International Relations Normative Aspects of International Peacekeeping
by
Boris Kondoch
  • 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.

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    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.

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

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    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).

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  • 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.

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    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.

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

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    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.

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  • 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.

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    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.

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

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    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

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

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    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.

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  • 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: 10.1163/18754112-01902001Save Citation »Export Citation »

    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.

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

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    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.

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

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    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.

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

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    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.

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

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

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  • 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.

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

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The Constitutional Basis and the Traditional Principles of International Peacekeeping

In the early days of UN peacekeeping, the legality and precise constitutional basis of peacekeeping was hotly debated. For a short summary of this controversy, see the introduction in Kondoch 2007 (cited under General Overviews), pp. 15–17. In the early 21st century, the constitutionality of consensual peacekeeping operations and missions, established under UN Charter Chapter VII, Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression, is no longer questioned. Even though the UN Charter does neither explicitly authorize peacekeeping operations nor mention peacekeeping, international lawyers agree that the legal basis for consensual peacekeeping operations falls between Chapter VI, Pacific Settlement of Disputes, and Chapter VII. However, scholars disagree as to which Charter provisions are exactly the legal basis of international peacekeeping. Consensual peacekeeping operations are based on three principles: (1) the consent of the host state is required, (2) peacekeeping operations should be impartial, and (3) the use of force is permitted only in the case of self-defense. These principles are explained well in Gray 1996 and Tsagourias 2006.

  • Gray, Christine D. “Host-State Consent and United Nations Peacekeeping in Yugoslavia.” Duke Journal of Comparative & International Law 7.1 (1996): 241–270.

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    A case study on various aspects of consent in regard to the UN Protection Force (UNPROFOR) established during the 1990s.

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  • Tsagourias, Nicholas. “Consent, Neutrality/Impartiality and Self-Defence in Peacekeeping: Their Constitutional Dimension.” Journal of Conflict and Security Law 11.3 (2006): 465–482.

    DOI: 10.1093/jcsl/krl016Save Citation »Export Citation »

    A brief but very useful article on the trinity principles of consent, neutrality/impartiality, and the use of force in self-defense.

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International Humanitarian Law

One of the oldest legal disputes concerned the application of International Humanitarian Law (IHL) to UN peacekeeping operations. However, in the early 21st century, the common agreement is that UN peacekeeping operations may be bound by international humanitarian law when certain conditions are met. This has been clarified by the UN Secretary-General’s 1999 bulletin, “Observance by United Nations Forces of International Humanitarian Law.” The background to the controversy and the remaining challenges to apply specific rules of IHL to peacekeeping operations are discussed in Klappe 2014, Murphy 2003, and Zwanenburg 2015.

  • International Institute of Humanitarian Law in collaboration with the International Committee of the Red Cross. International Humanitarian Law, Human Rights and Peace Operations. Proceedings of the 31st Round Table on Current Problems of International Humanitarian Law, San Remo, 4–6 September 2008.

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    This is a report on the various aspects of the IHL in regard to peacekeeping operations, covering a range of topics from the general applicability of IHL to peace operations to the law of occupation and the role of peace operations in the repression of IHL violations. Available online.

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  • Klappe, Ben F. “The Law of International Peace Operations.” In The Handbook of International Humanitarian Law. 3d ed. Edited by Dieter Fleck, 635–667. Oxford: Oxford University Press, 2014.

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    A well-written summary of legal rules including commentary explaining which rules of IHL apply to peace operations.

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  • Murphy, Ray. “United Nations Military Operations and International Humanitarian Law: What Rules Apply to Peacekeepers?” Criminal Law Forum 14.2 (2003): 153–194.

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    A key article on the topic written by one of the important scholars in the field who also worked as a peacekeeper for the UN.

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  • Seyersted, Finn. United Nations Forces: In the Law of Peace and War. Leiden, The Netherlands: A.W. Sijthoff, 1966.

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    This early study concerns the application of the laws of war to UN forces.

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  • Zwanenburg, Marten. United Nations and International Humanitarian Law. In Max Planck Encyclopedia of Public International Law. Rüdiger Wolfrum, general ed. Updated October 2015.

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    Provides an excellent analysis of the legal issues concerning the application of IHL to military forces under the authority of the UN.

