The Intervention Brigade: Legal Issues For The UN in The Democratic Republic of The Congo
The Intervention Brigade: Legal Issues For The UN in The Democratic Republic of The Congo
The Intervention Brigade: Legal Issues For The UN in The Democratic Republic of The Congo
ACKNOWLEDGEMENTS
In addition to desk research, the report draws on the
experience of the authors, two panel events at UN
IPI Publications
Adam Lupel, Director of Publications
and Senior Fellow
Suggested Citation:
Scott Sheeran and Stephanie Case,
The Intervention Brigade: Legal Issues
for the UN in the Democratic Republic
of the Congo, New York: International
Peace Institute, November 2014.
by International Peace Institute, 2014
All Rights Reserved
www.ipinst.org
CONTENTS
Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
HOW INTERNATIONAL LAW APPLIES TO
UN PEACEKEEPERS
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
iii
Abbreviations
ACIRC
AU
African Union
DFS
DPKO
DRC
FARDC
FDLR
IAC
ICC
ICJ
IHL
IHRL
LRA
M23
Mouvement du 23 mars
MINUSCA
MINUSMA
MONUSCO
NIAC
OHCHR
ONUC
RoE
Rules of Engagement
SOFA
TCC
Troop-Contributing Country
UN
United Nations
UNMIK
UNOCI
UNOSOM II
Executive Summary
In March 2013, the United Nations Security
Council adopted Resolution 2098 establishing the
Intervention Brigade within the UN Organization
Stabilization Mission in the Democratic Republic
of the Congo (MONUSCO). This provided
MONUSCO with an unprecedented UN
peacekeeping mandate for offensive operations to
neutralize armed groups in the Democratic
Republic of the Congo (DRC). While the mandate
was both innovative and controversialfor
political, operational, and legal reasonsthe
Intervention Brigade has been seen by many as a
success and a future model. The Security Council
renewed the Intervention Brigades mandate in
Resolution 2147 in March 2014 without any significant modifications.
It is clear that the legal issues for the Intervention
Brigades mandate were not fully considered or
understood in March 2013, and that they have
political and practical consequences. This report
analyzes the legal issues and reaches the following
key conclusions:
The Intervention Brigades mandate to use all
necessary means to neutralize armed groups
permits it to use force, including deadly force,
and, in this instance, reflects UN forces moving
toward a more traditional war-fighting, rather
than peacekeeping, posture.
MONUSCO as a whole, and not just the
Intervention Brigade component, is considered a
party to the armed conflict. As the UN is now a
party, all military members of MONUSCO will
have lost the protections afforded to them under
international law (i.e., under international
humanitarian law [IHL], the Convention on the
Safety of United Nations and Associated
Personnel through the status of forces agreement
[SOFA], and the Rome Statute of the International Criminal Court), and therefore no
longer enjoy legal protection from attacks. This
may impact the willingness of troop-contributing
countries (TCCs) to provide forces to
MONUSCO.
MONUSCO premises and bases can be catego-
* The UN Security Council this year extended the Intervention Brigade deployed in the UN Organization Stabilization Mission in the Democratic Republic of the
Congo (MONUSCO) to neutralize and disarm rebel groups in the country. This policy report builds on a prior IPI issue brief from July 2013 on policy and
operational issues for the Intervention Brigade by examining the legal issues. The report is a review of the difficult legal issues, including for non-lawyers.
Introduction
The Intervention Brigade in MONUSCO was both
welcomed and controversial at its inception. In
March 2013, the UN Security Council noted the
lack of progress in the DRC and unanimously
adopted Resolution 2098 establishing the first UNled overtly offensive force. There was a recognized
need to address the cycle of violence in the eastern
DRC with a more robust response.1 The
Intervention Brigade was given an unprecedented
mandate to neutralize rebel forces, something that
neither the UN peacekeeping mission nor the
Congolese government had been able to successfully address up to that point. The UN Secretariat
asserted that it was a peace enforcement mission,
not a peacekeeping mission, the first-ever
offensive combat force, and that the Security
Council authorized it on an exceptional basis and
without creating a precedent or any prejudice to
1 United Nations, Special Report of the Secretary-General on the Democratic Republic of the Congo and the Great Lakes Region, UN Doc. S/2013/119, February 27,
2013, paras. 25.
2 UN Security Council Resolution 2098 (March 28, 2013), Un Doc. S/RES/2098, para. 9; and United Nations, Intervention Brigade Authorized as Security Council
Grants Mandate Renewal for United Nations Mission in Democratic Republic of Congo, Press Release SC/10964, March 28, 2013. See also the mandate renewal,
UN Security Council Resolution 2147 (March 28, 2014), UN Doc. S/RES/2147, para. 1.
3 For example, see Security Council member Guatemalas Explanation of Vote after the Vote, March 28, 2013, available at
www.guatemalaun.org/bin/documents/SCUN-RES-2089%282013%29-DRC.pdf .
4 For example, compare the language in media reports to the language used in the secretary-generals report preceding the renewal of the Intervention Brigades
mandate: Though purely offensive operations have yet to be undertaken by MONUSCO, the Mission is currently providing support to the offensive operations of
the Congolese armed forces against ADF around Kamango, launched on 16 January 2014. See United Nations, Report of the Secretary-General on the United
Nations Organization Stabilization Mission in the Democratic Republic of the Congo, UN Doc. S/2014/157, March 5, 2014, para. 39.
5 UN News Centre, UN Mission Sets Up Security Zone in Eastern DR Congo, Gives Rebels 48 Hour Ultimatum, July 30, 2013, available at
www.un.org/apps/news/story.asp?NewsID=45535#.U1kRU8JOXVJ .
