Normative Aspects of International Peacekeeping

by

Boris Kondoch

• LAST REVIEWED: 25 October 2018
• LAST MODIFIED: 25 October 2018
• DOI: 10.1093/obo/9780199743292-0242

Introduction

The year 2018 marks the seventieth anniversary of UN peacekeeping. Peacekeeping is widely viewed as one of the most effective tools helping the transition of war-torn societies from conflict to peace. The major actor in the field of peacekeeping is the United Nations (UN). As of the mid-2010s, the UN has conducted seventy-one peacekeeping operations in Asia, Africa, Europe, and South America. More than 100,000 peacekeepers, including uniformed and civilian personnel as well as UN volunteers, are currently serving in fourteen missions around the world. In addition to the UN, regional organizations and arrangements, such as the African Union (AU) and the European Union (EU), have also undertaken peacekeeping operations. Peacekeeping as a concept is not mentioned in the UN Charter, nor is there is a common definition of the term “peacekeeping.” In various documents, the UN defined peacekeeping by reference to the three key principles: consent of the parties, impartiality, and the non-use of force except in self-defense. The report, An Agenda for Peace of 1992 which included an analysis and recommendations of strengthening the UN’s capacity for preventive diplomacy, peacemaking and peacekeeping defines peacekeeping as the “deployment of a UN presence in the field, hitherto with the consent of all parties concerned, normally involving UN military and/or police personnel and, frequently, civilians as well. Peacekeeping is a technique that expands the possibilities for both the prevention of conflict and making of peace” (see p. 20). However, it should be noted that this definition only provides general guidance. Many peacekeeping operations also have been established based on Chapter VII of the UN Charter and in situations in which force was used beyond self-defense. Instead of peacekeeping, many scholars, including Bothe 2018, Fleck 2015, and Oswald, et al. 2010 (all cited under General Overviews), prefer the term “peace operations.” According to the Brahimi Report of 2000, which was a comprehensive analysis of peacekeeping operations undertaken by the United Nations UN peace operations entail the activities of conflict prevention and peacemaking, peacekeeping, and peacebuilding. This article is primarily concerned with normative issues regarding UN peacekeeping operations, but regional organizations and arrangements are also covered in Peacekeeping Operations Conducted by Regional Organizations and Arrangements.

General Overviews

Normative aspects have played an important role in peacekeeping operations from the very beginning. In the early days of UN peacekeeping, such scholars as Bowett 1964, Higgins 1969–1981, and Schachter 1964 wrote pioneering works on the subject. They focused, inter alia, on the constitutionality of UN peacekeeping, legal issues arising from the financing of such operations, the application of laws of war to UN peacekeeping operations, and the role of law in general in peacekeeping. After the end of the Cold War, peacekeeping became multidimensional, leading to more complex legal questions. How and to what extent does human rights law apply to peacekeeping operations? What kinds of obligations arise from international criminal law? How does international law regulate the use of force in peacekeeping operations? What are the legal parameters when the UN is establishing interim administrations, such as in East Timor and Kosovo? What are the responsibilities and liabilities in peacekeeping operations? In the last decade, researchers have drawn their attention, among others, to legal issues concerning the sexual abuse scandals by peacekeepers, the protection of civilians, international policing, and the use of new weapon systems, including drones, peacekeeping, and private security. Understanding all of these issues has been a challenging task for international lawyers and practitioners. Law plays an essential role in UN peacekeeping operations. In the words of Schachter 1964, “one is the role of legal authority in providing a locus standi for third party intervention. . . . Third party activity is much less likely to raise objection if it rests on legal authority and is brought within the framework of the United Nations” (p. 1098). According to Howe, et al. 2015, the legal framework of UN peacekeeping operations can be found in the UN Charter; the mandate provided by the Security Council. These include mission-specific legal instruments, including agreements with the troop-contributing states, so-called Participation Agreements with the host state, including so-called Status of Forces Agreements (SOFAs) or Status of Missions Agreements (SOMAs); rules of engagement; and UN regulations. In addition, international human rights laws, international humanitarian laws, the Convention on the Privileges and Immunities of the United Nations, the Convention on the Safety of United Nations and Associated Personnel, and the Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel also play an important role. As Fleck 2015 points out, “the establishments of and support for the rule of law, as expressed in clear mandates, effective rules of engagement, and independent legal control is obviously vital for the success of the mission” (p. 247). Although numerous monographs and articles deal with a particular aspect of UN peacekeeping, relatively few publications provide a comprehensive overview on the normative aspects of international peacekeeping; however, Bothe 2018, Gill, et al. 2017, and White 2016 have addressed this issue.

• Bothe, Michael. “UN Peace Operations.” In The Handbook of the Law of Visiting Forces. 2d ed. Edited by Dieter Fleck, 50–74. Oxford: Oxford University Press, 2018.

  In chapter 4, the former president of the German Society of International Law explains the complex legal framework applicable to peacekeeping in a very clear and logical manner.

