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5.1 Introduction

The evolution of UN peacekeeping from traditional monitoring and observation mandates to complex and increasingly coercive mandates has prompted criticism that peacekeeping is breaking its own rules; that peacekeeping is being pushed too far in new directions; or that evolutions in peacekeeping practice represent a “newly constructed house of cards [that] will collapse and take traditional peacekeeping as well as humanitarian intervention down with it” (Ruggie 1993, p. 27). These criticisms represent a specific reading of what peacekeeping is supposed to be, and what peacekeeping is supposed to accomplish.

The concept that the UN might play a military, on-the-ground role in the solution and abatement to a conflict is as old as the UN itself.Footnote 1 The UN Charter empowers the Security Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” and to “make recommendations, or decide what measures shall be taken… to maintain or restore international peace and security” (Chapter VII, Article 39).

The Charter relies upon a Security Council that can collectively determine the content and scope of a threat to international peace and security and can then collectively decide upon appropriate action to meet and alleviate such a threat. In support of this end, the original writers of the UN Charter called for the establishment of a Military Staff Committee “to advise and assist the Security Council on all questions relating to the Security Council’s military requirements for the maintenance of international peace and security, the employment and command of forces placed at its disposal, the regulation of armaments, and possible disarmament.” (Chapter VII, Article 47(1)). However, the second part of Article 47(3)—that “questions relating to the command of such forces shall be worked out subsequently,”—was never resolved. By the time the Security Council convened its first meeting, the relationships between the UN’s founding allies was already beginning come apart, and with it, any aspirations that the UN would establish its own standing army of force-ready troops in support of its peace and security mandate (see Fraser 2014, p. 69). As such, Security Council Resolution 1 (25 January 1946) was to be the first and last resolution on the organization of the Military Staff Committee—a committee that would come to be regarded as: “A sterile monument to the faded hopes of the founders of the UN that the organization would support a true collective security system with provision for the use of armed force, under UN command, to counter aggression” (Grove 1993, p. 172).

The UN’s failure to institutionalize a standing army meant that the UN was requited to seek alternative standards and mechanisms for sending troops to conduct UN business:

It soon became evident that the maintenance of the peace could not in every case be left to negotiation or debate; some type of action was required to prevent an outbreak of hostilities or to bring about an end to those which had already begun. Such “action” embraced a variety of measures: most typically, observation and reporting; sometimes administration, technical measures, and public information; and in the most critical cases, the use of armed force (Schachter 1964, p. 1097).

UN Peacekeeping was institutionalized based on the 1956 decision by the UN General Assembly to provide “an emergency international United Nations Force to secure and supervise the cessation of hostilities” in the Suez conflict, in Egypt. (See GA Resolution 998, 4 November 1956.) In fact, there is no explicit articulation of peacekeeping in the UN Charter:

[N]one of the aforementioned terms [peacemaking, peacekeeping, and peace enforcement] is cited expressis verbis in the UN charter: the distinction between peacemaking, peacekeeping, and peace enforcement reflects the express and the implied boundaries, as well as the latent interpretations of chapters VI and VII of the UN charter. (Sarigiannidis 2007, p. 520)

The concept of peacekeeping is therefore derived from a collective commitment to uphold an emergent normative standard of international peace and community. In many ways peacekeeping “illuminates not just the character of commitments to the idea of international community but also concrete expressions of this community on the ground” (Feldman 2010, p. 417).

It is absolutely necessary that collective expression of these normative standards are based on formally agreed principles and delivered via rules-based procedures; to this end, this chapter is concerned with two key questions:

  1. 1.

    What happens when formally agreed principles do not support evolving normative standards for international peace and security?

  2. 2.

    How can the rule of law remain coherent across evolving normative contexts and an evolving collective expression of this context?

To date, the evolution of peacekeeping practice has remained cognizant of (if not fully in line with) its foundational standards and rules. This chapter will critique the challenges posed to established rule of law-based peacekeeping by Security Council-sanctioned intervention brigades and other coercive measures, and will assess the efficacy and future viability of these measures to operate within the scope and function of the rule of law.

5.2 Peacekeeping and the Rule of Law

The lack of a Chartered system of legal standards and rules for decision-making and implementation of peacekeeping mandates meant that “[peacekeeping] evolved in more casual ways, principally as a means of addressing particular situations” (McNeill 1997, p. 96). Standards and rules for peacekeeping practice came to be generally established as:

  1. 1.

