Principles and evolving practice of the use of force in UN peacekeeping

Although peacekeeping is not mentioned as such in the UN Charter, it has become one of the most essential conflict resolution tools in the UN toolbox. What distinguishes UN peacekeeping from other bilateral or multilateral peace operations – beyond the universal membership of the organisation – are three prescribed basic principles: (1) the consent of the parties – host government and/or parties to the conflict; (2) impartiality; and (3) non-use of force except in self-defence and defence of the mandate.Footnote ³ Another unique feature of UN peacekeeping is its multidimensional approach – bringing together military and civilians, with increasingly complex mandates combining political, security, protection, rule of law and human rights efforts.Footnote ⁴

But while these basic principles are largely seen as the basis for the legitimacy, credibility and security of UN peacekeepers and the overall success of the operation, they have also been challenged by the evolving practice. UN peacekeepers have been deployed in increasingly complex and dangerous theatres where the consent of the parties to the conflict is tenuous at best and easily reversed, and where they may be expected to carry out robust action against ‘spoilers’ – broadly defined as illegal armed elements that have stayed out of (or left) a peace process and represent a threat to the state and/or civilian populationFootnote ⁵ – or to protect civilians under imminent threat. Although the concept of ‘robust peacekeeping’ that emerged after the peacekeeping failures of the 1990s is not a new one and was first mentioned in the Brahimi Report,Footnote ⁶ it was brought back to the forefront in 2008–2010.Footnote ⁷ The term ‘effective’ peacekeeping is now generally preferred by troop-contributing countries – many of whom have generally been reluctant to embrace robustness, as it is more likely to result in the loss of peacekeepers' livesFootnote ⁸ – but the fundamental tension between the use of force and respect for UN peacekeeping principles remains.

The Security Council opened a new chapter in this debate when it authorised, in March 2013, the deployment of a UN Intervention Brigade in the eastern Democratic Republic of the Congo (DRC). This unit was allowed to use offensive combat operations to ‘neutralise and disarm’ Congolese rebel groups,Footnote ⁹ in particular the M23 rebels who had temporarily taken over the city of Goma in November 2012 in spite of the presence of about 1,500 UN peacekeepers.Footnote ¹⁰ The Intervention Brigade is composed of about 3,000 troops from Tanzania, South Africa and Malawi, deployed for one year within the existing UN Stabilisation Mission in the DRC (MONUSCO). But many in the UN Secretariat and among member states are still reluctant to go that route. This was illustrated by the fact that Resolution 2098 was agreed upon ‘on an exceptional basis and without creating a precedent or any prejudice to the agreed principles of peacekeeping’. In the same vein, the subsequent Resolution 2100 establishing the MINUSMA clearly restated in its preamble the above-mentioned basic principles of peacekeeping, including the prohibition to use force except in self-defence or defence of the mandate.Footnote ¹¹ This was done with the intention of clearly distinguishing UN peacekeeping – even when called a ‘stabilisation mission’ – from peace enforcement and offensive military action that others may be more willing and better suited to undertake, be they national, regional or multinational forces.

Indeed, the Intervention Brigade remains an exception to the trend and UN peacekeepers remain unlikely to engage in offensive military operations and peace enforcement. Instead, and because of the complex and dangerous environments in which it operates, but also because of pressures from host governments (to keep rebel forces at bay, for example), the UN has found itself increasingly engaging in what could be called ‘peace operations by proxy’ – that is, UN peacekeepers partnering with national or regional non-UN security forces that are themselves involved in offensive military operations. These partnerships can be broken down into two broad categories, which are not mutually exclusive: (1) non-UN forces operating in support of UN forces; and (2) UN peacekeepers providing support to non-UN forces.

