International Peacekeeping

Boris Kondoch

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9780754623953
• eBook ISBN: 9781351926621
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: National Security
• Index: Politics & International Relations

Peacekeeping has been the technique most frequently used by, and associated with, the United Nations to end conflicts and to preserve peace. In addition, international and regional organizations have also performed peacekeeping functions. Since the establishment of the first UN peacekeeping mission, UNEF I, in 1956, international lawyers have raised questions about the legal aspects of these operations. Traditionally, they analyzed the constitutional basis for peacekeeping and tried to allocate the authority under the UN Charter for peacekeeping among the Security Council, the General Assembly and the Secretary General. They discussed the use of force by peacekeepers, the applicability of international humanitarian law, as well as the responsibilities and liabilities of peacekeepers. Since the end of the cold war, peacekeeping operations have become more complex. In the first forty years, peacekeepers functioned mainly as buffer zones between warring parties and monitored cease-fires. Nowadays, they are increasingly engaged in internal rather than international conflicts and perform a multitude of tasks. Among others, they act as civilian administrators, oversee elections and monitor human rights. These changes have raised new legal problems. Which human rights obligations exist for peacekeepers? Do peacekeepers have to intervene if they witness war crimes and acts of genocide? How are they protected under international law? What is the legal framework of UN administrations like in Kosovo and East Timor? In order to enhance a better understanding of these legal issues arising from peacekeeping operations, a collection of articles written by the leading experts in the field have been compiled in the volume, International Peacekeeping.

Part I

The Role and the Rule of Law in International Peacekeeping

[1]

THE USES OF LAW IN INTERNATIONAL PEACE-KEEPING

Oscar Schachter^*

* Director, General Legal Division, United Nations Secretariat. B.S.S., 1936, College of the City of New York; LL.B., 1939, Columbia University. Visiting lecturer, Yale Law School.

The article is written in Mr. Schachter’s personal capacity and the views presented are not to be attributed to the organization with which he is associated. Most of the article is adapted from lectures given by Mr. Schachter at the Hague Academy of International Law in 1963 under the general title “The Relations of Law, Politics and Action in the United Nations.”

Because of the great rapidity with which an inflammable international situation can materialize and become critical, and because of the overtones of world holocaust which accompany such situations, an organization designed to keep peace in our present world must be able to act quickly and positively, and in modes that will not of themselves compound the crisis. Mr. Schachter points out that legal precepts and precedents are essential to effective on-the-spot peacekeeping action by the United Nations. For they, on the one hand, provide a framework within which the peace-keeping agency and its members may operate and, on the other hand, make possible confidence in the legality and impartiality of the agency. He proceeds to examine United Nations peace-keeping operations as occasioned both by frontier conflicts and internal turmoil, tracing the role of legal principles in the evolution of an effective peace-keeping apparatus and drawing to light the importance, over and above the principles themselves, of their impartial, consistent, and reasoned application in a manner characteristic of “law.”

THE task of keeping the peace was viewed by the drafters of the United Nations Charter mainly in terms of deliberative, measured, and even protracted procedures. They understood that peace could not be secured by fiat or the mere assertion of authority, and they expected that the processes of settlement and adjustment would require time—-time for negotiation, for inquiry, for working out compromises, for diplomacy, and for debate.¹ The more time, as a rule, the better; “as long as they talk they will not fight.” The very delays inherent in the quasi-parliamentary procedures of the General Assembly and the Security Council—the submission and adoption of agenda items, the virtually untrammelled right to speak, the procedural maneuvers—were regarded as virtues as well as necessities.

Actual events did not always fit into this general conception. It soon became evident that the maintenance of the peace could not in every case be left to negotiation or debate; some type of action was required to prevent an outbreak of hostilities or to bring about an end to those which had already begun. Such “action” embraced a variety of measures: most typically, observation and reporting; sometimes administration, technical measures, and public information; and in the most critical cases, the use of armed force.

