"Documents on the Law of UN Peace Operations," by Bruce Oswald, Helen Durham, and Adrian Bates
Published by Oxford UP (2010)
Reviewed by His Serenity, the Book Reviews Editor
As United Nations peace operations have increased in number and ambition since 1990, international law governing them has grown increasingly important. This includes particularly law and practice of the United Nations. The legal relationships and terms governing the deployment of forces under a United Nations Security Council mandate are complex as to many issues; these complexities are driven, among other things, by the fact that the UN, lacking its own forces, operates through the military forces of member states, and so even such basic questions as command authority and command coordination among several different states’ militaries providing forces are difficult to untangle.
Over the decades, ways of working through such issues have gradually emerged, but many of them remain informal, and even ones that are formalized are often done through bilateral agreements between the UN and the country where such forces are sent, and bilateral agreements between the UN and the countries contributing forces. For that matter, even the legal nature of a peace operation from the standpoint of jus ad bellum raises important mission issues: is it a peacekeeping mission, for example, in which the peacekeepers do not have a mandate for offensive operations? Or, alternatively, is it an enforcement mission, with a mandate from the UNSC to undertake hostilities as required to reach certain ends, such as restoring security and order by quelling one or another non-state actor organized armed group? What is the legal status of UN-authorized forces in a conflict with respect to the law of armed conflict, jus in bello, particularly in relation to the enemy? Can UN forces, for example, be lawfully targeted by adversary forces under the jus in bello "combatant's privilege" — and does it matter in answering the question whether those UN forces are "neutral" peacekeeping forces or, instead, whether are they (some form of) "peace enforcement" forces authorized to undertake hostilities?
Questions about discipline of individual soldiers, who act as part of a UN mission but who are in the first place soldiers in some country’s army, have been in the news over in past years, on account of acts of indiscipline such as rape; what is the mechanism by which to make them accountable? In the case of enforcement missions that might undertake hostilities, what are the rules of targeting — are these rules simply those of each force-contributing military, and what are the implications, given that there are significant differences in the interpretations of those rules even among NATO states, let alone other countries that contribute UN troops? It would be interest to many law of armed conflict lawyers to know what the UN regards as lawful with respect to targeting matters, whether explicitly or implicitly by not raising any contrary voice with respect to the targeting practices of individual states contributing forces. Similarly with regards to detention and a host of other basic terms of operational law of armed conflict for which states often have differing interpretations.
The detention question was raised a while back on Lawfare, in a 2013 post by Ashley Deeks regarding UN “standard operating procedures to govern detentions that arise in the course of UN operations.” She observed that with respect to UNSC authorized operations in Somalia, UNSC Resolution 2124 (November 12, 2013) asked that the African Union Mission in Somalia “establish Standard Operation Procedures for the handover of any detainees.” As she said in that post, it appears that “such a document exists in draft but is not public and has never been finalized.” So far as I am aware, this remains the situation today. Ashley also raised a fundamental question about operational application of the law of armed conflict in another Lawfare post in 2013 — “how does the UN define direct participation in hostilities,” with reference to UN missions tasked with “offensive actions” which, of course, raise issues of targeting issues that might turn on an interpretation of “direct participation in hostilities.”
Documents on the Law of UN Peace Operations is exactly what the title says, a sourcebook of documents covering UN peace operations. It is a reference work and only likely to wind up in libraries — hardcover edition is $200 (although used paperback editions can be had for around $20). It has a sensible organization of its contents:
- Establishment and Management of UN Peace Operations
- Conduct of UN Peace Operations
- Accountability of UN Peacekeepers
- Key ICJ Cases (on liability and immunities of the UN in peace operations, primarily)
- Mission specific documents
The commentary accompanying the documents is useful, situating the documents within both their origins and the ways in which they are utilized from a functional standpoint. What this volume lacks, of course, are documents that would offer the UN’s views and the reasoning of its lawyers and diplomats with respect to the questions Ashley has posed, and more generally the UN’s legal views on contested issues of the law of armed conflict that have embroiled many commentators with respect, for example, to US interpretations and practices in its uses of force since 9/11. To be sure, one could scarcely expect the editors to remedy that, given that such documents have not been released, and it is not clear the extent to which the UN institutionally has tried to answer such questions for itself. Such issues aside, this is a useful reference volume for specialized lawyers, diplomats, and academics as to UN peace operations.