Between\tR2P and\tthe ICC: “Robust Peacekeeping” and the Quest for Civilian Protection (2015)

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Between R2P and the ICC “Robust Peacekeeping” and the Quest for Civilian Protection

Frédéric Mégret Associate-‐Professor, Faculty of Law, McGill University

Introduction .......................................................................................................................................................... 1 I. A Metamorphosis? .......................................................................................................................................... 3 A. Failure and Soul Searching ................................................................................................................... 3 B. From Protection of Civilians to Robust Peacekeeping .............................................................. 6 C. Implications for the Changing Nature of Peace Operations .................................................... 9

II. Relationship to R2P and International Criminal Justice ............................................................ 12 A. Differences and Affinities ................................................................................................................... 12 B. A Pro-‐State Bias? .................................................................................................................................... 15 C. Dynamic Articulation ............................................................................................................................ 17

III. Moralization, Operationalization or Legalization? ..................................................................... 20 A. An Ambivalent Relationship to International Law .................................................................. 20 B. The Emergence of a Humanitarian Regime of Peacekeeping ............................................. 23 C. Law Catches Up? Towards Accountability for Civilian Protection ................................... 27

Conclusion ........................................................................................................................................................... 33

Introduction Whilst there has been significant focus on the relationship between R2P and the ICC,1 less attention has been paid to the influence of both on a phenomenon central to international reality: peace operations. Peace operations evidently predate these late 20th Century developments by several decades. They are the reliable workhorse of the UN when it comes to international conflicts and emerge from quite a different reality to address quite different problems. Crucially for the purposes of this SPECIAL/SYMPOSIUM issue, where R2P often operates from the air, and the ICC from the Hague, peace operations often unfold directly in the very areas where the international crimes that R2P is supposed to avert and the ICC supposed to repress occur.

1 Benjamin N Schiff, ‘Lessons from the ICC for ICC/R2P Convergence’ (2010) 21 The Finnish Yearbook of International Law 101; Frédéric Mégret, ‘ICC, R2P and the Security Council’s Evolving Interventionist Toolkit’ [2011] Finnish Yearbook of International Law; Michael Contarino, Melinda Negrón-‐Gonzales and Kevin T Mason, ‘The International Criminal Court and Consolidation of the Responsibility to Protect as an International Norm’ (2012) 4 Global Responsibility to Protect 275.

As such peace operations, although answering initially to very different logics than those of R2P and international criminal justice,2 can also be seen as a laboratory where their influence can be felt in real time. Moreover, they can shed light on the relationship between the two, which may be characterized by complementarity but also tensions. Peace operations can be one of the international community’s first line of defense against atrocities, an existing asset to deal with threats to civilians; and they can also be a space of relative resistance to the logic underlying R2P and international criminal justice. At stake is a tension between the specificity of the peace seeking logic in its traditional form and an increasingly strong emphasis on atrocity prevention and repression. The question may well be asked, therefore, whether it is R2P and the ICC that will have a significant impact on peace operations, or the reverse? Peacekeeping traditionally had very little to do with protecting civilians. Its goal was, as its name indicates, to maintain peace. It might well be expected of course that civilians would benefit from such peace, yet peace was defined largely in inter-‐state or state terms, as a broader public good that was not justified specifically or forcefully in relation to its benefits for civilians. Concretely, peacekeepers were often deployed on armistice lines where they might face tense stand-‐offs between different armies, but from which civilians were typically at a safe distance. At any rate, peacekeepers had no mandate to engage in policies directly vis-‐à-‐vis civilians, and the states that accepted their presence would not have wanted them to. Typically, a traditional peace operation would not have considered that it had significant responsibilities vis-‐à-‐vis civilians, let alone expressed in strong human rights or legal terms. Nonetheless, as this article will endeavor to show, protection of civilians has slowly attained an increasingly central position in the design and implementation of peace operations. This change emerged from a series of both conceptual and operational evolutions that took a long time to take hold, and only did so as a result of repeated and persistent crises that put the entire concept of peace operations in crisis. In the background, momentous changes were taking place in the normative environment in which peace operations operate. Whilst international peace and security remain foremost as a justification for the creation of peace operations and in the minds of their creators, the rise of what Ruti Teitel has described as “Humanity’s Law”3 (a convergence of international humanitarian law, international human rights law and international refugee law) has arguably had a slow but often decisive impact on the configuration of UN operations. This article seeks to explore the specific course that peace operations have taken since the early 1990s in order to assess the degree to which the protection of civilians and, as a result, a greater willingness to use force, has become a dominant, even defining 2 See Walter Lotze, ‘Tale of Two Councils -‐ The African Union, the United Nations and the Protection of Civilian in Cote d’Ivoire, A’ (2011) 3 Global Responsibility to Protect 365, 375. (pointing out that the story of Côte d’Ivoire, in which a peace operation successfully invoked the protection of civilians, “may be less about the success of the responsibility to protect concept as it is about the success of the protection of civilians approaches which the Un has been developing for its peacekeeping operations over the course of the past decade.”) 3 Ruti G Teitel, Humanity’s Law (Oxford University Press 2011). The regime of protection of civilians in peace operations is often a bizarre mix of various sources, none of which are ever spelled out specifically. It clearly borrows from the humanitarian and human rights concepts of protection, but is not reducible to them and probably errs closer to the former than the latter.

characteristic of peace operations. It begins by charting how peace operations have undergone a metamorphosis of sorts as a result of the rise of an increasingly strong anti-‐atrocity turn in international law and policy (I). It then examines the relationship of peace operations to both the notion of R2P and the ICC, finding certain structural affinities between all three (II). Finally, it seeks to interrogate the extent to which this evolution is determined by international norms and might prompt a process of legalization of a duty to protect civilians in peace operations (III). The article seeks to weave together strands of operational, political and legal thinking about peacekeeping that are often not dealt with together in a way that results in an impoverishment of our understanding of the issues at stake.

I. A Metamorphosis? Peace keeping has not escaped a wave of soul searching and questioning about what states and international organizations such as the UN should do to deal with mass atrocity, with crucial implications for how peace operations should deal with civilians more generally (A). This has led to the emergence of the protection of civilians as a dominant theme in UN talk and the idea of “robust peacekeeping” (B). All in all, this evolution creates tremendous challenges for the very nature of peacekeeping (C).

A. Failure and Soul Searching Changes in the conception of peacekeeping, the emergence of R2P and the creation of the ICC share a common root in the tragedies of Bosnia and Rwanda. Whatever else these tragedies may stand for – the need for international criminal institutions (ICTY/ICTR) or for forceful intervention (NATO/Turquoise) to protect civilians – they certainly stood specifically for failures of peace operations. In both Bosnia and Rwanda, peace operations were deployed on the site of atrocities, offering at least a potential for protection, yet both failed dismally. UNAMIR, the Rwandan operation, was arguably taken more by surprise than UNPROFOR, the Bosnia operation. It had been deployed as very much a traditional peace operation. It was not specifically tasked with averting genocide or even particularly protecting human rights but to monitor the Arusha peace agreement. Although there had been forewarnings, the genocide unfolded suddenly and at great speed, leaving UNAMIR little time to react. It was, at any rate, ill-‐equipped to stop a mass atrocity in its tracks. Nonetheless, whilst some commanders seemed overwhelmed by the speed and magnitude of events, others improvised tactical protection actions that provided at least temporary relief. This suggests that although the UN would have had difficulty averting the genocide,4 it would at least have averted some casualties.5 Overall, the UN did very little to stop the genocide and has since been frequently faulted for it.6

4 Alan J Kuperman, The Limits of Humanitarian Intervention: Genocide in Rwanda (Brookings Institution Press 2004). 5 Scott Feil, ‘Preventing Genocide: How the Early Use of Force Might Have Succeeded in Rwanda’ [1998] Leadership and Conflict Resolution 304. 6 Frederik Grünfeld and Anke Huijboom, The Failure to Prevent Genocide in Rwanda: The Role of Bystanders, vol 23 (Martinus Nijhoff Publishers 2007); Romeo Dallaire and Ray Dupuis, Shake Hands with the Devil (Seville Produtions (Dallaire) 2007).

The situation of UNPROFOR in relation to Srebrenica was in some ways more damning. The war in the former-‐Yugoslavia and in Bosnia specifically had unfolded in slow motion for more than 2 years. There had been abundant signs of the nature of the political objectives of the Bosno-‐Serbs and the extremes to which they might resort in their pursuit of an ethnically cleansed Bosnia. UNPROFOR included for the first time in the history of peace operations a mandate not only of humanitarian assistance but of humanitarian protection. Strikingly, it was the UN itself that had created “safe areas,” thereby committing itself further to the protection of specific Bosnian-‐Muslim populations that had regrouped within them. Srebrenica was one such zone. When the Bosno-‐Serbs decided to overwhelm Srebrenica, they intimidated and manipulated the Dutch UNPROFOR contingent into collaborating with them or at least turn a blind eye to the separation of men from women and children. It is estimated that thereupon more than 8,000 were executed and buried into mass graves.7 In both cases, a tremendous feeling emerged that the UN had failed its responsibilities in not preventing atrocities. If nothing else, the fall of Srebrenica has been understood as a massive moral failure, one in which an institutional ethos was allowed to predominate other ultimate responsibility for the “other.”8 Indeed, few episodes have created as much soul searching about the UN’s goals and standing in the world than its failures in Rwanda and Srebrenica. The UN conducted considerable lessons learnt exercises on its mistakes in both theatres, leading to a Report of the Secretary General in the case of Srebrenica9 and of an Independent Inquiry in the case of Rwanda.10 The unmistakable conclusion was that the UN had made mistakes, and had failed not only victims but the international community in general. In the case of Srebrenica, the SG expressed his “deepest regret and remorse” that “through error, misjudgment and an inability to recognize the scope of the evil confronting us, (the UN) failed to do (its) part to save the people of Srebrenica.”11 In the case of Rwanda, a similar conclusion would be repeated over the years in mounting crescendo of solemnity, culminating with an official apology presented on the 20th anniversary of the Genocide by Colin Keating, who had been the President of the Security Council in April 1994. The SG’s High Level Panel found that the treatment of Rwanda, abominable in itself, also raised an equity issue if one compared its actions there to the UN’s swift and efficient response to the 9/11 attacks.12 By contrast to both Srebrenica and Rwanda, the “concerted pressure swiftly to halt large-‐scale killing” in East-‐Timor has often been presented as an example.13

7 D Rohde, Endgame: The Betrayal and Fall of Srebrenica, Europe’s Worst Massacre since World War II (Basic Books 1998). 8 GÓ Tuathail, ‘The Fall of Srebrenica and the Ethics of UN-‐Governmentality’ [1999] Geography and ethics: journeys in a moral terrain 120. 9 Report of the Secretary-‐General pursuant to General Assembly resolution 53/35, The Fall of Srebrenica, A/54/549, 15 November 1989. 10 Report of the Independent Inquiry into the actions of the United Nations during the 1994 genocide in Rwanda, S/1999/1257, 16 December 1999. 11 Report of the Secretary General, supra note 9, para. 503. 12 UN General Assembly, Report of the High-‐level Panel, supra note 8, para. 41. 13 Ibid., para. 87.

As will be further explored in the final section of this article, this soul searching fell far short of a more extensive acknowledgement of some form of legal responsibility for the deaths that occurred. But it did set in motion a whole series of developments that were to profoundly redefine the nature of peace operations. The UN found that both in Rwanda and Bosnia it had failed to understand the full magnitude of what was unfolding, or to recognize that it was dealing with actors that manifested a form of evil far removed from the sort of political rationality envisaged by traditional peace keeping scenarios. As a result, a lack of resolution in deciding to use force when necessary led to tragic consequences. The UN emerged with a better understanding that some of the violence entrepreneurs it was confronting would not be amenable to the traditional pressures to respect the laws of war. For the Independent Inquiry into the actions of the United Nations during the 1994 genocide:

Faced in Rwanda with the risk of genocide, the United Nations had an obligation to act which transcended traditional principles of peacekeeping. In effect, there can be no neutrality in the face of genocide, no impartiality in the face of a campaign to exterminate part of a population. While the presence of United Nations peacekeepers in Rwanda may have begun as a traditional peacekeeping operation to monitor the implementation of an existing peace agreement, the onslaught of genocide should have led decision-‐makers in the United Nations … to realize that the original mandate, and indeed the neutral mediating role of the United Nations, was no longer adequate and required a different, more assertive response, combined with the means necessary to take such action.14

Similarly the SG noted in the case of Srebrenica that:

With the benefit of hindsight, one can see that many of the errors the United Nations made flowed from a single and no doubt well-‐intentioned effort: we tried to keep the peace and apply the rules of peacekeeping when there was no peace to keep. Knowing that any other course of action would jeopardize the lives of the troops, we tried to create — or imagine — an environment in which the tenets of peacekeeping — agreement between the parties, deployment by consent, and impartiality — could be upheld. (…) The cardinal lesson of Srebrenica is that a deliberate and systematic attempt to terrorize, expel or murder an entire people must be met decisively with all necessary means, and with the political will to carry the policy through to its logical conclusion.15

This view was later systematized in the Brahimi report which noted that:

(…) impartiality is not the same as neutrality or equal treatment of all parties in all cases for all time, which can amount to a policy of appeasement. 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.16

14 UN Security Council, Report of the Independent Inquiry, supra note 10, pp. 50-‐51. 15 Report of the Secretary General, supra note 9. 16 UN Document, Report of the Panel on United Nations Peace Operations, A/55/305–S/2000/809, 21 August 2000, para. 50.