Moreover, action had to be taken speedily. An apparently minor frontier incident, if unchecked, could set in motion a series of irreversible events. Domestic disorders could quickly bring about foreign military action, with counteraction by a rival state. A show of strength could involve a confrontation by the major powers and subsequent steps to the brink which demanded immediate action. In the past, even in 1945, international conflict was viewed mainly in spatial terms—the movement of troops or vessels over surface areas, the demarcation of boundaries, and the exercise of territorial dominion. Today the significant dimension is more likely to be time. Threats are measured in hours or minutes; relative strength is calculated as much in terms of time-lag as in quantities; the danger of “escalation” is perceived more as a sequence of events in time than as moves through space.²

Related to this is the impact that the new technology, especially of weapon systems, has had in fixing the limits of armed conflict. It has become a truism that the major factor influencing governments to refrain from, or at least to limit, armed hostilities is the pervading risk of almost universal destruction, a risk recognized not only in instances of direct confrontation of the great powers but also as implicit in small-power disputes and even in internal disorder likely to have international repercussions. We take it for granted that there can be virtually no aspect of international tension which does not fall under the shadow of nuclear disaster, and when we speak of the common interest of all peoples in preserving peace, that well-worn generality has a sharpness, a direct personal impact, which transmutes every far-off conflict into a matter of immediate self-interest.

It is against this background that I shall discuss some aspects of the measures taken by the United Nations to preserve the peace in its most immediate sense, that is to extinguish the local fires that threaten to ignite the rest of the globe. My purpose, in part, is to show that these emergency “fire-brigade” activities are more complicated and subtle than may seem to be the case; they involve more than rushing observers and soldiers to the scene or getting Washington and Moscow to restrain (or perhaps exercise) their influence. “Action” even in times of crisis takes place in the context of political, legal, and institutional determinants, and the significance and effectiveness of such action will usually depend on factors that lie outside of the operation itself and which may not at times be perceptible to those directly engaged in it.

The Function of Law in Peace-Keeping Activities

Before going into particular situations, I should like to present a few general observations about the role that law can perform in the processes of peace-keeping. There are several aspects meriting mention. One is the role of legal authority in providing a locus standi for third party intervention by an international organ or individual official. It is true that this may not always be essential; a friendly state may on occasion lend its good offices to bring about a settlement without invoking a juridical basis. But such voluntary conciliatory assistance has its limitations: the mediator’s self-interest may be suspected, rival states may harbor resentment, internal factions may be displeased.³ In general, 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 Charter. The fact that an international organ has been granted formal authority, whether by the Charter or an armistice or cease-fire agreement, may in itself be an element in overcoming a ground of resistance to its participation, whether such participation involves good offices or a “presence” or more. Often a prior commitment by a state to rules and procedures laid down in the Charter or another legal instrument removes questionable implications which might be raised by offers of assistance from a third-party “volunteer.”⁴ Even if a state on its own accord assumes the role of “good offices” it may find it useful, as several have, to link its efforts to the pacific settlement provision of the Charter.⁵

The role of law is also manifest in the use of prescribed standards and rules to facilitate settlement and discussion. One must be careful to avoid overstating this aspect; hostilities are not generally called off because legal norms are invoked. There are, nevertheless, situations in which a skilled and perceptive “peace-keeper” will find that persuasion is immensely facilitated by invoking legal obligations and prescriptions.⁶ United Nations experience has shown that governments will more easily acquiesce in an unwelcome ruling if it is supported by fairly specific provisions of an armistice agreement or a cease-fire resolution which has been accepted by the parties. Moreover, United Nations troops or military observers will be able to move freely to the scene of a disturbance without the delays of official clearance if they can invoke a “status” agreement with the host government which clearly guarantees freedom of movement.⁷ Consequently, in most of the United Nations peace-keeping operations the presence of a legal foundation for the necessary activities has been found to be essential to effective performance.

This legal foundation is essential not only for relations with the host state, but also for regulation and guidance of the international personnel engaged in the operation. The very fact that the Organization is composed of competitive blocs, wary of each other, underlines the importance of ensuring that those who act in the name of the Organization adhere as strictly as possible to the principles and decisions of the political organs. To achieve this, there must be measures of control and supervision by the member states, and to a large extent such measures must take the form of general rules and prescribed procedures. Thus, in each of the emergency peace-keeping operations (ranging from observation to “law and order” functions) there has been a governing body of law consisting of, first, the resolutions of the political organ responsible for the operation; second, agreements by the states concerned (especially the territorial states) with the United Nations or between themselves; and third, regulations and rules promulgated by the Secretary-General or his representative. Since these legal rules necessarily cannot cover all contingencies, it has been considered appropriate to invoke and rely upon precedents and consistent practice as evidence of the agreed interpretations.

