The Structure of Peacekeeping Forces

The Secretary-General nominates the Force Commander (or Chief Military Observer). In the case of large-scale operations with an important civilian component, a Special Representative (or Chief of Mission) is also appointed. They are in charge of the operational command (military and political) on the ground. Their international status is meant to guarantee their independence from the States contributing personnel. The Force Commander selects the members of his military staff from the officers of the national contingents placed at his or her disposal.

The forces that are deployed are international and placed under the direct authority of the UN. The Commanders of the national contingents must hence exercise their authority in conformity with the orders given by the Force Commander of the entire force. However, they also remain subject to their national laws.

The Force Commander is responsible for the overall order and discipline of the troops. He or she sets up, nominates the members of, and runs, a military police office. The military police have the mandate to arrest any members of the force, and the Commander can impose transfers or assignments as sanctions. He or she can also request that a State recall all its military personnel. However, the real disciplinary power remains under the jurisdiction of the State providing the troops. To this effect, the State must name an officer within its contingent who acts as the national chief of the military police. The Force Commander is informed of any disciplinary measures, and may consult the commander of the national contingent and even the authorities of the contributing State, if he or she considers that these measures were insufficient.

Scope and Cost of the Operations

Since the end of the Cold War, the UN has been increasingly solicited for this kind of operations. The Security Council has deployed three times as many PKOs since 1988 as in the preceding forty years. As of June 2015, there were sixteen peacekeeping operations deployed, involving 94,000 uniformed personnel (including troops, observers, and police) from 120 nations. The increase of such operations has had financial repercussions: the special budget for PKOs took off. In 1975, the PKO budget was $153 million, reached a height of $3.6 billion in 1995, at the time of the operation in former Yugoslavia, then dropped to $1 billion in 1998, to finally reach $7.6 billion for the period 2011–2012. The budget is based on a specially scaled formula that establishes four categories of contributors, a modified version of the scale used for the regular UN budget, going from the permanent members of the Security Council to the poorest States. In reality, PKOs are funded almost exclusively by the most industrialized States, although many of these pay their contributions more than a year behind schedule; as of June 2012, the unpaid peacekeeping dues are approximately $1.26 billion.

Because of these arrears, the UN has delayed its repayments to States that contribute troops by three or four years. The UN General Assembly created a Peacekeeping Reserve Fund, worth $150 million, in 1992, but this was not enough to cover the budget shortages, which are now beginning to affect the contingents’ ability to accomplish their mission on the ground. Besides, as of June 2012, the balance of the Fund has decreased to $139 million.

“Traditional” or FirstGeneration Peacekeeping Operations

Thirteen PKOs were set up from 1949 to 1988. They were established following strict limits both in their mandates and in their actions. Three main principles governed these interventions:

1. Consent of the parties to the conflict: a force could only be deployed with the agreement of the State on the territory of which it was going to operate.
2. Impartiality: the PKOs made no judgment on the rights, claims, or positions of the parties to the conflict. Their aim was not to determine who was the aggressor or the victim.
3. Non-use of force: the peacekeepers were not authorized to use force, except in self-defense.

These operations played two main kinds of roles: acting as a buffer between the parties to the conflict and monitoring cease-fires. These straightforward military monitoring missions were carried out in the context of interstate conflicts and reflected the weak maneuvering margin within which the UN operated during the Cold War.

SecondGeneration Operations

At the end of the 1980s, peacekeeping operations acquired more ambitious goals. They were no longer meant only to stabilize a situation but also to actively participate in the implementation of international political rules. The PKOs thus included very diverse tasks, such as election monitoring (sometimes including organizing and supervising them), national reconciliation activities (including demobilization and reintegration of former combatants, human rights monitoring, and training), and mine clearance. The UN Transition Assistance Group in Namibia (UNTAG, 1989–90), the UN Advance and then Transitional Authority missions in Cambodia (UNAMIC and UNTAC, 1991–93), and the UN Observer Mission in El Salvador (ONUSAL, 1991–95) are examples of this kind of multifunctional operation, which takes place directly within States.

The three operational principles listed previously continue to be respected.

