Towards Better Protection of Civilians : Legal Obligations and United Nations Peace Enforcement Mandates

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Towards Better Protection of Civilians: Legal

Obligations and United Nations Peace

Enforcement Mandates

GINA BARK

Supervisor: Prof. André Nollkaemper

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Abstract: On the ground, civilians continue to be the victims of violence where United

Nations Peacekeeping Operations (UNPKOs) are deployed. Even though authorised to do so, UNPKOs with peace enforcement directions hardly ever actually use force to protect civilians. They are ultimately failing in their mandates. Using the example of the Democratic Republic of Congo, the challenges faced by the militarisation of peacekeeping are explored. The broad nature of Protection of Civilian (PoC) mandates, coupled with the variation of understanding of the notion of protection, has contributed to the lack of clarity of legal obligations of UNPKOs. Though PoC mandates embody a firm grounding of the PoC in international law, both under IHL and IHRL, they go further to create an emerging independent obligation under international law. This obligation should be used to clarify the role of UNPKOs and lead towards a change in practice and the better protection of civilians.

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Introduction

The mandate of the United Nations Stabilisation Mission in the Democratic Republic of Congo (MONUSCO), as renewed on March 30th_{2016 by United Nations Security Council}

(UNSC) Resolution 2277 (2016), highlights the continued evolution of United Nations Peacekeeping Operation’s (UNPKO’s) towards a multi-dimensional task approach.

Mandated to carry out duties across a varied breadth of domains ranging from law and order roles, promotion of human rights and provision of assistance, MONUSCO has three specific assignments: (i) protection of civilians, (ii) political support and (iii) stabilisation.1_{Within its}

protection of civilian tasks, it is directed to respond to and prevent physical violence directed at civilians, raise awareness and provide comprehensive public outreach activities, as well as provide support to the disarmament, demobilisation, repatriation, resettlement and reintegration process to return and reintegrate foreign combatants.2

Additionally, created through UNSC resolution 2098, the Intervention Brigade (IB) is mandated under the MONUSCO protection of civilians’ directions to engage offensively in conjunction with national armed forces to neutralise armed groups.3_{Such a mandate has}

intensified confusion as to the role of MONUSCO and further ‘blurred the lines’ between its military and humanitarian tasks, distorting the distinction between protection of civilians through the use of force and protection of civilians through humanitarian action or the promotion of human rights. MONUSCO’s ability to protect populations caught in the hostilities is severely hindered by the impossibility of the IB to remain neutral and impartial within the conflict. This is further supported by their relationship of engagement with the Congolese national army (FARDC) who are often themselves the perpetrators of violence and abuse of civilians.

The confusing multiplication of MONUSCO’s protection roles has increased the uncertainty around the legal obligations of its peacekeepers to protect civilians. It has diluted the focus of the mandate’s primary role to use force to protect civilians in imminent danger and created 1 UNSC Res. 2277, UN Doc. S/RES/2277 (2016).

2 Ibid.

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unclear expectations. This has also generated hesitancy and disagreement on implementation of the mandate. Consequently, there is reluctance on the side of UN personnel to carry out protection of civilian tasks that require engagement in combat. This lack of clarity is further confounded by the language of the resolutions establishing Protection of Civilians (PoC) mandates: the phrasing is ambiguous and there is limited precision on the manner in which to implement the tasks described.

The aim of this paper is to examine the existence of an independent legal obligation as established in the PoC mandates of UNPKO carrying peace enforcement authorisations. Chapter One will address the definition of protection under the relevant legal frameworks and its application to UNPKOs. Chapter Two will highlight the gaps and issues related to PoC through a case study of the Democratic Republic of Congo (DRC). The history of peacekeeping in Congo has given rise to many legal discussions and problems: the United Nations Mission in the Democratic Republic of Congo (MONUC), MONUSCO and the IB will serve as examples of the challenges associated with peace enforcement missions. Chapter Three will then discuss whether PoC mandates carry legal obligations to protect civilians.

This analysis will deal solely with resolutions like MONUSCO’s which include a clear Chapter VII mandate. Chapter VII mandates provide for a role of peace enforcement rather than peacekeeping. Peacekeeping as opposed to peace enforcement has traditionally been served by three basic principles: consent, impartiality and the use of force only in situation of defence. The Peace enforcement mandates have shifted the notions of consent and self-defence action and added a direction to protect civilians in imminent danger through the offensive use of force, regardless of whether consent is apparent or not.

Methodology

This paper intends to describe and identify legal obligations as they exist currently within UNPKO mandates. In this respect, it looks to allocate responsibility for the protection of civilians in armed conflict. It will first address lex lata the substantive obligations contained in peacekeeping mandates and whether they are binding. Using a legal positivistic approach, this paper will use in its analysis numerous fields of international law including International Humanitarian Law (IHL), International Human Rights Law (IHRL) and the law of

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international responsibility. In addition to describing the current status of the law, it will also seek to identify an emerging obligation. To formulate lex ferenda an obligation, this paper will rely on “soft law” with a focus on codes of conduct, declarations at international conferences, statements, policy declarations and resolutions. As assessed by Simma and Paulus:

“So called soft law is an important device for the attribution of meaning to rules and for the perception of legal change. Moral and political considerations are not alien to law but a part of it.” 4

The mandates themselves will also be examined through their legal basis, content, intent, practice and belief to determine whether they carry an independent legal obligation to protect civilians under threat in armed conflicts. As there is little authority on the interpretation of non-treaty texts, Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT)5_{will be used to help interpret the mandate. The majority of these rules of}

interpretation are now considered customary international law.6_{While recognising that there}

are certain differences between treaties and resolutions, the VCLT is a convenient way to approach the interpretation of UNSC resolutions.7_{The use of the VCLT as guidance for}

interpretation of resolutions was also confirmed by the ICJ in the Kosovo Advisory Opinion.8

This process of interpretation will help assign “meaning to texts and other statements for the purposes of establishing rights, obligations, and other consequences relevant in a legal context.”9

The second chapter will present a case study of the MONUSCO peacekeeping mission in the DRC, with the addition of the IB force and its implications. The case study aims to 4 Bruno Simma, & Andreas L. Paulus, ‘The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View’, 93 (2) The American Journal of International Law (1999) 303-304.

5 Vienna Convention on the Law of Treaties, 1155 UNTS 331 (1969).

6 See Case Concerning the Territorial Dispute, (Libyan Arab Jamahiriya v. Chad) ICJ Reports 6 (1994) para. 41 & Oil Platforms Case (Iran v United States of America) ICJ Reports (1996) para. 23.

7 Michael C Wood, ‘The Interpretation of Security Council Resolutions’, 2 Max Planck Yearbook United Nations Law (1998) 85.

8 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Request for Advisory Opinion) ICJ Reports (2010) para. 94.

9 Matthias Herdegen, ‘Interpretation in International Law’, Max Planck Encyclopaedia of Public International Law (2013) online edition, visited on 11 July 2016 para. 1.