Consequently, the UN underwent an at least rhetorically renewed willingness to use force (“decisive action”, etc). Although this was not only to avert atrocities and also involved a more general lesson about the need for vigorous pursuit of peace in the face of “spoilers,” it was particularly clear where atrocities might be involved. If “truly safe areas” were to be created, for example, the Secretary General concluded following Bosnia that they ought to be “fully defended by a credible military deterrent.”17 Brahimi insisted, after referring to the Rwanda debacle, that:

the Secretariat must not apply best-‐case planning assumptions to situations where the local actors have historically exhibited worst-‐case behaviour. (…) It means bigger forces, better equipped and more costly, but able to pose a credible deterrent threat, in contrast to the symbolic and non-‐threatening presence that characterizes traditional peacekeeping. (…) Such forces should be afforded the field intelligence and other capabilities needed to mount a defence against violent challengers. (…) Willingness of Member States to contribute troops to a credible operation of this sort also implies a willingness to accept the risk of casualties on behalf of the mandate.18

Thus what had already been implicit in Bosnia – that complex internecine conflicts would inevitably call upon the UN to up the ante in terms of use of force – became more generally recognized as a permanent possibility for the UN after the Srebrenica and Rwanda debacles. Once something to steer clear off, the “Mogadishu line” (the one symbolically separating peacekeeping from peace enforcement)19 was one that the UN anticipated itself as crossing much more readily largely as a result of concerns for civilians.

B. From Protection of Civilians to Robust Peacekeeping Initially, much of the normative impetus for changes came from the Genocide convention, and the rather strict obligations it imposes on states and, arguably, international organizations to prevent genocide. Rwanda in particular had foregrounded genocide as the crime of crimes. Yet the relatively high threshold of genocide and the difficulty of proving all its elements – especially in the real time conditions of an unfolding crisis – made it quite narrow a normative starting point. Concern for civilians in peace operations arises far short of this extremely high threshold, and the understanding has increasingly been that peace operations should be involved in protecting civilians at every level – not only to the very limited extent that they formed part of a protected group that one party aimed to destroy as such. The cases in which peacekeeping forces should feel a responsibility quickly expanded to encompass a range of situations where civilians might find themselves in danger.

17 UN General Assembly, Report of the Secretary-‐General Pursuant to General Assembly Resolution 53/35: The Fall of Srebrenica, para. 499. 18 UN, Report of the Panel on United Nations Peace Operations, supra note 16, paras 51-‐52. 19 After the failure of the peace operation in Somalia, the Secretary General asked the Council to deploy UNISOM I and UNISOM II to create conditions on the ground for the safe delivery of humanitarian assistance.

The Security Council took note of this evolution towards the end of the 1990s, as the Rwanda and Srebrenica reports were emerging. Resolution 1265 is notable for expressing the Council’s:

… willingness to respond to situations of armed conflict where civilians are being targeted or humanitarian assistance to civilians is being deliberately obstructed, including through the consideration of appropriate measures at the Council’s disposal in accordance with the Charter of the United Nations.20

Indeed, the notion of protection of civilians became an independent cross-‐cutting theme in 1999, and has been the object of bi-‐annual Security Council meetings ever since. In that context, the Under-‐Secretary General developed a 10-‐point platform for action on the protection of civilians in armed conflict.21 The UN’s capstone doctrine for peacekeeping identified the protection of civilians as one of four “cross cutting, thematic tasks” that peacekeepers are expected to fulfill, even when it is not explicitly in their mandate.22 “Protection” covers a range of issues beyond physical protection in line with that term’s general legal humanitarian understanding. International humanitarian law, international human rights law, refugee law and domestic law all contribute to outlining protection’s normative framework. The broad agenda is thus one of protecting populations in war. Although physical protection has often been foregrounded given its obvious importance, POC is arguably broader and includes a range of more traditional activities such as humanitarian assistance or human rights monitoring.23 The emphasis has been, notably, on a range of non-‐violent measures that peacekeepers can adopt, ranging from the most strategic to the most tactical. The mere “power of presence” has often been emphasized as at times crucial and there is evidence, for example, that it deterred génocidaires in places like the ETO in Kigali for a time. The role of peacekeepers in negotiating access to civilians has been emphasized, as well as the need to demilitarize refugee camps.24 Peacekeepers have increasingly been given mandates to disarm, demobilize and reintegrate ex-‐combatants who might otherwise be a threat to the civilian population.25 They have been asked to separate combatants from civilians in refugee or IDP camps.26 They have also deployed a range of concrete measures and tactics to protect civilians such as cordoning, establishing presences close to vulnerable civilian centers. Finally, despite persistent suspicions that peacekeepers

20 UN Security Council, Security Council Resolution 1265, S/RES/1265, 17 September 1999, para. 10. 21 This was introduced by Under-‐Secretary General Egeland at a meeting of the Security Council. See in S/PV.4877, 9 December 2003, p. 7. 22 UN Department of Peacekeeping Operations, United Nations Peacekeeping Operations: Principles and Guidelines, March 2008, p. 16. 23 There is much confusion in practice between different grounds for and concepts of protection. For a more thorough treatment, see Haidi Willmot and Scott Sheeran, ‘The Protection of Civilians Mandate in UN Peacekeeping Operations: Reconciling Protection Concepts and Practices’ (2013) 95 International Review of the Red Cross 517. 24 UN General Assembly, Report of the High-‐level Panel, supra note 8, para. 236. 25 UN Security Council, Report on the protection of civilians in armed conflict, supra note 7, para. 65. 26 Ibid., para. 64.

have occasionally been part of the problem, they have gradually crafted a role for themselves in terms of addressing conflict related sexual violence.27 Yet aside from this more preventive focus, the possibility of more active and greater use of force by peacekeepers is also one that has steadily garnered attention in New York and in the field under the moniker of “robust peacekeeping”28 first introduced in the Brahimi report. Robust peacekeeping emerges from the legacy of Bosnia and Rwanda and testifies to a new mood within peacekeeping circles. It emerged as an attempt to bridge the gap between peacekeeping and peace enforcement (the elusive “Chapter VI ½”), which claimed to safeguard the fundamental commitment to impartiality of the former whilst not risking the UN’s soul by failing to engage in the latter. It is one that emphasizes the need for peace forces to protect themselves and generally operate with more freedom. It has, however, gradually foregrounded the possibility that peacekeepers use force to protect civilians, in ways that subtly tilt peace operations’ rules of engagement. In 2003, for example, DPKO’s Best Practices Section published a Handbook on United Nations Multidimensional Peacekeeping Operations that emphasized that instructed peacekeepers to “actively pursue the implementation of their mandate even if doing so means going against the wishes of one or more of the parties [to the conflict].”29 Self-‐defense was described as “the right to protect … any other persons under UN protection.”30 Several peacekeeping operations in the last decade, such as those in Sierra Leone, Burundi, the Congo, Ivory Coast and Sudan show the sort of significant normative change that has been at work. The first resolution to ever contain language of this sort was the one authorizing UNAMSIL in Sierra Leone to “afford protection to civilians under imminent threat of physical violence.”31 Resolution 1291 of 24 February 2000 on Congo contains the following paragraph:

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 equipment, ensure the security and freedom of movement of its personnel, and protect civilians under imminent threat of physical violence.32

As can be seen from this broad mandate, the protection of civilians is not necessarily at the heart of the increased authorization of force (which is seen as primarily connected to

27 UNIFEM, Addressing Conflict-‐Related Sexual Violence. An Analytical Inventory of Peacekeeping Practice, 2010. 28 Richard Gowan and Benjamin Tortolani, ‘Robust Peacekeeping and Its Limitations’ [2008] Robust Peacekeeping: The Politics of Force 49. 29 UN Department of Peacekeeping Operations, Handbook on United Nations Multidimensional Peacekeeping Operations (New York: United Nations, 2003), p. 56. 30 Ibid., p. 57. 31 UN Security Council, Security Council Resolution 1289, S/RES/1289, 7 February 2000, para. 10(e). 32 UN Security Council, Security Council Resolution 1291, S/RES/1291, 24 February 2000. See also UN Security Council, Security Council Resolution 1484, S/RES/1484, 20 May 2003; UN Security Council, Security Council Resolution 1493, S/RES/1493, 28 July 2003, para. 27.

a broad mission implementation agenda) but it is nonetheless a significant and noticeable part of it. Although there seems to have been a lull in the emphasis on civilian protection in the early 2000s, this began to change notably after 2007 and the perception that the UN was once again failing in its efforts to protect civilians. The MONUC mandate was subsequently strengthened so that it was asked to “ensure the security of civilians, including humanitarian personnel,” and that to do so it “use all necessary means, within its capabilities.”33 Similar language had been used concerning the Ivory Coast,34 Darfur,35 South Sudan36 and Liberia.37 In fact, the protection of civilians has seemed to go from one activity among many, to the defining (despite persistent doubts about its own definition)38 element in the Congo mission and others on the basis that “successful missions are those that deal with the protection of civilians as an integrated part of their aims.”39 The consequences of such a development were visible in a place like the Ivory Coast where the peace mission ultimately transformed itself into a full fighting force to remove a political leader who was increasingly associated with attacks on civilians. Some recent peace operations have coincided with higher levels of violence as a result of peacekeepers being more willing not only to defend themselves, but to defend civilians. One incident in the Congo close to Goma saw UN peacekeepers, with aerial support from helicopters, engage and kill as many as 200 militia members.40

C. Implications for the Changing Nature of Peace Operations Robust peacekeeping, to the extent that it is implemented, has significant implications for the very nature of peace operations. Principally, it reframes the finality of peace operations towards the protection of civilians and the prevention of international crimes. Of course, at a certain level the protection of civilians is increasingly seen as necessary for peace. The Security Council has been saying this much at least since the early 1990s, and the Secretary General is keen to promote civilian protection as instrumental to good peace building. For example he insisted that peace operations should “protect civilians to protect the peace,” because the “plight of civilians … complicates political negotiations or interests.”41

33 UN Security Council, Security Council Resolution 1649, S/RES/1649, 21 December 2005, paras 8, 11. 34 UN Security Council, Security Council Resolution 1528, S/RES/1528, 27 February 2004, para. 6(i). 35 UN Security Council, Security Council Resolution 1769, S/RES/1769, 31 July 2007. 36 UN Security Council, Security Council Resolution 2057, S/RES/2057, 5 July 2012. 37 UN Security Council, Security Council Resolution 2066, S/RES/2066, 17 September 2012. 38 There is a tension, in particular, between a concept of « protection » informed by international humanitarian law which includes a host of activities traditionally undertaken by the ICRC and humanitarian actors to ensure that the laws of war are respected (and which they typically are reluctant to see endorsed by UN operations), and a more narrow understanding of « physical protection » where peace operations protect populations, but the line that separates the two is often blurry. 39 UN Department of Peacekeeping Operations and Office for the Coordination of Humanitarian Affairs, Protecting Civilians in the Context of UN Peacekeeping Operations (New York: United Nations, 2009), p. 23. 40 ‘UN Helicopters Strike Congolese Rebels -‐ Al Jazeera English’ <http://www.aljazeera.com/news/africa/2013/08/201382815950221122.html> accessed 21 January 2015. 41 UN Security Council, Report on the protection of civilians in armed conflict, supra note 7.

