On 31 July 2018, thirty-two States asked the United Nations (UN) Secretary-General António Guterres to go a step further in addressing the failures of UN peace operations to protect civilians. In particular, they stressed the importance of holding those accountable who have failed to protect civilians in line with their mission’s mandate (see Kigali Principles, a set of eighteen pledges for the effective implementation of protection of civilians mandates (PoC Mandates) in UN peace operations.). In 2015, the same States already adopted the
Since the failures of UN peacekeeping in Rwanda and Srebrenica in the 1990s, the UN Security Council has provided UN peace forces with more robust mandates to protect civilians. These PoC Mandates have been carried out with varying degrees of success. To illustrate: in 2013, the UN Security Council authorised the UN Mission in the Republic of South Sudan (UNMISS) to protect civilians by not only deterring violence against civilians (e.g. through proactive deployment and patrols), but also by protecting civilians under imminent threat of physical violence (UNSC Res. 1996 (2011), para. 3(b)). Nevertheless, between 8 and 11 July 2016 hundreds of civilians were killed and raped in Juba, the capital of South Sudan. Allegations were made that UNMISS did not respond effectively to protect civilians from the intense fighting that contributed to the collapse of the fragile ceasefire that existed at that time. An Independent Special Investigation established by the UN Secretary-General inter alia found that “a lack of leadership on the part of key senior Mission personnel culminated in a chaotic and ineffective response to the violence” (UN Doc. S/2016/924 (2016), Annex, para. 7). This also echoes the conclusion of the 2014 Evaluation of the implementation and results of PoC mandates in UN peacekeeping operations by the internal oversight body of the UN (OIOS) (UN Doc. A/68/787 (2014), para. 79). Other recent examples whereby UN peace forces failed to intervene to protect civilians took place in Darfur, Sudan (2004) and in North Kivu, the Democratic Repbublic of the Congo (DRC) (2008).
Accordingly, the letter of 31 July 2018 is not the first occasion in which critical voices argue that UN peace forces do not do enough to protect civilians despite having the mandate. This letter raises several questions, including but not limited to whether the actors involved in the implementation of PoC Mandates are under the obligation to ensure the protection of civilians; what the legal basis of such an obligation could be; what the consequences are of breaching such an obligation to the extent one exists; or what type of measures are feasible and most likely to be effective in promoting a proactive implementation of PoC mandates? The objective of this post is not to provide conclusive legal answers to all of these questions. Rather it aims at contributing new ideas and arguments to the discussion by exploring (i) whether the PoC Mandate in itself could give rise to a legally binding obligation to protect civilians; (ii) how this obligation plays out at the different levels of the chain of command; and (iii) whether individual actors involved in the implementation of PoC Mandates should be held accountable for failing to protect civilians.
Obligation to protect under PoC Mandates?
It is not easy to find a legal provision in international law which obliges the UN and its peace forces to protect civilians from physical violence perpetrated by a third party. Attempts have been made in the past to find such an obligation in the right to life (as laid down in international human rights law (IHRL)) or the principle of precaution (as provided for in international humanitarian law (IHL)). The legal bases under IHRL and IHL are not without problems. While it is difficult to contest the applicability of IHRL to UN peace operations, the precise basis, scope, and extent of the obligations for UN peace operations under this body of law are less clear. It is for example contested whether the applicability of the right to life may give rise to a positive obligation upon UN peace forces –who in principle have no sovereignty over a given territory unlike States– to protect civilians from third parties. With respect to IHL, the discussion mainly concerns the conditions under which and how this body of law applies to the actions of UN peace forces. In addition, although the IHL principle of precaution does provide for an obligation to protect, it merely imposes the obligation to take all feasible precautions to protect the civilian population, civilians, and civilian objects under their control against the effects of an attack. Yet, what if we could circumvent these issues and instead argue that a PoC Mandate can give in itself (i.e. independently of other legal bases which may generate obligations) rise to a legally binding obligation to protect civilians upon actors involved in UN peace operations? This would provide us with a strong legal basis to enforce the obligation to protect civilians in line with the PoC Mandate and would enhance the effective protection of civilians on the ground.