    Consent of all parties to the conflict;

  2. 2.

    Strict neutrality of peacekeeping forces;

  3. 3.

    Prohibition of the use of force, except in self-defense.

Such standards reflect the generally required conditions for First Generation peacekeeping practice (1956–1987) wherein a ceasefire (however tenuous) was already in place and wherein peacekeepers were mostly tasked with observation and monitoring mandates. Second Generation peacekeeping mandates (1988–1993) made more complex demands on peacekeepers in actively hostile environments where there was no peace to keep. Second generation peacekeepers were increasingly expected to be active participants in creating the conditions of lasting peace and were assigned increasingly complex tasks in rebuilding communities after conflict. Contemporary peacekeeping has taken this evolution even further, with peacekeepers not only expected to participate, but also to actively protect the peace in increasingly diverse fields of operations.

To date, the evolution of peacekeeping practice has been born not of a singular conceptual doctrine from which all operations are derived; rather such doctrine has been developed from a series of best practices. The problem with this developmental model is that best practices have not proven to be unilaterally transferable, nor does each specific peacekeeping mandate fit neatly into the prescribed rules of law for decision-making and implementation. Each conflict is geographically, politically, and culturally unique; every session of the Security Council is equally subject to changing political, strategic, and normative concerns. Throughout this evolution, however, the standards and rules for peacekeeping practice have consistently remained rooted in the assumptions of consent, neutrality, and non-use of force—even when these standards are no longer relevant to effective implementation of contemporary normative standards of international peace and security.

Concerns for rule-of-law-based peacekeeping practice in the era of intervention brigades and coercive action speak directly to the conflict between results-oriented rules-based practice (who can act, under what conditions, and by what means?) and normative-based doctrinal developments (who is responsible for a positive outcome, under what conditions can this outcome be achieved, and by what means?) The authorization of peacekeeping mandates requires agreement between the 15-member Security Council on the political legitimacy and strategic viability of a peacekeeping mission as derived from their interpretation of normative and thematic developments; but the implementation of said peacekeeping mission relies upon a universal agreement of operational rules and capacities as derived by multiple Member States who have not necessarily been party to the Security Council discussions.

As already noted, the UN Charter empowers the Security Council to determine and to make recommendations in response to threats against international peace and security, and “it is entirely proper that members of the Council should determine whether, for example, to send peacekeepers to a specific crisis” (Chesterman 2008, p. 351). These foundational observations might seem to suggest that peacekeeping exists by and for the Security Council, but peacekeeping does not have a singular or static home within the UN system. Peacekeeping bridges the Security Council (responsible for authorizing peacekeeping operations and building thematic drivers), the General Assembly (whose Fourth Committee Special Committee on Peacekeeping Operations—known as the C34—makes policy recommendations to the UN secretariat based on the various views of the originally 34, but currently 147 Member States involved in peacekeeping operations, and whose Fifth Committee approves and oversees the peacekeeping budget), and the Secretariat (whose Department of Peacekeeping Operations (DPKO) provides operational and mission support and logistics). Additionally, the UN must be cognizant of inter-UN agencies and other civil society actors that are operational in the mission field. The history of peacekeeping is testament to the multiple contributing voices and disparity of interpretations ascribed to peacekeeping resolutions and there is increasing concern that operational mandates are subject to competing claims from those who make the rules (the Security Council), those who implement them (the Member States and the Secretariat), and those who work alongside them (civil society actors). Furthermore, there is concern that the channels of communication between these organs are increasingly being compromised.

Both the decision-making procedures for peacekeeping at UN headquarters and the rules of deployment for peacekeepers in the field have serious consequences, including the capacity to establish precedent beyond the individual mandates for each peacekeeping operation. The standard rules of law are becoming increasingly blurred against the requirement to deploy peacekeepers into situations where consent, neutrality, and non-use of force are politically compromised and may even be antithetical to peacekeepers’ ability to complete their mandate in the field.

5.3 Development of POC Peacekeeping Mandates

The mandate for the specific Protection of Civilians in Armed Conflict (POC) was first articulated in the reports of the Secretary-General during the late 1990s (United Nations 1998a, b) and entails massive potential for expanded peacekeeping capacities. In 1999, the Secretary-General reported to the Security Council on the issue of the protection of civilians in armed conflict (UN 1999a) at which time the Security Council developed a specific mandate for POC in peacekeeping missions that emphasized “preventive military and civilian deployments” (SC Resolution 1265, 17 September 1999).

