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The 'Legal Pluriverse' Surrounding Multinational Military Operations$

Robin Geiß and Heike Krieger

Print publication date: 2019

Print ISBN-13: 9780198842965

Published to Oxford Scholarship Online: February 2020

DOI: 10.1093/oso/9780198842965.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 28 September 2020

UN Security Council Resolutions as a Legal Framework for Multinational Military Operations

UN Security Council Resolutions as a Legal Framework for Multinational Military Operations

Chapter:
(p.267) 13 UN Security Council Resolutions as a Legal Framework for Multinational Military Operations
Source:
The 'Legal Pluriverse' Surrounding Multinational Military Operations
Author(s):

Pia Hesse

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198842965.003.0014

Abstract and Keywords

The chapter examines UN Security Council resolutions as a legal framework for multinational military operations. The author argues that obligations that derive from Security Council mandates may put constraints on how force is used. However, she also underlines that the Security Council sometimes even takes decisions that deviate from IHL rules. Whereas in very few instances concerns were raised that the Security Council authorized military enforcement action that allowed going beyond what is permitted under IHL, most Council resolutions deviating from IHL have a narrowing rather than a broadening effect. Against the background that the national transformation acts that implement Security Council enforcement measures could be challenged before domestic courts, questions arise whether the safeguards included in relation to these concrete provisions are adequate to accommodate potential infringements of rights of individuals affected by the implementation act.

Keywords:   military missions authorized by the UN Security Council, separation of jus ad bellum and jus in bello, ‘threat to the peace’ under Article 39 of the UN Charter, measures under Articles 42 of the UN Charter, enforcement of international humanitarian law, clarity and flexibility of mission mandates, robust peacekeeping

1. Introduction

Multinational military operations are in many cases established on the basis of a United Nations Security Council mandate. As the Council continues to expand its purview by classifying more and more situations and phenomena as threats to the peace within the meaning of Article 39 UN Charter,1 the diversity of possible and actual theatres of operation for multinational military operations grows, too. The spectrum of military deployments authorized by the UN Security Council is wide. It covers robust operations with a strong military focus2 as well as more defensive operations mandated to oversee a ceasefire agreement.3 Whereas some operations are designed to address specific security issues such as maritime piracy4 or migrant trafficking,5 others have a mandate encompassing a variety of different tasks,6 even including the administration of entire territories.7 For some operations, the UN retains the command and control, for others it delegates its powers to member states or regional organizations.

(p.268) All these operations follow a UN Security Council resolution as their constitutive instrument. The texts of these resolutions are just as diverse as the situations the UN Security Council decides to engage in. Mandates do not only differ from operation to operation as they are tailored to meet the specific circumstances of each area of deployment, they may also change over the course of one operation. UN Security Council resolutions authorizing the use of force have evolved from terse texts comprising only few paragraphs that give the go ahead for a military mission to comprehensive legal instruments characterized by an increasing specification. While generally a higher degree of regulation on the part of the Security Council is likely to create more clarity of what the operation is expected to do, the risk of legal inconsistencies with other rules applying simultaneously increases, too.

Since resolution 678 (1990), which was referred to as a ‘carte blanche authorization’,8 the Security Council has refined its practice under Chapter VII UN Charter. Rather than confining itself to deciding whether measures are to be taken, it can be observed that the Council increasingly tends to determine how these measures are to be adopted. The Council’s practice shifting from the announcement of general political guidelines towards an ever more specific prescription of how States, as the principal addressees of Security Council resolutions, shall implement the Council’s efforts to maintain or restore international peace and security is the focus of this chapter. With this practice, the Security Council answers to states’ wishes for clear mandates which make operation planning and fulfilment easier. However, another demand often articulated by force commanders is to retain the mandate flexible in order to be able to react to changing circumstances on the ground. The following analysis will demonstrate how UN Security Council resolutions add to the ‘legal pluriverse’ of multinational military operations.

2. UN Security Council Resolutions and the Operationalization of the Mission

Practitioners involved in the planning and the implementation of a military operation are aware of the fragmented nature of the applicable law. A multitude of legal sources are relevant for such operations. However, military legal advisers would usually as a first step identify the legal basis for the initial military intervention in order to confirm the legality of the operation itself. A second and distinct task is the operationalization of the mission. Here, military lawyers generally turn to the laws of armed conflict in order to establish the legal framework within which (p.269) they could move. But depending on the actual wording of the mission mandate, Security Council resolutions might become, beyond their function as a legal requirement for the deployment of forces onto a state’s territory, a legal instrument also with respect to the measures and methods used during a mission.

On occasions, the Council has made incursions into the branch of the jus in bello. This can have both legal and practical implications. A more precisely formulated mission mandate reduces the risk of abuse by those who carry it out and makes excesses visible. However, where political objectives of a mission by means of an ever more detailed description turn into specific instructions, compatibility with the jus in bello can become an issue.

2.1 Resolutions authorizing the use of force and the jus in bello

In the absence of agreements concluded within the meaning of Article 43 UN Charter, the Security Council, pursuant to Article 42 UN Charter, authorizes the use of military force. The use of armed force, regardless of whether it is deployed in a UN-authorized or a UN-led mission, is generally subject to a number of different rules. The most relevant sets of rules for military operations are the jus ad bellum and the jus in bello. International law clearly distinguishes between the legality to resort to force in the international relations, regulated by the jus ad bellum, and the lawful means and methods of the use of force within an armed conflict, governed by the rules of the jus in bello, otherwise known as international humanitarian law (IHL) and the law of armed conflict or war. Both branches of law apply separately and concurrently.9 This means that the legality of the recourse to force under the jus ad bellum has no effect on the applicability of IHL, nor does it render conduct that is in violation of the rules of IHL lawful.10 In reverse, it means that compliance with IHL does not cure a breach of the jus ad bellum which is also expressed in preambular paragraph four of the First Additional Protocol to the 1949 Geneva Conventions (AP I). The concurrent application of the jus ad bellum and the jus in bello during a conflict is a corollary of that separation. Now, the legal pluriverse unfolds where instruments typically belonging to one of the two sets regulate matters of the other.