6 See, for example, UN Helicopters Strike Congolese Rebels, Al-Jazeera, August 29, 2013, available at
www.aljazeera.com/news/africa/2013/08/201382815950221122.html ; Agence France-Presse, UN Gunships Strike Ugandan Muslim Rebels in DR Congo,
ModernGhana.com, March 1, 2014, available at www.modernghana.com/news/526485/1/un-gunships-strike-ugandan-muslim-rebels-in-dr-con.html ; and Kenny
Katombe, U.N. and Congolese Troops Attack Rwandan Hutu Rebels, Reuters, March 12, 2014, available at www.reuters.com/article/2014/03/12/us-congodemocratic-offensive-idUSBREA2B15H20140312 .
The one change of note for the general MONUSCO mandate was that protection of civilians language was changed to remove the qualifier imminent.
Security Council Report, Democratic Republic of the Congo, July 2013 Monthly Forecast, New York, June 28, 2013, available at
www.securitycouncilreport.org/monthly-forecast/2013-07/democratic_republic_of_the_congo_2.php .
9 See, originally, United Nations General Assembly, Report of the Secretary-General: Summary Study of the Experience Derived from the Establishment and Operation
of the Force, UN Doc. A/3943, October 9, 1958, para. 127. The interpretation of these principles, particularly the meaning of self-defense, has expanded and been
endorsed by the UN General Assembly, Security Council, and Secretariat. See also United Nations General Assembly and Security Council, Report of the Panel on
United Nations Peace Operations (also known as the Brahimi report), UN Doc. A/55/305 and S/2000/809, August 21, 2000, ix; and UN Department of
Peacekeeping Operations (DPKO) and UN Department of Field Support (DFS), United Nations Peacekeeping Operations: Principles and Guidelines (also known as
the Capstone Doctrine), January 18, 2008, 34.
10 For example, see UN Office of the High Commissioner for Human Rights (OHCHR) and MONUSCO, Report of the United Nations Joint Human Rights Office on
Human Rights Violations Perpetrated by Soldiers of the Congolese Armed Forces 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, May 13, 2013, pp. 910, available at
www.ohchr.org/Documents/Countries/CD/UNJHROMay2013_en.pdf; Can the DRC Army Stop Abusing Human Rights? IRIN News, August 12, 2013; UN
News Centre, UN Human Rights Office Disappointed by Ruling in DR Congo Mass Rape Trial [of FARDC members], May 6, 2014; and UN Security Council,
Ensuring Future Stability in Democratic Republic of Congo Will Depend on Evolving Situation, Simplified Mandates, Mission Chief Tells Security Council, press
release, UN Doc. SC/9820, December 16, 2009 ( the FARDC have also committed human rights violations, including massacres ).
11 Permanent Mission of France to the UN, DRC/CAR/Ukraine: Remarks to the Press by Mr. Grard Araud, Permanent Representative of France to the United
Nations, March 28, 2014, available at www.franceonu.org/france-at-the-united-nations/press-room/speaking-to-the-media/remarks-to-the-press/article/28march-2014-drc-remarks-to-the .
12 See, for example, International Court of Justice (ICJ), Certain Expenses of the United Nations, Advisory Opinion, ICJ Reports 1962 (July 20, 1962), p. 15.
13 Ibid., p. 168. The ICJ also reasoned that the organizations powers will depend upon its purposes and functions as specified or implied in its constituent
documents and developed in practice (emphasis added), p. 180.
14 See International Law Commission, Draft Articles on the Responsibility of International Organizations, 2011, Article 10, available at
http://legal.un.org/ilc/texts/instruments/english/draft%20articles/9_11_2011.pdf ; and United Nations, Revised Draft Memorandum of Understanding between the
United Nations and Troop-Contributing Countries, Article 9, available at www.un.org/en/peacekeeping/documents/un_in.pdf .
15 This position is reflected in United Nations, Secretary-Generals Bulletin: Observance by United Nations Forces of International Humanitarian Law, UN Doc.
ST/SGB/1999/13, August 6, 1999; and United Nations, Human Rights Due Diligence Policy on United Nations Support to Non-United Nations Security Forces,
UN Doc. A/67/775S/2013/110, March 5, 2013, which states that support by the UN to non-UN security forces must be consistent with the Organizations
purposes and principles in the Charter and its obligations under international law to respect, promote and encourage respect for international humanitarian,
human rights, and refugee law.
16 For instance, years of debate surrounding the applicability of international humanitarian law to UN forces led to the secretary-generals bulletin on this issue (see
ibid.), which seeks to clarify the fundamental principles and rules. However, these issues continue to be debated as various interpretations are possible.
17 UN Security Council Resolution 2098 (March 28, 2013), UN Doc. S/RES/2098, para. 12(b) (emphasis added).
18 In the early 1960s, the UN Operation in the Congo (ONUC) was mandated to take vigorous action, including the use of the requisite measure of force, if
necessary, for the immediate apprehension, detention pending legal action and/or deportation of all foreign military and paramilitary personnel. See UN Security
Council Resolution 169 (November 24, 1961), UN Doc. S/RES/169. The UN Operation in Somalia II (UNOSOM II) was mandated in 1993 to take all necessary
measures against all those responsible for attacks against the UN including their arrest and detention for prosecution, trial, and punishment, See UN Security
Council Resolution 837 (June 6, 1993), UN Doc. S/RES/837.
19 NATO glossary of terms defines neutralization fire as fire delivered to render a target temporarily ineffective or unusable. See NATO, NATO Glossary of Terms
and Definitions, AAP-06, 2013 ed. (Brussels, Belgium, 2013). See also, US Department of Defense, DOD Dictionary of Military Terms, available at
www.dtic.mil/doctrine/dod_dictionary/ .