In its advisory opinion in the Namibia case, the International Court of Justice held that to assess the legally binding nature of UNSC Resolutions one has to have regard to “the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences” (Namibia advisory opinion (1971), p. 16, para. 114). When observing the language of recent PoC Mandates, backed by policy documents of the UN itself, it is plausible that recent PoC Mandates intend to have a binding effect. For example, the PoC Mandate granted to the UN Organization Mission in the DRC (MONUC) only “authorize[d] MONUC to take the necessary measures […]as it deems it within its capabilities […] to protect civilians […] under imminent threat of physical violence” (UNSC Res. 1493 (2003), para. 25) (emphasis added). Later on, the UN Security Council “authorize[d] MONUSCO [which replaced MONUC] “to take all necessary measures to […] ensure […] effective protection of civilians under imminent threat of physical violence” (UNSC Res. 2098 (2013), para. 12) (emphasis added). The wording in the later resolution clearly authorises MONUSCO to take all necessary measures to achieve a certain aim. Accordingly, those actors responsible for the implementation of this mandate seem to have the competence to decide at their own discretion which means are necessary to ensure the protection of civilians. This may give rise to an order to use (lethal) force, but the PoC Mandate does not seem to automatically impose an obligation to do so. Nevertheless, I would argue that the mandate does impose the obligation to ensure the effective protection of civilians under imminent threat of physical violence. In other words, I would argue that there is an obligation to take sufficient efforts to effectively pre-empt, prevent, deter, or respond to attacks or imminent threats of physical violence against civilians, irrespective of which means are required to do so. This is also supported by recent policy documents in which the Department of Peacekeeping Operations (DPKO) and the Department of Field Support (DFS) have specified that “when the host government is unwilling or unable to do so, UN peacekeepers are authorized and are duty bound to undertake actions to protect civilians” (Protection of Civilians: Implementing Guidelines for Military Components of UN Peacekeeping Missions, Ref. 2015.07 (2015), p. 2) (emphasis added) (see also DPKO/DFS Policy on the Protection of Civilians in UN Peacekeeping (2015), p. 6). Interestingly, in their 2017 Guidelines on the use of force by military components in UN peacekeeping operations, the DPKO and DFS do argue that UN peace forces are under the “obligation to use force to protect civilians from armed attack […] [i]f the mission is mandated for PoC […] [and] all other unarmed tactics, techniques and procedures fail” (Ref. 2016.24 (2017), p. 23). Nevertheless, I would still maintain that a PoC Mandate as such does not in itself give rise to a legally binding obligation to use force.
Moreover, when adopting PoC Mandates, the UN Security Council usually acts under Chapter VII of the UN Charter. Resolutions adopted under Chapter VII are generally considered decisions which: (i) prevail over international agreements pursuant to Article 103 of the UN Charter; and (ii) should be accepted and carried out by the UN Member States pursuant to Article 25 of the UN Charter. As highlighted by Lord Bingham in the Al-Jedda case, a State is not obliged to contribute to an operation, but if it does, it becomes bound by Articles 2 and 25 of the UN Charter to carry out the mandate given by the UN Security Council in accordance with the UN Charter “so as to achieve its lawful objectives” (see Al-Jedda case (2007), para. 34). Accordingly, PoC Mandates can be considered legally binding upon the troop contributing countries (TCC) and entail an obligation to enable the implementation of this mandate in good faith. Nevertheless, although Article 25 of the UN Charter only refers to the legally binding nature of these decisions upon UN Member States, I believe that an argument can be made that these decisions also legally bind the UN itself and its organs (e.g. the UN Security Council and the UN Secretariat) and subsidiary organs (e.g. the UN peace operations).
PoC at the different levels of the chain of command?