Non-UN forces operating in support of UN peacekeepers

This first type of peacekeeping partnership involves non-UN forces operating in support of UN forces, in a more or less formalised manner. For example, Resolution 2100 states that it:

While many welcomed the presence of 1,000 French troops alongside the UN mission given the security threat posed by terrorists and affiliated groups, some have expressed concerns about the risks of being too closely associated with a counter-insurgency-type military operation, fearing that it would expose UN staff, including staff from humanitarian agencies, to reprisals. Yet this reflects a more general trend towards these so-called ‘parallel’ deployments of UN and (robust) national or regional non-UN forces – such as from the European Union (EU) – from the DRC to Chad and Côte d'Ivoire.Footnote ¹³

While the North Atlantic Treaty Organisation (NATO) deployed larger peace operations in the Balkans and Afghanistan – the latter now drawing down – that were also authorised by the UN Security Council with an expectation of ‘cooperation, coordination and mutual support’ between both organisations,Footnote ¹⁴ the above-mentioned ‘parallel’ forces differ by their smaller size and the fact that they do not carry out large-scale combat operations. Although the presence of such troops may be the result of a bilateral agreement with the host government, they are also expected to coordinate and provide some support (mostly related to security) to the UN mission on the ground and to report on such activities.Footnote ¹⁵ These ‘parallel’ forces differ, however, from hybrid operations such as the Africa Union–UN Hybrid Operation in Darfur (UNAMID), in that the former retain their own chains of command and rules of engagement (that is, they do not respond to the UN force commander) in order to ‘maintain the highest degree of operational autonomy possible, even where they are cooperating extremely closely’.Footnote ¹⁶

While the UN has got better at developing joint assessments and planning processes as well as more effective coordination mechanisms and interoperability with non-UN organisations such as the EU, having multiple organisations running parallel operations on the ground with different chains of command and rules of engagement continues to create immense challenges. Furthermore, such ‘parallel’ deployments between UN and non-UN forces often do not guarantee the impartiality that the UN strives for, particularly when these forces carry out joint patrols and are ‘collocated’ in some of the same locations. This becomes even more of an issue when the UN is providing support to these regional or national non-UN forces engaged in combat operations, as is increasingly the case in practice.

UN providing support to non-UN forces

The post-Cold War international context has seen two main evolutions with major implications for UN peacekeeping that help to explain its growing tendency to engage in ‘peace operations by proxy’. First, the bulk of UN peacekeeping has shifted from mostly small missions monitoring ceasefires in inter-state conflicts in the Middle East to a large number of multidimensional missions dealing with intra-state conflicts and civil wars in Africa. Second, after a short-lived attempt at autonomous regional peace enforcement in Africa by the Economic Community of West African States (ECOWAS) in the 1990s in Liberia and Sierra Leone, regional African peacekeeping has re-emerged after the creation of the African Union (AU) in 2003.Footnote ¹⁷

The first shift is responsible for about 80% of UN peacekeepers currently being deployed in Africa, but it has also resulted in an increased focus of UN missions on state- and institution-building as part of (early) peacebuilding and stabilisation efforts.Footnote ¹⁸ The ‘extension of state authority’ has become a core function of peacekeeping.Footnote ¹⁹ Such mandates generally imply the development and reform of the national security forces – army and police – of the host country, to enable peacekeepers to hand over security responsibilities as a key benchmark for the withdrawal of the UN mission. In a few cases, the UN has provided assistance to domestic military operations by the national army of the host country: the UN mission in the DRC (MONUC/MONUSCO)Footnote ²⁰ providing fuel, food rations, transport, and tactical support to units from the Congolese army conducting operations against rebel groups, for example, or the UN mission in South Sudan (UNMISS) airlifting South Sudanese army soldiers and providing fuel to Sudan People's Liberation Army's helicopters.Footnote ²¹ This presents a dual challenge, however, as these national forces may commit human rights violations, but also because it may more generally affect the perception of UN peacekeepers' impartiality, as we shall see later in this article. Yet the UN mission, which is mandated to support the development of national institutions and whose continued presence depends on the host country's consent, may find itself in a difficult position when asked by national authorities – which hold the primary responsibility to protect their own populations but often lack the means to do so – for such support.