In this context, according to one influential DPKO/OCHA study, “The security of civilians in post-‐conflict environments is critical to the legitimacy and credibility of UN peacekeeping missions, the peace agreements they are deployed to help implement, and the institution of the United Nations itself.” The issue of perceptions of the local population has been emphasized, as well as the notion that “peacekeeping operations that are ill-‐prepared to address large-‐scale violence directed against civilians will falter and may even collapse.” Moreover, it has become clear that “a peace agreement that does not bring a halt to armed violence, widespread human rights abuses and violations of international humanitarian law—or that tolerates continued violence against sectors of the population—cannot lead to legitimate governance.” In fact, “the inability of peacekeeping missions to address violence against civilians in the past has damaged the standing of the United Nations and threatened to discredit the practice of peacekeeping in general.”42 In this context, the rebranding of peace operations as fundamentally about civilian protection may well be an appealing one for an organization such as the UN that is at times fighting to defend its legitimacy. Protection of civilians provides a seemingly neutral goal that may seem to be more concrete and immediately achievable than achieving peace, and that may well enhance the UN’s authority. The shift, for all its utilitarian justification, is nonetheless a significant one, that involves a rupture in the language used. The emphasis on the complementarity of all goals (peace and the protection of civilians) should not obscure their real differences. Peace is a broad political goal. The commission of atrocities against civilians will certainly compromise it, but so will many other things. Moreover, the search for peace is traditionally understood as involving political compromises between states or a state and non-‐state actors. UNPROFOR and UNAMIR, for instance, were paralyzed by a vision of having to protect or pursue peace above all, which left them legally, politically and morally disarmed when confronted with extreme violence against civilians. Putting civilian protection at the heart of the UN’s mandate requires a very deep rethink of the nature, goals and purposes of peace operations. Most significantly, it has deep implications for the cardinal principle of impartiality. Traditional peace operations were based on the impartiality of peacekeepers (and the importance of that requirement had been if anything heightened by the requirements of providing assistance). The protection of civilians, however, especially in a context of atrocity commission that is seen as emanating primarily from one side, often requires them to choose sides. The protection mandate is certainly impartial in that it is impartial vis-‐à-‐vis different civilian victims. A victim is a victim, whether at the hands of the state or a rebel movement. But humanitarian impartiality vis-‐à-‐vis victims means, precisely, a certain partiality against those who prey on civilians. DPKO’s Handbook for example emphasizes that “impartiality does not mean inaction or overlooking violations.”43 This taking of sides is not quite, as was traditionally feared, the blatant political sort, that would risk fundamentally compromising a mission’s peace-‐enabling credentials. But it is one that typically requires determining which parties are responsible for atrocities and confronting them. It is thus in tension with the more traditional striving to being and being perceived as an impartial arbiter which has increasingly come under criticism in a

42 DPKO/OCHA, Protecting Civilians in the Context of UN Peacekeeping Operations, supra note 38, pp. 2-‐4. 43 Ibid., p. 56.

post Cold war world.44 This was already apparent in Bosnia and had been a concern for the Secretary General, who saw UNPROFOR’s mandate as coming dangerously close to requiring it to thwart certain military objectives, something difficult to reconcile with the delivery of independent humanitarian aid, not to mention the role of impartial arbiter for the purposes of securing a peace deal. In due course, Serb forces in Bosnia became adamant that UN forces were effectively aligning themselves with the Bosnian government. The taking of sides in peace operations has always been problematic. There are ways of course in which institutional design can reduce the confusion that arises from peace operations engaging in enforcement action. For example, the “robust” element might be distinguished entirely from the peace operation (distinct “peace enforcement units”),45 as when NATO took care of bombing Bosno-‐Serb targets in the former-‐Yugoslavia rather than UNPROFOR, or as when the British undertook Operation Palliser to rescue UNAMSIL in Sierra Leone, or Operation Licorne was deployed side by side with UNOCI in Ivory Coast. In the RDC, a separate “intervention brigade” was created, in ways that may marginally have helped MONUSCO maintain its credentials as a neutral intermediary. Nonetheless, in that case the fact that the Brigade came under MINUSCO command suggested that it was fundamentally seen as part of the peace effort, not as something running parallel to it. Although Resolution 2098 that created the Brigade insisted that fighting against armed groups should be done without “any prejudice to the agreed principles of peacekeeping”, this is arguably precisely what it does. In practice, it will be very difficult to fool local actors that this other emanation of the international community is entirely distinct from the existing peace keeping force. Aside from a host of military, operational, institutional, and legal challenges,46 the issue of use of force by peacekeepers remains one fraught with conceptual problems. For example, the protection of civilians will need to be weighed against the overall safeguard of the mission, an issue that has not gone away simply because of the added normative urgency of protecting civilians.47 Protecting civilians is an activity that is difficult to carry out as an aside, without it taking over an entire mission. Taking sides will be particularly problematic in a context where all parties often target civilians, even if one side does so more for political or military reasons. Even the protection of populations in safe-‐areas can easily be mistaken for a protection of a particular party’s territory. The possibility that the UN will intervene in ways that objectively support one side in a conflict has even opened up the possibility of groups seeking to manipulate peacekeepers on the ground to incite them to take sides. The inevitable slide to a greater use of violence by peacekeepers is bound to put peace operations, and the legitimacy of their mandates, under ever-‐greater scrutiny. Interventions here and there to protect civilians will soon be known across a conflict zone and may trigger hostile reactions. It is difficult, in other words, to “tactically” protect civilians without being seen as “strategically” taking sides. Protection of civilians 44 RK Betts, ‘The Delusion of Impartial Intervention’ [1994] Foreign Affairs 20. 45 Adam Roberts, ‘The Crisis in UN Peacekeeping’ (1994) 36 Survival 93, 101–102. 46 On these issues, particularly those involving chain of command and mission definition, see DPKO/OCHA, Protecting Civilians in the Context of UN Peacekeeping Operations, supra note 38, pp. 9-‐12. 47 Thierry Tardy, ‘A Critique of Robust Peacekeeping in Contemporary Peace Operations’, Journal of International Peacekeeping, vol. 18, no. 2, April 2011, pp. 152-‐167.

may, more concretely, lead to retaliations against peacekeepers with the attendant risk that they will be confined to their barracks,48 and the danger that an entire mission will be compromised.49 Within the same theatre, it will be hard, if not impossible, to be civilian protector one day, honest mediator the next. The protection of civilians may clash with efforts at brokering agreements or creating the political conditions for peace. Complex tradeoffs will inevitably arise, for example between protecting oneself and protecting others, or protecting the local or expatriate populations.50 A withdrawal of the host state’s consent remains an option.51

II. Relationship to R2P and International Criminal Justice This evolution of peace operations is part of a broader phenomenon. To the extent that peace operations have evolved at the intersection of the emergence of R2P and international criminal justice, one might expect a degree of conceptual cross-‐fertilization (A). One interesting affinity between all three may be a certain commitment, beyond the fight against atrocities, to the consolidation of weak states (B). This makes it possible for peace operations to operate dynamically in the context of R2P and the ICC, even as they remain irreducible (C).

A. Differences and Affinities The differences between robust peacekeeping and international criminal justice are almost too evident to mention. Like robust peacekeeping, international criminal tribunals emerge as a response to international atrocities. Indeed, there has long been a line of argument that has characterized the creation of the ICTY and the ICTR as precisely resulting from the failures of peacekeeping and as, in a sense, an alternative to them.52 International tribunals, however, evidently function through different modalities, whose specificity lies in (i) their juridical and judicial character, (ii) their focus on individuals, and (iii) their inherently repressive, after-‐the-‐fact nature. One could add that international criminal tribunals, unlike peace operations, typically operate as a form of intervention at a safe distance from the place where atrocities are being committed. Where peace operations seek to avert atrocities, international criminal tribunals seek to punish them. The risk of confusion between “robust peacekeeping” and R2P is more likely because both overlap somewhat, at least to the extent that they potentially involve troop deployment and assistance to the state. In principle, R2P is clearly a separate

48 The killing of nine Bangladeshi soldiers on 25 February 2005 by a militia in Congo is a reminder of the fundamental vulnerability of peacekeepers especially when they expose themselves and attract the ire of local entrepreneurs of violence. 49 The death of 10 Belgian peacekeepers in the wake of the Rwandan genocide had a considerable role in leading to the pullout of UNAMIR. Interestingly, when killed, they had just sought to protect a civilian, the then Prime Minister. 50 Astri Suhrke, ‘Dilemmas of Protection: The Log of the Kigali Battalion’, Journal of International Peacekeeping, vol. 5, no. 2, Summer 1998, pp. 1-‐18. 51 Congo, for example, has been gradually putting the UN under pressure to withdraw its operations there. 52 Daphna Shraga, ‘The Security Council and the Obligation to Prevent and Punish Genocide’ [2010] PISM Series 257.

development from the protection of civilians or “robust peacekeeping,” one that is not specifically concerned with peace operations and truly emerged only after the Kosovo episode in 1998. The idea that the Security Council should do more to protect civilians in peace operations anticipated R2P debates by several years and was in fact almost entirely distinct from it. Robust peacekeeping’s civilian protection mandate remains largely secondary to a peace keeping agenda, as reflected by the emphasis put on force protection. R2P is concerned with the responsibilities of states and the international community at large. It is, at heart, an elaboration on the circumstances in which the international community should be willing to intervene to prevent atrocities (not just by force). It involves strategic decisions about when and why to intervene, typically not through peace operations, for example because the atrocities involved are of an order of magnitude far beyond the means of a traditional peacekeeping. One might say that R2P is a question of jus ad bellum, where robust peacekeeping operates if not as part of the jus in bello, at least as part of a much more tactical version of the jus ad bellum. Tremendous effort has gone into distinguishing “robust peacekeeping” from “peace enforcement.” The Secretary General has insisted that “While the work of peacekeepers may contribute to the achievement of R2P goals, the two concepts of the responsibility to protect and the protection of civilians have separate and distinct prerequisites and objectives.”53 There are sound arguments, moreover, to keep peace operations and R2P separate. For example, thinking of peace operations in terms of R2P may create misplaced expectations that peace operations can and should be the primary tool to engage in enforcement action for which they are ill fitted. One of the lessons of UNPROFOR and UNAMIR is that they might have engaged in more robust peacekeeping in discreet locales, not that they could as such have provided the fer de lance of an effort to stop crimes against humanity or genocide. Moreover, R2P exists as a responsibility quite irrespective of whether the UN already has a presence on the ground in the form of a peace operation. Peace operations protect civilians as part of a broader mission if and when they encounter threats to civilians (e.g.: Democratic Republic of Congo) but are not engaged in a broader enforcement intervention against the sovereign (i.e.: Libya). Confusion between the two might weaken peace operations efforts by eliciting starker resistance from the host state who, having accepted a peace operation might be surprised to suddenly find it engaging in resolute action on a grand scale to prevent atrocities. It may also create confusion for some member states. Having said that, in theory and practice there are several potential overlaps between peace operations’ civilian protection mandate, R2P and even the ICC. As Nicolas Tsagourias has argued in relation to R2P and POC, “the two concepts are “interlinked and indeed constitute parts of the broader concept of protecting people (they) are streams of the same concept”54 As already hinted, all three share a common ancestor. Although in the case of R2P Kosovo was the most proximate triggering event, its emergence is haunted by the early 90s failures of Bosnia and Rwanda (indeed the already mentioned Rwanda and Srebrenica reports came out soon after the Kosovo bombings). As to the ICC, it is the inheritor to two ad hoc tribunals that were created as

53 A/66/874, para. 16. 54 N Tsagourias, ‘Self-‐Defence, Protection of Humanitarian Values and the Doctrine of Impartiality and Neutrality in Enforcement Mandates’ in Marc Weller (ed), The Oxford Handbook of the Use of Force in International Law (Oxford University Press 2014).

responses Bosnia in Rwanda. In this context, both R2P and international criminal tribunals have given an added sense of urgency to what the UN should do in circumstances where threats to civilians reach the level of atrocities. They may help reframe “ordinary” threats against civilians as looming atrocities. One of the unintended side-‐effects of the rise of the R2P and the ICC may be the extent to which they contribute to diagonally reframe peace operations’ POC mandate. Both help transform the protection of civilians in peace operations from a highly desirable humanitarian goal for peace into a more clearly articulated legal/moral obligation whenever international crimes are involved.55 More subtly, one could argue that there has been a process of discreet mimetism between robust peacekeeping, R2P and the ICC. Both R2P and the ICC have provided a powerful language to shape expectations about the role of the international community in relation to that of the state. One of the key components of R2P is the idea that the UN is legitimized in intervening whenever a state is unable or unwilling to guarantee the security of its citizens. Similarly, a case will only be admissible before the ICC to the extent that the state is unwilling or unable to prosecute it. The core idea is that neither are supposed to substitute for the sovereign and that in fact the goal of international law is to encourage a proper use of sovereignty.56 This is a way of thinking that is also familiar to peace operations which are seen subsidiary in nature to the state’s own responsibilities. Indeed, the discourse of peacekeeping often draws from and reproduces tropes that have become familiar from R2P and the ICC and stress that “the protection of civilians is primarily the responsibility of the host government.”57 Even as it confirms the mandate of MONUSCO to robustly protect civilians, for example, the Security Council stresses “the primary responsibility of the government of DRC for ensuring security in its territory and protecting its civilians with respect to the rule of law, human rights and international humanitarian law.”58 The UN’s Master List of Numbered Rules of Engagement, drafted in 2002, also anticipate use of force by peacekeepers “when competent local authorities are not in a position to render immediate assistance.”59 Another similarity between R2P, the ICC and robust peacekeeping is the notion that the use of force should always be a last resort, and that in both cases prevention is the key goal. In this context, the reinforcement of a peace operation’s mandate to protect civilians, by force if necessary, is often narrowly tailored to a diagnosis about the state’s inability to do so in the circumstances, in ways that correspond quite closely to a 55 In that respect, it has been noted that « the borders between a ‘responsibility to protect’ operation and a peacekeeping operation with protection elements are not as distinct as some advocates of the ‘responsibility to protect’ suggest ». Siobhán Wills, Protecting Civilians: The Obligations of Peacekeepers (Oxford University Press 2009) 253. 56 Markus Benzing, ‘Sovereignty and the Responsibility to Protect in International Criminal Law’ in Doris König and others (eds), International Law Today: New Challenges and the Need for Reform? (Springer Berlin Heidelberg 2008) <http://link.springer.com/chapter/10.1007/978-‐3-‐540-‐75205-‐9_2> accessed 23 January 2015. 57 Draft DPKO/DFS Operational Concept on the Protection of Civilians in United Nations Peacekeeping Operations, para. 7. 58 SC/RES/2147 (2014). See also Concluding Observations of the Committee on Economic, Social and Cultural Rights Democratic Republic of the Congo E/C.12/COD/CO/4, 20 November 2009. 59 United Nations Master List of Numbered ROE, Guidelines for the Development of ROE for UNPKO, Provisional Sample ROE, Attachment 1 to FGS/0220.001, United Nations, April 2002.

perception of the international community’s role in the ICC or R2P as residual.60 In other words, peacekeeping powerfully echoes an overarching international norm of the subsidiarity of international intervention and the primary responsibility of local authorities.