The discussion on the failures to act often concentrates on the role of the TCC or the UN as an international organisation, as opposed to the individual obligations and potential accountability of the senior mission leadership or the individual peacekeepers. Different levels of command are, however, under the obligation to adequately implement PoC Mandates:
At the strategic level, which is the highest level of command within UN peace operations, the UN Secretary-General, the DPKO and the DFS among others, translate the resolution in good faith into documentation addressed to the operational and tactical level. If the PoC Mandate is considered legally binding upon them, they are also under the obligation to draft this documentation as such as to enable the effective protection of civilians. Moreover, they have to ensure that the troops are provided with the appropriate capabilities and resources to effectively carry out their mandate. The TCC, in turn, are under the obligation to adequately train their troops in terms of mindset and skills to carry out PoC tasks.
The operational level is in the hands of the (civilian) Head of Mission and (military) Force Commander. They have the power to implement the overall mission strategy and operational concepts developed at the strategic level into its operational planning and into formal military orders for coordinated military action directed at the tactical level. If the PoC Mandate is considered legally binding upin them, the Head of Mission and the Force Commander have the legal responsibility to effectively enforce the PoC Mandate at the operational level.
At the tactical level, the command and control are in the hands of national commanders, as appointed by the TCC. National commanders are not only responsible for the actions of their national contingents, but are also under the obligation to proactively implement the legally binding PoC Mandate at the tactical level. The effective protection of civilians depends on the tactical commanders’ assessment of the situation on the ground, as well as opportunities and preparation for responsive action and risks of inaction. The national commanders must always give appropriate orders to ensure the protection of civilians. Individual peacekeepers, in turn, need to carry out the orders, provided that these orders are consistent with the rules of engagement and their obligations under IHRL and, if applicable, IHL.
Accountability for failure to protect civilians?
Failure to adequately implement (or enable the implementation of) the PoC Mandate is often attributable to the UN organs (and/or the TCC). However, the effective protection of civilians on the ground consistent with the authority granted in the PoC Mandate also depends on how diligently the different individuals operating at the different levels of the chain of command carry out their tasks. A failure to protect civilians on the ground should not simply result in a search for the scapegoat and the initiation of disciplinary and/or criminal proceedings. After all, this might be unproductive and even disruptive for both ongoing and future peace operations. Military commanders should for example not be incentivised to order the robust use of force with the risk of becoming a party to the conflict out of fear of being punished for not doing so. Nor should TCC be entirely disincentivised to contribute troops to UN peace operations out of fear that their troops will be punished for any failure on their side to protect civilians.
Nonetheless, the UN should continue to develop and implement an effective system of internal control whereby the performances of both the UN peace operation and the different individual actors involved in the implementation of PoC Mandates are evaluated. In 2010, the UN General Assembly adopted a resolution to install an “accountability system” in the UN Secretariat for inter alia under-performance, mismanagement, and wrongful or improper decisions (UNGA Res. 64/259 (2010), para. 8)). This is still a “work in progress” for the UN, but might serve as a good basis for creating a culture of accountability for mission leadership failing to implement PoC Mandates with due diligence. At the tactical level, failure to protect should result into the repatriation of the national commander or even the entire contingent, and possibly even in financial penalties, if this is deemed necessary by the Head of Mission and/or the Force Commander. Failure to act may also be considered insubordination under the applicable domestic conduct and discipline regime. States retain the exclusive authority to discipline and should punish their troops if they believe that they have not carried out legitimate orders which aimed at protecting civilians. States are, however, not under the obligation to do so. In Principle 13 of the Kigali Principles, the undersigning States already took a move in the right direction by expressing their commitment to take disciplinary action as appropriate if their personnel fail to act to protect civilians when circumstances warrant.
If the UN Security Council adopts a mandate to take all necessary measures to protect civilians against (imminent) threat of physical violence, this might give rise to different types of legally binding obligations at the different levels of command. With these obligations should come accountability. Although the road leading to it is not without obstacles, both the UN and the TCC should install a culture of dialogue, internal control, and evaluation. In addition, individuals operating at the different levels of the chain of command who have not carried out their tasks with due diligence should be held accountable. Accordingly, the intentions expressed by States in both the Kigali Principles and the letter of 31 July 2018 are important steps in the right direction.