Visiting MLS as the the Asia Pacific Centre for Military Law 2017 Sir Ninian Stephen Scholar in October, UN Secretary–General for Legal Affairs, Dr Stephen Mathias gave a public lecture on the topic ‘UN Peacekeeping Today: Legal Challenges and Uncertainties’
In his lecture, Dr Mathias considered the multidimensional nature of UN peacekeeping operations, which are no longer limited to ‘keeping the peace.’ With operations increasingly at risk of exposure to threats from armed groups and sometimes being called upon to use force, a number of questions have arisen about whether and how international humanitarian law applies to UN peacekeepers.
“There are exceptional situations in which UN peacekeeping operations have become directly involved in regular armed clashes with organised armed groups, such as in Somalia and the Democratic Republic of the Congo,” he said.
“And it is in these cases that the most acute problems arise.”
Using the case study of the Democratic Republic of the Congo, Dr Mathias explained that the UN peacekeeping operation was authorised by the UN Security Council to carry out ‘targeted offensive operations’ against armed groups.
Whether this meant that the peacekeepers were parties to the armed conflict is a matter of debate, however, Dr Mathias stressed that the answer to this question is important in a broader context. This is because if a peacekeeping mission were to be considered a party to an armed conflict, they would lose the protection of civilian status under international humanitarian law (IHL).
“The issue remains largely unresolved…however…when the issue has arisen in the International Criminal Court, the courts are determining that peacekeeping personnel lose the protection given to civilians on an individual basis rather than a collective basis,” he said.
“Only those individuals that are directly engaged in military operations will become lawful targets.’
Dr Mathias then moved on to reflect on the potential international responsibility of the United Nations for acts of force by its peacekeeping missions. While the UN Secretariat has taken the ‘clear position’ that the UN will be responsible for violations of IHL committed by members of a peacekeeping mission under UN command and control, some have questioned whether countries supplying troops can be held responsible for IHL violations.
Drawing upon an example of Dutch troops that were part of the UN peacekeeping mission in the Former Yugoslavia during the 1990s, Dr Mathias explained that countries can be held responsible for troop actions in this context if they have effective control of their troops.
‘This case illustrates that not all actions by troops serving in a UN peacekeeping operation would be attributable to the UN, and that in certain specific cases actions could be attributed to state,’ Dr Mathias said.
The final topic Dr Mathias touched on was the UN’s efforts to address sexual exploitation and abuse by UN peacekeepers and officials, an issue which has been the subject of much attention since 2002, when reports were released alleging various instances of sexual exploitation and abuse in refugee camps in West Africa.
Dr Mathias explained that the UN is committed to stamping out sexual exploitation and abuse by its peacekeepers and while the organisation’s efforts have been met with some challenges, “the situation is not entirely bleak.”
‘Some recent efforts by our new Secretary-General may bear fruit,’ he said citing the establishment of a new Victim’s Rights Advocate and a voluntary compact signed by more than 70 member states.
Although presenting new challenges for the UN, work is being done by a many member states to ensure that sexual exploitation becomes a thing of the past.
Report by Patrick Sexton