The second shift and the emergence of the AU as a major peacekeeping actor on the continent are the result of a recognition that no single actor can effectively address the entire peacekeeping burden in Africa, but also that the AU has some comparative advantages over the UN in certain African contexts. On the one side, the AU and African troops can add political legitimacy and leverage to a peace operation, particularly when the host government may not welcome a UN presence. For instance, Khartoum initially opposed a UN deployment in Darfur, which eventually led to the deployment of the hybrid AU–UN mission UNAMID instead. On the other side, the AU has shown greater willingness to undertake peace enforcement missions that the UN and its troop-contributing countries would be reluctant to undertake based on the UN peacekeeping basic principles. There is also a sense that the UN and its troop-contributing countries could not politically sustain the kind of casualties that AU troops have sustained in Somalia.Footnote ²² However, because of the limited financial and logistical means of the AU, the UN and other partners have provided increasingly comprehensive logistical and financial support packages to some AU-led peace operations. The most extensive such support package has been provided to the AU Mission in Somalia (AMISOM), which has since late 2009 been supported under the UN peacekeeping budget covering most logistical and equipment costs (while the EU has continued paying for AU troop allowances).Footnote ²³

To sum up, the recent tendency of UN peacekeeping to take on stabilisation mandates has resulted in the three concomitant evolutions described above: (1) UN peacekeepers themselves engaging in more robust peacekeeping (such as the Intervention Brigade in the DRC), which remains the exception; (2) non-UN forces operating in support of UN peacekeepers (such as in Mali); and (3) the UN providing support to non-UN forces (Somalia, the DRC). While all three call into question the principle of impartiality of peacekeeping missions, they also have very different implications depending on the context, the nature of the partnerships (the UN acting in support of a non-UN force or vice versa), and the regional and national security forces at stake.

Legal implications

While the International Committee of the Red Cross (ICRC) has long contended that international humanitarian law (IHL) is applicable to multinational forces involved in peace operations,Footnote ²⁵ whether under UN auspices or under UN command and control,Footnote ²⁶ this position was disregarded for a long time. Opponents to the applicability of IHL to multinational forces argued that the latter could not be considered as a ‘party’ to a conflict in the sense of the 1949 Geneva Conventions. It was indeed claimed that, given the impartial and objective nature of the mandate received from the international community and aimed at restoring international peace and security, multinational forces could not be deemed a ‘belligerent’ as understood in IHL. However, the unprecedented involvement of peacekeepers in ‘robust’ combat operations during the 1990s truly opened the debate and led to the adoption of the Secretary-General's Bulletin on the Observance by UN Forces of International Humanitarian Law in 1999.Footnote ²⁷ In the words of the former principal legal officer of the UN's Office of Legal Affairs, the bulletin ‘concluded the debate over the principle of applicability of international humanitarian law to UN peacekeeping operations’.Footnote ²⁸ Although there are still disagreements as to the threshold triggering the applicability of IHL and its scope of application,Footnote ²⁹ it is broadly recognised today that UN peacekeepers become a party to the conflict – and thus bound by IHL as such – when they directly participate in hostilities.Footnote ³⁰ This applied, for instance, when MONUSCO's helicopter attacks targeted M23 rebels in 2012, in support to the Congolese armed forces.Footnote ³¹

But what does it tell us about the legal responsibility of the UN for a specific violation of IHL committed by non-UN security forces when a peacekeeping mission provides administrative, logistical, or even tactical support, but does not commit the specific violation itself? First, Article 1(3) of the UN Charter states that one of the purposes of the world body is ‘to achieve international co-operation … in promoting and encouraging respect for human rights and for fundamental freedoms for all’. Support to national or regional forces committing IHL or human rights violations would be in contradiction with this very purpose. Second, such support could arguably render the UN complicit in violating international law and could engage the international responsibility of the organisation. The International Law Commission indeed considers that an international organisation is internationally responsible when it aids or assists a state or another international organisation – including regional bodies like the AU or NATO – in the commission of a wrongful act if ‘(a) the organisation does so with the knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that organisation’.Footnote ³² As for the latter condition, it is generally agreed today that a violation of IHL – by which UN peacekeepers are bound, as discussed above, when they directly participate in hostilities – could be considered an internationally wrongful act triggering the responsibility of the international organisation.Footnote ³³ The former condition, however, requires that the international organisation must have had the knowledge of the circumstances of the international wrongful act, an element that is inherently circumstantial and that depends on the nature of the relationship between the UN and the non-UN security force. Notwithstanding the high threshold established by the International Law Commission, it is worth noting that the UN itself – in its commentaries on an earlier version of the Draft Articles on the Responsibility of International Organisations – referred to the support provided by its mission in the DRC (then MONUC) to this country's armed forces as a potential case of aiding and assisting in the commission of a wrongful act.Footnote ³⁴ Therefore, while it is debatable that the UN would be held responsible for a wrongful act committed by French forces in Mali – where they conduct military operations largely autonomously from MINUSMA, despite being mandated to support it – it is not unreasonable to argue the UN could be held responsible for wrongful acts committed by forces it directly supports, such as AMISOM in Somalia.

