Faculteit Rechtsgeleerdheid
Universiteit Gent
Academiejaar 2012-13
THE MILITARISATION OF THE UNITED NATIONS
PEACEKEEPING OPERATIONS
Masterproef van de opleiding
‘Master in de rechten’
Ingediend door
Hanna Bourgeois
(studentennr. 00802830)
Promotor: Professor dr. An Cliquet
Commissaris: Cécile Vandewoude
Faculteit Rechtsgeleerdheid
Universiteit Gent
Academiejaar 2012-13
THE MILITARISATION OF THE UNITED NATIONS
PEACEKEEPING OPERATIONS
Masterproef van de opleiding
‘Master in de rechten’
Ingediend door
Hanna Bourgeois
(studentennr. 00802830)
Promotor: Professor dr. An Cliquet
Commissaris: Cécile Vandewoude
Summary (Dutch version)
De situatie met betrekking tot de vredesoperaties van de Verenigde Naties (VN) is precair;
steeds meer lijken de operaties te falen in hun opzet. De voorbije jaren heeft de VN
Veiligheidsraad het concept van VN-vredesoperaties ingeroepen in tal van situaties in een
poging een antwoord te formuleren op de veranderende aard van conflicten. VNvredesoperaties werden initieel opgericht om te fungeren als een buffer bij interstatelijke
conflicten ten einde de vrede te bewaren tussen de twee staten. Sinds het einde van de Koude
Oorlog wordt de VN Veiligheidsraad steeds frequenter geconfronteerd met interstatelijke
conflicten met een etnisch of religieus karakter waarbij het geweld in vele gevallen tot de
eigen bevolking wordt gericht. De VN Veiligheidsraad heeft op een vruchteloze wijze
getracht een antwoord te formuleren op deze evolutie. De hierna geschetste actuele praktijken
van de VN Veiligheidsraad raken echter duidelijk aan de kern van VN-vredesoperaties:
(1) VN-vredesoperaties zijn oorspronkelijk gebaseerd op de drie fundamentele van
instemming van ontvangststaat, onpartijdigheid en beperking van het gebruik van geweld tot
zelfverdediging. In de loop der jaren heeft de VN Veiligheidsraad steeds meer nagelaten de
toestemming van de ontvangststaat te bekomen, heeft ze steeds vaker aan de VN-soldaten de
mogelijkheid gegeven om wapengeweld te gebruiken en hebben deze operaties steeds minder
een onpartijdige rol gespeeld in het conflict.
(2) De VN Veiligheidsraad heeft zich alsmaar meer gebaseerd op Hoofdstuk VII van het
VN-Handvest bij de oprichting van VN-vredesoperaties. Het oprichten van een VNvredesoperaties onder hoofdstuk VII van het VN-Handvest roept vragen op over de aard en
omvang van deze operatie. Hoofdstuk VII geeft aan de VN Veiligheidsraad de mogelijkheid
om wapengeweld te machtigen. Bovendien hebben de maatregelen onder Hoofdstuk VII een
dwingend karakter waardoor de instemming van de ontvangststaat niet wettelijk vereist is.
(3) De VN Veiligheidsraad heeft de VN-troepen beduidend meer complexe en robuuste
mandaten toegekend. De eerste VN-vredesoperaties vervulden in het verleden voornamelijk
een buffer-rol in het conflict om de spanning tussen de partijen op te lichten en hen te
begeleiden in het vredesproces. De huidige mandaten zijn echter hoofdzakelijk gericht op
enerzijds civiele taken en anderzijds zuiver militaire taken zoals de bescherming van de
burgers tegen het buitensporig geweld en het ontwapenen van militaire fracties.
Het veranderend karakter van VN-vredesoperaties heeft geresulteerd in gemilitariseerde VNvredesoperaties. De term ‘gemilitariseerde VN vredesoperatie’ wijst in deze thesis op een
operatie die is opgericht door de VN Veiligheidsraad onder Hoofdstuk VII van het VNHandvest, die valt onder het bevel en controle van de VN Veiligheidsraad, en die ten minste
één van de drie fundamentele principes - instemming van ontvangststaat, onpartijdigheid en
beperking van het gebruik van geweld tot gevallen van zelfverdediging - niet respecteert.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
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Het onderzoek in deze masterproef heeft zich enerzijds gewijd aan de vraag op welke wijze
het traditionele concept van VN-vredesoperaties is getransformeerd in gemilitariseerde VNvredesoperaties (Onderzoeksvraag 1) en anderzijds binnen welk wettelijk kader dit gesitueerd
kan worden (Onderzoeksvraag 2).
In het eerste deel van het onderzoek wordt, door middel van een gedetailleerde bespreking
van een aantal VN-vredesoperaties, aangetoond dat de drie fundamentele principes in de
praktijk geen weerklank vinden waardoor de VN-vredesoperaties steeds vaker een
gemilitariseerd karakter verwerven. Sommige VN-vredesoperaties werden initieel opgericht
als traditionele VN-vredesoperaties maar werden later omgevormd tot gemilitariseerde VNvredesoperaties. Andere operaties bleken reeds bij de oprichting een gemilitariseerd karakter
te hebben. Wanneer we de effectieve resultaten van deze operaties bestuderen, kunnen we ons
niet van de mening ontdoen dat de grote meerderheid van deze operaties mogelijks hun doel
niet hebben bereikt.
Het tweede deel van dit onderzoek is gewijd aan de vraag binnen welk wettelijk kader
gemilitariseerde VN-vredesoperaties gesitueerd kunnen worden. Gemilitariseerde VNvredesoperaties vinden enerzijds hun wettelijk kader in Hoofdstuk VII van het VN-Handvest
en anderzijds in de instemming van de ontvangststaat. Wat betreft Hoofdstuk VII van het VNHandvest kan gesteld worden dat zowel artikel 40, als artikel 41 en 42 in aanmerking komen
als constitutionele basis voor de oprichting van gemilitariseerde VN-vredesoperaties. Om
onder één van deze artikels te ressorteren, dient er evenwel te worden voldaan aan de
volgende twee voorwaarden: (1) de wettelijke vereisten van het betreffende artikel moeten
vervuld zijn en (2) de specifieke fundamentele principes dienen al dan niet gerespecteerd te
worden. Wat betreft het principe van de instemming van de ontvangststaat, wordt er in deze
masterproef aangetoond dat het principe mag dienen als wettelijke basis voor de plaatsing van
VN-vredesoperaties.
Tot slot kan men concluderen dat de militarisatie van VN-vredesoperaties niet altijd resulteert
in de gewenste effecten. De troepen zijn veelal niet in staat om de gemandateerde taken uit te
voeren en tot een goed einde te brengen, hetgeen schade toebrengt aan het imago van de
Verenigde Naties. In de toekomst zou de VN Veiligheidsraad kunnen overwegen om terug te
keren naar het traditionele concept van VN-vredesmissies waarbij de drie fundamentele
principes ten volle worden gerespecteerd. Dit impliceert echter wel dat de VN
Veiligheidsraad zich zou moeten beramen over een alternatief voor de gemilitariseerde VNvredesoperaties die tot op heden voornamelijk ingezet worden om de vrede af te dwingen. De
VN Veiligheidsraad kan ervoor opteren een staat of een coalitie van staten te machtigen een
militaire operatie op te richten om de vrede af te dwingen. Pas wanneer er effectief sprake is
van vrede, zou de VN Veiligheidsraad VN-vredesoperaties kunnen oprichten om deze vrede
te bewaren. Het is immers onmogelijk om met dezelfde partijen, op hetzelfde ogenblik, op
hetzelfde landgebied zowel oorlog te voeren als vrede te sluiten.1
1
S., THAROOR, 1995. ‘The Changing Face of Peace-keeping and Peace-enforcement’. 19(2) Fordham I.L.J. 419.
II
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
Foreword
This master thesis on the ‘Militarisation of United Nations Peacekeeping Operations’ has
been written to obtain the Master of Laws at Ghent University.
I have been inspired to write about UN peacekeeping by my LL.M. course on ‘Post-Conflict
Situations’, taught by Professor White, which I completed at the University of Nottingham in
the spring of 2012.
However, this thesis would not have been possible without the guidance and support of
numerous people who have in one way or another contributed and extended their valuable
assistance in the preparation and completion of this study.
First and foremost, I would like to sincerely thank my supervisor at Ghent University,
Professor dr. An Cliquet, who has steadily guided me through the past months. I am grateful
for her excellent and, above all, indispensable academic guidance. Also her willingness to
give her time so generously has been very much appreciated.
I would like to thank Marc Roels for the numerous proof readings of my master thesis and his
fruitful feedback and valuable contributions.
I would also like to express my gratitude to Kvehl McDermott for editing my master thesis, in
particular for correcting the language use. I am also grateful for her endless patience and
support.
A special thanks goes to my supportive friends and family who have been there for me and
kept my spirit up, in particular my mother, father and sister. They have been my touchstone
throughout the writing of my thesis. I would also like to thank Heleen Geerts for providing
encouragement and invaluable backing through lots of laughter.
The most special thanks goes to my partner and best friend, Tom, you gave me your
unconditional support and love through all this long process.
Thank you.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
III
IV
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
Table of Contents
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS ...... I
Summary (Dutch version) ....................................................................................................... I
Foreword ..............................................................................................................................III
Table of Contents ................................................................................................................... V
Table of Abbreviations ......................................................................................................... IX
Table of UN Peacekeeping Operations ................................................................................ XI
I. Problem Formulation & Research Question ......................................................... 1
1. Problem Formulation: the Militarisation of UN Peacekeeping Operations ......................1
2. Definition of Militarised UN Peacekeeping Operations ....................................................5
3. Research Questions ............................................................................................................6
Research Question 1: How has the concept of traditional UN peacekeeping been transformed
into militarised UN peacekeeping? ..............................................................................................6
Research Question 2: What constitutes the legal framework of militarised UN peacekeeping
operations? ....................................................................................................................................6
4. Research Delimitation ........................................................................................................6
5. Methodology and Structure of the Master Thesis...............................................................7
II. The Concepts of UN Peacekeeping, Enforcement, and Peace Enforcement ... 11
1. Introduction ......................................................................................................................11
2. UN Peacekeeping Operations and the Three Fundamental Principles ...........................12
2.1. Legal Uncertainty ......................................................................................................12
2.2. Terminological Ambiguity ........................................................................................13
2.3. Characteristics of Traditional UN Peacekeeping Operations ....................................14
2.4. The Three Fundamental Principles of UN Peacekeeping ..........................................16
2.4.1. Origin of the Three Principles ..........................................................................................16
2.4.2. Principle 1: Consent of the Host State ..............................................................................17
2.4.3. Principle 2: Impartiality ....................................................................................................30
2.4.4. Principle 3: Non-Use of Force beyond Self-Defence .......................................................34
3. Enforcement and Peace Enforcement: How is it Different from UN Peacekeeping? ......42
3.1. Enforcement Operations ............................................................................................42
3.1.1. The Concept of Enforcement............................................................................................42
3.1.2. Difference Between Enforcement and UN Peacekeeping? ..............................................44
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
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3.2. Peace Enforcement Operations ..................................................................................46
3.2.1. The Concept of Peace Enforcement .................................................................................46
3.2.2. Difference Between Peace Enforcement and UN Peacekeeping? ....................................47
4. Conclusion on the Concepts of UN Peacekeeping, Enforcement, and Peace Enforcement
..............................................................................................................................................50
III. Research Question 1: How has the Concept of Traditional UN Peacekeeping
been transformed into Militarised UN Peacekeeping? ........................................... 53
1. Introduction ......................................................................................................................53
2. The Early Peacekeeping Operations ................................................................................55
2.1. Observer missions .....................................................................................................55
2.2. Egypt and Israel .........................................................................................................56
2.3. The Republic of the Congo ........................................................................................58
3. UN Peacekeeping Operations during the 1970s and the 1980s .......................................60
4. UN Peacekeeping Operations during the 1990s ..............................................................62
4.1. Introduction ...............................................................................................................62
4.2. An Agenda for Peace .................................................................................................62
4.3. The Former Yugoslavia .............................................................................................64
4.4. Somalia ......................................................................................................................67
4.5. Rwanda ......................................................................................................................69
4.6. Supplement to an Agenda for Peace ..........................................................................71
5. The UN Peacekeeping Operations of the Twenty-First Century ......................................72
5.1. Introduction ...............................................................................................................72
5.2. The Brahimi Report and the First Call for Robust Peacekeeping .............................73
5.3. Sierra Leone ...............................................................................................................75
5.4. East Timor .................................................................................................................77
5.5. The Second Call for Robust Peacekeeping ...............................................................79
5.6. The Democratic Republic of the Congo ....................................................................82
5.7. Liberia ........................................................................................................................86
5.8. Côte d’Ivoire ..............................................................................................................90
5.9. South Sudan ...............................................................................................................92
6. Conclusion on Research Question 1 .................................................................................95
VI
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
IV. Research Question 2: What constitutes the Legal Framework of Militarised
UN Peacekeeping Operations?.................................................................................. 97
1. Introduction ......................................................................................................................97
2. Chapter VI or VII of the UN Charter? ...........................................................................100
2.1. Distinction between Chapter VI and VII of the UN Charter ...................................100
2.2. How to determine Whether the Operation falls under Chapter VI or VII? .............101
3. Chapter VI of the UN Charter ........................................................................................103
4. Chapter VII of the UN Charter .......................................................................................106
4.1. Introduction .............................................................................................................106
4.2. Article 39 of the UN Charter ...................................................................................107
4.2.1. Legal Requirements under Article 39 of the UN Charter ...............................................107
4.2.2. Article 39 of the UN Charter as a Constitutional Basis? ................................................108
4.3. Article 40 of the UN Charter ...................................................................................109
4.3.1. Legal Requirements under Article 40 of the UN Charter...............................................109
4.3.2. Article 40 of the UN Charter as a Constitutional Basis? ................................................111
4.3.3. Conclusion on Article 40 of the UN Charter ..................................................................114
4.4. Article 41 of the UN Charter ...................................................................................114
4.4.1. Legal Requirements under Article 41 of the UN Charter...............................................114
4.4.2. Article 41 of the UN Charter as a Constitutional Basis? ................................................115
4.4.3. Conclusion on Article 41 of the UN Charter ..................................................................117
4.5. Article 42 of the UN Charter ...................................................................................118
4.5.1. Legal Requirements under Article 42 of the UN Charter...............................................119
4.5.2. Article 42 of the UN Charter as a Constitutional Basis? ................................................120
4.5.3. Conclusion on article 42 of the UN Charter ...................................................................121
5. Consent as a Constitutional Basis for Militarised UN Peacekeeping Operations? .......121
6. Different Constitutional Bases can be Combined ..........................................................125
7. Conclusion on Research Question 2 ...............................................................................127
V. Conclusions and Recommendations .................................................................. 129
VI. Bibliography....................................................................................................... 133
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VIII
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
Table of Abbreviations
CNDP:
National Congress for the Defence of the People
CPA:
Comprehensive Peace Agreement
DRC:
Democratic Republic of the Congo
ECOFORCE:
ECOWAS Peacekeeping Force in Côte d’Ivoire
ECOMICI:
ECOWAS Mission in Côte d’Ivoire
ECOMIL:
ECOWAS Mission in Liberia
ECOWAS:
Economic Community of West Africa
FARDC:
Military of the Democratic Republic of the Congo
ICISS:
International Commission on Intervention and State Sovereignty
ICTY:
International Criminal Tribunal for the Yugoslavia
INTERFET:
The International Force for East Timor
MINUCI:
United Nations Mission in Côte D’Ivoire
MONUC:
United Nations Organization Mission in the Democratic Republic of
the Congo
MONUSCO:
United Nations Organization Stabilization Mission in the Democratic
Republic of the Congo
NATO:
North Atlantic Treaty Organization
NPFL:
National Patriotic Front of Liberia
ONUC:
United Nations Operation In The Congo
RRF:
Rapid Reaction Force
SPLA:
Sudan People’s Liberation Army
UN:
United Nations
UNAMET:
United Nations Mission in East Timor
UNAMIR (II):
United Nations Assistance Mission for Rwanda (II)
UNAMSIL:
United Nations Mission in Sierra Leone
UNCRO:
United Nations Confidence Restoration Operation
UNEF I:
United Nations Emergency Force I
UNEF II:
United Nations Emergency Force II
UNFICYP:
United Nations Force in Cyprus
UNIFIL:
United Nations Interim Force in Lebanon
UNIKOM:
United Nations Iraq-Kuwait Observation Mission
UNITAF:
Unified Task Force
UNMIBH:
United Nations Mission in Bosnia and Herzegovina
UNMIH:
United Nations Mission in Haiti
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
IX
UNMIL:
United Nations Mission in Liberia
UNMIS:
United Nations Mission in Sudan
UNMISET:
United Nations Mission of Support in East Timor
UNMISS:
United Nations Mission in South Sudan
UNMIT:
United Nations Integrated Mission in Timor-Leste
UNMOP:
United Nations Mission of Observers in Prevlaka
UNOCI:
United Nations Operation in Côte d’Ivoire
UNOL:
United Nations Peace-Building Support Office in Liberia
UNOMIL:
UN Security Council established the United Nations Observer
Mission in Liberia
UNOMSIL:
United Nations Observer Mission in Sierra Leone
UNOMUR:
United Nations Observer Mission Uganda–Rwanda
UNOSOM I:
United Nations Operation in Somalia I
UNOSOM II:
United Nations Operation in Somalia II
UNPREDEP:
United Nations Preventive Deployment Force
UNPROFOR:
United Nations Protection Force
UNTAES:
United Nations Transitional Authority for Eastern Slavonia, Baranja
and Western Sirmium
UNTAET:
X
United Nations Transitional Administration in East Timor
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
Table of UN Peacekeeping Operations
The United Nations Emergency Force I and II (UNEF I and II)
- Egypt and Israel
- November 1956 to June 1967 and October 1973 to July 1979
The United Nations Operation In The Congo (ONUC)
- The Congo
- July 1960 to June 1964
The United Nations Force in Cyprus (UNFICYP)
- Cyprus
- March 1964 to present
The United Nations Interim Force in Lebanon (UNIFIL)
- Lebanon
- March 1978 to present
The United Nations Protection Force (UNPROFOR)
- Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia (Serbia and
Montenegro) and the former Yugoslav Republic of Macedonia.
- February 1992 to March 1995
The United Nations Operation in Somalia I and II (UNOSOM I and II)
- Somalia
- April 1992 to March 1993 and March 1993 to March 1995
The United Nations Observer Mission Uganda–Rwanda (UNOMUR)
- Uganda and Rwanda
- June 1993 to September 1994
The UN Security Council established the United Nations Observer Mission in Liberia
(UNOMIL)
- Liberia
- September 1993 to September 1997
The United Nations Mission in Haiti (UNMIH)
- Haiti
- September 1993 to June 1996
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
XI
The United Nations Assistance Mission for Rwanda II (UNAMIR (II))
- Uganda and Rwanda
- October 1993 to March 1996
The United Nations Preventive Deployment Force (UNPREDEP)
- Former Yugoslav Republic of Macedonia
- March 1995 to 28 February 1999
The United Nations Confidence Restoration Operation (UNCRO)
- Croatia
- March 1995 to January 1996
The United Nations Mission in Bosnia and Herzegovina (UNMIBH)
- Bosnia and Herzegovina
- December 1995 to December 2002
The United Nations Mission of Observers in Prevlaka (UNMOP)
- Prevlaka peninsula, southern border between Croatia and the Federal Republic of
Yugoslavia
- February 1996 to December 2002
The United Nations Transitional Authority for Eastern Slavonia, Baranja and Western
Sirmium (UNTAES)
- Eastern Slavonia, Baranja and Western Sirmium
- January 1996 to January 1998
The United Nations Observer Mission in Sierra Leone (UNOMSIL)
- Sierra Leone
- July 1998 to October 1999
The United Nations Mission in East Timor (UNAMET)
- East Timor
- June 1999 to October 1999
The United Nations Transitional Administration in East Timor (UNTAET)
- East Timor
- October 1999 to May 2002
The United Nations Mission in Sierra Leone (UNAMSIL)
- Sierra Leone
- October 1999 to December 2005
XII
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
The United Nations Organization Mission in the Democratic Republic of the Congo
(MONUC)
- The Democratic Republic of the Congo and the subregion
- November 1999 to June 2010
The United Nations Mission of Support in East Timor (UNMISET)
- East Timor
- May 2002 to May 2005
The United Nations Mission in Côte D’Ivoire (MINUCI)
- Côte d’Ivoire
- May 2003 to April 2004
The United Nations Mission in Liberia (UNMIL)
- Liberia
- September 2003 to present
The United Nations Operation in Côte d’Ivoire (UNOCI)
- Côte d’Ivoire
- April 2004 to present
The United Nations Mission in Sudan (UNMIS)
- Sudan
- March 2005 to July 2011
The United Nations Integrated Mission in Timor-Leste (UNMIT)
- Timor-Leste
- August 2006 to December 2012
The United Nations Organization Stabilization Mission in the Democratic Republic of
the Congo (MONUSCO)
- The Democratic Republic of the Congo and the subregion
- July 2010 to present
The United Nations Mission in South Sudan (UNMISS)
- South Sudan
- July 2011 to present
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
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XIV
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
I. Problem Formulation & Research
Question
1. Problem Formulation: the Militarisation of UN
Peacekeeping Operations
Over the past centuries, civilizations have always approached the prevention of wars and the
maintenance of peace as the ultimate ideal.2 However, as Secretary-General Javier Pérez de
Cuéllar said in his Nobel Lecture in 1989“Our history overwhelmingly shows that while we
speak incessantly of peace, our actions tell a very different story”.3 The word ‘peace’ is easy
to say, but hard to realise.
After the Second World War, the founding member states of the United Nations declared:
“We the people of the United Nations determined to save succeeding generations
from the scourge of war, which twice in our life-time has brought untold sorrow to
mankind […] and for these ends to unite our strength to maintain international peace
and security.”4
Accordingly, since its founding, the United Nations has looked for ways to resolve inter- and
intra-state conflicts, though with mixed results.5 Initially, a system of collective security was
established in which the main element consisted of the ability to coerce recalcitrant states.
The system is characterised by its double-track approach to preserve or restore international
peace and security, including both non-military and military coercion.6 Article 43 UN Charter
foresees that the member states may agree upon a UN standing force to maintain international
peace and security. The drafters of the UN Charter also installed the right of the veto of the
five of the permanent members of the UN Security Council - including China, Russia, the
United Kingdom, France, and the United States.7
However, in the early days of the Cold War, it became clear that the major powers wouldn’t
be able to agree upon a UN standing force under article 43 of the UN Charter in order to take
military enforcement actions;8 the UN Security Council’s enforcement power depends on the
2
R.J., LEE, 2000. ‘The United Nations Peacekeeping Successes but Peace Enforcement Failures’. 2000 Austl. Int’l. L.J. 180.
J., DÉREZ DE CUÉLLAR, 1989. ‘Nobel Lecture of 9 January 1989’. Accessed 17 January 2013:
http://www.nobelprize.org/nobel_prizes/peace/laureates/1988/un-lecture.html.
4
UN Charter preamble.
5
R.J., LEE, 2000. ‘The United Nations Peacekeeping Successes but Peace Enforcement Failures’. 2000 Austl. Int’l. L.J. 180.
6
M., BOTHE, 2013. ‘Peacekeeping’ in B., Simma, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford:
Oxford University Press, 1175.
7
M., BERDAL, 1996. “The Security Council, Peackeeeping and the Internal Conflict after the Cold War”. 7 Duke J. Comp. &
Int'l. L. 73.
8
W.J., DURCH, 1993. The evolution of UN Peacekeeping: case studies and comparative analysis. New York: St. Martin’s press,
1; A., ORAKHELASHVILI, 2002-2003. ‘The Legal Basis of the United Nations Peace-Keeping Operations’. 43 Va. J. Int’l. L. 486.
3
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
1
consensus among the permanent members of the UN Security Council.9 The antagonistic
relationships of the Security Council permanent members and the absence of agreement
between the permanent members blocked every decision-making process.10 An example of
how the member states did not trust upon the United Nations for the preservation of
international peace and security was the increase of regional and national self-defence
systems.11 The collective security system had clearly failed.12
Nevertheless, the idea of the use of military measures to maintain or restore peace and
security was still considered useful. In order to preserve its key role in the area of peace and
security, the United Nations adapted a new concept where the use of a military component
was based on the consent and the cooperation of the recalcitrant state(s).13 UN SecretaryGeneral Dag Hammarskjöld and Canadian Foreign Minister Pearson used this concept for the
first time in the Suez crisis of 1956; the United Nations Emergency Force (UNEF) was
deployed to the borders between Israel and Egypt and served as a buffer between the
conflicting parties.14 (See further Chapter III, 2.2) In the aftermath of the establishment of
UNEF I, UN Secretary-General Dag Hammarskjöld pointed out the three fundamental
principles of the operation: (1) consent of the affected state; (2) limited use of force; (3) and
impartiality.15 In the following years, the concept became known as ‘UN peacekeeping’ or
‘the Blue Helmets’ and related to operations “involving military personnel, but without
enforcement powers, undertaken by the United Nations to help maintain or restore
international peace and security in areas of conflict”.16 These operations were designed to
undertake an impartial role in the conflict, to be emplaced in the territory with the consent of
the host state involved in the conflict, and to be authorised to only use force in self-defence.17
In 1960, the UN Security Council established the United Nations Operation in the Congo
(ONUC) after the major Congolese political protagonists called for an intervention of the
international community. 18 The UN forces were mandated to assist the Congolese
Government with the maintenance of law and order, to ensure the withdrawal of all Belgian
9
S.P., SHEERAN, 2011. Briefing Paper. Contemporary Issues in UN Peacekeeping and International Law. IDCR Doc. IDCR-BP02/11. United Kingdom: Institute for Democracy & Conflict Resolution, 1.
10
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 467.
11
R., MURPHEY, 2007. UN Peacekeeping in Lebanon, Somalia ad Kosovo. Operational and Legal Issues in Practice. Cambridge:
Cambridge University Press, 2.
12
N., BLOKKER, 2000. ‘Is the Authorization Authorized - Powers and Practice of the UN Security Council to Authorize the Use
of Force by Coalitions of the Able and Willing’. 11(2) EJIL 542; P.F., DIEHL, 1993. International Peacekeeping. Baltimore: The
Johns Hopkins University Press, 5; N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in
Peacekeeping: Their Constitutional Dimension’. 11(3) JCSL 467.
13
M., BOTHE, 2013. ‘Peacekeeping’ in B., Simma, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford:
Oxford University Press, 1175; R., MURPHEY, 2007. UN Peacekeeping in Lebanon, Somalia ad Kosovo. Operational and Legal
Issues in Practice. Cambridge: Cambridge University Press, 2; N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the
Use of Force in Peacekeeping: Their Constitutional Dimension’. 11(3) JCSL 467.
14
D.W., BOWETT, 1964. United Nations Forces: A Legal Study of United Nations Practice. London: Stevens & Sons, 90.
15
United Nations General Assembly, 1958. Summary Study of the Experience Derived from the Establishment and Operation of
the Force: Report of the Secretary-General. Thirteenth Session, Annexes, Agenda Item 65. UN Doc. A/3943, 8-33. New York:
United Nations, 33.
16
United Nations Department of Public Information, 1990. The Blue Helmets: A Review of United Nations Peace-keeping, 2nd ed.
New York: United Nations, 4.
17
R., ZACKLIN, 2005. ‘The Use of Force in Peacekeeping Operations’ in N., BLOKKER, and N., SCHRIJVER (eds.), The Security
Council and the Use of Force: Theory and Reality - A Need for Change?. Leyden : Martinus Nijhoff Publishers, 91.
18
United Nations Security Council, 1960. Res 143. UN Doc. S/4387.
2
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
forces, and to provide technical assistance. However, as the situation deteriorated, the
mandate was subsequently modified to include the maintenance of the territorial integrity and
political independence of the Congo, and the prevention of the occurrence of a civil war. The
mandate of the UN forces, at least as interpreted by the then UN Security Council, made room
for the use of substantial force. 19 Accordingly, the three fundamental principles of UN
peacekeeping were violated. (See further Chapter III, 2.3) The operation gave rise to an
intense debate about the role of UN peacekeeping in the maintenance or restoration of
international peace and security. Although the concept of UN peacekeeping was in crisis, the
UN Security Council established new UN peacekeeping operations in Yemen, West Iran, and
Cyprus. In these operations, the UN forces were instructed with a less forceful mandate.
At the end of the Cold War in 1991, it seemed that the world had entered into a new stage of
lasting peace.20 However, the opposite was true.21 The changed political climate confronted
the international community with new threats to international peace and security such as
terrorist attacks, the far-reaching development of scientific technology, and the development
of nuclear weapons and other weapons of mass destruction.22 Moreover, the end of the Cold
War removed some of the constraints that repressed conflict of a religious or ethnic character
in the former Soviet Union and Africa.23 The new wave of internal conflicts compelled the
UN Security Council to deploy new UN peacekeeping operations. While the UN
peacekeeping operations before the end of the Cold War were deployed in inter-state conflicts
where the parties of the conflict were clearly identified, UN peacekeeping operations were
now mainly deployed in intra-state conflicts, mostly civil wars, which were fought by local
factions and irregular troops. These conflicts were characterised by multiple armed factions
with divergent political objectives and fragmented power. 24 In response to the changing
nature of conflicts, the UN Security Council changed its approach towards UN peacekeeping
through the following practices:
(1) The three fundamental principles of UN peacekeeping - The UN Security Council was
often reluctant to obtain the consent of the host state before emplacing the UN mission into
the territory or when re-mandating the UN forces. In addition, the Council started to mandate
the UN peacekeepers to use force beyond self-defence, without requiring them to uphold their
impartial role throughout the conflict. As a result, the UN peacekeeping operations were no
longer guided by the three fundamental principles of UN peacekeeping.
19
M., BOTHE, 2013. ‘Peacekeeping’ in B., Simma, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford:
Oxford University Press, 1177.
20
H., NASU, 2009. International Law on Peacekeeping: A Study of Article 40 of the UN Charter. Leyden: Martinus Nijhoff
Publishers, 1.
21
J., MAYALL, 2007. ‘Introduction’ in M., BERDAL and S., ECONOMIDES, United Nations Interventionism 1991-2004.
Cambridge: Cambridge University Press, 11.
22
H., NASU, 2009. International Law on Peacekeeping: A Study of Article 40 of the UN Charter. Leyden: Martinus Nijhoff
Publishers, 1.
23
United Nations General Assembly and Security Council, 1995. Supplement to an Agenda for Peace: Position Paper of the
Secretary General on the Occasion of the Fiftieth Anniversary of the United Nations. Fiftieth Session GA, Fiftieth Year SC. UN
Doc. A/50/60 and S/1995/1. New York: United Nations, 10.
24
United Nations Department of Peacekeeping Operations, Peacekeeping Best Practices Unit, 2003. Handbook on United
Nations Multidimensional Peacekeeping Operations. New York: United Nations, 1.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
3
(2) Chapter VII of the UN Charter - In addition, while the UN Security Council never
invoked Chapter VII before the 1990s, the Council started to invoke Chapter VII more often
or used particular wording in its resolutions indicating its intention to act under Chapter VII.25
Chapter VII - entitled ‘Action with Respect to Threats to the Peace, Breaches of the Peace,
and Acts of Aggression - gives the UN Security Council the power to make any
recommendations, or to decide what measures shall be taken in order to prevent an
aggravation of the situation.26 Establishing a UN peacekeeping operation under Chapter VII
of the UN Charter raises questions about the nature and scope of this operation;27 only under
Chapter VII, the UN Council has the power to authorise UN peacekeepers the use of
offensive force. In addition, measures taken under Chapter VII have a coercive character,
making the consent of the host possibly redundant.
(3) Complex and robust mandates - UN peacekeeping has known an enormous expansion
of purposes and objectives of its mission. The first UN peacekeeping operations were
deployed to supervise the ceasefire between two countries. They were generally intended to
“ease tensions between hostile parties and create space for political negotiations”. 28
However, since the end of the Cold War, the peacekeeping operations are not only deployed
to keep the peace, but often also to protect civilians and to restore the peace.29 The UN
peacekeeping operations have gained ambitious mandates, which clearly go beyond their
‘traditional inter-positionary and super-visionary role’. 30
This changed nature of UN peacekeeping has resulted in militarised UN peacekeeping
operations.
In March 2013, the UN Security Council took a final landmark step in UN peacekeeping
operations by establishing an ‘Intervention Brigade’ - as a part of the United Nations
Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO) with resolution 2098.31 (See further Chapter III, 5.6) For the first time in history, the UN
Security Council stated in clear wording that a part of the UN mission would be considered as
a purely military UN peacekeeping operation. The militarisation of UN peacekeeping
operations is now a fact that cannot be longer ignored by the UN entities and the member
states of the United Nations.
25
N., KRISCH, 2013. ‘Introduction to Chapter VII: The General Framework’ in B., Simma, et al., The Charter of the United
Nations: a Commentary. 3rd ed. Oxford: Oxford University Press, 2404.
26
UN Charter art. 39 - 42.
27
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 471.
28
United Nations Department of Peacekeeping Operations, Peacekeeping Best Practices Unit, 2003. Handbook on United
Nations Multidimensional Peacekeeping Operations. New York: United Nations, 1.
29
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 3.
30
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 466.
31
United Nations Security Council, 2013. Res 2098. UN Doc. S/RES/2098, 9.
4
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
2. Definition of Militarised UN Peacekeeping Operations
Before defining militarised UN peacekeeping, we shall clarify the concept of UN
peacekeeping. Although the definition of UN peacekeeping is contested, we will, in the
course of this thesis, make use of the most recent definition of UN peacekeeping, formulated
in the Capstone Doctrine:
“Peacekeeping is a technique designed to preserve the peace, however fragile, where
fighting has been halted, and to assist in implementing agreements achieved by the
peacemakers.” 32
When using the term ‘traditional UN peacekeeping’, this thesis alludes to operations with
the following characteristics:
An operation authorised by the UN Security Council under Chapter VI or VII of the
UN Charter, which falls under the command and control of the Council, and which is
guided by the three fundamental principles of:
1) Consent of the host state
2) Impartiality
3) Non-use of force beyond self-defence.
On the contrary, when using the term ‘militarised UN peacekeeping operation’, this thesis
alludes to the following operations:
An operation authorised by the UN Security Council under Chapter VII UN An
operation authorised by the UN Security Council under Chapter VII Charter, which
falls under the command and control of the Council, and which lacks respect for at
least one of the three fundamental principles of
1) Consent of the host state
2) Impartiality
3) Non-use of force beyond self-defence.
It is important to remark that the definition of ‘militarised UN peacekeeping operation’
should not be confused with the concept of ‘military enforcement measures’. The latter is
generally used to designate the kind of measures falling under article 42 of the UN Charter. In
particular, ‘military enforcement actions’ are coercive actions, for which armed force is used
by a state or a group of states, to force states or a faction within a state to comply with the
decisions of the UN Security Council. 33 The three fundamental principles of military
enforcement measures are:
1) No consent of the recalcitrant state
2) No impartial role in the conflict
3) Use of armed force beyond self-defence
32
United Nations Department of Peacekeeping Operations and Department of Field Support, 2008. United Nations Peacekeeping
Operations. Principles and Guidelines (‘Capstone Doctrine’). New York: United Nations, 18.
33
H., MCCOUBREY, and N.D., WHITE, 1996. The Blue Helmets: Legal Regulations of United Nations Military Operations.
Aldershot: Dartmouth Publishing Company Limited, 18.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
5
These three principles clearly constitute the opposite of the fundamental principles of
traditional UN peacekeeping. Thus, military enforcement measures are characterised by the
disregard of all three principles of traditional UN peacekeeping. On the contrary, ‘militarised
UN peacekeeping’ refers to UN peacekeeping operations that use force beyond self-defence
and/or play a partial role throughout the conflict and/or are established without the consent of
the host state. In addition, military enforcement measures defer from militarised UN
peacekeeping operations in the sense that the latter always fall under the command and
control of the UN Security Council, while the initial often fall under the command and control
of a state or a coalition of states. (See further Chapter II, 3.1)
3. Research Questions
The purpose of this thesis is to research the militarisation of the United Nations peacekeeping
operations. The study will be comprised of the following two parts:
Research Question 1: How has the concept of traditional UN peacekeeping been
transformed into militarised UN peacekeeping?
(See Chapter III)
Research Question 2: What constitutes the legal framework of militarised UN
peacekeeping operations?
(See Chapter IV)
4. Research Delimitation
While writing this thesis, some important decisions had to be made in determining which
subjects needed to be researched. Accordingly, not every topic related to UN peacekeeping
will be discussed in this thesis.
In the context of research question 1, this thesis will examine a limited number of UN
peacekeeping operations, which have been selected on the basis of their interesting and
relevant mandate and/or action on the ground. Accordingly, this thesis will not attempt to give
an exhaustive list of UN peacekeeping operations that have been established between the
years of 1948 and 2013. In addition, this thesis will not attempt to give a highly detailed
analysis of every operation discussed. On the contrary, this thesis will solely assess every
operation based upon the three fundamental principles: consent of the host state, impartiality,
and non-use of force beyond self-defence, in order to determine whether or not the operation
has been militarised.
6
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
In the context of research question 2, this thesis will only focus on the powers of the UN
Security Council to establish militarised UN peacekeeping operations and not on the powers
of the UN General Assembly. In addition, when discussing the different legal bases for
militarised UN peacekeeping, this thesis will only discuss the explicit provisions of Chapters
VI and VII of the UN Charter and the principle of consent as the starting point for the legal
framework of militarised UN peacekeeping. It is true that there are other legal bases that have
been identified in the past - such as the implicit or inherent powers of the UN Security
Council – but they will not be analysed in detail during the course of this thesis.
5. Methodology and Structure of the Master Thesis
This thesis will research the militarisation of the UN peacekeeping operations. Hereby, this
thesis will attempt to formulate an answer to the question of how the concept of traditional
UN peacekeeping has been transformed into militarised UN peacekeeping (Research
Question1) and what exactly constitutes the legal framework of militarised UN peacekeeping
operations (Research Question 2).
In Chapter II, this thesis will - before formulating an answer to the two research questions give an overview of the concepts of UN peacekeeping, enforcement, and peace enforcement
as militarised UN peacekeeping finds its origin in these concepts:
(1) The concept of UN peacekeeping - The concept of UN peacekeeping, which is
characterised by legal uncertainty (see Chapter II, 2.1) and terminological ambiguity (see
Chapter II, 2.2.), will be examined. In addition, traditional UN peacekeeping is typified by a
number of elements (see Chapter II, 2.3). One of these elements includes the three
fundamental principles of UN peacekeeping - consent of the host state, non-use of force
beyond self-defence, and impartiality - that have been expanded and reinterpreted by the UN
entities in an attempt to uphold their principles (see Chapter II, 2.4).
(2) The concepts of enforcement and peace enforcement - This thesis will examine the
concepts of enforcement and peace enforcement, their fundamental principles, and how these
concepts differ from the concept of UN peacekeeping (see Chapter II, 3).
In researching these three concepts, this thesis has made use of the following sources:
 This thesis has researched the UN Charter, as it forms the basis for the functioning of
the United Nations.
 In addition, use has been made of the UN Security Council’s resolutions and the
provisional records of the meetings of the UN Security Council, which both reflect
the official points of view of the UN Security Council concerning UN peacekeeping.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
7
 Furthermore, use is made of the reports of the UN Secretary General, the UN
Department of Peacekeeping Operations, and the UN Department of Field Support.
These report do not only include useful definitions, but have also given an interesting
overview of the changing approaches towards the three fundamental concepts.
 Moreover, the case law of inter alia the International Court of Justice and the ad hoc
tribunals have been analysed.
 Finally, this thesis has made use of literature in the search for wider support for the
positions taken by this thesis.
In Chapter III, this thesis will attempt to formulate an answer to research question 1,
especially how the concept of traditional UN peacekeeping has been transformed into
militarised UN peacekeeping:
(1) Evolution - This thesis will examine a selection of UN peacekeeping operations, starting
with the early peacekeeping operations in the 1950s and ending with the current UN
peacekeeping operations in order to determine whether or not these operations have been
militarised (see Chapter III, 2, 3, 4, and 5).
(2) Three fundamental principles - In the analysis of these different UN peacekeeping
operations, this thesis will examine the applicability of the three fundamental principles of
UN peacekeeping, in order to determine the character of the operation. After all, when at least
one of the fundamental principles has been disregarded, the operation may be qualified as a
militarised UN peacekeeping operation. In addition, the changing interpretation of the
principles - incorporated into the different reports of the UN agencies - will be outlined (see
Chapter III, 2, 3, 4, and 5).
In researching this evolution, this thesis has used the following sources:
 This thesis has made use of the UN Security Council’s resolutions, which include the
mandates of the UN peacekeeping operations, and the provisional records of the
meetings of the UN Security Council, which give an indication of the different points
of view of the members of the Council concerning UN peacekeeping.
 Moreover, this thesis has used the different reports of the UN agencies - including the
UN Secretary-General, the UN Department of Peacekeeping Operations, and the UN
Department of Field Support - as they illustrate the changing ideology concerning UN
peacekeeping, which is, in turn, reflected in practice.
8
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
 Furthermore, use has been made of the official website of the Department of
Peacekeeping Operations to write the historical background of the different UN
peacekeeping operations.34
 Finally, this thesis has made use of the works of various academics to assess their
theories in regards to the findings in this thesis.
In Chapter IV, this thesis will attempt to formulate an answer to research question 2, in
particular as to what exactly constitutes the legal framework of militarised UN peacekeeping
operations:
(1) Chapters VI and VII of the UN Charter - This thesis will re-analyse the different
Chapters of the UN Charter and its specific provisions in order to define whether the UN
Charter may serve as the legal basis for militarised UN peacekeeping.
(2) The principle of consent - This thesis will research whether the fundamental principle of
consent of the host state may serve as a legal basis for militarised UN peacekeeping. (See
Chapter IV, 5)
In researching this evolution, this thesis has made use of the following sources:
 This thesis has, first of all, made use of the UN Charter, as it is includes the powers of
the UN Security Council to establish UN peacekeeping operations.
 In addition, use has been made of the UN Security Council’s resolutions and the
provisional records of the meetings of the UN Security Council, to discover the
Security Council’s endorsed the legal basis.
 Furthermore, in the context of this Chapter, use is made of the reports of the UN
Secretary General, the UN Department of Peacekeeping Operations, and the UN
Department of Field Support. Although these report do not clarify the legal basis of
UN peacekeeping, they do include some guidelines for UN peacekeeping.
 Moreover, the case law of inter alia the International Court of Justice and the ad hoc
tribunals have been analysed.
 Finally, this thesis has made use of literature to identify the different approaches of
academics to the legal basis of UN peacekeeping.
34
United Nations Department of Peacekeeping Operations, [date unknown]. Peacekeeping Operations. Accessed 13 May 2013:
http://www.un.org/en/peacekeeping/operations/.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
9
10
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
II. The Concepts of UN Peacekeeping,
Enforcement, and Peace Enforcement
1. Introduction
The concepts of UN peacekeeping, enforcement, and peace enforcement have always been
considered as very different from each other. UN peacekeeping is characterised by its three
fundamental principles of consent, non-use of force beyond self-defence, and impartiality,
while enforcement and peace enforcement are rather characterised by the use of armed force
beyond self-defence. However, over the decades, the three concepts have been interpreted, reinterpreted and changed in an attempt to formulate an answer for the changing world. The
changing nature of these concepts has blurred the distinction between the three categories and
has given rise to the onset of militarised UN peacekeeping. Accordingly, it is necessary to
first discuss these three concepts into detail before formulating an answer to the two research
questions concerning militarised UN peacekeeping.
In the first part of this Chapter, we will discuss the concept of UN peacekeeping. (See
Chapter II, 2) UN peacekeeping finds its origin in the failure of the collective security system
and is formulated as an ad hoc response to the need to maintain international peace and
security. This ad hoc response has never found a clear legal basis within the UN Charter,
which has resulted in the pragmatic evolution of a precarious institution often manipulated by
the political will of sovereign states.35 Therefore, in this Chapter, we will first discuss the
questions concerning the legal basis of UN peacekeeping. (See Chapter II, 2.1) Hereafter,
since the concept of UN peacekeeping is embedded in terminological ambiguity, we will
attempt to clarify the term ‘peacekeeping’ for the purpose of this thesis. (See Chapter II, 2.2)
Furthermore, traditional UN peacekeeping may be characterised by a number of elements.
(See Chapter II, 2.3) One of these elements includes the three fundamental principles of UN
peacekeeping - consent of the host state, non-use of force beyond self-defence, and
impartiality - which have also been expanded and reinterpreted by the UN entities in an
attempt to uphold their principles. (See Chapter II, 2.4)
The second part of this Chapter will be dedicated to the issues concerning enforcement and
peace enforcement. (See Chapter II, 3) This thesis will discuss the concept of enforcement
and its three guiding principles into detail. (See Chapter II, 3.1.1) Hereafter, we will attempt
to identify the differences between UN peacekeeping and enforcement. (See Chapter II, 3.1.2)
Furthermore, this thesis will discuss the new concept of ‘peace enforcement’, which seems to
overlap with both the concept of UN peacekeeping and enforcement. (See Chapter II, 3.2.1)
35
J.E., KRASNO, 2004. The United Nations. Confronting The Challenges of a Global Society. London: Lynne Rienner Publishers,
259; H., NASU, 2009. International Law on Peacekeeping: A Study of Article 40 of the UN Charter. Leyden: Martinus Nijhoff
Publishers, 27-28.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
11
However, as the meaning of this concept is unclear, this thesis will affirm that no value
should be attached to this concept. (See Chapter II, 3.2.2)
2. UN Peacekeeping Operations
Fundamental Principles
and
the
Three
2.1. Legal Uncertainty
The establishment, emplacement, and functioning of UN peacekeeping within the territory of
a state is not incorporated in the UN Charter.36 Between 1956 and 1960, the UN General
Assembly established the first two UN peacekeeping operations, UNEF I and ONUC. Neither
the UN General Assembly, nor the UN Security Council or the UN Secretary-General clearly
indicated the legal framework of these operations. Only the three fundamental principles of
UN peacekeeping operations were reiterated over and over again. Additionally, the
International Court of Justice did not take the opportunity to clarify the legal framework of
UN peacekeeping when giving an advisory opinion about whether or not the expenditures
authorised in the General Assembly for the UN peacekeeping operations in the Middle East
(UNEF I) and in the Congo (ONUC) constituted ‘expenses for the Organization’ within the
meaning of article 17(2) of the UN Charter. To answer this question, the International Court
of Justice first ruled whether the UN General Assembly had the power to create and mandate
UNEF I or whether this power was exclusively entitled to the UN Security Council. The UN
General Assembly had created UNEF I and had taken over the mandating of ONUC when the
Security Council was blocked by vetoes. In the Certain Expenses case, the International Court
of Justice confirmed that the UN Security Council has the primary, but not the exclusive
power in the area of international peace and security. Thus, the General Assembly is to be
concerned with international peace and security “by means of recommendation to states or to
the Security Council, or to both”, the General Assembly has the power “to organize
peacekeeping operations, at the request, or with the consent of the States concerned”.37 The
ruling of the International Court of Justice can be interpreted as stating that the only limitation
upon the powers of the General Assembly is that it may not order member states to take
enforcement measures.38 Furthermore, when discussing the legality of the decision of the
Security Council to establish ONUC, the Court simply stated, “the Charter does not forbid
the Security Council to act through instruments of its own choice”. The Court did not feel the
necessity to express its opinion as to which articles of the UN Charter were the basis for UN
peacekeeping operations established by the Security Council. It solely stated that the
operations of ONUC did not include ‘preventive or enforcement measures’ against a State
36
R.J., LEE, 2000. ‘The United Nations Peacekeeping Successes but Peace Enforcement Failures’. 2000 Austl. Int’l. L.J. 180; H.,
NASU, 2009. International Law on Peacekeeping: A Study of Article 40 of the UN Charter. Leyden: Martinus Nijhoff Publishers,
29.