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demonstrate the practical challenges faced by the mission in carrying out its PoC mandate and highlights the disparity between the intention of PoC and its implementation in practice. Its goal is to provide an illustration of the problematic and provide justification of the importance of exploring this subject.

1. Protection of Civilians

This chapter will focus on the meaning of protection of civilians as it is applied by various actors. It will establish a relevant legal definition, which will then be used to help determine the existence or emergence of such obligations for UNPKOs within their PoC mandates. Protection is a term articulated in many different ways by a variety of different actors. The word itself has been integrated into various military, Non-Governmental Organisation (NGO) and international organisation policies, mandates and actions, with numerous and diverse conceptions of its meaning. An important study done by Holt and Berkman found six distinct concepts of civilian protection commonly employed in the field, each in their opinions with implications for a military role.10_{For the purpose of this paper, only definitions of a legal}

character and how they may aid in identifying the obligations of peacekeepers as initiated in their protection of civilian mandate will be considered.

1.1 The Legal Definition of Protection

IHL established the language of protection, as well as important standards, building on IHRL and Refugee law. IHL also influenced the notions of impartiality and neutrality in the protection of civilians and gave legal meaning to the definition of a ‘civilian’.11_{There is}

today a consensus on the norms by which civilians should be treated during times of armed conflict.12_{However, confusion remains about who is responsible to ensure that protection.}

10 Victoria K. Holt & Tobias C. Berkman, The Impossible Mandate? Military Preparedness, the Responsibility to Protect and Modern Peace Operations, The Stimson Centre (2006) 35.

11 Ralph Mamiya, ‘A History and Conceptual Development of the Protection of Civilians’, in Willmot, Mamiya, Sheeran & Weller (eds.), Protection of Civilians (2016) 65-66.

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Following the failure of the international community to protect civilians in Rwanda and Srebrenica, the debate around the notion of ‘protection’ resulted in a series of workshops chaired by the International Committee of the Red Cross (ICRC). These workshops attended by both humanitarian, United Nations (UN) and human rights actors produced one of the most commonly quoted and widely accepted explanations of ‘protection’, which continues to be promoted by the ICRC.

“The concept of protection encompasses all activities aimed at ensuring full respect for the rights of the individual in accordance with the letter and the spirit of the relevant bodies of law.” 13

This definition has “privileged legal protection, making the pursuit of respect of ‘rights’ in international law the purpose of protection activities.”14_{By doing so, it references a practical}

concept of rights and therefore may include duties on parties involved in a conflict to uphold them.15_{The purposes of the protection actions of actors, including peacekeepers, are thus}

considered to also include the promotion of legal rights.

1.2 Protection and its application to UNPKOs

Variations of the above protection classification have been incorporated into the Inter-Agency Standing Committee’s and several UN agencies operational guidelines,16_{as well as}

the African Union Draft Guidelines for the Protection of Civilians by Peace Support Missions developed in March 2010.17_{In essence, these documents carry a ‘protection mandate’ and}

entrust the task of ‘protection’ to these agencies or forces. They work to ensure that the rights of individuals as designated under the various legal instruments are upheld. However, does this rather broad definition assist in providing any clarity as to the legal obligations of 13 ICRC, Third Workshop on Protection, Background Paper (January 7, 1999).

14 Mamiya, supra note 11, at 74.

15 Ibid.

16 For example, the Inter-Agency Standing Committee (IASC) Operational Guidelines on the Protection of Persons in

Situations of Natural Disasters (January 2011), IASC Gender Handbook December (2006) and the United Nations High Commissioner for Refugees (UNHCR) Handbook for the Protection of Women and Girls (2008).

17 AU Draft Guidelines for the Protection of Civilians by Peace Support Missions (March 2010) available at

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peacekeepers?

In relation to peacekeeping missions carrying ‘peace enforcement’ objectives, a protection mandate is essentially a question of an authorisation to use force in case of an imminent attack against civilians.18_{Every armed UNPKO since 1999 contains some form of protection}

language and many POC mandates are based on the 1999 United Nations Mission in Sierra Leone’s (UNAMSIL) which states:

“Acting under Chapter VII of the Charter of the United Nations, decides that in the discharge of its mandate UNAMSIL may take the necessary action to ensure the security and freedom of movement of its personnel and, within its capabilities and areas of deployment, to afford protection to civilians under imminent threat of physical violence, taking into account the responsibilities of the Government of Sierra

Leone and ECOMOG.”19

This however, given the general absence of guidance to troops, has brought with it an ambiguity which has the potential to result in a wide interpretation and uncertainty in implementation. The “necessary action” and its authorisation of force have also counteracted the UNPKO’s pretence of neutrality and impartiality.

Ultimately, the essential gap in normative guidance and the limited capacity demonstrated at all levels to ensure protection of civilians stifles the success of implementation. UNPKOs may in fact lack the means to uphold their mandate. As stated in a report developed by the Panel on United Nations Peacekeeping in 2000 (The Brahimi Report): “If an operation is given a mandate to protect civilians […] it must also be given the specific resources needed to carry out that mandate.” 20_{The next chapter will provide an illustration of the challenges}

faced by UNPKOs with PoC mandates and the problems associated with difficulties in implementation.

18 Françoise Bouchet-Saulnier, The Practical Guide to Humanitarian Law, 3rd edition (2013) 537.

19 UNSC Res. 1270, UN Doc S/RES/1270 (1999) para. 14.

20 Report of the Panel on the United Nations Peace Operation (The Brahimi Report), UN Docs. A/55/305, S/2000/809 (August 21, 2000), as cited in Fiona Blyth & Patrick Cammeart, ‘Using Force to Protect Civilians in United Nations Peacekeeping Operations’, Willmot, Mamiya, Sheeran & Weller (eds.), in Protection of Civilians (2016) 320.

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2. Failure in the Democratic Republic of Congo:

Gaps and Challenges in PoC

As stated in the introduction to this paper, the MONUSCO mandate renewed in 2016, has three main priority tasks: it “decides” that the mission should provide protection to civilians, support to peace consolidation and the solutions to the political situation and stabilisation activities.21_{It is also authorised to continue “to take all necessary measures to carry out its}

mandate within its capabilities and areas of deployment.” 22_{Aside from this agenda, the IB is}

an additional component, adding a “neutralising of armed groups” to their mandate of protection.