As recognized exception to the general prohibition of the use of force as laid down in Article 4(2) UN Charter and touching upon the sovereignty of the targeted state, Security Council resolutions authorizing the use of armed force generally fall within the ambit of the jus ad bellum, regulating the if of a military engagement. Pursuant to Articles 25, 48 UN Charter, member states are bound to carry out the (p.270) decisions taken by the Security Council. Thus, military operations must be carried out in line with the prescriptions made in Security Council resolutions. Following the aforementioned principle of concurrent application, jus in bello also needs to be complied with.11 Where the Security Council, in the formulation of its missions mandates, becomes involved in IHL-related matters, this clear-cut distinction between the two branches of law is difficult to sustain. A resolution text contradicting IHL norms would raise questions of competences, validity, and overriding application. Above all, it would undermine the confidence of commanders and soldiers that their decisions are lawful, which is essential for any military mission to be effective. Whereas many IHL norms themselves are already subject to doctrinal discussions, a resolution text spelling out additional orders would enhance the adverse effects of legal uncertainty on armed forces. This is even more true as the interpretation of Security Council resolutions following the recognized rules for treaty interpretation without restriction is not always an easy task.12

While not going that far as to contradict IHL, the Council at times makes reference to the jus in bello. The more involved the Security Council becomes in IHL-related matters, the more likely it is that the Council’s practice has an impact on the normative development of this branch of law. The question being looked into here is whether a Security Council that increasingly deals with questions of how force is to be used, runs the risk of blurring the distinction between the jus ad bellum and the jus in bello. This theoretical distinction, however, is important for very practical reasons. It ensures protection during armed conflict by guaranteeing the application of IHL regardless of the cause of the conflict.13

(p.271) 2.1.1 Reference to IHL by the UN Security Council

Before turning to the question on which occasions the UN Security Council deals with IHL-specific matters, it needs to be mentioned that the UN Charter does not contain any reference to IHL. The authors of the Charter deliberately avoided mentioning the laws of armed conflict as this was perceived to undermine the credibility with regard to the Charter’s main purpose to outlaw the use of force in international relations.14 In the same vein, the resolutions adopted by the Security Council during its first twenty years of existence are characterized by little interest in IHL.

It was in 1967 that the Security Council for the first time made reference to issues of humanitarian concern. It recommended to the government of Israel to respect the principles laid down in the Geneva Conventions of 1949 (GC) during the Six-Day War fought by Israel, Egypt, Jordan, and Syria.15 Ever since, the Security Council has included statements on IHL in its resolutions—isolated at first, more frequently later. Today, any resolution that is adopted in connection with situations of armed violence contains a reference to IHL. The mention of IHL takes on different forms.

The most frequent form of reference is found in resolutions that recall the actors involved in a conflict situation to act ‘in compliance with applicable IHL’16 or ‘to carry out operations in accordance with IHL, as applicable’.17 In these cases, the Council either assumes the existence of an armed conflict and thus the application of IHL, or it stresses the observance of IHL whenever the requirements for it to apply are met. It does so without determining the conditions for the scope of application of IHL in general or certain rules of that legal branch in particular. Some resolutions focus on specific parties to the conflict,18 on violations of IHL in a particular region,19 during a certain period of time, or with regard to specific sub-branches of IHL20 or even specific rules of IHL.21 Whereas the statements that deal (p.272) with the implementation of IHL in general, regardless of a particular situation, are more prevalent, the frequency of more focused calls to comply with IHL appears to be on the increase.

In other instances, the Security Council characterized a situation and identified the corresponding legal rules. Such was the case in resolution 672 (1990)22 and 1472 (2003),23 in which the Council determined Israel and the coalition forces in Iraq, respectively, as the occupying powers. As a consequence, it held the provisions of GC IV to be applicable. Thus, the UN Security Council, similar to a judicial body, applies existing legal rules to a concrete situation. It, thereby, exerts influence on the interpretation of a contested legal issue of IHL.24

The Security Council makes reference to IHL on many occasions and in different ways. However, in most cases, it contents itself with reaffirming the legal framework of IHL as it exists. Against this background, the obligations for military forces that derive from Security Council resolutions rarely deviate from the general obligations IHL imposes on them. Where Security Council resolutions contain decisions that are not identical with the substantive framework of IHL—either because they go beyond what is provided for by IHL or because they restrict the room for manoeuvre envisaged by IHL, questions relating to their relationship to the jus in bello arise.

2.1.2 The relationship between Security Council resolutions and IHL

Former Secretary-General Kofi Annan regarded the Security Council as the appropriate body to ‘help forge consensus over when and how resort to force is appropriate’25 (emphasis added). Without indulging in the question of the Council’s competence to follow this proposal at this point,26 a few paragraphs in Security Council resolutions that are prone to narrow the gap between the jus ad bellum and the jus in bello will be looked at in more detail.

2.1.2.1 Strategic goals of military operations determining the military advantage

With respect to Operation Unified Protector, the NATO operation in Libya in 2011 based on resolution 1973,27 the view was expressed that a determination of the (p.273) military advantage within the meaning of IHL must take into account the humanitarian purpose of the Security Council mandate.28

UN Security Council resolutions authorizing the use of force determine the purposes for which force may be used. Recent resolutions invoke, among others, the protection of civilians, the facilitation of humanitarian assistance, the protection of the United Nations, the enforcement of compliance with a ban on flights, the monitoring of arms embargoes, the creation of a secure environment, and the disarmament of armed groups as purposes for which military force was authorized. The development of identifying precise mission goals is laudable from a rule-of-law perspective and has been endorsed by the Institut de Droit International.29 However, the interpretation of IHL rules in the light of these political goals may conflate the jus ad bellum and the jus in bello. Proportionality, a concept common to both branches of law but following different logics in each of the two regimes, is at stake here.

In IHL, the military advantage is one factor of reference in the assessment of the proportionality of an attack. The fundamental principle of proportionality is codified in Article 51(5)(b) AP I. Thus, ‘an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’ is considered disproportionate.30 Hence, humanitarian considerations, the expected civilian loss and damage, are to be balanced against the military advantage anticipated. According to the Commentary on AP I, the military advantage under IHL ‘consist(s) in ground gained and in annihilating or weakening the enemy armed forces’.31 If, in the case of Libya, one regards the protection of ‘civilians and civilian populated areas under threat of attack’32 to be the military advantage, the balancing test would presumably reach a different conclusion as to when the military advantage was to be seen to exclusively capture military needs. Military troops could, depending on the reading, be either more or less restrained in their choice of means and methods. If the explicit military goal is to protect civilians, an attack carried out for that purpose that results in suffering and loss of civilian lives seems to have missed the target. Whereas some (p.274) collateral damage would even be acceptable under these circumstances, the restrictions to the means and methods of warfare that are required to satisfy the principle of proportionality would be greater for attacks enforcing humanitarian goals than for those carried out for purely military needs strictu sensu. Here, the jus ad bellum would have a limiting effect on the jus in bello. The humanitarian purpose would translate into more obligations on the part of the authorized party, and, in turn, touch upon the principle of equal applicability.33

On the other hand, one could consider the declared military advantage to protect civilians as a particularly aspirational objective, given the concept’s origin in the purposes and principles of the UN Charter.34 Its special value would legitimize a strong military action and would tip the balance in favour of the military advantage allowing for greater collateral damage which, in turn, would influence the choice of means or methods of warfare. As is demonstrated by this comparison, taking the strategic objectives into account during the proportionality assessment changes the outcome. It adds another layer of subjective judgement, and, hence, impreciseness to the proportionality test. It is therefore preferable to have constant—though themselves also prone to subjective evaluation—variables on both sides of the scale. Without considering its moral value, it is therefore indispensable to agree that the military advantage lies in the submission of the enemy, accepting it as the ‘sad necessit[y] of war’.35