Subsequently, Security Council resolution 1270 (22 October 1999) specifically highlighted POC in establishing the UN peacekeeping mission in Sierra Leone (UNAMSIL). Lisa Hultman (2013) writes that the Argentinean representative to the Security Council meeting on Sierra Leone noted that the protection of civilians mandate “introduces a new, fundamental political, legal and moral dimension” to peacekeeping (UN 1999b). Since then, significant normative progress has been achieved with respect to POC and a clear five-point framework for protection established by the Secretary-General in his thematic reports since 2009:

  1. 1.

    Enhancing compliance of parties to the conflict with their obligations under international law, in particular the conduct of hostilities;

  2. 2.

    Engagement with non-State armed groups (NSAGs);

  3. 3.

    Protecting civilians through UN peacekeeping and other relevant missions;

  4. 4.

    Humanitarian access;

  5. 5.

    Enhancing accountability for violations.

However, the normative evolution of POC has been met with mixed operational capacities. As noted by former US Ambassador to the UN, Susan Rice:

[T]he UN is being asked to take on harder and riskier operations, often without the support and capabilities it needs from member states. The Security Council has recently given some very ambitious mandates to peacekeeping operations in Africa, such as protecting civilians under the threat of physical violence, including sexual violence, in vast and populous territories with limited infrastructure, faltering peace processes, ongoing hostilities, and uncooperative host governments. (US Senate 2009)

One of the most often heard criticisms of POC is that there is no defined barometer for success. This is largely a condition of the disparate security environments into which peacekeepers are sent, and the difficulty in measuring success when each operation is mandated with a different set of tools. The common denominator for all POC missions, however, is the mitigation of harm to civilians in armed conflict. Peacekeeping command, in collaboration with UN field offices and other UN agencies, has already largely embraced a culture of data-dissemination. However, instead of allowing such to develop organically from the in-country staff, there needs to be a uniform system that can be transplanted into diverse operations.

To this end, there has been a suggestion that peacekeeping operations integrate Civilian Casualty Tracking, Analysis, and Response Cells (CCTARC) in support of POC mandates:

Data can come from a variety of sources including formal and informal reporting chains among troops, investigations of alleged incidents of civilian harm, and external sources such as civil society, hospitals, and the media. Data is fed into a centralized, professionally-staffed information system or ‘cell’ which houses, analyzes, and disseminates findings. This analysis informs decision-makers, including operational military commanders, and allows them to adjust their planning, tactics, and training to address these challenges. (Keenan 2013)

Utilizing CCTARC would allow peacekeeping forces to have a clear understanding of the operational environment that would empower them to be pro-active based on real-time analysis of conditions in a way that is not currently possible.

The POC mandate has been reaffirmed and developed across various resolutions but “remains a work in progress with on-going debates about what [Protection of Civilians] means in practice and what training, doctrine and capabilities UN peacekeepers require in order to carry it out” (Williams 2013). So far, empowering peacekeepers to successfully implement POC mandates has moved in the direction of authorized coercive action, though it has been suggested that it will likely require “a combination of persuasive and coercive interventions to encourage responsible authorities to take or refrain from certain actions in order to keep civilians safe in conflict” (Bonwick 2006, p. 273).

5.3.1 Implementing “All Necessary Means” of Civilian Protection

The issue of adequately supporting the POC doctrine came to the fore in 2013 as the Security Council confronted and responded to situations in the Democratic Republic of the Congo (DRC), Mali, and the Central African Republic (CAR). All three cases are regrettably familiar: a sectarian coup that descends into bloodshed and violence.