20 For example, see Bruce Oswald, The Security Council and the Intervention Brigade: Some Legal Issues, American Society of International Law Insights 17, No. 15
(June 6, 2013), available at www.asil.org/insights .
21 See UN Security Council Resolution 2098 (March 28, 2013), UN Doc. S/RES/2098, paras. 8, 12(b): the M23, the FDLR, the ADF, the APCLS, the LRA, the
National Force of Liberation (FNL), the various Mayi-Mayi groups and all other armed groups.
22 United Nations, Special Report of the Secretary-General on the Democratic Republic of the Congo and the Great Lakes Region, UN Doc. S/2013/119, February 27,
2013, para. 5.
23 For an overview of the various rebel groups operating in the DRC, see Briefing: Armed Groups in Eastern DRC, IRIN News, October 13, 2013, available at
www.irinnews.org/report/99037/briefing-armed-groups-in-eastern-drc .
24 The organized armed groups (OAGs) concept is not clearly defined in international humanitarian law (IHL). The treaty law sets out a narrow definition. See
Additional Protocol II, Article 1(1) of the Geneva Conventions, which provides that OAGs must be under responsible command, [and] exercise such control
over a part of [a states] territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol [emphasis added]
(i.e., and not for the purposes of Article 3 common to the Geneva Conventions). The case law and expert commentary have suggested a more pragmatic, broad,
and purposeful definition. See International Committee of the Red Cross, How Is the Term Armed Conflict Defined in International Humanitarian Law?
Opinion Paper, March 2008, p. 5 (which refers only to a minimum of organization). See also Nils Melzer, Interpretive Guidance on the Notion of Direct
Participation in Hostilities Under International Humanitarian Law (Geneva: ICRC, May 2009), p. 27, available at www.icrc.org/eng/assets/files/other/icrc-0020990.pdf ; International Criminal Tribunal for the Former Yugoslavia (ICTY), Prosecutor v. Dusko Tadic, Judgment, Case No. IT-94-1-T (May 7, 1997), paras.
18283; and UN Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/21/50,
August 16, 2012, para. 134 (indicating that anti-government armed groups in Syria should be considered OAGs that are accountable under IHL).
25 Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities; Ashley Deeks, How Does the UN Define Direct Participation in Hostilities?
Lawfare (blog), October 21, 2013, available at www.lawfareblog.com/2013/10/how-does-the-un-define-direct-participation-in-hostilities/ .
26 IHL consists of a number of treaties, the core of which are the four Geneva Conventions of 1949 and the two Additional Protocols of 1977, as well as customary
international law. IHL primarily sets forth the legal framework for the conduct of armed conflicts of an international or non-international character involving
states and armed groups.
27 International human rights law (IHRL) consists of a set of rules, set out in treaties or custom, which traditionally prescribe limits of state action and also impose
certain responsibilities toward individuals and groups. It is also comprised of non-treaty-based principles, which help to shape and inform the body of human
rights law.
28 While it is generally accepted that the UN and its peacekeepers are bound by international human rights law, the precise scope of obligations of UN peacekeeping
operations is still unclear. See We Are United Nations Peacekeeping Personnel annexed to the memorandum of understanding between the UN and troopcontributing countries, requiring compliance with relevant directives on IHL and the applicable portions of the Universal Declaration of Human Rights as the
fundamental basis of standards [of conduct], available at www.un.org/en/peacekeeping/documents/un_in.pdf ; and United Nations, Report of the Special
Committee on Peacekeeping Operations and its Working Group on the 2007 Resumed Session, UN Doc. A/61/19 (Part III), June 12, 2007, Annex, Annex H. See also
discussion in Scott Sheeran, A Constitutional Moment?: United Nations Peacekeeping in the Democratic Republic of Congo, International Organizations Law
Review 8, No. 1 (2011): 7684.
29 UN Security Council Resolution 2098 (March 28, 2013), UN Doc. S/RES/2098, para. 34 (b)(iii).
30 ICTY, Prosecutor v. Dusko Tadic, paras. 561568. The ICTY has defined armed conflict as the resort to armed force between States or protracted armed violence
between governmental authorities and organized armed groups or between such groups in a State. See ICTY, Decision on the Defence Motion for Interlocutory
Appeal on Jurisdiction, Prosecutor v. Tadic, Case No. IT-94-1, A.C. (October 2, 1995), para. 141.
31 United Nations, UN Secretary-Generals Remarks to Second Meeting of the Regional Oversight Mechanism of the Peace, Security and Cooperation Framework
for the DRC and the Region, September 23, 2013, available at www.un.org/sg/statements/index.asp?nid=7113 .
32 The qualification of the situation in DRC as a NIAC, while practical, may be nevertheless controversial for a number of reasons. First, the classification of conflicts
in which multinational forces are involved is not yet settled. However, it is the authors point of view that, in this case, where MONUSCO is fighting alongside a
government against nonstate armed groups, this is best described as a NIAC rather than an IAC. Second, the connection between some of the armed groups in
DRC to neighboring countries, such as Uganda and Rwanda, may be relevant in considering the classification of the conflict. For an otherwise internal conflict to
be considered international in character, the armed groups fighting against the state would have to be under the effective control of another state, which
requires the extent of support to go beyond financing, training, supplying, and equipping. Although it is well known that armed groups in DRC are operating with
the backing of other states, the extent and nature of such support is far from clear. See ICJ, Case Concerning the Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Judgment, 1986 ICJ 14, 25 Intl Legal Materials 1023 (June 27, 1986).
