Mandates of United Nations (UN) peacekeeping missions increasingly include stabilisation and peace enforcement components, which imply a proactive use of force often carried out by national, regional or multinational non-UN partners, operating either in support of or with the support of the UN, acting as ‘proxies’. This article analyses the legal, policy and perception/security implications of different types of ‘peace operations by proxy’ and the additional challenges that such operations create for humanitarian action. It suggests some mitigating measures, including opportunities offered by the UN Human Rights Due Diligence Policy, for a more coherent approach to the protection of civilians, but also acknowledges some of the limitations to an independent UN-led humanitarian action.
1 ‘UN Security Council approves creation of Mali peacekeeping force’, in Reuters, 25 April 2013, available at: www.reuters.com/article/2013/04/25/us-mali-crisis-un-idUSBRE93O0R420130425. All internet references were last accessed in January 2014.
2 See Espen Barth Eide, Anja Therese Kaspersen, Randolph Kent and Karen von Hippel, Report on Integrated Missions: Practical Perspectives and Recommendations – Independent Study for the Expanded UN ECHA Core Group, May 2005; and more recently Metcalfe Victoria, Giffen Alison and Elhawary Samir, UN Integration and Humanitarian Space: An Independent Study Commissioned by the UN Integration Steering Group, Overseas Development Institute, December 2011.
3 UN Department of Peacekeeping Operations and Department of Field Support (DPKO/DFS), UN Peacekeeping Operations: Principles and Guidelines (Capstone Doctrine), 2008.
4 This multidimensional approach to peacekeeping was formally endorsed by the Security Council in Resolution 2086 of 21 January 2013, which lists ten broad tasks that peacekeeping missions can be mandated with and ‘calls upon the Secretary-General to take all measures deemed necessary to strengthen UN field security arrangements and improve the safety and security of all military contingents, police officers, military observers and, especially, unarmed personnel’.
5 For example, the International Conference on the Great Lakes Region (ICGLR), a sub-regional organisation, has termed the armed groups FDLR and M23 as ‘negative forces’ in part to justify coordinated military efforts against these armed groups operating in the eastern Democratic Republic of the Congo. See ICGLR, ‘Press release on the 4th ICGLR extraordinary summit on DRC to take place in Kampala’, available at: www.icglr.org/index.php/en/press-releases/98-media-center/press-releases/231-4th-icglr-extraordinary-summit-on-drc-to-take-place-in-kampala.
6 Report of the Panel on United Nations Peace Operations (Brahimi Report), UN Doc. A/55/305-S/2000/809, 21 August 2000.
7 See Jones Bruce et al. , Robust Peacekeeping: The Politics of Force, Center on International Cooperation, 2010.
8 These reluctant states have generally been the traditional troop-contributing countries – such as Pakistan and Guatemala, who initially opposed the creation of the Intervention Brigade within MONUSCO – but also include Western troop-contributing countries that have robust capacities but are wary of public reaction to the loss of troops serving within peacekeeping operations.
9 SC Res. 2098, 29 March 2013.
10 See Arthur Boutellis, ‘Will MONUSCO fall with Goma?’, in Global Observatory, 3 December 2012, available at: http://theglobalobservatory.org/analysis/394-will-monusco-fall-with-goma.html.
11 SC Res. 2100, 25 April 2013.
12 Ibid., para. 18.
13 The French Licorne military forces deployed alongside the UN Operation in Côte d'Ivoire (UNOCI) played a critical role in the final days of the post-election crisis in April 2011. Before that, in the DRC, the UN called on a French-led EU Interim Emergency Multinational Force (IEMF) – ‘Operation Artemis’ – to restore security in Bunia and its surrounding areas in June 2003 (authorised under Resolution 1484). The IEMF was authorised for three months to open the way for the deployment of a larger and more robust UN ‘Ituri brigade’ equipped with attack helicopters and armoured personnel carriers. Although generally seen as a ‘bridging mission’, the authorisation of the European Union Force (EUFOR) for one year in support of the initial UN multidimensional Mission in the Central African Republic and Chad (MINURCAT) could also be considered a case of parallel deployment (SC Res. 1778, 25 September 2007).