In the DRC, the Security Council authorized the establishment of an “intervention brigade” to “take all necessary measures” in support of the UN Stabilization Mission in the Democratic Republic of Congo MONUSCO (SC Resolution 2098, 23 March 2013). The MONUSCO intervention brigade mandate includes (1) the protection of civilians (2) the neutralization of armed groups (3) the monitoring of arms embargoes and (4) providing support to national and international judicial processes:

Decides that MONUSCO shall, for an initial period of one year and within the authorized troop ceiling of 19,815 on an exceptional basis and without creating a precedent or any prejudice to the agreed principles of peacekeeping, include an “Intervention Brigade” consisting inter alia of three infantry battalions, one artillery and one Special force and Reconnaissance company with headquarters in Goma, under direct command of the MONUSCO Force Commander, with the responsibility of neutralizing armed groups as set out in paragraph 12 (b) below and the objective of contributing to reducing the threat posed by armed groups to state authority and civilian security in eastern DRC and to make space for stabilization activities. (SC Resolution 2098, 23 March 2013)

MONUSCO is a radical departure from the traditional tenets of peacekeeping that require the neutrality of UN forces and the non-use of force except in self-defense. Resolution 2098 makes explicit that the creation of the intervention brigade was “on an exceptional basis and without creating a precedent or any prejudice to the agreed principles of peacekeeping.” Despite this claim, it is unclear how the establishment of a new practice can be anything but precedent setting. Furthermore, “MONUSCO’s protection task regularly stands in tension with its role of support to the Congolese military, figuring as much as other armed groups being among the reasons for insecurity” (Derderian et al. 2014).

One month later in April 2013, the Security Council authorized the establishment of the Multidimensional Integrated Stabilization Mission in Mali (known by its French acronym—MINUSMA) to take over the authority from the African-led International Support Mission in Mali (AFISMA) and to use “all necessary means” in support of:

  1. (a)

    The stabilization of key population centers and support for the reestablishment of State authority throughout the country;

  2. (b)

    The protection of civilians and UN personnel;

  3. (c)

    Support for humanitarian assistance;

  4. (d)

    Support for cultural preservation;

  5. (e)

    Support for national and international justice (SC Resolution 2100, 25 April 2013).

Despite the chronological proximity to the MONUSCO force, the resolution does not authorize an intervention brigade in support of MINUSMA’s mandate. However, the authorization of “all necessary means,” “seems to indicate an ongoing evolution (revolution?) in UN peacekeeping, notwithstanding the assurances by some Security Council Member States that MINUSMA will avoid ‘offensive counter-terrorism operations’” (Bannelier and Christakis 2013). In addition to concerns that MINUSMA would be under-equipped to operationalize its mandate, Secretary-General Ban Ki-moon had warned 1 month prior that “the challenges that confront Mali run deep and are not susceptible to any easy solution.” He also noted that:

Combating extremist groups in the deserts and mountains of northern Mali requires very particular and demanding military capabilities that are difficult to obtain but will nonetheless be vital for any force engaged in such operations. The United Nations is not configured to oversee such operations at a strategic level, nor are its peacekeepers typically trained, equipped or experienced in the kind of operations that would be required to implement such a mandate. Moreover, an effort of this nature falls well outside the scope of the United Nations peacekeeping doctrine. It is also doubtful that the Organization would have the ability to absorb the numbers of casualties that could be incurred through such combat operations. (UN 2013b)

In the absence of an intervention brigade, MINUSMA must seek alternative, more traditional, operational mechanisms in support of its POC mandate. The hybridity of its mandate—taking over from AFISMA whilst creating a secure environment and assuring the protection of civilians—created space for misunderstanding and misperception. Notably, MINUSMA has struggled to operationalize its mandate whilst operating under dual identities—operating as both the provider of offensive military capacity and the provider of security to civilians, UN personnel, and humanitarian workers.

Long-established analysis of humanitarian action points to the high risk wherever humanitarian assistance is misperceived as part of a wider political or military project, including in the form of UN integrated missions. If UN peacekeeping evolves toward a more coherent approach while simultaneously reducing the space for humanitarian negotiations, people in danger may no longer be able to seek assistance securely, while humanitarians may no longer be able to reach them and deliver assistance. (Derderian et al. 2014)

The question of how the UN can best contribute to the protection of civilians in armed conflict—and whether or not the cases of MONUSCO and MINUSMA are precedent-setting or example-worthy—is being tested in CAR where there have been many reports that the country has become a “world of horrors…Thousands of people are dying at the hands of soldiers and militia gangs or from untreated diseases such as malaria… There are reports of beheadings and public execution-style killings. Villages are razed to the ground” (Smith 2013).

