Regulating the Use of Force by United Nations Peace Support Operations: Balancing Promises and Outcomes
286
Regulating the Use of Force by United Nations Peace Support Operations: Balancing Promises and Outcomes
286Paperback
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Overview
This Book attempts to deduce regulatory standards that can close the gaps between the Promises made and the Outcomes secured by the United Nations in relation to its use of force. It explores two broad questions in this regard: why the contemporary legal framework relevant to the regulation of force during Armed Conflict cannot close the gaps between the said Promises and Outcomes and how the 'Unified Use of Force Rule' formulated herein, achieves this. This is the first book to coherently analyse the moral as well as legal aspects relevant to UN use of force.
UN peace operations are rapidly changing. Deployed peacekeepers are now required to use force in pursuance of numerous objectives such as self-defence, protecting civilians, and carrying out targeted offensive operations. As a result, questions about when, where, and how to use force have now become central to peacekeeping. While UN peace operations have managed to avoid catastrophes of the magnitude of Rwanda and Srebrenica for over two decades, crucial gaps still exist between what the UN promises on the use of force front, and what it achieves. Current conflict zones such as the Central African Republic, Eastern Congo, and Mali stand testament to this. This book searches for answers to these issues and identifies how an innovative mix of the relevant legal and moral rules can produce regulatory standards that can allow the UN to keep their promises. The discussion covers analytical ground that must be traversed 'behind the scenes' of UN deployment, well before the first troops set foot on a battlefield. The analysis ultimately produces a 'Unified Use of Force Rule', that can either be completely or partially used as a model set of Rules of Engagement by UN forces.
This book will be immensely beneficial to law students, researchers, academics and practitioners in the fields of international relations, international law, peacekeeping, and human rights.
Product Details
| ISBN-13: | 9780367549381 |
|---|---|
| Publisher: | Taylor & Francis |
| Publication date: | 05/31/2021 |
| Series: | Challenges of Globalisation |
| Pages: | 286 |
| Product dimensions: | 6.12(w) x 9.19(h) x (d) |
About the Author
Table of Contents
List of figures xiii
List of abbreviations xv
Foreword Charles Sampford xix
Preface xxiii
1 Introduction 1
1.1 Background 1
1.2 Relevance 2
1.3 Summary of chapters 3
1.4 Method 7
1.5 Conclusion 8
2 United Nations Peace Support Operations - Institutional frameworks, command and control structures, and attribution of conduct 10
2.1 Introduction 10
2.2 The Charter framework 10
2.2.1 Pre-Charter mechanisms 11
2.2.2 The UN Charter - institutional framework 11
2.3 Assembling a Peace Mission 13
2.3.1 A brief history 13
2.3.2 The troop generation process 14
2.4 Classification of UN forces 14
2.5 Organizational frameworks and command and control structures of UN PSOs 18
2.5.1 The three levels of war 18
2.5.2 The UN command and control 19
2.5.3 The nature of UN command 21
2.5.4 TC intrusions into the UN command chain 22
2.6 The institution of responsibility 24
2.7 A test for attribution of UN troop conduct? 29
2.7.1 The contemporary normative framework relating to attribution 29
2.7.2 Attributing conduct through effective control: A framework 32
2.7.2.1 Attributing conduct in category one cases 34
2.7.2.2 Attributing conduct in category two cases 40
2.7.2.3 Attributing conduct in category three cases 42
2.8 Conclusion 42
3 The resort to and use of force by the UN: the legal and the moral 54
3.1 Introduction 54
3.A The morality of resort to force by the UN 55
3.A1 The legality of the resort to force by the UN 55