33 ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Report for the 31st International Conference of the Red Cross
and Red Crescent, Geneva, October 2011, p. 10, available at www.icrc.org/eng/assets/files/red-cross-crescent-movement/31st-international-conference/31-intconference-ihl-challenges-report-11-5-1-2-en.pdf .
34 For example, see United Nations, Letter Dated 22 January 2014 from the Coordinator of the Group of Experts on the Democratic Republic of the Congo Addressed to
the President of the Security Council, UN Doc. S/2014/42, January 23, 2014, paras. 2024; and Louise Arimatsu, The Democratic Republic of the Congo 1993
2010 in International Law and the Classification of Conflicts, edited by Elizabeth Wilmshurst (Oxford, UK: Oxford University Press, 2012).
35 See Common Article 3 of the Geneva Conventions, and Additional Protocol II, as the DRC is party to both. The ICRCs position is that most of Additional
Protocol II has reached the level of customary status and is therefore binding on non-signatories as well. See Jean-Marie Henckaerts, Study on Customary
International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict, International Review of the Red
Cross, 87, No. 857 (March 2005), available at www.icrc.org/eng/assets/files/other/irrc_857_henckaerts.pdf .
36 See Additional Protocol II, Article 1(2) of the Geneva Conventions. For relevant elements to take into account, see ICTY, Prosecutor v. Bokoski, Judgment (Trial
Chamber), Case No. IT-04-82-T (July 10, 2008), paras. 177193.
37 See Sylvain Vit, Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations, International Review of the Red Cross
91, No. 873 (March 2009): 76, available at www.icrc.org/eng/assets/files/other/irrc-873-vite.pdf .
38 For example, see ICTY, Prosecutor v. Fatmir Limaj, Judgment, Case No. IT-03-66-T (November 30, 2005), para. 94134; and ICTY, Prosecutor v. Haradinaj et al.,
Judgment, Case No. IT-04-84-T (April 3, 2008), para. 60.
39 The International Criminal Tribunal for Rwanda (ICTR) has decided, for example, that once the conditions for applicability of Common Article 3 and Additional
Protocol II are fulfilled, their scope extends throughout the territory of the State where the hostilities are taking place without limitation to the war front or to
the narrow geographical context of the actual theatre of combat operation. See ICTR, Prosecutor v. Semanza, Judgment (Trial Chamber), Case No. ICTR-97-20T (May 15, 2003), para. 367.
40 This principle, which is recognized as a norm of customary international law in IACs and NIACs, prohibits the launching of an attack in which the expected
incidental loss or damage to civilian life and/or objects would be excessive in relation to the concrete and direct military advantage anticipated.
41 See comments of the force commander of the Intervention Brigade, Brig-Gen James Aloizi Mwakibolwa, in, NGOs Concerned about New DRC Intervention
Brigade, IRIN News, May 31, 2013, available at www.irinnews.org/report/98140/ngos-concerned-about-new-drc-intervention-brigade .
42 Patricia OBrien, Respecting IHL: Challenges and Responses, statement made at 36th Roundtable on Current Issues of International Humanitarian Law, San
Remo, Italy, September 5, 2013, available at http://legal.un.org/ola/media/info_from_lc/POB-San-Remo-36th-Roundtable-5-September-2013.pdf .
43 Patricia OBrien, statement by the under-secretary-general for Legal Affairs and UN legal counsel delivered to the International Law Commission, Geneva, May
23, 2013, available at http://legal.un.org/ilc/sessions/65/Statement%20byTheLegal%20Counsel.pdf .
44 Ibid.; See also UN Office of Legal Affairs (OLA) representative Mona Ali Khalil, panel discussion, Humanitarian Law, Peacekeeping/Intervention Forces and
Troop-Contributing Countries: Issues and Challenges, Asian-African Legal Consultative Organization (AALCO), United Nations, New York, August 21, 2013;
and Mona Ali Khalil, Peace Forces at War panel discussion at the annual general meeting of the American Society of International Law, April 712, 2014.
45 For example, see the legal arguments by ICRC Legal Adviser Tristan Ferraro, The Applicability and Application of International Humanitarian Law to
Multinational Forces, in special edition on multinational operations, International Review of the Red Cross 95, No. 891892 (December 2013), available at
http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=9297707&fulltextType=RA&fileId=S181638311400023X .
46 United Nations, Report of the Secretary-General on the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo, UN Doc.
S/2012/355, May 23, 2012, para. 16; and United Nations, Report of the Secretary-General on the United Nations Organization Stabilization Mission in the
Democratic Republic of the Congo, UN Doc. S/2013/96, February 15, 2013, para. 37. (MONUSCO forces were alongside FARDC and in some cases by themselves
at the front.)
47 United Nations, Secretary-Generals Bulletin: Observance by United Nations Forces of International Humanitarian Law, UN Doc. ST/SGB/1999/13, August 6, 1999,
s. 1.1. (emphasis added).
48 Civilian loss and restoration of protection against direct attack is contingent upon their direct participation in hostilities. The duration of the loss of protection
depends on the beginning and end of the direct participation in hostilities. See Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities
Under International Humanitarian Law.
49 Ferraro, The Applicability and Application of International Humanitarian Law to Multinational Forces. See also ICRC, Expert Meeting on Multinational Peace
Operations: Applicability of International Humanitarian Law and International Human Rights Law to UN Mandated Forces, Geneva, December 1112, 2003,
available at www.icrc.org/eng/assets/files/other/icrc_002_0912.pdf .