On 5 December 2013, the Security Council unanimously adopted resolution 2127 authorizing the deployment of African Union and French troops as part of the International Support Mission (MISCA). The MISCA mandate includes (1) the protection of civilians and the restoration of security and public order, through the use of appropriate measures; (2) the stabilization the country and the restoration of State authority over the whole territory of the country; and (3) the creation of conditions conducive to the provision of humanitarian assistance to populations in need. The arrival of MISCA forces “was initially met with optimism” (Bouckaert 2014a) but eventually the “fighting increased with the arrival of the French forces, because the Christian militias took advantage of the disarming of some Seleka elements; and the Christian militias are just as brutal” (Bouckaert 2014b). In February 2014, Secretary-General Ban called for the rapid reinforcement of the AU and French troops with additional deployments of at least 3,000 more troops and police, and for all international forces in CAR to be brought under a single coordinated command (UN 2014a). In April 2014, the Security Council authorized the September 2014 transfer of authority from MISCA to the UN Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) (SC Resolution 2149, 10 April 2014) to be comprised of up to 10,000 military personnel and authorized to use “all necessary means” in carrying out its mandate (UN 2014b).

All three cases—DRC, Mali, and CAR—reflect the disconnect between the established POC normative framework and the operational obstacles in meeting the tenets of civilian protection in the field. Moves to support “all necessary means” with an intervention-style brigade has so far only been authorized in the DRC, but the absence of alternative means to adequately support POC doctrine would suggest that the Security Council will increasingly be called upon to authorize intervention forces as part of peacekeeping missions. The “never again” narrative is often invoked too late at the UN for Member States to do anything other than deploy forces authorized to use violence to stop violence against civilian populations.

In February 2014, the Security Council held an open debate on the means of effective POC mandate implementation in peacekeeping missions. In this tenth report by the Secretary-General on the protection of civilians in armed conflict, Secretary-General Ban reiterated concerns that POC be regarded “not simply as a thematic item on the agenda of the Security Council but also as a fundamental objective that we must all—parties to conflict, States, the United Nations and other partners—work tirelessly to achieve” (UN 2013a). The debate consequently focused on:

Challenges regarding a continued lack of clarity surrounding the concept and operationalization of the protection of civilians, internal and external coordination mechanisms, early warning and rapid response, support to the security forces of the host Government, troop capabilities and resourcing. (UN 2014c)

So far, there have emerged limited means of supporting a POC mandate in peacekeeping operations, and no clear consensus on the various means by which peacekeepers can meaningful mitigate harm in a way that does not require them to engage in offensive actions in pursuit of security. What has become clear is that any movement must reconcile the normative drivers to developments in Security Council thematic practice with results-oriented operational practice.

Since 2006, the UN has included borrowed surveillance drones in its peacekeeping toolbox and in August 2013 the UN announced that it had selected its first unarmed surveillance drone, “an Italian-made plane that will be tried out by peacekeepers in the Democratic Republic of Congo… capable of carrying a range of payloads including several types of high-resolution sensors” (Associated Press 2013). The use of unmanned aerial vehicles (UAV)—or drones—in peacekeeping missions demands answers to complex questions about the limits and parameters of UN engagement in combat zones where the lines between combatant and civilian are increasingly blurred. As surmised by Karlsrud and Rosén:

[S]urveillance drones are not a panacea for the challenges facing UN peacekeeping missions. In fact… they may well add to the complexity, and thus the challenges, faced by UN peacekeeping operations - by establishing higher standards as to when and how force is applied and requiring documentation at all times in case civilian casualties should occur. This adds to the burdens placed on UN and other peace operations. (Karlsrud and Rosén 2013)

The use of drones has not been uniformly welcomed by Member States. In a June 2014 Security Council debate on peacekeeping, Nigeria suggested that the high casualty rates incurred by POC peacekeeping provided increased rationale for greater use of drones, and other such new technologies. In contrast, China made clear that an in-depth study of legal implications and operational challenges was required before drones became standard operating procedure in peacekeeping operations (see Global Action 2014a, b).

5.4 Operationalizing POC Within ROL Framework

A 2014 report by the UN’s Office of Internal Oversight Services (OIOS) suggested that the “concept of protection of civilians has been stretched, risking loss of focus” (UN 2014d). To many observers, the development of peacekeeping best practices has significantly outpaced the foundational standards of consent, neutrality, and the non-use of force.