14 SC Res. 2096, 19 March 2013.
15 See, for instance, the initial UNOCI mandate under Resolution 1528 (2004), which authorises the French Licorne forces stationed in Côte d'Ivoire ‘to use all necessary means in order to support UNOCI in accordance with the agreement to be reached between UNOCI and the French authorities, and in particular to: – Contribute to the general security of the area of activity of the international forces, – Intervene at the request of UNOCI in support of its elements whose security may be threatened, – Intervene against belligerent actions, if the security conditions so require, outside the areas directly controlled by UNOCI, – Help to protect civilians, in the deployment areas of their units; – Requests France to continue to report to it periodically on all aspects of its mandate in Côte d'Ivoire’.
16 Gowan Richard and Sherman Jake, Peace Operations Partnerships: Complex but Necessary Cooperation, ZIF (Center for International Peace Operations), March 2012, p. 2
17 The AU has deployed three major peacekeeping missions to date, in Burundi (AMIB, 2003), Sudan/Darfur (AMIS, 2004), and Somalia (AMISOM, 2007), as well as other smaller electoral observation and support missions.
18 The 2009 UN DPKO/DFS non-paper A New Partnership Agenda (New Horizon) first made reference to peacekeepers as ‘early peace builders’. Later in June 2011, the DPKO/DFS produced an ‘Early Peacebuilding Strategy’ that is meant to provide guidance to UN peacekeepers on prioritising, sequencing and planning critical early peacebuilding tasks (broadly defined as ‘those that advance the peace process or political objectives of a mission, ensure security and/or lay the foundation for longer-term institution-building’).
19 Sherman Jake, ‘Peacekeeping and Support for State Sovereignty’, in Annual Review of Global Peace Operations 2012, Center on International Cooperation, p. 12.
20 MONUSCO was created by UN Security Council Resolution 1925 of 28 May 2010 and is the successor to MONUC, with an expanded ‘stabilisation’ mandate.
21 Jort Hemmer, ‘We are laying the groundwork for our own failure: the UN Mission in South Sudan and its civilian protection strategy – an early assessment’, CRU Policy Brief No. 25, Clingendael Institute, January 2013.
22 UN Deputy Secretary-General Jan Eliasson suggested in a 2013 press conference that as many as 3,000 AU peacekeepers have been killed in Somalia in recent years. See Louis Charbonneau, ‘Up to 3,000 African peacekeepers killed in Somalia since 2007’, in Reuters, 9 May 2013, available at: www.reuters.com/article/2013/05/09/us-somalia-peacekeepers-deaths-idUSBRE94812020130509. Conversely, only a dozen casualties in a UN peacekeeping context would likely trigger an investigation and lead to a reassessment of the mission.
23 See Boutellis Arthur and Williams Paul, Peace Operations, the Africa Union, and the United Nations: Towards More Effective Partnerships, International Peace Institute, April 2013.
24 UN General Assembly Resolution 46/182 of 1991 entrusted the world body with the task of improving the coherence and coordination of humanitarian action, through the creation of a Department of Humanitarian Affairs (that became OCHA in 1998) and the position of Emergency Relief Coordinator. This leadership and coordination role of the UN was further consolidated in 2005 with the ‘humanitarian reform’ that created the ‘cluster’ system to improve coordination by sector and that strengthened the role of UN Humanitarian Coordinators.
25 Jakob Kellenberger, former president of the ICRC, clearly stated that: ‘It has always been the ICRC's view that peace forces must observe [IHL] when conditions for its applicability are met.’ See Jakob Kellenberger, ‘Keynote address at the 31st round table on current issues of international humanitarian law’, International Institute of Humanitarian Law, San Remo, 4 September 2008, available at: www.icrc.org/eng/resources/documents/statement/peace-operations-statement-040908.htm.
