The Kigali Principles on the Protection of Civilians Evaluating the Kigali principles from a historical perspective on UN peacekeeping missions

Transcription

1 The Kigali Principles on the Protection of Civilians Evaluating the Kigali principles from a historical perspective on UN peacekeeping missions Name: Rianne Keeler Student number: Supervisor: dr. Machiko Kanetake Program: Master s Program in Public International Law Date: 30 June 2017 Word count: 15,742 (including footnotes and bibliography)

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3 Table of contents Introduction... 5 Chapter 1. Historical development of peacekeeping Development of peacekeeping Protection of Civilians Chapter 2. The Analysis of the Kigali Principles Analysis of the Kigali Principles Training on Protection of civilians Use of force Delays and rapid deployment Resources and capabilities Disciplinary action against our own personnel Consultation and review New elements of the Kigali Principles Chapter 3. Kigali Principles and the use of force by UN peacekeeping missions Relation between the use of force and peacekeeping missions Protection of Civilians and the use of force Kigali Principles and the use of force Shared responsibility and human rights Chapter 4. Kigali principles and institutionalization of troop-contributing states Principal-agent relation of the Security Council with the troop-contributing states Global interest in peacekeeping Institutionalization of troop-contributing states Concluding remarks Bibliography

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5 Introduction The Kigali Principles on the Protection of Civilians are a non-binding set of 18 principles on the effective implementation of the protection of civilians in peacekeeping operations by the United Nations (UN). The principles were delivered at the end of the High-Level International Conference on the Protection of Civilians which was held in Rwanda on 28 and 29 May The top 30 troop and police-contributing states and the top 10 financialcontributing states of UN peace operations, were present at the event. During the conference, the states were asked to endorse the Principles. The set of eighteen Principles cover a wide range of aspects related to UN peacekeeping missions but the function of the Kigali Principles is not to replace UN policies and strategies, but, instead, aim at stipulating and expanding the responsibilities of the troop-contributing states. The meaning of the principles should therefore be evaluated within the context of the development of peacekeeping. Peacekeeping has developed by actions and reactions, new elements that influence peacekeeping, such as the Kigali Principles, can be best reviewed in a historical perspective to understand their meaning. Peace operations have progressed extensively from the first peacekeeping mission that was in 1949, when a group of neutral observers went to Palestine. Peacekeeping slowly developed during the Cold War, but it would only progress after it as it developed into four types of missions that included a mission with a Chapter VII mandate to enforce peace. Another major influence that shaped peacekeeping was the failure to protect civilians in Bosnia, Rwanda, Sierra Leone, and Liberia in the 1990s. After that, the protection of civilians became part of the mandates of peacekeeping missions. Since 2009, there has been a new development as evaluations and reports started to improve peacekeeping in practice. A main element of this thesis is to review whether the Kigali Principles are part of the current trend in peacekeeping or they alter the peacekeeping missions. The research question in this thesis is therefore the following: to which extent do the Kigali Principles modify the current legal framework on the protection of civilians during peacekeeping missions? The Kigali principles address training on protection of civilians, delays and rapid deployment, resources and capabilities and disciplinary action against our personnel but most notable are the principles on the use of force and the principles on consultation and review. 1 Civilian Protection,