37
Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ
Reports 1962, 152 and 163-164.
38
N.D., WHITE, 1997. Keeping the Peace. The United Nations and the maintenance of international peace and security. 2nd ed.
Manchester: Manchester University Press, 226.
12
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
and therefore did not constitute action with respect to threats to the peace, breaches of the
peace, and acts of aggression under Chapter VII. Consequently, the UN General Assembly
has the power to make a provision under the authority of article 17 of the UN Charter.39 Since
the judgement of the International Court of Justice in the Certain Expenses case in 1962, the
constitutionality of UN peacekeeping has no longer been in doubt.40 Ever since, both the UN
Security Council and the member States have approached UN peacekeeping as an ad hoc
technique - finding its legal basis in the UN Charter - to maintain a leading role in the
maintenance of international peace and security. Both Chapter VI and Chapter VII have been
envisioned as the legal basis for UN peacekeeping. However, with the changing nature of UN
peacekeeping towards militarised UN peacekeeping, it is necessary to research the legal
framework of those UN peacekeeping operations, especially the exact legal provisions within
the UN Charter. Such issues will be considered in detail Chapter IV of this thesis.
2.2. Terminological Ambiguity41
Closely connected with the controversy over the legal basis of UN peacekeeping is the lack of
an established definition of UN peacekeeping.42 The term ‘peacekeeping’ is neither defined
by, nor specifically provided for in the UN Charter. In addition, the United Nations is not the
only organisation using the term ‘peacekeeping’, which makes it difficult to define what
exactly peacekeeping includes.43 States easily adapt the term ‘peacekeeping’ for the purpose
of giving their military intervention a peaceful, legitimate basis. For example, the troops
established by the US Government to participate in the invasion of Grenada in 1983 were
called the Caribbean Peace Keeping Force. President Ronald Reagan even called the MX
missile ‘Peacekeeper’.44 Generally, peacekeeping is defined as an international effort, which
involves an operational component to encourage the termination of armed conflict or the
resolution of longstanding disputes. This definition incorporates military action by states to
punish an aggressor.45
In the context of the United Nations, the term ‘UN peacekeeping’ gained a semi-official
status when the UN General Assembly - in the aftermath of the UN operation ONUC in the
39
Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ
Reports 1962, 165 and 177. Article 17 UN Charter includes: (1) The General Assembly shall consider and approve the budget of
the Organization; (2) The expenses of the Organization shall be borne by the Members as apportioned by the General Assembly;
(3) The General Assembly shall consider and approve any financial and budgetary arrangements with specialized agencies
referred to in Article 57 and shall examine the administrative budgets of such specialized agencies with a view to making
recommendations to the agencies concerned.
40
Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ
Reports 1962.
41
H., NASU, 2009. International Law on Peacekeeping: A Study of Article 40 of the UN Charter. Leyden: Martinus Nijhoff
Publishers, 29.
42
P.F., DIEHL, 1993. International Peacekeeping. Baltimore: The Johns Hopkins University Press, 4-5, H., NASU, 2009.
International Law on Peacekeeping: A Study of Article 40 of the UN Charter. Leyden: Martinus Nijhoff Publishers, 29.
43
R., MURPHEY, 2007. UN Peacekeeping in Lebanon, Somalia ad Kosovo. Operational and Legal Issues in Practice. Cambridge:
Cambridge University Press, 1.
44
P.F., DIEHL, 1993. International Peacekeeping. Baltimore: The Johns Hopkins University Press, 4.
45
P.F., DIEHL, 1993. International Peacekeeping. Baltimore: The Johns Hopkins University Press, 4.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
13
Congo - established the Special Committee on Peacekeeping Operations.46 Over the years,
different unofficial interpretations of the concept of UN peacekeeping have developed. Before
considering these different definitions, it must be stressed that those documents do not
provide authoritative UN approaches. Only if they were to be endorsed by the member states,
we would speak of an official definition of UN peacekeeping.47
In 1990, the UN published The Blue Helmets: A Review of United Nations Peace-keeping in
which it formulated the following definition of UN peacekeeping:
“Operation involving military personnel, but without enforcement powers,
undertaken by the United Nations to help maintain or restore international peace and
security in areas of conflict. These operations are voluntary and are based on consent
and co-operation.”48
In An Agenda for Peace, UN peacekeeping was defined as follows:
“Peace-keeping is the deployment of a United Nations presence in the field, hitherto
with the consent of all the parties concerned, normally involving United Nations
military and/or police personnel and frequently civilians as well.” 49
The Capstone Doctrine of 2008 identified UN peacekeeping as
“A technique used to preserve the peace, however fragmented, where fighting has
been halted, and to assist in implementing peace agreements.” 50
In the context of this thesis, we will make use of the most recent definition of UN
peacekeeping, formulated in the Capstone Doctrine.
2.3. Characteristics of Traditional UN Peacekeeping Operations
The nature and role of UN peacekeeping is still unclear. UN peacekeeping could, as stated by
Tsagourias, be seen as a political instrument to create the necessary conditions with military
means for parties to settle differences. 51 Contrarily, it could be viewed as a military
mechanism to pursue military objectives and solutions using physical authority.52
46
, W.J., DURCH, and M.L., ENGLAND, 2009. ‘The Purposes of Peace Operations’ in Center on International Cooperation. Robust
Peacekeeping: The Politics of Force. New York: New York University Center on International Cooperation, 40; R., MURPHEY,
2007. UN Peacekeeping in Lebanon, Somalia ad Kosovo. Operational and Legal Issues in Practice. Cambridge: Cambridge
University Press, 1.
47
T., TARDY, 2011. ‘A Critique of Robust Peacekeeping in Contemporary Peace Operations’. 18(2) International Peacekeeping
156.
48
United Nations Department of Public Information, 1990. The Blue Helmets: A Review of United Nations Peace-keeping, 2nd ed.
New York: United Nations, 4.
49
United Nations General Assembly and Security Council, 1992. An Agenda for Peace. Preventive Diplomacy, peacemaking and
peace-keeping. Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security
Council on 31 January 1992. UN Doc. A/47/277-S/24111. New York: United Nations, 11.
50
United Nations Department of Peacekeeping Operations and Department of Field Support, 2008. United Nations Peacekeeping
Operations. Principles and Guidelines (‘Capstone Doctrine’). New York: United Nations, 18.
51
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 468.
52
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 468.
14
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
In the course of this thesis, we will identify the following characteristics of traditional UN
peacekeeping operations:
(1) The UN Security Council generally authorises UN peacekeeping operations53 - During
the Cold War, the General Assembly often bypassed the Security Council, which was
paralysed by the use of the veto by its permanent members.54 The General Assembly was able
to authorise UN peacekeeping operations with the political support of a majority of the
members. Since the end of the Cold War, the UN Security Council has reassumed its leading
role in the area of international peace and security. 55
(2) UN troops - UN peacekeeping forces are comprised out of troops of different member
states and fall under the command and control of the United Nations. After an operation is
authorised, the UN Secretary-General looks for states that are willing to contribute troops and
material to the mission. Troops are generally volunteered by neutral states that have little or
no interest in the outcome of the conflict.56
(3) Fundamental principles of UN peacekeeping - UN peacekeeping operations should
respect the three fundamental principles of consent, impartiality, and non-use of force beyond
self-defence during the emplacement and functioning on the ground. These fundamental
principles will be discussed in detail in Chapter II, 2.4.
(4) Tasks - The UN forces are mandated to help maintain international peace and security by
carrying out tasks ranging from “observing, monitoring, reporting, and supervising of ceasefire” to creating “a secure and stable environment, facilitating the political process, and
providing a framework” for the coordination of the cooperation between the UN personnel
and other international actors.57
However, it must be noted that the fundamental rationale of UN peacekeeping lies with the
state-oriented approach of UN peacekeeping, envisaging the maintenance of international
peace and security in the context of inter-state armed conflicts. Yet, since the end of the Cold
War, the UN Security Council has been confronted with an increase of intra-state conflicts. In
particular, the concept of UN peacekeeping has been challenged in the modern context of
intra-state armed conflicts.58 Accordingly, the characteristics outlined above do not describe
the actual reality of militarised UN peacekeeping operations.
53
P.F., DIEHL, 1993. International Peacekeeping. Baltimore: The Johns Hopkins University Press, 11.
C., GRAY, 2008. International Law and the Use of Force. 3rd ed. Oxford: Oxford University Press, 255.
55
P.F., DIEHL, 1993. International Peacekeeping. Baltimore: The Johns Hopkins University Press, 11.
56
P.F., DIEHL, 1993. International Peacekeeping. Baltimore: The Johns Hopkins University Press, 12.
57
United Nations Department of Peacekeeping Operations and Department of Field Support, 2008. United Nations Peacekeeping
Operations. Principles and Guidelines (‘Capstone Doctrine’). New York: United Nations, 21-23.
58
H., NASU, 2009. International Law on Peacekeeping: A Study of Article 40 of the UN Charter. Leyden: Martinus Nijhoff
Publishers, 27-28.
54
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
15
2.4. The Three Fundamental Principles of UN Peacekeeping
2.4.1. Origin of the Three Principles
Although UN peacekeeping has always been undefined, the ‘ground rules’ for these
operations have not been.59 Since the first large-scale peacekeeping mission UNEF I, UN
peacekeeping has been defined by the three fundamental principles of (1) consent of the host
state, (2) impartiality, and (3) the non-use of force beyond self-defence.60
The principles were formulated for the first time by the Secretary-General Dag Hammarskjöld
in his Summary Study and have been further expanded upon during the UN peacekeeping
operations the United Nations Emergency Force II (UNEF II) and the United Nations
Peacekeeping Force in Cyprus (UNFICYP).61 The initial purpose of the principles was to
guide the deployment and activity of UN inter-positional cease-fire monitoring missions, and
to respond to the need of maintaining legitimacy for UN peacekeeping operations being
deployed in inter-state conflicts.62 Over the decades, the UN entities have confirmed these
three principles as the basic guidelines of UN peacekeeping.63 For example, in his Supplement
to an Agenda for Peace, the UN Secretary-General Boutros-Ghali wrote that respect for the
fundamental principles of UN peacekeeping is essential to its success.64 He continued that, in
successful UN peacekeeping operations, those three principles were fully respected.
Contrarily, in the unsuccessful operations it has been implied that one of the principles was
violated. 65 The Capstone Doctrine, drafted by the UN Department of Peacekeeping
Operations and Department of Field Support in 2008, provides us with the most recent UN
approach to the three ‘basic’ principles. It is stressed in the report that, although the three
basic principles have evolved over the past sixty years, these principles have not only
traditionally served UN peacekeeping operations, but also continue to control and design the
current operations.66
59
S., RYAN, 2000. ‘United Nations Peacekeeping: A matter of principles?’. 7(1) International Peacekeeping 27.
A.J., BELLAMY, and P.D., WILLIAMS, 2010. Understanding Peacekeeping. 2nd ed. Cambridge: Polity Press, 3; N.,
TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional Dimension’.
11(3) JCSL 465; S., RYAN, 2000. ‘United Nations Peacekeeping: A matter of principles?’. 7(1) International Peacekeeping 27.
61
United Nations General Assembly, 1958. Summary Study of the Experience Derived from the Establishment and Operation of
the Force: Report of the Secretary-General. Thirteenth Session, Annexes, Agenda Item 65. UN Doc. A/3943, 8-33. New York:
United Nations, 28-32; S.P., SHEERAN, 2011. Briefing Paper. Contemporary Issues in UN Peacekeeping and International Law.
IDCR Doc. IDCR-BP-02/11. United Kingdom: Institute for Democracy & Conflict Resolution, 2.
62
D., LEVINE, 2010. Peacekeeper Impartiality: Standards, Processes, and Operations. CISSM Working Paper. Maryland:
CISSM, 1.
63
For example: United Nations Department of Peacekeeping Operations and Department of Field Support, 2008. United Nations
Peacekeeping Operations. Principles and Guidelines (‘Capstone Doctrine’). New York: United Nations, 31; United Nations
General Assembly, 2012. Report of the Special Committee on Peacekeeping Operations. 2012 Substantive Session. UN Doc.
A/66/19. New York: United Nations, 25; United Nations General Assembly, 2011. Report of the Special Committee on
Peacekeeping Operations. 2011 Substantive Session. UN Doc. A/65/19. New York: United Nations, 24; United Nations General
Assembly, 2010. Report of the Special Committee on Peacekeeping Operations. 2010 Substantive Session. UN Doc. A/64/19.
New York: United Nations, 23.
64
United Nations General Assembly and Security Council, 1995. Supplement to an Agenda for Peace: Position Paper of the
Secretary General on the Occasion of the Fiftieth Anniversary of the United Nations. Fiftieth Session GA, Fiftieth Year SC. UN
Doc. A/50/60 and S/1995/1. New York: United Nations, 33.
65
United Nations General Assembly and Security Council, 1995. Supplement to an Agenda for Peace: Position Paper of the
Secretary General on the Occasion of the Fiftieth Anniversary of the United Nations. Fiftieth Session GA, Fiftieth Year SC. UN
Doc. A/50/60 and S/1995/1. New York: United Nations, 33.
66
United Nations Department of Peacekeeping Operations and Department of Field Support, 2008. United Nations Peacekeeping
Operations. Principles and Guidelines (‘Capstone Doctrine’). New York: United Nations, 31.
60
16
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
Yet, history has indicated that these principles have not always been followed in practice. As
UN peacekeeping missions have been emplaced in more complex situations, the principles
have been expanded, re-interpreted, and questioned.67 To get a clear picture of the meaning
and the role of the three principles, this thesis will discuss each principle in detail. Hereby, we
will not only consider the evolution of the principles, but also the importance of the principles
and their application in various UN peacekeeping operations, especially militarised
operations.
2.4.2. Principle 1: Consent of the Host State
2.4.2.1. Introduction
Consent of the state in which the UN peacekeeping mission is to be deployed is one of the
fundamental principles of UN peacekeeping.68 The UN Secretary-General Boutros-Ghali has
defined the term ‘peacekeeping’ as “the deployment of a United Nations presence in the field,
hitherto with the consent of all parties concerned”.69
Before considering the role and nature of the principle of consent, we should analyse the
rationale behind peacekeeping.70 The concept of UN peacekeeping has been developed as a
less forceful equivalent to the collective security system (see Chapter I). The collective
security system, which is characterised by military enforcement measures against recalcitrant
states, had clearly failed in the early days of the Cold War. In order to preserve its key role in
the area of peace and security, the United Nations adapted the concept of UN peacekeeping
where the use of military component was based on the consent and the cooperation of the
recalcitrant state(s).71 This may explain the importance of the concept of ‘consent’ in UN
peacekeeping. While in a collective security system the host state is not asked to give its
consent to military enforcement actions within its territory, in UN peacekeeping, consent has
to be given for the implementation of a UN peacekeeping operation within the host state’s
territory.72
67
K., BECK, 2011. ‘The Challenges of Consent: Policy Recommendations for Maintaining Host State Consent for United Nations
Peacekeeping Missions’. DWA Student Scholarship 7. Accessed 8 April 2013: http://scholar.oxy.edu/dwa_student/1/.
68
D., BROWN, 1994. ‘The Role of the United Nations in Peacekeeping and Truce-Monitoring: What Are the Applicable Norms?’
2 Revue Belge de Droit International 561; P.F., DIEHL, 1993. International Peacekeeping. Baltimore: The Johns Hopkins
University Press, 9.
69
United Nations General Assembly and Security Council, 1992. An Agenda for Peace. Preventive Diplomacy, peacemaking and
peace-keeping. Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security
Council on 31 January 1992. UN Doc. A/47/277-S/24111. New York: United Nations, 11.
70
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 466.
71
M., BOTHE, 2013. ‘Peacekeeping’ in B., Simma, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford:
Oxford University Press, 1175; R., MURPHEY, 2007. UN Peacekeeping in Lebanon, Somalia ad Kosovo. Operational and Legal
Issues in Practice. Cambridge: Cambridge University Press, 2; N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the
Use of Force in Peacekeeping: Their Constitutional Dimension’. 11(3) JCSL 467.
72
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 468.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
17
In the following section, we will discuss the concept, meaning and evolution of the
fundamental principle of consent.
2.4.2.2. Consent Ratione Personae
The host state has to give its consent to the emplacement and functioning of UN troops within
its territory because of its sovereignty over that territory.73 Yet, it might be reasonable to
question who is exactly entitled to give its consent. International law strongly favours already
established governments. In an inter-state conflict, it is the respective government of each
state that has to give its consent to the commencement of a UN peacekeeping operation. This
finds its origin in the long-standing view that the government of a state is the legitimate
representative of the people and has effective control over the territory.74
However, an initial question arises as to whether an official government that is challenged by
other authorities or is in exile may give its consent to the emplacement of a UN mission
within the territory.75 A second question that presents itself is who shall give its consent in an
intra-state conflict where the parties to the conflict do not only include the government of the
host state, but also rebel or separatist groups.
(1) Inter-state conflicts - In some situations there is no government that has effective or
juridical control over the territory due to the fact that state institutions, especially the police
and judiciary, have collapsed.76 In the case of a so-called ‘failed state’, it is uncertain how to
comply with the fundamental principle of consent.
In a purely legal sense, only the government who has the effective control over the
government may give its consent. Accordingly, when there is no such government, the UN
Security Council is not legally required to obtain the consent of the host state before installing
a UN peacekeeping operation in a territory.77
However, this thesis is convinced that the consent of all the parties of the conflict is desirable
- even in a failed state - in order to prevent any interference with the deployment and
operation of a UN peacekeeping operation. When no consent is given, the absence of support
of the host state may result in a failure of the UN peacekeeping operation. Orakhelashvili
underpins this statement with the argument of the ‘functional nature’ of UN peacekeeping.
The functional nature of UN peacekeeping consists of “the maintenance of international
peace and security in the area concerned, subject to the respect for the territorial integrity
73
A., ORAKHELASHVILI, 2002-2003. ‘The Legal Basis of the United Nations Peace-Keeping Operations’. 43 Va. J. Int’l. L. 520.
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 475-474.
75
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 475; A., ORAKHELASHVILI, 2002-2003. ‘The Legal Basis of the United Nations Peace-Keeping
Operations’. 43 Va. J. Int’l. L. 520.
76
United Nations General Assembly and Security Council, 1995. Supplement to an Agenda for Peace: Position Paper of the
Secretary General on the Occasion of the Fiftieth Anniversary of the United Nations. Fiftieth Session GA, Fiftieth Year SC. UN
Doc. A/50/60 and S/1995/1. New York: United Nations, 13.
77
A., ORAKHELASHVILI, 2002-2003. ‘The Legal Basis of the United Nations Peace-Keeping Operations’. 43 Va. J. Int’l. L. 520.
74
18
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
and sovereignty of a host state”.78 When the host state has consented to the stationing of UN
forces, there is no violation of the principles of territorial integrity and sovereignty.
Accordingly, the Council may exercise its main function of maintaining international peace
and security. Contrarily, when no consent has been given, both of the requirements of respect
for the territorial integrity and sovereignty have not been fulfilled. Consequently, the UN
would not be able exercise its main function of maintaining international peace and security.
Therefore, the functional nature of UN peacekeeping prefers the consent of the main parties
of the conflict.
In those situations where no effective government can give its consent and none of the local
parties wants to give its consent, the UN Security Council should authorise an enforcement
operation instead of a UN peacekeeping operation.79
(2) Intra-state conflicts - According to the Capstone Doctrine, which does not reflect the
official point of view of the UN Security Council, UN peacekeeping operations shall be
deployed with the consent of the main parties of the conflict.80 This entails that the main
parties to the conflict commit themselves to a ‘political process’ and accept the emplacement
of a UN peacekeeping operation to assist this political’ process. Consequently, the UN forces
are given the freedom of action, both political and physical, to carry out the mandate
authorised by the UN Security Council.81 History has indicated that the UN Security Council
sometimes attempts to obtain the consent of the different non-state actors, including rebels
and/or separatists, before installing a UN peacekeeping operation within the territory.82
The question before us is whether the UN Security Council is legally required to obtain the
consent of non-state parties or whether the Council is granted the consent of those parties on
considerations of expediency. 83 International law only recognises a limited number of
subjects: states and governments, international organisations, insurgents and liberation
movements. Consequently, only those subjects can legally give their consent.84 There is no
legal prerequisite to obtain the consent of non-state actors for the establishment of a UN
peacekeeping operation. 85 However, as already mentioned above, when considering the
functional nature of UN peacekeeping, it is clear that the UN Security Council should always
78
A., ORAKHELASHVILI, 2002-2003. ‘The Legal Basis of the United Nations Peace-Keeping Operations’. 43 Va. J. Int’l. L. 521.
A., ORAKHELASHVILI, 2002-2003. ‘The Legal Basis of the United Nations Peace-Keeping Operations’. 43 Va. J. Int’l. L. 521.
80
United Nations Department of Peacekeeping Operations and Department of Field Support, 2008. United Nations Peacekeeping
Operations. Principles and Guidelines (‘Capstone Doctrine’). New York: United Nations, 31. (emphasis added)
81
United Nations Department of Peacekeeping Operations and Department of Field Support, 2008. United Nations Peacekeeping
Operations. Principles and Guidelines (‘Capstone Doctrine’). New York: United Nations, 31-32; S.J., STEDMAN, 1997. ‘Spoiler
Problems in Peace Processes’. 22(2) International Security 5.
82
Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ
Reports 1962, 164; C., GRAY, 2008. International Law and the Use of Force. 3rd ed. Oxford: Oxford University Press, 298-299;
Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao. Judgement of 2 March 2009, Special Court for Sierra
Leone, Trial Chamber I, Case SCSL 04-15-T-1234, 226; N.D., WHITE, 1997. Keeping the Peace. The United Nations and the
maintenance of international peace and security. 2nd ed. Manchester: Manchester University Press, 232-233.
83
A., ORAKHELASHVILI, 2002-2003. ‘The Legal Basis of the United Nations Peace-Keeping Operations’. 43 Va. J. Int’l. L. 521.
84
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 474.
85
A., ORAKHELASHVILI, 2002-2003. ‘The Legal Basis of the United Nations Peace-Keeping Operations’. 43 Va. J. Int’l. L. 521.
79
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
19
obtain the consent of all the local parties in order to secure the effectiveness of the UN
operation.86
The Special Court for Sierra Leone has confirmed this assertion by stating that:
“In non-international conflicts, […] consent is obtained from the warring parties, not
out of legal obligation, but rather to ensure the effectiveness of the peacekeeping
operation.”87
2.4.2.3. Consent Ratione Materiae
There are different opinions on what the consent of the host state should consist of. Some
argue that it only concerns the establishment or emplacement of the UN mission, while others
are of the opinion that it should also extend to its composition and the scope of its mandate.
This thesis is of the opinion that the consent of the host state shall only concern the
emplacement of the UN forces within the territory and not the UN Security Council’s
decision to establish an operation or the UN peacekeeping operation’s composition or scope
of the mandate, with the exception of certain cases.
To substantiate this proposition, the following shall be said:
(1) Decision to establish an operation or the effective emplacement and UN Security
Council or UN General Assembly - This thesis makes a difference between the UN Security
Council’s decision to establish an operation and the effective emplacement of UN missions
and whether it concerns the UN General Assembly or the UN Security Council.
The UN Security Council has the power to take the decision to establish a UN peacekeeping
operation under Chapter VI or VII of the UN Charter without the consent of the host state.
However, to make the UN mission operational on the ground, the UN Security Council shall
obtain the consent of the host state when acting under Chapter VI or another consent-based
legal basis.88 The UN Security Council may also emplace a UN peacekeeping operation
within a state without the consent of the host state. In the latter case, it is considered a
militarised UN peacekeeping operation under Chapter VII.
The UN General Assembly may make recommendations to organise a UN peacekeeping
operation, but this operation can only be legally emplaced within the territory of the state
when this state has given its consent. For example, the UN Secretary-General, in his second
and final report, observes that:
86
C., GRAY, 2008. International Law and the Use of Force. 3rd ed. Oxford: Oxford University Press, 299; A., ORAKHELASHVILI,
2002-2003. ‘The Legal Basis of the United Nations Peace-Keeping Operations’. 43 Va. J. Int’l. L. 521.
87
Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao. Judgement of 2 March 2009, Special Court for Sierra
Leone, Trial Chamber I, Case SCSL 04-15-T-1234, 226.
88
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 470.
20
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
“While the General Assembly is enabled to establish the Force with the consent of
those parties which contribute units to the Force, it could not request the Force to be
stationed or operate on the territory of a given country without the consent of the
Government of that country. This does not exclude the possibility that the Security
Council could use such a Force within the wider margins provided under Chapter VII
of the United Nations Charter. I would not for the present consider it necessary to
elaborate this point further, since no use of the Force under Chapter VII […] has
been envisaged.”89
This report has been approved by the General Assembly without opposition with resolution
1001 of 7 November 195690.
(2) The composition of a UN peacekeeping mission and the scope of its mandate - It is
either the UN Security Council or the UN Secretary-General that has the power to determine
the composition of a UN peacekeeping mission.91 This stems from the necessity of keeping a
UN peacekeeping mission impartial.92
In addition, it is UN itself that shall determine the UN missions’ mandate; neither the
government of the host state, nor the other non-state actors can curtail or extend the functions
which stems from the mandate. According to Bowett and Orakhelashvili, the only exception
to this would be where the host state has given its consent to the deployment of a UN
peacekeeping mission, provided that the mandate and composition of this mission meet
certain requirements.93 For example, when the UN has concluded a contract with the host
state in regards to both the mandate of the operation as well as the composition of the UN
troops, it shall adhere to the letter of the contract. In other occasions, when there is no
contract, the UN agencies can independently organise the UN peacekeeping operation without
the consent of the host state. However, practical and political reasons have induced the UN
organs to consult the affected parties and to take their wishes into account.94
2.4.2.4. Consent Ratione Temporis
It is assumed that UN peacekeeping operations always have a temporary character.95 Hence,
the UN Security Council outlines the duration of the mission in the initial resolution. In
practice, UN missions are authorised for a limited period of six months to one year and are
89
United Nations General Assembly, 1956. Second and Final Report of the Secretary-General on the Plan for Emergency
International United Nations Force Requested in Resolution 998 (ES-I), Adopted by the General Assembly on 4 November 1956.
First Emergency Special Session. UN Doc. A/3302. New York: United Nations, 9.
90
United Nations General Assembly, 1956. Res 1001. UN Doc. A/RES/1001 (ES/I).
91
United Nations General Assembly, 1958. Summary Study of the Experience Derived from the Establishment and Operation of
the Force: Report of the Secretary-General. Thirteenth Session, Annexes, Agenda Item 65. UN Doc. A/3943, 8-33. New York:
United Nations, 16 and 160.
92
C., GRAY, 1996. ‘Case Study: Host-State Consent and United Nations Peacekeeping in Yugoslavia’. 7 Duke J. Comp. & Int'l.
L. 249.
93
D.W., BOWETT, 1964. United Nations Forces: A Legal Study of United Nations Practice. London: Stevens & Sons, 425; A.,
ORAKHELASHVILI, 2002-2003. ‘The Legal Basis of the United Nations Peace-Keeping Operations’. 43 Va. J. Int’l. L. 522-523.
94
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 477.
95
United Nations General Assembly, 1956. Second and Final Report of the Secretary-General on the Plan for Emergency
International United Nations Force Requested in Resolution 998 (ES-I), Adopted by the General Assembly on 4 November 1956.
First Emergency Special Session. UN Doc. A/3302. New York: United Nations, 4.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
21
periodically prolonged. Although UN peacekeeping operations have a temporary character,
the parties to the peace agreement may unilaterally agree upon an early termination even in
cases where the mandate has not been completely fulfilled.96
2.4.2.5. How should the Consent be given?
In theory, the UN Security Council should obtain the consent of the host state through the
exchange of notes. It is generally accepted that this exchange of notes constitutes an
agreement under international law, especially concerning the Vienna Convention on the Law
of Treaties of 1969.
In article 2(a) of the Vienna Convention, ‘treaty’ means “an international agreement
concluded between States in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments and whatever its
particular designation”.97 Furthermore, article 13 of the Vienna Convention includes that,
“the consent of States to be bound by a treaty constituted by instruments exchanged between
them is expressed by that exchange when:
(a) The instruments provide that their exchange shall have that effect; or
(b) It is otherwise established that those States were agreed that the exchange of
instruments should have that effect.” 98
Consequently, the notes have to be considered as a treaty, which binds the parties that have
given their consent through the exchange of those notes.
Yet, in practice, the consent is not always given as directly as mentioned above. In some
occasions, a representative of the host state sends an open letter to the President of the UN
Security Council, requesting the emplacement of a UN peacekeeping operation within its
territory.
 For example, in the case of the United Nations Stabilization Mission in Haiti
(MINUSTAH), which has been established in 2004, it is clear that the host state did
not only consent accept the initial emplacement of the UN forces, but also the
renewals of the mandate. In February 2004, the President of the UN Security Council
drew the attention of the members of the Council to a letter from Haiti’s permanent
representative authorising UN security forces to enter and operate in the territory of
Haiti.99 In addition, a permanent representative of Haiti voluntarily endorsed several
renewals of the mandate.100
96
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 477.
97
Vienna Convention on the Law of Treaties, 1969, art. 2(a).
98
Vienna Convention on the Law of Treaties, 1969, art. 13.
99
United Nations Security Council, 2004. Provisional Record of the 4919th Meeting of the Security Council. UN Doc.
S/PV.4919, 2; United Nations Security Council, 2004. Letter dated 29 February 2004 from the Permanent Representative of
Haiti to the United Nations addressed to the President of the Security Council. UN Doc. S/2004/163.
100
For example: United Nations Security Council, 2010. Provisional Record of the 6303th Meeting of the Security Council. UN
Doc. S/PV.6303; United Nations Security Council, 2010. Provisional Record of the 6330th Meeting of the Security Council. UN
Doc. S/PV.6330; United Nations Security Council, 2010. Provisional Record of the 6399th Meeting of the Security Council. UN
22
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
In other occasions, the parties of the conflict did not enter into a contract with the UN
Security Council, but they signed a peace agreement, which, on its turn, included the request
or the approval of the emplacement of a UN peacekeeping operation.
 For example, in the case of the United Nations Organization Mission in the
Democratic Republic of the Congo (MONUC), which was established by its
resolution 1279 of 30 November 1999, the UN Security Council did not make a
specific reference to the consent of the host state. 101 The Council did make a
reference to the Lusaka Ceasefire Agreement in which the parties, including the
Democratic Republic of the Congo, agreed to the establishment of a UN
peacekeeping operation within their territory.102 They agreed that “the mandate of the
UN force shall include peacekeeping and peace enforcement operations”. 103
However, in the subsequent resolutions, the UN Security Council did not refer to the
consent of the host state or the initial agreement. Instead the Council reaffirmed the
principles of sovereignty, territorial integrity and political independence of the
Democratic Republic of the Congo. The fact that the Council did refer to these
fundamental principles could be out of recognition that the state had the inherent right
to reject any changes to the mandate that were made without their consent and thus
refuse the continued presence of the UN forces.
 A second example is the United Nations Mission in Liberia (UNMIL), established in
2003, for which the UN Security Council did not make a specific reference to the host
state consent.104 However, the Council did make a reference to the Comprehensive
Peace Agreements of August 2006, in which the parties requested “the United
Nations [...] to facilitate, constitute, and deploy a United Nations Chapter VII force in
the Republic of Liberia to support the transitional government and to assist in the
implementation of this Agreement”.105 However, it should be noted that a distinction
has to be made between the general request of a host state to establish a UN force
under Chapter VII and the effective emplacement of a UN peacekeeping operation
that is authorised to use force beyond self-defence.
Doc. S/PV.6399; United Nations Security Council, 2012. Res 2070. UN Doc. S/RES/2070, 5.
101
United Nations Security Council, 1999. Res 1279. UN Doc. S/RES/1279.
102
United Nations Security Council, 1999. Letter dated 23 july 1999 from the Permanent Representative of Zambia to the United
Nations addressed to the President of the Security Council. Annex: Ceasefire Agreement. UN Doc. S/1999/815. New York:
United Nations, article III, 11.
103
United Nations Security Council, 1999. Letter dated 23 july 1999 from the Permanent Representative of Zambia to the United
Nations addressed to the President of the Security Council. Annex: Ceasefire Agreement. Annex ‘A’ to the Ceasefire Agreement.
UN Doc. S/1999/815. New York: United Nations, Chapter 8.
104
United Nations Security Council, 2003. Res 1509. UN Doc. S/RES/1509.
105
Comprehensive Peace Agreement Between the Government of Liberia and the Liberians United for Reconciliation and
Democracy (LURD) and the Movement for Democracy in Liberia (MODEL) and Political Parties, Accra, Ghana, 18 August
2003, 7; United Nations Security Council, 2003. Res 1509. UN Doc. S/RES/1509.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
23
In the past, the UN Security Council has also used the threat of employing an enforcement
operation when consent would not be given.106
 For example, in the case of the United Nations Mission in Bosnia-Herzegovina
(UNMIBH), the United Nations Interim Administration Mission in Kosovo
(UNMIK), and the United Nations Transitional Administration in East Timor
(UNTAET), the UN Security Council obtained the consent of the host state’s
government with the use of a military threat, diplomatic pressure, and economic
sanctions.107
This kind of threat of coercion has been claimed to be legal and does not invalidate the
consent.108
Finally, on some occasion, the UN Security Council seems to assume that the indirect consent
of a host state is sufficient to emplace a UN peacekeeping into a territory of a state.
 For example UNAMIR II, it was argued that the Government of Rwanda had
consented to the emplacement of the UN forces by not opposing this decision in its
capacity of member of the UN Security Council. At the time the UN Security Council
was deciding on UNAMIR II, the Government of Rwanda was a member of the UN
Security Council. Ultimately, the UN Security Council’s resolution on UNAMIR II
did not make any reference to the consent of the parties.109
2.4.2.6. Renewal of Consent
It can occur that the UN Security Council has to seek a renewal of the host state’s consent in
the aftermath of a change of power or when the Council itself has decided upon changes to
the mandate of the mission.
 For example, on 13 July 1960, President Kasa-Vubu and Prime Minister Lumumba,
on behalf of the Government of the Republic of Congo, requested the SecretaryGeneral for “urgent dispatch by the United Nations of military assistance” to repel
the Belgian actions of aggression.110 However, after the consent to the emplacement
of ONUC I was given, the government fell apart. The President and the Prime
Minister stopped all cooperation and a third party, led by Colonel Mobutu, emerged.
It can be reasonably questioned whether the United Nations had the responsibility to
ask for a renewal of the host state’s consent. This thesis argues that, when the UN is
106
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 477.
107
I., JOHNSTONE, 2010. ‘Managing Consent - The New Variable?’ in C., DE CONING, , A.Q., STENSLAND, and T., TARDY.
Beyond the ‘New Horizon’. Proceeding from the UN peacekeeping Future Challenges Seminar. Geneva, 23-24 June 2010. Oslo:
Norwegian Institute of International Affairs, Department of Security and Conflict Management, 25.
108
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 477.
109
United Nations Security Council, 1994. Res 918. UN Doc. S/RES/918.
110
United Nations Security Council, 1960. Cable dated 12 July 1960 from the President of the Republic of the Congo and
Supreme Commander of the National Army and the Prime Minister and Minister of National Defence addressed to the SecretaryGeneral of the United Nations. UN Doc. S/4382.
24
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
acting under the concept of traditional peacekeeping, the council is obliged to reacquire the consent of the host state. However, as we will see in the detailed analysis
of ONUC below, ONUC cannot be marked as a UN peacekeeping mission that
upheld the three fundamental principles; the mission had turned into a militarised UN
peacekeeping operation. Hence, the Council was not legally required to seek a
renewal of the consent.
Furthermore, in the past, the UN Security Council has decided upon substantial modifications
of mandates of UN peacekeeping operations as soon as the situation deteriorated. In most
occasions, the Council did not re-acquire the consent of the host state, turning the mission
into a militarised UN peacekeeping operation.
 For example, in the case of the United Nations Mission in Sudan (UNMIS), the host
state had clearly consented to the initial emplacement and operation of a
peacekeeping operation within its territory.111 However, by 2006, the UN SecretaryGeneral envisaged a military force, which was to be ‘large, agile and robust’, and
which would include a ‘robust military capability to deter and defeat spoilers’.112 In a
letter from President Al-Bashir to Secretary-General Annan, the Government of
Sudan made clear that it did not agree with the view of the Secretary-General.113
Nonetheless, with resolution 1706, the UN Security Council decided that “UNMIS’
mandate shall be expanded […], that it shall deploy to Darfur, and therefore invites
the consent of the Government of National Unity for this deployment”.114 From the
wording of ‘invites the consent of the Government’, it can be deduced that the UN
Security Council sought the consent of the host state and thus that the Council
considered the consent as an essential element in the expansion of the mandate of
UNMIS. Also in the minutes of the meeting at which resolution 1706 modified the
mandate of UNMIS, it has been made clear that the consent was an essential element
of the process.115 However, after all, the UN Security Council did renew the mandate
of UNMIS, even without the consent of the government of Sudan. `
It can be reasonably questioned whether the host state consent has to be renewed after
changes have been made to the mandate, especially when the forces are authorised to use
substantial force. This thesis argues that, when the host state’s consent is a legal prerequisite
and the revisions made to the mandate have a substantial character, the UN has the legal
obligation to renew the host state consent, unless the revised mandate is such that the
operation becomes an enforcement action under Chapter VII of the UN Charter. When the
111
United Nations Security Council, 2005. Provisional Record of the 5151st Meeting of the Security Council. UN Doc.
S/PV.5151, 4.
112
United Nations Security Council, 2006. Report of the Secretary-General on Darfur. UN Doc. S/2006/591. New York: United
Nations, 83.
113
United Nations Security Council, 2006. Letter dated 17 August 2006 from the Secretary-General addressed to the President of
the Security Council. UN Doc. S/2006/266.
114
United Nations Security Council, 2006. Res 1706. UN Doc. S/RES/1706, 1.
115
United Nations Security Council, 2006. Provisional Record of the 5519st Meeting of the Security Council. UN Doc.
S/PV.5519.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
25
host state consent is not a legal prerequisite, the UN does not have the legal obligation to
renew the consent when changes are made to the mandate, unless the revised mandate
changes the operation from an enforcement action Chapter VII, to an operation for which the
host state consent is a legal prerequisite. 116
2.4.2.7. Absence of Consent of the Host State
It may be reasonably questioned what happens when the host state does not give its consent to
the emplacement and functioning of a UN peacekeeping mission within its territory or when
there is simply no government to give its consent. The drafters of the Capstone Doctrine
remark that:
“Security Council may take enforcement action without the consent of the main
parties to the conflict if it believes that the conflict presents a threat to international
peace and security. This, however, would be a peace enforcement operation. It may
also take enforcement action for humanitarian or protection purposes; where there is
no political process and where the consent of the major parties may not be
achievable, but where civilians are suffering.” 117
Thus, the UN Security Council has the discretion to decide which measures are necessary for
maintaining or restoring international peace and security in a certain situation. The UN
Security Council can either decide to establish a traditional UN peacekeeping operation - for
which the Council has to acquire the consent of the host state - or to take enforcement actions
under Chapter VII of the UN Charter without the consent of the host state’s government.118 In
the past, the UN Security Council has emplaced several UN peacekeeping operations within
the territory of a state without the consent of the host state, although they publicly stated that
the consent was obtained. This thesis is of the opinion that these UN peacekeeping actions
can only be marked as militarised UN peacekeeping operations.
2.4.2.8. The Revocation of Consent of the Host State
Once the consent is obtained, it is highly necessary that the UN Security Council undertakes
every effort to retain the consent of the main parties.119 The absence of the consent makes the
UN forces a party of the conflict and may draw the operation towards enforcement action.
However, consent can be very uncertain and unreliable when there is no trust between the
parties. The consent of the main parties of the conflict, possibly given under international
pressure, may be withdrawn in various ways when a party is not fully committed to the
political peace process. It could occur, for example, that one of the parties has given its
116
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 133.
United Nations Department of Peacekeeping Operations and Department of Field Support, 2008. United Nations
Peacekeeping Operations. Principles and Guidelines (‘Capstone Doctrine’). New York: United Nations, 43 (endnote 20).
118
A., ORAKHELASHVILI, 2002-2003. ‘The Legal Basis of the United Nations Peace-Keeping Operations’. 43 Va. J. Int’l. L. 519;
D., ZAUM, 2008. ‘ The Security Council, the General Assembly, and War: The Uniting for Peace Resolution’ in V., LOWE, The
United Nations Security Council and war: the evolution of thought and practice since 1945. New York: Oxford University Press,
171.
119
M., GOULDING, 1993. ‘The Evolution of United Nations Peacekeeping’. 69(3) International Affairs (Royal Institute of
International Affairs 1944) 454.
117
26
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
consent to the establishment of a UN peacekeeping operation, but has undertaken every action
to limit the freedom of action of the UN operation, which results in a de facto withdrawal of
consent.120
Different theories exist about the consent of the host state and the consequences of the
withdrawal of this consent:
(1) Legal character of the consent of the host state in all occasions - Some authors, such as
Tsagourias, have argued that the UN Security Council has to withdraw its troops when the
consent has been withdrawn. After all, the consent of the host state constitutes the legal basis
of the UN mission and when the state revokes its consent, the legal basis for the presence of
the UN peacekeepers decays. Tsagourias continued, stating there are some cases in which the
parties have given their consent to a peace agreement that does not only contain a cease-fire,
but also the emplacement of a UN peacekeeping operation. In those occasions, the author
argues that the consent is contractual and thus regulated by the law of treaties. Consequently,
when one of the parties revokes its consent, it must be accordance with the relevant rules
contained in the peace agreement. When those rules are not incorporated in the text of the
agreement, all the parties have to give their consent to the withdrawal of one party’s
withdrawal of consent.121 In the occasion of a unilateral termination, Tsagourias is of the
opinion that the purpose of the agreement must be taken into account, although there is a
presumption against it.122
(2) Binding implied agreement - Other authors come to a similar conclusion, but through
different reasoning. For example, Higgins argues that, when a state gives its consent to the
establishment of a UN peacekeeping operation within its territory, it enters into an implied
agreement not to withdraw its consent before the mandate - authorised by the UN Security
Council and consented by the host state - is fulfilled.123
(3) Legal character of the consent of the host state in some occasions - This thesis is of the
opinion that, when the UN peacekeeping operation constitutes a Chapter VI of the UN
Charter-based or consent-based operation, the UN Security Council may be obliged to either
withdraw the UN mission or to replace the mission by an enforcement operation when the
host state’s government withdraws its consent. On these occasions, the fundamental principle
of consent has a legal character and therefore, the UN peacekeeping mission looses its legal
basis when the consent is withdrawn. When the UN Security Council does not respond to the
request of the host state, or if it simply replaces the UN mission by a different UN action, the
UN Security Council can no longer act under the traditional concept of UN peacekeeping, but
instead, the Council will have to operate under the concept of enforcement.
120
United Nations Department of Peacekeeping Operations and Department of Field Support, 2008. United Nations
Peacekeeping Operations. Principles and Guidelines (‘Capstone Doctrine’). New York: United Nations, 32.
121
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 475-476; Vienna Convention on the Law of Treaties, 1969, art. 54 (b) and 57.
122
Vienna Convention on the Law of Treaties, 1969, art. 56.
123
R., HIGGINS, 1963. The Development of International Law through the Political Organs of the United Nations. Oxford:
Oxford University Press, 230.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
27
A first argument may be found in Second and Final Report:
“While the General Assembly is enabled to establish the Force with the consent of
those parties which contribute units to the Force, it could not request the Force to be
stationed or operate on the territory of a given country without the consent of the
Government of that country.”124
The UN General Assembly may only establish traditional UN peacekeeping operations under
Chapter VI of the UN Charter. Accordingly, as we will see in Chapter IV, 3, Chapter VI of
the UN Charter legally requires the consent of the host state. It may be derived from this
argument that, when the state withdraws its consent, the UN General Assembly has to request
the UN Security Council to transform the operation into an enforcement operation or it has to
withdraw its force. If the UN doesn’t withdraw its troops, the contributing states have the
obligation to do this.125
A second argument can be found in the principle of state sovereignty. If the UN Security
Council does not correspondingly respond to the withdrawal of the host state’s consent, the
Council violates the principle of state sovereignty.126 However, this principle leaves room for
one exception: when the UN Security Council takes enforcement measures under Chapter
VII, it does not comprise a violation of the principle. As a result, the Council has to transform
the mission into an enforcement operation or the Council has to entirely withdraw the
mission.
When the UN agencies and the host state have signed an agreement on the emplacement of
the UN mission, this contract falls under the law of contracts. Consequently, the parties of the
agreement will only be able to revoke their consent when this occurs according to the relevant
rules contained in the peace agreement. However, in most occasions, the right of the host state
to withdraw its consent is not explicitly incorporated in the status-of-force agreements
between the UN and the host state. When strictly following the rules of international contract
law, all the parties to the conflict should agree to the withdrawal of the consent of one of the
parties. However, it must be noted that it is generally accepted that, in the occasion that the
agreement lacks an explicit provision to limit the right of the host state to terminate the
mandate, the sovereign right to withdraw its consent remains unilaterally.127
124
United Nations General Assembly, 1956. Second and Final Report of the Secretary-General on the Plan for Emergency
International United Nations Force Requested in Resolution 998 (ES-I), Adopted by the General Assembly on 4 November 1956.
First Emergency Special Session. UN Doc. A/3302. New York: United Nations, 9.
125
N.D., WHITE, 1997. Keeping the Peace. The United Nations and the maintenance of international peace and security. 2nd ed.
Manchester: Manchester University Press, 233.
126
N.D., WHITE, 1997. Keeping the Peace. The United Nations and the maintenance of international peace and security. 2nd ed.
Manchester: Manchester University Press, 234.
127
N.D., WHITE, 1997. Keeping the Peace. The United Nations and the maintenance of international peace and security. 2nd ed.
Manchester: Manchester University Press, 234.
28
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
2.4.2.9. Conclusion
 The UN Security Council is only legally required to obtain the consent of the host
state when there is a government in place that has either the juridical or effective
control over the territory. In other occasions, it is, however, recommended to obtain
the consent of all the parties in conflict, since this will give the UN peacekeeping
operation with greater legitimacy.
 The consent of the host state is not a legal prerequisite to the decision of the UN
Security Council to establish a UN peacekeeping operation, but only to the
emplacement and functioning within the territory of the state.128
 The UN Security Council is not legally obliged to obtain the consent of the host state
with regard to the composition of the UN peacekeeping mission and its mandate. Yet,
when the UN has entered into a contract with the host state with regards to the
mandate and composition of the UN mission, or when the host state has given its
consent on the condition that the UN mission has a specific mandate and
composition, the UN organs are obliged to act in accordance to the agreement.
 Consent should generally be incorporated into a contract between the UN Security
Council and the host state. However, practice has shown that it is also sufficient when
notes have been exchanged, when an open letter has been sent to the Council, or
when a request has been included in the peace agreement between the conflicting
parties.
 The Council has to seek the renewal of the consent of the host state when a change of
power has taken place in the host state or when the Council itself has decided to remandate the UN troops. It is important to stress that this renewal is only required
when the UN Security Council has the intention to operate under the concept of UN
peacekeeping and not to transform the operation into an enforcement operation under
Chapter VII. When the consent of the host state is already absent from the beginning,
or when the host state has withdrawn its consent, the UN Security Council should
either withdraw its troops or it should transform the mission into an enforcement
operation under Chapter VII.