26 Forces under UN command and control are usually referred to as ‘blue helmets’ and operate in the framework of a UN peacekeeping or peace enforcement operation, as opposed to multinational operations ‘under UN auspices’ which are mandated by a Security Council resolution but are under national or regional command. Examples of the latter include the French-led Operation Serval in Mali, mandated by SC Res. 2100 of 25 April 2013, and the NATO-led International Security Assistance Force in Afghanistan, mandated by SC Res. 1386 of 20 December 2001.
27 Secretary-General Bulletin, Observance by United Nations Forces of International Humanitarian Law, UN Doc. ST/SGB/1999/13, 6 August 1999.
28 Shraga Daphna, ‘The Secretary-General's Bulletin on the Observance by United Nations Forces of International Humanitarian Law: a decade later’, in Israel Yearbook on Human Rights, Vol. 39, 2009, p. 357.
29 An issue addressed at length in other articles in the present issue of the Review.
30 D. Shraga, above note 28, recognises this assertion in her discussion of the threshold and scope of application of IHL.
31 Reuters, ‘U.N. helicopters strike rebel posts in Congo’, in New York Times, 18 November 2012, p. 8.
32 See Art. 14 of the Draft Articles on the Responsibility of International Organisations, adopted by the International Law Commission at its 63rd session in 2011 and submitted to the UN General Assembly as a part of the Commission's report covering the work of that session (A/66/10), available at: http://legal.un.org/ilc/texts/instruments/english/draft%20articles/9_11_2011.pdf.
33 A situation covered by Art. 7 of the Draft Articles on the Responsibility of International Organisations, above note 32. This article covers ‘Conduct of organs of a State or organs or agents of an international organisation placed at the disposal of another international organisation’, which requires that the latter organisation exercise effective control over the conduct in question.
34 See UN Comments to the Draft Articles on the Responsibility of International Organisations, UN Doc. A/CN.4/637/Add.1, 17 February 2011, Comments to Draft Article 13, p. 18.
35 The Security Council first recognised the connection between the protection of civilians in armed conflict and its mandate to maintain international peace and security in a Presidential Statement adopted on 12 February 1999 (S/PRST/1999/6) that was followed by its first thematic resolution on the protection of civilians (SC Res. 1265, 17 September 1999). For more information on the role of the Security Council in the protection of civilians, see Security Council Report, Cross-Cutting Report on the Protection of Civilians in Armed Conflict, 31 May 2012, available at: www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/XCutting%20POC%202012.pdf.
36 Human Rights Watch, ‘You Will Be Punished’: Attacks on Civilians in Eastern Congo, December 2009.
37 Human Rights Watch, ‘You Don't Know Who to Blame’: War Crimes in Somalia, August 2011, pp. 16–18.
38 MONUSCO, UN System-Wide Strategy for the Protection of Civilians in the Democratic Republic of Congo, January 2010, para. 13 (on file with the authors).
39 Ibid., para. 21.
40 Standard 19 of the ICRC's Professional Standards for Protection Work states: ‘A protection actor must be consistent and impartial when making reference to, or urging respect for the letter or spirit of relevant law, as applied to various parties to an armed conflict.’ ICRC, Professional Standards for Protection Work, October 2009, p. 39.
41 Collinson Sarah, Elhawary Samir and Muggah Robert, ‘States of fragility: stabilisation and its implications for humanitarian action’, in Disasters, Vol. 34, Supplement 3, October 2010, p. 290.
42 UN Secretary-General, Decision No. 2008/24 – Integration, 26 June 2008.
43 Human Rights Watch, above note 36, p. 153.
44 Menkhaus Ken, ‘Stabilisation and humanitarian access in a collapsed state: the Somali case’, in Disasters, Vol. 34, Supplement 3, October 2010, p. 334, available at: http://onlinelibrary.wiley.com/doi/10.1111/j.1467-7717.2010.01204.x/pdf; Bradbury Mark, State-Building, Counterterrorism, and Licensing of Humanitarianism in Somalia, Feinstein International Center, Briefing Paper, September 2010, pp. 11–12, available at: www.humanitarianforum.co.uk/data/files/statebuilding_somalia.pdf.