6 The use of force has been addressed in UN documents and reports extensively. In 2000, the Report of the Panel on UN Peace Operations, also called the Brahimi Report, there was a general authority introduced to protect civilians. 2 The UN Office of Internal Oversight Service (OIOS) reported almost 15 years after the introduction that in practice peacekeeping missions often do not use force. 3 The Kigali Principles can be viewed as a response to the OIOS report because the Principles support the basis on which peacekeepers can use force legitimately. Also, it is notable that the Rwandan government took the initiative and developed the Principles, because customarily, the Security Council or otherwise the General Assembly takes the lead in peacekeeping. With the launch of the Kigali Principles, there may be a change in the role between troop-contributing states and the Security Council, as the Rwandan government was a host government of failed peacekeeping missions and a major troop-contributor which legitimises changing the discussion on the protection of civilians. Especially the Principles on consultation and review show that the Rwandan government aims at creating a better institutionalised role for the troop-contributing state. From an institutional perspective, the Kigali Principles may create a new development in which troopcontributing states are more active in creating the peacekeeping missions and in which states like Rwanda may initiate new developments in peacekeeping. In the following four chapters, the development of peacekeeping from an historical perspective is discussed first. In chapter 2, the Kigali Principles are compared to earlier developments on peacekeeping to discover the new elements of the Principles. The new elements are found in the use of force and therefore, in the third chapter, a deep analysis of peacekeeping and the use of force is made. Finally, in chapter 4, the political significance is discussed because it is ground-breaking that Rwanda, a troop-contributor and former host government of a peacekeeping mission, has developed a set of principles. 2 UN General Assembly and Security Council, Report of the Panel on United Nations Peace Operations, A/55/305- S/2000/809, 21 August UN General Assembly, Report of the Office of Internal Oversight Services, A/68/787/2014/142, 7 March 2014, p. 2. 6

7 Chapter 1. Historical development of peacekeeping The Kigali Principles on the Protection of Civilians are a non-binding set of pledges for the effective implementation of the protection of civilians in UN peacekeeping. The Principles, which are soft laws, aim at improving UN security law which is a type of law that is under constant evolution. 4 Peacekeeping is developed based on the power of Security Council and the General Assembly. However, peacekeeping was not envisaged by the UN Charter. Since international law is between states and not between citizens, there is tension between state sovereignty and the urge to protect people from the beginning of peacekeeping. The Cold War, however generated a stagnation in the process to protect civilians because the Security Council was unable to agree on interventions. The equilibrium between the Soviet Union and the United States (US) created the situation that peacekeeping was shaped as a neutral observation role. The characteristics of peacekeeping made the definition of peacekeeping as Chapter VI and a half because it falls between Chapter VI on peaceful resolutions and Chapter VII on maintaining international peace and security. 5 The evolution of peacekeeping continued after the Cold War when more multi-dimensional missions occurred. The development, however, really progressed after the failure to protect civilians in the 1990s. Neutrality and impartiality of peacekeepers were challenged when civilians were harmed, which emerged the need to act. The development of protection of civilians has led to a standard in mandates on this protection. However, during the year the Kigali Principles were created, several initiatives addressed the difference between practice and policy and urged for better peacekeeping. 1.1 Development of peacekeeping Peacekeeping is a UN operation and emerged after the establishment of the international organisation. The preamble of the UN Charter starts with We the peoples of the United Nations which shows the difference between the UN Charter and most international laws. 6 The Charter initiates a world view that goes beyond state sovereignty and focuses on the rights of individuals. This development was a truly unique movement in international law and 4 Blocq, 2006, p Malone & Wermester, 2000, p United Nations, Charter of the United Nations, 1 UNTS XVI, 24 October