ThirdGeneration Operations

During the 1990s, in the wake of UN resolutions and debates on the “right of intervention,” the entire approach to peacekeeping was transformed. Three changes took place:

1. The UN’s humanitarian mandate was broadened, because the qualification of a “threat to international peace and security” was extended to include “humanitarian crises.” The result was that Chapter VII mechanisms resorting to the use of force were used increasingly to enforce humanitarian decisions.
2. The operations undertaken under Chapter VII began to have a more coercive and enforcing mandate. The contingents’ authority to use force was extended beyond the prior restriction to cases of self-defense, particularly, in theory, to protect humanitarian operations or civilian population is “safe areas.”
3. The UN increasingly delegated the use of force to national contingents under ad hoc international coalitions or in the context of regional organizations. These are not under the UN’s direct command, although it is theoretically accountable for their actions.

These changes resulted in a new kind of operation, combining military and humanitarian components, which were deployed mostly in internal conflicts or other crisis situations. Some refer to these as third-generation peacekeeping operations, while others make a distinction between the more traditional PKOs and a new form of peace enforcement or peacemaking operations. Chapter VII of the UN Charter still does not foresee any of these kinds of operations, although it is invoked as the basis for the use of force by the UN resolutions authorizing such operations. ▸ Intervention

The Authorization to Use Force on Behalf of the Protection of Civilians

The withdrawal of UN forces in Rwanda during the genocide in 1994 and their inaction during the attacks and massacres of the people in the UN protected zone of Srebrenica in the former Yugoslavia in 1995 caused a significant questioning of the functioning and doctrines of UN peacekeeping operations. In 2000, the report of the Panel on United Nations Peace Operations requested by the Secretary-General and headed by Lakhdar Brahimi (also called the “Brahimi Report”) completed an analysis of the structural causes of these failures. Its recommendations formed the basis for subsequent changes in the legal quality of PKO mandates and the adequacy of military equipment with the declared ambitions.

In legal terms, it was necessary to extend the possibility of using military force beyond situations of self-defense, but without transforming UN forces into fighting forces parties to the conflict.

Materially speaking, it was necessary to abandon the doctrine of symbolic deterrence, characterized by contingents of vulnerable and outnumbered peacekeepers unable to use force effectively in cases of threats without endangering their own safety.

In terms of doctrine, finally, one had to arbitrate between the sometimes-conflicting components of PKO mandates. The danger consisting in demagogically or naively abutting incompatible missions has been implicitly recognized by the UN High Representative for the Former Yugoslavia, who justified the non-use of force by the UN at the time of the attack of Srebrenica by the fact that it would have endangered the Dutch battalion, but it also would have jeopardized the peace negotiations under way at the time with the various parties to the conflict in Bosnia.

The recommendations of the Brahimi report have been addressed by the UN Secretary-General in the following years, concerning the improvement of the drafting of mandates as well as the reopening of a global reflection on the civilian protection doctrine.

• Thus, since the early 2000s most of the mandates of the UN forces have been modified to avoid their legal powerlessness in front of massacres of populations. These mandates no longer limit the authorization to use force by the UN contingents to situations of self-defense, but extend it to cases where people are facing “imminent threat of physical violence” in the areas of deployment of UN forces and if the means available do not risk putting UN personnel at risk. Nonetheless, this authorization to use force to protect civilians is not an obligation, because it remains subject to the assessment of the circumstances by contingent commanders, who must act depending on the military means available without putting at risk their own troops or the entire mission.
• The publication in December 2001 of the report of the International Commission on Intervention and State Sovereignty (ICISS) titled “Responsibility to Protect,” laid the foundations for a new doctrine justifying the right to use armed force on behalf of the protection of endangered populations. The challenge of this commission was to determine, in the light of the Rwandan genocide and other UN failures, the circumstances in which to reconcile the principle of State sovereignty and non-interference with that of international military intervention in the name of protecting civilians. The concept of “responsibility to protect” (“R2P”) achieves this compromise by saying that sovereignty is not an absolute right but a responsibility of the State vis-à-vis its own population. While recalling that the primary responsibility of ensuring the protection of the civilian population rests on States, this doctrine invokes a duty of solidarity between States, but it also opens the door to the right of intervention by the international community or States individually in case of serious violations of IHL or human rights, such as ethnic cleansing, war crimes, crimes against humanity, or genocide, when a State is unable or unwilling to protect its population.

