Collective Security Operations ATHA Specialized Training on International Humanitarian Law June 1, 2010 Stockholm, Sweden

UN Charter  Art. 2 (4): “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”  Two exceptions: self-defence (Art. 51) and collective security by the UN Security Council (Chapter VII)  Art. 51: “armed attack” – conditions of necessity, proportionality and immediacy + requirement to report to UN Security Council

UN Charter (II)  Art. 39, entrance door to Chapter VII: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”  Once Chapter VII applies: sanctions (Art. 41) or action involving the use of armed force to “maintain or restore international peace or security” (Art. 42). Can be “mandated” or “authorized” (in which case: implemented by regional organizations) by UNSC.  Chapter VI: “Pacific Settlement of Disputes”  Peacekeeping : not foreseen in UN Charter!

Peacekeeping: History  Cold War: monitoring implementation of peace agreements  First half of ‘90s: rise and fall of ambitious mandates, often not matched by resources on the ground  Last 15 years: multidimensional mandates / “integrated missions” = includes many “peacebuilding” components  Central component in many missions since 1999: “protection of civilians [under imminent threat of physical violence]”

Peacekeeping versus Peace Enforcement  Consent by v. coercion against host country  Command? United Nations v. State  Chapter VI v. Chapter VII? Immaterial for applicability of IHL!  PKO can be outside UN and no need for UN-mandate = can be “authorized” by the UNSC  Blue Helmet v. Green Helmet  Light military v. full-fledged equipment  PKO is not a party to the conflict v. PEN is a Party to the Conflict  Use of force for self-defense (unit or mandate) v. Use of force as permissible under IHL  Civilian v. combatant status  Detained? Treatment as civilian v. possibly POW-status under GCIII

Key Findings of 2009 OCHA-DPKO Commissioned Study  The planning that informs Security Council deliberations and peacekeeping mandates does not consistently take into consideration the nature of the threats to civilians.  The Secretariat and peacekeeping missions do not have a clear understanding of the Council’s intent regarding ‘protection of civilians’ mandates.  Confusion over the Council’s intent is evident in the lack of policy guidance, planning and preparedness.  The gaps in policy guidance, planning and preparedness fundamentally hamper implementation of mandates to protect civilians by peacekeeping missions.

Applicable Law to Peacekeeping Operations? (I) In any event:  Mandate and UN Charter  Laws of Host Country (however: SOFA may provide for immunity from criminal jurisdiction of local courts)  Human rights law ought to tbe guiding framework (see, however, debate on “extraterritoriality”). Currently, there is no clarity nor consensus on applicability of human rights law to peacekeeping operations. Especially since IHL only applies in rather rare circumstances to peacekeeping operations, it is important to argue that a normative gap ought to be avoided.

Applicable Law (II)  Controversy on interrelationship with law of occupation when peacekeeping forces control / administer (part of) a country;  UN is not a party to IHL treaties, which initially allowed the UN to adopt an ambivalent position  Initially: voluntary submission to the principles and spirit of IHL  too vague to be of guidance in operational context  In any event: national contingents bound by their respective, and possibly differing, obligations. Raises issues of “caveats” and “legal interoperability”  Disciplinary and penal prosecution: national authorities of troop- contributing State

1999 SG Bulletin on Observance by UN Forces of IHL “applicable when in situations of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement. They are accordingly applicable in enforcement actions, or in peacekeeping operations when the use of force is permitted in self-defence.” = a matter of fact, irrespective of what mandate says and irrespective of Chapter VI or Chapter VII basis of mandate.  Far from exhaustive  Only applies to operations under UN command and control, so not when under national or regional control!  In any event : troops remain bound by their national law, including its prosecution avenues  Key factor: is the UN a “party” to the armed conflict? Being deployed does not necessarily mean one is a party to the armed conflict!

Conclusion  The term “PKO” encompasses a wide variety of operations = flexible tool, used by the UN for a wide variety of objectives  The latest generation of PKO goes much beyond traditional PKO tasks of monitoring peace and security : DDR programs, gender capacity building, electoral monitoring and organisation…  Measuring success: beyond PKO into peace-building and avoiding relapse into conflict.  International intervention – occupation?  Some “oldies” are still around. The recent PKOs are multidimensional, with an important civilian component, and focus on having the necessary resources for implementing the tasks assigned and on regularly reviewing whether mandate can remain.  PKO increasingly steps in where weak governance states have failed  provision of political and human rights capacity building in “post-conflict, peace-building” operations (B.B. Ghali, 1992)