A reading that considers the overall political goal for the determination of the military advantage resembles the concept of proportionality in the jus ad bellum. If questions of the jus in bello are subordinated to considerations of jus ad bellum, the principle of separation of these two bodies is challenged. In the context of the right to self-defence, the principle of proportionality has been used in two senses. Some follow the ‘tit for tat’ approach, under which the forcible act of state A must be proportionate to the amount of force used by state B which provoked the response of A.36 There is strong support for the view, referred to as the ‘means-ends’ test, which maintains that the means, that is the amount of force used, must be proportionate to the legitimate ends of the use of force.37 The legitimate end of the right to self-defence is to halt and repel the ongoing armed attack. Factors that need (p.275) to be taken into account to assess proportionality are the nature of the target, the effects on civilians, and both the geographical and the temporal scope of the right to self-defence.38

Whereas the necessity/proportionality test has obtained the status of custom in the law of self-defence, it is not clear whether this standard applies analogously to resolutions adopted by the Security Council under Chapter VII.39 The wording of Article 42 UN Charter, allowing for ‘such action (…) as may be necessary’ (emphasis added), support the supposition that necessity concerns not only the question of whether there are alternatives to the use of force, but also the choice of forcible means.40 The latter meaning of necessity is equivalent to proportionality. The Charter’s emphasis on pacific settlement of international disputes,41 with the prohibition on the use of force in Article 2(4) as the cornerstone, justifies the conclusion that any exception thereto is to be construed narrowly.42 Against this background, the ad bellum proportionality for military enforcement requires a use of force that does not exceed the scale, duration, and intensity of what is necessary to maintain or restore international peace and security.

When the Security Council decides to authorize coercive military action pursuant to Article 42 UN Charter, it generally expresses that decision by the authorization to use or take ‘all necessary means’.43 Whereas this phrase is generally recognized to be the Council’s terminology authorizing the use of force, it has been doubted that the term ‘necessary’ had a meaning extending beyond the if of the use of force. Rather, the phrase has become common practice as a euphemistic alternative to the explicit mentioning of ‘force’ on the initiative of the Soviet Union in connection with the adoption of resolution 678 (1990).44 However, in line with the aforementioned considerations regarding the ad bellum proportionality, this phrase may also express a requirement of necessity limiting the actions taken to what would be proportionate to achieving the actual objective.45 This view is supported by a UN report that commended to the Security Council to apply a proportionality test when authorizing military options.46

(p.276) A reading of ‘military advantage’ that allows to accommodate the goal to protect civilians would bring the IHL proportionality standard extremely close to the understanding of proportionality within the context of Chapter VII resolutions.47 It is against this background that an interpretation of jus in bello rules in accordance with Security Council mandates was rejected by many authors.48 It would lead to a conflation of jus ad bellum and jus in bello elements.49 Getting back to the example of Libya, any use of force that had the sole aim of weakening forces loyal to Gaddafi without being able to demonstrate that these forces were at the time of the attack threatening ‘civilians [or] civilian populated areas’ would not be covered by the Security Council mandate. Even though the attack would be in accordance with IHL insofar as only military objects were targeted, it would have to be discontinued as the jus ad bellum was violated. Thus, the more stringent requirements for the military operation are not imposed by the IHL proportionality analysis but by the overall proportionality standard under the jus ad bellum. Such parallel application is the essence of the concurrent application of the jus ad bellum and the jus in bello. The idea behind the concurrent application of the jus ad bellum and the jus in bello is that branches of international law regulating two distinct aspects of the use of force should not be mutually dependent in their application or interpretation in order to prevent that either aspect is left unregulated or affected by an unsuitable set of rules.

Whereas the foregoing example demonstrates how military operation mandates formulated in UN Security Council resolutions can converge with other legal norms by way of interpretation, convergence can also occur through overlapping regulation of the same matter. In cases where the Security Council, by stating how force is to be used, deviates from IHL norms, questions of relationship may arise.

2.1.2.2 Overlapping regulation

Article 48 AP I formulates the basic rule that ‘the parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives’ (meaning persons and objects). The rationale of this ‘cardinal principle’50 of IHL, which aims to protect civilians from the effects of (p.277) hostilities, is found in many resolutions of the Security Council dealing with conflict situations.

In 1999, acting under Chapter VII, the Security Council for the first time authorized a UN peacekeeping force to ‘take the necessary action (…) to afford protection to civilians under imminent threat of physical violence’.51 Nowadays, the inclusion of such protection mandates based on Chapter VII UN Charter is standard in UN peacekeeping missions.52 They generally regulate only the purpose for which resort to force is authorized and thereby limit the scope of the robust mandate. However, their concrete content has been developed since. The resolution creating the Intervention Brigade within MONUSCO, the UN peacekeeping mission established in the Democratic Republic of the Congo, mandates the mission through its regular forces and its Intervention Brigade to take all necessary measures to ‘mitigate the risk to civilians before, during and after any military operation’.53 Here, the Security Council gives guidance as to how force is used at the tactical level. The question is how this instruction relates to IHL rules with overlapping content.

AP I comprises a section entitled ‘General protection against effects of hostilities’ within Part IV that is concerned with the civilian population. Provisions that deal with risk mitigation are primarily Articles 57 and 58, enumerating precautionary measures both in attack and against the effects of attack. These obligations derive from the principle of distinction insofar as they aim to avoid or to minimize the collateral effects of hostilities on civilian persons, the civilian population, and civilian objects.54 The principle of precautions in attack, inter alia, is reflected in Article 57(1) AP I which stipulates that ‘in the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects’.

However, a comparison between the obligation spelled out in Security Council resolution 2098 and the duty under general IHL to take precautions in attack and against the effects of attack reveals that the temporal scope of the former obligation is broader than that of the latter. Whereas the protection mandate binds the UN forces ‘before, during and after any military operation’, IHL rather focuses on protective measures during (‘in the conduct of’) a military operation. The term ‘military operation’, however, should be understood to include troop movements, manoeuvres, and other activities carried out by armed forces before actual combat,55 and thereby including preventive action. The paragraphs following paragraph 1 of Article 57 list more concrete precautions that are to be taken. The (p.278) wording clearly indicates that these measures are to be taken either before (‘those who plan or decide upon an attack shall: (…)’,56advance warning shall be given’57) or during (‘an attack shall be cancelled or suspended if (…)’58) an attack and thus in the early stages of and amidst a military operation, respectively. In the same vein, Article 58 focuses on precautions. Whereas the aim of this provision is to tackle the effects of attacks and thus the aftermath of a military operation, the actual measures to achieve this aim are to be taken in advance. Measures to mitigate the risk after such operation, on the other hand, are not demanded of the warring parties.