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International Human Rights Law

It is widely accepted that all personnel serving in UN peacekeeping operations have a responsibility to protect and promote human rights, even though no international human rights instrument explicitly deals with the applicability of human rights law to UN peacekeeping operations. According to the United Nations Peacekeeping Operations Principles and Guidelines of 2008 (the “Capstone Doctrine”), “International human rights law is an integral part of the normative framework for United Nations peacekeeping operations” (p. 14). Several current UN peacekeeping operations have a human rights component, and specific human rights obligations are explicitly in the mandate or in UN regulations. In practice, there may be uncertainty when and which human rights apply to UN peacekeeping operations. In a groundbreaking work, Larsen 2012 addresses the question of whether sending states, through the participation of their military forces, have legal duties under the European Convention on Human Rights (ECHR) or the International Convenant on Civil and Political Rights (ICCPR) to respect, protect, or secure the human rights of the local population in a peacekeeping environment. Katayanagi 2002 argues that “for human rights functions to be effective, the mandate should be explicitly provided for in legal documents and the functions need to cover not only the investigation and monitoring of human rights violations, but also institution-building.”

  • Katayanagi, Mari. Human Rights Functions of United Nations Peacekeeping Operations. The Hague: Nijhoff, 2002.

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    The author examines the human rights functions of peacekeeping operations by focusing on the cases of El Salvador, Cambodia, Rwanda, and the former Yugoslavia.

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  • Larsen, Kjetil Mujezinović. The Human Rights Treaty Obligations of Peacekeepers. Cambridge, UK: Cambridge University Press, 2012.

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    An important study that discusses the legal obligations under human rights treaties toward the local populations within the context of UN peacekeeping operations. Larsen convincingly argues against the claim that the application of human rights could jeopardize the effectiveness of the operations and rejects the argument that there is tension between the maintenance of peace and security and the protection of human rights.

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  • Murphy, Ray, and Katarina Månsson, eds. Peace Operations and Human Rights. London and New York: Routledge, 2008.

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    This collection of essays deals with various aspects of human rights in peace operations. The authors cover a wide range of topics including the way in which to operationalize human rights standards effectively, the responsibility to protect under human rights law, and the role of model codes for post-conflict criminal justice.

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  • Verdirame, Guglielmo. The UN and Human Rights. Cambridge, UK: Cambridge University Press, 2011.

    DOI: 10.1017/CBO9780511862687Save Citation »Export Citation »

    An outstanding contribution that examines issues of the compliance of the UN with human rights and accountability mechanisms. Of particular interest are chapter 5 (UN peacekeeping operations) and chapter 6 (International administrations), which deal with UN peacekeeping operations and international administrations by the UN.

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Peacekeeping and the Use of Force

The use of force has evolved conceptually since the first peacekeeping operation in 1948. If not otherwise mandated under Chapter VII of the UN Charter, peacekeepers could only use force in self-defense. However, over time, the concept of self-defense changed and adapted to new challenges. The UN became occasionally involved in operations, which went beyond self-defense and included robust action. Since the beginning of the 21st century, the Security Council has authorized many so-called robust peacekeeping operations under Chapter VII. As pointed out by Zacklin 2005, “the distinction between peacekeeping and peace-enforcement, between ‘Chapter VI’ and ‘Chapter VII’ operations, has increasingly become ‘blurred’” (p. 91). Findlay 2002 and Sloan 2011 trace the developments concerning the use of force in UN peacekeeping operations and critically evaluate the trend toward the militarization of peacekeeping in the 21st century. In the early 21st century, the use of force may be permitted in self-defense and in accordance with the mandate; for further explanations, see Gill, et al. 2017 (cited under General Overviews), pp. 145–156. An innovative but controversial development was the establishment of the so-called Intervention Brigade within the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO). By Security Council resolution 2098 of 2013, the Security Council authorized the brigade to “to carry out targeted offensive operations . . . with the responsibility of neutralizing armed groups” (see paragraph 12). Key legal issues concerning the unprecedented Intervention Brigade are discussed by Oswald 2013 and Sheeran and Case 2014. The “robust turn” in UN peacekeeping operations is not without critics, because it may lead to unintended consequences that could present significant principled and practical challenges (Hunt 2017).

  • Findlay, Trevor. The Use of Force in UN Peace Operations. New York: Oxford University Press, 2002.

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    Provides a valuable record of the history of the use of force in UN peacekeeping operations from Sinai in the 1950s to East Timor in 2001 by tracing traditional peacekeeping principles, in particular, the constraints on the use of force except in self-defense and the way in which these have evolved, both in practice and in UN mandates.