• Bowett, Derek W. United Nations Forces. London: Stevens, 1964.

  A pioneering work that examines legal problems related to early peacekeeping operations, including the United Nations Emergency Force (UNEF), the United Nations Operation in the Congo (ONUC), and the United Nations Temporary Executive Authority (UNTEA).

• Fleck, Dieter. “The Law Applicable to Peace Operations.” In The Oxford Handbook of International Law in Armed Conflict. Edited by Andrew Clapham and Paola Gaeta, 206–247. Oxford: Oxford University Press, 2015.

  One of the best summaries on the subject that also addresses past and current legal challenges to peace operations. Specific issues covered include security and safety, command and control, freedom of movement and communication, logistic support, and operational law issues.

• Gill, Terry D., and Dieter Fleck, eds. The Handbook of the International Law of Military Operations. 2d ed. Oxford: Oxford University Press, 2015.

  Chapters 6 and 7 (Peace Operations and Peace Operations Conducted by Regional Organzations and Arrangements) specifically cover UN peace operations and peace operations conducted by regional organizations and arrangements. The contributors, who are all leading scholars in the field, cover a wide range of topics, including status of forces in peace operations, the application of force and rules of engagement, as well as issues related to authority, command, and control in peace operations.

• Gill, Terry, Dieter Fleck, William H. Boothby, and Alfons Vanheusden, eds. Leuven Manual on the International Law Applicable to Peace Operations: Prepared by an International Group of Experts at the Invitation of the International Society for Military Law and the Law of War. Cambridge, UK, and New York: Cambridge University Press, 2017.

  The most comprehensive overview and detailed commentary on legal rules applicable to peace operations conducted by the UN, the EU, the North Atlantic Treaty Organization (NATO), the AU, and other organizations. Written by leading scholars and practitioners.

• Higgins, Rosalyn. United Nations Peacekeeping: Documents and Commentary. 4 vols. Oxford: Oxford University Press, 1969–1981.

  Four classic reference works published in the early days of UN peacekeeping. The documents are categorized conveniently into subject headings, e.g., “Functions and Mandate,” Peac

• Howard, Jessica, and Bruce Oswald, eds. The Rule of Law on Peace Operations. The Hague: Kluwer Law International, 2002.

  This book contains the edited papers from the conference organized by the Asia–Pacific Centre for Military Law on “The Rule of Law on Peace Operations” in 2002. The presenters focused on key legal issues relevant to the planning, management, and conduct of peacekeeping operations and tried to generate valuable and relevant practical information on the rule of law in peacekeeping operations. Available online.

• Howe, Brendan, Boris Kondoch, and Otto Spijkers. “Normative and Legal Challenges to UN Peacekeeping Operations.” Journal of International Peacekeeping 19.1–2 (2015): 1–31.

  DOI: 10.1163/18754112-01902001

  This overview discusses the normative and legal framework for modern UN peacekeeping operations. The authors not only address traditional legal issues but also consider the application of normative concepts, such as the Responsibility to Protect (R2P), and the Protection of Civilians in peacekeeping operations.

• Kondoch, Boris, ed. International Peacekeeping. Aldershot, UK: Ashgate, 2007.

  Contains legal articles of central importance in the field of international peacekeeping. Includes contributions by such scholars as Borhan Amrallah, Katherine E. Cox, Diane Orentlicher, Alexander Orakhelashvili, Ray Murphy, Peter Rowe, Carsten Stahn, Heike Spieker, Daphna Shraga, Nigel D. White, and others.

• Labuda, Patryk I. “Peacekeeping and Peace Enforcement.” In Max Planck Encyclopedia of Public International Law. Rüdiger Wolfrum, general ed. Updated September 2015.

  Solid introductory overview to legal aspects of peacekeeping and peace enforcement. Highly recommended reading not only for experts but also for students of this subject.

• Oswald, Bruce, Helen Durham, and Adrian Bates, eds. Documents on the Law of UN Peace Operations. Oxford: Oxford University Press, 2010.

  A very useful selection of key legal documents and guidelines related to peace operations including landmark Security Council resolutions and important International Court of Justice cases. The editors explain the relevance of each document and include excerpts of the documents.

• Schachter, Oscar. “The Uses of Law in International Peace-Keeping.” Virginia Law Review 50 (1964): 1096–1114.

  DOI: 10.2307/1071462

  Excellent legal scholarship. In-depth discussion of the function of law in peacekeeping operations.

• White, Nigel D. “Peacekeeping and International Law.” In The Oxford Handbook of United Nations Peacekeeping Operations. Edited by Joachim Koops, Norrie MacQueen, Thierry Tardy, and Paul D. Williams, 43–59. Oxford: Oxford University Press, 2016.

  A short but concise legal analysis of international peacekeeping, written by the editor-in-chief of the Journal of Conflict & Security Law.