One could well argue that the obligation spelled out in Security Council resolution 2098 is to be understood in exactly the same way. If one reads the qualification ‘before, during and after any military operation’ to apply to ‘risk’ and not to ‘mitigate’ within the meaning of ‘the risk to the civilians arising before, during and after any military operation’, it would not necessarily include an obligation to act after the military operation has taken place. The wording allows for both interpretations. The invocation of the French version, stating ‘atténuer les risques auxquels sont exposés les civils avant, pendant et après toute opération militaire’ does not help in this regard, either. However, the Spanish translation that mentions the qualifications ‘before’ and ‘after’ at the end of the sentence and thereby somehow detached from the ‘risk’ suggests that the temporal indication rather relates to ‘mitigate’ (‘mitigar el riesgo para los civiles durante cualquier operación militar, así como antes y después’). According to this reading, the mandate requires the forces, in their strive to protect civilians, to become active before, during, and after any military operation.

In the specific context, the Secretary-General, however, does not specify what such responsive measures could look like. One could imagine steps that target those risks associated with possible countermeasures by the opposing party and their implications for the civilian population. Other measures could aim at victim assistance, clearance of remnants of war, risk education, repairing damage to the environment, or target other threats that the legacy of military operations poses to the civilian population. Whereas AP I in its chapter on civil defence envisages the performance of some tasks to help the civilian population to recover from the immediate effects of hostilities which, by definition, take place after a military operation, the relevant provisions (Articles 61–71 AP I) do not create an obligation but rather grant civil defence organizations a status ensuring them protection in the performance of their task.59 Measures addressing the post-hostilities threats are found in some weapons treaties. For instance, the Fifth Protocol to the 1980 (p.279) Convention on Certain Conventional Weapons (CCW) on Explosive Remnants of War and the Convention on Cluster Munitions spell out the responsibility of the belligerent parties to clear contaminated areas60 and to ensure care and rehabilitation to survivors and their communities.61 However, the focus in IHL with respect to the protection of civilians lies on preventive considerations. This prioritization is wise as it is always better to prevent risks for the civilian population from arising in the first place. Nevertheless, considering that the relevant IHL provisions formulate obligations ‘of due diligence and acting in good faith’,62 hence obligations of conduct, further risks might continue to exist. Adding obligations that are remedial in nature do not release the forces from their duty to take precautions before and in the course of hostilities but rather aim to reduce civilian casualties whenever they occur, including afterwards.

This example demonstrates how the Security Council comments on how force is to be used, while creating obligations that go beyond what is required by IHL. The principal responsibility of the UN Security Council is to maintain and restore international peace and security and, hence, to do everything within its power to prevent or reverse a situation of violence which needs to be regulated. However, where the very way in which armed violence is carried out qualifies as a threat to the peace,63 decisions may be taken by the Security Council to ensure humanitarian protection during the conflict.

Violations of IHL were qualified as a threat to the peace for the first time in 1993 with respect to the conflict in Bosnia–Herzegovina.64 The practice of the Security Council shows that for an IHL violation to amount to a threat to the peace, it needs to be ‘systematic, widespread and flagrant’. Moreover, the determination has always been made in connection with a particular conflict.65 Once the Security Council has opened the door to Chapter VII by determining the existence of a threat to (p.280) the peace, a breach of the peace, or an act of aggression, it enjoys wide latitude regarding how to maintain and restore peace and security.66

Nevertheless, many maintain that its discretion ends where it would result in derogation from IHL. This debate, so far, is mainly taking place detached from examples drawn from Security Council practice, since there are very few instances in which derogation has been claimed. This was, for example, the case in the context of resolution 1483 (2003) and resolution 1511 (2003) concerning the occupation of Iraq. Here, concerns have been raised whether the Council had gone beyond what was permitted by the law of occupation.67 Whereas some argue that an effective exercise of the Council’s responsibility for the maintenance of international peace and security requires it to be able to take any measure it deems necessary for that purpose, others see its powers restricted by the purposes and principles of the UN Charter. According to Article 1(3), one purpose is to promote and encourage respect for human rights. Taking subsequent practice of the UN into account, it is said that the term ‘human rights’ in this context is to be construed broadly, including IHL.68 Hence, the Security Council would act ultra vires authorizing military enforcement measures that would be in conflict with IHL. No obligations can derive out of such resolutions.69 In contrast, Council resolutions deviating from IHL insofar as it imposes stricter standards do not contradict the humanitarian purpose of IHL.70 The Security Council resolution and IHL place cumulative requirements on the deployment of military operations.

2.2 Clarity and flexibility

A frequently voiced request by UN member states is that mission mandates need to be both clear and flexible. Clarity of the mandate is crucial during the planning, the training, and the implementation phase. An ambiguous mandate is particularly difficult to handle for a diverse multinational mission. Troops coming from different cultures, speaking different languages, following different legal obligations and maybe different political objectives will come to different interpretations of a mission’s role if the mandate allows. At the same time, however, multinational (p.281) military operations are often deployed in unstable areas characterized by unpredictable dynamics. The deployment in such an unsteady environment requires the ability to swiftly react to changing circumstances. A mandate staying abreast of such developments leaves room for a mission to evolve according to the needs on the ground.

The range of objectives pursued by a multinational military operation is wide. However, the same issues are of relevance to many missions. In the course of the Council’s drafting practice, some concepts have evolved and have been refined that are implemented in many mission mandates. One such example is the mandate to protect the civilian population. Featuring in almost any resolution that authorizes military operations, the protection of civilians (PoC) mandate has undergone a normative development. While this has helped to clarify what measures may be taken by a mission tasked to protect the civilian population, the wide range of possible activities maintains a high degree of flexibility.

The UN Security Council started to include the task to protect the civilian population into mission mandates in 199971 and has continued to do so for many ensuing operations.72 Whereas the PoC mandate of the United Nations Mission in Sierra Leone (UNAMSIL) in 1999 was confined to simply determining that the protection of the civilian population was one task falling to the peacekeepers, the assignment of the PoC task within UN mandates has been substantiated with ever more instruction of how the task is to be performed. For instance, the resolutions authorizing MONUSCO and United Nations Mission in the Republic of South Sudan (UNMISS) devote up to six subparagraphs, filling a half page, to their PoC mandate.73 Even though UN Security Council resolutions do not have legal effects beyond the particular mission authorized by it, many ideas of what peacekeepers are asked to do as part of their PoC responsibility are found in more than one mission mandate, and identical wording is used. The concrete activity called for within a resolution under the heading ‘protection of civilians’ is illustrative of the type of action the Council subsumes under the rather broad concept of PoC. In addition to specific instructions within mission mandates, the UN has also by now developed a comprehensive PoC policy. The Department of Peacekeeping Operations (DPKO) and the Department of Field Support (DFS) have published a policy document on the Protection of Civilians in United Nations Peacekeeping.74 It supersedes other UN doctrine produced lately on specific aspects of UN peacekeeping (p.282) related to the PoC mandate,75 and it refers to many Security Council resolutions on the thematic issue of the protection of civilians. The aim of this publication is to channel the many positions on the meaning of the PoC mandate and to support its coherent implementation. Such guidance is not only valuable for multinational operations, but also for multidimensional operations, meaning operations using a mix of civilian, police, and military capabilities, because protection concepts are understood differently in the humanitarian and the human rights community.76 The policy reconciles different points of view and, thus, reduces the risk that conceptual misunderstandings result in inefficient mission implementation. Although this internal policy of the UN is not a legally binding definition of the PoC mandate, it proclaims the UN’s understanding of what action could be taken under it. As such, it will nonetheless shape the interpretation and evolution of UN peacekeeping and the conduct of those actors involved in UN missions.