B. A Pro-‐State Bias? The move to civilian protection may manifest a subtler and latent structural bias, a bias that is also well in evidence in R2P and the ICC. The increased use of force in peace operations to protect civilians raises two plausible, quite different scenarios. In the first case, force is exercised against the state if and when the latter threatens civilians. Such a move is not inconceivable on a very ad hoc basis or as an in extremis measure when a major campaign of hostility is being waged against civilians. It is nonetheless extremely problematic in conditions of peacekeeping because it is almost sure to be incompatible with that state’s consent. In other words, there is a strong tension if not an absolute incompatibility between peace keeping and muscular use of force against the state, which suggests that robust peacekeeping of this kind is an unlikely possibility (unless a peace operation gives up appearances and is reframed as an enforcement one). Indeed, if anything, even in cases where the state is suspected of committing crimes, peace operations have tended to throw their authority behind the sovereign, as if paralyzed by the possibility that they might undermine their viability altogether. Alternatively (and more plausibly) force is used against non-‐state actors (i.e.: typically rebel groups) who threaten civilians. The dangers here are very different. There may be an abundance of consent from the host state who will see UN intervention on its side favorably. In effect, muscular protection of civilians is far more likely to be exercised against non-‐state actors than against states. The problem in this case is the risk that peace operations will take on a more clear anti-‐non-‐state actor bias. This is a fortiori the case when, as with MINUSCO and the Forces armées de la République démocratique du Congo (FARDC), UN forces are specifically asked to coordinate with or even support state forces whose “primary responsibility” in ensuring security is very frequently stressed. Indeed, it is already clear that one of the best hopes for POC may lie in an uneasy alliance between certain peace operations and the state’s security apparatus.61 The impression of partiality that emanates from such arrangements may be reinforced by a sense that the state is not an impartial security provider, but in fact itself the result of processes of domination by certain groups (for example, in the case of the FARDC, the Tutsi dominated CRDP), not to mention one of the principal causes of insecurity to civilians. The likely shift of robust peacekeeping away from confronting the state and towards combating non-‐state actors is a surprising development in a context where the state (Rwanda) or at least state-‐like actors (e.g.: the Republika Srpska and its support from

60 This much was clear in the context of the Ivory Coast conflict, and the subtle evolution of the wording of resolutions which occasionally reminded that State of its responsibilities and at other times ‘forgot’ to mention them, in ways that manifest an “escalating robustness” Lotze (n 2) 368.. 61 J Arthur Boutellis, ‘From Crisis to Reform: Peacekeeping Strategies for the Protection of Civilians in the Democratic Republic of the Congo’ (2013) 2 Stability: International Journal of Security and Development Art. 48.

the Yugoslav Republic) were traditionally thought of as the primary danger in terms of committing atrocity crimes. Yet it is not incompatible with a certain “Hobbesian turn” in the evolution of both peacekeeping doctrine and conflict studies more generally, and an investment in state building and reinforcement as the solution to problems of civil strife. The UN has in a sense already long taken sides, all other things being equal, with states, and this is evident in robust peacekeeping and especially peace support operations which clearly contain an element of reestablishment of the sovereign order.62 A country like the Democratic Republic of Congo has essentially had little to complain about when it comes to the UN’s contribution to the reestablishment of its sovereignty on its territory. On the downside, coziness with the state will certainly make it harder subsequently to simultaneously fight the state in a context where it is also prone (if not more) to commit atrocities against civilians. As one commentator put it, “it remains a challenge for any commander to take on government forces with which they had been operating shoulder by shoulder the day before.”63 Thus the state, in carefully offering its cooperation, may also buy itself a certain tranquility. Ironically, it is here that one finds some of the subtlest but arguably deepest and perhaps most problematic analogies between robust peacekeeping and both R2P and the ICC. Both begin from a largely contra-‐sovereign mystique, originating as they did in the crimes of the Bosno-‐Serb and Rwandan governments (and the Nazis and Japanese imperialists further down), and anticipating a Humanity v. Sovereignty equation in which states, schematically, as the prime evil doers. In the best of cases, international criminal tribunals see themselves as prosecuting former or even current heads of states, whilst R2P envisages itself as being deployed against the state that is unwilling or unable to protect its population from atrocities. Helped by contingent circumstances (a strong Security Council backing, a relatively weak state), this is indeed what they do, and much is made of a precedent like Libya, seemingly a cas d’école or both R2P and the ICC working according to plans. Over time, however, both the ICC and R2P exhibit unmistakable signs of drifting away from this initial and superficial contra-‐sovereign dynamic. This is because this dynamic, at least in a world significantly dominated by states, is invariably paid at the risk of inefficiency and even irrelevance. Hence international criminal tribunals, from the ICTR to the ICC, have been extremely careful about confronting the very authorities on whose cooperation they rely to be able to continue to operate. Similarly, the most significant part of R2P relies on cooperation and collaboration with the state. This suggests that confrontation with the sovereign, whilst possibly inevitable in some cases, is something that should be avoided to the maximum. Conversely, international criminal tribunals have been tempted to go after relatively soft targets such as rebels or at least former government officers that no longer enjoy the state’s shielding. Similarly, one can see a gradual drift of R2P discourse, through emphasis of the first two pillars, away from fighting the state that attacks its civilians and towards helping the state fight the non-‐

62 Draft DPKO/DFS Operational Concept on the Protection of Civilians in United Nations Peacekeeping Operations, para. 7 (“The support that United Nations peacekeeping operations provide to host governments in carrying out this responsibility enables them to assert their authority, protect those within their borders, and focus on rebuilding the nation and, its institutions, thereby enhancing the sovereignty of States”). 63 MONUC as a Case Study in Multidimensional Peacekeeping in Complex Emergencies, p. 106.

state actors that attack its civilians. Both R2P and the ICC redefine themselves over time as being about the proper exercise of sovereignty. Just as it is easier for the ICC to prosecute non-‐state actors and thus benefit from state cooperation, and just as R2P is deeply premised on the idea of helping sovereigns fulfill their duties, it is easier for a peace operation to become the state’s ally in fighting rebels than to take on the state. The verdict seems to be that the protection of civilians as a function of peacekeeping is also heavily invested in a “Hobbesian” vision of human security, one in which the state must ultimately act and be made to act as the ultimate guarantor or protection. This means that it needs to be reinforced as a matter of urgent priority, even in contexts where its record is extremely fraught. Given the failure of states such as the RDC to live up to that ideal, however, it is not the least paradoxical result that the UN, despite its insistence on state responsibilities, often finds itself shouldering the lion’s share of expectations for security provision.64

C. Dynamic Articulation These fundamental affinities between robust peacekeeping, R2P and the ICC suggest that in practice these various institutions may be coordinated dynamically. Peace operations may certainly become part of R2P strategies and the Secretary General has made no secret of the need to “mainstream” R2P in, among others, peacekeeping.65 The second pillar of R2P maintains that the international community has a responsibility to assist the state to fulfill its primary responsibility: it will often do so through peace operations.66 For example, the device of deploying preventive peace operations has been highlighted by the Secretary General as one way of implementing R2P.67 R2P might thus be considered to reshape and influence a range of activities that peace operations engaged in before its emergence but which are given a renewed legitimacy since the 2000s. As the SG has noted, “Peacekeeping missions have a broad range of mechanisms which are aimed at supporting peaceful political transitions and building host nation capacity to protect civilians.”68 For example, peace operations might counter propaganda for genocide in their zone of deployment.69 More generally, almost everything that a peace operation does for the protection of civilians (whether democratization, economic development or human rights) it does implicitly or explicitly for the second pillar prevention of atrocities as well. As to the more forceful element implicit in robust peacekeeping, it may have some affinity with R2P’s third pillar. According to the third pillar, if the state manifestly fails to protect its citizens and peaceful measures have failed, the international community should, in extremis, intervene through coercive measures, including, in extremis, military ones. The Commission on Sovereignty and Intervention, which laid some of the conceptual basis for R2P, had already made it clear that the challenge would be to find a

64 Boutellis (n 61). 65 A/63/677, para. 68. 66 A/666/874, para. 16. 67 A/63/677, para. 41. 68 A/666/784, para. 16. 69 A/63/677, para. 55.

formula that would come very close to that of robust peacekeeping, at a distance from both traditional peacekeeping and enforcement.70 In effect, short of enforcement action, the granting of a more muscular mandate to an already existing peace operation is an obvious way in which to modulate the international community’s action in a way that begins to save lives without antagonizing the host state, a sort of first stage in the third pillar logic. In Rwanda, for example, the debate was whether UNAMIR should be reinforced after the genocide had begun, not the sending of an entirely new enforcement force. Sometimes, the presence of a force on the ground will simply make it much more practical to use that as the embryo of a rapid response to mounting atrocities (the point being that the Rwandan or Srebrenica genocides did not exactly leave much time for deliberation). The UN of course is keen to deny that peace operations effectively transform themselves, through attention to civilian protection, into a form of enforcement action more akin to humanitarian intervention:

Although on the ground they may sometimes appear similar, robust peacekeeping should not be confused with peace enforcement, as envisaged under Chapter VII of the Charter. Robust peacekeeping involves the use of force at the tactical level with the authorization of the Security Council and consent of the host nation and/or the main parties to the conflict. By contrast, peace enforcement does not require the consent of the main parties and may involve the use of military 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.71

At least, however, one must recognize that there is sometimes a dialectical dynamic between elements of enforcement and peace operations. In some cases, R2P inspired military intervention may serve to support an existing peace operation, in essence creating the space for it to operate. For example, when the UN Mission in Sierra Leone was confronted by a wave of attacks and commission of international crimes just as it deployed, its credibility was upheld by organizing a British-‐led intervention force. Similarly, Operation Artemis, led by the European Union helped MONUC transition to a more robust mandate in Ituri. Conversely, a transition is conceivable between a “robust peace operation” whose primary mission is the protection of civilians, and peace enforcement in a situation where the protection of civilians evolves from an incidental goal as part of more or less traditional peace efforts to the central one in a context of atrocity commission. The line between “protecting civilians” and averting international crimes may be a relatively blurry one, requiring constant mandate adjustments. It may not always be clear what attacks against civilians are not simultaneously constitutive of international

70 ICISS, The Responsibility to Protect, 2001 , para. 1. 23. (« As is widely recognized, UN peacekeeping strategies, crafted for an era of war between states and designed to monitor and reinforce ceasefires agreed between belligerents, may no longer be suitable to protect civilians caught in the middle of bloody struggles between states and insurgents. The challenge in this context is to find tactics and strategies of military intervention that fill the current gulf between outdated concepts of peacekeeping and full-‐scale military operations that may have deleterious impacts on civilians 71 UN DPKO, United Nations Peacekeeping Operations: Principles and Guidelines, supra note 23, pp. 34-‐35.

crimes (the threshold for war crimes, in particular, is not very high). A tactical addendum to peace operations will thus be often at risk of morphing into a more strategic imperative, the idea that the whole peace operation’s raison d’être is the protection of civilians. 72 This would of course be especially true in cases where the UN is not confronting isolated violence against civilians, but a more systematic campaign triggering R2P concerns. In other words, one may well run into a number of situations where “the measures required to carry out the assigned tasks or to meet the expectations of the international community could hardly be distinguished from forcible humanitarian intervention.”73 The only difference is that robust peacekeeping still sees itself as operating with state consent – albeit somehow still conceivably using force against state troops if they threaten civilians74 – where an R2P pillar three intervention clearly operates against the state. A peace operation, however robust, is unlikely to transform itself into an enforcement force against the state. It should be clear nonetheless that the two operate on a continuum of cooperation with/constraint against the state.75 When it comes to international criminal tribunals, peace operations also serve evident functions. Their existence is often a boon, an unlikely field presence that offers at least some prospect for enforcement even when the host government will not comply with requests.76 Although quite distinct from the “ideal” scenario of occupation à la Nuremberg or Tokyo, it is still better than a situation of almost exclusive dependency on a recalcitrant or manipulative territorial state. From the point of view of peace operations, the idea of robustness is certainly more at ease with the strong differentiating thrust of international criminal justice. In principle a simple arrest should be reconcilable with the use of non-‐coercive measures and thus not be particularly onerous. If evidence were required that criminal prosecutions are conducive to the goals of peacekeeping (and R2P), some peace operations, as part of their human rights and rule of law mandates, have carried out their own investigations urging domestic and international prosecutions.77

72 Draft DPKO/DFS Operational Concept on the Protection of Civilians in United Nations Peacekeeping Operations, para. 7 (« it should be noted that peacekeeping operations can only execute the protection of civilians mandate insofar as the host government continues to provide its strategic consent. If that consent is withdrawn, a peacekeeping environment no longer pertains, and action at the strategic level, including by the Security Council, must be considered ».) 73 T. Modibo Ocran, ‘The Doctrine of Humanitarian Intervention in Light of Robust Peacekeeping’, Boston College International and Comparative Law Review, vol. 25, no. 1, 2002, pp. 1-‐58. 74 DPKO/DFS, Framework for Drafting Comprehensive Protection of Civilians Strategies in UN Peacekeeping Operations, 20 Jan, 2011, para. 5. This is largely explainable by the fact that although a government may give consent to a PKO both formally and operationally, it may not have full control of local public decision makers 75 The similarity between the two is quite clear from the useful attempt to draw a table of peace operations on the one hand, and R2P military operations on the other. Responsibility to Protect and the Protection of Civilians Policy Guide, p 56 <http://www.academia.edu/2212015/Responsibility_to_protect_and_the_Protection_of_civilians_Policy_Guide> accessed 23 December 2014. 76 Margherita Melillo, ‘Cooperation between the UN Peacekeeping Operation and the ICC in the Democratic Republic of the Congo’ (2013) 11 Journal of International Criminal Justice 763. 77 E Baylis, ‘Reassessing the Role of International Criminal Law: Rebuilding National Courts through Transnational Networks’ (2009) 50 BCL Rev. 1, 54–56.