The broad nature of the MONUSCO mandate has fed confusion and fragmented the definition of the role of the UNPKO for the protection of civilians. The addition of the IB accentuated the issue, providing even more perplexity on the status of the UN and its implementing partners. The issue can be divided into two parts: 1) multi-dimensional mandates diffuse the clarity of both obligation and expectation of UNPKOs and 2) the militarisation of the mandate overlapped by humanitarian activities create a blurring of lines between aid and combat, abolishing the notion of neutrality and seriously jeopardising humanitarian assistance activities. As stated by Willmot and Sheeran:

“The dilution of the protection of civilians peacekeeping mandate has deflected focus away from the use of force for physical protection, resulting in unclear expectations on UN peacekeepers and consequent difficulty in holding them accountable for their failure to act.” 23

In 2002, MONUC did not respond to severe violence acted against the population, failing to protect civilians in the Kisangani massacre in May of that year.24_{In 2003, MONUC refused}

again to act in accordance with their mandate to protect civilians under imminent threat in 21 UNSC Resolution 2277, UN Doc. S/RES/2277 (2016).

22 Ibid, at para 34.

23 Haidi Willmot & Scott Sheeran, ‘The protection of civilians mandate in UN peacekeeping operations: reconciling protection concepts and practices’, 95 International Review of the Red Cross (2013) 535.

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Ituri stating that “they could only act under Chapter VII and engage in combat with prior authority of their parliament.”25_{Even with what was perceived as an enhanced mandate}

under the MONUSCO, the force provided little resistance to the rebel group M23 in their attack and seizure of Goma, the capital of North Kivu province, in 2012. In May 2016, MONUSCO made no appearance in an outbreak of violence that killed several civilians in Kitchanga, North Kivu.26_{They again failed to act to protect civilians under threat, even}

though they were deployed in the area. Even with the introduction of the IB, little has changed in the weak response to PoC in DRC. When evaluating the response of MONUC and MONUSCO, it is apparent that unclear expectations result in differences of interpretation and ultimately lead to reluctance to use force even when directed by the mandate. Without clarity of legal obligation that denotes responsibility both for failure to respond and for violations of conduct, it is unlikely that such behaviour will change.

The militarisation of UNPKO, overlain by their humanitarian role and activities, poses a dilemma. While protection of civilians is a core aim of the humanitarian community, the notion of sharing such an objective with military or peacekeeping actors does not sit comfortably in safeguarding the increased importance of independent and impartial humanitarian action. By definition military action cannot remain neutral. Peacekeepers under peace enforcement mandates are military actors engaging in military action. As using force for the protection of civilians prescribes a need to ‘take sides’ in a conflict, peace enforcement carries a use of force mandate which extinguishes any conception of neutrality. With the introduction of the IB, this issue has only become more evident and pressing. Engaging in a conflict as a party through force unavoidably distorts the ability of peacekeepers to distinguish themselves as separated from that conflict, regardless of their intended function.

This puts peacekeeping forces in a precarious position and supports the notion that UNPKO have lost their status as neutral actors under IHL. At present, according to Willmot:

24 John Karlsrud, ‘The UN at war: examining the consequences of peace-enforcement mandates for the UN peacekeeping operations in CAR, the DRC and Mali, 36(1) Third World Quarterly (2015) 44.

25 Ibid.

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“UN forces in the DRC are now legally considered a ‘legitimate target’, having become a ‘party to the conflict’. This is the case for the entire UN military presence, whether Force Intervention Brigade or regular MONUSCO contingent.” 27

As both principles of neutrality and impartiality are severely challenged by the UNPKO in Congo, Willmot and Sheeran argue for a clearer implementation of the mandate focusing on the physical protection of civilians in order to mitigate the issues of overlap and lack of clarity.28

Furthermore, grave concerns surround the interaction of the UN forces in Congo with the FARDC. They have been severely criticised for working alongside the Congolese national forces which are known to have war criminals serving in their ranks, some of whom have been indicted by the International Criminal Court.29_{Moreover, FARDC are well known for}

their violations against the civilian population. In 2009, the Congolese army supported by MONUC launched a campaign to forcibly disarm a Rwandan Hutu Militia group (The Democratic Forces for the Liberation of Rwanda). It has since been determined that during the campaign, the FARDC were responsible for serious violations of both humanitarian and human rights law.30_{Such incidents raise concerns of responsibility for the UN for complicity}

in attacks on civilians.

3. Protection of Civilian Obligations of UNPKO

3.1 Legal personality of UNPKOs

To address UNPKO’s obligations and responsibilities, both through their mandates and under international law, their legal personality must first be qualified. In order to be bound by international law, UNPKOs must possess a legal personality or be a part of a legal person that 27 Haidi Willmot, ‘Evolution of the UN Collective Security System’ in Willmot, Mamiya, Sheeran & Weller (eds.),

Protection of Civilians (2016) 133.

28 Willmot & Sheeran, supra note 23, at 535.

29 Siobhan Wills, ‘International Responsibility for Ensuring the Protection of Civilians’, in Willmot, Mamiya, Sheeran & Weller (eds.), Protection of Civilians (2016) 226.

30 Scott Sheeran, ‘A Constitutional Moment?: United Nations Peacekeeping in the Democratic Republic of Congo’, 8

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allows them to engage within the international legal system. There are two important aspects to consider when determining legal personality: the international organisation’s autonomy from its member states and its independence from its parent organisation.31

The legal personality of the UN itself is well established. In the Reparation for Injuries

Case 32_{the question of the international legal personality of international organisations was}

brought before the ICJ. This case challenged the notion of states as the only subjects of international law. “The UN”, the Court concluded, “is engaged in a set of activities which can only be explained on the basis of the organisation possessing international legal personality.”33_{According to the Court this conclusion was supported by practice, confirming}

the separate character of the UN from its member states.34

UNPKOs are recognised as subsidiary organs of the UN.35_{Most UNPKOs are founded on the}

basis of Security Council resolutions and, as a subsidiary organ of the UN, they possess the status, privileges and immunities of the UN, as provided for under article 105 of the UN Charter and the UN Convention on the Privileges and Immunities.36_{Additionally, it has been}

recognised in the Certain expenses case that peacekeeping is a legitimate task of the UN. 37

As a subsidiary organ of the UN, UNPKOs must fulfil two tests: 1) they should exercise powers and functions in a manner distinct from the internal working of the principal organ, 2) they should perform functions which the principal organ does not itself execute.38_{Both tests}

infer a sense of autonomy or independence from the principal organ.

31 Maja Janmyr, Protecting Civilians in Refugee Camps: Unable and Unwilling States, UNHCR and International

Responsibility, (2014) 232.

32 Reparation for Injuries Suffered in the Service of United Nations, advisory opinion, ICJ Reports 174, (1949). 33 Jan Klabbers, Advanced Introduction to the Law of International Organisations, (2015) 19.

34 Ibid.

35 Ray Murphy, ‘United Nations Military Operations and International Humanitarian Law: What Rules Apply to Peacekeepers?’, 14 Criminal Law Forum (2003) 159.