 Finally, it must be noted that history has shown that the UN Security Council
sometimes undertakes effort to retain the consent of the affected parties, even when
the consent is not a legal obligation. This can only be acclaimed.129 However, it must
also be stressed that the UN Security Council has often acted without the consent of
the host state while publicly claiming that it did obtain the host state’s consent.
128
129
UN Charter art. 25.
A., ORAKHELASHVILI, 2002-2003. ‘The Legal Basis of the United Nations Peace-Keeping Operations’. 43 Va. J. Int’l. L. 522.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
29
2.4.3. Principle 2: Impartiality
The principle of impartiality is the second key principle of UN peacekeeping. As with the
other two principles, there is no precise description of what the principle exactly includes, nor
is there a generally accepted definition. UN officials, analysts, and UN peacekeepers in the
field have taken different approaches towards the concept of impartiality.130 Initially, it was
accepted that impartiality simply meant the absence of partiality.131 Over the decades, the
fundamental principle seems to have shifted in response to the increase of intra-state conflicts,
and to the expectations of the international community that the UN peacekeepers will not only
oversee or end an open conflict, but that they will also stop the abuse of human rights and
protect civilians from violence.132 Clarification is needed as UN peacekeepers are being
deployed on increasingly complex and dangerous missions.
2.4.3.1. Difference between the concepts of impartiality and neutrality
A clear distinction has to be drawn between the concept of impartiality and the concept of
neutrality.133 According to Doyle and Sambanis, the need for impartiality is often mistaken
with ‘a policy of ‘strict neutrality’ and a disposition of passivity’.134 Both concepts find their
origin in the negotiations between the UN Secretary-General Dag Hammarskjöld and the
Egyptian President Gamal Nasser over the United Nations Emergency Force (UNEF) in 1956,
which resulted in the Good Faith Agreement. The concept that emerged was ambivalent: on
one hand, the UN peacekeepers were instructed not to influence the military balance, and on
the other hand, the UN peacekeepers had to act according to the principles of the UN
Charter.135 Furthermore, from the UN troops, the following forces had to be excluded: the
military personnel from a permanent member of the UN Security Council, as well as the
forces from any country which, for geographical or other reasons, might have a special
interest in the conflict.136
His idea of impartiality fit the universalist approach to ‘impartiality’ - that justice requires
“impartial judgement across cases” and that “the right has priority over the good”.137 In
130
H., YAMASHITA, 2008. “Impartial’ Use of Force in United Nations Peacekeeping’. 15(5) International Peacekeeping 615.
D., DONALD, 2003. ‘Neutral Is Not Impartial: The Confusing Legacy of Traditional Peace Operations Thinking’. 29(3) AFS
415.
132
J., BOULDEN, 2005. ‘Mandates Matter: An Exploration of Impartiality in United Nations Operations’. 11(2) Global
Governance 147-148. D., LEVINE, 2010. Peacekeeper Impartiality: Standards, Processes, and Operations. CISSM Working
Paper. Maryland: CISSM, 1.
133
D., DONALD, 2003. ‘Neutral Is Not Impartial: The Confusing Legacy of Traditional Peace Operations Thinking’. 29(3) AFS
416.
134
M.W., DOYLE, and N., SAMBANIS, 2007. ‘Peacekeeping Operations’ in T.G., WEISS, and S., DAWS, 2007. The Oxford
Handbook on the United Nations. Oxford: Oxford University Press, 325.
135
United Nations General Assembly, 1956. First Report of the Secretary-General on the Plan for an Emergency International
United Nations Force requested in the Resolution adopted by the General Assembly on 4 November 1956. First Emergency
Special Session. UN Doc. A/3289. New York: United Nations, 5; See also: A.W., CORDIER, and W., FOOTE, 1974. Public
Papers of the Secretaries General of the United Nations. Vol. IV: Dag Hammarskjold, 1958-1960. New York: Columbia
University Press, 278.
136
United Nations General Assembly, 1958. Summary Study of the Experience Derived from the Establishment and Operation of
the Force: Report of the Secretary-General. Thirteenth Session, Annexes, Agenda Item 65. UN Doc. A/3943, 8-33. New York:
United Nations, 16 and 160.
137
A., HUGHES, 2002. 'Impartiality' and the UN Observation Group in Lebanon, 1958’. 9(4) International Peacekeeping 3; S.,
O’NEILL, 1997. Impartiality in Context: Grounding Justice in a Pluralist World. New York: State University of New York, 2.
131
30
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
practice, this implied, on one hand, that the UN peacekeepers had to be perceived to be
impartial in the sense of even-handedness. On the other hand, this meant that UN
peacekeepers should not “prejudice the rights or positions of the parties concerned”.138
Accordingly, the UN Secretary-General used the term impartiality, but in doing so covered
both the concepts of impartiality and neutrality.
Hence, scholars and practitioners approached the principles of neutrality and impartiality as
synonyms and not as separate concepts by, for example, using terms such as ‘neutral’,
‘disinterested’, ‘impartial’, or ‘unbiased’ interchangeably.
In May 1998, Kofi Annan mentioned for the first time that UN peacekeeping had to move
away from the interchangeable use of the concept of impartiality and neutrality.139 The UN
Secretary-General stated that the United Nations had “learned that while impartiality is a
vital condition for peacekeeping, it must be impartiality in the execution of the mandate - not
just an unthinking neutrality between warring parties”.140
In the Brahimi Report of 2000, the UN clearly wanted to move away from the ‘universalist
view of impartiality’ and instead made a division between neutrality and impartiality, with
each a different interpretation.141 The Panel stressed that “impartiality for such operations
must […] mean adherence to the principles of the Charter and to the objectives of a mandate
that is rooted in those Charter principles”. 142 Furthermore, the drafters stressed that “in some
cases, local parties consist not of moral equals but of obvious aggressors and victims, and
peacekeepers may not only be operationally justified in using force but morally compelled to
do so.” 143
In 2008, the drafters of the Capstone Doctrine outlined that the UN peacekeeping operations
must implement their mandate without favour or prejudice to any party. They also stressed
that the need for being impartial may not be an excuse to condone action by the parties that
clearly works against the peace process or violate international norms and principles that are
upheld by the United Nations peacekeeping operations. 144 The definition given in the
Capstone Doctrine shall serve as the final definition of impartiality in the context of UN
peacekeeping.
138
S., O’NEILL, 1997. Impartiality in Context: Grounding Justice in a Pluralist World. New York: State University of New
York, 2.
139
P., WRANGE, 2008. ‘Neutrality, Impartiality and Our Responsibility to Uphold International Law’ in O., ENGDAHL, and P.,
WRANGE (eds.), Law at War: The Law as it Was and the Law as it Should Be. Leyden: Koninklijke Brill NV, 279.
140
Quoted from DONALD, D., 2002. ‘Neutrality, Impartiality and UN Peacekeeping at the Beginning of the 21st Century’. 9(4)
International Peacekeeping 24.
141
S., O’NEILL, 1997. Impartiality in Context: Grounding Justice in a Pluralist World. New York: State University of New
York, 3.
142
United Nations General Assembly and Security Council, 2000. Report of the Panel on United Nations Peace Operations
(‘Brahimi Report’). Fifty-fifth Session GA and Fifty-fifth Year SC. UN Doc. 1/55/305-S/2000/809. New York: United Nations,
50.
143
United Nations General Assembly and Security Council, 2000. Report of the Panel on United Nations Peace Operations
(‘Brahimi Report’). Fifty-fifth Session GA and Fifty-fifth Year SC. UN Doc. 1/55/305-S/2000/809. New York: United Nations,
530.
144
United Nations Department of Peacekeeping Operations and Department of Field Support, 2008. United Nations
Peacekeeping Operations. Principles and Guidelines (‘Capstone Doctrine’). New York: United Nations, 33.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
31
The principle of neutrality refers to the apolitical character of UN peacekeeping.145 It prevents
the UN Security Council from taking measures that can prejudice the position of one of the
parties in the conflict or that could influence the course of events.146 In the more traditional
UN peacekeeping operations, neutrality also implied that permanent member states and
parties who had an interest in the outcome of the conflict would be excluded from the
composition of the UN forces.147
2.4.3.2. Practice
(1) The principle of neutrality - In the course of past inter-state conflicts, it was necessary to
uphold the principle of neutrality in order to avoid measures that could prejudice the position
of one of the parties in the conflict or that could influence the course of events.148 However, in
more recent UN peacekeeping operations, which are deployed in intra-state conflicts, it has
been more difficult to uphold the principle of neutrality. Not only have their tasks been
multiplied and diversified, but also their composition has changed. The UN forces do not only
include civilian personnel and police, but also military personnel who are heavily equipped
and often authorised to use force beyond self-defence.149 In addition, the intentions of the UN
have shifted from solely observing a cease-fire without offending any of the parties towards
promoting human rights and giving humanitarian aid through the use of substantial force.150
There are also conceptual factors that had their influence on the principle of neutrality. For
example, in the past it occurred that a UN peacekeeping operation was tasked with rather
political tasks, which were often difficult to reconcile with political neutrality. However,
instead of leaving neutrality behind, the UN slipped into ‘political and moral blindness or
inaction’ with the claim that it obtained its neutral character.151 By avoiding every action that
could prejudice the position of one of the parties in the conflict or that could influence the
course of events, the UN disowned its own principles.152 For example, in the case of Rwanda,
the UN Secretary-General Kofi Annan stated during a visit:
145
H., NASU, 2009. International Law on Peacekeeping: A Study of Article 40 of the UN Charter. Leyden: Martinus Nijhoff
Publishers, 23.
146
United Nations General Assembly, 1958. Summary Study of the Experience Derived from the Establishment and Operation of
the Force: Report of the Secretary-General. Thirteenth Session, Annexes, Agenda Item 65. UN Doc. A/3943. New York: United
Nations, 8.
147
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 480.
148
H., NASU, 2009. International Law on Peacekeeping: A Study of Article 40 of the UN Charter. Leyden: Martinus Nijhoff
Publishers, 24.
149
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 480.
150
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 480.
151
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 480.
152
D., DONALD, 2002. ‘Neutrality, Impartiality and UN Peacekeeping at the Beginning of the 21st Century’. 9(4) International
Peacekeeping 24.
32
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
“In the face of genocide, there can be no standing aside, no looking away, no
neutrality - there are perpetrators and there are victims; there is evil and there is
evil’s harvest”.153
This entails one aspect of how modern UN peacekeeping challenges the principle of
neutrality. Another aspect entails that modern UN peacekeeping operations undertake more
tasks with a political character, such as organising elections or building democratic
institutions.154 It seems clear that it is not only difficult to uphold the principle of neutrality
during intra-state conflicts, but also reprehensible.
(2) The principle of impartiality - UN peacekeeping operations must uphold the principle of
impartiality in both inter-state and intra-state conflicts. History has, however, indicated that
the UN peacekeeping operations do not often succeed in upholding the fundamental principle
of impartiality. However, as Tharoor noted “impartiality is the oxygen of peacekeeping”.155
UN peacekeepers can only successfully carry out their mandate when the various parties of
the conflict trust them and when open and clear communication is used. The moment the UN
peacekeepers are seen as a partial role in the conflict, they will loose all trust and will be
approached as the enemy. At that given moment, they become a part of the conflict they were
sent to solve.156
The extent to which the UN peacekeeping forces are able to uphold an impartial role is
closely connected to the extent to which UN forces use force beyond self-defence. The more
forceful UN peacekeeping operations become, the less likely they are to uphold the principle
of impartiality.
Examples
 During the operations of the United Nations Assistance Mission for Rwanda
(UNAMIR II) and the United Nations Mission in Haiti (UNMIH), both deployed
between 1993 and 1996, the UN forces clearly did not uphold their impartial role. In
both operations, the UN forces were authorised to use force beyond self-defence.
However, the loss of impartiality did not appear to be an issue as both UN forces
were siding against illegal conduct.157
 In the case of MONUC in the Democratic Republic of the Congo (DRC), which was
operating in the country between 1999 and 2010, it is hard to argue that the operation
had an impartial character. The UN forces fought alongside the DRC’s forces,
making them a part of the conflict instead of being an impartial force. Often they
153
United Nations Press release, 1998. Secretary-general, in 'mission of healing' to Rwanda, pledges support of united nations
for country's search for peace and progress. UN Doc. SG/SM/6552 AFR 56.
154
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 480.
155
S., THAROOR, 1995. ‘The Changing Face of Peace-keeping and Peace-enforcement’. 19(2) Fordham I.L.J. 417.
156
R., MURPHY, 1999. ‘United Nations Peacekeeping in Lebanon and the Use of Force’. 6(2) International Peacekeeping 39; S.,
THAROOR, 1995. ‘The Changing Face of Peace-keeping and Peace-enforcement’. 19(2) Fordham I.L.J. 417-418.
157
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 157.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
33
even fought in place of the state’s army. For example, the UN Secretary-General
wrote that:
“In view of the near total disintegration of the FARDC in the face of
advancing CNDP troops, MONUC has become the only organized force in
Goma and has been compelled to step in to substitute for the role of the
national security forces.”158
2.4.3.3. Conclusion
 A clear difference shall be made between the concept of neutrality and the concept of
impartiality: the term ‘neutrality’ refers to the character of the UN peacekeeping
operation, whereas the term ‘impartiality’ has an operational character and refers to
the conduct of the operation. As outlined in the Capstone Doctrine, impartiality
declares that the UN peacekeepers should not hold any prejudices against one of the
parties of the conflict. On the contrary, neutrality refers to the apolitical character of
the UN peacekeeping operation, which gives the parties of the conflict the confidence
that the operation will not compromise their position in the conflict.159
 When considering the applicability of both the principles of impartiality and
neutrality, this thesis is of the opinion that the UN should uphold both an impartial
and a neutral role when it is involved in an inter-state conflict, without slipping into
moral blindness of inaction. Contrarily, when the UN establishes a UN peacekeeping
operation to control an intra-state conflict, the UN troops should only uphold their
impartial nature.
2.4.4. Principle 3: Non-Use of Force beyond Self-Defence
2.4.4.1. Introduction
The third fundamental principle of UN peacekeeping is the non-use of force except for selfdefence.160 Accordingly, the appropriate amount of force used by UN peacekeepers plays a
central role in the debate on UN peacekeeping as it mutual influences on the two other
principles. When the UN peacekeepers use force, this challenges the UN’s role of an impartial
player. In addition, the use of force may negatively influence the consent of the main parties
to the conflict.161
158
United Nations Security Council, 2008. Letter dated 31 October 2008 from the Secretary-General to the President of the
Security Council. Annex to the letter dated 31 October 2008 from the Secretary-General to the President of the Security Council.
UN Doc. S/2008/703. New York: United Nations, 4.
159
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 478.
160
United Nations Security Council, 1993. Res 871. UN Doc. S/RES/871, 9; United Nations Security Council, 1994. Res 918.
UN Doc. S/RES/918, 4; United Nations Security Council, 1994. Res 925. UN Doc. S/RES/925, 5.
161
J.N., PARKER, 2009. ‘Robust Peacekeeping: The Politics of Force’ in Center on International Cooperation. Robust
Peacekeeping: The Politics of Force. New York: New York University Center on International Cooperation, 2.
34
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
Over the years, the nature of the conflicts in which the UN operations were deployed, has
changed, ranging from inter-state conflicts to intra-state conflicts. Additionally, the content of
the UN peacekeeper’s mandates has been broadened, resulting in an increase of occasions in
which the UN forces have to resort to the use of force in order to successfully carry out the
mandate. In response, the definition of self-defence has been redefined - going from
individual self-defence to the defence-of-mandate and the protection of civilians - to remain
within the concept of self-defence. Yet, at the same time, the Council publicly upholds the
mantra that the purposes for which the UN forces uses force stays within self-defence. As we
will see in this section, it is, however, difficult to uphold this statement when it is clear that
the UN peacekeepers are implicitly authorised to use substantial force. Therefore, this thesis
will scrutinise the real purposes of the UN Security Council, especially when the Council has
the intention to authorise the use of force beyond self-defence although it publicly states that
only force within self-defence has been authorised.
In March 2013, the UN Security Council took a final landmark step in the authorisation of the
use of force beyond self-defence. The Council established an ‘Intervention Brigade’ - as a
part of the UN peacekeeping operation MONUSCO - with resolution 2098.162 For the first
time in history, the UN Security Council publicly stated that a part of the UN mission would
be considered as a purely military UN peacekeeping operation and that the forces belonging
to this mission would have the right to use force beyond self-defence.
2.4.4.2. Evolution of the Concept of self-Defence
Over decades, the concept has been defined and redefined as a response to the changing
nature of UN peacekeeping operations:163
 With the first UN peacekeeping operation in 1958, the UN organs recognised that the
forces could use military force in defence of UN personnel and property.164 As the
UN Secretary-General Dag Hammarskjöld noted that:
“[…] the rule is applied that men engaged in the operation may never take
the initiative in the use of armed force, but are entitled to respond with force
to an attack with arms, including attempts to use force to make them
withdraw from positions which they occupy under orders from the
Commander […]. The basic element involved is clearly the prohibition
against any initiative in the use of armed force.”165
In addition, the UN Secretary-General stressed that a broad interpretation of the
concept of self-defence could blur the distinction between UN peacekeeping
162
United Nations Security Council, 2013. Res 2098. UN Doc. S/RES/2098, 9.
K.E., COX, 1999. ‘Beyond Self-Defence: United Nations Peacekeeping Operations & the Use of Force’. 27 Denv. J. Intl’l. &
Pol’y. 249-255; S.P., SHEERAN, 2011. Briefing Paper. Contemporary Issues in UN Peacekeeping and International Law. IDCR
Doc. IDCR-BP-02/11. United Kingdom: Institute for Democracy & Conflict Resolution, 3.
164
C.K., PENNY, 2007. ‘Drop That or I'll Shoot ... Maybe’: International Law and the Use of Deadly Force to Defend Property in
UN Peace Operations’. 14(3) International Peacekeeping 354.
165
United Nations General Assembly, 1958. Summary Study of the Experience Derived from the Establishment and Operation of
the Force: Report of the Secretary-General. Thirteenth Session, Annexes, Agenda Item 65. UN Doc. A/3943. New York: United
Nations, 179.
163
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
35
operations such as UNEF I and ‘combat operations’; the latter would require an
invocation of Chapter VII of the UN Charter.166
 In 1973, the inherent right to use force in self-defence had been gradually expanded
from personal self-defence inherent to military personnel, to the right to defend the
mandate.167 Consequently, UN forces were now authorised to take action beyond selfdefence when another force attempted to prevent them from carrying out their
responsibilities.
 Since the 1990s, most of the conflicts are intra-state conflicts, fought by local factions
and irregular troops. Differing political objectives, as well as splintered lines of
command cause an increase of violence directed against the UN peacekeepers and the
civilians of the host state. In response, the UN Security Council expanded the
mandates of the UN peacekeepers and the occasions in which the UN forces had to
use force in order to successfully carry out their mandate.168 The UN reinterpreted the
concept of self-defence once again; from now on, the right to use force in selfdefence also included the right to defend the mandate and to protect third parties.169
This thesis would like to make a critical footnote concerning the current approach to the
concept of self-defence. The UN forces resort more and more to the use of substantial force in
order to defend the mandate or to protect civilians. However, history has proven that those
operations often do not result in successful peacekeeping operations. The increasing use of
force only weakens the legal and political framework of the United Nations, especially the
principles and purposes of the UN Charter and those governing UN peacekeeping.170
For the future, this thesis recommends that the UN Security Council should either limit the
authorisation of use of force for defending UN personnel and property, or the Council should
expressly authorise the forces to use force beyond self-defence. In the occasion the UN
Security Council has not explicitly authorised the use of force, the UN peacekeepers should
only use force to defend UN personnel and property. On the other hand, when the UN
Security Council explicitly authorises the use of force, as happened with MONUSCO, the
peacekeepers may use force to operationalize the mission’s mandate.171 Accordingly, this UN
peacekeeping operation will be turned into an enforcement operation. This measure will
166
United Nations General Assembly, 1958. Summary Study of the Experience Derived from the Establishment and Operation of
the Force: Report of the Secretary-General. Thirteenth Session, Annexes, Agenda Item 65. UN Doc. A/3943, 8-33. New York:
United Nations, 179.
167
S., CHESTERMAN, 2004. The Use of Force in UN Peace Operations. External Study. New York: New York University School
of Law, 9.
168
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 3.
169
United Nations Department of Peace-keeping Operations, 1995. General Guidelines for Peace-keeping Operations.
UN/210/TC/GG95. New York: United Nations, 33-35.
170
United Nations General Assembly, 2013. Special Committee on Peacekeeping Operations. Troop Contributors’ Views must
be reflected in Field, at Headquarters, Special Committee on Peacekeeping Operations told as General Debate concludes. 229th
and 230th Meeting. UN Doc. GA/PK/212. New York: United Nations.
171
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 474.
36
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
reduce the uncertainty that currently prevails among the UN forces to which extent they are
allowed to use force.
Finally, this thesis would like to note that the evolution of the concept of self-defence is
closely connected with the changing nature of traditional UN peacekeeping operations
towards militarised UN peacekeeping operations. After all, the changing definition of selfdefence is often a response to the changing nature of the conflict. Accordingly, Chapter III of
this thesis incorporates a more detailed evolution of the concept of self-defence.
2.4.4.3. Intention of the UN Security Council to Authorise the Use of Force beyond
Self-Defence
The UN Security Council has always publicly stated that the UN peacekeepers are only
authorised to use force within self-defence. However, as we will see in the evolution of
militarised UN peacekeeping operations, outlined in Chapter III, the UN Security Council
mostly has the implicit intention to authorise the use of force beyond self-defence. Hence,
instead of focusing on the precise wording of the UN Security Council’s resolution, this thesis
will focus on the intention of the UN Security Council.
We will deduce the Council’s intention from the following elements, alone or combined,
contained in the resolution:
(1) The express of implicit invocation of Chapter VII of the UN Charter (or an article
thereafter) - When the UN Security Council considers the conflict of a threat to the peace,
breach of the peace or act of aggression, this indicates that implies the implicit invocation of
Chapter VII of the UN Charter. In recent years, the UN Security Council has also adopted the
practice of explicitly invoking Chapter VII of the UN Charter when authorising the
deployment of a UN peacekeeping operation in order to maintain or restore the international
peace and security.172 Adopting Chapter VII may indicate the intention to authorise the use of
armed force. However, this is not necessarily the case. To determine whether the UN Security
Council has the intention to authorise the use of force beyond self-defence, other elements
must be taken into account.
(2) The list of tasks assigned to the UN peacekeepers - The UN Security Council often
mandates the UN peacekeepers with difficult tasks for which the use of armed force might be
necessary to successfully carry out these tasks. For example, when the UN Security Council
requires the UN peacekeepers to sustain a “secure and stable environment established during
the multinational phase” and to protect “international personnel and key installations”, the
UN peacekeepers cannot successfully carry out these tasks without resorting to the use of
force. 173 Accordingly, it might be argued that, when the UN Security Council entrusts the UN
172
United Nations Department of Peacekeeping Operations and Department of Field Support, 2008. United Nations
Peacekeeping Operations. Principles and Guidelines (‘Capstone Doctrine’). New York: United Nations, 14.
173
For example: United Nations Security Council, 1994. Res 940. UN Doc. S/RES/940, 9
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
37
peacekeepers with certain tasks, the UN Security Council has the implicit intention of
authorising the use of force beyond self-defence
(3) An authorisation to use ‘all necessary means’ or similar language signalling an
authorisation to use force beyond self-defence174 - In its resolutions, the UN Security
Council has used the following terms to authorise the use of force beyond self-defence: the
authorisation to ‘use all necessary means’175, to take ‘all necessary measures’176 , or to ‘take
the necessary action’177 (or wording to a similar effect). The UN peacekeepers are entrusted
with an open mandate; they are given great leniency to decide which ‘means’, ‘measures’ or
‘action’ shall be used to successfully carry out the mandated tasks. More specifically, this
implies that the intention of the UN Security Council is to leave room for the UN
peacekeepers to decide whether or not they need to resort to the use of armed force beyond
self-defence.178
This thesis is convinced that, based on the analysis of these elements, we can deduce whether
the UN Security Council had the intention to authorise the use of force beyond self-defence.
The following UN peacekeeping operations and their mandates may serve as a clear example
of how the UN Security Council authorises the UN peacekeepers to use force beyond selfdefence without explicitly stating it:
 In the case of the United Nations Protection Force (UNPROFOR), which was
established in 1992 to control the Yugoslavian crisis, the UN Security Council
included the term ‘self-defence’ in resolution 836, but also imposed tasks on the UN
forces that could not be carried out without the use of substantial force. Especially,
the UN Security Council authorised the UN peacekeepers:
"In carrying out the mandate […], acting in self-defence, to take the
necessary measures, including the use of force, in reply to bombardments
against safe areas by any of the parties or to armed incursion into them or in
the event of any deliberate obstruction in or around those areas to the
freedom of movement of UNPROFOR or of protected humanitarian
convoys.”179
It must be noted that the wording of ‘all necessary measures’ contradicts the
obligation to act in self-defence as ‘all necessary measures’ indicates the use of force
beyond self-defence. If the UN Security Council had the purpose to only authorise the
174
R., MCLAUGHLIN, 2008. ‘The Legal Regime Applicable to Use of Lethal Force When Operating under a United Nations
Security Council Chapter VII Mandate Authorising ‘All Necessary Means’’. 12 JCSL 390.
175
United Nations Security Council, 2003. Res 1509. UN Doc. S/RES/1509; United Nations Security Council, 2004. Res 1528.
UN Doc. S/RES/1528, 8; United Nations Security Council, 2004. Res 1565. UN Doc. S/RES/1565, 6; United Nations Security
Council, 2010. Res 1925. UN Doc. S/RES/1925, 11; United Nations Security Council, 2011. Res 1996. UN Doc. S/RES/1996, 4.
176
United Nations Security Council, 1993. Res 837. UN Doc. S/RES/837, 5; United Nations Security Council, 1999. Res 1272.
UN Doc. S/RES/1272, 1 and 4.
177
United Nations Security Council, 2002. Res 1410. UN Doc. S/RES/1410, 6; United Nations Security Council, 2000. Res
1291. UN Doc. S/RES/1291, 8.
178
R., MURPHY, 2003. ‘United Nations Peacekeeping in Lebanon and Somalia, and the Use of Force’. 8 JCSL 75.
179
United Nations Security Council, 1993. Res 836. UN Doc. S/RES/836, 9.
38
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
use of force in self-defence, there was no need to invoke Chapter VII, or to use the
wording ‘all necessary means’, or to mention that the forces would be acting in selfdefence - as it is beyond discussion that every UN peacekeeper has the inherent right
to use force in self-defence. This resolution is a clear example of an attempt by the
UN Security Council to cover its true intentions by using the wording of ‘acting in
self-defence’ in combination with the invocation of Chapter VII of the UN Charter.180
 The United Nations Operation in Somalia II (UNOSOM II), which operated in
Somalia from 1993 until 1995, is also a clear example of a UN peacekeeping force
that was authorised to use force beyond self-defence.181 In March 1994, acting under
Chapter VII after finding a threat to the international peace and security, the UN
Security Council established UNOSOM II and implicitly authorised the force to use
force beyond self-defence by approving the Further Report of the SecretaryGeneral.182
In this report, the UN Secretary-General stated that the forces should undertake the
following military tasks:
“[…] take appropriate action against any faction that violated or threatens to
violate the cessation of hostilities’ and ‘to take such forceful action as may be
required to neutralize armed elements that attack, or threaten to attack such
facilities and personnel”.183
Neither the report of UN Secretary-General, nor the UN Security Council’s resolution
that approved the terms of the report mentioned any obligation for the UN forces to
limit the use of force to self-defence.184
However, on other occasions, it is more difficult to determine whether the UN Security
Council had the intention to authorise force beyond self-defence. For example:
 The initial mandate of the United Nations Organization Mission in the Democratic
Republic of the Congo (MONUC), which was deployed between 1999 and 2010, did
not authorise the UN forces to use force beyond self-defence.185 However, this was to
change in gradually. In February 2000, the UN Security Council stated:
"Acting under Chapter VII of the Charter of the United Nations, decides that
MONUC may take the necessary action in the areas of deployment of its
infantry battalions and as it deems it within its capabilities, to protect United
Nations and co-located JMC personnel, facilities, installations and
180
Y., AKASHI, 1995. ‘The Use of Force in a United Nations Peace-Keeping Operation: Lessons Learnt from the Safe Areas
Mandate’. 19(2) Fordham I.L.J. 317.
181
S., CHESTERMAN, 2004. The Use of Force in UN Peace Operations. External Study. New York: New York University School
of Law, 7.
182
United Nations Security Council, 1993. Res 814. UN Doc. S/RES/814, 1; United Nations Security Council, 1993. Further
Report of the Secretary-General submitted in Pursuance of Paragraphs 18 and 19 of Resolution 794. UN Doc. S/25354. New
York: United Nations.
183
United Nations Security Council, 1993. Further Report of the Secretary-General submitted in Pursuance of Paragraphs 18
and 19 of Resolution 794. UN Doc. S/25354. New York: United Nations, 57 (b) and (f).
184
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 147.
185
United Nations Security Council, 1999. Res 1279. UN Doc. S/RES/1279.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
39
equipment, ensure the security and freedom of movement of its personnel,
and protect civilians under imminent threat of physical violence.”186
According to a report by the Department of Peacekeeping Operations:
“MONUC’s rules of engagement for the military component of the mission
made clear that force could be used beyond self-defence to ensure security
and freedom of movement of MONUC’s personnel and to afford protection to
civilians under imminent threat of physical violence, pursuant to resolution
1291 (2000).”187
It is clear that this resolution only authorises the use of force beyond self-defence for
limited purposes, especially with regards to the protection of civilians. In resolution
1493, the UN Security Council went further and authorised the UN forces to use
force for all of its tasks, but only in relation to a certain geographical part of the
Democratic Republic of the Congo.188 In resolution 1565, the UN Security Council
authorised the use of ‘all necessary means’, which implied that the use of force
beyond self-defence could be used in relation to all geographical parts but for certain
tasks only.189
However, in 2003, UN Under-Secretary-General for Peacekeeping, Jean-Marie Guéhenno,
raised the ground-breaking question of whether or not the UN Security Council had the
intention to authorise the UN peacekeepers of operation UNMIL to use armed force in
situations other than self-defence when invoking Chapter VII - after determining that the
conflict posed a threat to international peace and security -, but without making any reference
to the wording ‘all necessary means’ (or wording to a similar effect).190 In a Note to the
Under-Secretary-General of the Department of Peacekeeping Operations, the UN Legal
Counsel, Hans Corell, formulated his interpretation of resolution 1509 of 19 September
2003.191 According to the UN Legal Counsel, it was beyond doubt that the UN Security
Council made use of its power under Chapter VII to authorise the use of force beyond selfdefence when using the wording ‘all necessary means’. However, when the Council had not
used this kind of wording, it did not mean that the Council did not have the intention the use
of force beyond self-defence. In this case, the UN Security Council’s resolution had to be
interpreted, specifically:
“[…] on the ordinary and natural meaning which is to be given to its terms when
they are read in the context of the resolution as a whole and in the light of its object
and purpose, and against the background of the discussion leading to, and the
186
United Nations Security Council, 2000. Res 1291. UN Doc. S/RES/1291, 8.
United Nations Department of Peacekeeping Operations, Peacekeeping Best Practices Unit, Military Division, 2004. The
Lessons of the Interim Emergency Multinational Force. New York: United Nations, 8. Accessed 23 maart 2013:
http://pbpu.unlb.org/pbps/Library/Artemis.pdf.
188
United Nations Security Council, 2003. Res 1493. UN Doc. S/RES/1493.
189
United Nations Security Council, 2004. Res 1565. UN Doc. S/RES/1565.
190
The Permanent Representative of an unidentified state had initially asked the to UN Under-Secretary-General for
Peacekeeping disclose whether UNMIL was able to use force beyond self-defence.
191
United Nations, 2006. ‘Note to the Under-Secretary-general of the Department of Peacekeeping Operations, United Nations’
in United Nations Juridical Yearbook 2003. New York: United Nations, Office of Legal Affairs; United Nations Security
Council, 2003. Res 1509. UN Doc. S/RES/1509.
187
40
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
circumstances of, its adoption, in particular the report that the Secretary-General
submitted pursuant to resolution 1487 (2003).”192
With this Note, the UN Legal Counsel took a landmark step by confirming that the UN
Security Council does implicitly authorise the use of force beyond self-defence. In addition, it
confirmed this thesis’ theory that the intention of the Council has to be examined through the
wording of the Council’s resolution.
In conclusion, it is clear from the examples listed above that the UN Security Council often
has the intention to authorise the use of force beyond self-defence without expressly
authorising the UN troops to do so. The UN Security Council persistently claims that the UN
forces have successfully upheld the fundamental principle of non-use of force beyond selfdefence. History, however, has clearly shown that UN peacekeeping has been militarised over
the years and that force beyond self-defence represents a rule rather than an exception.
Consequently, this thesis argues that the intention of the Council has to be identified in order
to make a conclusion in regards to the militarised nature of UN peacekeeping operations.
Tsagourias rightly argued that, “at the end of the day and whatever language one may use,
what it means is that the mandate should be enforced”.193
2.4.4.4. Conclusion
 The concept of ‘self-defence’ underpins the importance of the UN peacekeeping
operation to not take initiative and to act impartial.194 The concept of self-defence has
known a whole evolution from the 1960s and the 1990s. Nowadays, self-defence does
not only include the UN personnel and its material, but also the mandate and third
parties.
 Although the UN Security Council often publicly claims that it only authorises the
use of force within self-defence, history has indicated the opposite. Accordingly, in
order to determine whether the UN Security Council had the intention to authorise
the use of force beyond self-defence, the mandate of the UN peacekeeping operation
- incorporated in a UN Security Council’s resolution - has to be analysed into detail.
 In practice, the question of whether UN peacekeepers may use force remains difficult
and politically sensitive. Most of the time, it is unclear under what circumstances and
at what level of force UN peacekeepers may use. 195 This does not only affect the
action of UN forces on the ground, but also the political and legal framework of the
United Nations as a whole.
192
United Nations, 2006. ‘Note to the Under-Secretary-general of the Department of Peacekeeping Operations, United Nations’
in United Nations Juridical Yearbook 2003. New York: United Nations, Office of Legal Affairs, 539.
193
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 473.
194
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 474.
195
S.P., SHEERAN, 2011. Briefing Paper. Contemporary Issues in UN Peacekeeping and International Law. IDCR Doc. IDCRBP-02/11. United Kingdom: Institute for Democracy & Conflict Resolution, 3.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
41
3. Enforcement and Peace Enforcement: How is it
Different from UN Peacekeeping?
3.1. Enforcement Operations
3.1.1. The Concept of Enforcement
By virtue of Chapter VII of the UN Charter, the UN Security Council may take enforcement
measures and even resort to military measures to effectively maintain or restore international
peace and security.196
(1) Non-military enforcement actions have a coercive, but non-forceful character and
include economic and trade sanctions and/or more targeted measures such as arms
embargoes, travel bans, and financial or diplomatic restrictions.
(2) Military enforcement actions are coercive actions, for which armed force is used
by a state or a group of states, to force states or a faction within a state to comply with
decisions of the Security Council, for example to deter aggression or to prevent
human rights violations.197
Unlike the concept of ‘peacekeeping’, the drafters of the UN Charter have foreseen the
concept of ‘military enforcement’.198 The UN collective security system - based on the ability
of the UN Security Council to use military measures to maintain or restore international peace
and security - finds it origin in article 42 and 43 of the UN Charter.199 Article 42 of the UN
Charter states:
“Should the Security Council consider that measures provided for in Article 41
[which provides for the imposition of economic sanctions] would be inadequate or
have proved to be inadequate, it may take such action by air, sea, or land forces as
may be necessary to maintain or restore international peace and security. Such
action may include demonstrations, blockade, and other operations by air, sea, or
land forces of Members of the United Nations.”200
Article 43 of the UN Charter prescribes that the members of the United Nations shall make
‘special agreement(s)’, which will govern “the numbers and types of forces, their degrees of
readiness and general location, and the nature of the facilities and assistance provided”.201
196
N., KRISCH, 2013. ‘Introduction to Chapter VII: The General Framework’ in B., SIMMA, et al., The Charter of the United
Nations: a Commentary. 3rd ed. Oxford: Oxford University Press, 1239. .
197
H., MCCOUBREY, and N.D., WHITE, 1996. The Blue Helmets: Legal Regulations of United Nations Military Operations.
Aldershot: Dartmouth Publishing Company Limited, 18.
198
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 43.
199
G., WILSON, 2007. ‘Legal, Military and Political Consequences of the Coalition of the Willing Approach to UN Military
Enforcement Action’. 12(2) JCSL 296-297; D., SAROOSHI, 1999. The United Nations and the Developments of Collective
Security. The Delegations by the UN Security Council of its Chapter VII Powers. Oxford: Oxford University Press, 5.
200
UN Charter art. 42.
201
UN Charter art. 43.
42
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
In 1947, the UN Security Council instructed the Military Staff Committee - established under
article 47 of the UN Charter and consisting of the Chiefs of Staff of the permanent members to develop the underlying basic principles of the UN forces.202 Although the Military Staff
Committee managed to develop certain basic principles, the permanent members only
accepted half of these principles. 203 The absence of consensus between the permanent
members blocked every possibility to make the collective security system operational. The
permanent members did agree that the forces - disposed by the member states - would be
under the command of the contributing states, except when they would be operated by the UN
Security Council. This implies that, when the forces were utilised by the UN Security
Council, they would fall under the political control of the Council, and under the operational
and military command of the Military Staff Committee. In addition, they agreed upon the fact
that the permanent members would be the first contributors of the armed forces. Hereafter, the
other member states would contribute troops at a later stage when necessary. However, there
were also multiple disagreements, such as the size of the forces, and whether the permanent
members would equally contribute to the troops or not.204 Consequently, the state members
have never agreed upon a standing force on an on-call basis - as foreseen in article 43 of the
UN Charter - and thus such a force does not exist. 205 In practice, the UN Security Council has
developed contemporary variations of the type of military enforcement action envisaged in
the UN Charter, without an agreement of the state members on a standing force. For example,
there have been operations in which the UN Security Council authorised a state or a coalition
of states to take forceful action against a state, but in which the command and control of the
troops fell within the powers of that state or coalition of states.206
Military enforcement operations are also guided by three fundamental principles:
(1) No consent of the recalcitrant state - The UN Security Council is not legally required to
obtain the consent of the host state when authorising enforcement measures under Chapter
VII. Consequently, some academics argue that, when the host state does give its consent, the
measure cannot fall under Chapter VII. It is true that military enforcement measures are
generally directed against a state and designed to overcome the opposing will of this state.
Sometimes, it is, however, beneficial for the state to request or accept military enforcement
measures to support the national army in calming down hostilities or overcoming rebel
groups. 207 Thus, military enforcement measures are characterised by their binding force
202
United Nations Security Council, 1947. Mtg, 2 UN SCOR.
United Nations Security Council, 1947. Special Supp, (No. 1), 2 UN SCOR.
204
H., MCCOUBREY, and N.D., WHITE, 1996. The Blue Helmets: Legal Regulations of United Nations Military Operations.
Aldershot: Dartmouth Publishing Company Limited, 12.
205
N., BLOKKER, 2000. ‘Is the Authorization Authorized - Powers and Practice of the UN Security Council to Authorize the Use
of Force by Coalitions of the Able and Willing’. 11(2) EJIL 542; J., SLOAN, 2011. The Militarisation of Peacekeeping in the
Twenty-First Century. Northampton: Hart Publishing, 44.
206
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 44-45; G.,
WILSON, 2007. ‘Legal, Military and Political Consequences of the Coalition of the Willing Approach to UN Military
Enforcement Action’. 12(2) JCSL 296-297.
207
N., KRISCH, 2013. ‘Article 41’ in B., SIMMA, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford: Oxford
University Press, 1311; J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart
Publishing, 54 and 99.
203
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
43
‘regardless’ of the will of the target states, rather than by its being taken ‘against’ the will of
the states subject to it.208
(2) No Impartial role in the conflict - An enforcement operation is established to enforce a
specific political solution.209 The multinational forces are not required to uphold an impartial
role.
(3) The use of armed force beyond self-defence - When the UN Security Council authorises
military enforcement measures under article 42 of the UN Charter, the multinational forces
are not limited to the use of force within self-defence. Instead, the forces may rely on
considerable offensive force to achieve their objectives.
3.1.2. Difference Between Enforcement and UN Peacekeeping?
The distinction between peacekeeping and enforcement is deep-rooted in the literature;210
peacekeeping is argued to be something completely different than enforcement. Both
traditional UN peacekeeping and enforcement are guided by their own set of fundamental
principles, providing contrasting approaches in relation to the consent of the host state,
impartiality, and the non-use of force beyond self-defence:211
(1) Consent - UN peacekeeping is consensual whereas enforcement is non-consensual.212
Support for this can be found in the reasoning of the International Criminal Court in the
Certain Expenses Case where the existence of the consent of the host state was significant to
the finding that ONUC “did not involve ‘preventive or enforcement’ measures against any
state under Chapter VII”.213 In addition, according to the Special Court for Sierra Leone, the
difference between peacekeeping and enforcement is that the latter does not rely on the
consent of the host state, but on the binding authority of the UN Security Council under
Chapter VII of the UN Charter.214
(2) Use of force - Defensive and impartial force is used in UN peacekeeping operations
whereas offensive and partial armed force is used against one of the parties in military
enforcement actions.215
208
N., KRISCH, 2013. ‘Introduction to Chapter VII: The General Framework’ in B., SIMMA, et al., The Charter of the United
Nations: a Commentary. 3rd ed. Oxford: Oxford University Press, 1247.
209
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 54.
210
J., PÉREZ DE CUÉLLAR, 1989. ‘Nobel Lecture of 9 January 1989’. Accessed 17 January 2013:
http://www.nobelprize.org/nobel_prizes/peace/laureates/1988/un-lecture.html.
211
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 62.
212
H., MCCOUBREY, and N.D., WHITE, 1996. The Blue Helmets: Legal Regulations of United Nations Military Operations.
Aldershot: Dartmouth Publishing Company Limited, 19.
213
Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ
Reports 1962, 177.
214
Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao. Judgement of 2 March 2009, Special Court for Sierra
Leone, Trial Chamber I, Case SCSL 04-15-T-1234, 230.
215
H., MCCOUBREY, and N.D., WHITE, 1996. The Blue Helmets: Legal Regulations of United Nations Military Operations.
Aldershot: Dartmouth Publishing Company Limited, 19.
44
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
(3) Command and control - A more practical difference between military enforcement and
UN peacekeeping is that in the latter, forces always fall under the command and control of the
UN. Contrarily, contemporary military enforcement operations often fall under the command
and control of contributing nations after the UN Security Council gave the authorisation.216
However, over decades, the nature of UN peacekeeping has changed; the line between UN
peacekeeping and enforcement has become thin and is possibly non-existent.217 In the 1990s,
Secretary-General Boutros-Ghali wrote his Agenda for Peace, outlining his vision for the
future of UN peacekeeping and related activities.218 As stated by Higgins, An agenda for
Peace opened the way to UN peacekeeping with an enforcement character and thus
abandoning the long-standing distinction between enforcement and UN peacekeeping.219 In
addition, the UN Secretary-General gave the impression that he did not consider the consent
of the host state as a fundamental prerequisite for establishing a UN peacekeeping
operation.220
Five years later, the UN Secretary-General Boutros-Ghali wrote the Supplement to an Agenda
for Peace, in which he clearly rejected his position from 1992. First of all, he clearly
confirmed the three fundamental principles of UN peacekeeping operations, established by
Secretary-General Hammarskjöld in his Summary Study. Secondly, he realised that:
“The logic of peacekeeping flows from political and military premises that are quite
distinct from those of enforcement; and the dynamics of the latter are incompatible
with the political process that peace-keeping is intended to facilitate. To blur the
distinction between the two can undermine the viability of the peace-keeping
operation and endanger its personnel.”221
In practice, however, traditional peacekeeping operations have only been further militarised
since the end of the Cold War. By not always respecting the three fundamental principles,
which should provide opposing approaches between UN peacekeeping and enforcement, the
lines between UN peacekeeping and enforcement have blurred. Consequently, it can no
longer be argued that UN peacekeeping and enforcement are the opposites of each other; both
of the concepts overlap to a certain degree, depending on the specific operation. The only
important difference that often remains between UN peacekeeping and contemporary military
enforcement operations is that the latter often falls under the command and control of
216
H., MCCOUBREY, and N.D., WHITE, 1996. The Blue Helmets: Legal Regulations of United Nations Military Operations.
Aldershot: Dartmouth Publishing Company Limited, 19.
217
H., MCCOUBREY, and N.D., WHITE, 1996. The Blue Helmets: Legal Regulations of United Nations Military Operations.
Aldershot: Dartmouth Publishing Company Limited, 11.
218
United Nations General Assembly and Security Council, 1992. An Agenda for Peace. Preventive Diplomacy, peacemaking
and peace-keeping. Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security
Council on 31 January 1992. UN Doc. A/47/277-S/24111. New York: United Nations.
219
R. Higgins, 1995. ‘Peace and Security: Achievements and Failures’. 6 EJIL 450.
220
United Nations General Assembly and Security Council, 1992. An Agenda for Peace. Preventive Diplomacy, peacemaking
and peace-keeping. Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security
Council on 31 January 1992. UN Doc. A/47/277-S/24111. New York: United Nations, 20.
221
United Nations General Assembly and Security Council, 1995. Supplement to an Agenda for Peace: Position Paper of the
Secretary General on the Occasion of the Fiftieth Anniversary of the United Nations. Fiftieth Session GA, Fiftieth Year SC. UN
Doc. A/50/60 and S/1995/1. New York: United Nations, 35.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
45
contributing nations after the UN Security Council has given the authorisation, instead of
falling under the command and control of the UN itself.
As the concepts further overlap, both the UN entities and academics have attempted to create
a new category ‘peace enforcement’ to overcome the grey area between UN peacekeeping
and enforcement.
3.2. Peace Enforcement Operations
The concept of peace enforcement is, as noted by Pugh, a ‘contested and vexing issue’.222
There is no generally accepted definition, and there is a lack of clarity about what peace
enforcement exactly entails.223 It has been developed as a new category to fill in the gap
between UN peacekeeping and enforcement.224
3.2.1. The Concept of Peace Enforcement
The concept of peace enforcement has not been developed as a new kind of UN
peacekeeping, but as a separate category of peace operations, next to UN peacekeeping.225
UN Secretary-General Boutros-Ghali, in his Agenda for Peace of 1992, used the concept of
‘peace enforcement’ for the first time. He approached peace enforcement as a provisional
measure under article 40 of the UN Charter. He argued that these operations would be more
heavily armed than peacekeeping forces, that they would act under the command and control
of the UN, and that they would have to undergo extensive training. In addition, he clearly
stressed that peace enforcement is different from enforcement; in the latter the UN authorises
a state or a coalition of states to use force.226
A clear definition was not yet formulated until American and British military doctrines on
peacekeeping were published in 1994. American analysts and the US army favoured the
approach of absolute coercion or use of force under Chapter VII of the UN Charter against
specific targets. This is partly based on the argument that collective security and peace
support operations are both characterised by the use of force.227 In the American field manual,
peace enforcement was defined as “the application of military force or the threat of its use,
normally pursuant to international authorisation, to compel compliance with generally
222
M., PUGH, 2007. ‘Peace Enforcement’ in T.G., WEISS, and S., DAWS, The Oxford Handbook on the United Nations. Oxford:
Oxford University Press, 371.
223
T., FINDLAY, 2002. The Use of Force in UN Peace Operations. SIPRI. Oxford: Oxford University Press, 382.
