Peacekeeping in conflict: the intervention brigade, MONUSCO, and the application of international humanitarian law to United Nations forces.

Author:Whittle, Devon
Position:UN Organization Stabilization Mission in the Democratic Republic of the Congo
  1. INTRODUCTION A. The Changing Nature of Peacekeeping B. The Conflict in the Congo and the Creation of the Intervention Brigade II. THE APPLICATION OF INTERNATIONAL HUMANITARIAN LAW TO THE INTERVENTION BRIGADE A. Can the United Nations Be Bound by International Law? B. Can the United Nations Be Bound by International Humanitarian Law? C. Applying International Humanitarian Law to the Intervention Brigade 1. Does an "Armed Conflict" Between the Intervention Brigade and Rebel Forces Exist? 2. Characterizing the Conflict in Which the Intervention Brigade is Engaged 3. Legal Rules Applicable to the Intervention Brigade III. CONSEQUENCES FOR MONUSCO AND THE LEGAL PROTECTIONS AVAILABLE FOR PEACEKEEPERS A. Protections Under International Humanitarian and Criminal Law 1. Loss of Protection Due to Direct Participation in Hostilities 2. Loss of Protection Under International Criminal Law 3. The Lack of Distinction Between MONUSCO and the Intervention Brigade B. The Convention on the Safety of United Nations and Associated Personnel IV. CONCLUSION AND RECOMMENDATIONS I. INTRODUCTION

    Traditionally, United Nations (U.N.) peacekeeping operations have been grounded on three key principles: consent of the parties to the conflict, impartiality, and the use of force only in self-defense. (1) Adherence to these principles has helped to protect the legitimacy and credibility of U.N. interventions (2) and to maintain their status as independent third parties to the conflicts in which they work. (3) Such adherence consequently has also contributed to the U.N. being able to act as a meaningful independent observer and monitor of conflicts and ceasefires, and thus to encourage peacemaking processes. (4) Further, the status of peacekeepers as "non-parties" to conflicts preserved a range of protections for U.N. forces under international humanitarian law and, more recently, under specific treaty arrangements. (5) However, adherence to these three principles has increasingly come under pressure as peacekeeping missions have been given more expansive mandates and have been expected to be more aggressive in achieving such mandates. (6) The most recent example of this is the creation of the Intervention Brigade in the Democratic Republic of the Congo (the Congo), which, while operating under the auspices of a U.N. peacekeeping mission, is authorized to "neutralize" certain armed forces and to undertake offensive operations in concert with the Congolese state military. (7) This mixing of offensive operations and traditional peacekeeping functions has serious implications for the legal regimes that apply to peacekeepers, (8) in particular when involved in an internal armed conflict such as that taking place in the Congo. (9) This Article uses the Intervention Brigade to examine the application of international humanitarian law to peacekeepers and U.N. enforcement operations, and analyzes the risks raised by these types of dual enforcement-peacekeeping operations.

    In Part I, I provide a brief overview of peacekeeping and the conflict in the Congo, which led to the creation of the Intervention Brigade. In Part II, I explore how international humanitarian law can bind the U.N. and the Intervention Brigade and identify the applicable rules that govern the conflict. In Part III, I analyze the consequences of the application of international humanitarian law to peacekeepers in the Congo and the legal protections available for them. And in Part IV, I conclude and offer some recommendations to improve the legal situation faced by peacekeepers in the Congo and similar U.N. operations in the future.

    U.N. intervention in non-international armed conflicts (NIACs) is one of the "most difficult challenge[s] facing UN forces." (10) It is far from clear what the legal rules are that apply to forces in such operations. This lack of clarity makes it difficult for personnel to be sure that they are fulfilling their legal duties and complicates the availability of legal protections that usually exist in traditional peacekeeping operations. (11) Given the early success of the Intervention Brigade, (12) it is likely that these types of aggressive U.N. operations will become more typical in the future, notwithstanding the Security Council's characterization of the Brigade as "exceptional" and not "creating a precedent." (13) Thus, clarifying the legal rules that apply to these operations will be of paramount importance as U.N. interventions and peacekeepers become more aggressive in their activities in conflicts around the world.