In addition, in certain situations, the required guidance for international officials has to be sought in the recognized precepts of international law and in the general principles of law accepted by states. By utilizing and relying upon well-established principles as well as upon techniques of legal analysis, the international official is enabled to adopt and justify positions which might otherwise seem to be novel and perhaps attributable to personal predilections.⁸ Of course, legal precepts and techniques cannot in themselves fully safeguard the interest of the Organization in ensuring the proper performance of its mandates; there are inevitably areas of discretion and judgment left to the administrative official where rule and precept provide but slight, if any, guidance. In these areas, techniques of review and supervision by the member states have assumed importance and have given rise to controversial proposals for new forms of governmental control.⁹ Also quite important are the requirements relating to the responsibility and standards of the international civil service. It is especially in the situations we are considering—those involving strife, bitterness, impassioned partisans—that there is a need for the impartiality, dedication, and understanding that are the essential qualities of those entrusted with the task of bringing about peace admidst hostility and distrust.

Surveillance in Frontier Areas and Along Demarcation Lines

The task of peace-keeping, in its most common aspect, has focused on troubled frontier regions where hostility between neighboring countries has given rise to acts of violence and depredation which have threatened to spread or escalate into outright warfare. In its first year, 1946, the United Nations undertook a field operation to investigate Greek charges of frontier violations. The Security Council, acting under Chapter VI, dispatched to Greece and its neighbors a commission of investigation composed of one representative of each of the Council members. This governmental commission, assisted by a large Secretariat staff, carried on inquiries on the spot, heard more than 200 witnesses, filled three large volumes of evidence, and made findings as to the responsibility for supporting guerilla warfare.¹⁰ In the next year, a similar governmental body, the United Nations Special Committee on the Balkans (UNSCOB), was set up by the General Assembly; it utilized observer teams in Greece (they were not admitted into the neighboring states) and submitted detailed reports to the General Assembly.¹¹ Thus, the United Nations instituted the prototype of peace-observation activity: a mechanism for inquiry, fact-finding, and reporting. Inquiries were conducted through interviews and submissions by national officials. The Commissions possessed no compulsory powers to elicit testimony or to require the productions of evidence. The only “sanction” consisted of reports and findings to the United Nations organs and such consequential influence as they might have on governmental policy.

In subsequent situations—especially those involving India and Pakistan in the Jammu-Kashmir region and Israel and its Arab neighbors in the Palestine area—the fact-finding inquiry evolved into more extensive and more durable machinery for rapid observation and reporting of incidents and violations. One significant development was that the commission of government representatives was replaced by personnel appointed by and under the authority of the Secretary-General, although of course he and they were subject to the resolutions and decisions of the Security Council. The observers were almost entirely military personnel seconded by their national governments; they were not, strictly speaking, international Secretariat personnel, but they were international “agents” (as the International Court put it in the Reparations opinion) who were responsible to the Organization alone in the performance of their official duties and who did not look to their respective national governments for instructions.¹²

Both the Truce Supervision Organization in Jerusalem (UNTSO) and the Military Observers Group in Kashmir (UNMOGIP) received their authority from the Security Council and were to report to the Council on the observance of the respective cease-fire arrangements in each area. In the case of UNTSO, the staff was also assigned to assist in the supervision of the General Armistice Agreements through the Mixed Armistice Commissions established thereunder.¹³ However, because UNTSO was also directly responsible to the Security Council for reporting on the observances of the cease-fire order of July 15, 1948, the Chief of Staff was able to act quickly, as General Burns stated, “without the delays and restrictions imposed by the rules of procedure adopted by the parties for the work of the Mixed Armistice Commissions.” ¹⁴ The Chief of Staff was in a position to send observers instantly to the area of disturbance and to arrange a cease-fire before the investigation machinery of the Armistice Agreement was set in motion. Similarly, in the case of the military observers in the Kashmir area, incidents could be dealt with on the spot and arrangements made to preserve the cease-fire terms with...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• PART I THE ROLE AND THE RULE OF LAW IN INTERNATIONAL PEACEKEEPING
• PART II THE CONSTITUTIONAL BASIS OF PEACEKEEPING
• PART III PRINCIPLES OF INTERNATIONAL PEACEKEEPING
• PART IV LAW APPLICABLE TO PEACEKEEPING OPERATIONS
• PART V INTERNATIONAL ADMINISTRATIONS
• Name Index