224
M., STOPFORD, 1996. ‘Peace-Keeping or Peace-Enforcement: Stark Choices for Grey Areas’. 73 U. Det. Mercy L. Rev. 502.
225
United Nations Department of Peacekeeping, [date unknown]. Peace and Security. Accessed 8 May 2013:
20http://www.un.org/en/peacekeeping/operations/peace.shtml.
226
United Nations General Assembly and Security Council, 1992. An Agenda for Peace. Preventive Diplomacy, peacemaking
and peace-keeping. Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security
Council on 31 January 1992. UN Doc. A/47/277-S/24111. New York: United Nations, 44.
227
M., PUGH, 2007. ‘Peace Enforcement’ in T.G., WEISS, and S., DAWS, The Oxford Handbook on the United Nations. Oxford:
Oxford University Press, 371.
46
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
accepted resolutions or sanctions”. 228 On the contrary, the British field manual, Wider
Peacekeeping, defined peace enforcement as “operations carried out to restore peace
between belligerent parties who do not all consent to interventions and who may be engaged
in combat activities”.229 In particular, they observed the concept of peace enforcement as a
‘distinctive, robust mutation of peacekeeping’ and as an important tool to maintain or restore
international peace and security.230
In the 21st century, the UN entities attempted to draw a line between UN peacekeeping and
peace enforcement as militarised UN peacekeeping operations had become the norm.
Strangely enough, the drafters of the Capstone Doctrine did not make a distinction between
peace enforcement and enforcement. Peace enforcement was defined as followed:
“Peace enforcement involves the application, with the authorization of the Security
Council, of a range of coercive measures, including the use of military force. Such
actions are authorized to restore international peace and security in situations where
the Security Council has determined the existence of a threat to the peace, breach of
the peace or act of aggression. The Security Council may utilize, where appropriate,
regional organizations and agencies for enforcement action under its authority”.231
With this definition, the drafters of the Capstone Doctrine clearly envisioned both UN-led
and state-led peace enforcement operations. Furthermore, the drafters stressed that the UN
Security Council may authorise enforcement actions - in the form of a peace enforcement
operation - without the consent of the main parties to the conflict, when this conflict presents
a threat to international peace and security. In addition, they argued that the UN Security
Council may also authorise enforcement actions for humanitarian or protection purposes
without the consent of the main parties and without any political process in cases where the
civilians are suffering and are in need of the protection of the UN. Finally, the drafters
observed that, since the mid-1990s, peace enforcement actions had been carried out by ‘ad
hoc coalitions of member States’ or regional organizations acting under the authorisation of
the UN Security Council.232
3.2.2. Difference Between Peace Enforcement and UN Peacekeeping?
As already mentioned above, the character of UN peacekeeping has changed; almost every
UN peacekeeping operation has become militarised at one point. Accordingly, the distinction
between UN peacekeeping and peace enforcement has become blurred.
228
United States Headquarters Department of the Army, 1994. Field Manual 100-23 Peace Operations. Washington:
Headquarters Department of the Army, 6.
229
Director General Land Warfare, 1994. Army Field Manual, Wider Peacekeeping. London: Her Majesty's Stationery Office, 12.
230
M., PUGH, 2007. ‘Peace Enforcement’ in T.G., WEISS and S., DAWS, The Oxford Handbook on the United Nations. Oxford:
Oxford University Press, 371.
231
United Nations Department of Peacekeeping Operations and Department of Field Support, 2008. United Nations
Peacekeeping Operations. Principles and Guidelines (‘Capstone Doctrine’). New York: United Nations, 18.
232
United Nations Department of Peacekeeping Operations and Department of Field Support, 2008. United Nations
Peacekeeping Operations. Principles and Guidelines (‘Capstone Doctrine’). New York: United Nations, 43 (endnote 20).
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
47
The drafters of the Capstone Doctrine have attempted to draw a distinction between robust
UN peacekeeping and peace enforcement after observing that the boundaries between the two
concepts had become ‘increasingly blurred’: 233
(1) Consent - Robust peacekeeping operations are established with the consent of the host
state and/or the main parties to the conflict, while peace enforcement operations do not
require the consent of the main parties.
(2) Use of force - While robust peacekeeping force may use force at a ‘tactical level’, peace
enforcement may involve the use of force at a ‘strategic or international level’, which would
normally contain a violation of article 2(4) of the UN Charter, except when the Security
Council has been authorised to do so.234
The distinction is deficient in three ways:
(1) It is stated that robust peacekeeping operations are established with the consent of the
state. However, as we will see in Chapter IV, the consent of the host state is not a legal
prerequisite when the UN Security Council establishes militarised UN peacekeeping
operations under Chapter VII of the UN Charter. Furthermore, even if, for the sake of the
argument, the consent of the host state would be accepted as a prerequisite solely for the
establishment of a militarised UN peacekeeping operation and not for a peace enforcement
operation, it must be noted that, in practice, the UN Security Council often attempts to obtain
the consent of the host state for various types of operations.235
(2) The Capstone Doctrine makes a distinction between the use of force at the ‘tactic level’ or
at the ‘strategic or international level’. However, the report does not give any definition as to
what exactly those levels include. Furthermore, the drafters state that the use of force at a
‘strategic or international level’ would normally be a violation of article 2(4) of the UN
Charter, except when the UN Security Council is authorised to do so. Yet, this thesis is
convinced that any kind of force beyond self-defence, whether it constitutes tactic or strategic
force, equally violates article 2(4).236
(3) The drafters have not incorporated the following differences between the concepts of UN
peacekeeping and peace enforcement:
 UN peacekeepers always fall under the command and control of the UN. In contrary,
peace enforcement operations may either fall under the command and control of
233
United Nations Department of Peacekeeping Operations and Department of Field Support, 2008. United Nations
Peacekeeping Operations. Principles and Guidelines (‘Capstone Doctrine’). New York: United Nations, 18.
234
United Nations Department of Peacekeeping Operations and Department of Field Support, 2008. United Nations
Peacekeeping Operations. Principles and Guidelines (‘Capstone Doctrine’). New York: United Nations, 18.
235
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 61.
236
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 59-60.
48
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
member States or regional organizations, or under the command and control of the
UN itself.237
 Peace enforcement has been developed as a new category of peace operations in
general and not as a new kind of UN peacekeeping
It is clear that the concept of peace enforcement is contested and that it has not been
successful in filling up the grey area between UN peacekeeping and enforcement.238
Literature hasn’t brought much clarity either. For example, Fink equates enforcement to peace
enforcement. 239 On the contrary, Oliver calls peace enforcement the ‘other side’ of
peacekeeping and identifies operations such as UNOSOM in Somalia, UNAMIR in Rwanda,
and UNPROFOR in East-Timor peace enforcement operations.240
Therefore, in the course of this thesis we will avoid further use of the concept of peace
enforcement in this thesis although it is true that the concepts of peace enforcement and
militarised UN peacekeeping considerably overlap. However, peace enforcement has been
developed as a new category of peace operations in general and not as a new kind of UN
peacekeeping. This thesis focuses on operations that are categorised as UN peacekeeping
operations, but which are in fact militarised UN peacekeeping operations.
Furthermore, there is no clarity about the precise meaning of the concept as both academics
and practitioners take different approaches. If this thesis would use the concept of peace
enforcement and give it its own meaning, this would only contribute to the confusion
considering the concepts of UN peacekeeping, enforcement, and peace enforcement.
Therefore, this thesis will use the term ‘militarised UN peacekeeping operation’ to designate
an operation authorised by the UN Security Council under Chapter VII of the UN Charter,
which falls under the command and control of the Council, and which lacks respect for at
least one of the three fundamental principles of consent of the host state, impartiality, and
non-use of force beyond self-defence.
237
United Nations Department of Peacekeeping Operations and Department of Field Support, 2008. United Nations
Peacekeeping Operations. Principles and Guidelines (‘Capstone Doctrine’). New York: United Nations, 43 (endnote 20).
238
N., WISNUMURTI, 1996. ‘The United Nations and Peace Enforcement: Prescription for Disorder or Path Towards New World
Order?’. 3(1) Brown J. World Aff. 73.
239
J.E., FINK, 1995. ‘From Peacekeeping to Peace Enforcement: the Blurring of the Mandate for the Use of Force in Maintaining
International Peace and Security’. 19 Md. J. Int’l. L. & Trade 16.
240
G.F., OLIVER, 2002. ‘The Other Side of Peacekeeping: Peace Enforcement and Who Should Do it?’. 8 International
Peacekeeping 99.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
49
4. Conclusion on the Concepts of UN Peacekeeping,
Enforcement, and Peace Enforcement
 The UN peacekeeping operations have never been embedded in a specific legal
framework. In particular, the UN Charter does not include a specific provision for the
establishment of UN peacekeeping operations. Accordingly, the UN Security Council
has always taken an ad hoc approach towards UN peacekeeping, which has resulted
in the pragmatic evolution of a precarious institution often manipulated by the
political will of sovereign states.241
 UN peacekeeping has always been characterised by terminological ambiguity. In the
context of this thesis, UN peacekeeping is “a technique used to “preserve the peace,
however fragmented, where fighting has been halted, and to assist in implementing
peace agreements”. 242
 Although the nature and role of UN peacekeeping is still unclear, this thesis identified
the following characteristics of traditional UN peacekeeping operations: (1) the UN
Security Council generally authorises UN peacekeeping operations243; (2) UN troops
are compromised of troops from different member states and fall under the command
and control of the United Nations; (3) the three fundamental principles of UN
peacekeeping consist of consent of the host state, impartiality, and non-use of force
beyond self-defence; (4) Various tasks.
 The three fundamental principles of UN peacekeeping have been defined in the
aftermath of the first UN peacekeeping operation UNEF I. These ground rules consisting of consent of the host state, non-use of force beyond self-defence, and
impartiality - have always played an important role in UN peacekeeping. However,
the militarisation of the UN peacekeeping operations has precisely manifested itself
in the disrespect of at least one of these principles.
 As UN peacekeeping missions have been placed in more complex situations, the
concepts of the three principles have been expanded, re-interpreted, and questioned.
After all, it was only by redefining the principles that the UN could posit the view
that UN peacekeepers do not resort to the use of force beyond-self-defence, were
impartial, and acted with the consent of the host state.
241
H., NASU, 2009. International Law on Peacekeeping: A Study of Article 40 of the UN Charter. Leyden: Martinus Nijhoff
Publishers, 28.
242
United Nations Department of Peacekeeping Operations and Department of Field Support, 2008. United Nations
Peacekeeping Operations. Principles and Guidelines (‘Capstone Doctrine’). New York: United Nations, 18.
243
P.F., DIEHL, 1993. International Peacekeeping. Baltimore: The Johns Hopkins University Press, 11.
50
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
 The militarisation of UN peacekeeping has blurred the distinction between UN
peacekeeping and enforcement. The concept of enforcement is foreseen in Chapter
VII of the UN Charter. Military enforcement measures are generally very distinct
from UN peacekeeping operations, as they are both guided by their own set of
principles, providing opposing approaches in relation to the consent of the host state,
use of force, and impartiality. However, as UN peacekeeping has become militarised,
the distinction between the two concepts has blurred to such a degree they have many
characteristics in common. UN peacekeeping may no longer be seen as the opposite
of enforcement.
 To overcome the grey area between UN peacekeeping and enforcement, both the UN
entities and academics have attempted to create a new category of ‘peace
enforcement’. The concept of peace enforcement is, however, a questioned and
vexing issue and will not further be used in the course of this thesis.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
51
52
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
III. Research Question 1: How has the
Concept of Traditional UN Peacekeeping
been transformed into Militarised UN
Peacekeeping?
1. Introduction
To answer research question 1, we will examine a selection of UN peacekeeping operations,
starting with the early peacekeeping operations in the 1950s and ending with the current UN
peacekeeping operations in order to determine as to whether these operations have been
militarised. Over the decades, the UN Security Council has authorised dozens of UN
peacekeeping operations, which differ in mandate, personnel levels and the use of force.
Accordingly, many authors have attempted to categorise UN peacekeeping operations based
on the mandate, personnel levels or the authority to use force. There is, however, no
consensus about the different categories of ‘peacekeeping’. Some have divided the different
operations into five phases244 or six generations.245 Others prefer to use terms identifying the
nature of the operations: ‘traditional peacekeeping’, ‘complex peacekeeping’, ‘new
peacekeeping’, ‘multifunctional peacekeeping’, etc.246 A third practice has been used by, for
example, the United Nations in An Agenda for Peace by preserving the term ‘peace-keeping’
for a very specific kind of operation.247 Therefore, the UN made the clear distinction between
peace-making, peace-building and peacekeeping, which all relates to operations to maintain
or restore peace and security, but who all differ in character.248
In response to the growing uncertainty, many authors have attempted to simplify matters,
without any success. In reality this has only caused confusion as categories overlapped and
the same terms used by authors had different meanings. For example, many authors use the
term ‘traditional peacekeeping’ to refer to operations authorised to be a buffer force between
the hostile parties or to oversee a ceasefire. They distinguish these kinds of operations from
244
D.R., SEGAL, 1995. ‘Five Phases of United Nations Peacekeeping: an Evolutionary Typology’. 23 J. Polit. Mil. Sociol. 65.
R., THAKUR, and A., SCHNABEL, 2001. ‘Cascading generations of Peacekeeping: Across the Mogadishu line to Kosovo and
Timor’ in R., THAKUR, and A., SCHNABEL. United Nations peacekeeping operations: ad hoc missions, permanent engagement.
Japan: United Nations University Press, 9-14.
246
BELLAMY, A.J. and WILLIAMS, P.D., 2010. Understanding Peacekeeping. 2nd ed. Cambridge: Polity Press, 173; FINDLAY, T.,
1996. ‘The new peacekeepers and the new peacekeeping’ in FINDLAY, T., Challenges for the New Peacekeepers. SIPRI Research
Report No. 12. Oxford: Oxford University Press, 1. Accessed 22 January 2013: http://books.sipri.org/files/RR/SIPRIRR12.pdf;
F.P., FULCI, 1996. ‘Future of Peackeeeping’. 3(1) Brown J. World Aff. 73; M., LIPSON, 2007. ‘Garbage Can Model of UN
Peacekeeping’. 13 Global Governance 79.
247
United Nations General Assembly and Security Council, 1992. An Agenda for Peace. Preventive Diplomacy, peacemaking
and peace-keeping. Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security
Council on 31 January 1992. UN Doc. A/47/277-S/24111. New York: United Nations.
248
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 20.
245
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
53
‘non-traditional peacekeeping operations’ in which the forces also have the task to establish
the peace. However, the terms ‘traditional peacekeeping’ and ‘non-traditional peacekeeping’
overlap with ‘first- and second-generation peacekeeping’, as well as with ‘peacekeeping’ and
‘peace-building’. Moreover, some authors use the distinction between ‘traditional’ and ‘nontraditional peacekeeping’ to indicate that only the last kind of peacekeeping is authorised to
use force beyond self-defence.249
Throughout the course of this thesis, the term ‘traditional UN peacekeeping’ alludes to
operations with the following characteristics:
An operation authorised by the UN Security Council under Chapter VI or VII of the
UN Charter, which falls under the command and control of the Council, and which is
guided by the three fundamental principles of (1) consent of the host state; (2)
impartiality; and (3) non-use of force beyond self-defence.
On the contrary, when using the term ‘militarised UN peacekeeping operation’, this thesis
alludes to the following operations:
An operation authorised by the UN Security Council under Chapter VII of the UN
Charter, which falls under the command and control of the Council, and which lacks
respect for at least one of the three fundamental principles of UN peacekeeping.
In this Chapter, this thesis will describe the evolution of UN peacekeeping, going from the
early UN peacekeeping operations from the 1950s and the 1960s (see Chapter III, 2) to the
UN peacekeeping operations between the 1970s and the 1990s (see Chapter III, 3), the UN
peacekeeping operations during the 1990s (see Chapter III, 4), and the UN peacekeeping
operations from the twenty-first century (see Chapter III, 5). Hereby, this thesis will not
attempt to give an exhaustive list of UN peacekeeping operations that have been established
between the 1948 and 2013.
In addition, when discussing the various UN peacekeeping operations into detail, emphasis
will be placed on the guiding UN Security Council’s resolutions. As already discussed above
(see Chapter II, 2.4.4.3), the intentions of the UN Security Council concerning the use of
force beyond self-defence differ greatly from the specific wording in the resolutions.
Moreover, this thesis will examine the applicability of the three fundamental principles of UN
peacekeeping, in order to determine whether the given operation has to be categorised as a
militarised UN peacekeeping operation instead of a traditional UN peacekeeping operation.
Furthermore, we will discuss the different reports of the UN agencies concerning UN
peacekeeping, as they illustrate the changing ideology concerning UN peacekeeping, which
is, on its turn, reflected in practice.
249
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 20.
54
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
2. The Early Peacekeeping Operations
2.1. Observer missions
I. Facts and mandate
UN observer missions were the first kind of UN peacekeeping operations. They arose out of
the need of the Security Council to have a UN presence in areas of importance after the
Second World War. In this post war era, the international order changed with multiple new
states and new zones of influence. The international community accepted observation teams
as a consensual alternative to enforcement actions by the UN Security Council. For example,
a small-unarmed observation team was placed in Indonesia when a conflict arose between
Dutch colonialists and Indonesian nationalists. The British Government had withdrawn its
wartime forces and no other permanent member wanted to stand in the way of decolonisation,
which caused an absence of representation of one of the permanent members in the area. The
only possible solution was deploying a neutral and unarmed observation team that would
report to the Security Council on the various stages towards Indonesian independence. Also in
Kashmir, where two newly independent states India and Pakistan fought over the Indian state
of Jammu and Kashmir, the placement of an observation team was an acceptable solution for
the permanent members, especially for the superpowers, as none of them had an interest in
using its veto to protect one of the sides.250 Hence, in 1949, the UN Security Council
established the UN Military Observer Group in India and Pakistan (UNMOGIP) to observe
the ceasefire in Jammu and Kashmir.251
II. Fundamental Principles
Although the fundamental principles of UN peacekeeping were not yet developed, we will
apply them to the early observer missions in order to make a comparison between the earlier
operations and subsequent operations possible:
(1) Non-use of force beyond self-defence - The early UN peacekeeping operations were
impliedly authorised by the UN Security Council under article 24 and 36 of the UN
Charter.252 Their task was to observe and report on the cease-fire.253 Generally they were not
equipped to use force or even to defend themselves, even though they were established as
military observers and thus had the inherent right to defend themselves.254
250
H., MCCOUBREY, and N.D., WHITE, 1996. The Blue Helmets: Legal Regulations of United Nations Military Operations.
Aldershot: Dartmouth Publishing Company Limited, 20-21.
251
United Nations Security Council, 1948. Res. 47. UN Doc. S/726.
252
J.E., FINK, 1995. ‘From Peacekeeping to Peace Enforcement: the Blurring of the Mandate for the Use of Force in Maintaining
International Peace and Security’. 19 Md. J. Int’l. L. & Trade 13.
253
H., MCCOUBREY, and N.D., WHITE, 1996. The Blue Helmets: Legal Regulations of United Nations Military Operations.
Aldershot: Dartmouth Publishing Company Limited, 20-21.
254
H., MCCOUBREY, and N.D., WHITE, 1996. The Blue Helmets: Legal Regulations of United Nations Military Operations.
Aldershot: Dartmouth Publishing Company Limited, 20; United Nations General Assembly, 1958. Summary Study of the
Experience Derived from the Establishment and Operation of the Force: Report of the Secretary-General. Thirteenth Session,
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
55
(2) Impartiality - Usually, these forces were deployed after the fighting had come to an end
and the parties were willing to cooperate to uphold a ceasefire.255 Consequently, they were
generally impartial and were also perceived as such by the host state.
(3) Consent of the host state - The UN Security Council strictly respected the principle of
prior consent of the host state before establishing an operation.
2.2. Egypt and Israel
I. Facts and the mandate
The first UN peacekeeping operation that used armed military personnel was the UN
Emergency Force I (UNEF I), established in 1956 by the first emergency special session of
the General Assembly, with assistance of the UN Secretary-General.256 The mandate was to
secure and supervise the cessation of hostilities, including the withdrawal of the armed forces
of France, Israel, and the United Kingdom from Egyptian territory. In addition, after the
withdrawal of these foreign troops, UNEF I was mandated to serve as a buffer between the
Egyptian and Israeli forces, and to provide impartial supervision of the ceasefire.257
After UNEF I, the UN Secretary-General Dag Hammarskjöld filed a report examining the
mission in the Congo and making recommendations for future operations. He declared that
UNEF I was a temporary measure of which the characteristics were determined by the nature
of its role and whose functions were defined and limited by decisions of the General
Assembly. Hammarskjöld also laid down the fundamental principles of UN peacekeeping
operations, in particular, the principles of consent by the host parties, impartiality and non-use
of force except in self-defence.258
II. The Application of the Fundamental Principles
(1) Non-use of force beyond self-defence - In October 1956, UN Secretary-General Dag
Hammarskjöld clearly emphasised that UNEF I was not established ‘to undertake
enforcement actions’.259 Two years later, he wrote the following in his Summary Study:
Annexes, Agenda Item 65. UN Doc. A/3943, 8-33. New York: United Nations, 179; United Nations Security Council, 1993.
Note by the President of the Security Council. UN Doc. S/25859, 1.
255
H., MCCOUBREY, and N.D., WHITE, 1996. The Blue Helmets: Legal Regulations of United Nations Military Operations.
Aldershot: Dartmouth Publishing Company Limited, 21.
256
United Nations General Assembly, 1956. Res 998 and 999. UN Doc. ES/I.
257
United Nations Department of Peacekeeping Operations, 2003. First United Nations Emergency Force, UNEF I (November
1956 - June 1967). Accessed 30 April 2013: http://www.un.org/en/peacekeeping/missions/past/unefi.htm; United Nations
General Assembly, 1956. Res 998 and 999. UN Doc. ES/I.
258
United Nations General Assembly, 1958. Summary Study of the Experience Derived from the Establishment and Operation of
the Force: Report of the Secretary-General. Thirteenth Session, Annexes, Agenda Item 65. UN Doc. A/3943, 8-33. New York:
United Nations, 2 and 33.
259
United Nations General Assembly, 1956. Second and Final Report of the Secretary-General on the Plan for Emergency
International United Nations Force Requested in Resolution 998 (ES-I), Adopted by the General Assembly on 4 November 1956.
First Emergency Special Session. UN Doc. A/3302. New York: United Nations, 15.
56
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
“[…] the rule is applied that men engaged in the operation may never take the
initiative in the use of armed force, but are entitled to respond with force to an attack
with arms, including attempts to use force to make them withdraw from positions
which they occupy under orders from the Commander. […] The basic element
involved is clearly the prohibition against any initiative in the use of armed force.”260
However, during this first operation, there were already clear tensions between the use of
force in self-defence and in defence of the broader purposes of the mission. Especially, two
different categories of functions emerged. First of all, the UN peacekeepers were deployed to
clear minefields, to arrange exchanges of prisoners and detainees, to repair portions of
damaged roads and tracks crossing, etc.261 These activities can be classified as more local
civic responsibilities and are non-military in nature. Second, the UN peacekeepers were also
deployed to exercise several functions with an enforcement character, as it could require the
use of force. For example, the forces were mandated to serve as an informal buffer between
the Egyptian and Israeli forces. This already alludes to the increasingly militarised character
of UN peacekeeping operations.
(2) Impartiality - The UN peacekeepers were emplaced in an inter-state conflict between
Egypt and Israel. In this context, the UN Secretary-General approached ‘impartiality’ as not
prejudicing the given country’s position on the crisis. On the ground, the UN peacekeepers
interpreted impartiality as being even-handed, or fair, and ‘neutral’ and committed to either
side. This corresponds to the old definition of impartiality in which the principles of
impartiality and neutrality are used interchangeably.262 As the UN peacekeepers did not take
sides, they were able to uphold their impartial role throughout the conflict.
(3) Consent of the host state - When considering the fundamental principle of consent, it
must be noted that this was initiated for the first time in UNEF I.263 After Egypt withdrew its
consent to the basing of UNEF I on its territory, the UN immediately withdrew the present
UN forces.264
III. Analysis of UNEF I
 This thesis does not consider UNEF I to be a militarised UN peacekeeping operation.
The UN peacekeepers generally did not use force beyond self-defence, although their
260
United Nations General Assembly, 1958. Summary Study of the Experience Derived from the Establishment and Operation of
the Force: Report of the Secretary-General. Thirteenth Session, Annexes, Agenda Item 65. UN Doc. A/3943, 8-33. New York:
United Nations, 179.
261
United Nations Department of Peacekeeping Operations, 2003. First United Nations Emergency Force, UNEF I (November
1956 - June 1967). Accessed 30 April 2013: http://www.un.org/en/peacekeeping/missions/past/unefi.htm.
262
D., DONALD, 2003. ‘Neutral Is Not Impartial: The Confusing Legacy of Traditional Peace Operations Thinking’. 29(3) AFS
421.
263
United Nations General Assembly, 1958. Summary Study of the Experience Derived from the Establishment and Operation of
the Force: Report of the Secretary-General. Thirteenth Session, Annexes, Agenda Item 65. UN Doc. A/3943, 8-33. New York:
United Nations.
264
United Nations General Assembly, 1967. Special Report of the Secretary-General to the General Assembly on UNEF. UN
Doc. A/6669. New York: United Nations.; United Nations Security Council, 1967. Report of the Secretary-General. UN Doc.
S/7896. New York: United Nations.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
57
mandate slightly opened the door to allow force beyond self-defence. In addition,
both of the principles of consent and impartiality were fully respected.
 Although UNEF I was one of the first, but also one the last UN peacekeeping
operations that used military personnel without resorting to the use of force beyond
self-defence. Hereafter we will see that more or less every subsequent UN
peacekeeping operation resorted to the use of force beyond self-defence.
2.3. The Republic of the Congo
I. Facts and the mandate
On 13 July 1960, President Kasa-Vubu and Prime Minister Lumumba, on behalf of the
Government of the Republic of Congo, requested the urgent dispatch by the United Nations
of military assistance from the Secretary-General to repel the Belgian actions of aggression.265
As a response, the UN Security Council established the United Nations Operation in the
Congo (ONUC) to assist the government of the Congo maintaining law and order, to ensure
the withdrawal of Belgian forces, and to provide technical assistance.266 The UN forces were
only authorised to use force in self-defence and only as a last resort.267 Yet, in 1961, the UN
Security Council passed resolution 161, urging the United Nations to “take immediately all
appropriate measures to prevent the occurrence of civil war in the Congo, including
arrangements for ceasefire, the halting of all military operations, the prevention of clashes,
and the use of force, if necessary, in the last resort”.268 Although resolution 161 did not
explicitly mention Chapter VII as legal basis, the wording of article 39 of the UN Charter was
used in the sense that the danger of civil war constituted a threat to international peace and
security.269 However, after the government fell apart and attacks on UN personnel occurred,
the UN Security Council authorised the UN forces to “take immediately all appropriate
measures to prevent the occurrence of civil war in the Congo, including […] the use of force,
if necessary, in the last resort”.270 In resolution 169, the UN Security Council went even
further by authorising the Secretary-General “to take vigorous action, including the use of the
requisite measure of force, if necessary, for the immediate apprehension, detention pending
legal action and/or deportation of all foreign military and paramilitary personnel and
political advisers not under the United Nations command, and mercenaries”.271
265
United Nations Department of Peacekeeping Operations, 2001. United Nations Operation In The Congo, ONUC (July 1960 –
June 1964). Accessed 30 April 2013: http://www.un.org/Depts/DPKO/Missions/onucB.htm; United Nations Security Council,
1960. Cable dated 12 July 1960 from the President of the Republic of the Congo and Supreme Commander of the National Army
and the Prime Minister and Minister of National Defence addresed to the Secreatry-General of the United Nations. UN Doc.
S/4382.
266
United Nations Security Council, 1960. Res 143. UN Doc. S/4387.
267
United Nations Department of Public Information, 1996. The Blue Helmets. A Review of United Nations Peace-Keeping. 3rd
ed. New York: United Nations, 18.
268
United Nations Security Council, 1961. Res 161. UN Doc. S/4741, 1.
269
F., SEYERSTED, 1966. United Nations Forces in the Law of Peace and War. Leyden: A.W. Sijthoff, 74.
270
United Nations Security Council, 1961. Res 161. UN Doc. S/4741, 1.
271
United Nations Security Council, 1961. Res 169. UN Doc. S/5002, 4.
58
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
II. The Application of the Fundamental Principles
Already the second UN peacekeeping operation was not able to uphold the three fundamental
principles. Consequently, ONUC may be categorised as a ‘militarised UN peacekeeping
operation’. 272 ONUC began as a UN peacekeeping operation along the lines of UNEF I,
respecting the fundamental principles of UN peacekeeping. However, during the mission, the
UN organs moved away from all three principles as a reaction to the changing
circumstances.273
(1) Non-use of force beyond self-defence - In the beginning of the mission, the UN
Secretary-General Hammarskjöld reiterated the rules relating to the use of force as they were
formulated after UNEF I. However, as the circumstances changed and the conflict became
more volatile, Hammarskjöld redefined the concept of self-defence and stretched it to a
breaking point. The level of force authorised for ONUC forces went well beyond selfdefence.274 In his Summary Study, the UN Secretary-General stated that the forces “may never
take the initiative in the use of armed force, but are entitled to respond with force to an attack
with arms, including attempts to use force to make them withdraw from positions which they
occupy”.275
(2) Impartiality - On the issue of the fundamental principle of impartiality, McNemar
described ONUC as ‘one of the primary actors of the civil war’.276 The UN forces played an
important and partial role in the domestic politics and internal power struggles of the newly
formed territory of the DRC.277
(3) Consent of the host state - Regarding the fundamental principle of consent, it must be
reiterated that the Government initially consented to the emplacement of UN force. However,
after the consent to the emplacement of ONUC was given, the government fell apart. The
President and the Prime Minister stopped all cooperation and a third party led by Colonel
Mobutu emerged. Now it can be questioned whether the United Nations had the responsibility
to ask for a renewal of the host state’s consent. If the host state consent was legally required
on this occasion, the UN did not uphold one of the legal prerequisites.
272
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 27.
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 130.
274
D.W., BOWETT, 1964. United Nations Forces: A Legal Study of United Nations Practice. London: Stevens & Sons, 213;
D.W., MCNEMAR, 1971. ‘The Postindependence War of the Congo’ in FALK, R.A., The International Law of Civil War.
Baltimore: Johns Hopkins University Press, 292; N.D., WHITE, 1990. The United Nations and the Maintenance of International
Peace and Security. Manchester: Manchester University Press, 201.
275
United Nations General Assembly, 1958. Summary Study of the Experience Derived from the Establishment and Operation of
the Force: Report of the Secretary-General. Thirteenth Session, Annexes, Agenda Item 65. UN Doc. A/3943, 8-33. New York:
United Nations, 179.
276
D.W., MCNEMAR, 1971. ‘The Postindependence War of the Congo’ in R.A., FALK, The International Law of Civil War.
Baltimore: Johns Hopkins University Press, 292.
277
M., BERDAL, 2008. ’The Security Council and Peacekeeping’ in V., LOWE, The United Nations Security Council and war: the
evolution of thought and practice since 1945. New York: Oxford University Press, 793.
273
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
59
III. Analysis of ONUC
 The controversies about ONUC split the UN Security Council and almost bankrupted
the entire United Nations.278 ONUC was the first and last attempt of the UN to
oversee an intra-state conflict during the Cold War.279 Durch noted that the United
Nations was “more interested in forgetting than in learning, more interested in
avoiding future ONUCs than in doing them better”.280
 In ONUC we recognise the first militarised UN peacekeeping operation, based on the
level of force used beyond self-defence, the lack of impartiality, and the lack of
continuous consent by the host state. 281 However, with ONUC, the UN clearly
attempted to pretend that they did, in fact, respect the principles throughout the
mission in attempt to avoid any further controversy.282
3. UN Peacekeeping Operations during the 1970s and the
1980s
I. The Evolution of the Concept of Self-Defence
Between the 1970s and the 1990s, UN peacekeeping was limited to small observations or
goodwill missions and was only invoked after fighting had stopped. However, it is
noteworthy to outline the development of the fundamental principle of non-use of force
beyond self-defence within the UN peacekeeping operations during this time period. With the
establishment of new UN peacekeeping operations, the UN adopted a new approach to the
definition of self-defence: use of force went beyond the right to defend the individual
person.283 Now, the UN forces were also authorised to defend the mandate.
For example, in 1964, the UN Security Council established the United Nations Force in
Cyprus (UNFICYP).284 In his report on the development of this force, UN Secretary-General
U Thant indicated:
“The expression self-defence includes the defence of the United Nations posts,
premises and vehicles under armed attack, as well as support of other personnel of
278
S., CHESTERMAN, 2004. The Use of Force in UN Peace Operations. External Study. New York: New York University School
of Law, 8.
279
It could be argued that the UN peacekeeping operations in Lebanon (UNIFIL) and Cyprus (UNFICYP) were also operating in
an intra-state conflict. However, it is more realistically to say that those were conflicts that were ranging between inter- and intrastate conflicts. See: H., MCCOUBREY, and N.D., WHITE, 1996. The Blue Helmets: Legal Regulations of United Nations Military
Operations. Aldershot: Dartmouth Publishing Company Limited, 27.
280
W.J., DURCH, 1993. The evolution of UN Peacekeeping: case studies and comparative analysis. New York: St. Martin’s press,
315.
281
K., MANSSON, 2005. ‘Use of Force and Civilian Protection: Peace operations in the Congo’. 12(4) International Peacekeeping
504.
282
T., FINDLAY, 2002. The Use of Force in UN Peace Operations. SIPRI. Oxford: Oxford University Press, 86.
283
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 27.
284
United Nations Security Council, 1964. Res 186. UN Doc. S/5575.
60
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
UNFICYP under armed attack. When acting in self-defence the principle of minimum
force shall always be applied and armed force will only be used when all means of
persuasion have failed. The decision as to when force is to be used rests with the
Commander on the spot. Examples in which troops may authorized the use of force
include attempts by force to compel them to withdraw from a position which they
occupy under orders from their commanders, attempts by force to disarm them, and
attempts by force to prevent them from carrying out their responsibilities as ordered
by their commanders.”285
In October 1973, the UN Security Council established the second UN Emergency Force in the
Middle East (UNEF II), which raised questions about the authorisation to use force beyond
self-defence. Although the UN forces were not invoked to undertake tasks requiring the use
of extensive force, the UN Secretary-General Waldheim did issue new guidelines for the use
of force, which formed the basis for all subsequent UN peacekeeping operations.286 In his
report on the implementation of the Security Council’s resolution 340 (1973) on the operation
of UNEF II, the UN Secretary-General stated that “self-defence would include resistance to
attempts by forceful means to prevent [UNEF II] from discharging its duties under the
mandate of the Security Council”.287 The UN Security Council confirmed this approach of
self-defence in its resolution 341 of 27 October 1973.288 It is unclear why the UN SecretaryGeneral formulated such a broad definition. It is said that no more force had been used than
the firing of a couple of warning shots.289 Yet, as White declares, “allowing a force to take
positive action in defence of its purposes is no different from allowing them to enforce it”.290
Also in a report on the establishment of the United Nations Interim Force in Lebanon
(UNIFIL), UN Secretary-General Waldheim used similar language confirming his approach
to self-defence.291 In resolution 425 and 425, the UN Security Council implicitly confirmed
the approach of the UN Secretary-General Waldheim by adopting his report.292
In 1980, the UN Security Council went one step further in its resolution 476 on UNIFIL by
specifically including defence-of-mandate as part of its definition of self-defence. 293
Accordingly, the UN forces were authorised to use any kind of force to defend the mandate which is often ambiguous and general in nature - including, as argued by Sloan, forceful
disarmament or military engagement with any faction whose conduct was judged likely to
285
United Nations Security Council, 1964. Report by Secretary-General U Thant on the Deployment of UN Forces in Cyprus.
UN Doc. S/5960. New York: United Nations., 7(c).
286
S., CHESTERMAN, 2004. The Use of Force in UN Peace Operations. External Study. New York: New York University School
of Law, 9.
287
United Nations Security Council, 1973. Report of the Secretary-General on the Implementation of Security-Council resolution
340 (1973). UN Doc. S/11052/Rev. 1. New York: United Nations, 4(d).
288
United Nations Security Council, 1973. Res 341. UN Doc. S/RES/341.
289
S., CHESTERMAN, 2004. The Use of Force in UN Peace Operations. External Study. New York: New York University School
of Law, 9.
290
N.D., WHITE , 1990. The United Nations and the Maintenance of International Peace and Security. Manchester: Manchester
University Press, 201.
291
United Nations Security Council, 1978. Report of the Secretary-General on the implementation of Security Council resolution
425 (1978). UN Doc. S/12611. New York: United Nations, 4(d).
292
United Nations Security Council, 1978. Res 425. UN Doc. S/RES/425; United Nations Security Council, 1978. Res 426. UN
Doc. S/RES/426.
293
United Nations Security Council, 1980. Res 467. UN Doc. S/RES/467, preamble (d).
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
61
reignite the conflict. However, in practice this broad definition of self-defence did not result
in a general pattern of using forceful means to defend the mandate or a general pattern of
increased troops.294 The UN Secretary-Generals were reluctant to use forceful means to
protect the mandate as this could cause a withdrawal of troops by the contributing nations.
II. Conclusion
 The right of self-defence was understood as the right to use any forceful means to
resist any attempt by a hostile party to prevent the force from fulfilling its duties
under its mandate.295
4. UN Peacekeeping Operations during the 1990s
4.1. Introduction
The end of the Cold War radically changed the nature of UN peacekeeping operations, as
barriers that had existed during the Cold War were gone.296 The use of the veto by the five
permanent members declined and the activity of the Security Council increased immensely,
especially in the form of establishing UN peacekeeping operations. Most of the operations
were deployed in intra-state conflict, a new kind of conflict in which civilians were the main
victims, contrary to the operations during the Cold War. The conflicting parties mostly
consisted of irregular forces instead of state armies. Moreover, humanitarian emergencies and
collapsing state institutions occurred as a result of the civil war.297 The UN willingly took on
a new and more aggressive role as ‘peace enforcer’, which made it difficult to uphold the
three fundamental principles. 298 The second phase of the militarisation of the UN
peacekeeping operations was initiated.
4.2. An Agenda for Peace
The willingness to authorise peacekeeping operations with an enforcement character was
illustrated in the report An Agenda for Peace of UN Secretary-General Boutros-Ghali.299 This
294
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 29.
C., GRAY, 2008. International Law and the Use of Force. 3rd ed. Oxford: Oxford University Press, 302; United Nations
Department of Public Information, 1996. The Blue Helmets. A Review of United Nations Peace-Keeping. 3rd ed. New York:
United Nations, 60, 84.
296
H., MCCOUBREY, and N.D., WHITE, 1996. The Blue Helmets: Legal Regulations of United Nations Military Operations.
Aldershot: Dartmouth Publishing Company Limited, 28.
297
C., GRAY, 2008. International Law and the Use of Force. 3rd ed. Oxford: Oxford University Press, 264 and 272.
298
J.E., FINK, 1995. ‘From Peacekeeping to Peace Enforcement: the Blurring of the Mandate for the Use of Force in Maintaining
International Peace and Security’. 19 Md. J. Int’l. L. & Trade 2.
299
United Nations General Assembly and Security Council, 1992. An Agenda for Peace. Preventive Diplomacy, peacemaking
and peace-keeping. Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security
Council on 31 January 1992. UN Doc. A/47/277-S/24111. New York: United Nations.
295
62
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
report was clearly drafted at a time of growing optimism about the role of the United Nations
in maintaining and restoring international peace and security.300
An Agenda for Peace altered the role of the three fundamental principles of UN peacekeeping
in two important ways:301
(1) The Secretary-General gave the impression that it did not consider the consent of the host
state as a fundamental prerequisite for establishing a UN peacekeeping operation. 302
(2) The UN Secretary-General observed that: “as diplomacy will continue across the span of
all activities dealt with in the present report, so there may not be a dividing line between
peace-making and peacekeeping”. He continued that “peace-making is often a prelude to
peacekeeping - just as the deployment of a United Nations presence in the field may expand
possibilities for prevention of conflict, facilitate the work of peace-making and in many cases
serve as a prerequisite for peace-building”.303 Consequently, it can be argued that BoutrosGhali considered the principles of non-use of force beyond self-defence and impartiality as
out-dated and thus not applicable on future UN peacekeeping operations.
The new policy of establishing humanitarian interventions resulted in UN peacekeeping
forces that increasingly resorted to forceful means - and thus the use of force beyond selfdefence - to protect the humanitarian missions. Moreover, this policy has led to UN
operations with broader mandates, which were less impartial and more assertive.304
In the early 1990s, the UN Security Council relied upon its new concept of peacekeeping
when it established two new UN peacekeeping operations in the former Yugoslavia and
Somalia. Although each operation began as a non-forceful operation, they turned into
militarised UN peacekeeping operations as the situation became more volatile. The three
fundamental principles of UN peacekeeping were seriously violated throughout the mission
and resulted in a damaged reputation of the United Nations as whole.305
Furthermore, since the beginning of the early 1990s, the UN Security Council started to
authorise a state or a coalition of states to use force either to restore international peace and
security in advance of the establishment of a UN peacekeeping operation or to rescue a UN
peacekeeping operation that became encompassed in a situation in which the security had
300
S., RYAN, 2000. ‘United Nations Peacekeeping: A matter of principles?’. 7(1) International Peacekeeping 30.
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 34.
302
United Nations General Assembly and Security Council, 1992. An Agenda for Peace. Preventive Diplomacy, peacemaking
and peace-keeping. Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security
Council on 31 January 1992. UN Doc. A/47/277-S/24111. New York: United Nations, 20.
303
United Nations General Assembly and Security Council, 1992. An Agenda for Peace. Preventive Diplomacy, peacemaking
and peace-keeping. Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security
Council on 31 January 1992. UN Doc. A/47/277-S/24111. New York: United Nations, 45.
304
J.E., FINK, 1995. ‘From Peacekeeping to Peace Enforcement: the Blurring of the Mandate for the Use of Force in Maintaining
International Peace and Security’. 19 Md. J. Int’l. L. & Trade 2.
305
United Nations Department of Peace-keeping Operations, 1995. General Guidelines for Peace-keeping Operations.
UN/210/TC/GG95. New York: United Nations, 29.
301
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
63
broken down.306 The case of Rwanda are examples of occasions in which the UN Security
Council preferred to replace the unsuccessful UN peacekeeping operation with a UNauthorised but state-commanded military operation, instead of re-mandating the existing UN
peacekeeping operations into a UN enforcement action, as happened in the Congo. This could
be explained as an attempt of the UN to keep peacekeeping and enforcement completely
separate or as a demand by the states that do not want to use enforcement action under the
command and control of the UN. Another example is the replacement of the United Nations
Protection Force (UNPROFOR) with the UN-authorised, but NATO-led operation.307 Often, a
close cooperation was established between UN-led peacekeeping operations and non-UN led
quasi-enforcement operations, which often caused the loss of the principle of impartiality.
4.3. The Former Yugoslavia
I. Facts and mandate
In 1991, serious fighting began in the former Yugoslavia as Slovenia and Croatia declared
themselves independent from the Socialist Federal republic of Yugoslavia. 308 The UN
Security Council first attempted to settle the disputes in a diplomatic manner by expressing
deep concern over the fighting in Yugoslavia and invited the Secretary-General to offer his
assistance in consulting with the Government of Yugoslavia and all those promoting the
peace efforts.309 In 1992, the UN Security Council established UNPROFOR “to create the
conditions of peace and security required for the negotiations of an overall settlement of the
Yugoslav crisis”.310 The UN forces were deployed to ensure the demilitarisation of specific
areas and to protect civilians from fear of an armed attack. Thus, it acted as a traditional UN
peacekeeping operation. With resolution 770, the UN Security Council authorised a NATOled quasi-enforcement operation to intervene militarily simultaneously with UNPROFOR in
Bosnia and Herzegovina. The mission was authorised to use “all measures necessary to
facilitate […] the delivery […] of humanitarian assistance”.311
The UN Security Council passed the first sixteen resolutions on UNPROFOR without any
reference to Chapter VII. Yet, in resolution 776, the Council clearly authorised the UN
peacekeeping forces to use force beyond self-defence in order to assure the safe delivery of
humanitarian aid.312 This meant the start of the militarisation of UNPROFOR.313
306
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 51-52.
H., MCCOUBREY, and N.D., WHITE, 1996. The Blue Helmets: Legal Regulations of United Nations Military Operations.
Aldershot: Dartmouth Publishing Company Limited, 32.
308
United Nations Department of Peacekeeping Operations, [date unknown]. United Nations Protection Force, UNPROFOR.
Accessed 30 April 2013: http://www.un.org/en/peacekeeping/missions/past/unprof_b.htm.
309
United Nations Security Council, 1991. Res 713. UN Doc. S/RES/713, preamble and 3; United Nations Department of Public
Information, 1996. United Nations Peace-keeping. Former Yugoslavia - UNPROFOR. New York: United Nations. Accessed on
13 January: http://www.un.org/en/peacekeeping/missions/past/unprof_p.htm.
310
United Nations Security Council, 1992. Res 743. UN Doc. S/RES/743, 2 and 5.
311
United Nations Security Council, 1992. Res 770. UN Doc. S/RES/770, 1.
312
United Nations Security Council, 1992. Res 776. UN Doc. S/RES/776.
313
C., GRAY, 2008. International Law and the Use of Force. 3rd ed. Oxford: Oxford University Press, 282-283.
307
64
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
In June 1993, the UN Security Council passed resolution 836 after determining that the
situation in Bosnia and Herzegovina continued to pose ‘a threat to international peace and
security’.314 The Council invoked Chapter VII of the UN Charter for the first time and
extended the mandate of UNPROFOR to that end “in order to enable it, in the safe areas
[…], to deter attacks against the safe areas, to monitor the cease-fire, to promote the
withdrawal of military or paramilitary units other than those of the Government of the
Republic of Bosnia and Herzegovina and to occupy some key points on the ground, in
addition to participating in the delivery of humanitarian relief to the population […]”.315 At
this point, the nature of UNPORFOR had become more militarised that any previous UN
peacekeeping operation established after ONUC. From then on, UNPROFOR was also
authorised to use force in protection of the safe havens and later on acting in self-defence to
take the necessary measures including the use of force.
In June 1995, the UN Security Council established the Rapid Reaction Force (RRF) in a
response to the obstructed performance of UNPROFOR.316 The RRF was employed to take
enforcement actions under Chapter VII.317 In July 1995, the situation in former Yugoslavia
had deteriorated and attacks had occurred on the safe areas that were created by the UN forces
to protect the civilians from the deadly violence. More than 7,000 Bosnians, mainly Muslim
men and boys, were killed in the valley of Srebrenica, which is now recognised as one of the
worst genocides that ever occurred in Europe. In March 1995, the UN Security Council
established the United Nations Preventive Deployment Force (UNPREDEP), which was the
first preventive UN peacekeeping operation, to replace UNPROFOR in the former Yugoslav
Republic of Macedonia. 318 It was their task to monitor and report any development in the
border areas that could undermine the safety and stability in the former Yugoslav Republic of
Macedonia and threaten its territory.
In 1999, China used its veto to avoid a renewal of UNPREDEP.319 In 1995, the United
Nations Confidence Restoration Operation (UNCRO) replaced UNPROFOR by resolution
981 under Chapter VII after Croatia demanded the withdrawal of UNPROFOR.320 In the
aftermath of the Peace Agreements in 1995, the UN Security Council replaced UNPROFOR
with the United Nations Mission in Bosnia and Herzegovina (UNMIBH) in Bosnia, and
UNCRO with the United Nations Transitional Authority for Eastern Slavonia, Baranja and
Western Sirmium (UNTAES) and United Nations Mission of Observers in Prevlaka
(UNMOP) in Croatia.321
314
United Nations Security Council, 1993. Res 836. UN Doc. S/RES/836, preamble.