50 This includes the fulfillment of the conditions for armed conflict derived from the relevant provisions of IHL (in particular Common Articles 2 and 3 to the
Geneva Conventions of 1949). See ICRC, statement made in the Fourth Committee, UN General Assembly, New York, October 31, 2013: The applicability of
IHL to UN forces, just as to any other forces, is determined solely by the circumstances prevailing on the ground and by specific legal conditions stemming from
the relevant provisions of IHL, irrespective of the international mandate assigned to the forces by the Security Council. The mandate and legitimacy of a UN
mission are issues which fall within the scope of the Charter of the United Nations, and have no bearing on the applicability of IHL to peacekeeping operations
(emphasis added).
51 Congo and the General, Al-Jazeera, February 6, 2014, available at http://m.aljazeera.com/story/2014131116336818 .
52 Ferraro, The Applicability and Application of International Humanitarian Law to Multinational Forces.
53 For example, see comments of the Intervention Brigade force commander in NGOs Concerned about New DRC Intervention Brigade, IRIN News.
54 For example, see Maj. Gen. Patrick Cammaert and Fiona Blyth, The UN Intervention Brigade in the Democratic Republic of the Congo, New York:
International Peace Institute, July 2013, p.10.
55 See arguments in Ferraro, The Applicability and Application of International Humanitarian Law to Multinational Forces.
56 It appears that both the ICRC and UN Office of Legal Affairs may be in agreement that regardless of the Intervention Brigade, MONUSCO is party to the conflict
in DRC due to its support of the FARDC. This at least appeared to be the view offered by Tristan Ferraro, ICRC, and Mona Khalil, OLA, in Peace Forces at War
panel discussion at the annual general meeting of the American Society of International Law, April 712, 2014.
57 See United Nations, Human Rights Due Diligence Policy on United Nations Support to Non-United Nations Security Forces, Un Doc. A/67/775S/2013/110, March
5, 2013. See also letter dated April 1, 2009 from UN Office of Legal Affairs to the UN Department of Peacekeeping Operations cited in Jeffrey Gettleman, U.N.
Told Not To Join Congo Army in Operation, New York Times, December 9, 2009, available at www.nytimes.com/2009/12/10/world/africa/10congo.html .
58 DPKO/DFS, Interim Standard Operating Procedures on Detention in United Nations Peace Operations, Ref. 2010.6, January 25, 2010, para. 2. There is a difference of view whether the SOP may exclude IHL situations from the scope of its procedures. On the face of it, para. 2 suggests it does, while para. 9 states that
nothing in the SOP affects the application of IHL. This is another potential point of difference between the UN and ICRC.
10
59 This has been cited as a rule of customary international law by the ICRC. See Rule 33, in Customary International Humanitarian Law, eds. Jean-Marie
Henckaerts and Louise Doswald-Beck, vol. 1 (Cambridge, UK: Cambridge University Press; ICRC, 2005), available at www.icrc.org/customaryihl/eng/print/v1_rul_rule33 .
60 An argument can be made that the actions of the Intervention Brigade, and possibly MONUSCO as a whole, would still fall under the direct participation in
hostilities framework if its members can be considered to have a continuous combat function. The issue with that argument is once the civilians satisfy the
continuous combat function test, they are effectively regarded as members of an organized armed group, and not really in effect as civilians.
61 The killings may, however, be violations of national law of the DRC. See Martin Kobler, Head of MONUSCO, Strongly Condemns the Killing of UN Peacekeeper
by M23, MONUSCO Press Release, August 28, 2013.
62 NGOs Concerned about New DRC Intervention Brigade, IRIN News.
63 Rule 33, in Customary International Humanitarian Law, eds. Henckaerts and Doswald-Beck.
64 For example, the UN Special Envoy for Africas Great Lakes region, Mary Robinson, immediately condemned the attack, and remind[ed] the M23 leadership that
any act aimed at obstructing MONUSCO in the exercise of its mandate, as stipulated by the United Nations Security Council 2098, is unacceptable. See UN News
Centre, DR Congo: Attack on Peacekeeping Helicopter Unacceptable, Says UN Envoy, October 12, 2013, available at
www.un.org/apps/news/story.asp?NewsID=46256#.UvqUMXddWKx .
65 See Rule 10 and Rule 33, in Customary International Humanitarian Law, eds. Henckaerts and Doswald-Beck. Article 7 of the Convention on the Safety of
United Nations and Associated Personnel prohibits any attack upon UN and associated personnel, their equipment, and premises. See also Rome Statute of the
International Criminal Court, 1998, Article 8(2)(b)(ii).
66 The Intervention Brigade has been operating out of bases in Goma, Munigi, and Sake, where internally displaced persons have occasionally taken shelter.
11
67 Under UN Security Council Resolution 2098, the secretary-general is required to report to the Security Council the [r]isks and their implications for the safety
and security for the UN personnel and the facilities as a result of the possible operations of the intervention Brigade as well as measures taken to strengthen their
security and mitigate risks (para. 34(vi)).
68 Convention on the Safety of United Nations and Associated Personnel, December 9, 1994.
69 Rome Statute, Article 8(2)(b)(iii) and (e)(iii).
70 International Criminal Court (ICC), Prosecutor v. Abu Garda, Case No. ICC 02/05-02/09, Decision on the Confirmation of Charges (Pre-Trial Chamber I),
(February 8, 2010), paras. 78 and ff. in particular para. 83; ICC, Prosecutor v. Abdallah Banda et al., Case No. ICC 02/05-03/09, Decision on the Confirmation of
Charges (Pre-Trial Chamber), (March 7, 2011), paras. 61 and ff. Special Court for Sierra Leone, Prosecutor v. Hassan Sesay, Judgment (Trial Chamber), Case No.
SCSL-04-15-T, (March 2, 2009), para. 233.