Although it is arguable that UN support to non-UN security forces could engage the international legal responsibility of the organisation in certain circumstances, this debate remains largely theoretical due to the lack of enforcement mechanisms and judicial remedies. Indeed, in practice the policy implications and the impact in terms of perception and security of such association to non-UN security forces have played a much greater role in shaping new UN policies in that respect.

Policy implications

On the policy front, the increased tendency of the UN to rely on and support non-UN security forces in the implementation of its peace operation activities has implications in relation to the protection of civilians and to humanitarian action in general, based on the principles of impartiality, independence and neutrality.

Concerning the protection of civilians – a component increasingly included in the mandate of UN peacekeeping missions since 1999Footnote ³⁵ – contradictions between the stated mandate of a UN mission and its implementation are quite obvious when the UN supports security forces directly responsible for widespread abuses against civilians. This was the case in 2009 when MONUC provided support to and engaged in joint operations with the Congolese armed forces (FARDC)Footnote ³⁶ and, to a lesser extent, in Somalia when the UN-supported AMISOM forces retaliated to attacks by indiscriminately shelling urban areas and substantially endangering civilians.Footnote ³⁷

Beyond the consequences linked to the immediate behaviour of non-UN security forces, there are more subtle policy implications related to the overarching objectives of UN support to non-UN forces. As previously discussed, this growing trend is concomitant with the increasing involvement of the UN in ‘stabilisation’ operations. Proponents of this approach argue that the objectives of stabilisation are, both in the short and long term, to protect civilians through immediate physical protection and by building an environment conducive to the respect of civilians through better governance, rule of law and sustainable peace. This is made explicit in the PoC strategy of MONUSCO, an entire pillar of which is based on the UN stabilisation strategy for the eastern DRC and aims to extend state authority in that volatile part of the country, including by providing support to the government's security forces.Footnote ³⁸ Yet, when it comes to protecting civilians, it presupposes that said security forces, which engage in combat operations, will strictly abide by IHL and take the utmost care to protect civilians in their conduct of hostilities. MONUSCO's PoC strategy had identified this risk by warning that the mission ‘may need to modulate its support to the FARDC based on the latter's behaviour and respect of IHL and human rights law’.Footnote ³⁹

More fundamentally, this type of approach that aims to extend the state's authority through support to its security forces both to bring stability and protect civilians introduces an element of partiality in apparent contradiction with the impartiality required from humanitarian actors as per the widely respected Professional Standards for Protection Work developed by the ICRC.Footnote ⁴⁰ From the DRC to Somalia and from Afghanistan to Mali, some authors have observed that ‘the UN openly relinquished any pretence of neutrality or impartiality, even though it lacks the requisite resources and structures to play a comprehensive or clearly strategic stabilisation role’.Footnote ⁴¹ In other words, stabilisation mandates result in the UN giving up the impartiality expected from a protection actor while it usually fails to achieve the positive outcomes that successful stabilisation efforts are expected to have on civilian protection, for lack of the required resources and structures.