▸ Protection

Theoretically speaking, this concept calls into question the very basis of international law, namely, the principle of non-interference in the internal affairs of a State, insofar as it suggests the existence of situations in which the sovereignty of a State can be ignored. Specifically, the responsibility to protect is a broad concept that can be used to dress the existing powers of the UN Security Council, allowing it to use force against a State and to impose decisions against its will, such as sanctions or the jurisdiction of the International Criminal Court. Nonetheless, this concept loses all principle of law or legal obligation and is dependent on the political arbitration of the veto power of the five permanent UN Security Council members. Nothing prevents some States from invoking this doctrine for military intervention in situations outside of a UN authorization. The armed intervention in Iraq launched in March 2003 by the United States and a coalition of allies without authorization of the Security Council has illustrated this possibility.

The UN General Assembly has nevertheless adopted and incorporated the principles of the responsibility to protect in paragraphs 138 and 139 of the Final Document of the 2005 World Summit. In 2006, Resolution 1674 of the Security Council endorsed these provisions in the same terms. In January 2009, the UN Secretary-General Ban Ki-moon released a report entitled “Implementing the Responsibility to Protect,” which presents the three pillars of the responsibility to protect: prevention, response, and reconstruction. This report aimed to clarify the concept, arguing that “R2P” is primarily the responsibility of the sovereign State and only after that of the international community if the State is unable or unwilling to protect its population against the most serious crimes: “the responsibility to protect is an ally of sovereignty, not an adversary. It grows from the positive and affirmative notion of sovereignty as responsibility, rather than from the narrower idea of humanitarian intervention.”

The international use of force against Libya, authorized by Resolution 1973 of the Security Council of 17 March 2011, highlighted the difficulty of limiting military intervention solely to the protection of populations. Whatever the humanitarian objective of military intervention, it cannot claim to ensure real political or military neutrality. The military actions undertaken in the name of protecting the population inevitably result in a military weakening of one of the parties to the conflict for the direct benefit of the opposing one.

Despite an apparent formalization, this doctrine does not have a legal framework in international law capable of giving substance and limits to the rights and obligations it refers to, neither to arbitrate between ethical intentions and the military and political actions resulting. This doctrine appears as a new form of the concept of just war of the right of interference developed in the early 1990s by French diplomacy. It suffers the same weaknesses consisting of juxtaposing ethical intentions and political and military actions.

To the extent that it authorizes the use of armed intervention, this concept must be considered in terms not of intentions but actions. Whatever the nobility of the intentions, this doctrine fundamentally stems from jus ad bellum , that is to say, the reasons giving the right to make war and to justify it. Jus ad bellum , which is the right to declare war, has for centuries been the object of philosophical and legal development. Depending on periods, the theory of just war has provided all the justifications that can make legal and acceptable the use of war outside the normally accepted cases where it is conducted in response to external aggression.

Since 1945, the UN Charter recognizes only one legitimate reason to resort to war between States and defines it as self-defense against aggression (Art. 51 of the UN Charter), until the UN itself undertakes collective military action to protect the State attacked. Any resort to war by a State outside legitimate reasons recognized by the UN constitutes a crime under international criminal law: crimes against peace in the definition of the Nuremberg International Military Tribunal and a crime of aggression under the Statute of the International Criminal Court.

Hence, it is necessary not to underestimate the danger posed by the reintroduction of the concept of just war in international relations and its potential for liberalization of the use of force by States, and not only for the benefit of the UN. Indeed, if the principle of just war on behalf of the protection of populations is recognized as such, it cannot be entirely subject to Security Council vetoes. There is no reason why this principle would not be implemented outside the authorization of the Security Council in case the functioning of this body is hampered by the use of veto power. Indeed, the existence of a right cannot be reduced in theory to rules of procedure.

Despite fluctuations in the concept of just war over time, it is acquired from St. Thomas Aquinas that a war cannot be just only with regard to its intentions. Regarding the responsibility to protect, it is essential to go beyond the intent of protection in order to formalize the conditions and obligations relating to the measures implemented and the outcome of the military actions undertaken in this context.

The answer to the dilemma of killing or letting die is not in the authorization to use armed force in the name of protection ( jus ad bellum ). It requires clarifying the obligations imposed on international military forces when they use force as well as the obligations related to the treatment of civilian populations when they act in situations of stabilization or occupation of foreign territory ( jus in bello ).

The wide variety of international military interventions that have been conducted for twenty years cover the whole spectrum ranging from classical peacekeeping to direct participation in hostilities and reestablishment of the rule of law.

On the occasion of these various forms of intervention, the issue of the law applicable to UN forces arose and began receiving a differentiated response depending on whether international forces are engaged in combat operations, occupation, stabilization, or defense of public order, and whether they operate alongside national authorities or not.

