The Law Applicable to Peacekeepers Deployed in Situations where there is No Armed Conflict

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Siobhán Wills  is Professor of Law at the University of Ulster, Northern Ireland.

I have been researching the peacekeeping operation in Haiti, MINUSTAH, and in doing so coming up against a problem that I would appreciate the  thoughts of EJIL:Talk! readers on. There have been a number of incidents that have raised complaints of excessive use of force and counter arguments that the force was not excessive.  My query is simply ‘what law applies’ to the peacekeeping mission (in particular in the context of the use of force) given that there is not, and never was, an armed conflict in Haiti. When the Security Council authorises use of force (whether in an enforcement action against a State or in a peacekeeping operation) I assume that the coalitions of the willing or UN troops undertaking the action must exercise their authority to use force in accordance with international law. But if there is no armed conflict what law governs peacekeepers’ use of force under Chapter VII?

Reports and commentaries by MINUSTAH personnel suggest that the commanders of MINUSTAH, and their political advisors at the UN, and advisors from the US, France and Canada, believe that since MINUSTAH has a Chapter VII mandate they can use whatever force they deem necessary to carry out that mandate so long as they comply with their Rules of Engagement (ROE). However, presumably the ROE must be drafted to fit within the constraints of the applicable international law framework. MINUSTAH’s ROE are not publicly available but the language used in MINUSTAH reports and commentaries suggests that International Humanitarian Law (IHL) is the overall governing framework within which the mission believes it ought to be operating. (Certainly mission personnel do not appear to be thinking within a Law Enforcement framework and frequent references to ‘collateral damage’ suggest an IHL framework). This would not be surprising since IHL is the law in which peacekeepers are primarily trained ie when peacekeepers initiate use of force they do so within a legal framework (they don’t make up their own rules just because they have a Chapter VII mandate) and that framework is normally IHL.

I have not spoken to anyone from MINUSTAH but I have spoken to commanders that have served in UN peacekeeping missions in other countries where there is no armed conflict (UNMIL in particular) and their view is that, regardless of whether or not there is an armed conflict in the country to which they are deployed, if the mission has a Chapter VII mandate it may use whatever force is necessary to carry out that mandate; and when the mission does use force for this purpose IHL becomes applicable to that particular operation.

I have sympathy for commanders trying to carry out their tasks under a Chapter VII mandate in a violent and volatile situation; but I do not understand how (or on what basis) IHL can be applicable where there is no armed conflict.

The Secretary-General’s 1999 Bulletin on ‘Observance by United Nations forces of international humanitarian law’ states that IHL is applicable ‘to United Nations forces when in situations of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement.’ I am not aware of any UN guideline suggesting that IHL might also apply in other circumstances.

For there to be an armed conflict there must be identifiable parties to the conflict. Gangs with a fluid membership carrying out criminal activity are not parties to an armed conflict however violent their activities. The Geneva-based Rule of Law in Armed Conflicts Project (RULAC) states that there is no armed conflict in either Haiti, or Liberia, and that IHL does not apply in those countries. In contrast RULAC states that it is unclear whether there is an armed conflict in Mexico: it depends on whether or not the criminal armed groups in Mexico are parties to an armed conflict, and there are differing views on that. There is no such controversy in relation to Haiti or Liberia. Some situations have been regarded as armed conflicts by at least some commentators even though the governments of the countries concerned have not acknowledged the existence of an armed conflict eg situations in Chechnya and in Northern Ireland: but the situation in Haiti is not one of these. There appears to be consensus that there is no armed conflict (de jure or de facto) in Haiti. Since MINUSTAH is not deployed in a ‘situation of armed conflict’ IHL does not apply (at least according to the Secretary-General’s 1999 Bulletin on the issue).

Acting under Chapter VII the Security Council, in resolution 1542 (2004), authorised MINUSTAH to undertake a range of tasks including ‘in support of the Transitional Government to ensure a secure and stable environment in Haiti within which the constitutional process can take place.’ MINUSTAH is also mandated to promote and protect human rights. The Preamble to SC/RES1542 ‘urges the Transitional Government to take all necessary measures to end impunity and to ensure that the continued promotion and protection of human rights and the establishment of a State based on the rule of law and an independent judiciary are among its highest priorities.’ This is the only reference in the resolution to ‘all necessary measures.’  There is no authorisation to MINUSTAH to use all necessary means/measures.  MINUSTAH’s mandate has been repeatedly renewed and expanded (with increasing emphasis on security).