3.A1.1 Legal objectives prescribed by the Charter: the first tier 55
3.A1.2 Resort to force objectives expanded: the second tier 57
3.A1.2.1 UNEF 1 58
3.A1.2.2 ONUC 59
3.A1.2.3 UNOSOM II 60
3.A1.2.4 UNAMSIL 62
3.A1.2.5 MONUSCO 64
3.A2 Summarizing the second tier 66
3.A3 The morality of resort to force 67
3.A3.1 The case of war 67
3.A3.1.1 Ascertaining the justness of resort to force through the Just War calculus 68
3.A3.2 Uses of force other than war (including by the UN) and the Just War theory 71
3.A3.2.1 Impartiality 72
3.A3.2.2 Protection of Civilians 76
3.A3.2.3 The Responsibility to Protect 78
3.A3.2.4 Operationalising the Just War Theory in the case of resort to force by the UN 78
3.B The morality of use of force 80
3.B1 The case of war 80
3.B2 Operationalising the in hello morality of UN uses of force 86
3.B2.1 Category one - use of force in self-defence, defence of non-military personnel and the provision of security to humanitarian operations 86
3.B2.2 Category two - protecting civilians from imminent threats emanating from parties to the conflict 89
3.B2.3 Category three - use of force in support of one party in its military operations against other parties and in carrying out targeted offensive operations against a particular group, either unilaterally or jointly 91
3.2 Conclusion 93
4 A normative framework for UN uses of force: the applicability of the candidate regimes 108
4.1 Introduction 108
4.2 Identifying the regulatory candidates 108
4.2.1 The conceptual possibility of applying treaty taw to the UN 109
4.2.1.1 Functional treaty succession 109
4.2.1.2 Other premises 110
4.2.2 The conceptual possibility of applying customary law to the UN 111
4.2.2.1 Applying customary law to the UN 111
4.2.2.2 Formation 111
4.2.3 A mixed approach 113
4.3 IHL and IHRL 115
4.3.1 A background 115
4.3.1.1 IHL 115
4.3.1.2 IHRL 116
4.4 Applicability 117
4.4.1 Applying IHL to UN uses of force 117
4.4.1.1 Applicability ratione materiae 117
4.4.1.2 The UN and Armed Conflict 119
4.4.2 Applicability ratione loci 121
4.4.3 Applicability ratione temporis 121
4.5 Applying IHRL to UN uses of force 122
4.5.1 Effective control 122
4.5.2 Establishing extra-territorial jurisdiction 123
4.5.2.1 The territorial or spatial model 124
4.5.2.2 The personal model 126
4.5.2.3 Positive and negative obligations and the duties to respect and ensure 128
4.5.2.4 Which (if any) type of control? 128
4.6 Concurrent applicability of IHRL and IHL 130
4.7 Conclusion 132
5 Targeting under International Human Rights Law and International Humanitarian Law 143
5.1 Introduction 143
5.2 International Human Rights Law 144
5.2.1 Necessity 144
5.2.2 Proportionality 147
5.2.3 Planning of operations 148
5.3 International Humanitarian Law 149
5.3.1 Distinction - combatants and civilians 150
5.3.1.1 Definition of civilians 152
5.3.1.2 The ICRC interpretive guidance and direct participation in hostilities 155
5.3.1.3 Defining 'combatant' in NIACs? 159
5.3.2 Distinction-objects 161
5.3.3 The rule contained in Art 51(5)b of AP I 164
5.4 Potential conflicts 166
5.5 Conclusion 167
6 Resolving conflicts, identifying regulatory standards and closing gaps between promises and outcomes 178
6.1 Introduction 178
6.2 The international legal system 179
6.2.1 Self-contained regimes 180
6.2.2 The principle of harmonisation 180
6.3 Conflict of norms 181
6.3.1 Apparent and genuine conflicts 182
6.4 Lex specialis 184
6.4.1 Historical origins 184
6.4.2 Approach to conflicts 185
6.4.3 Foundational premises 186
6.4.4 Operationalisation 186
6.5 Lex specialis and the use of force by the UN 187
6.5.1 Selecting the lex specialis 187
6.5.2 Operationalising lex specialis in the case of UN uses of force 189
6.6 Rules of Engagement and the unified use of force rule 197
16.6.1 What are ROE? 197
6.6.2 Key principles and terms 198
6.6.3 The unified use of force rule 200
6.7 Conclusion 202
7 Conclusion 207
Appendices 217
Appendix I 217
Appendix II 230
Bibliography 234
Index 261