On 27 March, PHAP organized an online learning session on the legal challenges related to UN peacekeepers operating in armed conflict, focusing on the questions of whether, how, and when international humanitarian law (IHL) applies to peacekeeping. The event looked in particular at how this applies to the recent attack in the Democratic Republic of the Congo, where 15 peacekeepers were killed and more than 50 wounded.
The event featured presentations from Marten Zwanenburg, Legal Counsel at the Ministry of Foreign Affairs of the Netherlands, and Keiichiro Okimoto, Legal Officer at the United Nations Secretariat, both speaking in their personal capacity. While many of the questions from participants were answered during the event (listen to these in the event recording), there were more questions than there was time for, and the guest experts have answered follow-up questions in writing, which you can now read on this page.
“During the webinar, we discussed two legal approaches to UN peacekeeping forces: they can be considered as civilians that lose protection from direct attacks when they engage in hostilities, or directly as a party to an armed conflict for the duration of the conflict. If the latter case is applied, will an UN peacekeeping force’s base then become a military target?”
- Legal Officer, South Sudan
The question assumes that a UN peacekeeping operation has become a party to an armed conflict. Whether a base used by the operation will become a legitimate military objective in that case, depends on whether that base meets the criteria for a military objective under IHL. These criteria are set out in Article 52 Additional Protocol I, which are generally assumed to reflect customary international law. If the base is used by the military component of the UN peacekeeping force, it seems difficult to imagine that this would not be the case. The presence of civilian members of the operation on the base would then have to be taken into account when applying the principle of proportionality if the other party to the conflict wishes to attack the base.
Whether an object (as opposed to a person) has become a lawful target under IHL is assessed by applying the definition of military objectives in IHL. Article 52 of 1977 Additional Protocol I defines the term “military objectives” as follows: “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” While Protocol I only applies to international armed conflicts, this definition also generally applies to non-international armed conflicts. As a general matter, this definition would provide guidance on the status of objects belonging to a United Nations peacekeeping operation under IHL.
“To which extent do robust mandates such as those of the MONUSCO, MINUMA collide with the three core principles of peacekeeping: impartiality, consent of the parties, and minimum use of violence?”
- Desk Officer, NGO, Spain
This question is not directly related to the issue of the application of IHL to peacekeeping operations. It is very relevant to contemporary peace operations however, but it is difficult to give a brief answer. It is important to point out that the three core principles were first set out by UN Secretary-General Hammarskjold in the context of the United Nations Emergency Force in 1956. That operation was very different from many of today’s operations, both as concerns the environment in which it operated (there was a cease-fire that was respected by the parties) and as concerns the make-up of the operation (among other things: a limited number of tasks, and lightly armed). Many of today’s operations operate in much more challenging environments, and as a consequence are much more robust. Some argue that against this background, the core principles are no longer relevant. Others suggest that peacekeeping must respect these core principles no matter what, which essentially implies that in certain situations peacekeeping operations should not be deployed in the first place. A third approach, which could be said to hold the middle ground between these two positions, is the one set out in the 2015 report of the High-Level Panel on Peace Operations convened by the UN Secretary-General. The Panel concluded that:
“The Panel has heard many views on the core principles of United Nations peacekeeping. The Panel is convinced of their importance in guiding successful United Nations peacekeeping operations. Yet, those principles must be interpreted progressively and with flexibility in the face of new challenges, and they should never be an excuse for failure to protect civilians or to defend the mission proactively.”
The full discussion by the Panel, which I highly recommend, is on pp. 46-47 of its report.
When MONUSCO was given the mandate to carry out targeted offensive operations to prevent the expansion of all armed groups, neutralize these groups, and to disarm them by Security Council resolution 2098 (2013), several members of the Security Council referred to the basic principles of United Nations peacekeeping and their role in the context of MONUSCO. Those statements could be viewed in the Security Council meeting record (S/PV.6943).
As far as MINUSMA is concerned, Security Council resolutions on MINUSMA have referred to the basic principles of United Nations peacekeeping in their preamble. See, for example, the third preambular paragraph of Security Council resolution 2364 (2017) of 29 June 2017.
“I am disappointed by the reaction of the leadership in UN regarding the attack in DRC, not condemning it stronger. Same as the recent attack and assassination of two UN experts. This is a shame putting all UN staff in danger. Are there any legal reasons for the UN not to be condemning these attacks more severely?”
- Human Rights Officer, DRC
I am not privy to the decision-making of the UN leadership concerning condemnation of attacks on peacekeepers and UN experts. My impression is however that the UN organs do condemn such attacks. Consider the statement of the UN Secretary-General following the December 2017 attack on MONUSCO stating that this was a war crime. The Secretary-General also gave a statement following the killing of two UN experts in the DRC in March 2017. The UN Security Council also issued a statement. The only legal reason that I can think of that might play a role, concerns how the UN leadership would qualify such an attack. As discussed during the webinar, whether such an attack constitutes a war crime will depend on the circumstances, including whether or not the operation concerned was a party to an armed conflict, and whether or not the victims were members of a military contingent.
In relation to the incident that involved MONUSCO in December 2017, the Secretary-General, on 8 December 2017, stated, among other things, that “I condemn this attack unequivocally” and that “[t]hese deliberate attacks against UN peacekeepers are unacceptable and constitute a war crime.”
The full statement could be accessed here.
The Security Council also issued a press statement concerning the incident on 8 December 2017 in which the Council stated that “[t]he members of the Security Council condemned in the strongest terms the attacks against the Company Operating Base of the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO) at Semuliki, North Kivu on 7 December 2017, which caused the death of 15 Tanzanian peacekeepers and injured at least 53 others”.
The full statement could be accessed here.
“I would like to see the debate expanded to attacks against other military personnel deployed in some kind of "peacekeeping" role (African Union missions, G5 Sahel Joint Force, etc.). What are the major differences in qualification?”
- Humanitarian Affairs Officer, Senegal
In principle I would say that there are no major differences in qualification between UN peacekeeping operations and regional military/peacekeeping operations. A relevant distinction when looking at other operations operating in a peacekeeping role is whether they are doing so as part of an international organization (such as the African Union) or whether the operation is carried out under the command and control of one or more states. In the former case, I would argue that just like the rules of customary IHL bind the UN, they also bind other international organizations that undertake military operations. Just like in the case of UN operations, the question will be whether the operation became a party to an armed conflict and/or whether members of the operation are directly participating in hostilities in support of a party to a pre-existing armed conflict (such as the host state of the operation).
There is currently an ongoing case, the Banda case, in the International Criminal Court which involves attacks against the African Union Mission in Sudan. As the accused has not yet been arrested, the trial in the Trial Chamber has not yet commenced. However, the decision of Pre-Trial Chamber I of 7 March 2011 may provide some relevant analysis (see, for example, paras. 66 and 102).
The decision can be accessed here.
You can access the rest of the Q&A as well as further resources on the event page.