The lack of neutrality and impartiality of UN missions mandated to support non-UN security forces engaged in conflict also has obvious policy implications for broader humanitarian action. More often than not, this support is a modality of stabilisation efforts that tend to subsume humanitarian action into broader political objectives. In the context of a UN integrated mission – which brings all the different spheres of activities of the UN under the political leadership of the Special Representative of the Secretary-General (SRSG) and has been the norm in conflict and post-conflict settings since the UN Secretary-General's Decision No. 2008/24Footnote ⁴² – it can result in humanitarian preoccupations being sacrificed on the altar of political expediency. This was the case in the DRC in 2009, for instance, when the ‘protection cluster’, gathering a number of humanitarian agencies engaged in protection activities, officially complained to the SRSG, Alan Doss, that the latest report of the Secretary-General to the Security Council on MONUC represented an ‘inaccurate picture of the humanitarian situation’ in the country.Footnote ⁴³ Similar concerns were reported around the same time in Somalia, where the SRSG, Ahmedou Ould-Abdallah, wanted humanitarian aid to be channelled through the Transitional Federal Government in order to legitimise it,Footnote ⁴⁴ and could very well resurface in Mali in the context of the UN integrated stabilisation mission. As illustrated in these examples, a complex relationship exists between humanitarian action and political imperatives. Humanitarian action can at times serve broader political objectives, as in the Somalia case, by demonstrating the tangible and quick impact of a peace operation. Conversely, it can also contradict the dominant political narrative that wants to present the context in which a peace operation is deployed under a favourable light, as in the DRC case. In either instance, submitting humanitarian action to political objectives risks distracting from the humanitarian imperative to save lives and alleviate suffering based on an objective assessment of needs. Beyond the immediate impact this can have on operational decisions and policies, the submission of humanitarian aid to broader political objectives in the context of UN integrated missions can also have very serious implications in terms of perception of humanitarian actors – both UN and non-UN agencies, as we shall see below – by the population and other stakeholders, and therefore on the security of humanitarian personnel.

Perception and security implications

It is widely accepted that UN peacekeepers and humanitarian actors alike must be impartialFootnote ⁴⁵ – and perceived to be so – in order for the UN mission to retain the ability to play good offices and mediator functions, and for humanitarian actors to access populations in need wherever they are, including in areas controlled by non-state armed groups. In turn, perception by a party to a conflict that UN peacekeepers or particular humanitarian organisations are partial and one-sided risks undermining their ability to achieve their respective mission and, in addition, might jeopardise the safety of their respective personnel. Yet it is argued here that perception of partiality of UN peacekeepers by armed groups does endanger not only the staff – military or civilian – of the peacekeeping mission itself but also the staff of humanitarian organisations, whether directly affiliated or not to the UN.

In the DRC, for example, the M23 rebels, who had in the past used PoC language as an integral part of their communication strategyFootnote ⁴⁶ and alleged that civilians had been killed by UN helicopter attacks, threatened in April 2013 to ‘fight back’ in the event of an attack by the new MONUSCO Intervention Brigade.Footnote ⁴⁷ This clearly illustrates the kind of security implications that the use of force by UN peacekeepers – and their real or perceived lack of impartiality – can have. During discussions at the UN Security Council on the creation of the Intervention Brigade, some troop-contributing countries expressed concerns that such a brigade might threaten the safety of the entire peacekeeping force. Yet others have argued that this is not really new, as MONUSCO was already authorised to conduct offensive operations under its Chapter VII mandate (and it did), where the rules of engagement authorise the use of force beyond self-defence.Footnote ⁴⁸

While this offensive mandate has perception and security implications for peacekeepers – uniformed and civilians – it is also likely to affect both UN-affiliated and non-UN humanitarian actors.Footnote ⁴⁹ As noted in a study commissioned by the UN Integration Steering Group, ‘it is evident that how UN humanitarian actors are perceived is influenced by the manner in which the UN political or peacekeeping component is perceived’.Footnote ⁵⁰ In the current UN-led humanitarian coordination system, this assertion arguably applies not only to UN humanitarian actors but also, more broadly, to all humanitarian aid agencies that are affiliated with the existing ‘cluster’ system under the overall leadership of a UN Humanitarian Coordinator.Footnote ⁵¹ How humanitarian agencies are perceived by local communities, national and local authorities, and the parties to a conflict is crucial for humanitarian access and to ensure the security of aid personnel. A 2011 study commissioned by the UN Office for the Coordination of Humanitarian Affairs (OCHA) concluded that the most successful humanitarian agencies in highly insecure environments are those that prioritise acceptance by all relevant stakeholders, including the population, through sustained humanitarian dialogue and strict respect of the humanitarian principles of impartiality, independence, and neutrality.Footnote ⁵²