36 Ibid.

37 Certain Expenses of the United Nations, advisory opinion, ICJ Reports 151 (1962).

38 Dan Sarooshi, The United Nations and the Development of Collective Security: The Delegation of the UN Security

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In the case of UNPKOs however, the relationship between member states and the UN parent organisation is further complicated by the multiple layer delegation of its tasks. Peace enforcement member states have delegated this task to the UN, which in turn has further delegated the task to other member states (troop contributing countries), who in combination make up the peacekeeping force.39_{Although this may not in theory affect UNPKOs}

possession of legal personality, it does have implications for the assessment of UNPKOs obligations. If international legal personality denotes responsibility or liability for non-fulfilment of obligations,40_{the uncertainty that ensues from re-delegation, mixed with the}

ambiguity of obligations as stated across the tiers of multiple actors involved in UNPKOs makes the definition of duties of protection even more complicated. It is therefore important to look more precisely at the UNPKO’s mandate itself, beginning with a consideration of its creating instrument: the UNSC resolution.

The following section will provide an analysis of the legal nature and content of Chapter VII resolutions which contain PoC mandates and look at the practice and beliefs of its addressees. It will explore and determine the binding nature of the resolution and the existence of certain legal obligations on the part of UNPKOs.

3.2 PoC Mandates

To determine the legal nature of obligations under PoC mandates, a number of factors need to be assessed. First, an analysis of UNSC resolutions must examine the legal basis of such obligations. Second, the content of the mandate - its language, context and intent, and who it is addressed to - needs to be assessed using the VCLT interpretation criteria as guidance. Third, the practice of UNPKOs in their implementation of the mandate, as well as the legal beliefs of those that apply the obligations, must be taken into account.

3.2.1 UN Security Council Resolutions

PoC mandates are incorporated into UNSC resolutions adopted under Chapter VII of the UN Charter, which gives the UNSC the authority to use force in the pursuit of ensuring 39 Klabbers, supra note 33, at 77.

40 Articles on the Responsibility of International Organisations, ILC Report on the work of its sixty-third session, UNGAOR 66th_{Sess., Supp. No. 10, UN Doc. A/66/10 (2011), Art. 3.}

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international peace and security. Article 39 of the Chapter allows the Security Council to identify the threat, Article 42 authorises the use of force as a measure to maintain or restore peace and security and Article 43 outlines the provision of troops by States in accordance with special agreements with the Security Council. Most UNPKOs since 1999 have been mandated to provide protection to civilians “under imminent threat of physical violence.”41

As of 2015, sixteen UNPKOs were provided protection mandates, indicting the intention of the Security Council to demonstrate and pursue the importance of this issue.42

It is widely accepted that UNSC resolutions are binding on States, including those not represented in the Security Council during the decision-making.43_{This is particularly}

recognised for decisions regarding use of peace enforcement under Chapter VII. Higgins44

has expressed in her analysis of the Namibia case that the reading of the Charter, its travaux

préparatoires and the limited subsequent practice, testify accurately that resolutions validly

41 For example: see the United Nations Mission in Liberia (UNMIL), UNSC Res. 1509 (2003); the United Nations Mission in South Sudan(UNMISS), UNSC Res. (1996); the United Nations Stabilisation Mission in the Democratic Republic of the Congo (MONUSCO), UN Res. 1925 (2010).

42 The UN Mission in Sierra Leone (UNSC Res. 1270, 1999, UN Doc S/RES/1270), the UN Mission in the Democratic Republic of Congo (UNSC Res. 1291, 2000, UN Doc S/RES/1291), became the UN Stabilisation Mission in the Democratic Republic of Congo (UNSC Res. 1565, 2004, UN Doc S/RES/1565) and now includes the Intervention Brigade established under UNSC Res. 2098 (2013, UN Doc S/RES/2098), mandate of MONUSCO was also renewed under (UNSC Resolution 2277,2016, UN Doc. US/RES/2277), the UN Mission in Liberia (UNSC Res. 1509, 2003, UN Doc S/RES/1509), the UN Operation in Cote d’Ivoire (UNSC Res. 1528, 2004, UN Doc S/RES/1528), the Stabilisation Mission in Haiti (UNSC Res. 1542, 2004, UN Doc S/RES/1542),the UN Operation in Burundi (UNSC Res. 1545, 2004, UN Doc S/RES/1545), the UN Mission in Sudan (UNSC Res. 1590, 2005, UN Doc S/RES/1590), the Interim Force in Lebanon (UNSC Res. 1701, 2006, UN Doc S/RES/1701), the African Union – UN Operation in Darfur (UNSC Res. 1769, 2007, UN Doc S/RES/1769), the UN Mission in the Central African Republic and Chad (UNSC Res. 1778, 2007, UN Doc S/RES/1778), the UN Multidimensional Integrated Stabilisation Mission in the Central African Republic (UNSC Res. 2127, 2013, UN Doc S/RES/2127), the UN Mission in South Sudan (UNSC Res. 1996, 2011 UN Doc S/RES/1996), the Interim Security Force for Abyei (UNSC Res. 1990, 2011 UN Doc S/RES/1990), the Multidimensional Integrated Stabilisation Mission in Mali (UNSC Res. 2100, 2013 UN Doc S/RES/2100), and the UN Assistance Mission in Afghanistan (UNSC Res. 2145, 2014 UN Doc S/RES/2145).

43 See: Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)

Notwithstanding

Security Council Resolution 276, ICJ Reports 16 (1971). Also confirmed in Legal Consequences of the Construction of the a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports (2004) where it was found that Israel had

failed to comply with binding obligations imposed by a number of Security Council resolutions.

44 Rosalyn Higgins, ‘The Advisory Opinion on Namibia: Which UN Resolutions are Binding under Article 25 of the Charter?’, 21 International & Comparative Law Quarterly (1972) 286.

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adopted under Article 24 are binding on the membership as a whole.45_{However, the binding}

nature of UNSC resolutions on both troop-contributing countries (TCC) and international organisations is less clear. While TCC may be bound through an analogy of the obligations stemming from the TCC State,46_{the position of international organisations and in turn}

UNPKOs requires further exploration.

Chapter VIII of the UN Charter lays out the relationship between the UNSC and organisations dealing with matters relating to the maintenance of international peace and security. Article 52 (1) and Article 53 (1) indicate that organisations and their activities must be consistent with the purposes and principles of the UN and that no enforcement action can be taken by these organisations without the express authorisation of the UNSC.47_These

statements suggest that UNPKOs have a subordinate status to the Council and as consequence should comply with council decisions.48

3.2.2 Unravelling the Content

Due in a large part to the indeterminacy of language, organs of international organisations, states, international courts and tribunals as well as scholars of international law are all faced with the question of how to interpret resolutions of the Security Council.49_{This is also}

relevant when referring to the PoC mandates carved out within the resolutions. In order to interpret the content of the mandate, the following analysis will follow the objective and subjective criteria for interpretation as formulated in Articles 31 and 32 of the VCLT. The 45 Article 24 of the UN Charter expressly confers on the Security Council primary responsibility for the maintenance of international peace and security. Member states agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

46 Wills, supra note 29, at 243.

47 Article 52 (1) of the UN Charter stipulates that “Nothing in the present Charter precludes the existence of regional arrangements or agencies [...] provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations”. Article 53 (1) states that: “The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council”.