    1. The Changing Nature of Peacekeeping

      As noted above, traditional peacekeeping operations rested on three principles: the consent of the parties, the impartiality of the peacekeepers, and the non-use of force except in self-defense. (14) Thus, peacekeepers were only able to be present in a conflict with the consent of the relevant parties. (15) They were required to be impartial in relation to those parties, to not hinder or assist one side over another. (16) And they could not proactively use force, but instead could only engage in hostilities for the purposes of self-defense (17) (and later, more controversially, for the defense of their mandate). (18) These "bedrock" principles of peacekeeping (19) remain central to the popular perception of peacekeeping and are exemplified in peacekeeping operations that perform traditional functions, such as observing ceasefires, establishing buffer zones, and maintaining law and order. (20) However, as the concept of peacekeeping has evolved, and enforcement-like activities have been imposed on peacekeepers, the three core principles have increasingly been eroded. (21)

      In addition to peacekeeping, the Security Council has also utilized "enforcement actions" to maintain or restore international peace and security. Enforcement actions have been described as "the mirror image" of peacekeeping. (22) The Security Council orders these actions, often contrary to the will of the host state, (23) and the forces implementing them take sides in a conflict and use offensive force to enforce the solution mandated by the Council. (24) As noted by Bowett, an enforcement action "as conceived in Chapter VII necessarily comprehends the assumption of belligerent status by the Forces of the United Nations," (25) as opposed to traditional peacekeeping operations, which typically maintain a non-combatant status while operating in conflict zones. However, the line between "pure" peacekeeping and "pure" enforcement operations has rapidly been blurred as the mandates of ostensibly peacekeeping operations have been expanded to deal with a larger range of issues. (26) Despite these changes, the U.N. has "continued to maintain" that the three basic principles of peacekeeping described above apply even to these hybrid forms of operations, as seen in the Congo. (27) As discussed below, given that the facts on the ground for these operations often closely resemble armed conflicts, and that U.N. forces are now taking a more active, offensive, and sometimes aggressive role in such conflicts, the legal protections the three traditional principles may once have provided to U.N. peacekeeping operations now rest on shakier foundations.

      While the Security Council has authorized the use of force by individual or multilateral groups of states that are responsible for the conduct of the operation undertaken, (28) the focus of this Article is not these "authorization" missions, but rather the operations that the U.N. itself commands and controls as subsidiary organs of the U.N. (29) The legal regimes applicable to authorization missions, and issues they raise, differ somewhat from those considered in this Article due to the more traditional involvement of state armed forces, who have clearer obligations under international humanitarian law. Instead, this Article focuses on U.N. commanded and controlled operations, which are considered to be subsidiary organs of the U.N. for which the U.N. has direct responsibility. (30)

    2. The Conflict in the Congo and the Creation of the Intervention Brigade

      The conflict in the Congo is long-running and complex, involving a range of state and non-state actors. (31) U.N. involvement in the region also has a long history. (32) The current U.N. deployment, the U.N. Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO) was established in 2010 pursuant to Security Council Resolution 1925 (MONUSCO Resolution). (33) This Resolution converted the then peacekeeping force in the Congo, the U.N. Organization Mission in DRC (MONUC), into MONUSCO. MONUC's initial mission had been mostly observational, however its mandate was gradually expanded to include implementation of a ceasefire agreement, verification of force disengagement and redeployment, support for humanitarian and human rights work, and civilian protection. (34) To accomplish this mandate, MONUC was authorized under Chapter VII of the U.N. Charter to use "all necessary means." (35) Following elections in the Congo in 2006, MONUC's functions were adapted to include "military, political, rule of law and capacity-building tasks" and the resolution of conflicts in the Congo's provinces. (36) As of February 2010, there were 20,573 uniformed personnel deployed under MONUC, making it the largest peacekeeping operation in the world at that time. (37) There was also widespread dissatisfaction and criticism of the work of MONUC in the Congo, and in particular its failure to protect civilians and accomplish its mandate. (38)

      MONUSCO was established in May 2010, partly in recognition of the changing nature of the situation in the Congo, particularly after the 2006 elections. MONUSCO was authorized to "use all necessary means to carry out its mandate relating, among other things, to the protection of civilians, humanitarian personnel and human rights defenders under imminent threat of physical violence and to support the...

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