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  • Hunt, Charles T. “All Necessary Means to What Ends? The Unintended Consequences of the ‘Robust Turn’ in UN Peace Operations.” International Peacekeeping 24.1 (2017): 108–131.

    DOI: 10.1080/13533312.2016.1214074Save Citation »Export Citation »

    An excellent article that warns of the unintended consequences of the robust change and development in peace operations.

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  • Khalil, Mona Ali. “Legal Aspects of the Use of Force by the United Nations Peacekeepers for the Protection of Civilians.” In Protection of Civilians. Edited by Haidi Willmot, Ralph Mamiya, Scott Sheeran, and Marc Weller, 205–223. Oxford: Oxford University Press, 2016.

    DOI: 10.1093/acprof:oso/9780198729266.003.0010Save Citation »Export Citation »

    Analyzes, among other issues, whether the failure to protect is related to legal considerations, e.g., confusion regarding legal terminology; undue reliance on the primary responsibility of the host state; misunderstanding of the respective roles of the Special Representative of the Secretary-General and the Force Commander; inhibition to use force arising from fear of accountability or loss of protected status, etc.

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  • Müller, Lars. “The Force Intervention Brigade.” Journal of Conflict and Security Law 20.3 (2015): 359–380.

    DOI: 10.1093/jcsl/krv005Save Citation »Export Citation »

    Critical assessment of the wider use of force on the principles of peacekeeping.

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  • Oswald, Bruce. “The Security Council and the Intervention Brigade: Some Legal Issues.” ASIL Insights 17.15 (2013).

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    Addresses the question of whether the Intervention Brigade should be considered legally a party to the conflict and discusses the meaning of the term “to neutralize” non-state armed actors. Available online.

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  • Sheeran, Scott. “The Use of Force in United Nations Peace-keeping and Governance Operations.” In The Oxford Handbook of the Use of Force in International Law. Edited by Marc Weller, 347–374. Oxford: Oxford University Press, 2015.

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    Discusses not only the historical and conceptual development of the use of force in peacekeeping operations but also the normative framework applicable to them.

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  • Sheeran, Scott, and Stephanie Case. The Intervention Brigade: Legal Issues for the UN in the Democratic Republic of the Congo. New York: International Peace Institute, 2014.

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    This report not only discusses main legal aspects in regard to the Intervention Brigade but also stresses the importance that any debate concerning peacekeeping should not be confined only to policy and operational matters but also have a strong foundation in international law. Available online.

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  • Sloan, James. The Militarisation of Peacekeeping in the Twenty-First Century. Oxford: Hart, 2011.

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    Sloan critically evaluates the militarization of 21st-century peacekeeping operations, including those specifically in Sierra Leone, the Democratic Republic of the Congo, Liberia, Côte d’Ivoire, Haiti, and the Darfur region of the Sudan. The author concludes that many of these troops are ill-suited to the enforcement-type tasks being asked of them because they are often under-funded, under-equipped, and poorly managed.

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  • Zacklin, Ralph. “The Use of Force in Peacekeeping Operations.” In The Security Council and the Use of Force: Theory and Reality, A Need for Change? Edited by Niels Blokker and Nico Schrijver, 91–106. Leiden, The Netherlands, and Boston: Martinus Nijhoff, 2005.

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    A short overview on legal aspects related to the use of force in UN peacekeeping operations written by the former UN Assistant Secretary-General for Legal Affairs.

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The Protection of UN Peacekeeping Personnel

In 2018, UN Under-Secretary-General for Peacekeeping Operations Jean-Pierre Lacroix expressed concern that UN peacekeepers are facing increasingly grave threats. Every year, there have been frequent media reports about malicious attacks against the UN peacekeepers. According to the UN, at least seventy-one UN personnel and associates, including fifty-three peacekeepers, were killed during 2017. From the perspective of international law, the host state has the main responsibility for the security and safety of UN personnel. Specific obligations can be found in the 1994 Safety Convention and its 2005 Protocol, as well as in the Status of Forces Agreements (SOFAs) or Status of Missions Agreements (SOMAs). General protection is provided by human rights law and international humanitarian law. Valuable starting points for understanding the legal protection afforded to UN peacekeepers are Greenwood 1996 and Engdahl 2007.