Indeed, one can detect a trend whereby peace operations are increasingly asked to lend their muscle to the arrest of wanted fugitives. Ideally, the two will operate hand in hand. The Council, for example, did not hesitate to grant the peacekeeping mission in Liberia a mandate to arrest Charles Taylor.78 In some circumstances, peace operations might even be asked to arrest some of the very persons they need to neutralize to protect civilians anyhow. The work of international criminal tribunals, particularly the ICC as a Court that is working more or less in real time, may serve a sort of signaling function, describing certain acts as entailing crimes against humanity, genocide or war crimes, and thus directing peace operations’ efforts towards the protection of civilians and the prevention of atrocities. This much has already been suggested in the context of R2P,79 and there is no reason why it should not work a fortiori with robust peacekeeping, providing legal legitimacy to uses of force that might otherwise be suspicious.

III. Moralization, Operationalization or Legalization? The increased “robustness” of peacekeeping in the face of threats to civilians is also an opportunity to examine peacekeeping’s evolving relationship to law and the extent to which it is the result of and a contributor to processes of “legalization.” As will be seen, the starting point is one that is ambiguous in relation to international law, underlining a natural resistance of peacekeeping to being entirely subservient to legal imperatives (A). Yet if nothing else peace operations’ evolution towards greater emphasis on use of force necessarily affects their legal regime (B) and may even over time prompt calls for accountability for its “failures to protect” (C).

A. An Ambivalent Relationship to International Law Many of the developments that have been charted so far are informed by law. In redesigning civilian protection as above all a way of averting international “atrocity crimes,”80 the UN and the Council began the process of replacing a political, security and irenic rationale for protection by a uniquely humanitarian-‐law, human rights and criminal justice oriented one. As a result, the Council has arguably redefined what peacekeeping stands for.81 Robust peacekeeping itself, however, has a somewhat ambiguous legal status, often more characteristic of an evolving institutional soft law than something that would be opposable to the UN. The Secretary General, in particular, has often been wary of engaging on a path that might prompt calls for legal forms of accountability, emphasizing the need to move to robust peacekeeping as principally a moral and operational imperative. The paradox, then, is that the move to robust 78 Micaela Frulli, ‘A Turning Point in International Efforts to Apprehend War Criminals The UN Mandates Taylor’s Arrest in Liberia’ (2006) 4 Journal of International Criminal Justice 351. 79 M Contarino and S Lucent, ‘Stopping the Killing: The International Criminal Court and Juridical Determination of the Responsibility to Protect’ (2009) 1 Global Responsibility to Protect 560. 80 David Scheffer, ‘Genocide and Atrocity Crimes’, Genocide Studies and Prevention, vol. 1, no. 3, December 2006, pp. 229-‐250. 81 In the early years, international criminal justice was largely seen as a tool of the Council for the purposes of achieving international peace and security. Increasingly though, it is as if the Council sees itself as a tool to prevent the commission of international crimes. The relationship between the two remain a complex one, as shown by the complex ballet of ICC referrals/deferrals, and peace operations’ occasional reluctance to proceed with arrests or cooperate with investigations and trials.

peacekeeping is precipitated by legal developments and an increasingly legal approach to civilian protection, yet itself remains characterized by a somewhat cavalier approach to the law, one in which protecting civilians is the fulfillment of a mandate, a form of noblesse oblige or an international public service, but not quite a legal obligation. This is of course reminiscent of R2P itself as a concept born from attention to legal imperatives but whose legal status is kept relatively vague.82 This does not mean that tensions in the discharge of peacekeeping will not occur. They may arise, in particular, from the interaction of peace operations with the activities of international criminal tribunals, putting in stark relief the contrast between a regime still largely dominated by operational constraints (peace operations) and one focused on a much more principled and deontological drive to legalize (international justice). In practice, the complementarity of international criminal justice and peace operations has been complicated by a perception that prioritizing a justice imperative might clash with and even endanger the operational requirements of peace operations, including civilian protection. Like R2P, international criminal justice potentially introduces a strong axiological element, elevating the protection of civilians from a highly desirable goal of harm minimization to an imperative of atrocity prevention. In humanitarian terms, one might say it contributes to change missions’ focus from assistance to protection. The ascending and imperative value of international criminal justice thus puts stress on a “business as usual” model of peacekeeping, even one focused on protection of civilians. In this context, the move by the US to pressurize the Council to demand a deferral from the ICC of any investigations that might concern peacekeepers was often criticized as a typical manifestation of American unilateralism.83 In truth, however, it arguably echoed a certain pattern of the UN’s own actions. The UN has often sought to de-‐emphasize the legal obligations of peace operations particularly as they result from the needs of international criminal repression, for the benefit of greater operational freedom.84 Of course, the host state itself (e.g.: Sudan) has often been vociferous that one cannot have a peace operation in its territory with its consent that is simultaneously tasked with arresting state officials.85 This is not, however, a position that the UN has vigorously opposed, perhaps in a bid to save particular peace missions.86

82 Jennifer M Welsh and Maria Banda, ‘International Law and the Responsibility to Protect: Clarifying or Expanding States’ Responsibilities?’ (2010) 2 Global Responsibility to Protect 213; Alex J Bellamy and Ruben Reike, ‘Responsibility to Protect and International Law, The’ (2010) 2 Global Resp. Protect 267. 83 Carsten Stahn, ‘The Ambiguities of Security Council Resolution 1422 (2002)’ (2003) 14 European Journal of International Law 85; Mohamed El Zeidy, ‘United States Dropped the Atomic Bomb of Article 16 of the ICC Statute: Security Council Power of Deferrals and Resolution 1422, The’ (2002) 35 Vand. J. Transnat’l L. 1503. 84 Salvatore Zappala, ‘Are Some Peacekeepers Better Than Others -‐ UN Security Council Resolution 1497 (2003) and the ICC’ (2003) 1 Journal of International Criminal Justice 671, 671. (noting that “admittedly, the resolution met the demands of the international community, voiced by the UN Secretary-‐General, and thus commanded widespread support among members of the Security Council.” 85 V Peskin, ‘The International Criminal Court, the Security Council, and the Politics of Impunity in Darfur’ (2009) 4 Genocide studies and prevention 304, 311. 86 For example, as far as I could establish, after Al-‐Bashir nominated Ahmad Harun, who is sought by the ICC for atrocities, as Minister of State for Humanitarian Affairs and Governor of South Kordofan, the AU/UN peacekeeping mission continued to collaborate with him. More generally the UN and member states have not vigorously pressured Khartoum to comply with arrest warrants, foregrounding instead the

This ambivalence has long been visible in the response by some peace operations’ to international criminal tribunals’ for cooperation. In theory, as has been seen, the goal of protecting civilians in peace operations and punishing those who torment them should be largely harmonious. In practice, peace operations have not always been happy to oblige. For example, they have at times been reluctant to proceed to arrests mandated by international criminal tribunals.87 Although cooperation has sometimes been forthcoming, the UN has treated requests for cooperation by international criminal tribunals – supposedly to protect their independence – as if they emanated from states, meaning that it has weighed the interests of justice against its operational necessities.88 Some peace operations (e.g.: the African Union observer mission in Sudan, UNAMID) have not even technically included a mandate to arrest suspects. NATO once argued aggressively that to the extent SFOR as a peace operation created by the Security Council had a similar standing as the ICTY, it was inapposite for that tribunal to order it to provide evidence, and this could endanger future peace operations.89 In the case of the ICC, even more leeway exists, given the institutional independence of the UN, to deny requests for cooperation (including, for example, for protection of investigators, victims and witnesses) that might be seen as in tension with UN operations. 90 In the Congo context, crucial evidence was provided to ICC investigators by MONUSCO “intermediaries” only on the condition of confidentiality agreements which eventually almost scuttled the prosecution’s case as a result of an inability to reveal exculpatory evidence to the defense. This underscores the unique dependence of the ICC on peace operations, but simultaneously the unique vulnerability to such cooperation. Indeed, it is the ICC itself that consented to provisions highly protective of the UN ‘s privileges notably when it comes to peace operations.91 And of course the UN

deployment of the mission. See Ibid 317. (« In sum, obtaining Khartoum’s cooperation in the quest for peace, peacekeeping, and humanitarian relief (…) has so far trumped the ICC’s quest for the international community’s political backing in the prosecution of war crimes. ») 87 Jann K Kleffner, ‘SFOR’s Half-‐Hearted Compliance with Its International Obligations to Execute Arrest Warrants of the ICTY’ (1999) 5 International Peacekeeping (Dordrecht) 80. 88 This means that the Secretary General has taken into account « the question of the safety of potential witnesses, especially if continuing to serve in an area controlled by associates of persons accused in a tribunal (sometimes an important consideration in the Balkans); the security and effectiveness of the UN mission; the confidentiality of the internal affairs of the UN; and practical considerations such as the difficulty in complying with demands for enormous quantities of documentation »). Paul C Szasz and Thordis Ingadottir, ‘The UN and the ICC: The Immunity of the UN and Its Officials’ (2001) 14 Leiden Journal of International Law 867, 875. 89 ‘ICTY Order for Disclosure of Information by NATO/SFOR’ (2001) 95 The American Journal of International Law 401. 90 Han-‐Ru Zhou, ‘The Enforcement of Arrest Warrants by International Forces From the ICTY to the ICC’ (2006) 4 Journal of International Criminal Justice 202. 91 See article 15(3) of the General provisions regarding cooperation between the United Nations and the Court (« In the event that the disclosure of information or documents or the provision of other forms of cooperation would endanger the safety or security of current or former personnel of the United Nations or otherwise prejudice the security or proper conduct of any operation or activity of the United Nations, the Court may order particularly at the request of the United Nations, appropriate measures of protection. In the absence of such measures, the United Nations shall endeavor to disclose the information or documents or to provide the requested cooperation, while reserving the right to take its own measures of protection, which may include the withholding of some information or documents or their submission in an appropriate form, including the introduction of redactions.” Larry D Johnson, ‘The Lubanga Case and

itself did not renounce the confidentiality implicit in its provision of evidence, ultimately putting the ICC prosecutor in a very difficult situation. The subliminal message seems to be that the operational necessities of peace operations (including, presumably, civilian protection) should ultimately trump issues of accountability (for harm to civilians). In that respect, peace operations are an interesting prism to observe the “peace v. justice” dilemma, with every institution seemingly arguing pro domo: for international criminal tribunals there can famously be “no peace without justice,” where peace operations are more likely to stand for the proposition that there can be no justice without peace.92 In sum, whilst peace operations are increasingly authorized to use force to protect civilians, they are typically and somewhat ironically not always explicitly allowed to use force to arrest those who commit crimes against civilians or protect those who seek to prosecute the latter.93 It is of course clear that cooperating with international criminal tribunals might turn out to be a “tipping point” in the relationship of peace operations with the host state. The general impression that emerges is one in which the UN largely sees itself “outside” the accountability problematique, which is mostly associated with the work of international criminal tribunals. This explains why it has occasionally had difficulty seeing itself as an accessory to the work of international criminal justice. It may also explain why the UN is so resistant to claims about is own accountability. Whilst the UN has committed to protecting civilians, acknowledged its past faults, and strongly condemned those who participate in atrocities, it has also had no qualm in invoking its immunity whenever its responsibility was sought in connection with peacekeeper wrongdoing.94 Initial soul-‐searching exercises that gave the impetus to the development of Robust Peacekeeping were framed by policy considerations as well as principles. But they were seen by the UN largely as unilateral changes that would not particularly lead to any form of accountability. If anything, the UN would carefully review its own actions in light of its own principles and on its own terms. UN peacekeeping thus offers the intriguing paradox of a practice that is heavily premised on the accountability of perpetrators, yet that is curiously oblivious to its own accountability.