If MINUSTAH was deployed in a classic enforcement action against a State presumably IHL would apply when force is used (the UN mission and the target State would be the parties to the conflict). But MINUSTAH is a Chapter VII peacekeeping mission deployed, with the consent of the government, (albeit given in controversial circumstances) to a situation where there are no parties to an armed conflict. So what law applies when MINUSTAH uses force; and does the same (international) law apply to criminals that respond with force against MINUSTAH?  Is the law governing use of force by MINUSTAH the same or different from the law governing the use of force by the Haitian government?

My understanding is that as a general rule IHRL applies all the time and IHL applies in armed conflicts. If there is an armed conflict some rules of IHRL may have to be interpreted through the lens of IHL; but if there is no armed conflict IHRL applies without modification by IHL. The exact rules that are applicable will depend on which treaties have been ratified; but customary law applies regardless.

If so, since there is no armed conflict in Haiti, when the Haitian government deals with criminals it must do so within a law enforcement paradigm: customary IHRL is applicable. (In addition Haiti is a party to the ICCPR, ICERD, CEDAW and the CRC). Under customary IHRL an operation to kill a gangster is not permitted. Using force in self-defence would be lawful, and force would probably also be permitted if it is necessary to effect an arrest or to quell a riot; provided that the force used is no more than is absolutely necessary (in contrast to the robust self-defence norm in which most peacekeepers are trained). Moreover the collateral damage concept (which is an integral factor in the application of the core IHL rules of distinction, proportionality and precautions in attack) has no relevance to law enforcement. In a law enforcement situation accidental deaths of non-criminals that could not be foreseen would not entail a breach of IHRL unless the officer was negligent. But outside of IHL there is no principle that I am aware of that allows a commander/officer, when planning an operation, to weigh up the lives of innocent non-civilians that might be killed or injured, against the ‘military advantage’ to be gained by forcefully arresting the criminal; and in doing so allow for some innocent peoples’ deaths to occur provided that these are not excessive in relation to the military advantage to gained. (It would be quite worrying if governments did have this authority.) Hence undertaking an operation to arrest a criminal in an area full of innocent people, knowing that the criminal will use force to resist and that innocent non-criminals will almost certainly die, should be avoided unless it is absolutely necessary (in contrast to the IHL standard which permits casualties provided that these are not excessive in relation to the military advantage to be gained from carrying out the operation). An only if ‘absolutely necessary’ standard where operations are virtually certain to result in loss of innocent life, might make it difficult for the Haitian government to clear criminals from their patches since the criminals live and operate in densely populated urban areas and peoples’ houses are comparatively  flimsy (eg Cité Soleil).

What about MINUSTAH? Unless the SC resolution specifically states that IHL shall apply to operations carried out by the mission I do not see any legal (as distinct from practical) reason why a Chapter VII peacekeeping mission would not be bound by the general rules of international law governing use of force (ie IHL applies in armed conflict only; IHRL applies all the time): all the more so if, as is the case with MINUSTAH, the mandating resolutions do not use classical enforcement language such as an authorisation to use ‘all necessary means.’ There are issues with regard to extra-territorial jurisdiction in relation to IHRL treaties; but customary IHRL (especially in relation non-derogable rights such as the right to life) is not subject to the same constraints. It would seem then that if there is no armed conflict IHL does not apply and customary IHRL does (some treaty based IHRL may also apply).

To me this is all extremely difficult. Peacekeepers are trained as soldiers not law enforcement officers and arguably a Chapter VII mandate envisages some robust use of force. The kind of mandates peacekeeping missions are given today may be impossible to implement under an IHRL regime. But can the Security Council implicitly authorise use of IHL instead of IHRL in situations where there is no armed conflict (in contradiction to the terms of the UN’s own Bulletin on the matter) merely by stating that it is ‘acting under Chapter VII’? Is this not undermining the right to life obligations owed to innocent non-criminals by putting them potentially in collateral damage category as if their country was at war or embroiled in a civil war when all authorities are in agreement that it is not? [Whilst most people in Haiti would doubtless want to see an end to violence the people most likely to be killed in an operation to ‘take on’ the criminals, are poor; the people keenest that the criminals be ‘taken on’ are members of the business community, Haitian elites and foreigners, most of whom would not be living in those areas. The USA and Canada put strong pressure on MINUSTAH to ‘take on’ the criminals.]