  • Engdahl, Ola. Protection of Personnel in Peace Operations. Leiden, The Netherlands: Nijhoff, 2007.

    DOI: 10.1163/ej.9789004154667.i-360Save Citation »Export Citation »

    Engdahl provides a detailed exploration of the legal issues related to the protection afforded under international law to UN peacekeeping by making specific reference to the 1994 Convention on the Safety of United Nations and Associated Personnel (Safety Convention) and the 2005 Optional Protocol.

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  • Greenwood, Christopher J. “Protection of Peacekeepers.” Duke Journal of Comparative & International Law 7.1 (1996): 185–207.

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    In-depth discussion of the protection regime under international law with a particular focus on the UN Safety Convention. Greenwood explains the difficulties of applying the convention to scenarios when UN peacekeeping personnel become involved in fighting but it is unclear whether they have become engaged as combatants in an international armed conflict.

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Peacekeeping Operations Conducted by Regional Organizations and Arrangements

Although, in general, there is a plethora of academic literature that addresses UN peacekeeping operations from normative perspectives, the role of regional organizations and arrangements has remained an understudied area of research. Regional organizations and groups of states play an important role in peacekeeping and may also establish peacekeeping operations based on the consent of the parties. However, if these organizations become engaged in enforcement action, the authorization by the UN Security Council is required. Gray 2018 is an updated publication on the topic, comprehensively covering operations conducted by the AU, the Economic Community of West African States (ECOWAS), and other organizations. An excellent introduction to EU operations has been written by Naert 2011. As shown by Burke 2017 on the AU’s response to sexual exploitation and abuse (SEA) allegations and White and MacLeod 2008 on the EU and private military contractors, regional organizations often face similar legal challenges like those of UN peacekeeping operations.

  • Burke, Róisín. “Due Diligence and UN Support for African Union Security Forces: Peacekeeper Sexual Violence Exploitation and Abuse.” Journal of International Peacekeeping 21 (2017): 1–61.

    DOI: 10.1163/18754112-02101001Save Citation »Export Citation »

    As of the mid-2010s, this is the only publication that examines the AU’s policy and regulatory frameworks in regard to SEA cases.

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  • Gray, Christine. “Regional Peacekeeping and Enforcement Action.” In International Law and the Use of Force. 4th ed. By Christine Gray, 387. Oxford: Oxford University Press, 2018.

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    An excellent overview on the role of regional organizations in peacekeeping operations, including the AU and the ECOWAS.

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  • McCoubrey, Hilaire, and Justin Morris. Regional Peacekeeping in the Post-Cold War Era. The Hague: Kluwer Law International, 2000.

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    This is a critical examination of the potential and the limitations of regional organizations and arrangements in peacekeeping operations from the perspective of international law and international relations.

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  • Myjer, E. P. J., and N. D. White. “Peace Operations Conducted by Regional Organizations and Arrangements.” In The Handbook of the International Law of Military Operations. 2d ed. Edited by Terry D. Gill and Dieter Fleck, 185–209. Oxford: Oxford University Press, 2015.

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    The authors examine, from a legal perspective, the concept of regional organizations and look at concrete examples of organizations that qualify as regional organizations.

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  • Naert, Frederik. “Legal Aspects of EU Military Operations.” Journal of International Peacekeeping 15.1–2 (2011): 218–242.

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    A short overview on EU military crisis management operations.

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  • White, Nigel D., and Sorcha MacLeod. “EU Operations and Military Contractors: Issues of Corporate and Institutional Responsibility.” European Journal of International Law 19.5 (2008): 965–988.

    DOI: 10.1093/ejil/chn067Save Citation »Export Citation »

    The authors discuss legal problems regarding the international legal responsibilities arising from the use of private military contractors in EU peace operations.

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  • Wippman, David. “Military Intervention, Regional Organizations and Host-state Consent.” Duke Journal of Comparative & International Law 7.1 (1996): 209–239.

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    A concise and critical consideration of the principle of consent in the context of regional organizations.

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International Policing

Police play an important role in UN peacekeeping. As of 2018, more than 11,000 UN police officers were deployed in eleven UN peacekeeping operations. The use of police in UN peacekeeping goes back to the 1960s when the first police officers were sent to missions in the Congo and in Cyprus. However, there has been relatively little research on legal issues related to police and international peacekeeping operations. An exception is McCormack 2011, the special issue of the Journal of International Peacekeeping on legal challenges for international policing. The authors in this special issue discuss, inter alia, the legal basis for bilateral and multilateral police deployments, the applicability to human rights standards, and accountability in international policing.

