International Law and the Evolution of Peacekeeping Operations

The Evolution and Historical Context of International Peacekeeping

The 1990s represented a unique era in international relations where multilateralism was functional, and the United Nations (UN) Security Council worked with a degree of coherence. During this period, Department of Peacekeeping Operations (DPKO) missions and the iconic "Blue Helmets" were deployed globally to manage conflicts. However, there has been a significant swing away from this cooperation, mirroring domestic politics and leading to a more fragmented international legal landscape. While self-correction mechanisms in international law exist, the current climate is characterized by criticism and a lack of unified voice within the Security Council.

The United Nations is currently undergoing a major period of reform, largely driven by funding cuts from major donors including the United States, the United Kingdom, Switzerland, and the European Union. These cuts average between $22.5\,\%$ and $30\,\%$, with some UN agencies forced to cut $30\,\%$ to $40\,\%$ of their staff and budgets overnight. For example, major HIV programs in Southern Africa funded by USAID faced immediate cessation due to these funding shifts. The UN, described as an international civil service with staff from over $190$ countries, faces chronic friction, bureaucracy, and a massive cash flow deficit due to many governments being in arrears. It is predicted that it will take five to ten years for a new international structure to stabilize.

Institutional Structure and the United Nations Governance

The modern United Nations was established in the 1940s, specifically in $1948$, following the failure of the League of Nations. The UN Charter was designed to prevent the recurrence of world wars and established the framework for human rights through the UN Declaration of Human Rights and subsequent treaties. The organization is divided into two primary organs: the UN Security Council (UNSC) and the UN General Assembly (UNGA).

The UNSC is the executive body, consisting of $15$ members, including the five permanent members (P5): the US, UK, France, China, and Russia. The P5 hold veto power, which can block any resolution. There have been decades of calls to dilute this veto power or give more weight to the other $10$ non-permanent members. While procedures exist to take matters to the General Assembly if the Council undermines the UN Charter, this rarely occurs. The General Assembly primarily handles budgetary issues, treaty mechanisms, and treaty bodies. The UNSC operates with an annual rotating presidency and serves as the primary decision-making hub for global security.

The Mechanics of UN Peacekeeping Operations (DPKO)

Peacekeeping operations find their legal basis in the UN Charter, particularly Chapter VII, which addresses threats to peace, breaches of peace, and acts of aggression. Article $41$ allows for non-forcible measures such as sanctions, blocks, and the isolation of communications (postal, telegraphic, radio). Article $42$ is the most critical for peacekeeping, as it authorizes the use of air, sea, and land forces to restore international peace and security. Although a permanent standby force was initially envisioned, the UN currently uses an ad-hoc process where resolutions are passed based on reports from special rapporteurs.

The DPKO recruits personnel from what is described as a "market place." A typical mission might require between $2,000$ and $10,000$ troops, along with police and civilian staff. Since the mid-1990s, there has been a shift in troop contribution; Western powers participate less in direct ground operations, and the majority of troops now come from non-Western nations such as Bangladesh, Kenya, Pakistan, India, Mongolia, and various African states. Conversely, Western powers continue to provide much of the equipment, logistics, and high-tech support. Russia has notably not contributed significant peacekeepers for several years.

Rules of Engagement (ROE) versus Rules on the Use of Force (RUF)

A significant tension exists in the mindset of peacekeeping personnel due to the difference between military training and peacekeeping mandates. Soldiers are traditionally trained on Rules of Engagement (ROE), a military mindset focused on identifying targets, neutralizing threats, and using kinetic force within parameters defined by International Humanitarian Law (IHL). In contrast, peacekeeping often requires Rules on the Use of Force (RUF), which is a law enforcement mindset centered on de-escalation, self-defense, and the defense of others as a last resort.

Most military personnel lack specific training in law enforcement RUF, leading to reflexive military-style responses in civilian environments. UN Security Council resolutions typically do not ask for a fighting force but a peacekeeping force. This discrepancy causes operational challenges when military-trained troops are deployed to engage in police-style interactions during active armed conflicts.

Legal Status and Accountability of UN Peacekeepers

Under International Humanitarian Law (IHL) and Rule $33$ of the ICRC Customary Law study, peacekeepers are legally classified as civilians. Because they are not combatants, they are protected against direct attack. Directing an attack against a peacekeeper is a war crime under the Statute of the International Criminal Court (established in $2008$). This protection remains valid so long as the peacekeeper does not take a direct part in hostilities (DPH). The paradox is that peacekeepers often look like military personnel—wearing uniforms, carrying weapons, and driving armored vehicles—yet retain civilian legal status.