8 was the beginning of fundamental human rights. In addition, it has an ambitious aim of saving generations from the scourge of war. 7 Impasse after the beginning The practice, however, became very different when the Cold War period emerged. 8 The the lack of agreement between the members of the Security Council, particularly among the permanent members, made Chapter VII unused, whereas Chapter VII seemed so essential as it gave the Security Council the power to maintain peace and to prevent war. The system created in Chapter VII gave the Security Council the right to determine the existence of any threat to the peace, breach of the peace, or act of aggression, as well as to initiate military and non-military actions to restore international peace and security. Part of the system of Chapter VII is Article 43 of the UN Charter that establishes a UN Military Staff Committee, 9 which guides the standing UN forces to take action to restore peace and security. However, the plan for UN standing forces collapsed between 1947 and 1948 because the Cold War created a lack of common decision power, especially as decisions under Chapter VII are substantive in nature and therefore require a majority of at least nine out of fifteen votes, including the five permanent members. The situation in the UN became very state-centric in contrast to the aim of the UN Charter that initiated a situation with a focus on people. In the following decades, the state was the entity that would receive special status alone. Exceptions were made for groups that rebelled against colonial powers but the result remained that the international community hardly interfered with the states internal situations. The system was maintained by both superpowers and allies and, instead of a UN standing force, peace operations were created. First peacekeeping mission The creation of peacekeeping shows the political climate in the UN at the time. The peacekeeping, however, was also specifically made for situations and demands such as the situation in the Middle East during the Arab-Israeli war in Palestine was then a territory administered by the United Kingdom under mandate of the League of Nations. Nevertheless, the Arab and Jewish communities both claimed control of the entire region 7 Goulding, 1993, p Blocq, 2006, p United Nations, Charter of the United Nations, 1 UNTS XVI, 24 October Blocq, 2006, p

9 which led the United Kingdom to present the matter to the General Assembly. 11 The then adopted plan divided the territory in two states with an international regime, but the plan was not recognised by the Arab States and the Palestinian Arabs. In its reaction, the Jewish community proclaimed the Jewish state of Israel. As a response to the situation, the Security Council demanded a ceasefire which was accepted but a third party was required to supervise it. During the Cold War neither the US nor the Soviet Union was willing to led the other handle the situation. Therefore, the UN Truce Supervision Organization (UNTSO) was created as a group of unarmed military observers. This example of a third party that oversees two parties, was the model for the next peacekeeping missions. Development of peacekeeping principles During the second mission of UN peacekeeping, the observation status of peacekeepers was further developed. 12 After the Suez Crisis, the UN Emergency Force (UNEF l) was deployed on the Egyptian Israeli border. 13 The mission showed the core peacekeeping principles underlying the operations. The principles emerged because Secretary-General Hammarskjöld needed to be careful since states were focused on not expanding the military functions beyond the necessary tasks, 14 especially since the mission s authorisation by the General Assembly and the Security Council resolutions were vetoed by Great Britain and France. The three conditions were that the troops needed to be strictly neutral, the mission needed to develop upon an invitation of the parties, and the use of weapons was only to be strictly used for self-defence. 15 Empty seat opens door This peacekeeping model further developed when the border of India and Pakistan was enhanced by a similar mission to UNOC, which was established after the Indo-Pakistani War of 1947 (UNMOGIP). 16 The power balance, however, shifted when the Soviet Union boycotted the UN because the Chinese seat was held by the Republic of China instead of the People s Republic of China. The empty seat of the Soviet Union allowed the UN to authorize member states to assist in the defence of South Korea which was invaded by North Korea. The UN forces pressed the North Korean forces out of South Korea. In 1953, a ceasefire was 11 Goulding, 1993, p Goulding, 1993, p Wills, 2009, p Wills, 2009, p Goulding, 1993, p Segal, 1995, p. 65 9