  • Decker, D. Christopher. “Enforcing Human Rights: The Role of the UN Civilian Police in Kosovo.” International Peacekeeping 13.4 (2006): 502–616.

    DOI: 10.1080/13533310600988747Save Citation »Export Citation »

    A critical case study on the deployment on UN civilian police in Kosovo.

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  • McCormack, Tim, ed. “Symposium Issue on Legal Challenges for International Policing.” Journal of International Peacekeeping 15.1–2 (2011).

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    Five articles in this issue (pp. 1–117) analyze international policing from different angles (legal challenges, the legal basis for bilateral and multilateral police deployments, a rule of law perspective on transnational policing and human development, the applicability of human rights standards, and accountability to international policing).

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UN Administrations

Interesting case studies for those interested in UN peacekeeping are the UN administrations of East Timor and Kosovo that raised new questions from the perspective of international law. The administration of territories is not a new phenomenon. Earlier examples include the administration of the Saar Territory by the League of Nations (1920–1935) and the UN administrations in Cambodia and Eastern Slavonia. However, the scope of the responsibilities and the range of the mandate given to the United Nations Transitional Administration (UNTAET) and the United Nations Interim Administration in Kosovo (UNMIK) were unprecedented in the history of UN peacekeeping operations because the UN was authorized to exercise all legislative and executive powers over both territories, including the administration of justice. Excellent starting points for a better understanding of UN administrations are Chesterman 2004, Stahn 2008, and Wilde 2008.

  • Chesterman, Simon. You, the People: The United Nations, Transitional Administration, and State-Building. Oxford: Oxford University Press, 2004.

    DOI: 10.1093/0199263485.001.0001Save Citation »Export Citation »

    A concise and yet important study of the UN’s experience in transitional administrations that focuses on five key issues: peace and security, the role of the UN as government, establishing the rule of law, economic reconstruction, and exit strategies.

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  • Kondoch, Boris. “The United Nations Administration of East Timor.” Journal of Conflict and Security Law 6.2 (2001): 245–265.

    DOI: 10.1093/jcsl/6.2.245Save Citation »Export Citation »

    Analyzes the legal basis and the legal limitations on the power of the Security Council to establish UN interim administrations under Chapter VII of the UN Charter.

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  • Stahn, Carsten. The Law and Practice of International Administration: Versailles to Iraq and Beyond. Cambridge, UK: Cambridge University, 2008.

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    Stahn provides a detailed exploration of legal problems in regard to the administration of territories since the League of Nations. The author also examines the law and practice by the UN’s peacekeeping experience in governing Kosovo and East Timor.

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  • Wilde, Ralph. International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away. Oxford: Oxford University Press, 2008.

    DOI: 10.1093/acprof:oso/9780199274321.001.0001Save Citation »Export Citation »

    Another important study that establishes international territorial administration as a policy option. Wilde covers the involvement of international organizations in international territorial administration from the League of Nations to UNTAET and UNMIK.

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Accountability and International Responsibility in Peacekeeping Operations

Accountability mechanisms for human rights violations in the context of UN peacekeeping operations have sparked much academic debate in recent years. In general, one may distinguish between different forms of accountability: administrative, financial, political, and legal. “International responsibility” in the context of peacekeeping operations refers to the legal consequences arising from wrongful acts committed during such operations. The rules governing the responsibility of international organizations have been codified by the International Law Commission in the Articles on the Responsibility of International Organizations (ARIO) adopted in 2011. International wrongful acts may be encountered during any peacekeeping operation. These lead to complicated questions under international law, such as who bears responsibility, and who can be held liable? Is it the international organization, the individual peacekeeper, the host state or the sending state? Whereas Zwanenburg 2005 discusses issues related to the accountability issues related to peace support operations under the command and control of the UN and the North Atlantic Treaty Organization, Lundahl 2013 analyzes the remedy gap for individual victims in regard to the Haiti Cholera case. A broad overview on the topic can be found in Kondoch and Zwanenburg 2015.

  • Kondoch, Boris, and Marten Zwanenburg. “International Responsibility and Military Operations.” In The Handbook of the International Law of Military Operations. 2d ed. Edited by Terry D. Gill and Dieter Fleck, 559–577. Oxford: Oxford University Press, 2015.