5.4.1 Consent

A Chapter VII peacekeeping operation has never been authorized without host party consent. To so authorize in the absence of an imminent threat to international peace and security would violate the foundational principle of sovereignty articulated in the UN Charter: “The Organization is based on the principle of the sovereign equality of all its Members” (Chapter I, Article 2(1)) and “nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state” (Chapter I, Article 2(7)). As already discussed, the UN charted new grounds when it sent its first peacekeeping operation to the Suez in 1956: an operation that bridged traditionally defined Chapter VI actions (for the pacific settlement of disputes) and Chapter VII enforcement actions. If the Security Council were to authorize a peacekeeping operation without host party consent, the operation would constitute a clear Chapter VII intervention to a conflict that must meet the condition of a threat to international peace and security. To be clear, this is not out side the scope of legal readings of the Charter. The Security Council has sole authority in determining a threat to international peace and security and can legally prescribe intervention to a state’s internal affairs if it sees fit to do so:

We must Recognize that the Security Council Can Act under Chapter VII of the UN Charter in a Purely Internal Situation Involving a Humanitarian Crisis. United Nations peacekeeping forces can protect minorities in three ways: (1) they can establish safe areas, (2) they can report and/or halt human rights abuses and violations of international humanitarian law, and (3) they can facilitate the delivery of humanitarian aid. Most situations, however, involve civil war or government abuse of minorities, which could be said to be internal matters. (Scharf 1997, p. 437)

Of course, the legal option for such an operation requires the consent (given by affirmative vote or abstention) of the five permanent members of the UN Security Council (China, France, Russian Federation, United Kingdom, and the United States) and a majority of the non-permanent members and it is quite possible that the Security Council might call an operation “peacekeeping” rather than some more coercive designation in order to leverage the necessary political support for its authorization. It is difficult to know the lengths that are gone to behind closed doors to leverage Security Council consensus and host party consent for the authorization of a proposed operation that might better be (legally) described as an intervention. Similarly, any arguments that peacekeeping should be made to require formal, as opposed to implied, host-country consent is difficult to make given that there is no history of any host government publicly contesting that a peacekeeping operation was authorized in their country without their consent.

The requirement for legal authority to intervene in a third party crisis is presently undergoing significant shift towards a legal imperative for collective international responsibility in the absence of a state being unable or unwilling to uphold its responsibilities to its citizens:

While the primary responsibility for protecting civilians lies with their own Government, the international community has a crucial role to play when that Government is unable or unwilling to do so. The Secretary-General stated in a message to staff on 21 November 2013 that the organizational obligation is clear in such circumstances: when “people face such risks [of atrocities and egregious crime], they expect the United Nations to act, and the Organization’s performance is rightly measured by this benchmark”. (UN 2014d)

This collective responsibility might under certain conditions legally overrule the need for host party consent, and is one of the most controversial and political issues concerning the deployment of peacekeepers to third party situations. Similarly, the conditions under which a government (or rebel government, or non-democratically elected government) can offer (or decline) consent is worthy of further legal scholarship.

5.4.2 Neutrality

In terms of neutrality, it is worth remembering that the conduct of peacekeepers is neutral only inasmuch as they are unable to actively support one side over another in the mission field. The decision to deploy peacekeepers, in an of itself, is not neutral, and is in fact reflective of the political and strategic interests of the UN Security Council in general, and the P5 in particular. The issue of neutrality in the mission field, of course, speaks more to the outcomes of neutrality, or lack thereof. Operational neutrality makes sense only when it supports the mandate and makes a positive contribution to the peace; when “neutrality” equates to “inaction” and comes to be interpreted as a “critical misstep” (as it was in Rwanda, Srebrenica and Sri Lanka, see UN 2014d), the base foundation for the original standard must be called to account. Operational neutrality cannot always be easily discerned by asking if the peacekeepers are taking sides. Operational neutrality speaks to the use of force to protect specific civilian groups over another, to support educational reforms that empower one group over another, to prioritize infrastructure development in a region that is more heavily populated by one civilian group over another, to have UN peacekeepers that speak the language of one civilian group but not the other. In an operation with limited human and physical resources, on-the-ground decision-making about the allocation of these resources is never fully neutral, and never fully non-political.

5.4.3 Non-use of Force

In terms of the non-use of force, the move towards peace enforcement has been particularly problematic, with many Member States expressing concern over the modification of the standard prohibition of the use of force such that the prohibition remains but the caveat exception in self-defense has been modified to include the defense of the mandate. The inclusion of coercive measures in support of increasingly complex mandates has so far only occurred “on an exceptional basis, and without creating a precedent or any prejudice to the agreed principles of peacekeeping” (SC Resolution 2098, 23 March 2013) but it is unclear how this exceptionalism can occur without demanding a re-evaluation of the foundational rules governing use of force and the domains in which peacekeeping seeks to operate.