Accountability for violations committed by peacekeepers follows a complex regime. Responsibility primarily lies with the Troop Contributing Country (TCC). A British soldier committing a crime in Sierra Leone is meant to be repatriated and prosecuted in the UK. While the UN Secretary General can request a waiver of immunity to allow domestic prosecution in the host state, this is exceedingly rare. Major transgressions, including sexual assault and reports of peacekeepers bringing cholera to Haiti roughly $10$ to $15$ years ago, have often resulted in immunity rather than accountability. There have been very few successful prosecutions for IHL violations by peacekeepers.

Evolutionary Mandates: From Protection to Offensive Action

Traditional peacekeeping mandates focused on the Protection of Civilians (POC) under "imminent threat of physical violence," essentially a reactive law enforcement model. However, frustration over failures in the 1990s led to more robust, offensive mandates. The MONUSCO mission in the Democratic Republic of Congo (DRC) created an "Intervention Brigade" consisting of infantry, artillery, and special forces. Its mandate was to "neutralize" armed groups through offensive action—a departure from traditional peacekeeping meant to be exceptional and "without prejudice" to standard principles.

Similarly, AMISOM in Somalia (an African Union force with UN authorization) was empowered to conduct offensive operations against Al-Shabaab. These mandates raise serious legal questions: once peacekeepers engage in offensive operations to neutralize a group, they likely become parties to the conflict and lose their civilian protection. From a defense lawyer's perspective, if a non-state armed group shoots a peacekeeper participating in hostilities, it may not constitute a war crime under IHL, even if it remains a crime under domestic law.

Case Studies in Failure and the Kigali Principles

The failure of peacekeepers to prevent massacres in the 1990s, most notably in Rwanda and Srebrenica, reshaped global attitudes. In Rwanda ($1994$), the Hutu and Tutsi ethnic demarcations, largely legacy distinctions from Belgian colonial rule and the Catholic Church, culminated in the genocide of approximately $1,000,000$ people in only $100$ days. Peacekeepers at one school guarding $3,000$ Tutsi refugees were ordered to withdraw to evacuate expatriates. Within $24\,\text{hours}$ of the Blue Helmets' departure, all $3,000$ refugees were massacred. This demonstrated that the mere presence of peacekeepers acts as a "firewall," even if they do not fire a shot.

To address the "standoff" approach where peacekeepers act only as a last resort, the Kigali Principles were developed in $2017$. These non-binding principles encourage peacekeepers to be more proactive, even offensive, to prevent harm to civilians when the host nation fails to act. For example, in Haiti, the UN recently authorized the Gang Suppression Force (MSS), a Kenyan-led mission intended to deploy $5,500$ troops to dismantle gangs. However, effective deployment has been hampered by troop shortages, with only about $800$ personnel ($20\,\%$) committed so far.

Future Trends: Privatization and Private Contractors

With the UN suffering from funding issues and weak mandates, a growing school of thought suggests contracting peacekeeping to private entities like Eric Prince, Vextrus Global, or the Wagner Group. Private contractors have already been seen in Cabo Delgado (Mozambique) and are being considered for humanitarian delivery in Gaza. Critics argue that adding a corporate structure creates layers of legal obscurity, lacks democratic oversight, and introduces a profit motive that may conflict with humanitarian goals. Supporters point to the high cost of traditional missions—MONUSCO in the DRC costs roughly $1,000,000,000$ annually, totaling over $15,000,000,000$ over its lifespan—as a reason to seek more efficient private alternatives.

Questions & Discussion

Student Question: You mentioned there's not much coherence in international lawmaking today. Do you see a swing back toward effectiveness, or is it just a messy reality?

Response: There are self-correction mechanisms, but currently, international law is highly criticized. Security Council resolutions are often implemented only behind headline news of destruction. The realignment will take five to ten years for the dust to settle into a new structure. We should not expect the UNSC to speak with one voice anytime soon.

Discussion on Sierra Leone: The class was tasked with asking Professor David Crane why the Special Court for Sierra Leone did not prosecute peacekeepers under its mandate, despite allegations against ECOWAS (ECOMOG) Nigerian troops. The answer usually involves prosecutorial discretion, cost-benefit analysis, and the strategy of building cases against the most responsible leaders, though it leaves the issue of impunity for peacekeepers unaddressed.

Hypothetical Research Task: Students researching the conflict in Cabo Delgado (Mozambique) within the last five years should focus on the determination of armed conflict (international vs. non-international), the role of private military contractors, and the humanitarian context involving natural resources and geographic dynamics.