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    The authors provide an overview on the legal framework regarding the rules of international responsibility to military operations.

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  • Lundahl, Katarina. “The United Nations and the Remedy Gap: The Haiti Cholera Dispute.” Die Friedens-Warte 88.3–4 (2013): 77–117.

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    Critically examines the inadequate dispute settlement mechanisms in UN peacekeeping operations and uses the Haiti Cholera dispute as an example.

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  • Schmalenbach, Kirsten. Die Haftung Internationaler Organisationen: Im Rahmen von Militäreinsätzen und Territorialverwaltungen. Frankfurt: Lang, 2004.

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    A comprehensive study on the liability practice of international organizations in regard to military operations and the administration of territories. Contains a summary in English.

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  • Spikjers, Otto. “Questions of Legal Responsibility for Srebrenica before the Dutch Courts.” Journal of International Criminal Justice 14.4 (2016): 819–843.

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    A very good analysis on the litigation in the Dutch civil and criminal courts in respect to the Srebrenica massacre explaining the divergent approaches taken by Dutch courts to immunity of UN peacekeepers, state responsibility, and individual criminal responsibility.

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  • Stöckle, Philipp. “Victims Caught between a Rock and a Hard Place.” Die Friedens-Warte 88.3–4 (2013): 119–141.

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    Draws attention to legal obstacles associated with compensation claims against troop-contributing states.

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  • Zwanenburg, Marten. Accountability of Peace Support Operations. Leiden, The Netherlands: Nijhoff, 2005.

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    A pioneering work on the responsibility of states and international organizations for violations of international humanitarian law in peacekeeping operations. The primary focus is on missions conducted by the UN and NATO.

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Accountability and International Criminal Responsibility of Peacekeepers

The responsibility of international law of an international organization or state for wrongful acts committed during a peacekeeping operation needs to be distinguished from the individual criminal responsibility of peacekeepers. Members of peacekeeping operations bear individual criminal responsibility for serious breaches of international law, such as war crimes, crimes against humanity, genocide, and torture. However, as pointed out by Burke 2011, Odello 2010, and Wills 2014, holding UN peacekeepers accountable has remained highly problematic. Although troops generally enjoy complete immunity from the host state under a Status of Forces agreement, non-military peacekeeping personnel enjoy functional immunity in the host state according to the Convention on the Privileges and Immunities of the United Nations (1946). In practice, troop-contributing countries are often unwilling or reluctant to prosecute their own peacekeepers.

  • Burke, Róisín, “Status of Forces Deployed on UN Peacekeeping Operations: Jurisdictional Immunity.” Journal of Conflict and Security Law 16.1 (2011): 63–104.

    DOI: 10.1093/jcsl/krq022Save Citation »Export Citation »

    By offering an analysis of jurisdictional immunity, Burke questions the nature and extent of immunities required by UN peacekeeping operations.

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  • O’Brien, Melanie. “Prosecutorial Discretion as an Obstacle to Prosecution of United Nations Peacekeepers by the International Criminal Court: The Big Fish/Small Fish Debate and the Gravity Threshold.” Journal of International Criminal Justice 10.3 (2012): 525–545.

    DOI: 10.1093/jicj/mqs040Save Citation »Export Citation »

    Evaluates whether the International Criminal Court (ICC) could be a potential forum for the prosecution of crimes by focusing on prosecutorial discretion as an obstacle to prosecution.

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  • Odello, Marco. “Tackling Criminal Acts in Peacekeeping Operations.” Journal of Conflict and Security Law 15.2 (2010): 347–391.

    DOI: 10.1093/jcsl/krq013Save Citation »Export Citation »

    A good summary of the different efforts to improve accountability for criminal behavior by UN peacekeepers.

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  • Wills, Siobhán. “Continuing Impunity of Peacekeepers: The Need for a Convention.” Journal of International Humanitarian Legal Studies 4.1 (2014): 47–80.

    DOI: 10.1163/18781527-00401001Save Citation »Export Citation »

    A critique of the current approach whereby crimes committed by UN peacekeepers are addressed through the domestic legal systems of the troop-contributing states. Wills argues in favor of adopting a special UN convention that would ensure peacekeepers are held accountable.