48 Security Council Report, Security Council Action under Chapter VII (23 June 2008) 15.

49 David Schweignman, The Authority of the Security Council under Chapter VII of the UN Charter, Legal Limits and the

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“ordinary meaning”, contextual factors and “object and purpose” of the mandate will be reviewed to examine the language, addressees and intent of the mandate.

Firstly, the literal interpretation or “ordinary meaning” as stated in Article 31 (1) makes significant the use of strong or weak terminology as drafted in the mandate. Using words such as “decide,” “declare,” and “require” infer binding legal obligations, as do “demands” and “insists”, although these may also imply that pre-existing obligations exist.50_Language such as “request”, “urge”, “recommend” and “encourage” are somewhat weaker. UNPKO mandates use predominately strong terminology. Mandates are “decided” by the Security Council,51_{they are then in several cases “authorised” to carry out protection activities as} subscribed in the mandate paragraph.52_{According to}_Ö_{berg, these authorising effects can} create rights, implying reciprocal obligations to fulfil those rights or at least not to interfere with them.53_{It is rare that within the mandate weaker terminology is used. However, in other} sections of the resolution certain relevant paragraphs may contain less instructive language. For example, in Resolution 1545 the Security Council “requests all parties to cooperate fully with the deployment and operations of ONUB.”54_{Also of note is that in many cases the}

Council “requests” the relevant government or authorities to conclude a status-of-force agreement (SOFA) with the Secretary-General.55_{SOFAs are crucial in establishing the legal}

50 Ibid.

51 For example: ‘decides that UNMIL shall have the following mandate’ in the UN Mission in Liberia (UNSC Res. 1509, 2003, UN Doc S/RES/1509), ‘decides that the mandate of UNOCI “ in the UN Operation in Cote d’Ivoire (UNSC Res. 1528, 2004, UN Doc S/RES/1528), ‘decides that MINUSTAH shall have the following mandate’ in the Stabilisation Mission in Haiti (UNSC Res. 1542, 2004, UN Doc S/RES/1542) and ‘decides that MONUC shall have the following mandate, in the UN Stabilisation Mission in the Democratic Republic of Congo (UNSC Res. 1565, 2004, UN Doc S/RES/1565).

52For example: ‘Authorizes ONUB to use all necessary means to carry out the following mandate’ in the UN Operation in Burundi (UNSC Res. 1545, 2004, UN Doc S/RES/1545), ‘Decides that the mandate of UNMISS shall be to consolidate peace and security, accordingly authorizes UNMISS to perform the following tasks’ in the UN Mission in South Sudan (UNSC Res. 1996, 2011 UN Doc S/RES/1996) and ‘Authorizes MONUSCO, through its military component…to take all necessary measures to perform the following tasks, through its regular forces and its Intervention Brigade as appropriate’ (UNSC Res. 2098 (2013) UN Doc S/RES/2098).

53 Marko Divac Öberg, ‘The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ’, 16 European Journal of International Law (2005) 886.

54 UNSC Res. 1545, UN Doc S/RES/1545 (2004).

55 See: “Requests the Haitian authorities to conclude a status-of-force agreement with the Secretary-General” (UNSC Res. 1542, 2004, UN Doc S/RES/1542), “Requests the transitional Government of Burundi to conclude a status-of-forces agreement for ONUB with the Secretary-General within thirty days of the adoption of this resolution” (UNSC Res. 1545, 2004, UN Doc S/RES/1545) and “Requests that the Secretary-General and the Government of the Republic of South Sudan

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relationship of the UNPKO with the host State. They clarify the terms of operation and rights duties and obligations between the parties. Ultimately without a SOFA, it is very difficult for UNPKOs to operate, yet it is “requested” by the UNSC to the host State, following diplomatic language that respects State sovereignty.56

In addition, it is important to note that UNSC resolutions tend not to be very detailed and are often ambiguous.57_{Inconsistencies in the use of terminology and grammar are not}

uncommon and they are often drafted by non-lawyers, in haste and under considerable political pressure in order to secure unanimity within the council.58_{Consequently, although}

language and terminology is significant and important to consider in any interpretation of content, further investigation of context and ‘object and purpose’ is needed.

Secondly, as peace enforcement resolutions are established in situation specific circumstances, the contextual approach highlighted in Article 31 (2) of the VCLT which considers the connection of a clause with other parts of the agreement including the preamble, protocols, and other annexes is therefore highly relevant.59_{Peace enforcement} resolutions respond to a particular crisis that introduces determined threats or breaches of international peace and security. Their preambular paragraphs “reaffirm” and “recall” previous resolutions and commitments.60_{They also “condemn” acts of violence and} “deplore” violations of human rights.61_{PoC mandates are set within this framework.}

conclude a status-of-forces agreement” (UNSC Res. 1996, 2011 UN Doc S/RES/1996).

56 United Nations Peacekeeping Law Reform Project, UN Peacekeeping and The Model Status of Forces Agreement (2010).

57 Wood, supra note 7, 73.

58 Ibid., at 73 & 89.

59 Herdegen, supra note 9, at para.12.

60 For example, see: “Recalling its previous resolutions as well as the statements of its President on Burundi, in particular its resolution” and “reaffirming also its full support for the process of the Arusha Peace and Reconciliation Agreement for Burundi, signed at Arusha on 28 August 2000” (UNSC Res. 1545, 2004, UN Doc S/RES/1545).

61 For example, see: “Condemning all acts of violence, as well as human rights and international humanitarian law violations” (UNSC Res. 1545, 2004, UN Doc S/RES/1545) and “Deploring all violations of human rights, particularly against the civilian population” (UNSC Res. 1542, 2004, UN Doc S/RES/1542).

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In addition, Article 31 (2a) of the VCLT refers to “any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty.” 62_Wood

notes that:

“The equivalent of this would be any agreement relating to the resolution which was made in connection with the adoption of the resolution between all members of the Council or at least all those that voted for the resolution.” 63

Such an example can be found in the Statement by the President of the Security Council of January 2015 concerning the situation in the DRC. Here the Council “reiterates” its support for MONUSCO and “calls on all parties” to remain committed to the mission’s mandate.64

This Statement is also recalled in Resolution 2211 of 2015 extending the mandate of MONUSCO.

Also of importance to context is the question of the addressee. Resolutions speak to States but in establishing a mandate for UN missions they are also addressing the UN mission itself. It does not seem logical that, while laying out directives for the actions and activities of the UNPKO, the mission itself would fall out of the direct focus of these instructions. Therefore, the who and what in relation to the creation of duty and obligation accordingly falls not only to the States involved but to the UN mission itself.