10 declared but UN forces maintained until 1967 to protect it. The dynamics within peacekeeping without the Soviet Union were more militarized as Chapter VII intended. Going beyond the peacekeeping principles Besides the different political influences on the missions, the urge to protect civilians arose, which was seen for the first time in the mission to Congo in the 1960s (ONUC). 17 The mandate did not include Chapter VII enforcement powers to maintain peace. Secretary- General Hammarskjöld did not anticipate the need for the protection of civilians. In his first report in July 1960, the use of force policy was only self-defence 18. It gave the peacekeepers the option to respond to an attack with arms but it also stated that if the conflict intensified, the peacekeeper might need to withdraw, as supporting a party in the conflict would make the peacekeepers overstep the non-intervention principles. If civilians were under attack, the Secretary-General authorized to stop the killings. 19 His actions were without consent of the Security Council but were supported because non-intervention could not mean senseless slaughter of civilians. The peacekeeping mission, however, could reduce attacks against civilians without starting disarmament of the parties. These missions show the inability of the peacekeeping principles to be applied to all situations because in certain circumstances, protection of civilians is necessary. Post-Cold war growth The following Security Council missions to Cyprus and Lebanon were very neutral. During the 1980s, certain missions were unable to be deployed due to disagreements between Security Council members. 20 After the Cold War, peacekeeping became more multidimensional because of the power shift in the Security Council, the nationalist and ethnic conflicts in former communist countries, and recurring famines and instability in Africa. 21 The emotional impact of the crises was more extensive because new technology made the crisis graphically visible throughout the world. In the aftermath of the Cold War, Secretary-General Boutros-Ghali launched the Agenda for Peace. This Agenda led to four types of peacekeeping missions, namely peacekeeping observation missions, interpositional missions, multi-dimensional missions, and peace enforcement missions. 22 The interpositional mission is the most traditional mission which reflects the traditional peacekeeping principles 17 Wills, 2009, p Holt, Taylor & Kelly, 2009, p Wills, 2009, p Blocq, 2006, p Fortna, 2008, p Fortna, 2008, p

11 of neutrality, consent, and self-defence. The mission acts with the use of large lightly armed troops that act as a buffer between belligerent factions. After the Cold War, these missions were also used, for instance in 1994 in Angola (UNAVEM III). 23 The observation mission is most similar to the first UN mission and exists of small military troops that monitor ceasefires including troop withdrawals. An example of a mission after the Cold War was the mission in the Western Sahara (MINURSO). The main development were the multidimensional missions which were carried out by both military and police personnel. 24 These personnel do not act as observers but participate, for example, by acting as electoral supervision, police and security forces reform, institution building, and economic development. Examples of such missions are UNTAG in Namibia, ONUMOZ in Mozambique, and ONUSAL in El Salvador. The peacekeeping observation missions, interpositional missions and multi-dimensional missions fall under Chapter VI, whereas the last type of peace enforcement missions are Chapter VII missions because they do not require the consent of the states. 25 Like the multi-dimensional missions, these Chapter VII missions consist of both civilian and military personnel. The military force is relatively well-equipped and is mandated to use force beyond just selfdefence. Examples include ECOMOG and UNAMSIL in West Africa and Sierra Leone and the NATO operations conducted in Bosnia. 1.2 Protection of Civilians The international community had taken account of the violence in Bosnia, Rwanda, Sierra Leone, and Liberia, which, in 1997, initiated the Security Council to include the Protection of Civilians within peacekeeping. 26 The Brahimi Report in 2000, also anticipated this doctrinal change and focused on collective human security 27. According to the Brahimi Report, human security should be part of a global, state-transcending community and should not rely on citizenship. The Brahimi Report s conceptual proposals were explicitly and implicitly contested by UN Member States. The Brahimi Report also focused on improving peacekeeping missions from implementation and administration perspective. The report recommends enhancing rapid deployment of peacekeeping operations, reforming the 23 Fortna, 2008, p Fortna, 2008, p Fortna, 2008, p Wills, 2009, p UN General Assembly and Security Council, Report of the Panel on United Nations Peace Operations, A/55/305- S/2000/809, 21 August