If IHRL is the applicable regime are peacekeepers being trained for this and are the mandates realistic? The peacekeepers that I have spoken to believe that in general IHRL is applicable to some matters (they are unwilling to hand over detainees where there is a likelihood of torture for example) but in relation to use of force to carry out a Chapter VII mandate they regard any suggestion that just because there is no armed conflict in places like Haiti and Liberia, the governing paradigm for UN operations there is IHRL, as ‘idiotic’ (and other considerably more colourful descriptions).

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    Jordan says

    April 10, 2013

    Certainly Articles 55(c) and 56 of the U.N. Charter apply and, in view of Article 103, human rights obligations of states and their nationals under the Charter would override inconsistent laws of war. Moreover, customary human rights law refelcted in the ICCPR and the treaty-based obligations in the ICCPR for parties and their nationals apply. For states and their nationals from the Americas, the O.A.S. Charter applies and the Inter-Am. Dec. on the Rts. and Duties of Man provides authoritative content for states and their nationals that are not parties to the Amer. Conv. on H.R. The laws of war would not apply, since there is no armed conflict (international or non-int'l). The international law of self-defense can apply if a unit is under an armed attack by a non-state actor (e.g., UN art. 51). The members of the UN unit remain bound by the treaty obligations of their country of nationality (if the treaties apply in Haiti, e.g., if they detain a person and, therefore, such a person is within the "effective control" of the unit or individual), and the members remain bound by any applicable customary international law (including that reflected in the Genocide Convention, the CAT, and crimes against humanity). See also http://ssrn.com/abstract=1710744

    federico sperotto says

    April 10, 2013

    In 2003, a panel headed by Mary Kaldor—the Study Group on Europe’s Security Capabilities— pleaded for a new legal framework to govern operations on the ground, build on the domestic law of the host and sending States, international criminal law, international human rights law and international humanitarian law in order to provide a human rights-oriented approach, conducive to a better human rights protection regime. The core principle of a human rights-oriented approach is minimal and precise force, even if the use of such limited force puts troops at more immediate risk than using overwhelming force. I refer to NATO-led operations in Afghanistan, which is a reality that I know. ISAF operations match with a Law Enforcement Model, as it equates to a sort of policing effort conducted by international forces in cooperation with the Afghan security agencies. Considering the intensity of the struggle and the possibility given to NATO to wage offensive operations, an Armed Conflict Model seems more suited. According to an authoritative opinion, “[t]he law of war, in its authorization of controlled use of force, is on the same continuum as the law of policing.” Another relevant opinion claims that “The idea of a boundary between law enforcement, limited by human rights law, and military action, limited by the laws of armed conflict, seems ever less tenable.” Such a conclusion is validated by the fact that in Afghanistan insurgency has blurred the distinctions between war and organized crime. NATO imposes to soldiers the respect of the spirit and principles of the law of armed conflict. Secondly, NATO implements common rules of engagement, regulating the use of force in accordance with the criteria of self-defense and minimum force. Thirdly, NATO elaborates standard operating procedures, based on the escalation of force principle. NATO is operating in accordance with the idea of a contamination between policing and combat, considering the offensive option when all other means prove inadequate. While war-like conditions are not excluded, NATO welcomes every reasonable and prudent effort to control a situation without force.

    Martin Holterman says

    April 10, 2013

    Without attempting to answer the question as a whole, I would offer that one would want to avoid a situation where someone (a court?) second-guesses the decision of the Security Council as to whether a threat to the peace exists. Such a threat (or an actual breach of the peace, etc.) is a prerequisite for chapter VII action, and as far as I know the decision whether or not to invoke chapter VII is unreviewable. My sense is that this implies that legally all chapter VII missions are created equal, but you're welcome to disagree with that conclusion.