71 Safety Convention, Article 2(2).
72 Ibid., Article 2(2) (emphasis added).
73 See Christopher Greenwood, Protection of Peacekeepers: The Legal Regime, Duke Journal of Comparative & International Law 7, No. 185 (1996): 197200. In
2000, the secretary-general stated: The exclusion from the scope of application of the convention of Chapter VII United Nations operations carried out in
situations of international armed conflict gives rise to the suggestion that enforcement actions carried out in situations of internal armed conflict (UNOSOM II
type operations) are included within the scope of the convention and subject to its protective regime (emphasis added). See United Nations, Report of the
Secretary-General: Scope of Legal Protection under the Convention on the Safety of United Nations and Associated Personnel, UN Doc. A/55/637, November 21,
2000. The ICRC has been critical of the Safety Convention on the point that its legal protections are broader than IHL, which may, in turn, have a negative impact
on respect for IHL.
74 There is greater scope for this in the secretary-generals bulletin, sections 1.1 and 1.2 (e.g., refers to protections in international law of armed conflict rather than
law of international armed conflict).
75 See Safety Convention, Article 2(2).
12
council stated in its Resolution 2098 its condemnation of any and all attacks against [MONUSCO]
peacekeepers, emphasizing that those responsible
for such attacks must be held accountable.76 The
lack of IHL protection was subsequently debated
and recognized in a Security Council press release
in August 2013,77 including at Rwandas instigation.
However, the issue appears largely to have been
ignored in the mandate renewal in Resolution 2147
in 2014, and the same call was made for accountability for attacks against UN peacekeepers. In this
sense, the Security Council has largely ignored the
legal changes brought about by the Intervention
Brigade and may be evidencing a lack of
understanding of applicable IHL.
76 UN Security Council Resolution 2098 (March 28, 2013), Un Doc. S/RES/2098, preamble.
77 See UN Security Council, Press Statement on Democratic Republic of Congo, UN Doc. SC/11108, August 29, 2013. They recalled that intentionally directing
attacks against personnel, installations, material, units, or vehicles involved in a peacekeeping mission in accordance with the Charter of the United Nations, as
long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict, constitutes a crime under international law.
78 James Verini, Should the United Nations Wage War To Keep Peace? special report, National Geographic, March 27, 2014, available at http://news.nationalgeographic.com/news/2014/03/140327-congo-genocide-united-nations-peacekeepers-m23-kobler-intervention-brigade/.
79 Bruce Oswald, The Law on Military Occupation: Answering the Challenges of Detention during Contemporary Peace Operations, Melbourne Journal of
International Law 8 (2007), available at www.law.unimelb.edu.au/files/dmfile/download01a11.pdf .
80 See OBrien, Respecting IHL. The Interim SOP on Detention does not apply where IHL applies, however, this is complicated in many cases by how IHL applies
to the UN, see para. 9.
81 The Copenhagen Process on the Handling of Detainees in International Military Operations: Principles and Guidelines, 2012, available at
http://um.dk/en/~/media/UM/English-site/Documents/Politics-and-diplomacy/Copenhangen%20Process%20Principles%20and%20Guidelines.pdf .
82 See OBrien, Respecting IHL; Draft of Standing Operating Procedures on Internment by the United Nations Stabilization Mission in the Democratic Republic
of the Congo, 2013, copy on file with authors, paras. 23; and Draft of Arrangement on the Treatment of Persons Handed Over by the United Nations
Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO) to the Government of the Democratic Republic of the Congo supplementary to the Agreement between the United Nations and the Government of the Democratic Republic of the Congo on the Status of the United Nations
Organization Mission in the Democratic Republic of the Congo, 2013, copy on file with authors, para. 2.
83 Ibid., para. 8(b)(f).
13
14
Responsibility and
Accountability
90 DPKO/DFS, Interim Standard Operating Procedures on Detention in United Nations Peace Operations, para. 74.
91 DPKO/DFS, Draft Standing Operating Procedures on Internment by the United Nations Stabilization Mission in the Democratic Republic of the Congo, 2013,
copy on file with authors, paras. 311, 314.
92 See Cammaert and Blyth, The UN Intervention Brigade in the Democratic Republic of the Congo, p.10; and Sheeran, A Constitutional Moment?
93 This was evident in the UNs various contributions to the International Law Commissions work on the Draft Articles on the Responsibility of International
Organizations, 2011.
94 See International Law Commission, Report of the International Law Commission, UN Doc. A/59/10, 2004, 99 (emphasis added).
95 For example, see World News Radio, Should the UNs Legal Immunity Continue? November 14, 2013, available at
www.sbs.com.au/news/article/2013/11/14/should-uns-legal-immunity-continue .
96 See Hague Convention IV on the Laws and Customs of War on Land, October 18, 1907, Article 3; and Additional Protocol I of the Geneva Conventions, Article 91.
The ICRC considers both to be customary international law and applicable to NIACs. See Rule 150 in Customary International Humanitarian Law, eds.
Henckaerts and Doswald-Beck, pp.54748; International Covenant on Civil and Political Rights (adopted December 19, 1966, entered into force March 23, 1976) 999
UNTS 171 (ICCPR), Article 2(3); and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted December 10, 1984,
entered into force June 26, 1987) 1465 UNTS 85 (CAT), Article 14.
15
97 Convention on the Privileges and Immunities of the United Nations, February 13, 1946, section 29; and United Nations, Report of the Secretary-General: Model
Status-of-Forces Agreement for Peace-keeping Operations, UN Doc. A/45/594, October 9, 1990, part VII.
98 UN General Assembly Resolution 52/247, Third-Party Liability: Temporal and Financial Limitations (July 17, 1998), UN Doc. A/RES/52/247.
99 Ibid., para. 6.
100 United Nations, Report of the Secretary-General: Administrative and Budgetary Aspects of the Financing of United Nations Peacekeeping Operations, UN Doc.