45 Impartiality is understood here as even-handedness, as not favouring one party over another. However, for humanitarian actors, impartiality more specifically means that aid must be delivered on the basis of needs only and without discrimination. It is complemented by the principle of neutrality that requires not taking a side in hostilities and not engaging in controversies of a political, racial, religious or ideological nature.
46 Boutellis Arthur, ‘In the DRC communications war, rebels learn PoC language’, in Global Observatory, 12 July 2012, available at: http://theglobalobservatory.org/analysis/324-in-the-drc-communications-war-rebels-learn-poc-language.html.
47 Associated Press, ‘Congo's M23 rebels threaten new UN brigade’, 30 April 2013, available at: http://news.yahoo.com/congos-m23-rebels-threaten-un-brigade-115736055.html.
48 Cammaert Patrick and Blyth Fiona, The UN Intervention Brigade in the Democratic Republic of the Congo, International Peace Institute, Issue Brief, July 2013, available at: www.ipinst.org/media/pdf/publications/ipi_e_pub_un_intervention_brigade_rev.pdf.
49 Ponthieu Aurélie, Vogel Christoph and Derderian Katharine, ‘Without precedent or prejudice? UNSC Resolution 2098 and its potential implications for humanitarian space in Eastern Congo and beyond’, in Journal of Humanitarian Assistance, 21 January 2014, available at: http://sites.tufts.edu/jha/archives/2032.
50 V. Metcalfe, A. Giffen, and S. Elhawary, above note 2, p. 32.
51 The ‘cluster’ system was created as part of the 2005 UN-led ‘humanitarian reform’, with a view to strengthening humanitarian response capacity and effectiveness by ‘improving strategic field-level coordination and prioritisation in specific sectors/areas [‘clusters’] of response by placing responsibility for leadership and coordination of these issues with the competent operational agency’. In effect, at field level, these ‘clusters’ are coordination fora between aid agencies in different sectors of activities, such as protection, food security, health or logistics. ‘Clusters’ are usually placed under the leadership of a UN agency. See Reliefweb, Glossary of Humanitarian Terms, August 2008, p. 14, available at: http://reliefweb.int/sites/reliefweb.int/files/resources/4F99A3C28EC37D0EC12574A4002E89B4-reliefweb_aug2008.pdf.
52 Egeland Jan, Harmer Adele and Stoddard Abby, To Stay and Deliver: Good Practice for Humanitarians in Complex Security Environments, UN Office for the Coordination of Humanitarian Affairs, 2011.
53 Report of the Secretary-General on the Situation in Mali, UN Doc. S/2012/894, 29 November 2012, para. 91.
54 Security Council Report, ‘Mali briefing and consultations on funding options and developments’, in What's in Blue, 21 January 2013, available at: www.whatsinblue.org/2013/01/mali-briefing-consultations-on-funding-options-and-developments.php.
55 Donini Antonio, ‘Between a rock and a hard place: integration or independence of humanitarian action?’, in International Review of the Red Cross, Vol. 93, No. 881, March 2011, pp. 141–157.
56 See Human Rights Watch, above note 36.
57 Philip Alston, former UN Special Rapporteur on Extrajudicial Executions, publicly stated in October 2009, after a ten-day mission to the DRC, that the MONUC-supported Kimia II operation ‘produced catastrophic results’ from a human rights perspective. See Press Statement dated 15 October 2009, available at: www2.ohchr.org/english/issues/executions/docs/PressStatement_SumEx_DRC.pdf.
58 Confidential note, leaked by the New York Times, from the UN Office of Legal Affairs to Mr. Le Roy, Head of the Department of Peacekeeping Operations, 1 April 2009, para. 10, available at: http://documents.nytimes.com/united-nations-correspondence-on-peacekeeping-in-the-democratic-republic-of-the-congo#p=1.