    Dapo Akande says

    April 11, 2013

    The question is a really interesting one. My own response is that IHL only applies, as such (or in itself), in armed conflict. By this I mean that this body of law will only apply by virtue of that body of law, when there is an armed conflict. So, if there is no armed conflict in Haiti or Liberia, IHL does not apply

    I add the qualification, 'by virture of that body of law', or 'as such', or 'in itself' because it is conceivable that though IHL might not apply in its own terms, another body of law will mandate the application of IHL. What I have in mind here is that the Security Council could mandate the application of IHL in a Ch. VII resolution. I don't know of any case where this has actually happened. However, in Iraq, after the SC authorised the Multinational Force (after Saddam had been defeated) to detain where there were imperative reasons of security. So even when the conflict was a NIAC the Multinational Force was drawing on the principles derived from IAC (This is not a perfect example but I think shows what can happen).

    However, though I think it is possible for the SC to impose IHL as part of the applicable law, I do not believe that a Ch VII mandate automatically does so. Nothing in Ch VII implies this, nor do I think there is any practice to support such an interpretation. Ch VII is not confined to armed conflicts so there is no reason to suppose that it implies IHL. I think it is wrong for peacekeepers to suppose that that it does. All necessary means suggests that peacekeepers can use force but the question is on what terms or with what conditions?

    If IHL does not apply then what law applies. Clearly the SC resolution does and as stated above, the SC res might authorise the use of force. But on what conditions? Does IHRL apply? This is complicated. Is the question whether IHRL applies to the UN or to the national contingents? If the latter, it leads to the question of the extraterritorial application of IHRL. Does this require some degree of control. Might be simpler to say the UN is bound by IHRL so the peacekeeping mission as a UN organ also bound.

    Even if IHRL applies, there is the question of the interaction between the SC res and IHRL. Does the former override the latter? Perhaps under Art. 103 of the Charter. Or should one say that the SC res must be read to comply with IHRL. The Al Jedda decision in the House of Lords suggests the former where as in Strasbourg they said the latter.

    Aurel Sari says

    April 11, 2013

    Dapo,

    Just to clarify I understand your point correctly: are you suggesting that an SC authorization to use force may either imply or expressly mandate the applicability of IHL? Although certainly possible, it is difficult to find such language in most resolutions and hence PSO commanders (and others) are left wondering what law applies.

    An alternative view would be to consider an SC mandate authorising the use of all necessary means as enabling the PSO to deviate from applicable IHLR standards. Whether or not IHL then becomes applicable depends on whether or not the use of force by the PSO reaches the threshold criteria - ie the applicability of IHL is a possible consequence of the SC authorisation, rather than something that must be implied or mandated by the resolution itself.

    As regards the applicable law, the whole extra-territorial applicability of IHRL treaties conundrum, and the associated questions of attribution etc, may be circumvented along the lines of the reasoning of the Dutch Court of Appeal in The Hague in the Mustafić-Mujić case. There, the Court of Appeal held that Bosnian law was applicable to the conduct of Dutchbat as a matter of Dutch private international law. Since the treaty obligations of Bosnia are directly applicable in the Bosnian legal order, it followed that Bosnia's IHRL obligations were applicable to Dutchbat as well. As far as the applicability of the host State's treaty obligations to a PSO as such (as opposed to individual contingents) is concerned, the duty to respect local law (or 'all local law and regulations' in the words of the UN Model SOFA) may lead to a similar result. In principle, this could mean that all of the host State's IHRL and IHL (think AP I...)obligations are directly applicable to the PSO, provided that those obligations form part of the host States domestic law.

    I'm not suggesting that this is analysis is correct as a matter of law or desirable as a matter of policy, and it may well solicit even stronger reactions from commanders than calling it 'idiotic'. What I am suggesting is that it is an argument that can be made - and has been made by the Dutch Court of Appeal - and that it further complicates the question of the applicable law.

    Siobhán says

    April 11, 2013

    These are comments are all very helpful. I am on route to the airport this morning so this reply will be brief. But a couple of things..

    Whilst I recognise the difficulties that would be posed if a court were to 'second-guess' a decision of the SC I think there is a difference between an enforcement operation and a Ch VII peacekeeping mission (not withstanding that there has been concern with regard to some blurring of the two). I agree with Jordan and Dapo that operations authorised by the SC must comply with applicable law and IHL is not applicable where there is no armed conflict..and some IHRL will be applicable.