A/51/389, September 20, 1996, para. 14; and United Nations, Report of the Secretary-General: Administrative and Budgetary Aspects of the Financing of United
Nations Peacekeeping Operations, UN Doc. A/51/903, May 21, 1997, para. 13.
101 United Nations, Report of the Secretary-General: Model Agreement between the United Nations and Member States Contributing Personnel and Equipment to
United Nations Peace-Keeping Operations, UN Doc. A/46/185, May 23, 1991, para. 53; and Convention on the Privileges and Immunities of the United Nations,
February 13, 1946, section 29.
102 See UNMIK Human Rights Advisory Panel page, available at www.unmikonline.org/hrap/Eng/Pages/default.aspx .
103 Rome Statute, Article 75.
104 Convention on the Privileges and Immunities of the United Nations, February 13, 1946, section 18(a). See also United Nations, Report of the Secretary-General:
Model Status-of-Forces Agreement for Peace-keeping Operations, UN Doc. A/45/594, October 9, 1990.
105 See ICJ, Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, ICJ Reports 1999
(April 29, 1999); and ICJ, Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, ICJ
Reports 1989 (December 15, 1989). See also discussion of Haiti and the cholera outbreak in World News Radio, Should the UNs Legal Immunity Continue?
106 United Nations, Report of the Secretary-General: Model Status-of-Forces Agreement for Peace-keeping Operations, UN Doc. A/45/594, October 9, 1990, para 51.
107 See, for example, United Nations General Assembly, Report of the Secretary-General on the Activities of the Office of Internal Oversight Services, UN Doc.
A/59/661, January 5, 2005, in which the United Nations Office of Internal Oversight Services (ID/OIOS) investigated sixty-eight allegations of sexual exploitation
against MONUC peacekeepers. According to a 2007 General Assembly report, governments of national military contingents have the primary responsibility for
investigating allegations against members of military contingents and the ID/OIOS can only investigate if and when national government prove unwilling or
unable to conduct such investigations. See United Nations, Report of the Special Committee on Peacekeeping Operations and its Working Group on the 2007
Resumed Session, UN Doc. A/61/19 (Part III), June 11, 2007, Article 7.
16
108 Although unconfirmed, the draft SOPs on internment reportedly encompass the right of interned persons to make a claim for compensation for any bodily
injury or damage to property attributable to wrong action on the part of MONUSCO and related to the internment.
109 The basic principles have been endorsed by the UN General Assembly, Security Council, and Secretariat.
110 UN Security Council Resolution 2098 (March 28, 2013), Un Doc. S/RES/2098, para. 9; and UN Security Council Resolution 2147 (March 28, 2014), UN Doc.
S/RES/2147, para. 1.
111 Capstone Doctrine, 31 (emphasis added). See also the United Nations General Assembly and Security Council, Report of the Panel on United Nations Peace
Operations (also known as the Brahimi report), UN Doc. A/55/305 and S/2000/809, August 21, 2000, xi. (The Panel concurs that consent of the local parties,
impartiality and the use of force only in self-defense should remain the bedrock principles of peacekeeping. (emphasis added)); and Trevor Findlay, The Use of
Force in UN Peace Operations (Oxford, UK: Oxford University Press, 2002), p. 4 (referring to the more or less voluntary consent of all parties to the presence
and activities of the mission).
112 Capstone Doctrine, ibid., 40. (The Security Council may take enforcement action without the consent of the main parties to the conflict, if it believes that the
conflict presents a threat to international peace and security. This, however, would be a peace enforcement operation.)
113 Capstone Doctrine, ibid., 33 (emphasis added); Brahimi Report, ix (Impartiality for United Nations operations must therefore mean adherence to the principles
of the Charter: where one party to a peace agreement clearly and incontrovertibly is violating its terms, continued equal treatment of all parties by the United
Nations can in the best case result in ineffectiveness and in the worst may amount to complicity with evil.); and Findlay, The Use of Force in UN Peace
Operations, p. 4 (referring to the peacekeepers impartiality in their relationships with the parties).
114 Capstone Doctrine, ibid., p. 33.
17
115 For example, see Matthew Russell Lee, On DRC, ICP Asks Kobler of FDLR Delay, Inaction on Minova Rapes, Drone, October 27, 2014, available at
www.innercitypress.com/drc1koblersaid102714.html . This article suggests that: After [MONUSCO SRSG] Kobler referred to the UNs stated Human Rights
Due Diligence Policy, Inner City Press asked him if any UN support was withdrawn over the DRC Armys 130 rapes in Minova and only two convictions.
Koblers answer did not mention any aid suspended.
116 For example, UN Security Council Resolution 1856 (December 22, 2008), UN Doc. S/RES/1856, stated that the accelerated building of credible, cohesive and
disciplined Congolese armed forces is essential for the implementation of MONUCs mandate.
117 For example, see Scott Sheeran, The Use of Force in United Nations Peacekeeping Operations, in The Oxford Handbook of the Use of Force in International
Law, edited by Marc Weller (Oxford, UK: Oxford University Press, 2015 forthcoming); and Findlay, The Use of Force in UN Peace Operations, pp. 2132.
118 Ibid.; and Findlay, The Use of Force in UN Peace Operations, pp. 1415, 74, 356.
119 Capstone Doctrine, pp. 3435; and United Nations, Report of the Secretary-General on the Implementation of Security Council Resolution 340 (1973), UN Doc.
S/11052/Rev.1, October 27, 1973, para. 5 (emphasis added).
120 See Capstone Doctrine, ibid, p. 19. (Such actions are authorized to restore international peace and security in situations where the Security Council has
determined the existence of a threat to the peace, breach of the peace or act of aggression.)