B. The Emergence of a Humanitarian Regime of Peacekeeping Nonetheless, it bears emphasizing that international law has made some strides in developing a legal regime that adapts to the evolving nature of peace operations. It is one from which peace operations arguably benefit and that can theoretically take into account the switch from impartial arbiters of the peace to a more active civilian Cooperation between the UN and the ICC Disclosure Obligation v. Confidentiality Obligation’ (2012) 10 Journal of International Criminal Justice 887. 92 The fear in Sudan in particular, magnified by Al-‐Bashir’s own threat to put an end to the peace mission, is that an attempt to enforce the arrest warrant against him would spell an end to the UN/AU effort to deploy peacekeepers and thus help bring an end to conflict and provide humanitarian relief. Christopher Gosnell, ‘The Request for an Arrest Warrant in Al Bashir Idealistic Posturing or Calculated Plan?’ (2008) 6 Journal of International Criminal Justice 841, 844. 93 Note that this has not prevented peace missions from providing some sort of protection to the ICC in a very indirect way. Melillo (n 76) 768–769. 94 F Rawski, ‘To Waive or Not to Waive: Immunity and Accountability in UN Peacekeeping Operations’ (2002) 18 Conn. J. Int’l L. 103.

protection force. The regime is thus both significantly protective yet, increasingly, one that imposes obligations on peace operations. To begin with, then, and especially as long as peacekeepers limit themselves to their traditional role as impartial go-‐betweens, the emphasis is on their protection. This entails, in particular, the prosecution of those who would attack peacekeepers or, for example, take them hostage. Revealingly, for all their shortcomings in protecting civilians, this was a danger experienced by both UNPROFOR and UNAMIR in Bosnia and Rwanda respectively. The Convention on the Safety of United Nations and Associated Personnel seeks to remedy this sort of problem and of course can be seen indirectly as a way of protecting civilians (a peace operation that is constantly the target of attacks is in no position to protect civilians).95 As long as peacekeepers do not become participants in an armed conflict (as would be the case in a Chapter VII enforcement mission), they are entitled to special protection, akin to that of non-‐combatants. The Rome Statute of the ICC has since specifically created a new war crime of attacks on peacekeepers. International criminal tribunals have reinforced the sense that this protection is real by prosecuting individuals, including members of rebel groups, accused of having committed crimes against peacekeepers96 – an indication that international criminal justice can be very much conducive to the carrying out of peace operations. The challenge of robust peacekeeping, however, is that in permitting further use of force it potentially precipitates a change of paradigm for the UN requiring an entirely different legal regime. If peace operations do aggressively protect civilians, they arguably lose any “civilian” status that they may have claimed. Indeed, they should lose that status on the basis of the principle of the equality of belligerents, but also because it would be unfair and impractical for them to be protected persons yet simultaneously be able to engage in hostilities. The risk, in this context, is that force will be used abusively even where it is justified to protect civilians. Although this is by no means necessarily the greatest risk, it is a testimony to how fast things have been moving in this area that concerns have already emerged about excesses that might be committed in the course of robust peacekeeping, especially in a context of R2P and ICC infused moral urgency. The principal obstacle to the applicability of international humanitarian law to peacekeepers was lifted by the Secretary General’s bulletin on the applicability of international humanitarian law to peace operations.97 This has not entirely dispelled doubts, however, about when a peace operation is protected and when it operates under international humanitarian law. There is, notably, a grey zone between situations in which the UN acts as a traditional “non-‐participant” peacekeeper and classic chapter VII intervention. Where does robust peacekeeping fit in? It should be emphasized that robust peacekeeping is of course both a mandate and a form that peacekeeping may take in actual circumstances. Simply because a peace operation has a robust civilian protection mandate does not mean that it is using it, or using it dynamically enough to be described as a participant in hostilities. There might be a case, for example, that the protection of civilians on the margins of a 95 Convention on the Safety of UN and Associated Personnel, 1994. 96 Alice Gadler, ‘Protection of Peacekeepers and International Criminal Law: Legal Challenges and Broader Protection, The’ (2010) 11 German Law Journal 585. 97 Secretary General, Bulletin on the observance by United Nations forces of international humanitarian law, 6 August 1999.

peace operation is more akin to police work (for example UNMIK seeking to prevent rioting in Kosovo) and should not warrant the application of international humanitarian law; but the full deployment of an operation to stop atrocities in their track could almost certainly not avoid the applicability of the laws of war. The question of what is the “armed conflict” that triggers the applicability of the laws of war in this context remains quite confused. For example, the mere exercise of “self defense” by a mission is generally not understood to create ipso facto an armed conflict, but is the protection of civilians in pursuit of a mandate to that effect still subsumable within self-‐defense? It often seems as if the meaning of self-‐defense has been stretched to incorporate every aspect of a peace operation’s life.98 Tactical, ad hoc interventions to protect civilians in an environment that remains otherwise fundamentally defined by traditional peacekeeping principles have been found to not deprive a peace operation of the 1994 Convention protection.99 The attitude of parties on the ground, however, may be decisive, in that it frames whether the operation continues to operate within the parameters of consent. This creates an intriguing situation where the withdrawal of consent by local actors may create a de facto situation of hostility, even if the UN is not keen to be a party to hostilities itself and does not resort to violence. Overall, it also creates a situation in which peacekeepers are considered to be non-‐combatants by nature who may yet become combatants by their activity, and for whom the relevant standard is that of “direct participation in hostilities.” In addition, even assuming that peacekeepers are involved in hostilities and susceptible to international humanitarian law, their accountability for violations is hardly a foregone conclusion. This is not the place to examine in detail the many obstacles that may stand in the way of accountability. But for example individual peacekeepers who may have committed war crimes will have immunity from host state domestic courts and cannot be tried by the UN itself. Although the contributing state could prosecute them itself and that possibility is increasingly anticipated in troop contribution MOUs, states are not always committed to honoring that obligation. Moreover, it is not clear that the UN is keen to follow up to see that justice is being done back in the home country (the UN may seek not to scare contributing states off). To make matters worse, the international community has occasionally gone out of its way to grant immunity to peace keepers (as in the case of Security Council deferrals) and, at any rate, the ICC may have more urgent concerns than prosecuting relatively isolated crimes by peacekeepers. A further risk of violations has appeared in a context that highlights one of the risks of peace operations’ “state bias” for civilian protection and accountability purposes. This is the situation in which a UN peace operation supports a state to combat non-‐state actors. The best known example of this is MONUSC supporting the Forces armées de la 98 Ola Engdahl, ‘Prosecution of Attacks against Peacekeepers in International Courts and Tribunals’ (2012) 51 Military Law and Law of War Review 249, 271. 99 For example, the Special Court for Sierra Leone found that UNAMSIL was a « robust peacekeeping » mission but that its members were still protected persons whose attack constituted a crime. There was, in other words, a difference between protecting civilians and « participating in hostilities », and even the use of force against the RUF by UNAMSIL was in self-‐defence and therefore not constitutive of hostilities. Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao (the RUF accused), Trial Judgment, 2 March 2009, paras. 1916-‐1937. Similarly, the ICC found that the AMIS in Sudan, despite « provision for civilian protection », did not « extent to a peace enforcement or disarmament mandate ». ICC, Abu Garda decision on the conformations of charges, paras. 97-‐114.

République démocratique du Congo (FARDC). The fear is the UN will become somehow complicit in exactions committed by the FARDC, even as part of a broader effort at ensuring security for civilians. Interestingly, this support was rationalized on pragmatic grounds as enhancing the likelihood that the FARDC would behave adequately. Alan Dos, the head of MONUC argued that:

… since military offensives were inevitable, MONUC’s participation in FARDC operations would at least reduce their negative impact on the population. He expected that in exchange for UN logistical support the Congolese authorities would make significant efforts to improve the behaviour of their soldiers. Also, MONUC involvement would in theory provide peacekeepers with access to the planning stage of operations, therefore allowing them to anticipate associated risks for the population.100

Whether this risky gamble has paid out is unclear. The record has been very mixed to say the least, with some arguing that the militarization of Kivu as a result of FARDC deployment has created more rather than less human rights violations. The situation of being supposed to support the very state armed forces that are responsible for some of the worst crimes committed against civilians is bound to be an uncomfortable one legally. Although MONUC kept track of violations by the FARDC, it was not in a strong position to voice concern, let alone use force against Congolese troops. MONUC does not seem to have gained much control over the actions of the FARDC, and may even have provided them with a renewed cover. Things in the Congo turned so sour that at one point the dominant concern became that the UN might actually be complicit in violations committed by the Congolese armed forces that it supported. The Office of Legal Affairs wrote a memo to that effect and a conditionality policy was elaborated and adopted by the Security Council101 that aimed to enhance discipline and accountability within the FARDC. The resulting “Human Rights Due Diligence Policy on UN support to non-‐UN security forces” is an important document that aims to map the contours of this difficult new area. A vetting procedure was created, notably for former militias integrated in the Congolese army. The idea is that the UN will simultaneously direct its attention at threats to civilians occasioned by rebel groups (by fighting them) and by the Congolese state (by reforming it). Paralleling R2P jargon, one could say that elements of both second (state building) and third (non-‐state actor fighting) pillar were involved. It is open to question whether the entire exercise serves more to shield the UN from accusations by allowing it to invoke its “due diligence” or has an actual effect with the Congolese armed forces. Overall, the latter have quite successfully resisted any serious vetting of persons suspected of war crimes. The UN’s lack of leverage is shown by the FARDC’s willingness, if they fail to obtain MONUC support, to go ahead alone with their offensives. Nonetheless, the policy has not been entirely toothless: ONUSCO suspended support for 41 out of 391 FARDC

100 After MONUC, Should MONUSCO Continue to Support Congolese Military Campaigns? -‐ International Crisis Group’ <http://www.crisisgroup.org/en/regions/africa/central-‐africa/dr-‐congo/vircoulon-‐after-‐monuc-‐should-‐monusco-‐continue-‐to-‐support-‐congolese-‐military-‐campaigns.aspx> accessed 21 December 2014. 101 Security Council Resolution 1906 (2009).

battalions in 2013, following which the commanders of all these battalions were removed, leading eventually to a reinstatement of UN support.102

C. Law Catches Up? Towards Accountability for Civilian Protection For all these developments, the one question that remains largely unanswered is the extent to which peace operations have an obligation to provide protection and might be held accountable for a failure in that respect.103 There is every reason to think that even in an age of robust peacekeeping, under-‐use of force in cases where civilians are threatened remains at least as significant as excesses. The general understanding, outside the specific case of peace operations, is that:

the power to authorize the use of force … is not a duty to do so, and failure to authorize does not entail for the Security Council … a secondary international law obligation to make reparation fro breach of an international obligation. The power to authorize the use of force under Chapter VII of the Charter remains within the political constrains of the Council.104

But might peacekeeping operations already deployed on the ground and, possibly, having created specific expectations of protection be a special case of Security Council obligation? This is obviously a vast issue and only some of the more salient questions will be briefly covered here. Attempts to engage the responsibility of the UN or its agents for failures to protect civilians should be seen as part of a broader trend of seeking to make international actors accountable. In the UN context, what was initially framed as merely a question of policy and institutional good is already, and in fits and starts, being framed as a question of accountability. Indeed a number of notable cases or attempted litigation have started to chip at what must otherwise appear as a monument of unaccountability. The process has been a slow and incremental one, focused mostly, perhaps unsurprisingly, on the emblematic cases of Bosnia, particularly Srebrenica, and Rwanda. Particularly notable are two judgments of Dutch courts in the case of Srebrenica, one brought by the relatives of three victims,105 the other by the organization of the “Mothers of Srebrenica.”106 However, it is worth noting that at least one other case concerning the responsibility of the Belgian state and several Belgian officers in Rwanda during the

102 Report of the United Nations Joint Human Rights Office on Human Rights Violations Perpetrated by Soldiers of the Congolese Armed Froces and Combatants of the M23 in Goma and Sake, North Kivu Province, and in and around Minova, South Kivu Province, from 15 November to 2 December 2012.2012, para. 42. 103 Siobhán Wills, ‘Military Interventions on Behalf of Vulnerable Populations: The Legal Responsibilities of States and International Organizations Engaged in Peace Support Operations’ (2004) 9 Journal of Conflict and Security Law 387, 406–413. 104 Shraga (n 52) 268–269. 105 Netherlands v. Mustafic´, No. 12-‐03329 (Sup. Ct. Neth. Sept. 6, 2013); Netherlands v. Nuhanović, No. 12-‐03324 (Sup. Ct. Neth. Sept. 6, 2013). 106 Mothers of Srebrenica Ass’n v. Netherlands, Dist. Ct. The Hague July 10, 2008, No. 07-‐2973; App. Ct. The Hague Mar. 30, 2010, No. 200.022.151/01.

genocide is currently making its way through a Bruxelles court.107 The main practical problem that litigants have encountered has been the immunity of the United Nations. The Dutch Courts, in particular, affirmed the UN’s immunity,108 a decision that was not found by the ECtHR to be incompatible with the Convention.109 Since the UN could not be sued before the Court, the risk was that no one would be held liable. The upholding of the UN’s immunity, regardless of its merit, effectively deprives us of a final judgment on whether the UN as an international organization failed in its obligation to prevent genocide. However, it does so only on procedural rather than substantive grounds so that the question remains open, independently of whether it can be effectively litigated, as to whether the UN complied with its obligations. A central question in this context, which has both substantive, procedural and strategic dimensions, is the extent to which it is the UN that is responsible for the failure or troop contributing states. In a context where the UN cannot be sued, it becomes particularly tempting to focus on troop contributing states as a way to at least move forward. Indeed, the preferred and most successful strategy short of being able to sue the UN has been to sue the troop contributing state before its own courts. The Dutch cases, for example proceeded in relation to the Netherlands on the quite striking basis that the Dutch state had effective control of Dutchbat in the days leading up to Srebrenica, largely because it communicated orders directly to it. Similarly, in the Belgian case, the Bruxelles Court found that having decided to pull its troops out, Belgium had effectively reasserted control over them. The cases could thus proceed against the Netherlands and Belgium, as states which obviously did not enjoy immunity before their own courts (the issue would have been quite different had the court been of a third state). Notwithstanding the inability to sue the United Nations, therefore, suing contributing states may at least symbolically and concretely reflect on what might be the UN’s responsibility (were it in effective control). It should be clear however that in all but exceptional cases, the UN will have effective control of troops under its command and that there are strong legal and policy reasons for holding the UN accountable110 (although not necessarily exclusively so). In previous cases before the ECtHR, contributing states had successfully argued that peace operations were subsidiary to the UN, and that all acts were therefore attributable to it.111 Although tactically attributing responsibility to troop contributing states in cases where they can be argued to have strayed away from UN supervision serves its purpose, it is hardly a long term solution. It may be in fact that the exclusivity of responsibility characteristic of such debates is too rigid legally and not optimum from a policy point of view, even though the case law on this is only emerging.112 One approach, suggested by Tom Dannenbaum, would be to

