Legal Framework of Peace Operations

Major Dan Tran Legal Training Officer

Introduction

• Peacekeeping was pioneered and developed by the UN

• 63 UN peace operations to date

History of peacekeeping: six phases

• 1946-56: observer missions• 1956-1974: first “golden age”

- first armed peacekeeping operations- UNEF I became the prototype

• 1974-88: first lull• 1988-94: second ‘golden age’

- numbers increased; nature of conflicts and missions changed- “sub-contracted” peace operations

History of peacekeeping (cont’d)

• 1994-1999: second lull for UN peacekeeping- but NATO, OSCE, CIS and ECOWAS stepped into the breach

• 1999-present: the pendulum swings back- 13 new UN operations since 1999…- …as well as many non-UN operations (large and small)

Peacekeeping today

• Today, about 93,500 uniformed personnel in UN missions, plus 21,000 civilians

• About 84,000 in non-UN operations (mainly NATO in Afghanistan and Kosovo)

However …

United Nations Peacekeeping

• Peacekeeping not mentioned in UN Charter.

• Nor is ‘Peace Enforcement’ or ‘Peace Operation’

How are they created?

• UN peace ops– By consent– By binding Security Resolution

• Regional/Coalition peace ops– By consent– Regional arrangements

How are they created?

• Legal Authority– Chapter VI Pacific Settlement of

Disputes– Chapter VII Action with Respect to

Threats to the Peace, Breaches of the Peace and Acts of Aggression

Regional Arrangements Chap VIII, Art 52: “Nothing in the present

Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action (However this is subject to other provisions of the Charter)

How are they created?

Classic Peacekeeping: Chapter VI

• Principles– Consent– Impartiality– Limited Use of Force

• Missions include:– monitoring elections– acting as a presence– establishing civil administration

Peace Enforcement:Chapter VII

• Security Council powers to deal with Threats to the Peace, Breaches of the Peace and Aggression– Consent– Impartiality– Limited Use of Force

Regional and Subregional arrangements

Eg. African Union: Protocol Relating to the Establishment of the Peace and Security Council of the African Union

• N.B. (eg EU/ASEAN in Aceh)

• The mandate will have specified tasks but also implied tasks eg UNSCR 1244 (1999) - Kosovo: “Ensuring public safety and order”. What is reasonable and necessary to carry out this task?

• One implication of been given a ‘task’ is that you are also given the authority to carry out that task

• NB: Interpretation of the mandate does not IHL or other relevant applicable law eg International Human Rights law - (“…all measures necessary”!)

MANDATE INTERPRETATION

The UN General Assembly

• Powers are limited to recommendations (Articles 10-14)

• Can the UN General Assembly establish a peacekeeping operation? YES

• Uniting for Peace resolution (1950 re Korea)

• Used to authorize UNEF I (1956) and ONUC (1960)

Certain Expenses Case

• ICJ – 1962.• Funding for Congo & Middle East

missions.• Peacekeeping within power of Security

Council and General Assembly though only SC can oblige action.

• ICJ found authority for peacekeeping within Articles 10 (GA may make recommendations) and 14 (GA may make recommendations for peaceful adjustment) both in Chapter IV .

Defining Peace Defining Peace OperationsOperations

Multiple terms - mil. liaison/obs. missionsConflict prevention

Peacemaking interpositional forcesPeace support

regional missions Peace enforcement

Peace makingPeacekeeping

Peace-building Humanitarian missions•None of the classification schemes are commonly agreed or ideal

The Spectrum of peace and security activities.

Three different types (but these categories are not airtight by any means):

• Conflict Prevention/Peacemaking

• Peacekeeping Operations - “Traditional” Peacekeeping Operations - Peace Enforcement Operations

• Peacebuilding

Brahimi Report, paras. 10-14

Defining Peace Defining Peace OperationsOperations

Conflict prevention involves the application of structural or diplomatic measuresto keep intra-state or inter-state tensions and disputes from escalatinginto violent conflict.

Peacemaking addresses conflicts in progress and usually involves diplomatic action to bring hostile parties to a negotiatedagreement.