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Sexual Exploitation and Abuse by Peacekeepers

Although the UN expects all peacekeeping personnel to adhere to the highest standards of behavior and conduct, UN peacekeepers have been accused of sexual abuse and exploitation since the 1990s. Since 2003, the UN has taken various steps in addressing sexual abuse and exploitation, among other issues, through the Secretary-General, the Security Council, the General Assembly, the Office of the Special Coordinator on Improving the UN Response to Sexual Exploitation and Abuse, and the UN Office of Internal Oversights. A large number of measures are already in place, such as personnel training, personnel vetting, standardized procedures for handling allegations, and victim support. The UN has included gender advisers and gender focal points in UN peacekeeping missions and has increased efforts to recruit female UN peacekeepers. Peacekeepers also receive gender training before and while on missions. In 2003, then-UN Secretary-General Kofi Annan issued a special bulletin titled “Special Measures for Protection from Sexual Exploitation and Sexual Abuse,” which applies to all UN peacekeeping operations. The bulletin prohibits almost all kinds of sexual activity, including sex with minors, sex in exchange for money, and employment, goods or services for sex, such as sexual favors or other forms of humiliating, degrading, or exploitative behavior. It also discourages “sexual relationships between UN staff and beneficiaries of assistance, since they are based on inherently unequal power dynamics (Secretary-General’s Bulletin: Special measures for protection from sexual exploitation and sexual abuse (ST/SGB/2003/13) of 9 October 2003, see section 3). In 2016, the UN Security Council adopted Resolution 2272, the first resolution addressing the problem of sexual abuse and exploitation by UN peacekeepers. Despite some laudable efforts taken by the UN, the issue of sexual exploitation and abuse has remained highly problematic. In the evaluation of many commentators, little or not enough progress has actually occurred (see Burke 2014, Kihara-Hunt 2017, and Simic 2012).

  • Burke, Róisín. Sexual Exploitation and Abuse by UN Military Contingents. Leiden, The Netherlands: Brill Nijhoff, 2014.

    DOI: 10.1163/9789004208483Save Citation »Export Citation »

    A well-structured analysis that comprehensively identifies the legal, conceptual, and practical impediments to address sexual exploitation and abuse by UN military personnel.

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  • Durch, William, Katherine N. Andrews, and Madeline L. England. Improving Criminal Accountability in United Nations Peace Operations. Stimson Center Report 65. Washington, DC: Henry L. Stimson Center, 2009.

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    In order to enhance the criminal justice system for non-military UN mission personnel, the authors suggest according primary jurisdiction to the sending states or states of nationality under certain conditions or assigning criminal responsibility for criminal investigation and prosecution to a collaborative criminal justice system run by the UN and the host state. Available online.

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  • Grady, Kate. “Sex, Statistics, Peacekeepers and Power: UN Data on Sexual Exploitation and Abuse and the Quest for Legal Reform.” Modern Law Review 79.6 (2016): 931–960.

    DOI: 10.1111/1468-2230.12225Save Citation »Export Citation »

    A unique article that evaluates the use of statistics of sexual exploitation and abuses made against UN peacekeepers and the way in which these personnel undermine the quest for improved legal arrangements.

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  • Kihara-Hunt, Ai. Holding UNPOL to Account: Individual Criminal Accountability of United Nations Police Personnel. Leiden, The Netherlands: Brill Nijhoff, 2017.

    DOI: 10.1163/9789004328815Save Citation »Export Citation »

    This research considers alleged crimes committed by members of UN police, whether deployed as individual police officers or in formed police units. Kihara-Hunt discusses, among others, whether immunity is a potential legal barrier. The author also raises the important question of whether the UN as an organization, sending or host states have a legal duty to investigate and prosecute such crimes.

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  • Simic, Olivera. Regulation of Sexual Conduct in UN Peacekeeping Operations. Berlin and Heidelberg, Germany: Springer, 2012.

    DOI: 10.1007/978-3-642-28484-7Save Citation »Export Citation »

    A critical examination of the UN Secretary-General’s Bulletin on Special Measures for Protection from Sexual Exploitation and Sexual Abuse of 2003.