United Nations Security Council, 1993. Res 836. UN Doc. S/RES/836, 5.
316
United Nations Security Council, 1995. Res 998. UN Doc. S/RES/998.
317
United Nations Department of Peacekeeping Operations, [date unknown]. United Nations Protection Force, UNPROFOR.
Accessed 30 April 2013: http://www.un.org/en/peacekeeping/missions/past/unprof_b.htm.
318
C., GRAY, 2008. International Law and the Use of Force. 3rd ed. Oxford: Oxford University Press, 284; United Nations
Security Council, 1995. Res 983. UN Doc. S/RES/983.
319
C., GRAY, 2008. International Law and the Use of Force. 3rd ed. Oxford: Oxford University Press, 284.
320
United Nations Security Council, 1995. Res 981. UN Doc. S/RES/981, 2-3.
321
United Nations Department of Peacekeeping Operations, [date unknown]. United Nations Protection Force, UNPROFOR.
Accessed 30 April 2013: http://www.un.org/en/peacekeeping/missions/past/unprof_b.htm.
315
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
65
II. The Application of the Fundamental Principles
(1) Non-use of force beyond self-defence - When considering the principle of non-use of
force beyond self-defence, it is clear that the mission was authorised to use force beyond selfdefence from the beginning of June 1993. Evidence for this can be found in the invocation of
Chapter VII in 1993 and the use of the wording ‘to take the necessary measures’. 322
(2) Impartiality - With regard to the principle of impartiality, it must be noted that this
principle has become an indirect causality of the movement away from the principle of no-use
of force beyond self-defence.323 The operation in former Yugoslavia was not conceived as
being impartial due to the fact that it had closely cooperated with the NATO-led quasienforcement operation. In addition, with the establishment of RRF, some of the permanent
members expressed their concern that UNPROFOR would become a party to the conflict or
would be perceived as such.324
(3) Consent of the host state - With an analysis of the fundamental principle of consent, the
following must be noted: although UNPROFOR was initially emplaced with the consent of
the host state,325 the UN Security Council did not make any reference to host state consent in
the subsequent resolutions to re-mandate UNPROFOR.326 In addition, the government of
Croatia withdrew its consent with the stationing of the UN forces of UNPROFOR. In
response, the UN did withdraw those UN forces, but replaced the mission by UNCRO.
III. Analysis of UNPROFOR
 This thesis is convinced that UNPROFOR can only be considered as a militarised UN
peacekeeping operation falling under Chapter VII as force was used beyond selfdefence, host state consent has not been obtained, and the principle of impartiality has
not been respected.
 Although the fighting in Bosnia ended in late 1995, the UN only played a sideline
role in this process. It was the forceful intervention of a NATO-led mission and the
diplomatic intervention of the USA and France that led to a peace process.
 UNPROFOR was clearly entrusted with a mandate that was not only unrealistic, but
also impossible to implement, given the fact that the UN did not provide the mission
322
United Nations Security Council, 1993. Res 836. UN Doc. S/RES/836.
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 156.
324
C., GRAY, 2008. International Law and the Use of Force. 3rd ed. Oxford: Oxford University Press, 263.
325
United Nations Security Council, 1991. Letter dated 26 November 1991 from the Permanent Representative of Yugoslavia to
the United Nations addressed to the President of the Security Council. UN Doc. S/23240.
326
C., GRAY, 1996. ‘Case Study: Host-State Consent and United Nations Peacekeeping in Yugoslavia’. 7 Duke J. Comp. & Int'l.
L. 243-245; See also M., WELLER, 1992. ‘'Legal The International Response to the Discussion of the Socialist Federal Republic
of Yugoslavia’. 86 AJIL 569.
323
66
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
with the necessary resources to successfully carry out the mandate.327 For example,
despite the authorisation of the UN Security Council to ‘take the necessary
measures’, the UN peacekeeping forces were unable to protect the so-called ‘safeareas’, which inter alia, ultimately has led to the Srebrenica massacre.
 The UN Security Council should have waited before emplacing a UN peacekeeping
operation until a ceasefire had been achieved instead of emplacing its troops in the
midst of the fighting. Accordingly, the UN Security Council should have entrusted
the NATO-led mission with the peace-making process. Once the fighting had halted,
the Council could have emplaced its troops to keep the peace.
4.4. Somalia
I. Facts and mandate
In 1991, a civil war broke out in Somalia after the demise of President Siad Barre. In
response, in April 1992, the UN Security Council established UNOSOM I with the intention
of facilitating the delivery of humanitarian aid.328 However, continued fighting and insecurity
constantly hampered the efforts of the UN forces.329 In December 1992, the UN authorised
the establishment of a US-led quasi-enforcement operation, Unified Task Force (UNITAF), to
restore a sense of calmness and facilitate the distribution of food.330 In early 1993, the
different parties of the conflict agreed upon a ceasefire and pledged to hand over all weapons
to UNITAF and UNISOM I.331
In March 1993, acting under Chapter VII after finding a threat to the international peace and
security, the UN Security Council decided on the transition of UNOSOM I into UNOSOM II
and implicitly authorised the mission to use force beyond self-defence by approving the
Further Report of the Secretary-General.332 In this report, the UN Secretary-General stated
that the forces should undertake the appropriate military action to ward off any violation or
threat of a ceasefire. In addition, the UN forces were authorised to take the necessary forceful
327
Y., AKASHI, 1995. ‘The Use of Force in a United Nations Peace-Keeping Operation: Lessons Learnt from the Safe Areas
Mandate’. 19(2) Fordham I.L.J. 315; C., GRAY, 2008. International Law and the Use of Force. 3rd ed. Oxford: Oxford University
Press, 286.
328
United Nations Department of Peacekeeping Operations, 2003. United Nations Operation In Somalia I, UNOSOM I (April
1992 - March 1993). Accessed 30 April 2013: http://www.un.org/en/peacekeeping/missions/past/unsom1backgr1.html; United
Nations Security Council, 1992. Res 751. UN Doc. S/RES/751.
329
United Nations Department of Peacekeeping Operations, 2003. United Nations Operation In Somalia I, UNOSOM I (April
1992 - March 1993). Accessed 30 April 2013: http://www.un.org/en/peacekeeping/missions/past/unsom1backgr1.html.
330
United Nations Department of Peacekeeping Operations, 2003. United Nations Operation In Somalia I, UNOSOM I (April
1992 - March 1993). Accessed 30 April 2013: http://www.un.org/en/peacekeeping/missions/past/unsom1backgr1.html; United
Nations Security Council, 1992. Res 794. UN Doc. S/RES/794, 7-10.
331
United Nations Department of Peacekeeping Operations, 2003. United Nations Operation In Somalia I, UNOSOM I (April
1992 - March 1993). Accessed 30 April 2013: http://www.un.org/en/peacekeeping/missions/past/unsom1backgr1.html.
332
United Nations Security Council, 1993. Res 814. UN Doc. S/RES/814, 1; United Nations Security Council, 1993. Further
Report of the Secretary-General submitted in Pursuance of Paragraphs 18 and 19 of Resolution 794. UN Doc. S/25354. New
York: United Nations.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
67
action to protect the facilities and personnel.333 Neither the report of UN Secretary-General,
nor the UN Security Council’s resolution, which approved the terms of the report, mentioned
any obligation for the UN forces to limit the use of force for self-defence. 334 As for
UNOSOM II, the UN Secretary-General warned the UN Security Council of the inability of
the UN Secretariat to undertake operations with an enforcement character as the UN
Secretariat was already overstretched in managing the existing UN peacekeeping
operations.335 Moreover, a Lessons Learned report on the UN operations in Somalia pointed
out that, in the aftermath of Somalia, the UN was not capable of establishing new
enforcement operations under the command and control of the UN. Contrarily, they
recommended that the UN would authorise a single state or a coalition of states under Chapter
VII of the UN Charter to launch such an enforcement operation.336
However, the UN Security Council disregarded any advice and further authorised UNOSOM
II to undertake tasks that required the partial use of force beyond self-defence. It did not come
as a surprise that the operation suffered serious losses of personnel from the moment it was
emplaced within the territory.337 The mission, which is a clear example of a militarised UN
peacekeeping operation, can definitely not be classified as a success.
II. The Application of the Fundamental Principles
(1) Non-use of force beyond self-defence - It is beyond a doubt that the UN Security Council
authorised the UN forces to use force beyond self-defence. The Council invoked Chapter VII
after finding the situation in Somalia a threat to the international peace and security.
Furthermore, the Council authorised the UN forces to take “such forceful action as may be
required to neutralize armed elements that attack or threaten to attack”, 338 and later, to take
“all necessary measures against all those responsible for the armed attacks” on the
personnel of UNOSOM II.339
(2) Impartiality - The UN peacekeepers were not able to uphold their impartial role
throughout the conflict.
(3) Consent of the host state - With regard to the principle of impartiality, it must be noted
that UNOSOM II was established when no effective or judicial government was in place.340
333
United Nations Security Council, 1993. Further Report of the Secretary-General submitted in Pursuance of Paragraphs 18
and 19 of Resolution 794. UN Doc. S/25354. New York: United Nations, 57 (b) and (f).
334
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 147.
335
United Nations Security Council, 1992. Letter dated 29 November 1992 from the Secretary-General addressed to the
President of the Security-Council. UN Doc. S/24868. New York: United Nations.
336
United Nations Department of Peacekeeping Operations, Peacekeeping Best Practices Unit, 1995. The Comprehensive
Report on Lessons Learned from United Nations Operation in Somalia (UNOSOM): April 1992 - March 1995. New York:
United Nations, 85.
337
M., BERDAL, 2000. ‘Lessons not learned: The use of force in ‘peace operations’ in the 1990s’. 7(4) International
Peacekeeping 63; SAHNOUN, M., 1994. Somalia : the missed opportunities. Washington, D.C.: United States Institute of Peace,
55.
338
United Nations Security Council, 1993. Further Report of the Secretary-General submitted in Pursuance of Paragraphs 18
and 19 of Resolution 794. UN Doc. S/25354. New York: United Nations, 57 (b) and (f).
339
United Nations Security Council, 1993. Res 837. UN Doc. S/RES/837, 5.
340
United Nations Security Council, 1994. Res 918. UN Doc. S/RES/918.
68
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
Accordingly, no government could have given its consent to the establishment of the mission
within its territory. However, given that the UN Security Council did not even mention the
inability to obtain the consent of the host state could have indicated that the Council did not
consider this as a legal prerequisite.
III. Analysis of UNOSOM I and II.
 It is undisputable that UNOSOM II is an example of a militarised UN peacekeeping
operation. Although the operation started as a traditional peacekeeping operation respecting the three fundamental principles of peacekeeping - the operation violated
one principle after another as soon as the situation deteriorated.
 Both UNOSOM I and II can only be characterised as a failure. This thesis is,
however, not convinced that the UN peacekeepers had a chance to make the operation
a success. They were emplaced in the middle of civil war where violence was not
only directed against civilians, but also against the UN peacekeepers themselves. The
UN Security Council should have established an enforcement operation with
appropriate equipment, mandate, and management.
4.5. Rwanda
I. Facts and mandate
In October 1990, serious fighting broke out across the border between Rwanda and Uganda
between the Armed Forces of the mainly Hutu Government of Rwanda and the Tutsi-led
Rwandese Patriotic Front. 341 After the experiences in Yugoslavia and Somalia, the UN
member states were very reluctant to play a major role in Rwanda.342
In June 1993, the UN Security Council established the United Nations Observer Mission
Uganda–Rwanda (UNOMUR) in the territory of Uganda to ensure that no military assistance
would reach the fighting parties in Rwanda.343 In October 1993, the UN Security Council
established another UN peacekeeping operation, United Nations Assistance Mission for
Rwanda (UNAMIR), by its resolution 872, to monitor observance of the Arusha Peace
Agreement, as well as the security situation and to contribute to the security of the city of
Kigali.344
In April 1994, the Presidents of Rwanda and Burundi were killed while returning from peace
talks in Tanzania. This meant the beginning of a horrifying wave of political and ethnic
341
United Nations Department of Peacekeeping Operations, 2001. United Nations Assistance Mission For Rwanda, UNAMIR
(October 1993 – March 1996). Accessed 30 April 2013: http://www.un.org/en/peacekeeping/missions/past/unamirS.htm.
342
C., GRAY, 2008. International Law and the Use of Force. 3rd ed. Oxford: Oxford University Press, 292.
343
United Nations Security Council, 1993. Res 846. UN Doc. S/RES/846, 2.
344
United Nations Security Council, 1993. Res 872. UN Doc. S/RES/872, 2 -3.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
69
killings, with the Prime Minister, cabinet ministers and UNAMIR peacekeepers being among
the first victims. 345 With resolution 912, the UN Security Council reduced the size of
UNAMIR I from 2,5480 to 270.346
However, the public was appalled and blamed the UN Security Council for facilitating the ongoing genocide. In response, the UN Security Council imposed an arms embargo against
Rwanda and called for urgent international action and increased UNAMIR’s strength up to
5,500 troops.347 It must be noted that the Council, from this moment on, referred to the
operation as UNAMIR II.
In June 1994, the UN Security Council decided to authorise a French-led multi-national
operation to carry out ‘Operation Turquoise’ in order to increase the security of Rwandese
civilians.348 In March 1996, UNAMIR was no longer prolonged, leaving a country behind that
was marked by a terrible genocide, which it did not prevent.349
II. The Application of the Fundamental Principles
(1) Non-use of force beyond self-defence - When considering the principle of the non-use of
force beyond self-defence, it is difficult to argue that, based on an analysis of the different
resolutions and their wording, the UN Security Council had the intention to authorise the use
of force beyond self-defence.
(2) Impartiality - During the operations of UNAMIR II, the UN forces clearly did not uphold
their impartial role. However, this loss of impartiality did not appear to have been an issue as
both of the forces were siding against illegal conduct. 350
(3) Consent of the host state - Regarding the principle of consent, it is argued that the UN
Security Council obtained the consent of the government of Rwanda for the emplacement and
functioning of the UN peacekeeping operations within the territory because the government
did not oppose this decision in its capacity of member of the UN Security Council. At the
time the UN Security Council was deciding on UNAMIR II, the Government of Rwanda was
a member of the UN Security Council. Ultimately, the UN Security Council’s resolution on
UNAMIR II did not make any reference to the consent of the parties.351
III. Analysis of UNAMIR I and II
345
United Nations Department of Peacekeeping Operations, 2001. United Nations Assistance Mission For Rwanda, UNAMIR
(October 1993 – March 1996). Accessed 30 April 2013: http://www.un.org/en/peacekeeping/missions/past/unamirS.htm.
346
United Nations Security Council, 1994. Res 912. UN Doc. S/RES/912, 8.
347
United Nations Security Council, 1994. Res 918. UN Doc. S/RES/918, 5, 9, 13.
348
United Nations Security Council, 1994. Res 929. UN Doc. S/RES/929, 1-2.
349
United Nations Department of Peacekeeping Operations, 2001. United Nations Assistance Mission For Rwanda, UNAMIR
(October 1993 – March 1996). Accessed 30 April 2013: http://www.un.org/en/peacekeeping/missions/past/unamirS.htm.
350
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 157.
351
United Nations Security Council, 1994. Res 918. UN Doc. S/RES/918.
70
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
 UNAMIR I and II were militarised UN peacekeeping operations, as the missions
were not entirely guided by the three fundamental principles of UN peacekeeping.
 Nonetheless, this thesis is convinced that not enough force was used to protect the
civilians who incorrectly assumed that they were in a safe zone, protected by the UN
forces. In the case of Rwanda, the establishment of a UN peacekeeping operation was
not the appropriate answer in regards to the appalling violence against civilians.352
The UN peacekeepers were placed in the midst of genocide without the appropriate
mandate and equipment. The UN Security Council has the responsibility to authorise
an enforcement operation with the appropriate mandate, strong management, and
adjusted equipment. Only when there was a peace to keep, UN peacekeepers should
have been emplaced within the territory.
4.6. Supplement to an Agenda for Peace
After the failure of the UN peacekeeping operations in Somalia, former Yugoslavia, and
Rwanda, it became clear that the UN was not capable of successfully carrying out militarised
UN peacekeeping operations. In response, the UN Security Council began to establish UN
peacekeeping operations with a less forceful mandate. This move away from militarised
peacekeeping was clearly indicated in the UN Secretary-General’s reports Supplement to an
Agenda for Peace and General Guidelines for Peacekeeping Operations. In both reports, the
UN Secretary-General restated that the fundamental principles of UN peacekeeping were not
optional, but had to be respected by every future UN peacekeeping operation.353 Furthermore,
he argued that there were three aspects of recent mandates that had led to the violation of the
fundamental principles and consequently the failure of those operations: (1) the tasks of
protecting humanitarian operations during continuing warfare, (2) protecting civilian
populations in designated safe areas and (3) pressing the parties to achieve national
reconciliation at a pace faster than they were willing to accept.354 The President of the
Security Council also came to the same conclusions as the UN Secretary-General. He
reiterated the principles of consent of the host state, impartiality and the non-use of force
except in self-defence. In addition, he stated that UN peacekeeping operations had to be
conducted with “a clear mandate, a fixed time frame, an effective command structure, and
secure financing”.355
352
J.M., SANDERSON, 1998. ‘The Dabling in War: The Dilemma of the Use of Force in United Nations Intervention’ in O.A.,
OTUNNU and M.W., DOYLE, Peacemaking and Peacekeeping for the New Century. Oxford: Rowman & Littlefield Publishers,
Inc., 155.
353
United Nations Department of Peace-keeping Operations, 1995. General Guidelines for Peace-keeping Operations.
UN/210/TC/GG95. New York: United Nations, 25-38; United Nations General Assembly and Security Council, 1995.
Supplement to an Agenda for Peace: Position Paper of the Secretary General on the Occasion of the Fiftieth Anniversary of the
United Nations. Fiftieth Session GA, Fiftieth Year SC. UN Doc. A/50/60 and S/1995/1. New York: United Nations, 33.
354
United Nations General Assembly and Security Council, 1995. Supplement to an Agenda for Peace: Position Paper of the
Secretary General on the Occasion of the Fiftieth Anniversary of the United Nations. Fiftieth Session GA, Fiftieth Year SC. UN
Doc. A/50/60 and S/1995/1. New York: United Nations, 34.
355
United Nations Security Council, 1995. Statement by the President of the Security Council. UN Doc. S/PRST/1995/9, 2.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
71
However, as we will see in the following section (see Chapter III, 5), the lessons learned from
the failed operations in Somalia, former Yugoslavia, and Rwanda would be soon disregarded
again. The UN organisations ultimately embraced militarised UN peacekeeping with a
stronger commitment that it ever had before.356
5. The UN Peacekeeping Operations of the Twenty-First
Century
5.1. Introduction
With the appointment of Kofi Annan as the Secretary-General of the United Nations in 1997,
the third and last phase of the militarisation of UN peacekeeping was initiated. It seems that
UN Secretary-General Kofi Annan perceived the use of force beyond self-defence to be
acceptable as long as the level of force authorised was such that operations could succeed in
their militarised operations. From the end of 1999 until today, the UN Security Council has
authorised almost all UN peacekeeping operations to use force beyond self-defence. A variety
of factors, which are all interlinked and mostly connected to the failures in Rwanda and
Srebrenica in which the UN Secretary-General was personally involved, have influenced the
UN’s approach towards militarised peacekeeping:357
(1) UN peacekeeping had lost a lot of its credibility after the UN’s failures in Srebrenica and
Rwanda, each within a month of each other and each featuring a massive loss of life against
which the forces on the ground had done little to prevent.358
(2) The NATO had installed a bombing campaign in Kosovo - without the prior authorisation
of the UN Security Council - to protect the ethnic Albanian minority.359 The UN Security
Council itself had not been able to come to an agreement to undertake forceful action to
protect these vulnerable people against their government. Shortly after this intervention, the
UN Secretary-General Kofi Annan installed an International Commission on Intervention and
State Sovereignty (ICISS). This commission wrote a report on the new concept of ‘the
responsibility to protect’.360
(3) This new concept of the responsibility to protect civilians in armed conflicts also played
an important role in the changing nature of UN peacekeeping.361 For example, in resolution
356
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 164.
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 37.
358
D., ROBERTS, 1997. ‘More honoured in the breech: Consent and impartiality in the Cambodian peacekeeping operation’. 4(1)
International Peacekeeping 1; J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton:
Hart Publishing, 37.
359
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 37.
360
International Commission on Intervention and State Sovereignty, 2001. The Responsibility to Protect. Ottawa: International
Development Research Centre. Accessed on 21 January 2013: http://responsibilitytoprotect.org/ICISS%20Report.pdf.
361
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 38.
357
72
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
1265, the UN Security Council noted that it was “gravely concerned by the hardship borne by
civilians during armed conflict”.362 Furthermore, the Council expressed its willingness to
consider how mandates should be adapted in order to better respond to the negative impact of
armed conflicts on civilians.363 In 2000, the UN Security Council reaffirmed this intention in
resolution 1296, by stating that it had the intention to:
“[…] insure, where appropriate and feasible, that peacekeeping missions are given
suitable mandates and adequate resources to protect civilians under imminent threat
of physical danger, including by strengthening the ability of the United Nations to
plan and rapidly deploy peacekeeping personnel, utilizing the stand-by arrangements
as appropriate.”364
The UN Secretary-General has cited this resolution as the basis upon which “mandates of
peacekeeping operations have been broadened to allow troops to physically protect civilians
under imminent threat of violence”.365 The concept of civilian protection has been reiterated
over and over again by the UN Secretary-General. 366 Furthermore, the role of the UN
peacekeeping forces in this regard had been recognised by the General Assembly’s Special
Committee on Peacekeeping Operations.367
5.2. The Brahimi Report and the First Call for Robust
Peacekeeping
In March 2000, UN Secretary-General Kofi Annan decided to convene the Panel on United
Nations Peace Operations to write a report about the UN peace and security activities and
how the UN could perform its activities more effectively in the future.368 The Panel’s report,
which became known as the Brahimi Report, was issued on 21 August 2000. The most
significant component of the report related to the approach of the three fundamental
principles.369 The report opened by marking the principles of consent, impartiality, and nonuse of force as the ‘bedrock principles of peacekeeping’. However, immediately after, the
362
United Nations Security Council, 1999. Res 1265. UN Doc. S/RES/1265, preamble.
United Nations Security Council, 1999. Res 1265. UN Doc. S/RES/1265, 11.
United Nations Security Council, 2000. Res 1296.,UN Doc. S/RES/1296, 13.
365
United Nations Security Council, 2004. Report of the Secretary-General to the Security Council on the protection of civilians
in armed conflict. UN Doc. S/2004/431. New York: United Nations, 8.
366
United Nations General Assembly, 2009. Implementing the Responsibility to Protect. Report of the Secretary-General. UN
Doc. A/63/667. New York: United Nations; United Nations General Assembly, 2005. In larger freedom: towards development,
security and human rights for all. Report of the Secretary-General. UN Doc. A/59/2005. New York: United Nations; United
Nations Security Council, 2005. Report of the Secretary-General on the protection of civilians in armed conflict. UN Doc.
S/2005/740. New York: United Nations; United Nations Security Council, 2007. Report of the Secretary-General on the
protection of civilians in armed conflict. UN Doc. S/2007/643. New York: United Nations; United Nations Security Council,
2009. Report of the Secretary-General on the protection of civilians in armed conflict. UN Doc. S/2009/277. New York: United
Nations; United Nations Security Council, 2010. Report of the Secretary-General on the protection of civilians in armed conflict.
UN Doc. S/2010/579. New York: United Nations.
367
United Nations General Assembly, 2010. Report of the Special Committee on Peacekeeping Operations. 2010 Substantive
Session. UN Doc. A/64/19. New York: United Nations, 143.
368
United Nations General Assembly and Security Council, 2000. Report of the Panel on United Nations Peace Operations
(‘Brahimi Report’). Fifty-fifth Session GA and Fifty-fifth Year SC. UN Doc. 1/55/305-S/2000/809. New York: United Nations.
369
H., SPIEKER, 2007. ‘The Legal Principles of Peacekeeping and the Brahimi Report’ in B., KONDOCH, International
Peacekeeping. Surrey: Ashgate Publishing Limited, 213.
363
364
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
73
Panel attempted to redefine the concepts of non-use of force beyond self-defence and
impartiality.370
(1) Non-use of force beyond self-defence - In terms of the bedrock principle of non-use of
force beyond self-defence, the Panel stressed that the UN peacekeepers should be capable of
not only using force in individual self-defence, but also to defend other UN personnel and
material, as well as the UN Security Council’s mandate. Furthermore, the Panel called for a
broader definition for the concept of ‘self-defence’ in the sense that UN peacekeepers should
also be authorised to use force to prevent or stop any violence against civilians.371
However, the Panel continued stating that it recognised that UN does not wage war. The
drafters stressed that, when enforcement action was required, the UN Security Council had
consistently authorised Coalitions of the Willing under Chapter VII of the UN Charter to
undertake enforcement actions.372 Finally, the drafters referred several times to the necessity
of ‘robust peacekeeping forces’ as there was a grey area between traditional peacekeeping
and peace enforcement that needed to be filled.373 Robust peacekeeping was formulated as a
solution to the standing weakness of UN peacekeeping operations.374
(2) Impartiality - In regard to the principle of impartiality, the Panel attempted to move away
from the universalist approach of ‘impartiality’ - that justice requires ‘impartial judgement
across cases’ and that ‘the right has priority over the good’ - 375 and instead defined
impartiality as the adherence to the purposes and principles of the UN Charter and to the
objectives of the UN peacekeeping operation’s mandate that is rooted in those principles.376
With this, the Panel moved away from the definition used by the UN Secretary-General in the
context of UNEF I in which the concepts of neutrality and impartiality are used
interchangeably. (See Chapter II, 2.4.3)
(3) Consent of the host state - When considering the bedrock principle of consent the Panel
noticed that caution is often needed in the context of intra-state conflicts as the parties of the
conflict may manipulate the consent. For example, it may occur that a party gives its consent
370
United Nations General Assembly and Security Council, 2000. Report of the Panel on United Nations Peace Operations
(‘Brahimi Report’). Fifty-fifth Session GA and Fifty-fifth Year SC. UN Doc. 1/55/305-S/2000/809. New York: United Nations,
48-50.
371
United Nations General Assembly and Security Council, 2000. Report of the Panel on United Nations Peace Operations
(‘Brahimi Report’). Fifty-fifth Session GA and Fifty-fifth Year SC. UN Doc. 1/55/305-S/2000/809. New York: United Nations,
49 and 62.
372
United Nations General Assembly and Security Council, 2000. Report of the Panel on United Nations Peace Operations
(‘Brahimi Report’). Fifty-fifth Session GA and Fifty-fifth Year SC. UN Doc. 1/55/305-S/2000/809. New York: United Nations,
53.
373
In the Brahimi Report the following words are used: using the following words: ix (‘robust Doctrine’), x (‘sufficiently robust
rules of engagement’), xi (‘robust peacekeeping forces’), 1(‘robust force posture’), and 10(54) (‘robust rules of engagement’),
United Nations General Assembly and Security Council, 2000. Report of the Panel on United Nations Peace Operations
(‘Brahimi Report’). Fifty-fifth Session GA and Fifty-fifth Year SC. UN Doc. 1/55/305-S/2000/809. New York: United Nations.
374
W.J., DURCH, 2003. The Brahimi Report and the Future of UN Peace Operations. Washington: The Henry L. Stimson Center,
22; T., TARDY, 2011. ‘A Critique of Robust Peacekeeping in Contemporary Peace Operations’. 18(2) International
Peacekeeping 153-154.
375
A., HUGHES, 2002. 'Impartiality' and the UN Observation Group in Lebanon, 1958’. 9(4) International Peacekeeping 3; S.,
O’NEILL, 1997. Impartiality in Context: Grounding Justice in a Pluralist World. New York: State University of New York, 2.
376
United Nations General Assembly and Security Council, 2000. Report of the Panel on United Nations Peace Operations
(‘Brahimi Report’). Fifty-fifth Session GA and Fifty-fifth Year SC. UN Doc. 1/55/305-S/2000/809. New York: United Nations,
50.
74
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
to UN presence merely to gain time to retool its military forces and subsequently withdraws
consent when the peacekeeping operation no longer serves its interests. Furthermore, it may
occur that the faction leaders give their consent, but that, in the aftermath of the peace
agreements, the forces split into factions whose existence and implications were not foreseen
in the original peace agreements.377
The Brahimi report was received with mixed reactions. Some members of the General
Assembly saw it as an interference with state sovereignty and were reluctant to confirm the
content of the report.378
As a result of this new approach to UN peacekeeping, the UN Security Council has explicitly
invoked Chapter VII of the UN Charter in most of the UN peacekeeping operations since
October 1999. Furthermore, the UN Security Council has not explicitly limited the use of
force by the UN peacekeeping operations to the strict definition of ‘self-defence’.379 It was
generally accepted that the mandates of new UN peacekeeping operations had to be given the
‘political and operational’ means to successfully implement their mandate.380 Before, Chapter
VII had only been explicitly invoked in relation to the functioning of three peacekeeping
operations: UNOSOM II, UNIKOM ad UNPROFOR. 381 Furthermore, with the combined
focus on the necessity to protect civilians, this gave rise to a more robust language in UN
Security Council’s resolutions. In most of the resolutions, UN peacekeeping operations were
authorised to ‘use all necessary means’382, to ‘take all necessary measures’383, or to ‘take the
necessary action’384 (or wording to a similar effect).385
5.3. Sierra Leone
I. Facts and mandate
The conflict in Sierra Leone began from March 1991 when rebels of the Revolutionary
United Front started fighting near to border of Liberia in an attempt to overthrow the
government of Sierra Leone.386 In July 1998, the UN Security Council established the United
377
United Nations General Assembly and Security Council, 2000. Report of the Panel on United Nations Peace Operations
(‘Brahimi Report’). Fifty-fifth Session GA and Fifty-fifth Year SC. UN Doc. 1/55/305-S/2000/809. New York: United Nations,
48.
378
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 41.
379
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 41.
380
T., TARDY, 2011. ‘A Critique of Robust Peacekeeping in Contemporary Peace Operations’. 18(2) International Peacekeeping
152.
381
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 41.
382
United Nations Security Council, 2003. Res 1509. UN Doc. S/RES/1509; United Nations Security Council, 2004. Res 1528.
UN Doc. S/RES/1528, 8; United Nations Security Council, 2004. Res 1565. UN Doc. S/RES/1565, 6; United Nations Security
Council, 2010. Res 1925. UN Doc. S/RES/1925, 11; United Nations Security Council, 2011. Res 1996. UN Doc. S/RES/1996, 4.
383
United Nations Security Council, 1993. Res 837. UN Doc. S/RES/837, 5; United Nations Security Council, 1999. Res 1272.
UN Doc. S/RES/1272, 1 and 4.
384
United Nations Security Council, 2002. Res 1410. UN Doc. S/RES/1410, 6; United Nations Security Council, 2000. Res
1291. UN Doc. S/RES/1291, 8.
385
T., TARDY, 2011. ‘A Critique of Robust Peacekeeping in Contemporary Peace Operations’. 18(2) International Peacekeeping
152.
386
United Nations Department of Peacekeeping Operations, 2009. United Nations Mission in Sierra Leone, UNAMSIL. Accessed
1 May 2013: http://www.un.org/en/peacekeeping/missions/past/unamsil/background.html.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
75
Nations Observer Mission In Sierra Leone (UNOMSIL),387 which was to be replaced by
United Nations Mission in Sierra Leone (UNAMSIL) in 1999 with resolution 1270.388
In February 2000, the UN Security Council, with resolution 1289, re-mandated UNAMSIL to
“take the necessary action to fulfil [its] tasks”.389 Hereby, the UN Council gave the operation
a robust mandate. Yet, the Revolutionary United Front violated the terms of the Lomé Peace
Agreements by restarting the hostilities and the UN forces were not able to protect
themselves, nor the civilians from the attacks by the Revolutionary United Front.390
In 2000, with resolution 1313, the UN Security Council expanded the mandate of UNAMSIL
in Sierra Leone by authorising the forces to “deter and where necessary, decisively counter,
the threat of RUF [Revolutionary United Front] attack by responding robustly to any hostile
actions or threat of imminent and direct use of force”.391 The reauthorisation of the UN
Security Council in resolution 1313 was controversial as it essentially blurred the line
between peacekeeping and enforcement.
In March 2001, the UN Security Council increased the strength of the military component of
the mission. Finally, matter began to improve and peaceful elections could be held in 2002.
The operation left the country in 2005.
II. The Application of the Fundamental Principles
(1) Non-use of force beyond self-defence - According to the Special Court for Sierra Leone,
it was settled that, from this moment on, the UN peacekeepers were authorised to use force to
repel attacks in order to prevent the UN peacekeeping operation from discharging its duties
listed in its mandate. Moreover, they stressed that the UN peacekeepers only used force as “a
measure of last resort, when other means have failed”392 The facts have, however, clearly
indicated that the UN Security Council has authorised the UN forces of UNAMISL to use
force beyond self-defence.
(2) Impartiality - The concept of impartiality is interlinked with the concept of the non-use
of force beyond self-defence. The UN Security Council has mandated UNAMSIL with a
militarised mandate, which led to the notion that the mission was an enforcement operation.
Consequently, the fighters of the Revolutionary United Front came to see the UN
peacekeeping operation as the enemy, which was mandated to forcibly disarm them, and not
as a neutral party. However, the UN mission did not only include military forces, but also
387
United Nations Security Council, 1998. Res 1181. UN Doc. S/RES/1181, 6.
United Nations Security Council, 1999. Res 1270. UN Doc. S/RES/1270, 8.
389
United Nations Security Council, 2000. Res 1289. UN Doc. S/RES/1289, 10.
390
United Nations Department of Peacekeeping Operations, 2009. United Nations Mission in Sierra Leone, UNAMSIL. Accessed
1 May 2013: http://www.un.org/en/peacekeeping/missions/past/unamsil/background.html; United Nations Security Council,
2000. Res 1289. UN Doc. S/RES/1289, 10.
391
United Nations Security Council, 2000. Res 1313. UN Doc. S/RES/1313, 3(b).
392
Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao. Judgement of 2 March 2009, Special Court for Sierra
Leone, Trial Chamber I, Case SCSL 04-15-T-1234, 228.
388
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THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
unarmed civilian observers, who were perceived to be a part of the military operation and thus
a threat.393
(3) Consent of the host state - As to whether the host state had given its consent to the
emplacement and functioning on the ground, it was clear that the consent was present at the
moment UNAMSIL was emplaced within the territory and when the Council re-mandated the
operation with resolution 1289.394 However, if there was still consent by the host state when
the Council passed resolution 1313, it is unclear.
III. Analysis of UNAMSIL
 This thesis categorises UNAMSIL as a militarised UN peacekeeping operation, as the
UN mission has not succeeded in upholding the principles.
5.4. East Timor
I. Facts and mandate
The mission in East Timor marked a further development in UN peacekeeping.395 In 1999, the
UN Security Council authorised the establishment of the United Nations Mission in East
Timor (UNAMET) to organise and conduct a consultation with the East-Timorese population
as to whether they agreed with the proposal of a special autonomy for East Timor within the
Republic of Indonesia or whether they rejected this idea, leading to the separation of East
Timor from Indonesia. 396 After 78,5% of the East Timorese people voted for the
independency of East Timor, violence broke out as pro-integration militias launched a
campaign of violence, looting, and arson397. The UN forces did not have the necessary
resources to fully protect the people of East Timor against the violence.
In September 1999, the UN Security Council, with resolution 1264, authorised the
establishment of a multinational force (INTERFET) to take enforcement action under Chapter
VII to restore international peace and security.398
On 4 October 1999, the UN Secretary-General issued a report on the situation in East Timor,
stating that the UN Security Council should establish a transitional operation, which should
be entrusted with a ‘robust’ mandate and charged to inter alia provide security, maintain law
393
United Nations Security Council, 2000. Fourth Report of Secretary-General on the United Nations Mission in Sierra Leone.
UN Doc. S/2000/455. New York: United Nations, 56-71.
394
United Nations Security Council, 1999. Provisional record of the 4054th Meeting of the Security Council. UN Doc.
S/PV.4054, 6; United Nations Security Council, 2000. Provisional record of the 4099th Meeting of the Security Council. UN
Doc. S/PV.4099, 2.
395
C., GRAY, 2008. International Law and the Use of Force. 3rd ed. Oxford: Oxford University Press, 264 and 272.
396
United Nations Security Council, 1999. Res 1246. UN Doc. S/RES/1246, 1.
397
United Nations Department of Peacekeeping Operations, 2001. United Nations Transitional Administration In East Timor,
UNTAET. Accessed 1 May 2013: http://www.un.org/en/peacekeeping/missions/past/etimor/UntaetB.htm.
398
United Nations Security Council, 1999. Res 1264. UN Doc. S/RES/1264, 3.
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77
and order, and to protect the East Timorese people.399 In October 1999, the UN Security, with
resolution 1272, established the United Nations Transitional Administration In East Timor
(UNTAET) in accordance with the report of the UN Security Council. The UN forces were
authorised to ‘take all necessary measures’ to fulfil their mandate.400
In February 2002, INTERFET handed over its mandate to UNTAET.401 The security situation
began to improve as relations between the government of Indonesia and East Timor had been
enhanced noticeably. In May 2002, the United Nations Mission of Support in East Timor
(UNMISET) replaced UNTAET. UNMISET was a UN peacekeeping operation with more
limited powers. In resolution 1410, the UN Security Council authorised UNMISET, “under
Chapter VII of the Charter of the United Nations, to take the necessary actions, for the
duration of its mandate, to fulfil its mandate, and decides to review this issue and all other
aspects of UNMISET’S mandate after 12 months”.402 Although the UN Security Council only
invoked Chapter VII in one paragraph, this paragraph affected the whole mandate, for its
duration, and thus puts the mission in the same position as if the UN Security Council had
explicitly invoked Chapter VII for the entire mandate.
In 2005, the UN missions were terminated as East-Timor had gained independence in 2002.
The missions were seen as an overall success. However, one year later, the internal security
conditions deteriorated and a multinational force was established by a several states.403 In
2006, the UN established United Nations Integrated Mission in Timor-Leste (UNMIT), as a
non-militarised UN peacekeeping operation, which was finished by 31 December 2012.
II. The Application of the Fundamental Principles
(1) Non-use of force beyond self-defence - In regard to the fundamental principle of the nonuse of force beyond self-defence, both UNTAET and UNAMISET were authorised to use
force beyond self-defence in order to carry out all of the tasks that were mandated by the UN
Security Council.404
(2) Impartiality - When analysing the facts of both of the missions, it is clear that they can be
considered anything but impartial.
(3) Consent of the host state - When considering the fundamental principle of consent, the
following matters should be put forth. In the 4043th session of the Security Council, The UN
Secretary-General first called upon Indonesia:
399
United Nations Security Council, 2006. Report of the Secretary-General on the situation in East Timor. UN Doc.
S/1999/1024. New York: United Nations, 28.
400
United Nations Security Council, 1999. Res 1272. UN Doc. S/RES/1272, 1 and 4.
401
United Nations Security Council, 2000. Report of the Secretary-General on the United Nations Transitional Administration in
East Timor. UN Doc. S/2000/738. New York: United Nations, 51.
402
United Nations Security Council, 2002. Res 1410. UN Doc. S/RES/1410, 6.
403
See reference in:
404
D., STEPHENS, 2005. ‘The Lawful Use of Force by Peacekeeping Forces: the Tactical Imperative’. 12 International
Peacekeeping 164.
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THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
“[…] to agree without further delay to the deployment of an international force. The
international community is asking for Indonesia’s consent to the deployment of such
a force. But I hope it is clear that it does so out of deference to Indonesia’s position
as a respected member of the community of States. Regrettably, that position is now
being placed in jeopardy by the tragedy that has engulfed the people of East
Timor.”405
In addition, various states urged the government of Indonesia to consent to the emplacement
and functioning of a quasi-enforcement operation within its territory. According to the
Russian delegation, an operation could only be emplaced after the consent was obtained from
the Indonesian government, as well as following the approval of the UN Security Council
regarding a resolution setting forth its mandate.406 Probably in this case, the Council pressured
the government of Indonesia to consent to the emplacement and functioning within the
territory in order to avoid the use of the veto by one of the permanent members. Yet, in
resolution 1272, the UN Security Council stressed the importance of close cooperation
between Indonesia, Portugal and UNTAET, but it did not make any reference to the consent
of Indonesia, in contrast with resolution 1244.
III. Analysis of UNTAET and UNMISET
 UNTAET is an example of a UN peacekeeping operation that became ‘state
surrogate’ or ‘state builder’ by governing a population that was persistent had
inadequate resources.407
 UNTAET and UNMISET can only be considered as militarised UN peacekeeping
operations as they were clearly not guided by the three fundamental principles
throughout the operation.
5.5. The Second Call for Robust Peacekeeping
Between 2008 and 2010, the concept of ‘robust peacekeeping’ attracted renewed attention
after different units of the United Nations Department of Peacekeeping Operations published
policy documents - United Nations Peacekeeping Operations. Principles and
Guidelines, 408 ‘The New Horizon’ non-paper, 409 and a Concept Note on Robust
Peacekeeping410 on the concept of robust peacekeeping. Also at the 2010 session of the
405
United Nations Security Council, 1999. Provisional record of the 4043th Meeting of the Security Council. UN Doc.
S/PV.4043, 3.
406
United Nations Security Council, 1999. Provisional record of the 4043th Meeting of the Security Council. UN Doc.
S/PV.4043, 15.
407
W.J., DURCH, and M.L., ENGLAND, 2009. ‘The Purposes of Peace Operations’ in Center on International Cooperation. Robust
Peacekeeping: The Politics of Force. New York: New York University Center on International Cooperation, 41.
408
United Nations Department of Peacekeeping Operations and Department of Field Support, 2008. United Nations
Peacekeeping Operations. Principles and Guidelines (‘Capstone Doctrine’). New York: United Nations.
409
United Nations Department of Peacekeeping Operations and Department of Field Support, 2009. A New Partnership.
Chartering a New Horizon for UN Peacekeeping (‘New Horizon non-paper’). New York: United Nations.
410
United Nations Department of Peacekeeping Operations and Department of Field Support, Office of Military Affairs, 2009.
Concept Note on Robust Peacekeeping. New York: United Nations.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
79
Special Committee for Peacekeeping Operations, the possibilities of robust peacekeeping
were heavily discussed and resulted in a new report on robust mandates for UN peacekeeping
operations. 411 The concept of robust peacekeeping is definitely not a new idea; it was
formulated for the first time in the Brahimi report of 2000. It emerged in the 1990s after the
failures in Rwanda and former Yugoslavia in which the UN forces were passive witnesses to
massive violations to human rights. The United Nations was heavily criticized and some
argued that the UN forces could have avoided the massacres if they had been more robust.
According to Tardy, robustness is designed to:
“Robustness is understood to give an operation a degree of credibility, in particular
vis-à-vis ‘spoilers. Robustness is designed to allow a peacekeeping force to protect
itself, to provide freedom of manoeuvre and to prevent situations where the
implementation of the mandate, or more broadly the peace process, is ‘taken hostage’
by spoilers.” 412
In the Capstone Doctrine, the drafters observed that “robust peacekeeping involves the use of
force at the tactical level with the consent of the host authorities and/or the main parties to
the conflict”.413 Furthermore, the drafters clearly distinguished robust peacekeeping from
peace enforcement. 414 According to Tardy, the Capstone Doctrine has chosen a narrow
approach on the robustness of the peacekeepers as it only entails that the UN forces are
authorised to implement their mandate relying on robust actions.
On the contrary, in the non-paper New Horizon, the drafters focused on the political character
of robust peacekeeping, thereby taking a broad approach on robustness of UN peacekeeping.
In this paper, the concept of robustness in UN peacekeeping is defined as “a political and
operational strategy to signal the intention of a UN mission to implement its mandate and to
deter threats to an existing peace process in the face of resistance from spoilers”.415 In
addition, the drafters stressed that the concept of robustness in UN peacekeeping is embedded
in the three fundamental principles of UN peacekeeping. Furthermore, both the mission
objectives - identified by the UN Security Council - and a clear political strategy shall guide
the robust approach of UN peacekeeping. Ultimately, successful robust peacekeeping depends
both on the commitment of the UN Security Council to authorise a robust UN peacekeeping
operation and the willingness of the member states to contribute troops.416 The drafters also
411
United Nations General Assembly, 2010. Report of the Special Committee on Peacekeeping Operations. 2010 Substantive
Session. UN Doc. A/64/19. New York: United Nations.
412
T., TARDY, 2011. ‘A Critique of Robust Peacekeeping in Contemporary Peace Operations’. 18(2) International Peacekeeping
152.
413
United Nations Department of Peacekeeping Operations and Department of Field Support, 2008. United Nations
Peacekeeping Operations. Principles and Guidelines (‘Capstone Doctrine’). New York: United Nations, 19.
414
According to the drafters of the Capstone Doctrine, ‘peace enforcement may involve the use of force at the strategic or
international level, which is normally prohibited for Member States under Article 2 (4) of the Charter unless authorized by the
Security Council’ in United Nations Department of Peacekeeping Operations and Department of Field Support, 2008. United
Nations Peacekeeping Operations. Principles and Guidelines (‘Capstone Doctrine’). New York: United Nations, 19.
415
United Nations Department of Peacekeeping Operations and Department of Field Support, 2009. A New Partnership.
Chartering a New Horizon for UN Peacekeeping (‘New Horizon non-paper’). New York: United Nations, 21.
416
United Nations Department of Peacekeeping Operations and Department of Field Support, 2009. A New Partnership.
Chartering a New Horizon for UN Peacekeeping (‘New Horizon non-paper’). New York: United Nations, 21.
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THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
explained that the concept of ‘a robust approach at a tactical level’ might require the use of
force in defence-of-mandate.
Thus, it is clear that the narrow approach in the Capstone Doctrine vastly differs from the
broad approach in the non-paper New Horizon. In the latter, the robust character does not only
concern the peacekeepers and their right to use force in defence of their mandate but the
character needs to be embedded in a broader framework that combines operational and
political parameters.417
In 2009, the Office of Military Affairs of the Department of Peacekeeping Operations and the
Department of Field Support issued the Concept Note on Robust Peacekeeping, in which they
gave an interim definition of robust peacekeeping:
“A posture by a peacekeeping operation that demonstrates willingness, capacity and
capability to deter and confront, including through the use of force when necessary,
an obstruction to the implementation of its mandate”.418
Furthermore, the document stressed that robust peacekeeping is a ‘posture’ rather than a
‘specific activity’. Consequently, the drafters were convinced that the concept of robust
peacekeeping could be implemented in many ways, inter alia through ‘political dialogue’,
‘targeted sanctions against identified spoilers’, ‘support and incentives to national
reconciliation efforts and the initiation of early peacebuilding activities’. The Concept Note
also noted that there is a clear distinction between robust peacekeeping and peace
enforcement; when substantial violence occurs or the parties of the conflict are engaged in
serious fighting, robust peacekeeping may not serve as an answer. 419
In addition, the Concept Note attempted to consolidate the narrow and broad approach by
stressing that:
“Robust peacekeeping is not only a military or police posture but also a political and
operational approach that signals the determination of a peacekeeping operation to
implement its mandate and o deter threat to an existing peace process”.420
Furthermore, the Office of Military Affairs considered the readiness to use violence as the
most effective deterrence against recalcitrant states and non-state factions.421
This call for a more robust kind of peacekeeping has become the practiced norm, as will be
clear from the following UN peacekeeping operations.
417
T., TARDY, 2011. ‘A Critique of Robust Peacekeeping in Contemporary Peace Operations’. 18(2) International Peacekeeping
155.