Just like when UN peacekeepers engage directly in fighting, the UN's partnerships with non-UN security forces that are parties to a conflict undoubtedly have an impact on how the UN political and peacekeeping component is perceived and, consequently, how humanitarian actors are seen. This was made explicit by the UN Secretary-General in late 2012 during discussions on the modalities of the creation of an African-led International Support Mission to Mali (AFISMA). In his November 2012 report, the Secretary-General, drawing on previous experience with AMISOM in Somalia, cautioned that the AU's ‘request to the Security Council to authorise a UN support package for an offensive military operation raises serious questions’, adding that ‘the impact on the image of the UN … in addition to the implications for the safety and security of UN personnel in the region, must be weighed carefully’.Footnote ⁵³ The Security Council ultimately authorised AFISMA in December 2012, but subsequently denied it the same kind of logistical and financial UN support package as AMISOM, instead opting for voluntary member state contributions to a trust fund, echoing among other considerations the Secretary-General's concerns.Footnote ⁵⁴

To be fair, one should recognise that, theoretically at least, UN support to national or regional security forces does not necessarily cast a negative image on the world body and, conversely, merely operating ‘in parallel’ may not be sufficient to disassociate the UN from a non-UN combat force – at least in the eyes of some parties to the conflict, as in Afghanistan.Footnote ⁵⁵ If support is granted to security forces that are widely seen as legitimate and benefiting from the support of large swaths of the population, it is likely to shed a positive light on the organisation, provided it meets at least some expectations in terms of security. But even in this ideal scenario, from a strictly humanitarian perspective, such support is necessarily granted to one side and against one or several other parties to a conflict, most of the time non-state armed groups. This stands in contrast with the requirement of impartiality and neutrality of humanitarian actors highlighted above. Therefore, even in a best-case scenario where UN support is given to widely accepted and legitimate forces, it is likely to impact the perception by opposition armed groups and their supporters that UN humanitarian agencies and non-governmental organisations (NGOs) associated with them are partial and against them, endangering those organisations' staff and jeopardising access.

From ‘conditionality’ to ‘due diligence’

Real concerns about the potential legal responsibility of the UN for wrongful acts committed by the security forces that it supports first emerged in the DRC during the above-mentioned 2009 military operation by the FARDC to dismantle rebel groups, which was supported by MONUC.Footnote ⁵⁶ Rather than improving the security situation for civilians, this operation led to the deterioration of humanitarian conditions and widespread human rights violations committed by both the rebels and the FARDC.Footnote ⁵⁷ Concerns about the legal risks of UN peacekeepers being complicit in crimes committed by Congolese soldiers quickly surfaced and were formalised in a series of legal advices from the UN Office of Legal Affairs. In one such note, the legal office stated that ‘if the FARDC violate international humanitarian, human rights or refugee law in the course of the operation, MONUC must immediately intercede with the FARDC … with a view to dissuading the units concerned from continuing in such violations.’Footnote ⁵⁸ It added that, should widespread and serious violations continue despite these efforts, ‘MONUC must cease its participation in the operation as a whole’.Footnote ⁵⁹ In June 2009, the legal advice was endorsed by the UN Secretary-General's Policy Committee, which prompted MONUC officials to develop a policy conditioning UN support to the FARDC to respect for international law. The ‘conditionality policy’, as it would later be known, was finally endorsed by the Security Council in its Resolution 1906, which further called on the Secretary-General to ‘establish an appropriate mechanism to regularly assess the implementation of this Policy’.Footnote ⁶⁰

This adjunction by the Security Council resulted in a review mission dispatched from UN headquarters in spring 2010 that, according to senior UN officials, included wide consultations with other humanitarian and human rights actors present in the country.Footnote ⁶¹ Although this policy was criticised by some observers as a convenient fig leaf to continued acts of violence by the FARDC,Footnote ⁶² these consultations convinced the UN to extend the ‘conditionality policy’ to other UN missions; this was compounded by growing concerns about how AMISOM was conducting hostilities in Somalia. The policy should further bind not only peacekeeping missions but all UN entities in their dealings with non-UN security forces. In late 2010, the UN Policy Committee decided that the conditionality policy should apply globally and system-wide, and launched an internal inter-agency process led by the Department of Peacekeeping Operations and the Office of the High Commissioner for Human Rights to work on the development of a new policy. In July 2011, the Human Rights Due Diligence Policy on UN support to non-UN security forces (HRDDP) was officially adopted as an internal policy applicable to all UN missions, offices, agencies, funds and programmes;Footnote ⁶³ it was officially made public in March 2013.Footnote ⁶⁴