107 Tribunal de première instance de Bruxelles, 71ème chambre, Jugement avant dire droit, R.G. n° 04/4807/1 et 07/15547/A. 108 Mothers of Srebrenica Ass’n v. Netherlands, Dist. Ct. The Hague July 10, 2008, No. 07-‐2973; App. Ct. The Hague Mar. 30, 2010, No. 200.022.151/01 109 Stichting Mothers of Srebrenica v. Netherlands, App. No. 65542/12 (Eur. Ct. H.R. June 11, 2013). 110 Aurel Sari, ‘UN Peacekeeping Operations and Article 7 ARIO: The Missing Link’ (2012) 9 International Organizations Law Review 77. 111 112 André Nollkaemper, ‘Dual Attribution Liability of the Netherlands for Conduct of Dutchbat in Srebrenica’ (2011) 9 Journal of International Criminal Justice 1143; Tom Dannenbaum, ‘Killings at

move from a criterion of effective control understood as “control most likely to be effective in preventing the wrong in question,” a criterion that could possibly introduce a measure of fluidity in attribution to troop contributing states or the UN itself.113 The Dutch cases are interesting in their own right for how they describe the contours of the obligations of contributing states in ways that might be applicable mutatis mutandis to the UN’s own responsibility. The decision of the District Court in the Mothers of Srebrenica decision and of the Supreme Court in the Mustafic/Nuhanović decision set the most clear standard of liability for “failing to protect” by a state that has deployed a peace contingent in an area where civilians are at risk. In Mustafic/Nuhanović, the Dutch Supreme Court found the Netherlands responsible for the deaths of four Bosnian Muslim men because peacekeepers had ordered them to leave the compound during the massacre.114 In the Mothers of Srebenica case, the court found that the Dutch state was responsible for 300 deaths for the same reasons. In these two cases as well as the Belgian one,115 knowledge, whether actual or constructive, was important to establishing responsibility and was conclusively established (in Srebrenica the cases concern some of the last males to have been expulsed from the camps). However, the Dutch decisions are also quite modest. In both the Mustafic/Nuhanović and Mothers of Srebrenica cases the Dutch state was responsible because the individuals in question had been within the Dutch compound and Dutch forces were actively handed over to the Bosno-‐Serbs. What was at stake, therefore, is not a failure to protect as such, but a specific act that put people who were under the UN’s direct protection in harm’s way at a time when there could no longer be any doubt that they would be put in harm’s way. This is of course not insignificant: if UNAMIR for example had protected all of the Tutsis and moderate Hutus that made it to its camps instead of abandoning them to their fate, a significant amount of lives would have been saved. Nonetheless, the decisions are perhaps as noteworthy for what they find the state not to be liable for than what they find it liable for. Thinking about what might lead to liability for a failure to protect by a peace operation is at this stage still in its infancy. No one is accusing the UN, for example, of committing genocide in Srebrenica and Rwanda, and this dovetails well with the SG’s sense that only a moral or political failure is involved. Traditionally, the greatest reluctance to this sort of responsibility is that it constitutes a liability by omission and that there is normally no legal obligation to act heroically. Nonetheless, there are exceptions to the notion that one cannot be liable for omission. For example, domestically, “duties of care” exist in relation to parents when it comes to their children. Internationally, the areas of positive duties opening the way to responsibility by omission are broadly speaking those of

Srebrenica, Effective Control, and the Power to Prevent Unlawful Conduct’ (2012) 61 International and Comparative Law Quarterly 713. 113 Tom Dannenbaum, ‘Translating the Standard of Effective Control into a System of Effective Accountability: How Liability Should Be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers’ (2010) 51 Harv. Int’l LJ 113. 114 Netherlands v. Mustafic´, No. 12-‐03329 (Sup. Ct. Neth. Sept. 6, 2013); Netherlands v. Nuhanović, No. 12-‐03324 (Sup. Ct. Neth. Sept. 6, 2013). 115 Id., paras. 18 and 46. (« … les défendeurs ne pouvaient ignorer les crimes de guerre à grande échelle … qui se commettaient avant l’évacuation de l’ETO, et qui étaient immanquablement appelés à s’exercer sur les réfugiés de l’ETO dès lors que la protection par les soldats belges cesserait »).

human rights (obligation to respect and protect), international humanitarian law (obligation to ensure respect) and the law of genocide (obligation to prevent).116 Might any of these duties be applicable to the UN? Certainly the idea that simply because the UN is not a party to the Geneva Conventions and other humanitarian treaties, it has no broader obligation to take responsibility for their enforcement (as opposed to, at best, abide by their terms) seems ill-‐conceived and excessively legalistic.117 The obligations to not commit the proscribed conduct in the Genocide Convention, human rights treaties and the Geneva Conventions are in a sense inseparable from the obligation to ensure that others (under certain conditions) do not either. There is no shortage of arguments suggesting that the UN is bound by the same obligations that states are bound by and that the UN routinely promotes vis-‐à-‐vis them.118 Otherwise, it would simply to be too easy for states to engage through an international organization in activities that they could not engage in independently and thus defeat the object and purposes of the conventional obligations they have undertaken. Even in the absence of a specific mandate to that effect, it is generally accepted that peace operations would at the very least have an obligation to prevent atrocities that are unfolding right before them119 flowing from the general economy of the UN Charter.120 In fact, ironically, some of the UN’s own soul searching may have provided the cue to efforts at accountability. If the UN can candidly assess its faults, goes the reasoning, then it must be that it recognized that it has failed in a duty; if it increasingly commits itself to a view of its obligations including a strong component of protecting civilians, then it must be that it recognizes that that duty had certain beneficiaries; and if it subsequently fails in fulfilling that duty, then it would be only natural for such beneficiaries to be alert to the fact that their rights have been violated as a result. It is in the nature of “policy” that it is often informed by norms yet may in turn create norms. This is especially the case concerning grave matters of international law, to which one does not commit lightly. The repetition and emphasis on the mandate of civilian protection, influenced as it is by the specter of atrocities, can only over time create expectations that the UN is serious about this commitment, even if the UN itself is clear that it is not displaying the sort of opinio juris that could one day be turned against it. In addition, one might pay attention to the degree to which the UN has, in actual peace operations, “created obligations for itself” by granting peacekeeping troops specific mandates that restate and reinforce for a particular place and time what might otherwise be seen as somewhat inchoate duties.121

116 The most comprehensive and convincing treatment to date of the obligations informing a general mandate to protect of peacekeeping missions is in Wills (n 55). 117 Ray Murphy, ‘United Nations Military Operations and International Humanitarian Law: What Rules Apply to Peacekeepers?’ (2003) 14 Criminal Law Forum 153. 118 F Mégret and F Hoffmann, ‘The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibilities’ (2003) 25 Human Rights Quarterly 314. 119 Brahimi report, supra note 16, para. 62 (“peacekeepers – troops or police – who witness violence against civilians should be presumed to be authorised to stop it, within their means, in support of basic United Nations principles”). See also Master list, supra note 59. 120 Willmot and Sheeran (n 23). 121 The claimants in the Mothers of Srebrenica case duly noted that Dutchbat had specifically been asked to take blocking positions to prevent the Bosnian Serves from advancing on Srebrenica. In the Belgian case, the claimants noted that the officers were asked to “contribute to the security of Kigali.” On the

Perhaps even more crucially, a common exception in domestic legal systems to the idea that omissions do not render liable is when an intervener actually makes representation to someone in need that they will help, including representations on which such victim relies. One might therefore pay attention to the extent to which representations were made to civilians that they would be protected, including in ways that might have led them to disarm, thus potentially further binding the UN.122 The very presence of Dutch forces in Srebrenica or Belgian forces in Kigali already implied a commitment to at least the objectives of their respective missions, if not a whole lot more. Such a unilateral commitment, backed of course by the UN’s own statutory obligations, must count for something, especially if it is relied upon by those to whom it is made (and even though its status under international law is a little fuzzy). The UN itself recognized as much when, in its report on Rwanda, it highlighted as relevant the “perception and the expectation of protection created by [the PKO’s] very presence.”123 This is what the Mothers of Srebrenica argued before the ECtHR when they suggested that the UN had “entered into an agreement with the inhabitants of the Srebrenica enclave (including the applicants) to protect them inside the Srebrenica ‘safe area’ in exchange for the disarmament of the ARBH [Army of the Republic of Bosnia and Herzegovina] forces present.” If this agreement is acted upon, or even if there is an objectively created belief that the UN/troop contributing states will rise to their responsibilities, then that creates certain expectations that are legally significant. Indeed, it is important to note that UNPROFOR and UNAMIR were evidently not “good Samaritans” in Bosnia and Rwanda respectively, which could (but were under no obligation to) have taken it upon themselves to voluntarily protect and rescue civilians. Rather, their presence in the theatre of atrocities was over-‐determined and saturated by their mandates and a variety of obligations. This is why the application by the Dutch courts of the case law of international human rights bodies and the focus on effective territorial control (which the claimants did not particularly challenge) is confusing, apart from the fact that other norms than human rights were implicated. Under international human rights law, states are liable for human rights violations when they have jurisdiction which may include, inter alia, control of certain territory. International human rights law is basically neutral as to where and when states should exercise jurisdiction: it merely follows that effectivity. Under that simple test, the Dutchbat did have control of its compound (and therefore was liable for failing to protect civilians within it) but did not have “control” of areas beyond it (and therefore was not liable).

distinction between peacekeepers’ general responsibility to protect and “ mission responsibility to protect” in some operational documents, see Wills (n 55) 261. 122 Although the literature on the moral hazards of international intervention has focused on the danger that rebel groups will arm expecting a humanitarian intervention to save them (AJ Kuperman, ‘The Moral Hazard of Humanitarian Intervention: Lessons from the Balkans’ (2008) 52 International Studies Quarterly 49; Alan J Kuperman, ‘Suicidal Rebellions and the Moral Hazard of Humanitarian Intervention’ (2005) 4 Ethnopolitics 149.), the danger that non-‐state actors will disarm in the expectation that they will be protected seems equally if not more real. 123 Rwanda Report, supra note 10. See also Srebrenica Report, supra note 9 (“When the international community makes a solemn promise to safeguard and protect innocent civilians from massacre then it must be willing to back up its promise with the necessary means. Otherwise it is surely better not to raise hopes and expectations in the first place, and not to impede whatever capability they may be able to muster in their own defence”).

But this fails to problematize why UNPROFOR did not have control of the entire safe area that the Security Council had created and mandated it to protect. It misses the point that the Dutch state was not simply a sovereign that “happened” to possibly exercise jurisdiction in relation to some areas of Srebrenica; rather, it was obliged by UN resolutions to assert control of the safe area in order to protect civilians. Here the normative power to protect trumps the effective power to protect, or at least frames it decisively. It is its failure to protect the safe-‐area that is the source of all crimes that were committed in Srebrenica. The failures that should be evaluated are therefore, to use the Srebrenica example, not just those occurring within the compound but also within the entire theoretical safe area. Presumably the further one gets from the zone of effective control the more difficult it will be to prove a failure to act, but there is in principle no reason why one should not be liable for, essentially, a failure to exercise the sort of control one was tasked with exercising. This of course does not mean that the duty to protect civilians is absolute, but it surely remains a relatively onerous one. In Mustafic/Nuhanović the Dutch Supreme Court quoted with approval the ICJ general standard to evaluate states’ (and, one may think, mutatis mutandis, international organizations’) performance in the prevention of genocide “(…) it is clear that the obligation in question is one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide.”124 It seems that such is the standard by which UN peace operations should be evaluated too. Of course, the more onerous and dangerous the action that the UN would have had to take (e.g.: averting a genocide v. protecting a few refugees within a compound), the least demanding international law will be and the more tolerance there will be for failure. At the same time, the UN’s performance should henceforth be measured against a background in which the value of civilian lives has been affirmed, and where the preservation of the mission and the life of peacekeepers can no longer be the sole consideration. The special position of a state in relation to an unfolding international crime matters. As the ICJ put it, clearly with Serbia-‐Montenegro in mind but in ways that have resonance for the UN and troop contributing states:

Various parameters operate when assessing whether a State has duly discharged the obligation concerned. The first, which varies greatly from one State to another, is clearly the capacity to influence effectively the action of persons likely to commit, or already committing, genocide. This capacity itself depends, among other things, on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events.125

The Netherlands in Srebrenica and the Belgians in Rwanda (and by extension the UN) were not in the same position as, say, the Seychelles. Not only did they already have a presence on the ground, but that presence was a very specific, political and military one. UNPROFOR had links with the Bosno-‐Serbs and was in the best position, as an emanation of the international community and its interests in Bosnia, to make good on

124 Netherlands v. Mustafic, supra note 114. 125 ICJ, application of the Genocide Convention, para. 430.

its various promises to civilians. The special nature of the military, as an institution geared towards risk taking must be taken into account. In this context, factors like the UN refusal to send in air support effectively sealed the fate of Srebrenica, and the decision to not reinforce UNAMIR are widely acknowledged as having had tragic consequences. Pushing back the Serbs to prevent them from entering the Srebrenica safe area may well have endangered Dutch soldiers’ lives. Nonetheless, whilst it would be unreasonable to ask militaries to sacrifice themselves for a lost cause, it is also understood that force losses, especially in the presence of the huge countervailing risk of losing thousands of civilian lives, are something that may reasonably be expected.