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Norms of Protection: The Responsibility to Protect and the Protection of Civilians

The Protection of Civilians (POC) has become one of the core functions of modern peacekeeping operations. The first mission with an explicit mandate to protect civilians was the UN Mission in Sierra Leone (UNAMSIL) established in 1999. Peacekeepers are authorized to use “all means” or “all necessary means” to “protect civilians under imminent threat of violence.” There are a number of challenges to the protection of civilians in peacekeeping operations, such as administrative/budgetary constraints, the lack of political will, unclear authority to act, and the lack of sufficient capacity to act. From the perspective of international law, scholars have focused, among others, on several issues. These include the historical and conceptual development of the Protection of Civilians (Willmot, et al. 2016); the different concepts of the protection of the humanitarian, human rights, and peacekeeping communities (Willmot and Sheeran 2013); and the specific obligations to protect civilians under the mandate and according to international human rights law and international humanitarian law (Wills 2009). Another normative concept closely related to the Protection of Civilians is the so-called Responsibility to Protect (R2P) (Williams 2016), which covers three sets of responsibilities—the duty to prevent, to react, and to rebuild—which become applicable in cases of genocide, crimes against humanity, war crimes, and ethnic cleansing. Hunt and Bellamy 2011 considers the three major roles for peace operations that contribute to implementing the R2P: capacity-building (assisting local authorities to build indigenous capacity to protect civilians), indirect protection (the inclusion of and assistance to civilian components with protection mandates), and direct protection (provision of civilian protection through immediate action in accordance with robust mandates). However, peacekeeping experts, such as Hassler 2010 and Tardy 2012, have been rather skeptical about the linkage between peacekeeping and the R2P.

  • Hassler, Sabine. “Peacekeeping and the Responsibility to Protect.” Journal of International Peacekeeping 14.1–2 (2010): 134–183.

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    Strongly doubts the suitability of peacekeeping operations as a tool to implement the Responsibility to Protect.

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  • Victoria Holt, Glyn Taylor, and Max Kelly, Protecting Civilians in the Context of UN Peacekeeping Operations. New York: United Nations, 2010.

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    A groundbreaking study that evaluates successes, setbacks, and remaining challenges in respect to the protection of civilians within the context of UN peacekeeping missions. Available online.

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  • Hunt, Charles T., and Alex Bellamy. “Mainstreaming the Responsibility to Protect in Peace Operations.” Civil Wars 13.1 (2011): 1–20.

    DOI: 10.1080/13698249.2011.555688Save Citation »Export Citation »

    The authors discuss the role of peace operations as one of the most significant tools for implementing the international community’s commitment to the responsibility to protect.

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  • Tardy, Thierry. “The Dangerous Liaisons of the Responsibility to Protect and the Protection of Civilians in Peacekeeping Operations.” Global Responsibility to Protect 4 (2012): 424–448.

    DOI: 10.1163/1875984X-00404003Save Citation »Export Citation »

    A thought-provoking article that warns of the issue-linkage between the responsibility to protect and the protection of civilians.

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  • Williams, Paul. “The R2P, Protection of Civilians, and UN Peacekeeping Operations.” In The Oxford Handbook of the Responsibility to Protect. By Alex J. Bellamy and Tim Dunne, 524–544. Oxford: Oxford University Press, 2016.

    DOI: 10.1093/oxfordhb/9780198753841.001.0001Save Citation »Export Citation »

    In this thoughtful chapter 28, Williams discusses the responsibility to protect and the protection of civilians within the context of UN peacekeeping operations.

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  • Willmot, Haidi, Ralph Mamiya, Scott Sheeran, and Marc Weller, eds. Protection of Civilians. Oxford: Oxford University Press, 2016.

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    This collection of essays was written by imminent scholars and respected practitioners and addresses the protection of civilians from the perspective of international law and international relations. A must read.

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  • Willmot, Haidi, and Scott Sheeran. “The Protection of Civilians Mandate in UN Peacekeeping Operations: Reconciling Protection Concepts and Practices.” International Review of the Red Cross 95.891–892 (2013): 517–538.

    DOI: 10.1017/S1816383114000095Save Citation »Export Citation »

    This article traces the historical development of the protection of civilians’ mandates and provides a useful introduction to the legal framework for the protection of civilians by UN peacekeepers. It also explains the different concepts of protection of civilians in the humanitarian, human rights, and peacekeeping communities.

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  • Wills, Siobhán. Protecting Civilians. Oxford: Oxford University Press, 2009.

    DOI: 10.1093/acprof:oso/9780199533879.001.0001Save Citation »Export Citation »

    An often-quoted study that examines the way in which international human rights law and international humanitarian law impose obligations on UN peacekeepers and other multinational forces to protect civilians in war-torn societies.

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