Upgrading the ‘protection toolbox’: due diligence and engagement with non-UN security forces

The purpose of the HRDDP is to ensure that mistakes from the past, where UN missions provided support to security forces responsible for grave violations of human rights or IHL, do not happen again. It establishes a framework of due diligence, applying to all UN entities providing support to non-UN security forces, that includes three key elements: (1) a risk assessment of the likelihood that the concerned security forces will violate international law, to inform both the decision to give support and the drafting of mandates;Footnote ⁶⁵ (2) transparent communication with the concerned authorities at the earliest possible stage, including by the highest in-country UN leadership;Footnote ⁶⁶ and (3) an effective implementation framework laying down procedures and mechanisms to monitor, report and intervene with the relevant authorities when required.Footnote ⁶⁷

A literal reading of the HRDDP gives the impression that, in line with the conditionality policy, its main purpose is to shield the UN from any legal responsibility incurred by the behaviour of the security forces that it supports. It refers to the importance of ‘maintain[ing] the legitimacy, credibility and public image of the UN’Footnote ⁶⁸ and justifies withdrawing support ‘where continued support would implicate the Organisation in grave violations of international humanitarian, human rights or refugee law’.Footnote ⁶⁹ But beyond the ‘defensive’ character of the policy, what makes it truly remarkable is the opportunity it creates for proactive and constructive engagement with UN-supported security forces to protect civilians. In that respect, if applied consistently, the HRDDP will add a tool to the UN's ‘protection toolbox’ by providing a framework for systematic engagement with non-UN security forces on the protection of civilians in their conduct of hostilities, including in the context of stabilisation missions. Early risk assessments might also allow the Security Council to better take into account the risks inherent to such partnerships at the drafting stages of peacekeeping mandates, mitigating policy contradictions between stabilisation and PoC objectives. Interestingly, Security Council Resolution 2100 of May 2013, creating the MINUSMA, did just that by requesting that:

Despite the relatively conservative language used in the text of the due diligence policy itself, it is increasingly seen and presented within the UN system as a proactive tool for engagement on human rights and humanitarian law issues. According to UN officials closely involved in the implementation of the HRDDP, the end purpose of the policy as such is not suspension of support – this would rather be considered as a failure – but to influence positively the behaviour of security forces towards compliance with international law, including greater respect for civilians.Footnote ⁷¹

In the case of AMISOM in Somalia, the AU reacted to criticisms about its forces' bad record on human rights by reaffirming its commitment to IHL and establishing a Working Group on PoC within the AU Commission in February 2011 (prior to the adoption of the HRDDP). It also issued a new ‘Indirect Fire Policy’ included in the revised AMISOM rules of engagement in mid-2012, which ‘formalised a stricter chain of command for the use of mortar and artillery fire and the establishment of “no-fire zones” where civilians were known to be present’.Footnote ⁷² Although these positive policy developments cannot be directly credited to the HRDDP, this is certainly the kind of improvement that can be expected if it is applied consistently.

This framework for more consistent engagement with non-UN security forces on protection of civilians might alleviate some of the tensions described earlier between peacekeepers and humanitarian agencies, if it leads to improvements in the record of non-UN security forces protecting civilians while conducting combat operations. It requires, however, that peacekeepers themselves lead by example and are given the ability and the means to monitor these operations effectively. It remains true that the HRDDP will not address the more deeply entrenched contradictions highlighted above related to the loss of impartiality of UN peacekeepers when associated with broader peace enforcement or stabilisation efforts.

Thinking outside the integration box

UN peacekeepers' partnerships with national or regional security forces aimed at stabilising an area inevitably give the impression that the UN is not impartial and may even become a party to the conflict, as in the case of the DRC.Footnote ⁷³ Against this backdrop, most humanitarian actors are very concerned by the unstoppable trend toward increasingly integrated UN missions, which they see as subsuming humanitarian action to broader political objectives.Footnote ⁷⁴ They are all the more worried when the UN mission is de facto supporting a party to the conflict, as illustrated by the strong reaction of the NGO community to the creation of a UN integrated mission in Somalia in March 2013.Footnote ⁷⁵ The association of humanitarian agencies with political actors ‘is particularly problematic in high-risk environments, where the UN mission is implementing a political mandate that is opposed or contested by one or more of the conflict parties’,Footnote ⁷⁶ as is necessarily the case when the UN supports the security forces of a party to the conflict, as in the DRC, Somalia, or Mali.