60 SC Res. 1906, 23 December 2009, para. 23.
61 Interviews with senior UN officials, New York, March 2013.
62 In July 2010, an expert on the DRC observed that ‘[t]he imperfect policy finally agreed on, far from significantly reducing the occurrence of FARDC crimes, serves the more limited purpose of shielding the UN mission from accusations of complicity in war crimes’. See Vircoulon Thierry, ‘After MONUC, should MONUSCO continue to support Congolese military campaigns?’, Blog of the International Crisis Group, 19 July 2010, available at: http://www.crisisgroup.org/en/regions/africa/central-africa/dr-congo/vircoulon-after-MONUC-should-MONUSCO-continue-to-support-congolese-military-campaigns.aspx.
63 UN Secretary-General, Decision No. 2011/18, 13 July 2011.
64 Identical letters dated 25 February 2013 from the Secretary-General addressed to the president of the General Assembly and to the president of the Security Council, UN Doc. A/67/775-S/2013/110, 5 March 2013.
65 UN Secretary-General, Decision No. 2011/18, annexed to UN Doc. A/67/775-S/2013/110, paras. 14–17 and 23.
66 Ibid., paras. 18–19.
67 Ibid., paras. 20–22.
68 Ibid., para. 3.
69 Ibid., para. 28.
70 SC Res. 2100, 25 April 2013, para. 26.
71 Interviews with senior UN officials, New York, March 2013.
72 Lotze Walter and Kasumba Yvonne, ‘AMISOM and the protection of civilians in Somalia’, in Conflict Trends, No. 2, 2012, p. 22.
73 Philip Alston, former UN Special Rapporteur on Extrajudicial Executions, was the first senior UN official to publicly acknowledge that MONUC had become a party to the conflict in 2009. See Press Statement, above note 57.
74 See Glad Marit, A Partnership at Risk? The UN-NGO Relationship in Light of UN Integration, Norwegian Refugee Council, 2012, available at: http://www.nrc.no/?did=9608295.
75 Three NGO consortia (Interaction, ICVA and VOICE), representing more than 330 humanitarian and development NGOs, published a statement on 11 March 2013 expressing their dismay at SC Res. 2093, 6 March 2013, which integrated all UN functions under one UN umbrella in Somalia, de facto subsuming UN humanitarian coordination to the political mandate of the UN mission. Statement available at: www.ngovoice.org/index.php?page=2858. See also ‘In Somalia, humanitarian NGOs against integration with United Nations’, interview with Joel Charny, vice-president of Interaction, in Global Observatory, 26 April 2013, available at: www.theglobalobservatory.org/interviews/488-in-somalia-humanitarian-ngos-resist-integration-with-un-interview-with-joel-charny.html.
76 V. Metcalfe, A. Giffen and S. Elhawary, above note 2, p. 2.
77 UN OCHA Policy Instruction, ‘OCHA's structural relationships within an integrated UN presence’, 1 May 2009, available at: http://afgarchive.humanitarianresponse.info/sites/default/files/OCHA%E2%80%99s%20Structural%20Relationships%20Within%20An%20Integrated%20UN%20Presence.pdf.
78 Ibid., pp. 6–7.
79 SC Res. 2093, 6 March 2013, para. 21.
80 Jackson Ashley and Giustozzi Antonio, Talking to the Other Side: Humanitarian Engagement with the Taliban in Afghanistan, Overseas Development Institute, HPG Working Paper, December 2012, p. 4, available at: www.odi.org.uk/sites/odi.org.uk/files/odi-assets/publications-opinion-files/7968.pdf.
81 Sheikh Abdi, ‘Somali Islamist rebels attack U.N. base, 22 dead’, in Reuters, 19 June 2013, available at: www.reuters.com/article/2013/06/19/us-somalia-blast-idUSBRE95I0AJ20130619.
82 Labbé Jérémie, Rethinking Humanitarianism: Adapting to 21st Century Challenges, International Peace Institute, November 2012, p. 23.
83 Integrated Regional Information Network, ‘Arab and Muslim aid and the West – “two china elephants”’, 19 October 2011, available at: www.irinnews.org/Report/94010/Analysis-Arab-and-Muslim-aid-and-the-West-two-china-elephants.
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