2.3 Robust peacekeeping

Although UN guidance on PoC mandates provides a framework for the fulfilment of the mandate and thus adds precision to the overly broad notion, the range of actions subsumable under it still remains wide. Since the multinational operation in Libya, the issue of protection of civilians, and particularly the military side of it, has gathered further momentum. The Council authorized a Force Intervention Brigade (FIB) in the DRC in 2013 and a Regional Protection Force (RPF) in South Sudan in 2016. These are attempts to utilize the military aspect of peace enforcement for the protection of civilians.77 Both deployments are part of the respective UN mission and operate alongside their regular military components. Both are tasked to, inter alia, protect the civilian population through military means.78

After intense fighting in the region of North Kivu in the DRC, in March 2013, the UN Security Council passed resolution 2098 which mandated the FIB to address the main threat to the civilian population, Congolese and foreign armed groups, by ‘neutralizing’ them.79 The term ‘neutralize’ in the military context means to render (p.283) enemy personnel incapable of interfering which can amount to targeting with lethal force. Whereas the practice of deploying supporting military missions parallel to UN peacekeeping missions is not new,80 the integration of such offensive force under UN command gives the entire peacekeeping mission a much more robust character. This robust posture, however, has legal and political ramifications. It may conflict with fundamental principles of UN Peacekeeping. A UN force established to neutralize non-state armed groups will, taking on its responsibility,81 find itself engaged in an armed conflict with opposing forces—a departure from the principle of mission impartiality and limited use of force.82

The offensive mandate and the advanced military capabilities of the FIB raised questions about the status of the MONUSCO under IHL. As a party to the conflict, the FIB would be required to abide by IHL and become a legitimate target itself.83 Whether this leads to the loss of the protected status of the entire mission or whether the status of the FIB must be assessed isolated from the rest of MONUSCO has been subject to legal debates.84 Even though the law might be able to draw a straight line, the robust character of FIB is likely to alter the image of MONUSCO as a whole. As the Capstone Doctrine highlights, a particularly valuable asset of the UN is to act as an impartial arbiter.85 Fighting armed groups alongside government forces risks losing credibility as a mediator between conflict parties, even for future missions.

The RPF in South Sudan has similarly robust elements and is charged with using all means to enforce peace in Juba. Its actual deployment was opposed by the government of South Sudan despite initially having agreed to it.86 Before the UN, the representative of South Sudan declared that the adoption of the resolution establishing the RPF went against the basic principle of UN peacekeeping (p.284) operations, which is the consent of the main parties to the conflict.87 It can be observed that the UN Security Council is ready to depart from the strict adherence of the basic principles of peacekeeping if circumstances on the ground so demand. Nonetheless, the UN Secretariat’s DPKO on its website continues to stress that the three basic principles of consent of the parties, impartiality, and non-use of force except in self-defence and defence of the mandate guide any peacekeeping mission. Holding on to these principles still gives peacekeeping operations a heightened degree of legitimacy. When the Security Council authorizes peacekeeping contingents to proactively confront armed groups, it jeopardizes this authority.

However, the adoption of more robust measures is a corollary of the UN practice of deploying missions into more violent settings. Both the establishment of the FIB and the RPF were reactions to eruptions of violent conflicts with severe consequences for the civilian population and recurrent accusations of inaction on the part MONUSCO and UNMISS, respectively, to protect the people.88 Contemporary UN peacekeeping missions no longer play the inter-positional role between conflicting states. They are increasingly set up in intrastate conflict scenes. Here, they are increasingly given a stabilization mandate.89 This usually involves an offensive mandate and often focuses on the re-establishment of governmental authority and institutions. This approach often requires robust operations against internal insurgents or violent non-state actors.90 Such a scenario places the UN mission close to the state party to the conflict and challenges the neutral role of the mission. Recommendations made by the High-Level Independent Panel on Peace Operations in 2015 allow us to presume that the inclusion of robust elements into peacekeeping operations is not excluded for future missions. Although the Panel stresses that ‘mandating enforcement tasks to degrade, neutralize or defeat a designated enemy … should be exceptional, time-limited and undertaken with full awareness of the risks and responsibilities for the United Nations mission as a whole’, it continues by stating that peacekeeping principles ‘must be interpreted progressively and with flexibility in the face of new challenges, and they should never be an excuse for failure to protect civilians or to defend the mission proactively’.91

(p.285) 3. Conclusion

The Security Council, in its Chapter VII resolutions, uses increasingly detailed wording on how its efforts to maintain or restore international peace and security are to be implemented by multinational military operations. Within the context of UN peacekeeping missions, this has led to frictions with the basic principles of peacekeeping. Where the Council spells out that ‘using all necessary means’ includes ‘undertaking robust action’92 or ‘neutralizing’93 armed groups, the principles of limited use of force and impartiality are at stake. In general, UN Security Council practice has a strong impact on the development of multinational military operations, be they under UN command or led by states or regional organizations. Absent a clear legal basis for the model of authorization resolutions in the UN Charter, the Security Council has mandated a diverse range of military deployments. Even though each constitutive resolution is unique and tailored to the mission in question, the Security Council, through the drafting of its resolutions, has shaped the legal framework applicable to multinational military operations.

This is particularly true for peacekeeping missions as a primary UN responsibility. Some core tasks of peacekeepers that continuously find their way into mission mandates, like the protection of civilians, have evolved to comprehensive concepts. Multinational military forces need to be trained according to this UN-specific guidance. Having said this, centralized guidance on how to implement certain mission tasks is all the more valuable where the composition of the deployed forces is multinational and where a common understanding of the mandate is not a given.

Beyond UN peacekeeping missions, the Council’s tendency to adopt more detailed mandates and to elaborate on their way of implementation may result in inconsistencies with the branch of IHL. While the Council frequently refers to IHL, it largely does so by reaffirming or clarifying existing law. Only rarely does it take decisions that deviate from IHL rules. Whereas in very few instances concerns were raised that the Security Council authorized military enforcement action that allowed going beyond what is permitted under IHL, most Council resolutions deviating from IHL have a narrowing rather than a broadening effect. As such, obligations that derive from Security Council mandates may put constraints on how force is used.