Pre-conflictPre-conflict

‘Traditional’ peacekeeping

Mainly based on UN Charter Chapter VI• Prototype: UNEF I (Suez Crisis)• Guiding principles:

- consent- impartiality- non-use of force except in self-defense

• monitor a cease-fire, troop withdrawal and/or buffer zone

Peacekeeping MissionsPeacekeeping Missions

• • verify compliance

• cease-fires/withdrawals

• primarily unarmed

• investigate/report violations

• lightly armed

•Current examples:

UNDOF (Syria, Golan Heights), UNFICYP (Cypress)

Peace enforcement• Mainly based on UN Charter Chapter

VII (and Articles 39, 41, 42 and 47)

• Enforcement of resolutions against

“breaches of peace and acts of aggression”, ‘as may be necessary to restore or maintain international peace and security.’

Peace Enforcement MissionsPeace Enforcement Missions

• Forcible Separation of Belligerents

• Establish Protected Areas

• Enforce Sanctions/ Exclusion Zones

• Deny Movement/ Guarantee Movement

• Protect Humanitarian Assistance

Peace enforcement

Use of force is NOT limited to self-defense.

use of force for limited objectives (i.e. not to defeat an enemy or win a war)

PEO may involve use of force to separate / disarm warring factions

Peace enforcement

• do not depend on full and reliable consent of all the local actors

• The operational area will normally include civilians and req. special consideration of :

• Militia groups, threat identification, collateral damage, civilian casualties, etc.

• examples include Somalia in early 1990s, Bosnia, East Timor, Sierra Leone, DRC, Haiti, and Darfur

Peace keeping or Peace enforcement?

• line between PK and peace enforcement (PE) is increasingly blurred

• now accepted that PK and PE are on a continuum

• today, the line being blurred is between PK/PE on one hand, and war on the other (eg in Afghanistan)

PEACE BUILDING - covers post-conflict actions, predominantly diplomatic, economic, legal, and security related, that support political, social, and military measures aimed at strengthening political settlements and legitimate governance and rebuilding governmental infrastructure and institutions. PB begins while PEO or PKO are underway and may continue for years.

Joint Pub 3-07.3Joint Pub 3-07.3

Peace-building

• Focus on the implementation of a peace agreement.• Acknowledges that peacekeeping can’t succeed unless

accompanied by a viable political process:- keep main parties politically engaged- foster political inclusiveness

– Peacebuilding operations are neutral– third-party interventions, in that they do not take

sides among the former parties to the conflict when supporting

– As the peace– process develops, this neutrality shifts away from a

focus on the parties to a neutral guardianship of the peace process.

Peace building

Peace building

• also firmly consent-based, but more complex

• implementation of comprehensive peace agreements

• Early examples include Namibia, El Salvador and Mozambique in early 1990s

• composed of military, civilian and police performing multiple functions

• help to transform a society in hope of doing away with root causes of conflict (eg El Salvador)

Peace building

Examples:

Post civil war conflicts:

UNTAC (Cambodia)UNAMSIL (Sierra Leone)

Multidimensional peacekeeping

• Nowadays, many operations are partially under Chapter VI and partially Chapter VII, eg- Haiti (MINUSTAH) and Darfur (UNAMID)- protection of civilians (Sierra Leone and DRC)

• Also regional and subregional arrangements outside of UN structure

Brahimi Report

• Review of UN peacekeeping • Conclusions

– Use of force remains the foundations of peacekeeping operations

– Peacekeepers must be able to defend themselves - ROE must be appropriately robust

– Peacekeepers in dangerous situations should not cede initiative to attackers

– Peacekeepers should intervene when faced with grievous breaches of humanitarian standards

Peacekeeping commonalities

• Consent.• Impartiality.• Limited Use of Force.• Legal Authority

Peace Operations Publications

• Joint Pub 3-07.3 Peace Operations Joint Pub 3-07.3 Peace Operations • Handbook on UN Multidimensional

Peacekeeping Operations (2003)• Multi-disciplinary Peacekeeping: Lessons

from Recent UN Experience (1999)• UN Peacekeeping Training Assistance

Teams: Advisor’s Guidebook (1996)• UN Peacekeeping Operations: Principles

and Guidelines (2008)• UN Peacekeeping Training Manual

available at http://www.un.org/depts/dpko/training/

QUESTIONS?