Thirdly, the teleological interpretation or “object and purpose” provides an “interpretation in terms of the hypothetical will of the parties”, which may also include a situation not foreseen by them.65_{It has been argued that one of the main motivations of the UNSC for securing the} PoC agenda was to establish a framework for UN protection activities.66_{The PoC is clearly} seen as important and of great concern to both the UN and the State community. It is mentioned in almost every UNPKO mandate since 1999 and there is a tendency to reuse “previously agreed language”, ones that “have passed muster with other Security Council

62 Vienna Convention on the Law of Treaties, supra note 5, Article 31 (2a).

63 Wood, supra note 7, at 89 & 90.

65 Herdegen, supra note 9, at para. 14.

66 Elissa Goldberg & Don Hubert, ‘The Security Council and the Protection of Civilians’ in Robert Grant McRae and Don Hubert (eds.), Human Security and the New Diplomacy: Protecting People, Promoting Peace (2001) 224.

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members without causing too much controversy.” 67_{This is most likely a tactic to garner the} required consent (or lack of dissent) from UNSC members.68

It is also clear that from the proliferation of PoC mandates, as well as specific UNSC resolutions dealing with protection of civilians in armed conflict,69_{that PoC is strongly}

supported. These thematic specific resolutions are also “reaffirmed” or “recalled” in the UNSC resolutions which create PoC mandates.70

Some indications of the “object and purpose” around PoC can be found in statements and reports issued by the UN, including the DPKO Protections of Civilians Policy of 2015,71_the

DPKO-DFS Operational Concept on Protection of Civilians of 2010,72_{the Capstone}

Doctrine73_{and the Brahimi Report.}74_{The Protection of Civilians Policy addresses the active}

role required by UNPKOs. It denotes both a “responsibility to provide such protection”75_and

“an active duty to protect”.76_{In paragraph 21 it explains:}

“The protection of civilians mandate embodies an active duty to protect; missions do not engage in protection only in reaction to an attack. Activities to protect civilians should be planned, deliberate and on-going, and the mission should constantly work to prevent, pre-empt and respond to violence against civilians.” 77

68 Hugh Breakey, ‘Parsing Security Council Resolutions’, in Vesselin Popvski & Trudy Fraser (eds.), The Security Council as Global Legislator (2014) 55.

69 See: UNSC resolutions 1265 (1999), 1296 (2000), 1674 (2006), 1738 (2006) and 1894 (2009) on the protection of civilians in armed conflict.

70 See: the Stabilisation Mission in Haiti (UNSC Res. 1542, 2004, UN Doc S/RES/1542), the UN Operation in Cote d’Ivoire (UNSC Res. 1528, 2004, UN Doc S/RES/1528) and UNSC Res. 2098 (2013, UN Doc S/RES/2098).

71 DPKO/DFS Policy on the Protection of Civilians in United Nations Peacekeeping (1 April 2015).

72 DPKO/DFS Operational Concept on the Protection of Civilians in the United Nations Peacekeeping Operations (2010).

73 UNDPKO, United Nations Peacekeeping Operations: Principles and Guidelines (18 January 2008).

74 The Brahimi Report, supra note 20.

75 Policy on the Protection of Civilians in United Nations Peacekeeping, supra note 71, at para 20.

76 Ibid., at para 21.

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The DPKO-DFS Operational Concept on Protection of Civilians also envisages a proactive approach to PoC. Laying out a three tiered approach, the second tier related to the use of force includes preventative, pre-emptive and response directions.78_{The Brahimi Report}

states:

“United Nations peacekeepers – troops or police- who witness violence against civilians should be presumed to be authorised to stop it, within their means, in support of basic United Nations principles.” 79

Besides seeming to provide an authority to all missions to protect civilians regardless of any objections of the host States, this also gives the pretence of an affirmative action requirement. It also noted that “the notion that peacekeepers could witness civilians being massacred while they had the capability to stop the violence was morally abhorrent and strategically inept.” 80 When assessing the will and intent of the Security Council through the discussions around the development of the PoC and the Charter provisions invoked in the resolution, it seems reasonable to assume the UNSC is serious in its authorisation of force for the protection of civilians. As stated by Willmot and Sheeran: “Security Council members have demonstrated express intent that UN peacekeepers be mandated to use force to provide direct physical protection to civilians.” 81 _{They then go on to use an example from the Security Council} Meeting of October 199982_{where the Argentinean delegation stated:}

“protection of civilians under Chapter VII is a pertinent development in the context of the mandate of a peace operation. This draft resolution is significant in that it introduces a new, fundamental political, legal and moral dimension. This bears on the credibility of the Security Council and shows that the Council has learned from its

78 Operational Concept on the Protection of Civilians in the United Nations Peacekeeping Operations, supra note 72.

79 The Brahimi Report, supra note 20, at para 50.

80 Ibid.

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own experience and that it will not remain indifferent to indiscriminate attacks against the civilian population.” 83

Ultimately when examining the “ordinary meaning”, context and “object and purpose” of PoC mandates, the majority of them show through the use of strong terminology, clear support, will and intent, that UNSC is serious about its commitment to PoC. The mandates themselves address both States and UNPKOs and look to ensure response from those deemed responsible for the actions needed to carry out the mandate. This analysis leads towards the creation of an emerging obligation for UNPKOs. This is also supported by the “good faith” criteria as expressed in Article 31 (1) of the VCLT. According to Wood:

“The requirement of good faith in interpretation applies to the interpretation of resolutions as it does to treaties. This is reinforced by Article two, para. 2 of the Charter, in accordance with which all members shall fulfil in good faith the obligations assumed by them in accordance with the Charter.” 84

This may lead to the conclusion that has been argued by both scholars85_{and the report by} OIOS86_{that there is a break between the intent of the UNSC and the actions of peace} enforcement operations on the ground. The outcome being that PoC mandates continue to be ineffective and are failing to protect civilians from violence. In practice, even though there has been a militarisation of peacekeeping and an authorisation for UNPKO to take proactive means including force to protect civilians, UNPKOs rarely intervene when civilians are under attack. This issue will be examined in the following section through the “subsequent practice in the application of the treaty” criteria under Article 31(3b) of VCLT.87

3.2.3 Subsequent Practice and Belief in Legal Obligation

84 Wood, supra note 7, at 89.

85 See: Fiona Blyth & Patrick Cammeart, ‘Using Force to Protect Civilians in United Nations Peacekeeping Operations’, Willmot, Mamiya, Sheeran & Weller (eds.), in Protection of Civilians (2016) and Haidi Willmot & Ralph Mamiya, ‘Early Warning, the Protection of Civilians and United Nations Peacekeeping Operations’, 68 African Security Review (2013).

86 UN General Assembly (UNGA), Report of the Office of Internal Oversight Services, Evaluation of the implementation

and results of protection of civilian mandates in United Nations peacekeeping operations, UN Doc A/68/77 (2014) n20. 87 Vienna Convention on the Law of Treaties, supra note 5, Article 31(3b).