Aware of the tensions between integrated UN missions and a humanitarian coordination system led by the UN, OCHA has developed a policy proposing different degrees of integration of the UN humanitarian leadership and coordination within the structure of UN missions on the ground.Footnote ⁷⁷ This policy aims to mitigate the effects of integration on the neutrality and independence of humanitarian action, and devises three modalities of structural integration depending on the context: (1) complete physical separation of OCHA and the Humanitarian Coordinator from the structure of the UN peacekeeping or political mission (‘two feet out’); (2) complete structural integration (‘two feet in’); and (3) a default option with a separate OCHA presence but integration of the Humanitarian Coordinator within the UN mission (‘one foot in, one foot out’).Footnote ⁷⁸

However, it remains questionable whether these different arrangements would really make a difference when a UN mission is associated with a party to the conflict. First, it is unclear to what extent OCHA, itself part of the UN Secretariat, can impose the degree of structural integration it favours on UN leadership. For that matter, the tendency might go towards greater mingling of UN legislative bodies in deciding the structural arrangements within a mission. This is illustrated by Security Council Resolution 2093 on Somalia, which took the unprecedented step of instructing the structural integration of the Humanitarian Coordinator within the political mission, leaving little leverage for OCHA to separate the humanitarian arm of the UN from the broader mission.Footnote ⁷⁹ Secondly, it is questionable whether such subtle cosmetic structural arrangements really impact how UN actors as a whole are perceived by the population and opposition armed groups. Some relatively sophisticated armed groups might be willing to distinguish between the ‘blue UN’ logos of humanitarian and development agency vehicles and the ‘black UN’ of peacekeeping and political missions, as was reportedly the case in Afghanistan.Footnote ⁸⁰ However, it remains doubtful that these different types of arrangements can dissipate the fundamental ambiguities created by multiple, and sometimes conflicting, UN mandates – ambiguities compounded by the drive towards greater UN integration. This is particularly true if an armed group wishes, for strategic or tactical reasons, to target the UN, in which case it may decide to aim at ‘soft’ UN targets rather than peacekeepers. This is arguably the reasoning that led Al-Shabaab to target the so-called ‘UNDP compound’ used by UN humanitarian agencies in Mogadishu in June 2013, rather than the heavily fortified airport area sheltering the UN political mission and AMISOM.Footnote ⁸¹

In contexts where the UN develops a partnership with or directly supports a party to the conflict and consequently loses its impartiality, the likelihood is high that it will affect humanitarian actors inasmuch as they are associated with the UN mission on the ground. Dilemmas over humanitarian principles will become more acute as the UN remains on a dual course of increasingly integrated missions aimed at enforcing peace by proxy while still aspiring to lead operational coordination of humanitarian action. In these specific contexts, it seems legitimate to argue that, in some cases at least, ‘the existing UN-led coordination system might have to consider disengaging from the operational theatre and privilege coordination and information-sharing at the strategic level’,Footnote ⁸² as opposed to operational coordination.

The increasing diversity of the humanitarian sector and the emergence on the global stage of relief actors that are not part of the mainstream UN-led humanitarian system, especially Muslim donor countries and Islamic charities, and that have different modus operandi, present new opportunities in that regard. During the famine that affected Somalia in 2011, tens of Arab or Muslim aid agencies operated in areas where traditional – mostly Western – humanitarian actors could not operate due to security reasons. The Organisation of Islamic Cooperation established a coordination office bringing together twenty-seven organisations that operated mostly in parallel to the UN-led coordination system, reportedly ‘to fill the gaps left by the UN with regard to inaccessibility of aid to certain areas of Somalia that are off-limits to international UN staff’.Footnote ⁸³ While these tectonic shifts in the international humanitarian system make the response more fragmented and create a number of challenges – for instance, in terms of uneven operational standards and increased risks of competition and duplication – they may also open new opportunities for humanitarian action where the UN's involvement in ‘peace operations by proxy’ compromises the impartiality, neutrality and independence of its humanitarian arm.