Such issues came to the fore in a Security Council peacekeeping debate on 11 June 2014, in which the United Kingdom noted that peacekeeping is struggling to keep up with evolving conflict settings and modalities; China reinforced the basic principles [of peacekeeping] as consent of host state and the non-use of force except in self-defense; the United States noted that peacekeeping should not rely principally on the use of force to protect innocent lives; and Russia expressed concern that peacekeeping operations with coercive mandates risk compromising what they called the “protected status” and integrity of the UN (see Global Action 2014c, d, e, f).

Additionally, there is a commonly heard argument that the use of violence in support of the cessation of violence is antithetical; however, as with most things, the application of degrees is an important modifier to this discussion. It is unlikely that the all-out use of force will be sanctioned in support of POC. Instead, POC mandates will authorize “all necessary means”—with the scope of force being balanced against what is deemed to be “necessary” in order to achieve the mission mandate.

Some observers see this [the use of force] as an inevitable characteristic of a cross-cutting mandate, but for others it is a risk. Several interviewees called for narrowing of the definition to make it more practical and focused. One Member State felt that it should relate predominantly to the pre-emption of physical violence. (UN 2014d)

Additionally, the application of the use of force is not itself a primary objective but is an available option to peacekeepers in the event that force is required for self-defense (as was the case in the original reading of the standard) or for defense of the mandate. It is worth noting that, “Although missions can use this tool [the use of force], they rarely do so” (UN 2014d).

The three traditional standards—consent, neutrality, and the non-use of force—must not be considered as static rules, but must be considered in context relative to the mandates they seek to support. As I have written elsewhere (see Fraser 2014, p. 6), one of the most dynamic aspects of the UN is its unflagging ability to recreate rules and to reclaim relevancy in order to continue pursuing its mandate for international peace and security.

5.5 Recommendations

The evolution and delivery of POC mandates presents specific challenges to the established rule of law, but significant opportunity exists to improve POC delivery within the scope and function of an evolving rule of law.

  • Establish functional relationships and processes of accountability between UN organs. In general, peacekeeping has evolved in response to competing claims for doctrinal authority and operational efficacy. In the future, the determination of consent might reach further than the current requirement for Security Council consensus and host-country consent. Operational efficacy requires a coordinated and agreed-upon approach to peacekeeping between the relevant UN organs. Specifically, the relationship between the primary stakeholders—the Security Council (which makes the rules) and the C34 (which influences those who implement the rules)—should not be allowed to fall into disarray. The 2013 session of the C34 concluded without a substantive report, and despite the production of a report for the 2014 session of the C34, there remain concerns over perceptions of an ever-widening gap between the Security Council and the General Assembly. Specifically, the UN needs to address the issue of force generation. Additionally, troop contributing countries have expressed “concerns about the potential for casualties as a significant political obstacle to contributing to UN missions. If peacekeeping is becoming more dangerous, it will become more difficult for the UN to recruit the forces it needs” (Bellamy 2014).

  • Define a barometer for POC success. The Protection of Civilians requires complex resources that constitute a heavy impact on host communities by those who deliver protection. Instead of making demands that peacekeepers remain neutral, being active, relevant participants in the creation and protection of peace demands that peacekeepers must engage in a program that supports specific objectives. Operational efficacy can only be improved if peacekeepers are trained in methods and skills that support mandate outcomes, even if these are not “neutral” in the traditional sense.

  • Define the operational rules for emerging technologies. Emerging technologies are already impacting the abilities of peacekeeping operations to fulfill their mandates. Unmanned aerial vehicles—or drones—in particular present new ways that peacekeepers can actively monitor population movements in country in a way that can help them predict, or adequately respond to violence. For example, drones have been used to map population centers such as schools to provide a “daily count” of students attending schools. A dramatic decrease in school attendance might suggest that specific populations of the student body are deliberately being excluded from school, or kept home by worried family members. Such monitoring can help to assess and predict patters of violence across a region. However, the effective use of drones requires that such use conforms to a standardized set of rules, which may, or may not be based on the traditional standards of consent, neutrality, and the non-use of force.