, ‘Minusca Peacekeeping.’ https://peacekeeping.un.org/en/mission/minusca (Accessed March 20, 2024).

15.   UN, ‘UNSMIS Mandate - United Nations Supervision Mission in Syria.’ n.d. https://peacekeeping.un.org/en/mission/past/unsmis/mandate.shtml (Accessed March 20, 2024).

16.   Veterans Affairs Canada, ‘Cyprus.’, February 27, 2024. https://www.veterans.gc.ca/eng/remembrance/wars-and-conflicts/caf-operations/cyprus (Accessed 20/03/2024).