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UNPKO’s are governed by a wide variety of rules, all of which include some form of PoC indication. Both Rules of Engagement and SOFA set out the legal parameters for the use of force to protect civilians. UNPKOs are directed by these, as well as their mandate and relevant international law. However, these tools are inadequate and do not give direct instructions allowing Force Commanders significant scope for interpretation in their decisions to use force to protect civilians. Nevertheless, PoC mandates are backed by a wealth of determination to provide protection to civilians in armed conflict. The DPKO/DFS Policy on the Protection of Civilians in United Nations Peacekeeping of 2015 states:

“Protection of civilians mandates are a manifestation of the international community’s determination to prevent the most serious violations of international human rights, humanitarian and refugee law and related standards, and they should be implemented in both the letter and spirit of these legal frameworks.” 88

However, as illustrated by the case study on DRC from Chapter Two the practice of UN forces challenges the determination and proclaimed commitment as outlined in the discussions and significant documents. There are limited examples of action by UNPKOs that support the acceptance of PoC as an obligation rather than a legal authority. Even though UNPKO’s have been authorised to use force to protect civilians they rarely do it. Amnesty International in a report in 2011 highlighted the failure to protect civilians by the UN Operation in Côte D’Ivoire (UNOCI). The report states that “victims had repeatedly requested help from UNOCI but received no response.”89_{When challenged on their failure,}

UNOCI responded that is was the responsibility of the State to do so.90_{This “suggests that}

they did not think that the UNSC mandate created a legal obligation to protect where the State was failing to do so.” 91

However, Levine notes in his work on the Morality of Peacekeeping that one interview 88 Policy on the Protection of Civilians in United Nations Peacekeeping, supra note 71, at para 17.

89 Amnesty international, Press Release: Côte d’Ivoire: Both Sides Responsible for Ware Crimes and Crimes Against

Humanity, London, (May 25, 2011) accessed 07/06/2016 from

https://www.amnesty.org/en/press-releases/2011/05/cc3b4te-de28099ivoire-both-sides-responsible-war-crimes-and-crimes-against-humanity/.

90 Ibid.

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partner, a MONUC officer, expressed pride in his unit’s willingness to ‘stretch’ and push the boundaries of the mandate, establishing small bases deep into territory where the PKO had not previously been to protect civilians.92_{Other peacekeepers interviewed by Levine spoke}

about having taken an oath to “protect life and property” as their motivation for participating in the mission.93_{It has also been argued that peacekeepers, as they hold in their hands the}

power to stop injury or violations, also hold a responsibility to do so. When deploying to a situation of crisis with a mandate to protect civilians there is a presumption that the mission is aware that civilians are at risk and require protection.94_This_{infers quite reasonably that}

people can be held responsible for allowing injury to go forward when it is in their power to stop it.95

Ultimately, even with sustained support by the UNSC, Secretary General and the General Assembly protection language as framed in PoC mandate remains ambiguous and hinders its application on the ground. Even the efforts by both the DPKO and the Department of Field Support in issuing studies and trainings have had limited effect on the practice of peacekeepers themselves when confronted with clear situations requiring their intervention. Evidently, peacekeepers as well as the DPKO believe in their obligation to protect, however, this is seldom witnessed in practice.

3.3 UNPKOs Protection Obligations under International Law

Under Article 31 (3c) of the VCLT the interpreter is directed to take into account “any relevant rules of international law applicable in the relations between the parties.”96_Wood

notes that interpretation based on applicable roles of international law depends in the last analysis on the intent of the Security Council, whether it was intending to base itself on existing legal situations or not.97_{In addition, Breakey notes that “the obligations expressed in}

a provision can also be ranked on the basis of their concordance with other instruments of 92 Daniel H. Levine, The Morality of Peacekeeping, (2014) 221.

93 Ibid., at 222.

95 Robert E. Goodin, Protecting the Vulnerable, (1985) 112.

96 Vienna Convention on the Law of Treaties, supra note 5, Article 31(3c)

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international law.”98_{Although most PoC mandates as contained in the UNSC resolutions did}

not previously reference IHRL or IHL, their basis is drawn on the ideals as expressed in these legal frameworks. With the introduction of the IB as a critical activity of the PoC mandate, resolutions 2098 and 2277 dictate that the IB will act in ‘strict compliance’ with international law, including international humanitarian law and the human rights due diligence policy on UN-support to non-UN forces. Even so it should not be interpreted that the mandate is solely derived from IHL and IHRL and therefore in itself does not provide an independent normative basis.99_{This confusion and “lack of appreciation of the inherent normative basis}

for UN peacekeepers to protect civilians has resulted in the failure to recognise that UN peacekeepers will always have the authority to intervene in order to protect civilians under imminent threat of violence where the host State cannot act.” 100

The fact that direct mentioning of IHL and IHRL is limited in the written mandate may have also been an initiative to distinguish between the “‘direct protection provided by peacekeeping from the advocacy and assistance undertaken by human rights and humanitarian colleagues.”101_{It could also be argued that PoC mandates go beyond both the}

passive conception of protection in IHL and the governance of the relationship between the State and individuals in IHRL102_{, therefore further consolidating their commitment to these}

laws. In addition, it has been accepted that in principle the UN and its subsidiary organs including UNPKO’s are bound mutatis mutandis by customary international law.103

Furthermore, a discussion on the possibility of UNSC resolutions as lex specialis is also relevant. Arguably, resolutions could constitute a form of lex specialis.104_{However the}

approach by the ICJ in the Kosovo Advisory Opinion105_{suggests that:}

98 Breakey, supra note 68, at 65.

100 Ibid.

101 Mamiya, supra note 11, at 79.

102 Willmot & Mamiya, supra note 11, at 376.

103 Sheeran, supra note 30, at 69.

104 Marko Milanovic & Michael Wood, The Law and Politics of the Kosovo Advisory Opinion (2015) 156.

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“When construing a Security Council resolution, it may be important to consider the baseline of international law within which the Council is operating, as it may provide insights into the assumed premises upon which the resolution was predicated.” 106

Therefore, when reviewing the issues discussed around ambiguity, vagueness and diversification of resolutions containing PoC mandates as detailed in the chapter 3.2, it seems appropriate to deem the special rules of the resolution as meaning to build on and apply relevant international law rather than overruling, or setting aside that law.107

The following paragraphs will highlight PoC mandates potential legal obligations looking at the UN Charter, IHL and IHRL as elements in the construction of such obligations. Furthermore, the introduction of the Articles on the Responsibility of International Organisations (ARIO) will be discussed.