418
United Nations Department of Peacekeeping Operations and Department of Field Support, Office of Military Affairs, 2009.
Concept Note on Robust Peacekeeping. New York: United Nations, 3.
419
United Nations Department of Peacekeeping Operations and Department of Field Support, Office of Military Affairs, 2009.
Concept Note on Robust Peacekeeping. New York: United Nations, 2-3.
420
United Nations Department of Peacekeeping Operations and Department of Field Support, Office of Military Affairs, 2009.
Concept Note on Robust Peacekeeping. New York: United Nations, 2.
421
United Nations Department of Peacekeeping Operations and Department of Field Support, Office of Military Affairs, 2009.
Concept Note on Robust Peacekeeping. New York: United Nations, 2.
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81
5.6. The Democratic Republic of the Congo
I. Facts and mandate
In the aftermath of the Rwandan genocide of 1994, 1,2 million Rwandese Hutu’s, including
fighters who had taken part in the genocide, fled to the neighbouring country, in particular the
eastern Democratic Republic of the Congo. In 1996, a rebellion group headed by Laurent
Désiré Kabila attempted to overthrow the government of President Mobutu, in which it
succeeded in May 1997.422 As the fighting recommenced in the territory in 1998 - this time
against the government of Kabila - Zimbabwe, Namibia, and Angola sent forces into the
country to support Kabila.
Following the signing of the Lusaka Ceasefire Agreement by the different parties involved in
the conflict, the UN Security Council established the United Nations Organization Mission in
the Democratic Republic of the Congo (MONUC) by its resolution 1279. 423 The initial
mandate of MONUC, as set out in resolution 1279, did not authorise the UN forces to use
force beyond self-defence.424 However, this was to change in a gradual way. In February
2000, the UN Security Council authorised the UN peacekeepers to take ‘the necessary action’
to protect both the UN mission and the civilians against the imminent threat of violence.425
Also a report by the Department of Peacekeeping Operations confirmed that the rules of
engagement - applicable to the military personnel of MONUC - embraced the use of force
beyond self-defence, but only for limited purposes, especially that of the protection of
civilians. 426 However, reality proved that the UN forces did not effectively protect the
civilians; in May 2002, Congolese officers killed dozens of people in the city of Kisangani.
The Secretary-General himself informed the UN Security Council that the UN forces did not
have the resources to protect the civilians at the moment of the Kisangani massacre.427
In response, in July 2003, the UN Security Council increased the military strength of
MONUC with resolution 1493, as it was clear that the situations had only further derailed.428
In addition, the UN Security Council expanded the mandate of the UN mission by authorising
the UN peacekeepers to use force for all of its tasks, but only in relation to a certain
geographical part of the Democratic Republic of the Congo.429
422
United Nations Department of Peacekeeping Operations, [date unknown]. United Nations Organization Mission in the
Democratic Republic of the Congo, MONUC (Nov 1999 - June 2010). Accessed 1 May 2013:
http://www.un.org/en/peacekeeping/missions/monuc/background.shtml.
423
United Nations Security Council, 1999. Letter dated 23 July 1999 from the Permanent Representative of Zambia to the United
Nations addressed to the President of the Security-Council. Annex: Ceasefire Agreement. UN Doc. S/1999/815. New York:
United Nations; United Nations Security Council, 1999. Res 1279. UN Doc. S/RES/1279.
424
United Nations Security Council, 1999. Res 1279. UN Doc. S/RES/1279.
425
United Nations Security Council, 2000. Res 1291. UN Doc. S/RES/1291, 8.
426
United Nations Department of Peacekeeping Operations, Peacekeeping Best Practices Unit, Military Division, 2004. The
Lessons of the Interim Emergency Multinational Force. New York: United Nations, 8. Accessed 23 maart 2013:
http://pbpu.unlb.org/pbps/Library/Artemis.pdf.
427
United Nations Security Council, 2002. Eleventh report of the Secretary-General on the United Nations Organization Mission
in the Democratic Republic of the Congo. UN Doc. S/2002/621. New York: United Nations, 71.
428
United Nations Security Council, 2003. Res 1493. UN Doc. S/RES/1493, 4.
429
United Nations Security Council, 2003. Res 1493. UN Doc. S/RES/1493, 25-26.
82
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
In June 2004, a massacre occurred in Bukavu and one month later there was a massacre of
Congolese Banyamulenge refugees in Gatumba, Burundi. In response to the massacre in
Bukavu, the UN Security Council increased the UN troops with resolution 1565. 430 In
addition, the Council authorised the use of ‘all necessary means’, which implies that the use
of force beyond self-defence could be used in relation to all geographical parts but only for
certain tasks.431
In July 2006, the first free and fair elections in 46 years - for a new government and president
- were held and won by President Kabila. The UN forces of MONUC stayed on the ground,
trying to restore the international peace and security in the region. The UN Security Council
re-mandated the UN forces several times from 2007 until 2010, until the UN mission was
renamed the United Nations Organization Stabilization Mission in the Democratic Republic
of the Congo (MONUSCO) to reflect the new phase in which the country had entered.432 The
new mission was authorised to ‘use all necessary means’ to carry out its ‘protection mandate’
including inter alia the protection of civilians, humanitarian personnel, and human rights
defenders under imminent threat of physical violence and to support the Government of the
DRC in its stabilization and peace consolidation process.433 Chapter VII was invoked in
relation to the entire mandate. The Council did not mention whether the Government of DRC
had given its consent to the emplacement and functioning of MONUSCO within its territory.
In March 2012, armed mutinies have led to renewed violence and an escalation of tensions
between Kinshasa and Kigali.
On 28 March 2013, the UN Security Council, while acting under Chapter VII of the UN
Charter, has decided that MONUSCO shall entrust ‘an Intervention Brigade’ - consisting of
military personnel - with the responsibility of stabilizing the country by neutralizing armed
groups and reducing the threat posed by those groups to state authority and civilian
security.434 The UN Security Council stressed that this decision was an exceptional and
consequently did not constitute a precedent or any prejudice to the fundamental principles of
UN peacekeeping.435
II. The Application of the Fundamental Principles
(1) Non-use of force beyond self-defence - Regarding the fundamental principle of the nonuse of force beyond self-defence, it is clear from the analysis above that MONUC’s initial
mandate did not authorise the UN peacekeepers to use force beyond self-defence. Yet, from
resolution 1291, the authorisation to use force beyond self-defence increased gradually, when
the UN Security Council authorised the UN forces to take ‘the necessary measures’, but only
430
United Nations Security Council, 2004. Res 1565. UN Doc. S/RES/1565, 3
United Nations Security Council, 2004. Res 1565. UN Doc. S/RES/1565, 6.
432
United Nations Security Council, 2010. Res 1925. UN Doc. S/RES/1925, 1.
433
United Nations Security Council, 2010. Res 1925. UN Doc. S/RES/1925, 11.
434
United Nations Security Council, 2013. Res 2098. UN Doc. S/RES/2098, 9. (Emphasis added)
435
United Nations Security Council, 2013. Res 2098. UN Doc. S/RES/2098, 9. (Emphasis added)
431
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
83
to protect civilians, through resolution 1493, when the council authorised the forces to use
force for all of its tasks, but only in relation to a certain geographical part of the Democratic
Republic of the Congo, until resolution 1565 with which the Council authorised the forces to
use ‘all necessary means’, implying that the use of force beyond self-defence could be used in
relation to all geographical parts but only for certain tasks.
MONUSCO, the UN mission that replaced MONUC in 2010, was first authorised to ‘use all
necessary means’ to carry out its ‘protection mandate’.436 In March 2013, the UN Security
Council authorised the establishment of an ‘Intervention Brigade’ - as a part of the UN
peacekeeping operation MONUSCO - with resolution 2098. Despite the fact that this
resolution was passed unanimously, several delegations expressed reservations about the text
of the resolution.437 For example, the Guatemala’s representative expressed his concern about
the involvement of the UN peacekeeping operations as ‘peace enforcement operations’. After
all, these kinds of endeavours may violate the principles of neutrality and impartiality. He
stressed that the UN’s presence “should be perceived by all parties as that of an honest
broker, not a potential party to the conflict”.438 Furthermore, he was also concerned that the
entire operation would be become a ‘peace enforcement operation’. 439 The Argentinian
delegate argued that there had been insufficient dialogue among the member states before
deciding upon such a landmark step in UN peacekeeping. He stressed that the concept of UN
peacekeeping had changed drastically as it now incorporates enforcement elements; these
kinds of decisions require in-depth consideration and responsible action.440
(2) Impartiality - Regarding the principle of impartiality in the case of MONUC, it is hard to
argue that the operation had an impartial character. The UN forces fought alongside the
DRC’s forces, making them a part of the conflict instead of being an impartial force. Often
they even fought in place of a state’s army. For example, the UN Secretary-General wrote
that:
“In view of the near total disintegration of the FARDC [ Military of the Democratic
Republic of the Congo] in the face of advancing CNDP [ National Congress for the
Defence of the People] troops, MONUC has become the only organized force in
Goma and has been compelled to step in to substitute for the role of the national
security forces.”441
In the case of MUNUSCO, it is also clear that the UN mission did not succeed in upholding
its impartial nature. In all probability, with the emplacement of the new Intervention Brigade,
436
United Nations Security Council, 2010. Res 1925. UN Doc. S/RES/1925, 11.
United Nations Security Council, 2013. Provisional record of the 6943th Meeting of the Security Council. UN Doc.
S/PV.6943.
438
United Nations Security Council, 2013. Provisional record of the 6943th Meeting of the Security Council. UN Doc.
S/PV.6943, 4.
439
United Nations Security Council, 2013. Provisional record of the 6943th Meeting of the Security Council. UN Doc.
S/PV.6943, 4.
440
United Nations Security Council, 2013. Provisional record of the 6943th Meeting of the Security Council. UN Doc.
S/PV.6943, 6.
441
United Nations Security Council, 2008. Letter dated 31 October 2008 from the Secretary-General to the President of the
Security Council. Annex to the letter dated 31 October 2008 from the Secretary-General to the President of the Security Council.
UN Doc. S/2008/703. New York: United Nations, 4.
437
84
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
the UN mission would not be able to uphold its impartial actor in the conflict. After all, the
military personnel belonging to the Intervention Brigade is entrusted with tasks such as
neutralising armed groups and reducing the threat posed by those groups to state authority and
civilian security.442 Consequently, as the Intervention Brigade will use force against the
parties of the conflict and as this Brigade will be an inherent part of MONUSCO, the UN
mission as a whole will be considered partial.
(3) Consent of the host state - Turning to the fundamental principle of consent, it must be
noted that the UN Security Council did not make a specific reference to the consent of the
host state for the emplacement of MONUC by resolution 1279.443 The Council only made a
reference to the Lusaka Ceasefire Agreement, in which the parties, including the Democratic
Republic of the Congo, agreed to the establishment of a UN peacekeeping operation within
their territory.444 They agreed that: “the mandate of the UN force shall include peacekeeping
and peace enforcement operations”. 445 However, in the subsequent resolutions, the UN
Security Council did not refer to the consent of the host state, or to the initial agreement.
Instead the Council reaffirmed the sovereignty, territorial integrity, and political
independence of the Democratic Republic of the Congo. The fact that the Council referred to
these fundamental principles could be out of recognition that the state had the inherent right
to reject any changes to the mandate made without their consent and thus had refused the
continued presence of the UN forces. In 2009, President Kabila made it clear that the UN
forces should leave the country. The UN Security Council reacted to this withdrawal of
consent by sending another mission to the DRC and agreeing to several concessions,
including the re-naming of the operation and the withdrawal of 2,000 UN troops. However, it
is not clear whether the host state has given its consent to these changes. In 2009, the UnderSecretary-General for Peacekeeping Operations, Mr. Alain Le Roy, made the following
remarks to the Special Committee on Peacekeeping Operations:
“UN peacekeeping […] faces new risks. It is increasingly used in situations where the
scale of hostilities threatens to overwhelm peacekeepers' capacities to respond. As we
saw recently in the Eastern DRC, we have limited reserve capacities to call on when
faced with extreme hostilities. Eight of our missions are mandated to protect
civilians. Three missions operate in an environment of an on-going conflict. We have
increasingly found ourselves operating in non-permissive environments and even
under conditions of withdrawal of consent.”446
It could be reasonably argued from this statement that the UN had operated on the territory of
the DRC without the consent of the host state.
442
United Nations Security Council, 2013. Res 2098. UN Doc. S/RES/2098, 9. (Emphasis added)
United Nations Security Council, 1999. Res 1279. UN Doc. S/RES/1279.
444
United Nations Security Council, 1999. Letter dated 23 july 1999 from the Permanent Representative of Zambia to the United
Nations addressed to the President of the Security Council. Annex: Ceasefire Agreement. UN Doc. S/1999/815. New York:
United Nations, article III, 11.
445
United Nations Security Council, 1999. Letter dated 23 july 1999 from the Permanent Representative of Zambia to the United
Nations addressed to the President of the Security Council. Annex: Ceasefire Agreement. Annex ‘A’ to the Ceasefire Agreement.
UN Doc. S/1999/815. New York: United Nations, Chapter 8.
446
United Nations, 2009. Remarks of the Under Secretary-General for Peacekeeping Operations, Mr. Alain Le Roy, to the
Special Committee on Peacekeeping Operations. Accessed on 23 March 2013:
http://www.un.org/en/peacekeeping/articles/article230209.htm. (Emphasis added)
443
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
85
When considering the consent of the Government of the Democratic Republic of the Congo
with the emplacement of MONUSCO and its intervention brigade, it must be noted that the
Minister of Foreign Affairs, International Cooperation, and la Francophonie, was invited at
the 6943th meeting of the UN Security Council on which resolution 2098 was passed. The
Minister did not give the impression that the Government of the DRC opposed the
emplacement of the Intervention Brigade.447 Yet, it must be noted that the consent of the host
state did not constitute a legal prerequisite; in this case it was clear that it considered this a
kind of enforcement activity for which the UN Security Council must not obtain the host
state’s consent.
III. Analysis of MONUC and MONUSCO
 By passing resolution 2098, the UN Security Council took a landmark step in the
authorisation of the use of force beyond self-defence: for the first time in history, the
UN Security Council stated in clear words that a part of the UN mission would be
considered as a purely military UN peacekeeping operation. The militarisation of UN
peacekeeping operations is now a fact that can no be longer ignored by the UN
organs and the member states of the United Nations.
 This thesis would also like to express its concerns about the new evolution in UN
peacekeeping. The UN Security Council should entrust an enforcement operation
with the kind of mandate with which it entrusted the Intervention Brigade, instead of
incorporating a new component into an existing mission. MONUSCO as a whole will
be perceived as a partial mission, which does not only endanger the military
personnel of MONUSCO, but also the other, non-military personnel of this mission.
The UN peacekeepers will undeniably be perceived as combatants and substantial
force will probably be used against them.
5.7. Liberia
I. Facts and mandate
In 1989, a civil war broke out and claimed the lives of almost 150,000 people as the National
Patriotic Front of Liberia (NPFL), a rebel group led by former government official Charles
Taylor attempted to overthrow the government. By the demand of President Samuel Doe, a
subregional organization, the Economic Community of West Africa (ECOWAS), established
a peacekeeping operation to enforce a ceasefire. 448 In 1993, the UN Security Council
established the United Nations Observer Mission in Liberia (UNOMIL) and entrusted the UN
447
United Nations Security Council, 2013. Provisional record of the 6943th Meeting of the Security Council. UN Doc.
S/PV.6943, 10.
448
United Nations Department of Peacekeeping Operations, [date unknown]. United Nations Mission in Liberia , UNOMIL
(September 2003 - present). Accessed 1 May 2013: http://www.un.org/en/peacekeeping/missions/unmil/background.shtml.
86
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
forces with the task of assisting ECOWAS in the implementation of the Cotonou peace
agreement449
UNOMIL was the first UN peacekeeping operation that was established to assist another
peacekeeping operation, which was already established by a non-UN organisation, in its
tasks. In July 1997, Charles Taylor was elected as the new President of Liberia. Following his
inauguration, the UN Security Council decided to replace UNOMIL with a new UN mission
called the United Nations Peace-Building Support Office in Liberia (UNOL), which was
tasked to assist the newly elected Government in the consolidation of the peace.450
In July 2003, serious fighting restarted between Government forces and various warring
factions. One month later, by resolution 1497, the UN Security Council authorised the
establishment of a multinational force under Chapter VII of the UN Charter to assist in the
peace process. The multinational force was made up of African states and was supported by
the UN peacekeeping operation in Sierra Leone.451
In September 2003, the UN Security Council established the United Nations Mission in
Liberia (UNMIL) to take over the authority from the ECOWAS-led ECOMIL forces.452 After
only four months, the UN Secretary-General managed to emplace the operation and start the
process of disarmament. By 2005, the security returned more or less and the UN Security
Council asked the UN Secretary-General to provide recommendations on a drawdown plan
for UNMIL.453 Until today, UNMIL is still active on the Liberian territory, despite the
significant progress it has made, after the UN Security Council extended the mission’s
mandate on 12 December 2012.454 At the time of writing, UNOCI is liaising with the UN
mission in the neighbouring country Liberia (UNMIL).
II. The Application of the Fundamental Principles
(1) Non-use of force beyond self-defence - Turning first to the fundamental principle of
force only in self-defence, the following must be noted: in 2003, the UN Under-SecretaryGeneral for Peacekeeping, Jean-Marie Guéhenno, raised the question whether the UN
Security Council had authorised the military forces of operation UNMIL to use armed force
in situations other than self-defence.455 After all, resolution 1509 did include a reference to
Chapter VII, but not to the use of ‘all necessary means’.456 In a Note to the Under-SecretaryGeneral of the Department of Peacekeeping Operations, the UN Legal Counsel, Hans Corell,
449
United Nations Security Council, 1993. Res 866. UN Doc. S/RES/866, 2.
United Nations Department of Peacekeeping Operations, [date unknown]. United Nations Mission in Liberia , UNOMIL
(September 2003 - present). Accessed 1 May 2013: http://www.un.org/en/peacekeeping/missions/unmil/background.shtml.
451
United Nations Department of Peacekeeping Operations, [date unknown]. United Nations Mission in Liberia , UNOMIL
(September 2003 - present). Accessed 1 May 2013: http://www.un.org/en/peacekeeping/missions/unmil/background.shtml.
452
United Nations Security Council, 2003. Res 1509. UN Doc. S/RES/1509, 1.
453
United Nations Security Council, 2005. Res 1626. UN Doc. S/RES/1626, 13.
454
United Nations Security Council, 2012. Res 2079. UN Doc. S/RES/2079, 2.
455
The Permanent Representative of an unidentified state had initially asked the to UN Under-Secretary-General for
Peacekeeping disclose whether UNMIL was able to use force beyond self-defence.
456
United Nations Security Council, 2003. Res 1509. UN Doc. S/RES/1509.
450
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
87
formulated his interpretation of resolution 1509 of 19 September 2003 by giving an ordinary
and natural meaning to the terms when they are read in the context of a resolution as a whole
and in light of its object and purpose. The UN legal Counsel provided the following
reasoning:
1. First of all, the UN Legal Counsel argued that, because the UN peacekeeping
operations fell within Chapter VII of the UN Charter, the UN Security Council
indicated their intention to exercise their power under this Chapter. Under Chapter
VII of the UN Charter the UN Security Council has inter alia the power to authorise
the use of force beyond self-defence. However, he stressed that, whether the UN
Security Council effectively had the intention of authorising the use of force beyond
self-defence depends on the content of the resolution.457
2. The UN Legal Counsel observed that resolution 1509 did not expressly authorise
UNMIL ‘to ‘use all necessary means’ to fulfil any of the elements of its mandate set
out in paragraph 3 of that resolution. Nor did it expressly authorise UNMIL ‘to take
the necessary measures’ to fulfil any of the elements of the mandate. Had such
express wording appeared in the resolution, it would, of course, have been beyond all
doubt that the Security Council had made use of its powers under Chapter VII of the
Charter to authorise UNMIL to use armed force (other than in situations of selfdefence)’. According to the UN Legal Council, the absence of such explicit wording
did not indicate that the UN Security Council has not exercised such powers and
granted such authorisation.458 Consequently, other elements have to be taken into
account in order to determine whether the UN Security Council had the intention of
authorising the use of force beyond self-defence.
3. Therefore, the UN Legal Counsel argued that whether the Council had done so
”depends upon the interpretation of the resolution, specifically, on the ordinary and
natural meaning which is to be given to its terms when they are read in the context of
the resolution as a whole and in the light of its object and purpose, and against the
background of the discussion leading to, and the circumstances of, its adoption, in
particular the report that the Secretary-General submitted pursuant to resolution
1487 (2003).”459 The UN Legal Counsel ascertained that, when analysing the wording
of resolution 1509 and taking into account the history and the circumstances of the
adoption of this resolution, it is manifest that the UN Security Council fully intended
to authorise UNMIL to use armed force other than in self-defence. When referring to
the wording of resolution 1509, the UN Legal Counsel noted that the UN forces
would not be able to successfully exercise some of the tasks listed in the resolution
457
United Nations, 2006. ‘Note to the Under-Secretary-general of the Department of Peacekeeping Operations, United Nations’
in United Nations Juridical Yearbook 2003. New York: United Nations, Office of Legal Affairs, 539.
458
United Nations, 2006. ‘Note to the Under-Secretary-general of the Department of Peacekeeping Operations, United Nations’
in United Nations Juridical Yearbook 2003. New York: United Nations, Office of Legal Affairs, 539.
459
United Nations, 2006. ‘Note to the Under-Secretary-general of the Department of Peacekeeping Operations, United Nations’
in United Nations Juridical Yearbook 2003. New York: United Nations, Office of Legal Affairs, 539.
88
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
without resorting to armed force.460 For example, in paragraph 3(j) the UN Security
Council mandated the UN force “to protect United Nations personnel, facilities,
installations, and equipment, ensure the security and freedom of movement of its
personnel and, without prejudice to the efforts of the government, to protect civilians
under imminent threat of violence, within its capabilities”.461
4. In addition, the UN Legal Counsel referred to the history and circumstances of the
adoption of the resolution. In 2003, the UN Secretary-General, submitted a report
pursuant to resolution 1497 in which he proposed a concept of operation for UNMIL.
This concept included that it should have ‘a robust mandate’, which would enable the
UN peacekeepers to take ‘a robust approach’ and pre-empt potentially destabilizing
events. The UN Security-Council, on his turn, confirmed the content of the UN
Secretary-general’s report and its recommendations. Moreover, article IV of the
Comprehensive Peace Agreement incorporated the demand of the various parties to
the United Nations to install ‘a United Nations Chapter VII’ in Liberia to “support
the transitional government and to assist in the implementation of this Agreement”.462
Consequently, the establishment of UNMIL represented the UN Security-Council’s
response to that request.463 In conclusion, the UN Legal Counsel made it clear that,
even when the UN Security Council invokes Chapter VII, the question remains
whether the Council has the intention to authorise the UN forces to use force beyond
self-defence.
(2) Impartiality - On the issue of the fundamental principle of impartiality, this thesis
reiterates that the extent to which the fundamental principle of force in self-defence is
violated, influenced the extent to which succeeds in upholding the principle of impartiality. In
the case of UNMIL, it is clear that the UN forces did not succeed in upholding the principle
and were consequently regarded as being a party in the conflict.
(3) Consent of the host state - When considering the fundamental principle of consent, it
must be noted that the UN Security Council did not make a specific reference to the host state
consent. 464 However, the Council did make a reference to the Comprehensive Peace
Agreements of August 2006, in which the parties requested the emplacement of ‘a United
Nations Chapter VII’ in Liberia to “support the transitional government and to assist in the
implementation of this Agreement”.465 It can reasonably questioned if this is sufficient to
comply with the legal requirements.
460
United Nations, 2006. ‘Note to the Under-Secretary-general of the Department of Peacekeeping Operations, United Nations’
in United Nations Juridical Yearbook 2003. New York: United Nations, Office of Legal Affairs, 539.
461
United Nations Security Council, 2003. Res 1509. UN Doc. S/RES/1509, 3.
462
Comprehensive Peace Agreement Between the Government of Liberia and the Liberians United for Reconciliation and
Democracy (LURD) and the Movement for Democracy in Liberia (MODEL) and Political Parties, Accra, Ghana, 18 August
2003, 7; United Nations Security Council, 2003. Res 1509. UN Doc. S/RES/1509.
463
United Nations, 2006. ‘Note to the Under-Secretary-general of the Department of Peacekeeping Operations, United Nations’
in United Nations Juridical Yearbook 2003. New York: United Nations, Office of Legal Affairs, 539-540.
464
United Nations Security Council, 2003. Res 1509. UN Doc. S/RES/1509.
465
Comprehensive Peace Agreement Between the Government of Liberia and the Liberians United for Reconciliation and
Democracy (LURD) and the Movement for Democracy in Liberia (MODEL) and Political Parties, Accra, Ghana, 18 August
2003, 7; United Nations Security Council, 2003. Res 1509. UN Doc. S/RES/1509.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
89
III. Analysis of UNMIL
 The UN peacekeeping mission in Liberia may certainly be classified as a militarised
UN peacekeeping operation. After all, the UN mission did not succeed in upholding
the three fundamental principles of UN peacekeeping throughout the mission.
 The legal reasoning of UN Legal Counsel, Hans Corell, marked an important step in
the recognition of the use of force beyond self-defence by UN peacekeepers; it was
one of the first times that one of the UN entities explicitly recognised that UN
peacekeepers may be authorised to use force beyond self-defence. Furthermore, it
gave an interesting insight as to which elements must be taken into account to
determine whether the UN Security Council had the intention of authorising the use
of force beyond self-defence.
5.8. Côte d’Ivoire
I. Facts and mandate
On the 28th of November 2010, the incumbent President Laurent Gbagbo refused to concede
defeat in the second round of the highly contested presidential elections to his opponent,
former Prime Minister Alassane Ouattara.466 In September 2002, a serious conflict broke out
after an attempt by a group of military officers to overthrow President Gbagbo.467 On January
23, 2003, the conflicting parties signed the Linas-Marcoussis Agreement, which entailed that
a new transitional government would be established. One month later, the UN Security
Council authorised the establishment of an ECOWAS force - referred to as ECOFORCE or
ECOMICI - and the involvement of French troop to facilitate the implementation of the peace
agreement.468 As it became clear that ECOWAS did not succeed in deploying the necessary
amount of troops, the UN Security Council established the United Nations Mission in Côte
D’Ivoire (MINUCI), a political mission, to assist the Ivorian parties in the implementation of
the peace agreements.469
On 4 April 2004, the UN Security Council established the United Nations Operation in Côte
d’Ivoire (UNOCI) to take over the tasks of both MINUCI and ECOWAS. 470 The UN
peacekeepers were authorised to ‘use all necessary means’ to carry out their mandate.471
Between April and November 2004, the situation suddenly worsened after hundreds of people
were killed in demonstrations against Laurent Gbagbo and a base of the French Licorne force
466
United Nations Department of Peacekeeping Operations, [date unknown]. United Nations Operation in Côte d'Ivoire, UNOCI
(April 2004 - present). Accessed 2 May 2013: http://www.un.org/en/peacekeeping/missions/unoci/background.shtml.
467
United Nations Department of Peacekeeping Operations, [date unknown]. United Nations Operation in Côte d'Ivoire, UNOCI
(April 2004 - present). Accessed 2 May 2013: http://www.un.org/en/peacekeeping/missions/unoci/background.shtml.
468
United Nations Security Council, 2003. Res 1464. UN Doc. S/RES/1464, 8.
469
United Nations Security Council, 2003. Res 1479. UN Doc. S/RES/1479.
470
United Nations Security Council, 2004. Res 1528. UN Doc. S/RES/1528, 1.
471
United Nations Security Council, 2004. Res 1528. UN Doc. S/RES/1528, 8.
90
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
was bombed by Ivorian government troops. In response, the French troops used extreme
violence against the Ivorian Government troops, which only increased the tensions. The
mandate of UNOCI was subsequently extended on several occasions, including most recently
in July 2012 in resolution 2062.472
In November 2010, Alassane Ouattara was elected as the new President of Côte d’Ivoire
through the UN-certified presidential elections, which was organised with the intention to
enhance the peace process between the conflicting parties. Yet, the elections did not result in
the success that they had hoped for; instead, the country fell back into cruel civil war after the
refusal of the leader Laurent Gbagbo to step down. Laurent Gbagbo instructed his troops,
paramilitaries, and mercenaries to use extreme violence to imbed his position as leader of the
country and suppress every kind of opposition. Five months later, Laurent Gbagbo was finally
arrested and the legitimate President was inaugurated on 21 May 2011. 473 UNOCI has
remained on the ground to support the new Ivorian Government, which appeared highly
necessary. At the time of writing, the security situation in Côte d’Ivoire remains fragile; on 25
March 2013, the UN peacekeeping missions in Côte d’Ivoire and Liberia have been
reinforcing their patrols after an attack by armed elements.474
II. The Application of the Fundamental Principles
(1) Non-use of force beyond self-defence - When considering the fundamental principle of
non-use of force beyond self-defence, we should first analyse the UN Security Council’s
resolutions authorising UNOCI. It is clear that in two resolutions, the Council has bestowed
tasks upon the UN forces without a corresponding authorisation to use ‘all necessary means’
to successfully fulfil the mandate.475
Consequently, in order to understand the intention of the UN Security Council, we should according to the reasoning of the UN Legal Counsel on the occasion of UNOMIL - analyse
the nature of the bestowed tasks, the reports of the UN Secretary-General concerning UNOCI,
and the history and circumstances of the adoption of resolutions. When taking into account
the tasks assigned to the UN forces in resolution 1584 - to collect and to dispose arms and
related material -476 it seems clear that the UN forces would have to resort to the use of force
beyond self-defence in order to successfully carry out their mandate. However, it should be
noted that the UN Security Council explicitly invoked the use of ‘all necessary means’ in the
other resolutions concerning UNOCI. Consequently, the choice of the UN Security Council
not to invoke these words in resolution 1584 - contrarily to the other resolution - could imply
472
United Nations Security Council, 2011. Res 2000. UN Doc. S/RES/2000.
United Nations Department of Peacekeeping Operations, [date unknown]. United Nations Operation in Côte d'Ivoire, UNOCI
(April 2004 - present). Accessed 2 May 2013: http://www.un.org/en/peacekeeping/missions/unoci/background.shtml.
474
United
Nations
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Accessed
4
April
2013:
http://www.un.org/apps/news/morenews.asp?Cr=UNOCI&Cr1.
475
United Nations Security Council, 2005. Res 1584. UN Doc. S/RES/1584, 2; United Nations Security Council, 2007. Res
1765. UN Doc. S/RES/1765, 1.
476
United Nations Security Council, 2005. Res 1584. UN Doc. S/RES/1584, 2.
473
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
91
that the UN Security Council did not have the intention to authorise the use of force beyond
self-defence.
(2) Impartiality - In terms of the fundamental principle of impartiality, the UN forces have
been successful in upholding the principle throughout the mission. Some argue that the UN
Security Council has not been impartial due to its endorsement of Ouattara as President in
resolution 1962. 477 However, given that the UN Security Council had monitored the
organization of free, fair, open and transparent democratic elections, it is not surprising that
the Council confirmed the results of the elections. The Council has never indicated which
outcome it preferred, rather it facilitated free and democratic elections so that the nationals
could themselves decide which party should govern the country.
(3) Consent of the host state - On the issue of the fundamental principle of consent; it is
clear that consent was present throughout the entire mission. In resolution 1528, the UN
Security Council referred to the message addressed to the UN Security Council on 10
November 2003 by the President of the Republic of Côte d’Ivoire in which he requested the
transformation of the United Nations in Côte d’Ivoire (MINUCI) into a peacekeeping
operation.478 Yet, in subsequent resolutions, the UN Security Council did not refer to the
consent of the host state when re-mandating the UN mission. Some argue that the UN
Security Council could not obtain the consent of the host state, as there was no legitimate
government. Others argue that the host state did consent to the emplacement and further
functioning on the ground through the peace treaties signed by the Ivorian government and
the other parties to the conflict.
III. Analysis of UNOCI
 In the case of UNOCI, it is uncertain whether this operation can be classified as a
militarised UN peacekeeping operation. As we have seen in the evaluation of the
three fundamental principles, it is unclear whether or not they were respected
throughout the mission.
5.9. South Sudan
I. Facts and mandate
On July 9, 2011, South Sudan became the newest country in the world. The establishment of
the country is the result of a six-year peace process, which began with the signing of the
Comprehensive Peace Agreement (CPA) in 2005. 479 In response to this new political
477
United Nations Security Council, 2010. Res 1962. UN Doc. S/RES/1962, preamble.
United Nations Security Council, 2004. Res 1528. UN Doc. S/RES/1528, preamble.
479
United Nations Department of Peacekeeping Operations, [date unknown]. The United Nations Mission in the Republic of
South
Sudan,
UNMISS
(July
2011
present).
Accessed
2
May
2013:
http://www.un.org/en/peacekeeping/missions/unmiss/background.shtml.
478
92
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
evolution, the UN Security Council brought an end to the mandate of the United Nations
Mission in Sudan (UNMIS) and replaced it with the United Nations Mission in South Sudan
(UNMISS) after determining that the situation in South Sudan continued to constitute a threat
to international peace and security in the region. 480 The UN forces were tasked “to
consolidate peace and security, and to help establish conditions for development”. 481
Furthermore, the UN Security Council authorised the UN forces to “use all necessary means
[…] to carry out its protection mandate”.482 Thus, the UN forces are authorised to use force
beyond self-defence to protect civilians, but not for the implementation of its other tasks.
Between April 2011 and January 2012, a renewed outbreak of tensions occurred, claiming the
lives of more than 2,000 people.483 South Sudan became the scene of a widespread ethnic
conflict. Critics blamed the UN forces of UNMISS for being passive in the run-up to and
duration of the clashes between the different troops.484
On April 12, 2012, the President of the Security Council expressed his deep and growing
concern about “the escalating conflict between Sudan and South Sudan […] as the violence
threatens to return both countries to full scale war and the period of tragic loss of life and
suffering, destroyed infrastructure, and economic devastation, which they have worked so
hard and long to overcome”.485 On the time of writing, the security situation in South Sudan
is still alarming.
Since 2013, the UN peacekeeping mission itself has become a target of the violence. On April
9, 2013, unidentified armed assailants killed five Indian UN peacekeepers in the ambush of
South Sudan.
II. The Application of the Fundamental Principles
(1) Non-use of force beyond self-defence - As to the fundamental principle of non-use of
force beyond self-defence, this is non-existent in the activities of UNMISS. The mandate of
the mission, based on Chapter VII of the UN Charter, authorises the forces to use force
against any party found attacking civilians.486
(2) Impartiality - As to impartiality, this fundamental principle would appear generally not to
have been adhered to in the operation until recently. Although it is the mission’s pledge to
480
United Nations Security Council, 2011. Res 1996. UN Doc. S/RES/1996, preamble and 1.
United Nations Security Council, 2011. Res 1996. UN Doc. S/RES/1996, 3.
482
United Nations Security Council, 2011. Res 1996. UN Doc. S/RES/1996, 4.
483
United Nations Department of Peacekeeping Operations, [date unknown]. The United Nations Mission in the Republic of
South
Sudan,
UNMISS
(July
2011
present).
Accessed
2
May
2013:
http://www.un.org/en/peacekeeping/missions/unmiss/background.shtml.
484
J., HEMMER, 2013. ‘CRU Policy Brief. ‘We are laying the groundwork for our own failure’. The UN Mission in South Sudan
and its civilian protection strategy: an early assessment’. 25 Clingendael Institute and NOREF 2. Accessed 5 April 2013:
http://www.clingendael.nl/publications/2013/20130100_cru_policybrief_no_25_unmiss.pdf.
485
United Nations Security Council, 2012. Statement by the President of the Security Council. UN Doc. S/PRST/2012/12.
486
M., ŠMUCKEROVA, 2012. ‘ “UN-led” or “UN-authorized” operation?: discerning among the UN Security Council’s mandated
operations’. 4 TLQ 321.
481
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
93
‘act independently and impartial’487 , it is argued that Force Commander Moses Obi has sent
clear instructions to his troop to not challenge the Sudan People’s Liberation Army.
Apparently, he prohibited his troops to step in when the government troops attempted to
attack civilians. This instruction is clearly given to the UN forces with the purpose to avoid
every confrontation with the host government. However, with this message, the UN mission
damages its own credibility as an impartial security provider.488
(3) Consent of the host state - When considering the fundamental principle of consent, it is
clear that from the subsequent reports of the UN Secretary-General on Sudan that, even
before the official independence, the Government of South Sudan had requested the
emplacement and functioning of a UN-led mission within its territory.489
III. Analysis UNMISS
 The UN peacekeeping operation in South Sudan is engulfed in inter-communal
violence between warring ethnic parties. Not only vulnerable civilians, but also the
UN peacekeepers themselves are the target of outrageous violence. The UN
peacekeepers may be authorised to use force beyond self-defence, but they are clearly
not equipped to successfully protect civilians and the UN mission itself.
 History has shown that UN peacekeeping missions have never been successful in
controlling intra-state conflict, characterised by inter-communal violence between
warring ethnic parties. It is time for the UN Security Council to realise that they have
the responsibility to authorise an enforcement operation to effectively protect
civilians against violence and eventually to end the conflict. Hereafter, the UN
Security Council may consider authorising a UN peacekeeping mission to maintain
the peace and security in a country while upholding the three fundamental principles
of UN peacekeeping.
487
United Nations Security Council, 2011. Res 1996. UN Doc. S/RES/1996, preamble.
J., HEMMER, 2013. ‘CRU Policy Brief. ‘We are laying the groundwork for our own failure’. The UN Mission in South Sudan
and its civilian protection strategy: an early assessment’. 25 Clingendael Institute and NOREF 4. Accessed 5 April 2013:
http://www.clingendael.nl/publications/2013/20130100_cru_policybrief_no_25_unmiss.pdf.
489
United Nations Security Council, 2011. Report of the Secretary-General on the Sudan. UN Doc. S/2011/239. New York:
United Nations, 90; United Nations Security Council, 2011. Special Report of the Secretary-General on the Sudan. UN Doc.
S/2011/314. New York: United Nations, 1 and 35.
488
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THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
6. Conclusion on Research Question 1
 The first part of the research concerned the question on how the concept of traditional
UN peacekeeping has been transformed into militarised UN peacekeeping. UN
peacekeeping operations were initially established in an inter-state conflict to
supervise a ceasefire or to monitor a buffer zone.490 However, since the end of the
Cold War UN troops have mostly been deployed in intra-state conflicts, which are
fought by government troops and unorganised non-state entities; new challenges
include assistance in national reconciliation, protection of civilian populations,
humanitarian operations during continuing warfare and the re-establishment of an
effective government.491 In response, the UN Security Council has started mandating
the UN forces with more complex and robust mandates, often under Chapter VII. In
addition, the UN Security Council has often become reluctant to respect the three
fundamental principles of UN peacekeeping. The militarisation of the UN
peacekeeping operations has precisely manifested itself in the disrespect of at least
one of these principles.
 The evolution of the UN peacekeeping has clearly indicated that almost every UN
peacekeeping operation has become militarised at one point. Some operations were
already militarised since their establishment, particularly when they were emplaced
without the consent of the host state or when they were authorised to use force
beyond self-defence from the beginning. Other UN peacekeeping operations were
established as traditional UN peacekeeping operations - by respecting the three
fundamental principles from the start - but became militarised as soon as the situation
on the ground deteriorated.
 Throughout this Chapter, it has been made clear that UN peacekeeping operations are
fundamentally ill suited to make peace in intra-state conflict. Not only do they not
succeed in protecting the population against the outrageous violence, they also
become victims of the violence themselves. After decades of trial and error, it is time
that the UN Security Council realises that the concept of UN peacekeeping should not
be used to wage a war.
 Accordingly, the UN Security Council should return to the traditional concept of UN
peacekeeping - guided by the three bedrock principles - and only deploy UN
peacekeepers within a territory to keep a peace. Returning to traditional UN
peacekeeping does not mean that civilians will be abandoned. On the contrary, they
will find a higher protection under the supervision of enforcement operations, which
490
C., GRAY, 2008. International Law and the Use of Force. 3rd ed. Oxford: Oxford University Press, 272.
United Nations General Assembly and Security Council, 1995. Supplement to an Agenda for Peace: Position Paper of the
Secretary General on the Occasion of the Fiftieth Anniversary of the United Nations. Fiftieth Session GA, Fiftieth Year SC. UN
Doc. A/50/60 and S/1995/1. New York: United Nations, 34.
491
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
95
are appropriately equipped and are empowered to use preventive force to protect
civilians.
 Accordingly, the UN Security Council should look for alternatives to the use of
militarised UN peacekeeping operations that, until now, enforce the peace. Hereby,
the UN Security Council may think of authorising a state or a coalition of states to
establish an enforcement operation to enforce the peace. Once the peace has been
established, the Council may consider establishing a UN peacekeeping operation that
may keep the established peace.
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THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
IV. Research Question 2: What constitutes
the Legal Framework of Militarised UN
Peacekeeping Operations?
1. Introduction
Neither the UN General Assembly, nor the UN Security Council nor the UN SecretaryGeneral has defined the legal framework of UN peacekeeping operations. Only the three
fundamental principles of UN peacekeeping operations have been reiterated over and over
again. Since the judgement of the International Court of Justice in the Certain Expenses case
in 1962, the constitutionality of UN peacekeeping in general has no longer been doubted.492 In
this judgement, the Court has confirmed that the UN Security Council and General Assembly
have the power to establish UN peacekeeping operations. It has, however, not taken the
opportunity to clarify the legal framework of UN peacekeeping into detail, especially when
identifying the specific legal provision within the UN Charter.
Accordingly, it may be questioned whether it is meaningful to analyse the legal framework of
militarised UN peacekeeping operations. Several academics and judges of international courts
consider it highly irrelevant to analyse the constitutional basis of UN peacekeeping operations
in general.493 For example, according to the drafters of the Capstone Doctrine, the search for a
specific legal basis in the UN Charter can be misleading for ‘the purposes of operational
planning, training and mandate implementation’. In addition, the drafters observed that when
the troop contributing countries and the police contributing countries are identifying the
nature of a UN peacekeeping operation and the capabilities needed to support it, they should
use the following elements as guidelines: (1) the tasks assigned by the UN Security Council
mandate; (2) the concept of operations and accompanying mission rules of engagement for
the military component; and (3) the directives on the use of force for the police component.494
In a decision of the Special Court for Sierra Leone, it is stressed that the determination of an
exact legal basis has no practical significance as UN peacekeeping missions are deployed
based on the consent of the parties of the conflict. Accordingly, the legitimacy of these UN
492
Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ
Reports 1962.
493
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 66.
494
United Nations Department of Peacekeeping Operations and Department of Field Support, 2008. United Nations
Peacekeeping Operations. Principles and Guidelines (‘Capstone Doctrine’). New York: United Nations, 14.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
97
missions should no longer be questioned.495 This thesis cannot agree with this statement for
the following reasons:
(1) The UN Security Council does not always obtain the consent of the host state.
Consequently, the demand for the legal basis of UN peacekeeping cannot simply replace the
consent of the host state, as this is not always present. 496
(2) The UN Security Council often attempts to obtain the consent of the host state although it
is not a legal prerequisite for the emplacement and functioning of the mission within the
territory. As we will see in the detailed analysis of the UN Charter, only Chapter VI-based or
consent-based operations require the prior consent of the host state.497 Thus, before we can
even consider the role of consent in a given operation, we need to determine the legal basis whether it constitutes an operation under Chapter VI or VII or whether it forms a consentbased operation - of this operation.
(3) It is true that the legitimacy of UN peacekeeping an sich is not questioned. However, as
the evolution of UN peacekeeping in Chapter has clearly indicated, the nature of UN
peacekeeping has changed; UN peacekeeping operations have been militarised.498 Yet, neither
the UN organs, nor the member States have ever questioned the legality of militarised UN
peacekeeping.
Therefore, in order to answer research question 2, this thesis will examine the legal
framework of UN peacekeeping operations and whether this permits UN peacekeeping
operations with a militarised character. Hereby, we will limit our research to the legal
framework of operations established by the UN Security Council. In the past, academics have
identified various legal frameworks of UN peacekeeping:
(1) The legal framework of UN peacekeeping operations has mostly been sought by the
explicit powers of the UN Security Council under Chapter VI or VII of the Charter of the
United Nations.
(2) An academic minority has, however, argued that the constitutional basis of UN
peacekeeping may be found in implied or inherent powers.499 This theory, however, found
little support, as the explicit provisions of Chapters VI and VII are sufficient as a legal basis.
(3) Other academics, including the UN Secretary-General, Dag Hammarskjöld, have argued
that the legal basis of UN peacekeeping lies somewhere between Chapter VI and VII, namely
495
Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao. Judgement of 2 March 2009, Special Court for Sierra
Leone, Trial Chamber I, Case SCSL 04-15-T-1234, 222.
496
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 66.
497
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 66-67.
498
Definition of ‘militarisation’: the changing nature of UN peacekeeping operations from a UN operation, which has entered the
territory with the consent of the host state and uses peaceful and impartial means to keep a peace, to a UN operation, which has
entered the territory without the consent of the state and/or uses force beyond self-defence - without upholding the impartial
character - to keep or establish a peace.
499
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 109-114.
98
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
in the unwritten ‘Chapter VI½’.500 They argue that the functions of UN peacekeeping go
further than the pacific settlement of disputes under Chapter VI of the UN Charter, but do not
go as far the enforcement measures under Chapter VII of the UN Charter. This thesis is,
however, convinced that the theory of ‘Chapter VI ½’ is imprecise and is not suitable to serve
as a legal basis for UN peacekeeping.
(4) Finally, the fundamental principle of consent has been pointed out as the constitutional
basis for UN peacekeeping.501 In particular, when the UN Security Council violates the
principles of state sovereignty, non-use of force, and/or non-intervention by emplacing a
militarised UN peacekeeping operation within the territory, this action must have a specific
legal basis, which may be found in the consent of the host state.
This thesis will limit its research to the explicit provisions of Chapters VI and VII of the UN
Charter (see Chapter IV, 3 and 4) and the principle of consent (see Chapter IV, 5) as the
starting point for the legal framework of militarised UN peacekeeping:
(1) This thesis will first re-analyse the different Chapters of the UN Charter and its specific
provisions in order to define whether the UN Charter may serve as the legal basis for
militarised UN peacekeeping. According to article 29 of the UN Charter, “the Security
Council may establish […] subsidiary organs as it deems necessary for the performance of its
functions.” 502 The UN Security Council possesses the broad discretion to decide which
subsidiary organs are deemed necessary. Consequently, article 29 of the UN Charter may
serve as a legal basis for the procedural or institutional side of the establishment of UN
peacekeeping operations. However, article 29 of the UN Charter is not a sufficient legal basis
for UN peacekeeping and shall always be linked to a provision in Chapter VI or VII. 503
Therefore, we shall make a detailed analysis of the Chapters VI and VII and of the specific
provisions within each Chapter, in order to determine whether it leaves room for militarised
UN peacekeeping operations. (See Chapter IV, 3 and 4)
(2) We will research whether the fundamental principle of consent of the host state may serve
as a legal basis for militarised UN peacekeeping. (See Chapter IV, 5)
500
O., BRING, 2011. ‘The Dag Hammarskjöld Approach to International Law’ in DAG HAMMARSKJÖLD FOUNDATION, The
Development Dialogue: The United Nations and Regional Challenges in Africa - 50 Years After Dag Hammarskjöld. No. 57.
Uppsala: The Dag Hammarskjöld Centre, 54; N.D., WHITE, 1997. Keeping the Peace. The United Nations and the maintenance
of international peace and security. 2nd ed. Manchester: Manchester University Press, 226.