Conclusion Norms in international society often emerge at the intersection of distinct regimes that interact with each other in complex ways. The evolution of the regime of peace operations, as this article has sought to argue, is an interesting case in point. Peace operations are driven by their own logic, honed over decades of UN operational practice. Yet confronted with some of their limitations, they have evolved dynamically whilst clinging to what makes them specific and worthwhile. They have done so in an overall normative context that has facilitated the intervention of other normative logics whose priorities have affected them. For example R2P and the ICC further entrench an anti-‐atrocity norm in international society that significantly raises expectations in terms of what peace operations are expected to do, even though peacekeeping arrived independently at the same conclusion. In the process, regimes may find unexpected common ground. For example, robust peacekeeping, the ICC and R2P may tend to reinforce each other’s tendency to adopt an anti-‐non-‐state actor bias, even as they were imagined as tools to fight sovereign excesses. Yet regimes may also be in tension with each other especially, as it happens, when it comes to the question of legalization. The emerging consensus seems to be that a peace operation should at least not put civilians in a position where they are worse off than had it not existed, and that this requires both a specific mandate and a specific capability.126 If and when they use force, peacekeepers should do so in a way that conforms with international law. At the same time, the notion that failures of protection might result in the UN being held liable is seen as much more problematic. It is one thing to say that genocide or attacks on civilians should categorically not be committed; it is quite another to say that peace operations have a meaningful legal obligation to prevent them. The evolution towards robust peacekeeping thus emerges as a complex and contradictory field. On the one hand, what is striking is in some ways how relatively little has changed since the early 1990s when these issues started being discussed regularly, as the UN seeks to reconcile peace keeping and intervention, neutrality and hostility to international crimes, minimum use of force and the need to stop atrocities. 126 In this context the suggestion that the mere presence of peace operations, even short of any particular failure, may spur violence against civilians by parties is particularly damning. Lisa Hultman, ‘Keeping Peace or Spurring Violence? Unintended Effects of Peace Operations on Violence against Civilians’ (2010) 12 Civil Wars 29.

The net effect of R2P and to a lesser degree of international criminal justice on peace operations might be said to be the radicalization of the fundamental underlying contradictions at their heart between energetically intervening to protect populations and state consent. The challenge of “robust peacekeeping,” moreover, is characterized by a deep tension between a desire for normalization and ad hocism. “Robust peacekeeping” as an institutional concept is an attempt to streamline and order what the UN’s response should be in a particular type of dramatic circumstances. Yet the response of the UN to such circumstances often seems to vary from one theatre to the other, giving many meanings to the notion. Moreover, the UN itself it keen to stress the exceptional, non-‐precedent creating nature of some of its boldest institutional innovations (e.g.: the intervention brigade in RDC). Considerable political and operational obstacles to civilian protection remain, including non-‐negligible fears about the sustainability of missions that simultaneously seek to build peace and to confront violators of the humanitarian order. On the other hand, one should not underestimate the extent to which peace operations are actually changing as a result of this pressure of two decades to somehow prioritize, and even absolutize the protection of civilians and the avoidance of atrocities. Robust peacekeeping is a product of its times, born from the failures of Srebrenica and Rwanda, in a context where the moral pressure has never been stronger for the UN to rise to its post-‐Second World War promise that genocide would “never again” occur. It remains true that paradigmatically few things would have the potential to change the nature of peace operations more fundamentally than a move from pursuing peace above all to putting protection of civilians at the pinnacle of the UN’s priorities. Although the regime of accountability of peace operations when it comes to civilian protection is still in its infancy, some cases already point to ways of circumventing UN immunity (by suing troop contributing states) that shed light on what might be the liability of peace operations. And, as a sign of how fast things may be changing, the concern has already shifted in some cases from UN inaction to, as in the RDC, cases of UN support for states’ efforts at combatting rebel groups that end up producing their own violence against civilians. Ultimately, it is difficult to avoid the feeling of a metamorphosis that is never entirely consumed and remains quite opportunistically tied to circumstances (R2P and ICC prosecutorial policy encounter similar problems when they try to systematize what they do in the light of ever changing conditions). The change from peace operations to civilian protection operations, from impartiality to (partial) partiality, from consensual presence to non-‐consensual presence is one that remains only partly achieved, except perhaps in a way that allows the UN to play on different registers and adapt its language to a variety of evolving situations. At times, given how saturated mandates are with different goals, it will be unclear whether civilian, force or mandate protection are the driving force behind a particular use of force.127 Not all peace operations even have a civilian protection mandate, and not all those that have such a mandate have used it dynamically, let alone successfully. The “commitment gap” between the sort of resolutions that states are willing to vote in favor and their actual readiness to

127 Alex J Bellamy and Paul D Williams, ‘Local Politics and International Partnerships: The UN Operation in Côte d’Ivoire (UNOCI)’ (2012) 16 Journal of International Peacekeeping 252.

contribute troops for the purposes of robust peacekeeping often remains stark.128 . In the end, the constant mix of adherence to high principles and pragmatism, affirmation of foundational principles of peace operations combined with their complete reinvention may be a manifestation of the “organized hypocrisy” that Michael Lipson has argued may actually allow the UN to get the job done in a context of contradictory pressures.129 This hypocrisy, however, is not so much a moral failure than it is traceable to persistent doubts about the very notion of robust peacekeeping. Some reservations manifest an attachment to peacekeeping as a tried and trusted tool where its robust variant threatens to take the UN into unchartered territory. For example, on the occasion of the creation of MONUSCO’s intervention brigade, the representative of Guatemala pointed out that it would compromise the vision of MONUSCO as an “honest broker” capable of offering its good offices to resolve disputes. The rise of robust peacekeeping may also activate some more fundamental political concerns about interference that are more reminiscent of both the R2P and ICC debates (and that have been rekindled, typically, in Libya and Mali), in a context where peace operations act increasingly as a form of “pre-‐deployed” humanitarian intervention.130 The taste for “robust peacekeeping” is not one that is evenly shared by all states especially in a context where it seems to effectively flirt with “regime change,” albeit presented as preserving democratic achievements.131 With efforts at protecting civilians in Ivory Coast (POC) being seen by countries such as China, Brazil, Russia and India as a Trojan horse for international intervention reminiscent of fears about R2P132 and as subtly destabilizing the Charter economy, it was only likely that a significant pushback would manifest itself. Indeed, it may be that “robust peacekeeping,” even as some of its stakes are dramatized by the ubiquity of R2P language, will suffer from its association with the political overtones of its broader cousin and some of the concerns that raises (notably post-‐Libya). Similarly, the fact that peace operations are increasingly under pressure to act as enforcement arms for the ICC may create tensions in situations where such operations are composed and act on the territory of both states and non-‐state parties. Still, compared to R2P and the ICC, robust peacekeeping may not attract quite the same political fire, and this may explain why its promoters do not particularly seek to present

128 Christine Gray, ‘Peacekeeping After the Brahimi Report: Is There a Crisis of Credibility for the UN?’ (2001) 6 Journal of Conflict and Security Law 267. 129 Michael Lipson, ‘Peacekeeping: Organized Hypocrisy?’ (2007) 13 European Journal of International Relations 5, notably 20–21. 130 Andrew Cottey, ‘Beyond Humanitarian Intervention: The New Politics of Peacekeeping and Intervention’ (2008) 14 Contemporary Politics 429; T Modibo Ocran, ‘Doctrine of Humanitarian Intervention in Light of Robust Peacekeeping, The’ (2002) 25 Boston College International and Comparative Law Review 5. 131 Andreas Mehler, ‘From “Protecting Civilians” to “For the Sake of Democracy” (and Back Again): Justifying Intervention in Côte d’Ivoire’ (2012) 5 African Security 199. 132 The reaction of India to the reinforcement of UNOCI’s mandate to protect civilians is characteristic. See S/PV.6508, 30 March 2011 (“We want to put on record that United Nations peacekeepers should draw their mandate from the relevant resolutions of the Security Council. They cannot be made instruments of regime change. Accordingly, the United Nations Operation in Côte d’Ivoire (UNOCI) should not become a party to the Ivorian political stalemate. UNOCI should also not get involved in a civil war, but carry out its mandate with impartiality and while ensuring the safety and security of peace-‐keepers and civilians”).

it as linked to either.133 For one thing, it still most of the time occurs within a horizon of consent of the state in which the peace operation is deployed, if not of various non-‐state actors operating on its territory. Whilst states from the Global South have been particularly wary of R2P (increasingly working hand in hand with the ICC) to the extent it might justify military intervention, it should be said that they have also been quite unforgiving of some peace operations’ failure to adopt more robust features when needed, abandoning civilians to their fate (the attitude of Rwanda post-‐genocide comes to mind). Maybe there is something that is seen as particularly shameful about being already in a theatre and failing to protect civilians, as opposed to not having been there and not decided to intervene. Robust peacekeeping may overall be more acceptable internationally than R2P, a sort of intermediary step that builds on the opportunity provided by existing presences to use force within a still fundamentally non-‐interventionist paradigm. In fact, if what I have argued is true, namely that robust peacekeeping – uncontradicted in this by the general thrust of either international criminal justice or R2P – is generally (and perhaps against all appearances) pro-‐state, then states that are wary of robust peacekeeping should probably pay attention to its actual practices rather than grand statements of intention. Robust peacekeeping, with the possible exception of Ivory Coast, has hardly proved a Trojan horse for international intervention against states. Moreover, on the protection of civilians side, at least robust peacekeeping seems easier to pin down where R2P often appears to be a responsibility be shared by all, and therefore to be no one’s in particular. By contrast, peace operations’ mix of pre-‐existing responsibilities and on-‐site deployment in the midst of tragic events arguably create just the right degree of friction for some serious questioning about responsibilities to occur. Persistent questions, then, are bound to keep being raised in what has been described as the “fog of peacekeeping.”134 These are of a moral, operational and legal character. Is protecting civilians one of the conditions of international peace and security or the condition? Might it in certain circumstances be an obstacle? What if robust peacekeeping became a pale substitute for either R2P or the hard political work of brokering peace agreements, a cosmetic additive, in the same way perhaps that international criminal tribunals have at times been criticized as a fig leaf for UN inaction? Is there not a risk that civilian protection might detract from the more political goal of securing peace, in a context where it may end up delivering neither? What if the UN finds that it has to combat, on the grounds that they harass civilians, the very forces it would need to sit at a table with to bring about a settlement? When, how and by who should the trade offs be identified? Is there not a danger that the UN will eventually desist from even engaging in certain peace operations now that it has itself set the bar so high? Or that peace operations’ efforts in favor of civilian protection will create a moral hazard, effectively encouraging rebel groups to build into their agenda an expectation that the UN will protect them? What if UN protection of civilians ends up running counter to efforts at rebuilding the state’s authority around a basic ability to protect its population, for example by displacing resources that might otherwise have been dedicated to security sector reform or DDR? What if protection is exploited by a state that is only too happy to 133 On the politics of linkage between the ICC and R2P in particular, and how it may be wiser to keep the two apart, see Schiff (n 1). 134 Daniel S Blocq, ‘The Fog of UN Peacekeeping: Ethical Issues Regarding the Use of Force to Protect Civilians in UN Operations’ (2006) 5 Journal of Military Ethics 201.

draw on UN resources to do its order maintenance work for it? Or by a state that uses the existence of a rebel threat and the indebtedness of the peacekeeping concept to its consent to hold a peace operation hostage to its own wrong doing? What if troop contributing states or the UN itself become more reluctant to engage in peacekeeping out of fear that they will be sued for their failures to protect civilians?135 These questions have no easy answer, but they will require more significant research in years to come, if civilian protection is not to become, instead of peace operations’ new raison d’être, the hole that engulfs them.

135 This particular fear is regularly invoked by the United Nations. For example, the official spokesman for the UN Secretary-‐General, Fred Eckard, was very clear in his reaction to a threatened law suit for failure to protect in Rwanda "… I can say that if we allowed our peacekeepers to be brought to courts and tried over matters like this, that would be the end of peacekeeping." Mark Riley and Pamela Bone, ‘UN Denies Culpability for Genocide’ The Age (Victoria, 1 December 2000).

Between\tR2P and\tthe ICC: “Robust Peacekeeping” and the Quest for Civilian Protection (2015)

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