However, its pronouncements are not of such a nature as to mingle jus ad bellum and jus in bello, nor to alter the normative substance of IHL. Being a political organ, the Security Council is entitled to take action but not obliged to do so. As a consequence, the Council has put some IHL issues on his agenda while omitting (p.286) others.94 Its choice of topics might have an impact on the development of IHL insofar as special emphasis is put on certain issues in the legal debate. However, when taking binding decisions under Chapter VII, the Council is cautious not to deviate from the substantive content of IHL norms. For the very few cases where it does so, it is unlikely that such practice affects the legal framework of IHL. Even if the Security Council moved towards adopting resolutions that could not be brought in conformity with jus in bello rules and this would be considered to be within its competences, the legal consequence of Article 103 UN Charter is ‘priority of the Charter, not the invalidity of treaties conflicting with it’.95 Moreover, many rules of this branch of international law belong to customary international law; some may even be classified as jus cogens.96

While not modifying the jus in bello, UN Security Council resolutions nevertheless increasingly determine the normative framework of multinational military missions beyond its primary function of justifying the infringement of the sovereignty and the territorial integrity of the state on whose territory the military operation is carried out. Multinational military missions can increasingly draw concrete instructions regarding their implementation from the resolution constituting it. This leaves less room for interpretation and, in turn, narrows the margin of discretion of states to implement the Council’s enforcement measures.

Notes:

(1) M Koskenniemi, ‘The Police in the Temple. Order, Justice and the UN: A Dialectical View’ (1995) 6 European Journal of International Law 325, 341; see also the Note by the President of the Security Council stating that ‘[t]he absence of war and military conflicts amongst States does not in itself ensure international peace and security’ UNSC, ‘Note by the President of the Security Council’ (31 January 1992) UN Doc S/23500, 3.

(2) International Security Assistance Force (ISAF), authorized by UNSC Res 1386 (20 December 2001) UN Doc S/RES/1386.

(3) United Nations Observer Mission in Georgia (UNOMIG), authorized by UNSC Res 858 (24 August 1993) UN Doc S/RES/858.

(4) European Naval Force Somalia (Operation Atalanta), authorized by UNSC Res 1816 (2 June 2008) UN Doc S/RES/1816.

(5) European Union Naval Force Mediterranean (Operation Sophia), authorized by UNSC Res 2240 (9 October 2015) UN Doc S/RES/2240.

(6) This is the case for most UN peacekeeping operations. Their mandated tasks range from the protection of civilians, over the provision of security across conflict lines, to military training.

(7) United Nations Interim Administration Mission in Kosovo (UNMIK), authorized by UNSC Res 1244 (10 June 1999) UN Doc S/RES/1244 and United Nations Transitional Administration in East Timor (UNTAET), authorized by UNSC Res 1272 (25 October 1999) UN Doc S/RES/1272.

(8) BH Weston, ‘Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy’ (1991) 85 American Journal of International Law 516; similar, see J Quigley, ‘The Privatization of Security Council Enforcement Action: A Threat to Multilateralism’ (1996) 17 Michigan Journal of International Law 249.

(9) Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226.

(10) K Okimoto, The Distinction and Relationship between Jus ad Bellum and Jus in Bello (Hart Publishing 2011) 14.

(11) Once subject to debate, it is now widely accepted that IHL generally applies to UN peacekeeping missions, see C Greenwood, ‘International Humanitarian Law and United Nations Military Operations’ (1998) 1 Yearbook of International Humanitarian Law 3; K Okimoto, ‘Violations of International Humanitarian Law by United Nations Forces and Their Legal Consequences’ (2003) 6 Yearbook of International Humanitarian Law 199; the former UN Secretary-General Kofi Annan promulgated in its bulletin Observance by United Nations Forces of International Humanitarian Law that, by custom, IHL is applicable to ‘United Nations forces when in situations of armed conflict they are actively engaged therein as combatants’, UN Secretary-General, ‘Bulletin: Observance by United Nations Forces of International Humanitarian Law’ (6 August 1999) UN Doc ST/SGB/1999/13, Article 1.1.

(12) See MC Wood, ‘The Interpretation of Security Council Resolutions’ (1998) Max Planck Yearbook of United Nations Law 73; E Papastavridis, ‘Interpretation of Security Council Resolutions under Chapter VII in the Aftermath of the Iraqi Crisis’ (2007) 56 International & Comparative Law Quarterly 83.

(13) M Sassòli, ‘Ius ad Bellum and Ius in Bello, The Separation between the Legality of the Use of Force and Humanitarian Rules to Be Respected in Warfare: Crucial or Outdated’ in MN Schmitt and J Pejic (eds) International Law and Armed Conflict: Exploring the Faultlines. Essays in Honour of Yoram Dinstein (Brill 2007) 241, 244 et seq; H Lauterpacht, ‘The Limits of the Operation of the Law of War’ (1953) 30 British Yearbook of International Law 212; J Gardam, ‘Proportionality and Force in International Law’ (1993) 87 American Journal of International Law 39; J Moussa, ‘Can Jus ad Bellum Override Jus in Bello? Reaffirming the Separation of the Two Bodies of Law’ (2008) 90 International Review of the Red Cross 963, 967.

(14) ILC, ‘Report to the General Assembly’ (1949) Yearbook of the International Law Commission 281.

(15) UNSC Res 237 (14 June 1967) UN Doc S/RES/237.

(16) To mention only one recent example of many, UNSC Res 2217 (28 April 2015) UN Doc S/RES/2217, para 45.

(17) UNSC Res 2211 (26 March 2015) UN Doc S/RES/2211, para 24.

(18) See, eg, UNSC Res 2147 (28 March 2014) UN Doc S/RES/2147 on the situation in the DRC, demanding that the FDLR, the ADF, the LRA, the Bakata-Katanga and various Mayi-Mayi groups demobilize children from their ranks.

(19) See, eg, UNSC Res 1778 (25 September 2007) UN Doc S/RES/1778 on attacks in ‘Eastern Chad, the north-eastern Central African Republic and western Sudan (…), which result in serious violations of IHL’.

(20) See, eg, UNSC Res 2198 (29 January 2015) UN Doc S/RES/2198, para 10 condemning violations of IHL in the DRC and focusing on ‘attacks on the civilian population, MONUSCO peacekeepers and humanitarian actors, summary executions, sexual gender-based violence and large-scale recruitment and use of children’.

(21) UNSC Res 1472 (28 March 2003) UN Doc S/RES/1472 outlining the duty of the Occupying Power under Article 55 of the Fourth GC in the situation between Iraq and Kuwait; UNSC Res 2139 (22 February 2014) UN Doc S/RES/2139 deals with the principle of distinction. By demanding all parties to ‘cease the indiscriminate employment of weapons in populated areas, (…), such as the use of barrel bombs’ the Council makes clear that it is not the bomb as such that contravenes IHL, but the way it is employed by Syrian forces that is in violation of IHL.

(22) UNSC Res 672 (12 October 1990) UN Doc S/RES/672.

(23) UNSC Res 1472 (n 21).