501
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 469.
502
UN Charter art. 29.
503
A., ORAKHELASHVILI, 2002-2003. ‘The Legal Basis of the United Nations Peace-Keeping Operations’. 43 Va. J. Int’l. L. 503.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
99
2. Chapter VI or VII of the UN Charter?
2.1. Distinction between Chapter VI and VII of the UN Charter
The UN Security Council’s powers in regards to dealing with disputes are set out in Chapters
VI and VII:
(1) Chapter VI is applicable on the pacific settlement of disputes and envisages a supportive
and facilitating role for the UN Security Council by helping the parties of the dispute to reach
a peaceful settlement.504 In addition, it gives the UN Security Council the possibility to
investigate any dispute, or any situation, which may lead to international friction or give rise
to a dispute. In certain cases, the UN Security Council may recommend appropriate measures
or methods of adjustment.505
(2) Chapter VII - entitled ‘Action with Respect to Threats to the Peace, Breaches of the
Peace, and Acts of Aggression - gives the UN Security Council the power to make any
recommendations, or to decide what measures shall be taken in order to prevent an
aggravation of the situation 506 Specifically, the UN Security may either decide upon
recommendations or provisional measures, or take non-military or military enforcement
measures after determining the existence of a threat to the peace, breach of the peace, or act
of aggression.507
As noted by the International Criminal Tribunal for the Yugoslavia in the Prosecutor v. Tadic
case, the UN Security Council “enjoys a wide margin of appreciation in choosing the course
of action” after determining that the conflict poses a threat to international peace and
security.508 The Council can either decide to act under Chapter VI - through the pacific
settlement of disputes - or it can decide to exercise its exceptional powers under Chapter
VII.509 Yet, it is important to notice that the UN Security Council is not required to indicate
under which specific article of the UN Charter it is operating, nor whether it is acting under
Chapter VI or VII in general, nor whether there is a triggering event influencing the decision
to act under Chapter VII. Consequently, it is often unknown under which Chapter of the UN
Charter the Council is operating. The difference is, however, important: Chapter VI may only
serve as a legal basis for the peaceful settlement of conflicts; Chapter VII, on the other hand,
may serve as a legal basis for enforcement measures.
504
UN Charter art. 33.
UN Charter art. 34 and 36.
506
UN Charter art. 39 - 42.
507
N., KRISCH, 2013. ‘Introduction to Chapter VII: The General Framework’ in B., SIMMA, et al., The Charter of the United
Nations: a Commentary. 3rd ed. Oxford: Oxford University Press, 1243.
508
Prosecutor v. Tadic. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, ICTY Case
IT-94-1-AR72, 31.
509
Prosecutor v. Tadic. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, ICTY Case
IT-94-1-AR72, 31.
505
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THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
2.2. How to determine Whether the Operation falls under Chapter
VI or VII?
The interpretation of UN Security Council resolutions will determine whether an operation
falls under Chapter VI or VII.510 Generally, two kinds of approaches are recognised: the
textually oriented approach and the purposive approach.511 In the textually oriented approach,
the exact agreed-upon text is given precedence over the supposed intention of the UN
Security Council when writing its resolution.512 In the purposive approach, the real intentions
of the UN Security Council, embedded in the UN Security Council’s resolution, are
scrutinised.
In this thesis, we will take both approaches into account by examining the exact agreed-upon
text, and analysing the implicit intentions of the UN Security Council. Consequently, in order
to determine whether the UN Security Council has operated under Chapter VI or VII, we have
to analyse the wording used in the UN resolution as this may indicate the implicit intention of
the Council.513
When the UN Security Council has incorporated one or more of the following elements into
its resolution, it is clear it was acting under Chapter VII of the UN Charter:
(1) A finding of a threat to the peace, breach of the peace or act of aggression - When the
UN Security Council considers the conflict to be a threat to the peace, breach of the peace or
act of aggression, this indicates that it is acting under Chapter VII of the UN Charter. Article
39 of the UN Charter implies that:
“The Security Council shall determine the existence of any threat to the peace,
breach of the peace, or act of aggression and shall make recommendations, or decide
what measures shall be taken in accordance with Articles 41 and 42, to maintain or
restore international peace and security”.
However, in recent times, the UN Security Council has started to use the term ‘threat to
international peace and security’ when passing a resolution under Chapter VII.514 Does this
have the same meaning as ‘threat to the peace, breach of the peace or act of aggression’? And
if so, why is the UN Security Council not using this wording instead of referring to the
conflict as a threat to international peace and security? The ‘threat to the peace’ must
normally be international in nature.515 However, it cannot be denied that the UN Security
510
H., NASU, 2009. International Law on Peacekeeping: A Study of Article 40 of the UN Charter. Leyden: Martinus Nijhoff
Publishers, 111.
511
N., KRISCH, 2013. ‘Introduction to Chapter VII: The General Framework’ in B., Simma, et al., The Charter of the United
Nations: a Commentary. 3rd ed. Oxford: Oxford University Press, 1264; M.C., WOOD, 1998. ‘The Interpretation of Security
Council Resolutions’. 2 MPYUNL 73.
512
N., KRISCH, 2013. ‘Introduction to Chapter VII: The General Framework’ in B., Simma, et al., The Charter of the United
Nations: a Commentary. 3rd ed. Oxford: Oxford University Press, 1264.
513
N., KRISCH, 2013. ‘Introduction to Chapter VII: The General Framework’ in B., Simma, et al., The Charter of the United
Nations: a Commentary. 3rd ed. Oxford: Oxford University Press, 1265.
514
C., GRAY, 2008. International Law and the Use of Force. 3rd ed. Oxford: Oxford University Press, 257; J., SLOAN, 2011. The
Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 83.
515
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 83.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
101
Council often intervenes in matters that are supposedly not ‘international’ in nature.
According to article 2(7) of the UN Charter, the UN Security Council does not have the
power to ‘intervene in matters which are essentially within the domestic jurisdiction of any
state’. Thus, to avoid any intervention that may be seen as ‘domestic’, as precluded (with
exceptions) by article 2(7), the UN Security Council seems to prefer the wording
‘international threat to peace and security’ to put the threat in an international context.516
(2) The express invocation of Chapter VII (or an article thereafter) - In recent years, the
UN Security Council has adopted the practice of invoking Chapter VII of the UN Charter
when authorising the deployment of a UN peacekeeping operation in order to maintain or
restore the international peace and security.517
(3) Reference to articles 25, 48 and 49 UN Charter - Article 25 of the UN Charter notes
that, “the members of the United Nations agree to accept and carry out the decisions of the
Security Council in accordance with the present Charter”. Article 48(1) of the UN Charter
includes that
“The action required to carry out the decisions of the Security Council for the
maintenance of international peace and security shall be taken by all the members of
the United Nations or by some of them, as the Security Council may determine”.
Article 49 of the UN Charter includes that:
“The members of the United Nations shall join in affording mutual assistance in
carrying out the measures decided upon by the Security Council”.
Consequently, it is clear that Chapter VII of the UN Charter has a mandatory character. When
the UN Security Council uses words signalling an intention to bind, it can be derived that the
Council is acting under Chapter VII. For example, in the case of ONUC, the UN Security
Council did not explicitly invoke Chapter VII in the two resolutions - Resolution 143 and 145
- establishing ONUC.518 However, as Miller noted, the explicit reference to the articles 25 and
49 in Resolution 146 made it clear that the UN Security Council was acting under Chapter
VII.519
(4) The verb use signalling an intention to bind or not to bind - The UN Security Council
typically uses a range of verbs to indicate the mandatory or recommendatory character of UN
Security Council resolutions. For example, the verbs ‘decide’ and ‘order’ clearly indicate the
intention to bind the parties of the conflict. Contrarily, the verbs ‘recommend’ and ‘appeal’
give a clear intention to make recommendations. However, the UN Security Council also uses
verbs that are more equivocal, such as ‘request’, ‘call upon’, ‘urge’, or ‘demand’.520 In these
occasions, we will have to look for more elements that indicate whether the UN Security
516
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 84-85.
United Nations Department of Peacekeeping Operations and Department of Field Support, 2008. United Nations
Peacekeeping Operations. Principles and Guidelines (‘Capstone Doctrine’). New York: United Nations, 14.
518
United Nations Security Council, 1960. Res 143. UN Doc. S/4387; United Nations Security Council, 1960. Res 145. UN Doc.
S/4405.
519
E.M., MILLER, 1961. ‘Legal aspects of the United Nations action in the Congo’. 55(1) AJIL 4; United Nations Security
Council, 1960. Res 146. UN Doc. S/4426, 5.
520
N., KRISCH, 2013. ‘Introduction to Chapter VII: The General Framework’ in B., Simma, et al., The Charter of the United
Nations: a Commentary. 3rd ed. Oxford: Oxford University Press, 1265.
517
102
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Council had the intention to bind or not. In practice, the Council generally uses the verb
‘demand’ in combination with a reference to Chapter VII of the UN Charter, thereby
indicating its intention to bind the states.
(5) An authorisation to use ‘all necessary means’521 or similar language signalling the
authorisation to use force beyond self-defence, must have its basis in Chapter VII522 - In
its resolutions, the UN Security Council has used the following terms to authorise the use of
force beyond self-defence: the authorisation to ‘use all necessary means’523, to take ‘all
necessary measures’524, or to ‘take the necessary action’525 (or wording to a similar effect). As
we have seen above, every UN peacekeeper has the inherent right to use force in self-defence.
However, only under Chapter VII, the UN Security Council can authorise measures that
include the use of force beyond self-defence. Consequently, when it uses the words listed
above, it can indicate an intention to act under Chapter VII.
3. Chapter VI of the UN Charter
Chapter VI of the UN Charter is applicable on the pacific settlement of disputes.526 It
empowers the UN Security Council to “seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or
other peaceful means of their own choice.”527 Furthermore, the UN Security Council may
investigate any dispute and recommend appropriate procedures or methods of adjustment.528
None of the six articles of Chapter VI make any reference to the establishment of UN
peacekeeping operations as a way of assisting in the pacific settlement of the dispute.
Accordingly, this thesis will research whether Chapter VI of the UN Charter may serve as a
legal basis for militarised UN peacekeeping.
There is no consensus about the role of Chapter VI in UN peacekeeping. Some authors argue
that Chapter VI cannot serve as a legal basis. Other authors argue that Chapter VI lends itself
very well as a legal basis for UN peacekeeping.
521
United Nations Security Council, 2003. Res 1509. UN Doc. S/RES/1509; United Nations Security Council, 2004. Res 1528.
UN Doc. S/RES/1528, 8; United Nations Security Council, 2004. Res 1565. UN Doc. S/RES/1565, 6; United Nations Security
Council, 2010. Res 1925. UN Doc. S/RES/1925, 11; United Nations Security Council, 2011. Res 1996. UN Doc. S/RES/1996, 4.
522
R., MCLAUGHLIN, 2008. ‘The Legal Regime Applicable to Use of Lethal Force When Operating under a United Nations
Security Council Chapter VII Mandate Authorising ‘All Necessary Means’’, 12 JCSL 390.
523
United Nations Security Council, 2003. Res 1509. UN Doc. S/RES/1509; United Nations Security Council, 2004. Res 1528.
UN Doc. S/RES/1528, 8; United Nations Security Council, 2004. Res 1565. UN Doc. S/RES/1565, 6; United Nations Security
Council, 2010. Res 1925. UN Doc. S/RES/1925, 11; United Nations Security Council, 2011. Res 1996. UN Doc. S/RES/1996, 4.
524
United Nations Security Council, 1993. Res 837. UN Doc. S/RES/837, 5; United Nations Security Council, 1999. Res 1272.
UN Doc. S/RES/1272, 1 and 4.
525
United Nations Security Council, 2002. Res 1410. UN Doc. S/RES/1410, 6; United Nations Security Council, 2000. Res
1291. UN Doc. S/RES/1291, 8.
526
A., ORAKHELASHVILI, 2002-2003. ‘The Legal Basis of the United Nations Peace-Keeping Operations’. 43 Va. J. Int’l. L. 490.
527
UN Charter article 33.
528
UN Charter article 34-36
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
103
(1) Arguments against Chapter VI as constitutional basis
I. A first argument may be found in the wording of Chapter VI itself. As mentioned
above, Chapter VI does not envisage the establishment of UN peacekeeping
operations. When analysing the provisions of Chapter VI, we could argue that none
of the articles serves very well as a legal basis for UN peacekeeping. Under article
33(2), the UN Security Council “shall, when it deems necessary, call upon the parties
to settle their disputes by such means”. Article 34 gives the UN Security Council the
power to “investigate any disputes, or any situations which might lead to
international friction or give rise to a dispute”. And finally, according to article 36(1)
of the UN Charter, the UN Security Council “may at any stage of a dispute of the
nature referred to in article 33 - a dispute that is likely to endanger the maintenance
of international peace and security - or a situation of like nature, recommend
appropriate procedures or methods of adjustment”.529 It is true that none of these
articles make any reference to the possibility to take measures such as the
establishment of a UN peacekeeping operation.
II. A second argument may be found in the absence of any invocation of Chapter VI
by the UN Security Council when establishing a UN peacekeeping operation.
III. A third argument lies in the fact that the UN peacekeeping always involves a
certain amount of force given that UN peacekeepers have the inherent right to use
force in self-defence. 530 McCoubrey and White argue that UN peacekeeping
constitutes a ‘concrete military presence’ and therefore cannot fall under Chapter VI,
which where UN peacekeeping can only serve as the basis for peaceful settlement of
disputes.531
(2) Arguments in favour of Chapter VI as constitutional basis
I. According to the Capstone Doctrine, the UN peacekeeping operations have
traditionally been linked to Chapter VI of the UN Charter.532 A former UN SecretaryGeneral has confirmed that at least one UN peacekeeping operation, the United
Nations Observation Group In Lebanon (UNOGIL), deployed between June and
December 1958, fell within the margins of Chapter VI of the UN Charter and thus did
not give rise to any constitutional objections.533
529
UN Charter art. 36, para. 1.
D., CIOBANU, 1978. ‘The Power of the Security Council to Organize Peace-Keeping Operations’ in A. CASSESE (ed.), United
Nations peace-keeping, Legal Essays. Alphen aan den Rijn: Sijthoff & Noordhoff, 15-53, 16-17.
531
H., MCCOUBREY, and N.D., WHITE, 1996. The Blue Helmets: Legal Regulations of United Nations Military Operations.
Aldershot: Dartmouth Publishing Company Limited, 50-51.
532
United Nations Department of Peacekeeping Operations and Department of Field Support, 2008. United Nations
Peacekeeping Operations. Principles and Guidelines (‘Capstone Doctrine’). New York: United Nations, 13.
533
United Nations General Assembly, 1958. Summary Study of the Experience Derived from the Establishment and Operation of
the Force: Report of the Secretary-General. Thirteenth Session, Annexes, Agenda Item 65. UN Doc. A/3943, 8-33. New York:
United Nations, 180.
530
104
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
II. In the Certain Expenses case, the International Court of Justice noted that the
General Assembly has the power to establish UN peacekeeping operations under
article 11(2) or 14 of the UN Charter, without feeling the necessity to determine
which article of the two would be more appropriate534 Consequently, the UN Security
Council, which has the primary responsibility for the maintenance of international
peace and security, may also exercise a power which may also be exercised by the
General Assembly. Accordingly, the establishment of a UN peacekeeping operation
can only be interpreted as a method of adjustment under article 36 UN Charter, and
not as procedure. Under article 36, the Security Council may recommend all methods
of adjustment, such as UN peacekeeping operations, that it considers necessary to
avoid the continuance of any dispute or situation of like nature, which is likely to
endanger the maintenance of international peace and security. In the Certain
Expenses case, the International Court of Justice concluded that any UN
peacekeeping operation not involving ‘preventive of enforcement measures’ against
any state, may be established outside Chapter VII.535 Chapter VI only authorises the
peaceful settlement of disputes, which does not include enforcement measures.536
Even when accepting that Chapter VI may serve as a legal basis for UN peacekeeping in
general, it can be reasonably be questioned if it may also serve as a legal basis for militarised
UN peacekeeping. Chapter VI is characterised by three elements:
(1) The measures under Chapter VI are recommendatory, which implies that the UN Security
Council has to obtain the consent of the host state
(2) The measures under Chapter VI can only be non-forceful in nature537
(3) The UN peacekeepers have to uphold their impartial role in the conflict.
From the analysis of these fundamental principles, it is clear that Chapter VI of the UN
Charter may not serve as a legal basis for militarised UN peacekeeping operations. After all,
Chapter VI requires the observance of the three fundamental principles of traditional UN
peacekeeping. However, as already mentioned above, militarised UN peacekeeping is
characterised by the disregard of at least one of these principles.
534
Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ
Reports 1962, 172.
535
Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ
Reports 1962, 177.
536
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 80.
537
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 79.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
105
4. Chapter VII of the UN Charter
4.1. Introduction
Chapter VII refers to the power of the UN Security Council to take action in the event that
there are threats to the peace, breaches of the peace, and acts of aggression. Under Chapter
VII, the UN Security Council may either decide upon recommendations or provisional
measures, or take non-military or military enforcement measures after determining the
existence of a threat to the peace, breach of the peace, or act of aggression.538 Chapter VII has
a mandatory character and is the only Chapter of the UN Charter that empowers the Council
to authorise forceful action.
Since the turn of the century, the UN Security Council has regularly invoked Chapter VII
when establishing a UN peacekeeping operation, without taking the effort to point out the
explicit provision. Establishing a UN peacekeeping operation under Chapter VII of the UN
Charter raises questions about the nature and scope of this operation;539 only under Chapter
VII, the UN Council has the power to authorise UN peacekeepers to use of offensive force. In
addition, measures taken under Chapter VII have a coercive character, making the consent of
the host possibly redundant. However, there is an important nuance to be made. When the UN
Security Council is acting under Chapter VII, this does not necessarily mean that the UN
peacekeepers are authorised to use force beyond self-defence and do not have the obligation
to uphold their impartial role. Consequently, this thesis is convinced that it is important to
analyse in detail every article of Chapter VII in order to determine which article may serve as
a legal basis for militarised UN peacekeeping operations.
According to Gray, it is unnecessary to identify the precise legal basis for the establishment of
UN peacekeeping operations, as it is clear from the practice of the Council this is not required
for action under Chapter VII; “the use of the language of article 39 is apparently
sufficient”.540 Yet, as we will see in this section, article 39 per se may not serve as a legal
basis for UN peacekeeping.
In the following section, we will analyse articles 39, 40, 41, and 42 of the UN Charter in great
detail. Hereby, in doing so, we will consider what the legal prerequisites exactly entail, and
whether the specific article may serve as a constitution basis for the establishment of
militarised UN peacekeeping operations.
538
N., KRISCH, 2013. ‘Introduction to Chapter VII: The General Framework’ in B., SIMMA, et al., The Charter of the United
Nations: a Commentary. 3rd ed. Oxford: Oxford University Press, 1243.
539
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 471.
540
C., GRAY, 2008. International Law and the Use of Force. 3rd ed. Oxford: Oxford University Press, 256.
106
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
4.2. Article 39 of the UN Charter
Article 39 of the UN Charter embodies the gateway to the powers of the UN Security Council
under Chapter VII. According to article 39 of the UN Charter, the UN Security Council “shall
determine the existence of any threat to the peace, breach of the peace, or act of aggression
and shall make recommendations, or decide what measures shall be taken in accordance with
article 41 and 42, to maintain or restore international peace and security”.541 As indicated in
article 1(1), the maintenance of international peace and security is the most important task of
the UN Security Council.542
4.2.1. Legal Requirements under Article 39 of the UN Charter
Four important requirements are incorporated in article 39 of the UN Charter:
(1) Existence of threat to the peace, breach of the peace, or act of aggression - As already
mentioned above, the UN Security Council possesses a broad margin of appreciation to
determine whether a situation constitutes a threat to the peace, a breach of the peace, or an act
of aggression.543 However, the Council is not required to expressly refer to article 39 of the
UN Charter or to publicly defend its decision. In recent times, the UN Security Council has
started to use the term ‘threat to international peace and security’ instead of ‘threat to the
peace’ as phrased in article 39 of the UN Charter when passing a resolution under Chapter
VII.544 ‘Threat to the peace’ should normally have an international character. However, it
cannot be denied that the UN Security Council often intervenes in matters that are supposedly
not ‘international’ in nature. According to article 2(7) of the UN Charter, the UN Security
Council does not have the power to “intervene in matters which are essentially within the
domestic jurisdiction of any state”. Thus, to avoid any intervention that may be seen as
‘domestic’, as precluded (with exceptions) by article 2(7), the UN Security Council seems to
prefer the wording ‘international threat to peace and security’ to put the threat into an
international context.545
541
UN Charter art. 39.
N., KRISCH, 2013. ‘Introduction to Chapter VII: The General Framework’ in B., Simma, et al., The Charter of the United
Nations: a Commentary. 3rd ed. Oxford: Oxford University Press, 1275.
543
Prosecutor v. Tadic. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, ICTY Case
IT-94-1-AR72, 28; H., KELSEN, 1951. The Law of the United Nations. A Critical Analysis of Its Fundamental Problems. New
Jersey: The Lawbook Exchange, LTD, 736; W.M., REISMAN, 1993. ‘The Constitutional Crisis in the United Nations’. Faculty
Scholarship Series. Paper 866, 93-94. Accessed 18 April 2013: http://digitalcommons.law.yale.edu/fss_papers/866; T.D., GILL,
1995. 'Legal and Some Political Limitations on the Power of the UN Security Council to Exercise its Enforcement Power Under
Chapter VII of the Charter'. 26 NYIL 42; E., DE WET, 2004. The Chapter VII Powers of the United Nations Security Council.
Oregon: Hart Publishing, 133.
544
C., GRAY, 2008. International Law and the Use of Force. 3rd ed. Oxford: Oxford University Press, 257; J., SLOAN, 2011. The
Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 83.
545
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 83-85.
542
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
107
(2) Make recommendations decided upon by measures that are in accordance with
article 41 or 42 - Under article 39 of the UN Charter, the UN Security Council may only
make recommendations, which have a non-coercive character, or decide upon measures,
which have a coercive character, in accordance to article 41 or 42 of the UN Charter.
Accordingly, article 39 of the UN Charter may only serve as a legal basis for
recommendations, and not for coercive measures. The latter measures have to find a
constitutional basis in article 41 or 42 of the UN Charter. (See Section 4.4 and 4.5)
(3) Maintain or restore international peace and security - The UN Security Council may
only make recommendations or decide upon measures in accordance with article 41 or 42 to
‘maintain or restore international peace and security’.546 However, the UN Security Council
has a wide discretion to decide what falls under these terms, as long as it falls within the
principles and purposes of the United Nations.547 It seems that the UN Security Council
considers the establishment of UN peacekeeping operations within its powers.
(4) Purposes and principles - According to article 24(2) of the UN Charter, the UN Security
Council has to act in accordance with the purposes and principles of the United Nations when
making decisions to restore or maintain international peace and security. 548
4.2.2. Article 39 of the UN Charter as a Constitutional Basis?
In the Prosecutor v. Tadic case, the International Criminal Tribunal for the former Yugoslavia
stated that:
“The language of Article 39 is quite clear as to the channelling of the very broad and
exceptional powers of the Security Council under Chapter VII through Articles 41
and 42”.549
From this statement, this thesis deduces that article 39 per se may not serve as a legal basis
for the establishment of a UN peacekeeping operation, whether or not it is militarised. Under
article 39, the UN Security Council may only make non-binding recommendations. However,
this is not a sufficient legal basis for militarised UN peacekeeping as it only concerns
recommendations. When the UN Security Council wants to decide upon enforcement
measures, for example, to establish a militarised peacekeeping operation, this has to stem
from article 41 or 42 of the UN Charter itself. 550
546
J.M., FARRALL, 2007. United Nations Sanctions and the Rule of Law. Cambridge: Cambridge University press, 82-85; F.L.,
KIRGIS, 1995. ‘The Security Council's First Fifty Years’. 89(3) AJIL 506; J., SLOAN, 2011. The Militarisation of Peacekeeping in
the Twenty-First Century. Northampton: Hart Publishing, 85.
547
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 85.
548
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 86.
549
Prosecutor v. Tadic. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, ICTY Case
IT-94-1-AR72, 29.
550
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 86.
108
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
4.3. Article 40 of the UN Charter
Article 40 of the UN Charter states that:
“In order to prevent an aggravation of the situation, the Security Council may,
before making the recommendations or deciding upon the measures provided for in
Article 39, call upon the parties concerned to comply with such provisional measures
as it deems necessary or desirable. Such provisional measures shall be without
prejudice to the rights, claims, or position of the parties concerned. The Security
Council shall duly take account of failure to comply with such provisional
measures.”
The measures under article 40 have a provisional character, while measures under articles 41
and 42 have an enforcement character.
4.3.1. Legal Requirements under Article 40 of the UN Charter
When acting under article 40 of the UN Charter, the UN Security Council has to fulfil the
following requirements:
(1) Threat to the peace, breach of the peace, or act of aggression - It is unclear whether the
UN Security Council has to expressly determine whether there is a threat to the peace, breach
of the peace, or act of aggression before deciding upon provisional measures. Indeed, the
relationship between articles 39 and 40 of the UN Charter is unclear; article 39 does not make
any reference to article 40.551 Consequently, it may be argued that the UN Security Council is
not requested to make an express determination, but that they only have to make an implicit
observation. 552 Yet, as Krisch argues, “this result […] would appear both systematically
doubtful and practically disadvantageous”. 553 It is true that the requirement of a prior
observation as to whether the conflict constitutes a threat to the peace, breach of the peace, or
act of aggression, is one of the only limitations on the powers of the UN Security Council
under Chapter VII. Consequently, it is hard to argue that the UN Security Council should not
comply with this requirement when acting under article 40 of the UN Charter.554 Thus, prior
to making a decision under article 40, the Council has to assess whether there is aggravation
of the situation following a threat to the peace, breach of the peace, or act of aggression under
article 39.555 The Council is not required to make an express reference as to whether the
conflict constitutes one of the cases mentioned in article 39. In practice, the UN Security
Council has already made express determinations in those cases in which it had the intention
551
N., KRISCH, 2013. ‘Article 40’ in B., Simma, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford: Oxford
University Press, 1298.
552
P., KOOIJMANS, 1998. ‘Provisional measures of the UN Security Council’ in E., DENTERS, and N., SCHIJVERS (eds.),
Reflections on International Law from the Low Countries: in Honour of Paul de Waart. The Hague: Martinus Nijhoff Publishers,
293; N., KRISCH, 2013. ‘Article 40’ in B., Simma, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford:
Oxford University Press, 1299.
553
N., KRISCH, 2013. ‘Article 40’ in B., Simma, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford: Oxford
University Press, 1299.
554
N., KRISCH, 2013. ‘Article 40’ in B., Simma, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford: Oxford
University Press, 1299.
555
A., ORAKHELASHVILI, 2002-2003. ‘The Legal Basis of the United Nations Peace-Keeping Operations’. 43 Va. J. Int’l. L. 495.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
109
to bind the parties to the conflict. Consequently, it was indisputable that the decision fell
under article 40 of the UN Charter and not under Chapter VI of the UN Charter.556
(2) Purposes and Principles of the United Nations - The UN Security Council ‘shall act in
accordance with the purposes and principles of the United Nations’ when discharging its
duties in relation to the maintenance of international peace and security.557
(3) The Prevention of an Aggravation of the Situation - Article 40 is aimed at preventing
‘an aggravation of the situation’. Consequently, the UN Security Council may only decide
upon measures under article 40 of the UN Charter if an aggravation is pending. Furthermore,
the measures upon which the Council decides must be of a preventive nature.558
(4) The Provisional Character of the Measures - The measures taken under article 40 of the
UN Charter may only have a provisional character. Consequently, they may not affect the
legal position of the parties of the conflict. For example, the UN Security Council may not
force a party in the conflict to recognise a certain status of borders or territories as lawful. On
the contrary, the Council has the right to oblige one of the parties to respect a temporary
ceasefire line or to temporarily withdraw its troops from certain areas, leaving the legal rights
of the states over territory of borders unimpaired. Yet, in practice it is often difficult to
determine whether a certain measure has a provisional or a definitive character. Therefore, the
Council often adopts certain safeguards to avoid any violation of the rights of the parties to
the conflict.559 The requirement of a ‘provisional character’ overlaps with the fundamental
principles of ‘impartiality’ of UN peacekeeping. Accordingly, as we will see below, UN
peacekeeping operations falling under article 40 of the UN Charter shall play an impartial role
throughout the conflict.
(5) The Principle of Proportionality - When calling upon the states concerned to comply
with the provisional measures, this must be ‘necessary or desirable’. It seems that the drafters
of the UN Charter had the intention of introducing the principle of proportionality.560 It lies
within the discretion of the Council whether this requirement is fulfilled. 561
(6) Shall be without prejudice to the rights, claims, or position of the parties concerned (See 4.3.2, (2) Impartiality).
556
P., KOOIJMANS, 1998. ‘Provisional measures of the UN Security Council’ in E., DENTERS, and N., SCHIJVERS (eds.),
Reflections on International Law from the Low Countries: in Honour of Paul de Waart. The Hague: Martinus Nijhoff Publishers,
293; N., KRISCH, 2013. ‘Article 40’ in B., Simma, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford:
Oxford University Press, 1299; R., NARAYANA RAO, 1997. 'Is Article 39 Action Necessary for Taking Provisional Measures
Contemplated under Article 40 of the UN Charter?’. 37 IJIL 65-74.
557
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 91.
558
N., KRISCH, 2013. ‘Article 40’ in B., Simma, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford: Oxford
University Press, 1300.
559
N., KRISCH, 2013. ‘Article 40’ in B., Simma, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford: Oxford
University Press, 1301-1302.
560
J., GARDAM, 1995. ‘Legal Restraints on Security Council Military Enforcement Action’. 17(2) Mich. J. Int'l. L. 307-308; N.,
KRISCH, 2013. ‘Introduction to Chapter VII: The General Framework’ in B., Simma, et al., The Charter of the United Nations: a
Commentary. 3rd ed. Oxford: Oxford University Press, 1260.
561
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 91.
110
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
(7) Before action under article 41 and 42 - Finally, measures taken under article 40 of the
UN Charter have to occur before the Council decides to make recommendations or decide
upon the measures under articles 41 and 42 provided for in article 39. 562 This clearly
illustrates the desire of the drafters to promote preventive measures and limit enforcement
action.
4.3.2. Article 40 of the UN Charter as a Constitutional Basis?
Both the UN Security Council and some authors have indicated that UN peacekeeping could
find its constitutional basis entirely under article 40 of the UN Charter. 563 In order to
determine whether article 40 of the UN Charter may serve as a legal basis for militarised UN
peacekeeping operations; this thesis will analyse the applicability of the three fundamental
principles of UN peacekeeping in article 40 of the UN Charter:
(1) Consent of the Host State - In order to determine whether the UN Security Council has
to obtain the consent of the host state before deploying UN troops within the country will
depend as to whether article 40 has a mandatory or voluntary nature. There is, however, no
consensus on the character of article 40 of the UN Charter; the wording of UN Security
Council’s resolution often give rise to uncertainty as to whether the measures create binding
effects or not.564 A distinction between the following three viewpoints can be made:
I. According to the first viewpoint, article 40 of the UN Charter cannot result in
binding obligations on the states. Arguments include that article 39 of the UN Charter
only refers to articles 41 and 42 as measures that the UN Security Council may
decide to take in an effort to maintain or restore international peace and security.565
Moreover, article 40 prescribes that the UN Security Council may “call upon the
parties concerned to comply with such provisional measures”, indicating that it is a
request rather than a demand.566 This would imply that the consent of the host state to
the conflict constitute the legal basis of the UN peacekeeping operation. 567
Furthermore, the wording ‘necessary or desirable’ could indicate that the measures
have a recommendatory character.568
562
A., ORAKHELASHVILI, 2002-2003. ‘The Legal Basis of the United Nations Peace-Keeping Operations’. 43 Va. J. Int’l. L. 495.
United Nations Security Council, 1960. Provisional record of the 917th Meeting of the Security Council. UN Doc. S/PV.917,
64; United Nations Security Council, 1960. Provisional record of the 920th Meeting of the Security Council. UN Doc. S/PV.920,
75; United Nations General Assembly and Security Council, 1992. An Agenda for Peace. Preventive Diplomacy, peacemaking
and peace-keeping. Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security
Council on 31 January 1992. UN Doc. A/47/277-S/24111. New York: United Nations, 44; R., HIGGINS, 1963. The Development
of International Law through the Political Organs of the United Nations. Oxford: Oxford University Press, 235-237; H., NASU,
2009. International Law on Peacekeeping: A Study of Article 40 of the UN Charter. Leyden: Martinus Nijhoff Publishers, 27-36.
564
H., NASU, 2009. International Law on Peacekeeping: A Study of Article 40 of the UN Charter. Leyden: Martinus Nijhoff
Publishers, 107-126.
565
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 88.
566
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 479; J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton:
Hart Publishing, 88.
567
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 479.
568
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 88.
563
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
111
II. The second approach, mainly defended by Kelsen and Sloan, recognises that
article 40 does not have a clear recommendatory or mandatory character. In contrary,
they argue that the UN Security Council can only impose legally binding obligations
when it clearly shows the intention to do so.569 For example, in resolution 1509, the
following language is used: the UN Security Council ‘decides to establish the United
Nations Mission in Liberia (UNMIL)’ and ‘decides that UNMIL shall have the
following mandate […].’570 The verb use could indicate that the UN Security Council
has the intention to bind the states. Thus, Sloan argues that the UN Security Council
may establish UN peacekeeping operations under article 40 of the UN Charter as
either a mandatory provisional measure, or as a recommendatory provisional
measure. In the second case, the Council is not required to obtain the host state’s
consent to legally establish a UN peacekeeping operation under article 40 of the UN
Charter.571
III. The third and last approach, also defended by this thesis, recognises that
decisions under article 40 are always mandatory in nature. Tsagourias argues that,
when taking into account the language and purpose of the measures, article 40 of the
UN Charter has a mandatory character rather than an exhortatory character.572 For
example, the wording in the last sentence of article 40 of the UN Charter states that
“the Security Council shall duly take account of failure to comply with such
provisional measures”, which could be interpreted as giving the measures a
mandatory character.
Additionally, the words ‘call upon’ are also incorporated in article 41 of the UN
Charter, which has an indisputable mandatory character. Consequently, it could be
argued that these words should be given the same meaning as in article 41 UN of the
Charter. Yet, it must be noted that the proponents of the recommendatory character of
article 40 of the UN Charter seize the same words to prove the opposite.
Furthermore, articles 25 and 48(1), which impose the obligation on the states to carry
out the decisions made by the UN Security Council, do not limit this obligation to
decisions authorised under article 41 and 42. In addition, the UN Security Council
already possesses the power to make recommendations for non-binding ceasefires
under Chapter VI. Consequently, it seems to be more meaningful to give the
decisions under Chapter VII a mandatory character.573
When accepting that the UN Security Council resolutions - establishing a UN peacekeeping
operation under article 40 of the UN Charter - have a binding character, it is clear that the UN
569
H., KELSEN, 1951. The Law of the United Nations. A Critical Analysis of Its Fundamental Problems. New Jersey: The
Lawbook Exchange, LTD, 740-742; J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century.
Northampton: Hart Publishing, 89.
570
United Nations Security Council, 2003. Res 1509. UN Doc. S/RES/1509, 1 and 3.
571
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 116.
572
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 479.
573
N., KRISCH, 2013. ‘Article 40’ in B., Simma, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford: Oxford
University Press, 1303.
112
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
Security Council shall not obtain the consent of the host state to enter the territory of a
particular state in order to maintain or restore the international peace and security.574
(2) Impartiality - Article 40 of the UN Charter includes that “[the] provisional measures
[provided for in article 40 of the UN Charter] shall be without prejudice to the rights, claims,
or position of the parties concerned”. By requiring an impartial and/or neutral role of the UN
Security Council, this sentence may remind us of the principles of impartiality and neutrality
of UN peacekeeping operations.575 Consequently, some authors argue that article 40 of the
UN Charter is the main legal basis for UN peacekeeping operations.576 They argue that
neutrality distinguishes peacekeeping from the collective security system, externalized by
military enforcement actions, which are elaborated to create a military advantage for one of
the parties in the conflict. Yet, as already mentioned above, a clear difference shall be made
between the principles of impartiality and neutrality. According to the drafters of the
Capstone Doctrine, the principle of impartiality implies that the UN peacekeeping operations
must implement their mandate without favour or prejudice to any party.577 On the contrary,
the principle of neutrality refers to the apolitical character of UN peacekeeping.578 Article 40
of the UN Charter seems to include both of the principles by referring to ‘without any
prejudice to the rights of the parties’, which relates to the principle of impartiality, and
‘without any prejudice to the claims and position of the parties’, which covers the principle of
neutrality. Yet, as already noted above, only the principle of impartiality plays a crucial role
in current UN peacekeeping operations, which are mostly involved in intra-state conflicts.
After all, the UN forces cannot uphold, and should not uphold, a neutral role in intra-state
conflicts. In conclusion, article 40 of the UN Charter may only serve as a legal basis for UN
peacekeeping operations that uphold their impartial role throughout the conflict.
(3) The non-use of force beyond self-defence - The third and final fundamental principle is
the non-use of force beyond self-defence. Article 40 itself does not make any reference to the
authorisation of forceful measures. This thesis argues that - based on the structure of the UN
Charter, which goes from provisional measures in article 40 to non-forceful measures in
article 41, and eventually forceful measures in article 42 - article 40 can not serve as a legal
basis for compulsory military operations. However, it must be noted that UN peacekeeping
operations established under article 40 of the UN Charter still possess the inherent right to use
force in self-defence. Militarised UN peacekeeping operation cannot find their legal basis
under article 40 of the UN Charter when force beyond self-defence is authorised.
574
L.B., SOHN, 1958. ‘The Authority of the United Nations to Establish and Maintain A Permanent United Nations Force’. 52
AJIL 238.
575
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 92.
576
D.W., BOWETT, 1958. Self-defence in international law. Manchester: Manchester University Press, 175-178, 280-285; N.D.,
WHITE, 1997. Keeping the Peace. The United Nations and the maintenance of international peace and security. 2nd ed.
Manchester: Manchester University Press, 235-237.
577
United Nations Department of Peacekeeping Operations and Department of Field Support, 2008. United Nations
Peacekeeping Operations. Principles and Guidelines (‘Capstone Doctrine’). New York: United Nations, 33.
578
H., NASU, 2009. International Law on Peacekeeping: A Study of Article 40 of the UN Charter. Leyden: Martinus Nijhoff
Publishers, 23.
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113
4.3.3. Conclusion on Article 40 of the UN Charter
 When acting under article 40 of the UN Charter, the UN Security Council is not
requested to obtain the consent of the host state as the measures have a mandatory
character. In addition, the UN peacekeepers are required to uphold their impartial role
throughout the conflict and may not be authorised to use force beyond self-defence.
 Accordingly, a militarised UN peacekeeping operation may finds its legal basis in
article 40 of the UN Charter when (1) the operation meets the legal requirements of
article 40 and (2) when the operation only upholds the principles of non-use of force
beyond self-defence and impartiality, but not the principle of consent.
4.4. Article 41 of the UN Charter
According to article 41 of the UN Charter:
“The Security Council may decide what measures not involving the use of armed
force are to be employed to give effect to its decisions, and it may call upon the
members of the United Nations to apply such measures. These may include complete
or partial interruption of economic relations and of rail, sea, air, postal, telegraphic,
radio, and other means of communication, and the severance of diplomatic
relations”.
The UN Security Council may invoke article 41 of the UN Charter whenever it appears
necessary to maintain or restore international peace and security and after the Council has
found a threat to the peace, breach of the peace, or act aggression.579 The measures under
article 41 of the UN Charter are non-forceful or non-military enforcement measures.
4.4.1. Legal Requirements under Article 41 of the UN Charter
(1) Threat to the peace, breach of the peace, or act of aggression - As discussed above,
the UN Security Council shall first determine whether there is the ‘existence of any threat to
the peace, breach of the peace, or act of aggression’ before it may decide upon measures
under article 41 of the UN Charter.580 The UN Security Council possesses a broad margin of
appreciation to determine whether a situation constitutes a threat to the peace, a breach of the
peace, or an act of aggression.581 However, the Council is not required to expressly refer to
article 39 of the UN Charter or to publicly defend its decision.
579
N., KRISCH, 2013. ‘Article 41’ in B., SIMMA, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford: Oxford
University Press, 1310.
580
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 95.
581
Prosecutor v. Tadic. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, ICTY Case
IT-94-1-AR72, 28; H., KELSEN, 1951. The Law of the United Nations. A Critical Analysis of Its Fundamental Problems. New
Jersey: The Lawbook Exchange, LTD, 736; W.M., REISMAN, 1993. ‘The Constitutional Crisis in the United Nations’. Faculty
Scholarship Series. Paper 866, 93-94. Accessed 18 April 2013: http://digitalcommons.law.yale.edu/fss_papers/866; GILL, T.D.,
1995. 'Legal and Some Political Limitations on the Power of the UN Security Council to Exercise its Enforcement Power Under
Chapter VII of the Charter'. 26 NYIL 42; E., DE WET, 2004. The Chapter VII Powers of the United Nations Security Council.
114
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
(2) Purposes and Principles of the United Nations - According to article 24(2) of the UN
Charter, the UN Security Council shall, when discharging its duties, act in accordance with
the purposes and principles of the United Nations, within the general framework of Chapter
VII powers, and in correspondence with the primary ‘police function’ of the UN Security
Council.582
(3) Non-military enforcement measures - Article 41 of the UN Charter clearly notes that the
measures cannot involve ‘the use of armed force’ and thus excludes military enforcement
measures.583 (See Chapter IV, 4.4.2, (3) non-use of force beyond self-defence)
4.4.2. Article 41 of the UN Charter as a Constitutional Basis?
Article 41 of the UN Charter gives several examples of non-military enforcement measures
that could be decided upon, but, as noted by the International Criminal Tribunal for the
Yugoslavia Appeals Chamber in the Prosecutor v. Tadic case, the list of measures are ‘merely
illustrative examples which obviously do not exclude other measures’.584 By not making an
exhaustive enumeration, the drafters have created room for interpretation; the UN Security
Council has the power to take any measure that does not require the use of force in order to
maintain or restore international peace and security. 585 Consequently, the UN Security
Council may take enforcement actions constituting non-enforcement elements such as a UN
peacekeeping operation.586 However, whether it may also serve as a legal basis for militarised
UN peacekeeping, will depend on the applicability of the fundamental principles of UN
peacekeeping:
(1) Consent of the Host State - Whether the UN Security Council has to obtain the consent
of the host state depends on whether the measure has a recommendatory or mandatory
character. It is not explicitly stated in the Charter text that the measures under article 41 of the
UN Charter are binding to the states. However, the drafters did use the verb ‘decide’, which
normally implies a mandatory character. In addition, when taking into account that article 39
of the UN Charter refers to both recommendations and decisions, it is clear that the measures
in article 41 of the UN Charter refer to decisions and not to recommendations. 587 Under
article 25 and 48 of the UN Charter, the member states are required to carry out the decisions
Oregon: Hart Publishing, 133.
582
N., KRISCH, 2013. ‘Article 41’ in B., SIMMA, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford: Oxford
University Press, 1311; J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart
Publishing, 95.
583
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 96.
584
Prosecutor v. Tadic. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, ICTY Case
IT-94-1-AR72, 35.
585
A., ORAKHELASHVILI, 2002-2003. ‘The Legal Basis of the United Nations Peace-Keeping Operations’. 43 Va. J. Int’l. L. 493;
Prosecutor v. Tadic. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, ICTY Case IT94-1-AR72, 35.
586
A., ORAKHELASHVILI, 2002-2003. ‘The Legal Basis of the United Nations Peace-Keeping Operations’. 43 Va. J. Int’l. L. 493.
587
N., KRISCH, 2013. ‘Article 41’ in B., SIMMA, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford: Oxford
University Press, 1310; A., ORAKHELASHVILI, 2002-2003. ‘The Legal Basis of the United Nations Peace-Keeping Operations’.
43 Va. J. Int’l. L. 493.
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
115
of the UN Security Council.588 Finally, the mandatory character of non-military enforcement
measures, decided upon under article 41 of the UN Charter, has been regularly declared by
the UN Security Council itself589 and is widely recognised by academics.590 Furthermore, in
the Prosecutor v. Tadic case, the International Criminal Tribunal for the former Yugoslavia
stated the following about the enforcement powers of the UN Security Council:
“These powers are coercive vis-à-vis the culprit State or entity. But they are also
mandatory vis-à-vis the other member States, who are under an obligation to
cooperate with the Organization (Article 2, paragraph 5, Articles 25, 48) and with
one another (Articles 49), in the implementation of the action or measures decided by
the Security Council”.591
From the binding character of the measures found under article 41 follows that the UN
Security Council is not legally required to obtain the consent of the host state.
Some authors argue that when the host state gives its consent to the emplacement and
functioning of a UN peacekeeping operation within the territory, article 41 of the UN Charter
cannot serve as a legal basis for these operations.592 They find support in this reasoning
through the International Criminal Court in the Certain Expenses Case where the existence of
the consent of the host state was significant in the finding that ONUC “did not involve
‘preventive or enforcement’ measures against any state under Chapter VII”.593 However, it
must be noted that measures taken under article 41 of the UN Charter are not always taken
against a state.594 Sometimes, it is beneficial for the state to request or accept enforcement
measures in the form of UN peacekeeping operations to support the national army in
subduing down hostilities or overcoming rebel groups.595 For example, in the case of the
Yugoslavian conflict, the government requested the intervention of the United Nations.596
Also in the case of Sierra Leone, the government requested that the international community
to take enforcement measures.597 Furthermore, enforcement measures taken under Chapter
VII of the UN Charter are rather characterised by their binding force ‘regardless’ of the will
of the target states, than by its being taken ‘against’ the will of the states subject to it.598
588
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 98.
United Nations Security Council, 1966. Res 232. UN Doc. S/232; United Nations Security Council, 1990. Res 670. UN Doc.
S/RES/670; United Nations Security Council, 2000. Res 1306. UN Doc. S/RES/1306; United Nations Security Council, 2006.
Res 1730. UN Doc. S/RES/1730.
590
H., KELSEN, 1951. The Law of the United Nations. A Critical Analysis of Its Fundamental Problems. New Jersey: The
Lawbook Exchange, LTD, 745; N., KRISCH, 2013. ‘Article 41’ in B., SIMMA, et al., The Charter of the United Nations: a
Commentary. 3rd ed. Oxford: Oxford University Press, 1310; N.D., WHITE, 1997. Keeping the Peace. The United Nations and the
maintenance of international peace and security. 2nd ed. Manchester: Manchester University Press, 107.
591
Prosecutor v. Tadic. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, ICTY Case
IT-94-1-AR72, 31.
592
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 99.
593
Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ
Reports 1962, 177.
594
N., KRISCH, 2013. ‘Article 41’ in B., SIMMA, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford: Oxford
University Press, 1311; J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart
Publishing, 99.
595
N., KRISCH, 2013. ‘Article 41’ in B., SIMMA, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford: Oxford
University Press, 131.
596
United Nations Security Council, 1991. Res 713. UN Doc. S/RES/713.
597
United Nations Security Council, 2000. Res 1306. UN Doc. S/RES/1306.
598
N., KRISCH, 2013. ‘Introduction to Chapter VII: The General Framework’ in B., SIMMA, et al., The Charter of the United
Nations: a Commentary. 3rd ed. Oxford: Oxford University Press, 1247.
589
116
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
(2) Impartiality - The Charter text does not make any reference to the principle of
impartiality or neutrality, as it is the case in article 40 of the UN Charter. Accordingly, we
may argue that the UN peacekeepers are not required to uphold both of the principles when
acting under article 41 of the UN Charter.