    The suggestion that 'the idea of a boundary between law enforcement, limited by human rights law, and military action, limited by the laws of armed conflict, seems ever less tenable' is understandable in the context of operations in an armed conflict situation that might be mitigated by IHRL, especially in conflicts where civilians are especially vulnerable(I'd like to read the article that this comment is from?); but I would be concerned at the prospect of IHRL being 'modified' towards IHL in situations where there is no armed conflict. What checks would apply to protect vulnerable people? and would be the legal basis? IHRL applies all the time even in armed conflict; but IHL only applies in armed conflict.

    One question that I am unclear about concerns the obligations when using force in a non-armed conflict situation with regard to for-seeable deaths and casualties of innocent people when deciding whether to use force to arrest someone.

    Kjetil M. Larsen says

    April 11, 2013

    I'm reluctant to use this comments field as a forum for self-promotion, so please accept my apologies for doing so. But the post nevertheless tempts me to inform you about a book that was published last year, if it's not known to you already: "The Human Rights Treaty Obligations of Peacekeepers" (Cambridge University Press, 2012), where I try to propose a realistic approach to the issue.

    David Koller says

    April 11, 2013

    This is a very interesting topic full of extremely difficult questions. Just to address one thread: it has become increasingly de rigeur for the Security Council to refer to both IHL and IHRL as applying when authorizing missions. We have seen this recently in resolutions authorizing MONUSCO (S/RES/2098 (2013), o.p. 34 (b) (iii), UNAMA (with respect to ISAF) (S/RES/2096 (2013), preamble), AMISOM (S/RES/2093 (2013), o.p. 1), and AFISMA (S/RES/2085 (2012), o.p. 9).

    Admittedly, these situations are somewhat different from the cases of MINUSTAH and UNMIL as, in all the above, there appears to be an armed conflict. However, there are questions as to the scope of these conflicts and whether the UN-authorized missions are parties to said conflicts. A case in point is the recent debate over the creation of the Intervention Brigade in MONUSCO and the implications of this new Brigade for other MONUSCO contingents. While the new Brigade was given an offensive mandate, the Council implied that IHL and IHRL should guide both the new Brigade and other contingents of MONUSCO.

    I don't think there are easy answers to what law applies outside of a situation of armed conflict, especially where the Council indicates that IHL should apply. Reference to the CONOPS of various missions and to the rules of engagement might provide some further clarity on at least what practice is?

    federico sperotto says

    April 12, 2013

    Siobhán,
    “[t]he law of war, in its authorization of controlled use of force, is on the same continuum as the law of policing”: M. Osiel, The End of Reciprocity. Terror, Torture and the Law of War, Cambridge University Press, New York 2009, p. 45.
    “The idea of a boundary between law enforcement, limited by human rights law, and military action, limited by the laws of armed conflict, seems ever less tenable”: D. Kennedy, On Law and War, Princeton University Press, Princeton, NJ, 2006, p. 113.

    Oliver Daum says

    April 12, 2013

    Hi there,

    I would like to draw the attention to the argument concerning the application of IHL during armed conflict. For notional clarification purposes I understand the rules of IHL as being the humanitarian part of the ius in bello whereas the other portion of the ius in bello regime renders it legally possible to use force within an armed conflict (let’s say belligerent’s “privileges”). Thereby the IHL functions to exhibit a restricting influence on the belligerent’s privileges. So if it comes to an armed conflict from the point of view of an engaged State - little surprising - the ius in bello drives the violence.

    The rules of IHL as they are contained in the Geneva Conventions (and customary law) with their protective humanitarian approach are applicable in times of a declared war or an armed conflict whereby the threshold of violence imposed on the latter supposed to be very low, if there is any at all. However, the Geneva Conventions refer to international armed conflicts and non-international armed conflicts. Hence one may say that IHL applies in armed conflict only. Another interpretation might be to state that inevitably IHL applies in armed conflict situations only and thus it does not exclude a potential application in Chapter VII missions. To make it clear, there is no rule in international law stipulating that the rules of IHL may not be adhered to outside an armed conflicts.

    This conclusion may pave the way for the search of the rationale why UN troops are not merely bound by IHRL but also by IHL.

    Best regards

    Oliver