(24) G Nolte, ‘Practice of the UN Security Council with Respect to Humanitarian Law’ in K Dicke and others (eds), Weltinnenrecht: liber amicorum Jost Delbrück (Duncker & Humblot 2005) 495 et seq.

(25) K Annan, ‘ “In larger freedom”: Decision Time at the UN’ (Foreign Affairs, May/June 2005) <https://www.foreignaffairs.com/articles/2005-05-01/larger-freedom-decision-time-un>. All URLs accessed 27 December 2018.

(26) On this question, see M Roscini, ‘The United Nations Security Council and the Enforcement of International Humanitarian Law’ (2010) 43 Israel Law Review 330, 332.

(27) UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973.

(28) J Lehmann, ‘All Necessary Means to Protect Civilians: What the Intervention in Libya Says About the Relationship Between the Jus in Bello and the Jus Ad Bellum’ (2012) 17 Journal of Conflict and Security Law 117, 134; C Greenwood, ‘Historical Development and Legal Basis’ in D Fleck (ed), The Handbook of International Humanitarian Law (2nd edn, OUP 2008) 36–37.

(29) Institut de Droit International, ‘Tenth Commission: Present Problems of the Use of Force in International Law—Resolution on Authorization of the Use of Force by the United Nations’ (Session de Rhodes, 9 September 2011) Article 2. <http://www.idi-iil.org/app/uploads/2017/06/2011_rhodes_10_-D_en.pdf>.

(30) See also JM Henckaerts and L Doswald-Beck (eds), Customary International Humanitarian Law (CUP 2005) Rule 14.

(31) Y Sandoz, C Swinarski, and B Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff Publishers 1987) para 2218.

(32) UNSC Res 1973 (n 27) para 4.

(33) F Mégret, ‘Missions autorisées par le Conseil de sécurité à l’heure de la R2P: au-delà du jus in bello?’ (2013) 52 Military Law and the Law of War Review 205, 235, stating that ‘Il se peut en effet que la logique humanitaire classique (d’égalité entre parties) aille à l’encontre d’une réelle plus-value humanitaire consistant en un surcroit d’obligations à la charge de certains acteurs’.

(34) H Willmot and S Sheeran, ‘The Protection of Civilians Mandate in UN Peacekeeping Operations: Reconciling Protection Concepts and Practices’ (2013) 95 International Review of the Red Cross 517, 529.

(35) Sandoz, Swinarski, and Zimmermann (n 31) para 2219.

(36) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Merits) [1986] ICJ Rep 14, para 176; Oil Platforms (Iran v USA) (Merits) [2003] ICJ Rep 161, para 77; Nuclear Weapons (n 9), para 41.

(37) J Gardam, Necessity, Proportionality and the Use of Force by States (CUP 2004) 11; R Ago, ‘Eighth Report on State Responsibility’ (1980) II Yearbook of the International Law Commission 69–70.

(38) K Okimoto, ‘The Relationship Between Jus ad bellum and Jus in bello’ in M Weller (ed), The Oxford Handbook of the Use of Force in International Law (OUP 2015) 1216.

(39) Lehmann (n 28) 132.

(40) N Krisch, ‘Article 42’ in B Simma and others (eds), The Charter of the United Nations: A Commentary (3rd edn, OUP 2012) para 19.

(41) Charter of the United Nations (adopted 26 June 1945, entry into force 24 October 1945) Article 1(1).

(42) Lehmann (n 28) 133.

(43) The alternative phrase frequently used is ‘all necessary measures’.

(44) S Chesterman, Just War or Just Peace?: Humanitarian Intervention and International Law (OUP 2001) 163–64, citing MR Beschloss and S Talbott, At the Highest Levels: The Inside Story of the End of the Cold War (Little Brown 1993) 284.

(45) Lehmann (n 28) 130; contra, see R McLaughlin, ‘The Legal Regime Applicable to Use of Lethal Force When Operating under a United Nations Security Council Chapter VII Mandate Authorising “All Necessary Means” ’ (2008) 12 Journal of Conflict and Security Law 389, 412–13.

(46) UNGA, ‘Report of the Secretary-General: In larger freedom: towards development, security and human rights for all’ (21 March 2005) UN Doc A/59/2005, para 126.

(47) Lehmann (n 28) 134.

(48) G Bartolini, ‘Air Targeting in Operation Unified Protector in Libya, Jus ad Bellum and IHL Issues: An External Perspective’ in S Horvat and M Benatar (eds), L’interopérabilité juridique et la garantie du respect du droit applicable dans le cadre des déploiements multinationaux (Société internationale de Droit militaire et Droit de la Guerre 2013) 269; MH Hoffman, ‘Peace-Enforcement Actions and Humanitarian Law: Emerging Rules for Interventional Armed Conflict’ (2000) 82 International Review of the Red Cross 193.

(49) M Bothe, ‘The Protection of the Civilian Population and NATO Bombing on Yugoslavia: Comments on a Report to the Prosecutor of the ICTY’ (2001) 12 European Journal of International Law 531, 535.

(50) Nuclear Weapons (n 9).

(51) UNSC Res 1270 (22 October 1999) UN Doc S/RES/1270 establishing UNAMSIL.

(52) Roscini (n 26) 350.

(53) UNSC Res 2098 (28 March 2013) UN Doc S/RES/2098, para 12(a)(i) and (b); UNSC Res 2147 (n 18).

(54) JF Quéguiner, ‘Precautions under the Law Governing the Conduct of Hostilities’ (2006) 88 International Review of the Red Cross 793, 794.

(55) Sandoz, Swinarski, and Zimmermann (n 31) para 2191.

(56) Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (opened for signature 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3, Article 57(2)(a) (AP I).

(57) AP I (n 56) Article 57(2)(c).

(58) AP I (n 56) Article 57(2)(b).

(59) Sandoz, Swinarski, and Zimmermann (n 31) para 2321.

(60) Protocol on Explosive Remnants of War to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (Protocol V) (adopted 28 November 2003, entered into force 12 November 2006) 2399 UNTS 100, Article 3.

(61) Convention on Cluster Munitions (adopted 30 May 2008, entered into force 1 August 2010) 2688 UNTS 39, Article 5.

(62) Y Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (CUP 2004) 126.

(63) Within the meaning of Article 39 UN Charter (n 41).

(64) UNSC Res 808 (22 February 1993) UN Doc S/RES/808.

(65) ibid; UNSC Res 955 (8 November 1994) UN Doc S/RES/955; UNSC Res 941 (23 September 1994) UN Doc S/RES/941, stating that the practice of ethnic cleansing in some areas in Bosnia–Herzegovina constitutes a violation of IHL and poses a threat to the peace; in resolutions on the thematic issue on ‘protection of civilians in armed conflict’, the Council reiterated that the commission of systematic, flagrant, and widespread violations of IHL in situations of armed conflict might constitute a threat to international peace and security, UNSC Res 1296 (19 April 2000) UN Doc S/RES/1296; UNSC Res 1674 (28 April 2006) UN Doc S/RES/1674; UNSC Res 1778 (25 September 2007) UN Doc S/RES/1778; UNSC Res 1894 (11 November 2009) UN Doc S/RES/1894.