(3) The non-use of force beyond self-defence - Article 41 of the UN Charter clearly notes
that the measures cannot involve ‘the use of armed force’ and thus excludes military
enforcement measures.599 It can be questioned whether limited military measures may be
taken under article 41 of the UN Charter and thus whether this article may serve as the
constitutional basis for UN peacekeeping operations without deferring to article 42 of the UN
Charter. According to Tsagourias, article 41 of the UN Charter does not exclude any use of
force, but only the use of force, which belongs to article 42 of the UN Charter.600 Other
academics argue that article 41 of the UN Charter is ‘scarcely appropriate’ as the legal basis
for any UN peacekeeping operation because every operation has the right to use force in selfdefence.601 However, this thesis cannot agree upon this view due to the mere fact that just
because a UN peacekeeping operation may use force in self-defence does not place them in
the category of enforcement measures.602 As already mentioned above, UN forces have the
inherent right to use force in self-defence.
4.4.3. Conclusion on Article 41 of the UN Charter
 When acting under article 41 of the UN Charter, the UN Security Council is not
legally required to obtain the consent of the host state as the measures have a
mandatory character. When the UN Security Council does obtain the consent of the
host state, this does not prevent article 41 from serving as a legal basis for militarised
UN peacekeeping.
 In addition, the UN forces are not required to uphold their impartial role throughout
the conflict. The UN peacekeepers may, however, not be authorised to use force
beyond self-defence.
 Accordingly, a militarised UN peacekeeping operation may finds its legal basis in
article 41 of the UN Charter when (1) the operation meets the legal requirements of
article 41 and (2) when the operation only uphold the principle of non-use of force
beyond self-defence, but not the principles of consent and impartiality.
599
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 96.
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 471.
601
D.W., BOWETT, 1964. United Nations Forces: A Legal Study of United Nations Practice. London: Stevens & Sons, 177.
602
G., SCHWARZENBERGER, 1960. International Law Association. Hamburg Conference 1960. Committee on the Charter of the
United Nations. Report on Problems of a United Nations Force. New York: International Law Association, 7. Accessed 19 April
2013: http://babel.hathitrust.org/cgi/pt?id=mdp.35112101166298;seq=3;view=1up;num=i.
600
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
117
4.5. Article 42 of the UN Charter
Article 42 of the UN Charter provides that:
“Should the Security Council consider that measures provided for in Article 41 would
be inadequate or have proved to be inadequate, it may take such action by air, sea, or
land forces as may be necessary to maintain or restore international peace and
security. Such action may include demonstrations, blockade, and other operations by
air, sea, or land forces of members of the United Nations.”603
Article 42 of the UN Charter empowers the UN Security Council to take military enforcement
measures. In order to take those military measures, article 43 of the UN Charter requires the
member states to make armed forces available to the UN Security Council.604 However,
because the special agreements that are mentioned in article 43 of the UN Charter have never
been concluded, the collective security system - as envisaged in article 42 of the UN Charter has never been put into practice.605 UN peacekeeping finds its origin in the failure of this
collective security system and has been the best alternative to the original conception of the
system thus far.606
With UN peacekeeping, the member states place troops at the disposal of the UN Security
Council on an ad hoc basis.607 The forces operate under the command and control of the
United Nations and should only be deployed within the territory of a state after consent is
given.608 However, in the 1990s, the nature of UN peacekeeping changed when the UN
Security Council deployed UN forces within a territory without the host state’s consent,
authorised the UN forces to use force beyond self-defence, and disregarded the impartial role
of the UN missions in intra-state conflicts.609
Article 42 of the UN Charter clearly does not serve as a legal basis for traditional UN
peacekeeping operations that fully respect the three fundamental principles of UN
peacekeeping. After all, under article 42 of the UN Charter, military enforcement is meant to
take place. This thesis will, however, analyse whether article 42 of the UN Charter may serve
as the legal basis for militarised UN peacekeeping operations. Therefore, we will first analyse
603
UN Charter, art. 42.
N., KRISCH, 2012. ‘Article 43’ in B., SIMMA, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford: Oxford
University Press, 1353.
605
N., BLOKKER, 2000. ‘Is the Authorization Authorized - Powers and Practice of the UN Security Council to Authorize the Use
of Force by Coalitions of the Able and Willing’. 11(2) EJIL 542; H., MCCOUBRY and J., MORRIS, 2000. Regional Peacekeeping
in the Post-Cold War Era. The Hague, Kluwer Law International, 29; N., KRISCH, 2012. ‘Article 43’ in B., SIMMA, et al., The
Charter of the United Nations: a Commentary. 3rd ed. Oxford: Oxford University Press, 1353.
606
N., KRISCH, 2012. ‘Article 43’ in B., SIMMA, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford: Oxford
University Press, 1353.
607
N., KRISCH, 2012. ‘Article 42’ in B., SIMMA, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford: Oxford
University Press, 1333.
608
M., BOTHE, 2012. ‘Peacekeeping’ in B., SIMMA, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford:
Oxford University Press, 1175-1176; N., KRISCH, 2012. ‘Article 42’ in B., SIMMA, et al., The Charter of the United Nations: a
Commentary. 3rd ed. Oxford: Oxford University Press, 1333.
609
C., GRAY, 2008. International Law and the Use of Force. 3rd ed. Oxford: Oxford University Press, 281-306; N., KRISCH, 2012.
‘Article 42’ in B., SIMMA, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford: Oxford University Press,
1336; R., ZACKLIN, 2005. ‘The Use of Force in Peacekeeping Operations’ in N., BLOKKER, and N., SCHRIJVER (eds.), The
Security Council and the Use of Force: Theory and Reality - A Need for Change?. Leyden : Martinus Nijhoff Publishers, 92-93.
604
118
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
the criteria of the Security Council measures under article 42 of the UN Charter. Hereafter,
we will make an into-depth analysis of article 42 of the UN Charter as legal basis and the
applicability of the fundamental principles of UN peacekeeping.
4.5.1. Legal Requirements under Article 42 of the UN Charter
(1) Threat to the peace, breach of the peace, or act of aggression - Since article 39 of the
UN Charter represents the gateway to the enforcement powers of the UN Security under
Chapter VII, military enforcement measures under article 42 of the UN Charter - just as nonmilitary enforcement measures under article 41 of the UN Charter - require the determination
of the existence of ‘any threat to the peace, breach of the peace, or act of aggression’.610 As
already mentioned above, the UN Security Council possesses a wide margin of appreciation
to determine whether a situation constitutes a threat to the peace, a breach of the peace, or an
act of aggression.611 The Council is not required to expressly refer to article 39 of the UN
Charter or to publicly defend its decision.
(2) Purposes and Principles of the United Nations - Additionally, according to article 24(2)
of the UN Charter, the UN Security Council shall, when discharging its duties, act in
accordance with the purposes and principles of the United Nations. 612
(3) Principle of Proportionality - Article 42 of the UN Charter also requires also another
prerequisite: the UN Security Council must consider that the measures provided for in article
41 of the UN Charter would be inadequate or have proved to be inadequate. In this legal
requirement, this thesis recognises the attempt of the drafters of the UN Charter to include the
principle of proportionality. 613 By demanding that the UN Security Council shall only
undertake military action if measures under article 41 are regarded as inadequate, the drafters
have indicated their desire to minimise the possibilities for the Council to undertake forceful
action; 614 military action is the ‘ultimum remedium’ for the UN Security Council.615 The UN
Security Council has affirmed this assertation.616 The use of the wording ‘considers’ reflects
the broad margin of appreciation by the UN Security Council to determine whether its
610
N., KRISCH, 2012. ‘Article 43’ in B., SIMMA, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford: Oxford
University Press, 1341.
611
Prosecutor v. Tadic. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, ICTY Case
IT-94-1-AR72, 28; H., KELSEN, 1951. The Law of the United Nations. A Critical Analysis of Its Fundamental Problems. New
Jersey: The Lawbook Exchange, LTD, 736; W.M., REISMAN, 1993. ‘The Constitutional Crisis in the United Nations’. Faculty
Scholarship Series. Paper 866, 93-94. Accessed 18 April 2013: http://digitalcommons.law.yale.edu/fss_papers/866; GILL, T.D.,
1995. 'Legal and Some Political Limitations on the Power of the UN Security Council to Exercise its Enforcement Power Under
Chapter VII of the Charter'. 26 NYIL 42; E., DE WET, 2004. The Chapter VII Powers of the United Nations Security Council.
Oregon: Hart Publishing, 133.
612
UN Charter art. 42.
613
J., GARDAM, 1995. ‘Legal Restraints on Security Council Military Enforcement Action’. 17(2) Mich. J. Int'l. L. 307-308; N.,
KRISCH, 2013. ‘Introduction to Chapter VII: The General Framework’ in B., Simma, et al., The Charter of the United Nations: a
Commentary. 3rd ed. Oxford: Oxford University Press, 1260.
614
N., KRISCH, 2013. ‘Introduction to Chapter VII: The General Framework’ in B., Simma, et al., The Charter of the United
Nations: a Commentary. 3rd ed. Oxford: Oxford University Press, 1260.
615
N., BLOKKER, 2000. ‘Is the Authorization Authorized - Powers and Practice of the UN Security Council to Authorize the Use
of Force by Coalitions of the Able and Willing’. 11(2) EJIL 550.
616
United Nations Security Council, 2000. Provisional Record of the 4128st Meeting of the Security Council. UN Doc.
S/PV.4128.
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119
measure under article 42 is proportional to the aims pursued. In addition, the action taken by
the UN Security Council must be ‘necessary to maintain or restore international peace and
security’. As the International Criminal Tribunal for the Yugoslavia stated in the Prosecutor
v. Tadic case, the UN Security Council has ‘a broad discretion in deciding on the course of
the action and evaluating the appropriateness of the measures to be taken’.617
4.5.2. Article 42 of the UN Charter as a Constitutional Basis?
Under article 42 of the UN Charter, the UN Security Council has the power to decide whether
it is necessary to take military action, in what form, and to what extent.618 Yet, the UN
Security Council has never explicitly invoked article 42 of the UN Charter when establishing
a UN peacekeeping operation. In order to determine whether article 42 of the UN Charter
may serve as a legal basis for UN peacekeeping, we will analyse the applicability of the three
fundamental principles in detail.
(1) Consent of the Host State - When acting under article 42 of the UN Charter, the UN
Security Council is not required to obtain the consent of the host state. However, although the
host state’s consent is not legally required, the UN Security Council often does obtain it’s the
consent.
 For example, UNTAET and UNMISET clearly found their constitutional basis in
article 42 of the UN Charter, but for both of the operations, the consent was
forthcoming. In resolution 1272, which established UNTAET, the UN Security
Council referred to resolution 1264, which in turn, welcomed “the statement by the
President of Indonesia of 12 September 1999 in which he expressed the readiness of
Indonesia to accept an international peacekeeping force through the United Nations
in East Timor”.619
As already mentioned in the analysis of article 41 of the UN Charter, the consent of the host
state does not prejudice the applicability of article 42 of the UN Charter as a legal basis of
militarised UN peacekeeping operations. In these occasions, the consent of the host state
solely indicates that the operation is not against the state. 620
(2) Impartiality - The concept of impartiality is interlinked with the concept of the non-use
of force beyond self-defence.
 For example, the UN Security Council has mandated UNAMSIL with a militarised
mandate, which led to the notion that the mission was an enforcement operation.
Consequently, the fighters of the Revolutionary United Front came to see the UN
617
Prosecutor v. Tadic. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, ICTY Case
IT-94-1-AR72, 31.
618
N., KRISCH, 2012. ‘Article 43’ in B., SIMMA, et al., The Charter of the United Nations: a Commentary. 3rd ed. Oxford: Oxford
University Press, 1341.
619
United Nations Security Council, 1999. Res 1272. UN Doc. S/RES/1272, preamble; United Nations Security Council, 1999.
Res 1264. UN Doc. S/RES/1264, preamble. See also: D.M., CRISWELL, 2002. ‘Durable Consent and a Strong Transitional
Peacekeeping Plan: the Success of UNTAET in Light of the Lessons Learned in Cambodia’. 11(3) PACRLPJ 589-601.
620
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 104.
120
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
peacekeeping operation as the enemy, which was mandated to forcible disarm them,
and not as an impartial party. However, the UN mission did not only include military
forces, but also unarmed civilian observers, who were perceived as a part of the
military operation and thus as a threat.621
(3) The non-use of force beyond self-defence - Article 42 of the UN Charter is the only
article that explicitly authorises the UN Security Council to undertake measures that involve
the use of armed force. When interpreting article 42 alongside the other articles of Chapter
VII, it can be argued that article 42 shall be the constitutional basis of UN peacekeeping
operations that are authorised to use force beyond self-defence.
4.5.3. Conclusion on article 42 of the UN Charter
 When acting under article 42 of the UN Charter, the UN Security Council is not
requested to obtain the consent of the host state as the measures have a mandatory
character. In addition, the UN peacekeepers are not required to uphold their impartial
role throughout the conflict and may be authorised to use force beyond self-defence.
 Accordingly, a militarised UN peacekeeping operation may find its legal basis in
article 42 of the UN Charter when (1) the operation meets the legal requirements of
article 42 and (2) when the operation does not uphold the principles of non-use of
force beyond self-defence, impartiality, and consent.
 Finally, it is important to notice that article 42 of the UN Charter shall only be used as
a legal basis for UN peacekeeping in the case that armed force beyond self-defence is
used. If this is not the case, we shall use article 40 or 41 of the UN Charter.
5. Consent as a Constitutional Basis for Militarised UN
Peacekeeping Operations?
Since the first UN peacekeeping operation, consent of the host state has played an important
role in the emplacement and functioning of UN peacekeeping operations within the territory.
In the analysis of Chapter VI and VII, we have, however, proven that the UN Security
Council is only legally required to obtain the consent of the host state when it is acting under
Chapter VI. The measures taken under Chapter VII have a mandatory character and do not
require the consent of the host state. However, under Chapter VI of the UN Charter, the UN
Security Council may not authorise forceful measures. Now, the question remains whether the
UN Security Council may establish a UN peacekeeping operation with a forceful mandate
621
United Nations Security Council, 2000. Fourth Report of Secretary-General on the United Nations Mission in Sierra Leone.
UN Doc. S/2000/455. New York: United Nations, 56-71.
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and emplace this operation within the territory after the host state has given its consent. The
UN Charter itself provides no explicit basis for consent-based, forceful peacekeeping
operations. In the detailed analysis above, we have, however, proven that an operation may
still find its legal basis under Chapter VII when the host state has given its consent.
Now, it may be questioned as to whether UN peacekeeping operations can also find their
constitutional basis in the consent of the host state.622 Some authors do not accept any other
constitutional basis for UN peacekeeping other than the UN Charter itself. For example,
according to Bowett, “consent is not part of the constitutional basis of a United Nations
force: the constitutional basis must be found in the Charter, not in consent per se”. 623 On the
contrary, in the Certain Expenses Case, Judge Sir Gerald Fitzmaurice argued in his separate
opinion:
“[…] another illusion would be if, at the invitation of one or more member States
[…], the Organization engaged in some activity […] outside the normal scope and
framework of the Charter. Such action would not be illegal if it was carried out with
the consent of all the States affected by it; nor would the resultant expenditures be
invalid.”624
Some authors argue that, based on the consistent practice of the UN Security Council to
obtain the state’s consent, the principle of consent has obtained a legal status.625 However, as
we have seen in the multiple examples above, obtaining the consent of the host state is not a
consistent practice anymore. Therefore, it is hard to claim that the principle of consent of the
host state has obtained a customary status. In addition, it is the preferable view is that the UN
Security Council has set a non-legal requirement for itself and is not bound to follow this
every time. The practice of obtaining the host state’s consent is rather based on the desire to
have the cooperation of the host state than to legally bind itself. 626
I. Consent as a Constitutional Basis
This thesis argues that the consent of the host state may serve as the constitutional basis for a
UN peacekeeping operation that is authorised to use force beyond self-defence. Therefore,
this thesis relies on the principles of sovereign equality, non-use of force, and non-
622
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 117.
D.W., BOWETT, 1964. United Nations Forces: A Legal Study of United Nations Practice. London: Stevens & Sons, 422 and
311-312.
624
Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ
Reports 1962, Separate Opinion of Judge Sir Gerald Fitzmaurice, 205.
625
A.D., BLASE, 1978. ‘The Role of the Host State’s Consent with Regard to Non-Coercive Actions by the United Nations’ in
A., CASSESE (ed.), United Nations peace-keeping, Legal Essays. Alphen aan den Rijn: Sijthoff & Noordhoff, 84; R.C.R.,
SIEKMANN, 1991. National Contingents in the United Nations Peace-Keeping Forces. Dordrecht: Martinus Nijhoff Publishers, 79.
626
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 90.
623
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intervention in domestic matters,627 which are generally recognised by international law and
incorporated in article 2 of the UN Charter:628
(1) Article 2(1): Sovereign Equality: According to article 2(1) of the UN Charter, “the
Organization is based on the principle of the sovereign equality of all its members”. In the
Nicaragua case, the International Court of Justice considers ‘non-intervention’ as a ‘corollary
of the principle of sovereign equality of States’.629 In addition, the International Court of
Justice states that non-intervention can be considered as customary international law.630 Two
exceptions of the principle of sovereign equality can be indicated. First of all, a state cannot
claim a violation of the principle of ‘sovereign equality’ when a UN peacekeeping operation
is established within its territory after the state has given its consent or after the state has
requested the UN to do so.631 Secondly, when observing the of the in its entirety, we can
argue that the UN Security Council can take legitimate measures to restore international
peace and security without violating the principle of ‘sovereign equality’.632
(2) Article 2(4): Non-use of Force: Article 2(4) UN Charter requires that:
“All members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United Nations.”
Although it is not specified as such in article 2(4) of the UN Charter, the UN Security Council
may decide on enforcement measures under Chapter VII of the UN Charter without violating
article 2(4).633 A second exception is stipulated in article 51 of the UN Charter:
“Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence if an armed attack occurs against a member of the United
Nations, until the Security Council has taken measures necessary to maintain
international peace and security”.
A third exception of the principle of ‘non-use of force’ can be found in the consent of the host
state (or in its request) leading to the presence of an operation within its territory. In this case,
there is no violation of the non-use of force against that state’s territorial integrity or political
independence.634 The general reasoning is that, if a state voluntarily requests the assistance of
another state, than this state cannot claim a dictatorial or unlawful intervention.635 According
to the General Assembly, the following act shall qualify as an act of aggression:
627
United Kingdom and Northern Ireland v. Albania. The Corfu Channel Case (Merits), Judgement of 9 April 1940, ICJ Reports
1949, 35; Nicaragua v. United States of America. Case Concerning Military and Paramilitary Activities in and against Nicaragua,
Judgement of 2 June 1986, ICJ 14, 106-108.
628
UN Charter article 2(1), 2(4), and 2(7).
629
Nicaragua v. United States of America. Case Concerning Military and Paramilitary Activities in and against Nicaragua,
Judgement of 2 June 1986, ICJ 14, 106.
630
Nicaragua v. United States of America. Case Concerning Military and Paramilitary Activities in and against Nicaragua,
Judgement of 2 June 1986, ICJ 14, 106.
631
D., BROWN, 1994. ‘The Role of the United Nations in Peacekeeping and Truce-Monitoring: What Are the Applicable
Norms?’ 2 Revue Belge de Droit International 561.
632
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 73.
633
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 74.
634
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 74.
635
G., MARSTON, 1986. ‘United Kingdom Materials on International Law 1986’. 57(1) British Yearbook of International Law
614-615.
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“The use of armed force of one State which are within the territory of another State
with the agreement of the receiving State, in contravention of the conditions provided
for in the agreement or any extension of their presence in such territory beyond the
termination of the agreement.”636
This clearly suggests the General Assembly’s recognition of the right of a state to invite
another state to use armed force on its territory, including through the establishment of a UN
peacekeeping operation.637 When considering UN peacekeeping operations, the concept of
‘state’ shall be interpreted as a ‘group of States’.638
(3) Article 2(7): non-intervention in Domestic matters: Article 2(7) provides that:
“Nothing contained in the present Charter shall authorise the United Nations to
intervene in matters which are essentially within the domestic jurisdiction of any state
or shall require the members to submit such matters to settlement under the present
Charter; but this principle shall not prejudice the application of enforcement
measures under Chapter VII.”
As explained above, the International Court of Justice considers the principle of ‘nonintervention’ as a ‘corollary of the principle of sovereign equality of States’. 639 Two
exceptions to article 2(7) can be indicated: first of all, article 2(7) itself indicates an exception
to its application by providing that “this principle shall not prejudice the application of
enforcement measures under Chapter VII”. Secondly, when the host state consents to the
intervention, this thesis argues that it cannot be seen as a violation of article 2(7) of the UN
Charter.
II. Conclusion
 This thesis argues that, when the UN Security Council violates the principles of state
sovereignty, non-use of force, and/or non-intervention, this has to have a specific
legal basis. Accordingly, when the host state gives its consent to the emplacement
and functioning of a UN peacekeeping operation within its territory, it cannot claim a
violation of article 2(1), 2(4), or 2(7) of the UN Charter. 640 Therefore, the UN
Security Council may emplace a UN peacekeeping operation, which is authorised to
use force beyond self-defence, after the consent of the host state is obtained.
 When referring to the consent of the host state, this thesis alludes to the consent given
by the effective or juridical government of the host state involved in an inter-state
conflict. Thus, when there is no such government in place, no consent can be given to
the emplacement and functioning of the UN troops within the country.
636
United Nations General Assembly, 1974. Res 3314 (XXIX), Annex Article 3(e), ‘Definition of Aggression’. Emphasis added.
C., GRAY, 2008. International Law and the Use of Force. 3rd ed. Oxford: Oxford University Press, 81.
638
United Nations General Assembly, 1974. Res 3314 (XXIX), Annex Article 1, ‘Definition of Aggression’.
639
Nicaragua v. United States of America. Case Concerning Military and Paramilitary Activities in and against Nicaragua,
Judgement of 2 June 1986, ICJ 14, 106.
640
N., TSAGOURIAS, 2006. ‘Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional
Dimension’. 11(3) JCSL 478; see also United Nations General Assembly, 2003. Comprehensive review of the whole question of
peacekeeping operations in all their aspects. Report of the Special Committee on Peacekeeping Operations. UN Doc. A/57/767.
New York: United Nations, 125-147.
637
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 On other occasions, it is, however, recommended to obtain the consent of all the
parties involved in the conflict, since this will increase the legitimacy of the UN
peacekeeping operation. After all, the absence of the consent or cooperation of armed
opposition groups may negatively affect the ultimate purpose of the intervention.641
6. Different Constitutional Bases can be Combined
Generally, the UN Security Council invokes Chapter VII in the last paragraph of the
preamble, with the intention to apply this Chapter to the entire resolution and thus to the
entire mandate of the UN mission. However, in some resolution, the UN Security Council
only invokes Chapter VII in relation to one or more specific paragraphs in a UN resolution.
Examples:
 In both the case of MONUC and UNAMSIL, the UN peacekeepers were authorised
to take ‘the necessary action’ to protect civilians under imminent threat of physical
violence.642 In both resolutions, the UN Security Council only invoked Chapter VII
for specific tasks and not for the full mandate. Consequently, only the tasks for
which ‘all necessary measures’ could be used, fell under the scope of article 42 of the
UN Charter; the UN Security Council had the intention of authorising the use of
force beyond self-defence to successfully exercise those tasks. However, the UN
Security Council also entrusted the UN forces with other tasks under Chapter VII for
which not ‘all necessary measures’ could be used. Those tasks had their
constitutional basis in article 40 or article 41. Given that the UN forces did not
uphold their impartial role, the constitutional basis could not be found in article 40,
as one of the legal prerequisites requires impartiality.
 Also in the case of UNOCI, it is clear that almost the entire operation falls under
article 42 of the UN of the Charter. The UN Security Council invoked Chapter VII in
every resolution concerning UNOCI and had the intention of authorising the use of
force beyond self-defence for almost every task. However, there appears to be two
exceptions to this. First of all, in resolution 1765, the UN Security Council bestowed
the UN forces with election-related tasks, which do not have a forceful character.643
Consequently, they cannot find their constitutional basis in article 42; those tasks
shall be brought under article 40 or 41 of the UN Charter. Secondly, in resolution
1584, the UN Security Council entrusted the UN forces with tasks considering the
641
H., NASU, 2009. International Law on Peacekeeping: A Study of Article 40 of the UN Charter. Leyden: Martinus Nijhoff
Publishers, 129-130.
642
United Nations Security Council, 2000. Res 1289. UN Doc. S/RES/1289, 10; United Nations Security Council, 2000. Res
1291. UN Doc. S/RES/1291, 8.
643
United Nations Security Council, 2007. Res 1765. UN Doc. S/RES/1765, 1.
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disarmament of armed troops. When accepting that the Council did not have the
intention to authorise the use of force beyond self-defence, these tasks found their
constitutional basis in article 40 or 41 of the UN Charter.
However, we have to be aware of the practice of the UN Security Council in which the
Council only explicitly invokes Chapter VII in relation to one single paragraph, while hiding
its intention to apply Chapter VII to the whole mandate of the UN operation.
Example:
 In resolution 1410, the UN Security Council authorised UNMISET, “under Chapter
VII of the Charter of the United Nations, to take the necessary actions, for the
duration of its mandate, to fulfil its mandate, and decides to review this issue and all
other aspects of UNMISET’S mandate after 12 months”.644 Although the UN Security
Council only invoked Chapter VII in one paragraph, this paragraph affected the
whole mandate, for its duration, and thus put the mission in the same position as if the
UN Security Council would have explicitly invoked Chapter VII to the entire
mandate.
644
United Nations Security Council, 2002. Res 1410. UN Doc. S/RES/1410, 6.
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7. Conclusion on Research Question 2
 In this Chapter, we researched the legal framework of militarised UN peacekeeping
operations and whether it includes UN peacekeeping operations with a militarised
character. UN peacekeeping is not incorporated in the UN Charter. It is developed as
an ad hoc alternative to the failed collective security system under Chapter VII.
Neither the UN Security Council itself, nor the International Court of Justice has
taken the effort to clarify the legal framework of UN peacekeeping operations. UN
peacekeeping is only framed by the three fundamental principles of consent,
impartiality, and non-use of force beyond self-defence. However, over the decades,
the character of UN peacekeeping has changed; UN missions have been deployed
within a territory without the consent of the host state, UN forces have been
authorised to use force beyond self-defence, and the UN forces have played a partial
role in numerous conflicts.
 Despite this clear militarisation of UN peacekeeping, no questions have been asked
concerning the legality of these actions. Therefore, this thesis has researched the
applicable legal framework, especially regarding the UN Charter. Chapters VI and
VII relate to the powers of the UN Security Council to deal with disputes; Chapter VI
concerns the pacific settlement of disputes, while Chapter VII empowers the Council
to take action with respect to threats to the peace, breaches of the peace, and acts of
aggression. Before analysing in detail the specific provisions of Chapter VI and VII,
this thesis outlined how to determine whether a UN Security Council falls under
Chapter VI or VII and also explained that a UN peacekeeping operation may have a
combined constitutional basis.
 Moreover, this thesis examined Chapters VI and VII and its specific provisions. In
particular, this thesis researched the legal requirements of every article. Additionally,
in order to determine whether the article in question could serve as a legal basis for
militarised UN peacekeeping operations, this thesis examined the applicability of the
three fundamental principles of UN peacekeeping. A UN peacekeeping operation is
militarised when at least one of the three fundamental principles is not applicable.
 When considering Chapter VI, the following elements suggest that this Chapter
cannot serve as a legal basis for militarised UN peacekeeping: (1) the measures under
Chapter VI are generally recommendatory, which implies that the consent from the
host state has to be obtained; (2) the measures under Chapter VI can only be nonforceful in nature and; (3) the UN peacekeepers have to uphold their impartial role in
the conflict. Consequently, in order to legally operate under Chapter VI, the three
fundamental principles have to be met. `
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127
 Hereafter, this thesis has made a detailed analysis of articles 39, 40, 41, and 42 of
Chapter VII of the UN Charter. Article 39 per se may not serve as a legal basis for
militarised UN peacekeeping operations. The article only serves as a gateway to the
Council’s powers under Chapter VII. Furthermore, articles 40, 41, and 42 could each
serve as a legal basis for militarised UN peacekeeping operations when the operation
in question meets the legal requirements of every operation and when the specific
fundamental principles are respected or not as set forth in the specific article. None of
the articles require the consent of the host state as all measures under Chapter VII
have a mandatory character. However, when considering the applicability of the
principles of impartiality and non-use of force, every article is different. Under article
40 of the UN Charter, both of the fundamental principles of impartiality and non-use
of force are applicable. Under article 41 of the UN Charter, however, the UN forces
are not required to uphold their impartial role, but they may only be authorised to use
force in self-defence. Under article 42, neither the principle of impartiality, nor the
principle of non-use of force beyond self-defence is applicable. Thus, each of the
three articles may serve as a legal basis for a militarised UN peacekeeping operation,
depending on the characteristics of the operation itself.
 Finally, this thesis has examined whether the consent of the host state may serve as a
constitutional basis for those operations which are emplaced within the territory with
the consent of the host state, but who are authorised to use force beyond self-defence.
Neither Chapter VI, nor Chapter VII can serve as a legal basis for an operation in
which both consent and force beyond self-defence are present. On those occasions,
the consent of the host state may serve as the legal basis.
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V. Conclusions and Recommendations
UN peacekeeping is in crisis. The concept of UN peacekeeping has been stretched over the
past years in an attempt to formulate answers for the changing world. Accordingly, the first
part of this research has been dedicated to the question of how the concept of traditional UN
peacekeeping has been transformed into militarised UN peacekeeping. UN peacekeeping
operations were initially established in inter-state conflicts to supervise a ceasefire or to
monitor a buffer zone.645 However, since the end of the Cold War, the UN Security Council
deployed UN peacekeepers in intra-state conflicts where there was no peace to keep. These
intra-state conflicts, which are fought by government troops and unorganised non-state
entities, are characterised by inter-communal violence directed towards ethnic parties. In
response, the UN peacekeepers were given complex and robust, but unclear and unachievable
mandates, without being appropriately equipped. Moreover, the three bedrock principles of
UN peacekeeping - including consent of the host state, impartiality, and non-use of force
beyond self-defence - were abandoned in an attempt to successfully carry out the mandate.646
This consistent practice of failing to uphold the three fundamental principles, and thus turning
the operations into militarised UN peacekeeping operations, has rarely resulted in a successful
restoration of the international peace and security.647 On the contrary, practice has shown that
the militarisation of UN peacekeeping operations may give rise to dangerous situations. If the
UN Security Council does not obtain the consent of the host state, the UN forces will
probably be regarded as unwelcome invaders and force could be used to expel them. If the
UN peacekeepers are using force against the state to protect the civilians, this will not only
abolish the consent of the host state, but the government will also perceive the UN
peacekeepers as being partial. On the contrary, when the UN forces are fighting alongside the
government troops and thus are using force beyond self-defence against non-governmental
factions, these factions will definitely perceive the UN forces as being partial. The danger lies
in the fact that these factions will consider the UN military peacekeepers as combatants
according to international humanitarian law. Hence, they will feel warranted in using
substantial force against the UN peacekeepers.648 Worse, these non-governmental factions
will not only consider the military personnel of the UN peacekeeping operations as
combatants, but the unarmed civil personnel as well.
Despite the undeniable militarisation of the UN peacekeeping operations - through the
disregard of at least one of the principles - there continues to be a desire on the part of the
United Nations to maintain that UN peacekeeping is continuously guided by the three
645
C., GRAY, 2008. International Law and the Use of Force. 3rd ed. Oxford: Oxford University Press, 272.
S., THAROOR, 1995. ‘The Changing Face of Peace-keeping and Peace-enforcement’. 19(2) Fordham I.L.J. 417.
647
R.J., LEE, 2000. ‘The United Nations Peacekeeping Successes but Peace Enforcement Failures’. 2000 Austl. Int’l. L.J. 197.
648
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. Northampton: Hart Publishing, 290.
646
THE MILITARISATION OF THE UNITED NATIONS PEACEKEEPING OPERATIONS
129
fundamental principles. The UN entities went so far as to redefine the principles of
impartiality and self-defence in order to give the impression that UN peacekeeping operations
are still guided by the three principles (see Chapter II). The UN experiences significant
advantages by publicly repeating its mantra of traditional UN peacekeeping that is adhered by
the fundamental principles of UN peacekeeping:649 (1) By stating that the host state has
consented, even implicitly, the member states are less likely to claim a threat to the principle
of state sovereignty and consequently block the establishment of a UN peacekeeping
operation; (2) If States consider a UN peacekeeping operation as non-forceful in nature, they
will be more likely to place troops at the disposal of the United Nations operation; (3) If the
conflicting parties consider an operation as impartial in nature, they will be more likely to
consent to the emplacement and functioning on the ground of this peacekeeping operation
within their territory.650
However, it should be reiterated that the continuous practice of the United Nations to claim
the adherence to the fundamental principles leads to confusion. Neither the UN troops, nor the
contributing states, nor the host state know whether the UN peacekeeping operations will
effectively respect the principles, or whether they will turn into militarised UN peacekeeping
operations. Furthermore, the question of whether UN has lost its credibility and authority by
authorising militarised UN peacekeeping operations has been raised, as almost all of these
operations have turned out to be a failure.651
Based on the previous conclusions, this thesis proposes the following recommendations:
 The UN Security Council should ‘bring back the peacekeeper’ by returning to the
traditional concept of UN peacekeeping in which the mission upholds the three
principles throughout the operation.652 These operations should only be deployed in
appropriate situations where there is a peace to be kept.653 After all, history has shown
that the UN has seen the best successes when deploying traditional UN peacekeeping
operations. 654
 The UN Security Council should strictly uphold the three fundamental principles of
UN peacekeeping. Moreover, the Council should communicate its policies regarding
the principles in clear wording to both the member states and the host states. This will
not only avoid unnecessary confusion on the ground, but this will also increase the
credibility and the authority of the UN as a whole in its mission of maintaining and
restoring international peace and security.
649
T., FINDLAY, 2002. The Use of Force in UN Peace Operations. SIPRI. Oxford: Oxford University Press, 384.
J., SLOAN, 2011. The Militarisation of Peacekeeping in the Twenty-First Century. United
Kingdom: Hart Publishing, 142.
651
R.J., LEE, 2000. ‘The United Nations Peacekeeping Successes but Peace Enforcement Failures’. 2000 Austl. Int’l. L.J. 199.
652
R.J., LEE, 2000. ‘The United Nations Peacekeeping Successes but Peace Enforcement Failures’. 2000 Austl. Int’l. L.J. 199.
653
S., THAROOR, 1995. ‘The Changing Face of Peace-keeping and Peace-enforcement’. 19(2) Fordham I.L.J. 426.
654
R.J., LEE, 2000. ‘The United Nations Peacekeeping Successes but Peace Enforcement Failures’. 2000 Austl. Int’l. L.J. 199.
650
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 The Council should agree upon clear, credible, and achievable mandates for the UN
peacekeeping forces.655 Furthermore, the member states should supply the UN troops
with adequate equipment.
 The Council should not attempt to merge the concept of UN peacekeeping and war
making. After all it is difficult to make war and peace at the same time, with the same
people, on the same territory. 656 In the future, the UN Security Council should
responds with either an enforcement operation or a UN peacekeeping operation, not
something in between.657 It is, however, true that we need more forceful action to
maintain or restore international peace and security. Yet, these kinds of operations
should be carried out by enforcement operations with the appropriate mandate,
equipment, and management. Only after peace has been established, should the UN
Security Council consider sending in UN peacekeeping troops to keep the established
peace.
The second part of this thesis has been devoted to the question of whether militarised UN
peacekeeping may find a constitutional basis in the UN Charter. Although it is out of the
question as to whether the UN has the power to establish, emplace, and control traditional
peacekeeping operations, the examination of the legal basis of militarised UN peacekeeping
operations has been more relevant than ever before in the light of the changing nature of UN
peacekeeping operations. The detailed examination of the UN Charter has indicated that the
UN Security Council has the power to establish militarised UN peacekeeping under Chapter
VII or when the consent of the host state is given:
(1) Chapter VII of the UN Charter - The UN Security Council may either act under article
40, 41 or 42 of the UN Charter when the operation in question meets the legal requirements of
every operation and when the specific fundamental principles are respected or not, as set forth
in the specific article. None of the articles require the consent of the host state as all measures
under Chapter VII have a mandatory character. However, when considering the applicability
of the principles of impartiality and non-use of force, every article is different. Under article
40 of the UN Charter, the fundamental principles of impartiality and non-use of force are
applicable. Under article 41 of the UN Charter, however, UN forces are not required to
uphold their impartial role, but they may only be authorised to use force in self-defence.
Under article 42, neither the principle of impartiality, nor the principle of non-use of force
beyond self-defence is applicable. Thus, each of the three articles may serve as a legal basis
for a militarised UN peacekeeping operation, depending on the characteristics of the
operation itself.
655
C., GRAY, 2008. International Law and the Use of Force. 3rd ed. Oxford: Oxford University Press, 310.
S., THAROOR, 1995. ‘The Changing Face of Peace-keeping and Peace-enforcement’. 19(2) Fordham I.L.J. 419 and 426.
657
R.J., LEE, 2000. ‘The United Nations Peacekeeping Successes but Peace Enforcement Failures’. 2000 Austl. Int’l. L.J. 198.
656
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131
(2) Consent - The fundamental principle of the consent of the host state may serve as a legal
basis for operations in which both consent and force beyond self-defence are present.
However, this thesis has come to the following conclusion after detailed research. The
concept of UN peacekeeping is characterised by doctrinal inconsistency.658 After all, UN
peacekeeping is not incorporated in the UN Charter. It is developed as an ad hoc alternative
to the failed collective security system under Chapter VII. Neither the UN Security Council
itself, nor the International Court of Justice has made the effort to clarify the legal framework
of UN peacekeeping operations. UN peacekeeping is only framed by the three fundamental
principles of consent, impartiality, and non-use of force beyond self-defence.
Based on the previous conclusions, this thesis proposes the following recommendations:
 The governing legal framework, incorporated in the UN Charter, is sufficient to
empower the UN Security Council with establishing either UN peacekeeping
operations or enforcement operations. Accordingly, there is no need for a new legal
framework.
 However, both UN Security Council and the UN Secretary-General should preferably
communicate under which article of the UN Charter they are acting. Nowadays, there
is still too much uncertainty about the intentions of the UN Security Council, as the
Council does not specify the legal basis of a specific UN operation. It is true that the
Council is not legally required to invoke a Chapter, a specific article or another legal
basis when establishing a UN peacekeeping operation. However, these changes
would definitely decrease the uncertainty concerning the intentions of the Council,
the mandate of the UN peacekeepers, and the consequences of the establishment of a
UN peacekeeping operation.
658
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8. Resolutions of the UN General Assembly and the UN
Security Council
United Nations General Assembly, 1956. Res. 998 and 999, UN Doc. ES/I.
United Nations General Assembly, 1950. Res. 377, UN Doc. A/1775.
United Nations General Assembly, 1956. Res. 1001, UN Doc. A/RES/1001 (ES/I).
United Nations General Assembly, 2003. Res. 57/337, UN Doc. A/RES/57/337.
United Nations General Assembly, 1974. Res. 3314 (XXIX), Annex Article 3(e), ‘Definition
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United Nations Security Council, 1947. Mtg., 2 UN SCOR.
United Nations Security Council, 1947. Special Supp., (No. 1), 2 UN SCOR.
United Nations Security Council, 1948. Res. 47, UN Doc. S/726.
United Nations Security Council, 1960. Res. 143, UN Doc. S/4387.
United Nations Security Council, 1960. Res. 145, UN Doc. S/4405.
United Nations Security Council, 1960. Res. 146, UN Doc. S/4426.
United Nations Security Council, 1961. Res. 161, UN Doc. S/4741.
United Nations Security Council, 1961. Res. 169, UN Doc. S/5002.
United Nations Security Council, 1964. Res. 186, UN Doc. S/5575.
United Nations Security Council, 1966. Res. 232, UN Doc. S/232.
United Nations Security Council, 1973. Res. 341, UN Doc. S/RES/341.
United Nations Security Council, 1978. Res. 425, UN Doc. S/RES/425.
United Nations Security Council, 1978. Res. 426, UN Doc. S/RES/426.
United Nations Security Council, 1980. Res. 467, UN Doc. S/RES/467.
United Nations Security Council, 1988. Res. 626, UN Doc. S/RES/626.
United Nations Security Council, 1990. Res. 670, UN Doc. S/RES/670.
United Nations Security Council, 1991. Res. 696, UN Doc. S/RES/696.
United Nations Security Council, 1991. Res. 713, UN Doc. S/RES/713.
United Nations Security Council, 1991. Res. 717, UN Doc. S/RES/717.
United Nations Security Council, 1992. Res. 743, UN Doc. S/RES/743.
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United Nations Security Council, 1992. Res. 745, UN Doc. S/RES/745.
United Nations Security Council, 1992. Res. 751, UN Doc. S/RES/751.
United Nations Security Council, 1992. Res. 757, UN Doc. S/RES/757.
United Nations Security Council, 1992. Res. 770, UN Doc. S/RES/770.
United Nations Security Council, 1992. Res. 776, UN Doc. S/RES/776.
United Nations Security Council, 1992. Res. 794, UN Doc. S/RES/794.
United Nations Security Council, 1993. Res. 814, UN Doc. S/RES/814.
United Nations Security Council, 1993. Res. 816, UN Doc. S/RES/816.
United Nations Security Council, 1993. Res. 819, UN Doc. S/RES/819.
United Nations Security Council, 1993. Res. 836, UN Doc. S/RES/836.
United Nations Security Council, 1993. Res. 837, UN Doc. S/RES/837.
United Nations Security Council, 1993. Res. 846, UN Doc. S/RES/846.
United Nations Security Council, 1993. Res. 858, UN Doc. S/RES/858.
United Nations Security Council, 1993. Res. 866, UN Doc. S/RES/866.
United Nations Security Council, 1993. Res. 871, UN Doc. S/RES/871.
United Nations Security Council, 1993. Res. 872, UN Doc. S/RES/872.
United Nations Security Council, 1993. Res. 881, UN Doc. S/RES/881.
United Nations Security Council, 1994. Res. 912, UN Doc. S/RES/912.
United Nations Security Council, 1994. Res. 918, UN Doc. S/RES/918.
United Nations Security Council, 1994. Res. 925, UN Doc. S/RES/925.
United Nations Security Council, 1994. Res. 929, UN Doc. S/RES/929.
United Nations Security Council, 1994. Res. 937, UN Doc. S/RES/937.
United Nations Security Council, 1994. Res. 940, UN Doc. S/RES/940.
United Nations Security Council, 1995. Res. 976, UN Doc. S/RES/976.
United Nations Security Council, 1995. Res. 981, UN Doc. S/RES/981.
United Nations Security Council, 1995. Res. 983, UN Doc. S/RES/983.
United Nations Security Council, 1995. Res. 998, UN Doc. S/RES/998.
United Nations Security Council, 1998. Res. 1181, UN Doc. S/RES/1181.
United Nations Security Council, 1999. Res. 1244, UN Doc. S/RES/1244.
United Nations Security Council, 1999. Res. 1246, UN Doc. S/RES/1246.
United Nations Security Council, 1999. Res. 1264, UN Doc. S/RES/1264.
United Nations Security Council, 1999. Res. 1265, UN Doc. S/RES/1265.
United Nations Security Council, 1999. Res. 1270, UN Doc. S/RES/1270.
United Nations Security Council, 1999. Res. 1272, UN Doc. S/RES/1272.
United Nations Security Council, 1999. Res. 1279, UN Doc. S/RES/1279.
United Nations Security Council, 2000. Res. 1289, UN Doc. S/RES/1289.
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United Nations Security Council, 2000. Res. 1291, UN Doc. S/RES/1291.
United Nations Security Council, 2000. Res. 1296, UN Doc. S/RES/1296.
United Nations Security Council, 2000. Res. 1306, UN Doc. S/RES/1306.
United Nations Security Council, 2000. Res. 1313, UN Doc. S/RES/1313.
United Nations Security Council, 2001. Res. 1346, UN Doc. S/RES/1346.
United Nations Security Council, 2001. Res. 1366, UN Doc. S/RES/1366.
United Nations Security Council, 2002. Res. 1410, UN Doc. S/RES/1410.
United Nations Security Council, 2003. Res. 1464, UN Doc. S/RES/1464.
United Nations Security Council, 2003. Res. 1479, UN Doc. S/RES/1479.
United Nations Security Council, 2003. Res. 1493, UN Doc. S/RES/1493.
United Nations Security Council, 2003. Res. 1509, UN Doc. S/RES/1509.
United Nations Security Council, 2004. Res. 1528, UN Doc. S/RES/1528.
United Nations Security Council, 2004. Res. 1565, UN Doc. S/RES/1565.
United Nations Security Council, 2004. Res. 1572, UN Doc. S/RES/1572.
United Nations Security Council, 2005. Res. 1584, UN Doc. S/RES/1584.
United Nations Security Council, 2005. Res. 1625, UN Doc. S/RES/1625.
United Nations Security Council, 2005. Res. 1626, UN Doc. S/RES/1626.
United Nations Security Council, 2006. Res. 1706, UN Doc. S/RES/1706.
United Nations Security Council, 2006. Res. 1706, UN Doc. S/RES/1706.
United Nations Security Council, 2006. Res. 1730, UN Doc. S/RES/1730.
United Nations Security Council, 2007. Res. 1765, UN Doc. S/RES/1765.
United Nations Security Council, 2010. Res. 1925, UN Doc. S/RES/1925.
United Nations Security Council, 2010. Res. 1962, UN Doc. S/RES/1962.
United Nations Security Council, 2011. Res. 1996, UN Doc. S/RES/1996.
United Nations Security Council, 2012. Res. 2062, UN Doc. S/RES/2062.
United Nations Security Council, 2012. Res. 2070, UN Doc. S/RES/2070.
United Nations Security Council, 2012. Res. 2079, UN Doc. S/RES/2079.
United Nations Security Council, 2013. Res. 2098, UN Doc. S/RES/2098.
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9. Press Releases, Letters, Statements, and Notes of the
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United Nations Press release, 1998. Secretary-general, in 'mission of healing' to Rwanda,
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United Nations Security Council, 1960. Cable dated 12 July 1960 from the President of the
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United Nations Security Council, 1991. Letter dated 26 November 1991 from the Permanent
Representative of Yugoslavia to the United Nations addressed to the President of the Security
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United Nations Security Council, 1992. Letter dated 29 November 1992 from the SecretaryGeneral addressed to the President of the Security-Council. UN Doc. S/24868. New York:
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United Nations Security Council, 1995. Statement by the President of the Security Council,
UN Doc. S/PRST/1995/9.
United Nations Security Council, 1999. Letter dated 23 July 1999 from the Permanent
Representative of Zambia to the United Nations addressed to the President of the SecurityCouncil. Annex: Ceasefire Agreement. UN Doc. S/1999/815. New York: United Nations.
United Nations Security Council, 2004. Letter dated 29 February 2004 from the Permanent
Representative of Haiti to the United Nations addressed to the President of the Security
Council. UN Doc. S/2004/163.
United Nations Security Council, 2006. Letter dated 17 August 2006 from the SecretaryGeneral addressed to the President of the Security Council. UN Doc. S/2006/266.
United Nations Security Council, 2012. Statement by the President of the Security Council.
UN Doc. S/PRST/2012/12.
United Nations, 2006. ‘Note to the Under-Secretary-general of the Department of
Peacekeeping Operations, United Nations’ in United Nations Juridical Yearbook 2003. New
York: United Nations, Office of Legal Affairs, 700.
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