3.3.1 UN Charter

The UN Charter provides the foundation for the creation of PoC mandates: the jus ad bellum, the authorisation of the use of force in the interests of peace and security. UNPKO’s were born through the evolution of the interpretation of the UN Charter, as a primary measure to respond to threats and unchecked hostilities between States and more significantly in situations of non-international armed conflict. Early missions primarily focused on observation and monitoring and were unarmed, but with the initiation of peace enforcement and the use of Chapter VII authority, the PoC mandate was created with the direction to “take the necessary action […] to afford protection to civilians under imminent threat of physical violence.” 108

The Charter itself speaks of “respect for human rights and fundamental freedoms for all.”109

106 Milanovic & Wood, supra note 104, 156.

107 See: International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification

and Expansion of International Law—Report of the Study Group of the International Law Commission, UN Doc.

A/CN.4/L.682, paras. 88–107 (2006), as corrected UN Doc. A/CN.4/L.682/Corr.1 (2006) (finalized by Martti Koskenniemi) as cited in Milanovic & Wood, Ibid.

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It embodies a commitment to the protection of these rights and it could be argued that not safeguarding the protection of civilian lives would be unfaithful to the spirit of the document.110_{Although in terms of positive law the Charter is directed towards obliging}

States to respect its statements and only obliges the UN to promote its values, it seems incompatible the UN would not be bound to its own creation and the norms contained within it which in addition are the basis of its conception and aim. As the Brazilian delegation indicated in the Security Council in 2011, “protecting civilians is one of the most important ways in which the Organisation gives expression to its ultimate objectives, as set out in the Charter.”111

3.3.2. IHL

Twentieth century IHL embodies the vision that those persons not participating in hostilities should be protected. Under this framework, civilians should not be targeted nor subjected to violence during times of armed conflict. The Fourth Geneva Convention of 1949 is based on the protection of civilians, providing obligations on warring parties to do everything possible to minimise harm to them.112_{Accompanied by the two additional protocols of 1977, it}

provides the cornerstone for the protection of civilians both in international and non-international armed conflicts.

The UN is not a State and therefore cannot be and is not a party to the Geneva Conventions or its additional protocols. However, the UN Secretary-General’s bulletin of 1999, although limited in its expression of obligations available under IHL, acknowledged that UN forces are bound by certain principles of IHL when engaging actively as combatants in situations of armed conflict.113_{The Bulletin encompasses the most fundamental principles of the ‘rules of}

war’, many of which in addition represent customary law, with a key focus on the protection 110Jean-Marie Guéhenno, ‘The United Nations and the Protection of Civilians’, in Willmot, Mamiya, Sheeran & Weller (eds.) Protection of Civilians (2016) 258.

111 Security Council Meeting Record S/PV.6531 (10 May 2011) 11. See also: Security Council Meeting Record S/PV.6650 (9 November 2011) 19: France stated ‘The protection of civilians is at the heart of the mandate of United Nations peacekeeping operations. In that framework our Organisation, on a daily basis, must fulfil that mission.’ As cited in Willmot & Sheeran, supra note 23, at 529.

112 Geneva Convention (IV) relative to the protection of Civilian Persons in Time of War, Geneva, 75 UNTS 287 (1949).

113 UN Secretary-General’s Bulletin, Observance by United Nations forces of international humanitarian law UN Doc ST/SGB/1999/13 (August 6, 1999).

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of civilians. It also confirms that national contingents are bound by their national laws during their mission.114_{As stated by Shraga:}

“The Secretary-General's Bulletin is binding on members of UN forces in the same way as are all other instructions issued by the Secretary-General in his capacity as ‘commander in chief’ of UN operations […] The source of the legal obligation, however, lies in the international humanitarian law provisions incorporated in the respective national laws, by which members of the force remain bound throughout their service with the UN operationor in the customary international law provisions that are independently binding on them.”115

In addition, the ideals of respecting IHL have also become more standard in SOFA between the UN and host States, obliging peacekeepers regardless of whether they are engaged as combatants to respect the ‘principles and rules’ of the IHL.

Other significant IHL provisions that could be interpreted to apply an obligation to take positive action in the protection of civilians by UNPKOs include the law of occupation and Common Article 1 of the Geneva Conventions.116_Wills117_{argues that the majority of}

participants in a 2012 ICRC study on occupation concluded that the law on occupation “could become the legal framework of reference especially when the UN operation contained an element of enforcement in its mandate and found itself having to run the entire territory in which it was deployed or parts of it.”118_{This is also supported by Sams who considers the}

law’s de facto application, stating that:

“At the outset of a complex peace operation, troops may find themselves in a situation akin to occupation, carrying out duties typical of an occupying power. In

114 Ibid.

115 Daphna Shraga, ’UN Peacekeeping Operations: Applicability of International Humanitarian Law and Responsibility for Operations-Related Damage’, 94 (2) The American Journal of International Law (April 2000) 409.

116 Wills, supra note 29, at 241-247.

117 Ibid., at 242.

118 Tristan Ferraro (ed.), Meeting Report: Occupation and other Forms of Administration of Foreign Territory, ICRC (2004) 79, as cited inWills, ibid.

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such situations the law of occupation could be applicable by analogy, providing a relevant and familiar yardstick.”119

In regards to the application of Common Article 1, Wills argues that IHL obligations stem from the obligations of the TCC State. Firstly, she establishes the customary law status of the principles to which Article 1 gives expression via interpretations asserted by the International Court of Justice, the General Assembly, ICRC and academics and then accordingly maintains the application of these principles to the UNPKO via the obligations of the State that has deployed the force.120_{Wills concludes that the extent of the obligation to ‘ensure respect’}

under common Article 1 must surely be linked to the contracting party’s ability to effect the conduct of armed actors involved in the conflict.121

Each of the obligations above has relevance in affording the importance of IHL as a basis for establishing existing obligations for UNPKOs. PoC mandates embody these obligations but also inform their own commitment to the principles and obligations at stake, creating within the mandate a special rule and obligation in addition to those afforded by IHL itself. This is supported, as discussed in 3.3, by the language, context and intent of the resolution and PoC mandate, but also by the actions and words of the UNSC and certain States, as well as other relevant UN bodies.

3.3.3 IHRL

It is now widely accepted that IHRL applies in times of peace and conflict.122_{Although some}

human rights may be derogated from in times of emergency most key rights related to the protection of civilians including the right to life, the right to freedom of thought, conscience and religion and the prohibition of torture, cruel, inhumane or degrading treatment and 119 Katie. E. Sams, ‘IHL Obligations of the UN and Other International Organisations Involved in International Missions’, in Marco Odello & Ryszard Piotrowicz (eds.), International Military Missions and International Law, (2011) 69.

121 Ibid., at 246-247.

122 See for examples of consensus on this issue: Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1995 ICJ Reports 95 (1995), para. 25; UNSC Res. 1265, U.N. Doc. S/RES/1265 (1999), Human Rights Committee, General

Comment 31: Nature of the General Legal Obligations Imposed on States Parties to the Covenant, U.N. Doc.

CCPR/C/21/Rev.1/Add.13 (2004), para. 11 & Human Rights Committee, Concluding Observations of the Human Rights

Towards Better Protection of Civilians : Legal Obligations and United Nations Peace Enforcement Mandates