Beyond self-defense: United Nations peacekeeping operations & the use of force.

• Jurisdiction: United States
• Date: 22 March 1999
• Author: Cox, Katherine E.

1. INTRODUCTION

   Since the end of the Cold War, the role of United Nations (UN) operations in the area of international peace and security has increasingly become a topical issue for the different nations of the world. In particular, the use of force by, and in support of, peacekeeping has raised questions concerning the future role of UN peacekeeping operations in the resolution of international and internal conflict. During the Cold War there were two accepted forms of United Nations operations: peacekeeping and peace-enforcement. Since the end of the Cold War, however, despite increasing difficulties faced by UN peacekeeping operations, no accepted mode of action beyond these two operations has emerged. This has become problematic as the UN has consistently chosen to use peacekeeping forces as its primary tool in its effort to restore peace and security; despite the fact that peacekeeping, in itself, is not always an effective means to achieve these ends.

   Why did peacekeeping come to be used in situations that increasingly necessitated the use of coercive force? Primarily because peacekeeping provided a legal and `palatable' form of intervention in intrastate conflicts, which have erupted with greater frequency in recent times. The use of UN peacekeepers to intervene and resolve conflict was acceptable to Member States and met with their growing demands and expectations that action be taken to contain State fragmentation and resolve humanitarian crises. Due to their acceptability, such forces were authorized and implemented. The circumstances into which the UN intervened, however, were often volatile and not conducive to effective peacekeeping: situations where, for example, the consent of the warring factions could only be obtained conditionally or where there was no governmental authority in existence with whom the UN could negotiate and work. The Security Council authorized the use of force by and in support of some of these UN peacekeeping operations to enable their mandates to be achieved. Ultimately this has meant that UN peacekeeping has moved beyond the three main legal principles upon which it was originally based, notably the principles of consent, impartiality and non-use of force except in self-defense. Arguably, peacekeeping has outstripped its original doctrinal justifications and as a result now flounders without guidelines and with ill-defined purpose.

   The use of force by and in support of UN peacekeeping operations has narrowed the gap that previously existed between peacekeeping and coercive peace-enforcement. Yet the use of force in such instances is controversial, primarily because there is no universally accepted agreement as to how and when force should be used. This gives rise to many legal issues. For example, how broad is a peacekeeper's inherent right to self-defense? When does force used in `self-defense' become an enforcement measure? When does peacekeeping become coercive peace-enforcement? One way to address these questions is to clarify the legal issues that have emerged due to these developments. Their clarification is not only of theoretical interest, it is of great practical importance. Determining the legal basis for the use of force enables a conceptual framework to be built up regarding its use. A sound legal understanding of this issue would provide the basis for comprehensive policies to be formulated concerning the way in which force is used by UN peacekeepers. It will help address the current problems facing United Nations peacekeeping by ensuring that Security Council resolutions are translated into clear and effective rules of engagement, which will be adhered to by troops in the field.

   Not surprisingly, if a peacekeeping operation's mandate is not clear, its rules of engagement will not be clear. Lack of clarity in a mandate or its legal basis invariably gives rise to problems in interpreting or implementing the objectives of the operation. Thus, the criteria for using force are important to define. Sound reasons are needed to explain and justify why force may be used in one situation and not in another. Furthermore, such criteria must be accepted by all the parties involved in the peacekeeping operation -- the parties involved in the conflict and the countries who have donated troops. By using legal reasoning to justify the use of force, a consensus among Member States is more likely to emerge as to when and how force should be used by the United Nations. The future credibility of the United Nations depends on successful peacekeeping operations. Operations that have clearly defined mandates and legally obtainable objectives are more likely to succeed than those that do not. Clearly therefore, it is most important to concentrate on resolving the legal difficulties underpinning these operations.

   This paper focuses on the extent to which UN peacekeeping operations can use force in self-defense. Clearly this is just one of the areas regarding peacekeeping and the use of force which needs to be clarified.(1) It is an area that warrants particular attention, however, due to the fact that self-defense is the one `legitimate' way in which peacekeepers can use force.(2) The first part of this paper gives an overview of UN peacekeeping operations and the legal principles governing these operations. Part two examines the history and development of the use of force by UN peacekeeping operations. In particular, the idea that self-defense, in the context of peacekeeping, may include using force `in defense of one's mandate' is examined. Part three details some recent examples of Security Council resolutions which authorized, either explicitly or implicitly, the use of force in a way that arguably expands this concept of self-defense even further. Finally, I discuss the legal and practical implications this development has for the future of peacekeeping.

   This paper focuses on the use of force by peacekeeping forces, as opposed to the use of force in support of peacekeeping forces. The reason for this limitation is not only space constraints, but the fact that the issues raised by these different uses of force are in fact quite distinct and are not necessarily ideally dealt with together. The use of force as an enforcement measure under Chapter VII of the Charter is legal where the Security Council has found a threat to international peace and security and has authorized the use of force.(3) In the context of a peacekeeping operation the use of force raises different issues. Whilst it may be argued that it is legal for the Security Council to authorize the use of force by UN peacekeeping operations under Chapter VII, this flies in the face of one of the fundamental legal principles governing peacekeeping operations: the principle of non-use of force. If it is accepted that peacekeeping operations can only use force in self-defense, as is generally agreed, one must question whether the concept can be stretched to include more forceful measures, the likes of which have been authorized in recent times. This paper seeks to answer some of these questions.

2. AN OVERVIEW OF UNITED NATIONS PEACEKEEPING OPERATIONS

   The purpose of this section is to give a broad overview and some background to UN peacekeeping operations, their legal underpinnings and core characteristics. No attempt is made to give a detailed critique of the subject matter. Indeed, there is a vast array of scholarly writings available on the topic, which highlight the complex and controversial nature of these operations.(4) For the purposes of this paper, however, a few general comments about the nature of peacekeeping operations, are appropriate.

   1. Definition of "United Nations Peacekeeping Operations"

      No two UN peacekeeping operations are alike.(5) Each operation is distinguished by the environment in which it operates and the extent to which it is authorized to carry out various peacekeeping functions. Furthermore, each operation builds upon the experience of past operations. Thus by definition UN peacekeeping operations are evolutionary in nature. For the purposes of delineating the scope and character of such operations, however, it is possible to make some general observations about their distinguishing features and thereby formulate a broad definition of the concept.

      Peacekeeping operations are an invention of the United Nations. They were developed in response to the political realities of the Cold War, brought about by the need to address conflicts which occurred after entry into force of the UN Charter and for which the mechanisms provided for in Chapters VI and VII of the Charter could not be used.(6) The means provided for in Chapter VI, concerning the pacific settlement of disputes, were inadequate. The means provided for in Chapter VII, concerning the enforcement measures, could not be agreed upon by Members of the Security Council due essentially to the profound ideological differences that prevailed during the Cold War. Peacekeeping emerged as a mode of international intervention other than those provided for in Chapters VI and VII of the Charter.

      Peacekeeping operations have been defined broadly as:

      [O]peration[s] involving military personnel, but without enforcement powers, undertaken by the United Nations to help maintain or restore international peace and security in areas of conflict. These operations are voluntary and are based on consent and cooperation. While they involve the use of military personnel, they achieve their objectives not by force of arms, thus contrasting them with the `enforcement action' of the United Nations under Article 42.(7) Generally speaking, peacekeeping operations consist of either: (1) unarmed observer missions; or (2) forces which have the function of sustaining peacemaking efforts by helping to create conditions in which negotiation between warring parties can take place.(8) The latter type of operation is typically armed and may use force in limited...