18
121 See United Nations General Assembly, Report of the Secretary-General on the Activities of the Office of Internal Oversight Services, UN Doc. A/59/661, January 5,
2005; United Nations, Evaluation of the Implementation and Results of Protection of Civilians Mandates in United Nations Peacekeeping Operations, UN Doc.
A/68/787, March 7, 2014, para. 44; International Crisis Group, Congo Crisis: Military Intervention in Ituri, Report No. 64, June 13, 2003, p. 12 (the report
states the mission has proved totally incapable of fulfilling its protection mandate); and Verini, Should the United Nations Wage War To Keep Peace?
(noting that since the mission began, in 1999, the killing and rape and displacement have continued and the number of militias has increased, while
peacekeepers have earned a reputation for inaction.)
122 UN Security Council Resolution 1856 (December 22, 2008), UN Doc. S/RES/1856. See also UN Security Council Resolution 1925 (May 28, 2010), UN Doc.
S/RES/1925; and UN Security Council Resolution 2053 (June 27, 2012), UN Doc. S/RES/2053.
123 United Nations General Assembly, Evaluation of the Implementation and Results of Protection of Civilians Mandates in United Nations Peacekeeping Operations:
Report of the Office of Internal Oversight Services, UN Doc. A/68/787, March 7, 2014. The UN Under-Secretary-General for Internal Oversight Services, Carman
Lapointe, reported to the Fifth Committee that the UN cannot adequately protect civilians while troop-contributing countries do not instruct their contingents
to do all they can, including using force as a last resort. See Michelle Nichols, U.N. Study Finds Peacekeepers Avoid Using Force To Protect Civilians, Reuters,
May 16, 2014, available at www.reuters.com/article/2014/05/16/us-un-peacekeepers-civilians-idUSBREA4F0M220140516 .
124 For example, see DPKO, Specialized Training Materials on Child Protection for UN Peacekeepers: Trainers Guide, 2014, p. 128, available at www.peacekeepingbestpractices.unlb.org/PBPS/Library/Trainers%20Manual%20Child%20Protection%20STM.pdf , which provides: The protection of civilians mandate specifies
an imminent threat of physical violence. However, imminent does not imply that violence is guaranteed to happen in the immediate future. A credible threat to
civilians may exist if there is a reasonable belief that a potential aggressor has the intent and capacity to inflict physical violence. A threat of violence against
civilians is imminent from the time it is identified until such time that the mission can determine that the threat no longer exists.
125 Discussion of authors with an expert who had reviewed the ROE.
126 MONUSCO stated that if M23 forces did not surrender they will be considered an imminent threat of physical violence to civilians and MONUSCO will take all
necessary measures to disarm them, including by the use of force in accordance with its mandate and rules of engagement, UN News Centre, UN Mission Sets
Up Security Zone in Eastern DR Congo, Gives Rebels 48 Hour Ultimatum.
127 For example, in April 2011 in Cte dIvoire, the United Nations Operation in Cte dIvoire (UNOCI) successfully undertook military operations to protect
civilians in Abidjan, preventing the use of heavy weaponry against them. UN Security Council Resolution 1975 (March 30, 2011), UN Doc. S/RES/1975. See
UNOCI, Post-Election Crisis, accessed November 1, 2014, available at www.un.org/en/peacekeeping/missions/unoci/elections.shtml .
128 Barbara Plett, UN Under Fire over Fall of Goma in DR Congo, BBC News, November 21, 2012, available at www.bbc.co.uk/news/world-africa-20422340 .
129 Human Rights Watch, DR Congo: Army, UN Failed To Stop Massacre, July 3, 2014, available at www.hrw.org/news/2014/07/02/dr-congo-army-un-failedstop-massacre .
19
Conclusion
The mandating of the Intervention Brigade by the
Security Council was a bold, innovative, and
controversial step. It was also a UN operation that
the consequences of which, particularly the legal
issues, had not been fully thought out. It is now
largely considered a success, and some consider it a
model for future UN peacekeeping operations.
While the focus has been primarily on its political
and operational aspects, the legal issues are real and
of practical consequence. This includes the lawful
targeting of UN forces and difficulties, for example,
in the UN operation meeting its international
obligations concerning detainees. It also brings
into focus broader issues such as the responsibility
and accountability of UN peacekeepers, and the
obligations of the organization, including under
the Charter. The Intervention Brigade goes beyond
peacekeeping and even peace enforcement, and
may be seen as taking sides in the conflict. The
UN operation in DRC may also lead to misunderstandings about the robust legal authority to use
force under the protection-of-civilians mandate.
This report intended to provide a considered
overview of the legal issues concerning the
Intervention Brigade. The legal frameworks and
applicable rules for UN peacekeeping operations
are often not understood, and the associated
interpretations and consequences not well known
or transparent. It is important for the effectiveness
and future of UN peacekeeping, including the
growth and need for more robust mandates, that
the debate is not confined to policy and operational
matters but also has a strong foundation in and
respects and promotes international law and the
UN Charter.
130 See United Nations General Assembly, Evaluation of the Implementation and Results of Protection of Civilians Mandates in United Nations Peacekeeping
Operations: Report of the Office of Internal Oversight Services, UN Doc. A/68/787, March 7, 2014, para. 44.
131 Permanent Mission of the Russian Federation to the United Nations, Statement by H.E. Ambassador Vitaly I. Churkin, Permanent Representative of the
Russian Federation to the United Nations, during the Security Council Meeting on the Situation in Mali, April 25, 2013, available at
www.russiaun.ru/en/news/sc_mali .
132 UN Security Council Resolution 2100 (April 25, 2013), UN Doc. S/RES/2100, para. 16(a)(i).
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