Issues Regarding the Responsibility of UN Forces

The expanded use of armed force in the new peacekeeping operations raised the issue of the application of international humanitarian law to United Nations forces and the responsibility of the members of such forces in case of bad behavior on the field. Since 1956, the International Committee of the Red Cross found that humanitarian law applies to the UN emergency forces. This statement has met resistance from the UN itself and its Member States, and remains controversial for both political and legal reasons. Indeed, it is not the UN as such but its Member States that are signatories to the Geneva Conventions and their Additional Protocols. Similarly, these conventions have not anticipated the specific cases of peacekeeping operations. For years, the compromise has been to include clauses relative to the respect of the spirit and the principles of international humanitarian law in the mandates of these operations. This reference includes the 1949 Geneva Conventions, their 1977 Additional Protocols, and the 1954 Convention on the Protection of Cultural Property in the Event of Armed Conflict. Since 1992, this clause has been included in most agreements signed between the UN forces and the government of the country in which they were deployed. Some of the recent agreements provide that the UN must ensure that the mission is conducted in order to meet not only the “principles and spirit” but also the “principles and rules” of international conventions relating to the conduct of military personnel. Following the attacks and violence against peacekeepers on the field, the Convention on the Safety of United Nations and Its Associated Personnel, adopted by the UN General Assembly on 9 December 1994 (A/rés./49 / 59) and entered into force on 15 January 1999, eventually confirmed indirectly that humanitarian law does apply to these operations. Even if Article 2.2 of the text states that the Convention does not apply to UN forces deployed in peacekeeping operations mandated by the Security Council under Chapter VII of the Charter, Article 20 recalls, however, that this Convention shall not affect the applicability of humanitarian law to the actions perpetrated by UN personnel.

This issue was finally settled by a bulletin of the UN Secretary-General on 6 August 1999 titled “Observance by United Nations Forces of International Humanitarian Law.” The text states that the rules and principles of humanitarian law apply to UN forces when they directly participate in the hostilities during an international or non-international armed conflict. The bulletin also recalls that peacekeepers are required to comply with humanitarian law instruments to which they countries are party.

The issue of liability for breaches of humanitarian law by these international forces arises in terms of disciplinary or criminal sanctions but also in terms of potential compensation for victims.

This bulletin finally states that violations of humanitarian law committed by UN personnel will be punished by the national courts of their country of origin.

Regarding potential claims for compensation, the peacekeeping forces conducting operations under UN mandate are subsidiary organs of the UN and therefore engage the responsibility of the organization in terms of compensation, in case of violations or damage caused by personnel under its control.

Hence, the responsibilities of troops belonging to national or regional contingents, to whom the UN has delegated peacekeeping or peacemaking operations, are relatively clear. These are forces that already have coercive mandates, and the UN Security Council simply gives them authorization to act.

Thus, they remain under the national authority of the contributing States. As a result, these forces become parties to the conflict in which they intervene, and they are therefore under the obligation to respect the international law of armed conflict. The States concerned are accountable for the actions of their armed forces and, in case of grave breaches of humanitarian law, not only the States but the individual authors of such crimes must be and can be held criminally responsible.

The applicability of humanitarian law to UN troops using armed force outside strict self-defense has been established and concerns all actions involving the use of force in situations of armed conflict. However, the recognition of a situation of armed conflict is a controversial issue, in both legal and political terms. If the conflict is not recognized, the UN forces must comply with the national laws governing the protection of public order as well as with international human rights law. This has an impact on the law applicable and the conditions of the use of force, the conditions of arrest and detention, and the obligation to ensure the public order as an occupation force, in accordance with humanitarian law or in cooperation with a government, in accordance with national law and international human rights law.

▸ Duty of commanders ▸ Respect for international humanitarian law

Available Recourses in Case of Violations of Humanitarian Law

It is important to note that the possibility of recourse against the UN itself, or against the members of its forces, is rare and haphazard—rare because the UN does not favor procedures that might compel it to reveal information concerning the evolution of its operations, and haphazard because the instruments are used and applied differently in each case. The controversy following tragic events such as the genocide in Rwanda or the fall of Srebrenica (when most boys and men were massacred at the time the Bosnian Serb army took the city in July 1995) highlights the fact that the troop-contributing States do not easily tolerate having their actions questioned. Hence, the ability to hold these forces accountable stumbles against the immunities granted to the UN and peacekeeping forces.