(66) E López-Jacoiste, ‘The UN Collective Security System and its Relationship with Economic Sanctions and Human Rights’ (2010) 14 Max Planck Yearbook of United Nations Law 273, 284 et seq.

(67) R Kolb, ‘Occupation in Iraq since 2003 and the Powers of the UN Security Council’ (2008) 90 International Review of the Red Cross 29; D Scheffer, ‘Beyond Occupation Law’ (2003) 97 American Journal of International Law 842.

(68) M Zwanenburg, ‘United Nations and International Humanitarian Law’ (2013) Max Planck Encyclopedia of Public International Law 44; Okimoto (n 38) 1220.

(69) ILC, ‘Report of the Study Group of the International Law Commission on its Fifty-eight Session: Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’ (1 May–9 June and 3 July–11 August 2006) UN Doc A/CN.4/L.682, para 331.

(70) Lehmann (n 28) 130.

(71) United Nations Mission in Sierra Leone (UNAMSIL), UNSC Res 1270 (n 51) para 14.

(72) The UNSC, to date, has issued mandates embodying the demand to protect civilians into thirteen peacekeeping missions.

(73) United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO), UNSC Res 2147 (n 18) para 4(i)–(iii); United Nations Mission in the Republic of South Sudan (UNMISS), UNSC 2155 (27 May 2014) UN Doc S/RES/2155, para 4(i)–(iv).

(74) UN DPKO and DFS, ‘Policy: The Protection of Civilians in United Nations Peacekeeping’ (1 April 2015) <http://providingforpeacekeeping.org/wp-content/uploads/2017/08/2015-07-Policy-on-PoC-in-Peacekeeping-Operations.pdf>.

(75) UN DPKO and DFS, ‘Operational Concept on the Protection of Civilians in United Nations Peacekeeping Operations’ (2010) <http://www.peacekeeping.org.uk/wp-content/uploads/2013/02/100129-DPKO-DFS-POC-Operational-Concept.pdf>; UN DPKO and DFS, ‘Framework for Drafting Comprehensive Protection of Civilians Strategies in UN Peacekeeping Operations’ (2011) <http://www.refworld.org/docid/523998464.html>.

(76) Willmot and Sheeran (n 34) 535.

(77) J Benson, ‘The UN Intervention Brigade: Extinguishing Conflict or Adding Fuel to the Flames?’ (A One Earth Future Discussion Paper, June 2016), 2 <http://oefresearch.org/sites/default/files/documents/publications/uninterventionbrigade.pdf>.

(78) UNSC Res 2098 (n 53) authorized MONUSCO and the FIB to ‘[e]nsure […] effective protection of civilians under imminent threat of physical violence’ and UNSC Res 2304 (12 August 2016) UN Doc S/RES/2304 authorized the RPF to ‘Promptly and effectively engage any actor that is credibly found to be preparing attacks, or engages in attacks, against […] civilians’.

(79) UNSC Res 2098 (n 53) para 12(b).

(80) French forces have been mandated to support the United Nations Operation in Côte d’Ivoire (UNOCI), UNSC Res 1528 (27 February 2004) UN Doc S/Res/1528, para 16; in June 2003 a French-led EU force (Operation Artemis) was deployed to the Bunia region in the DRC to support MONUC in its endeavour to protect civilians from the horrific violence, UNSC Res 1484 (30 May 2003) UN Doc S/RES/1484; deployed in 1999, NATO-led KFOR and Australian-led INTERFET were charged to take the military role alongside the UN mission in Kosovo and in East Timor, respectively, UNSC Res 1244 (n 7) and UNSC 1264 (15 September 1999) UN Doc S/RES/1264.

(81) Which the FIB did right from the start, see Kenny Katombe, ‘UN Intervention Brigade Fires on Congo Rebel Positions’ (Reuters, 23 August 2013) <htp://www.reuters.com/artcle/us-congo-democratc-fghtng-idUSBRE97M0WA20130823>.

(82) N Tsagourias, ‘Consent, Neutrality, Impartiality and the Use of Force in Peacekeeping: Their Constitutional Dimension’ (2006) 11 Journal of Conflict and Security Law 465.

(83) Secretary-General’s Bulletin (n 11).

(84) B Oswald, ‘The Force Intervention Brigade and UN Peace Operations: Some Legal Issues’ in J Farrall and H Charlesworth (eds), Strengthening the Rule of Law through the UN Security Council 2016 (Routledge 2016) 245; S Sheeran and S Case, The Intervention Brigade: Legal Issues for the UN in the Democratic Republic of the Congo (International Peace Institute November 2014) 9.

(85) UN DPKO, ‘United Nations Peacekeeping Operations Principles and Guidelines’ (2008) 36 <http://www.un.org/en/peacekeeping/documents/capstone_eng.pdf>.

(86) R Gladstone, ‘UN Bolsters Peacekeeping in South Sudan Despite Government’s Objections’ The New York Times (New York, 12 August 2016) <https://www.nytimes.com/2016/08/13/world/africa/united-nations-mission-south-sudan.html>.

(87) UN, ‘Adopting Resolution 2304 (2016), Security Council Extends Mission in South Sudan Authorizes Expanded Peacekeeping Force to Bolster Civilian Protection Efforts’ (UN Meetings Coverage, 12 August 2016) <https://www.un.org/press/en/2016/sc12475.doc.htm>.

(88) UN Internal Oversight Services, ‘Evaluation of the Implementation and Results of Protection of Civilians Mandates in United Nations Peacekeeping Operations’ (7 March 2014) UN Doc A/68/787.

(89) See MINUSTAH in Haiti, MONUSCO in the DRC, MINUSMA in Mali, and MINUSCA in the Central African Republic.

(90) C de Coning, C Aoi, and J Karlsrud, UN Peacekeeping Doctrine in a New Era: Adapting to Stabilisation, Protection and New Threats (Routledge 2017).

(91) UNGA/UNSC, ‘Report of the High-level Independent Panel on Peace Operations on Uniting Our Strengths for Peace: Politics, Partnership and People’ (17 June 2015) UN Doc GA A/70/95, SC S/2015/446, 14.

(92) UNSC Res 2304 (12 August 2016) UN Doc S/RES/2304.

(93) UNSC Res 2098 (n 53).

(94) R Cryer, ‘The Security Council and International Humanitarian Law’ in SC Breau and A Jachec-Neale (eds), Testing the Boundaries of International Humanitarian Law (British Institute of International and Comparative Law 2006) 274.

(95) Sir H Waldock, ‘Third Report on the Law of Treaties’ (1964) II Yearbook of the International Law Commission 4, 36.

(96) R Nieto-Navia, ‘International Peremptory Norms (Jus Cogens) and International Humanitarian Law’ in L Chand Vohrah and others (eds), Man’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (Kluwer Law International 2003) 627.