12 management culture and relationship in field missions, and strengthening relationships with other UN bodies, Member States and legislative bodies. The Brahimi Report can be seen as the beginning of a series of peacekeeping improvement movements that focuses on the capabilities of peacekeeping on the ground 28. Responsibility to protect Besides the doctrinal change on the project of civilians, the inaction of the international community during the Rwandan genocide in 1994 and the NATO-led military action in Kosovo in 1999 also led to the concept of the Responsibility to Protect. 29 The relevant question was raised what to do when the international community is faced with crimes against humanity and genocide. In September 2000, the Canadian government formed the International Commission on Intervention and State Sovereignty (ICISS) as response to Secretary-General Kofi Annan s question whether, when and how the international community must intervene for humanitarian purposes. To some extent, the Responsibility to Protect overlaps the protection of civilians but it is more a preventive principle and only focuses on four mass atrocities, which are genocide, war crimes, ethnic cleansing, and crimes against humanity. 30 The protection of civilians has also become a standard aspect of peacekeeping missions, which is, however, not the case for the Responsibility to Protect. Mandate of Protection of Civilians The UN Mission in Sierra Leone (UNAMSIL) was the first mission that specifically mentioned the protection of civilians in its mandate. 31 The mandate stated to 'take the necessary action... within its capabilities and areas of deployment, to afford protection to civilians under imminent threat of physical violence, taking into account the responsibilities of the Government of Sierra Leone and the Economic Community of West African States Monitoring Group. 32 UNAMSIL s mandate has been used consistently for peacekeeping missions from 1999 onwards, but the mandate has received a lack of operational guidance. In addition, the interpretation of the mandate widely depends on the senior mission leadership. At the same time, there was a development on the Security Council level, which condemned attacks against civilians again on 12 February The Security Council requested the 28 UN General Assembly and Security Council, Report of the Panel on United Nations Peace Operations, A/55/305- S/2000/809, 21 August Breau, 2006, p Breau, 2006, p Holt, Taylor & Kelly, 2009, p UN Security Council, Security Council resolution 1270 (1999), UN Doc S/RES/1270, 22 October Boutellis,

13 Secretary-General to make a landmark report containing 40 recommendations. This report led to resolution 1265 to ensure compliance with international humanitarian law. The Council later adopted three more resolutions on the protection of civilians, namely resolutions 1296, 1674, and 1894, which reaffirm the position of the Security Council on the issue and strengthen the provisions. In the General Assembly at the Special Committee on Peacekeeping Operations, the focus on protection of civilians rose again. 34 Also, the UN Department of Peacekeeping Operations and the UN Department of Field Support took up projects on supporting the implementation of the protection of civilian mandate. In addition, the protection of civilians became a part of the broader agenda on humanitarian and human rights concepts. Responsibility to Protect in the UN Three years after ICISS on the Responsibility to Protect, the Secretary-General s High-Level Panel on Threats, Challenges and Change observed that the UN Charter reaffirmed human rights but lacked the protection of human rights. 35 The Panel therefore recommended the World Leaders to adopt the Responsibility to Protect in During the summit, the UN General Assembly adopted the responsibility to protect and articulated the paragraphs in the summit outcome document. Paragraph 138 states that each individual State has the responsibility to protect its population from genocide, war crimes, ethnic cleansing, and crimes against humanity. The role of the international community is to encourage and help States to bear this responsibility. In paragraph 139, the international community, through the United Nations, accepts the responsibility to use appropriate means to help protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. This paragraph also includes the use of collective action, in a timely and decisive manner, through the Security Council and Chapter VII, if necessary. The Security Council also adopted the Responsibility to Protect in resolution 1674 (2006) on the protection of civilians in armed conflict and included paragraphs 138 and 139 of the summit outcome document. Increasing the implementation of the Protection of Civilians 34 Boutellis, Zifcak, 2014, p Breau, 2006, p

14 Ten years after the first mandate on the protection of civilians, there was a wave of revisions and evaluations of the concept. 37 In 2009, the UN Department of Peacekeeping Operations commissioned a report on the setbacks and challenges during the Protection of Civilians by UN peacekeeping missions in cooperation with the UN Office for the Coordination of Humanitarian Affairs. 38 The report made recommendations on four themes: linking the Security Council to the field, mission-wide strategy and crisis planning, improving the role of uniformed personnel, and a political follow-up after completion of the mission. Together with the report of the General Assembly s Special Committee on Peacekeeping Operations (C-34), this led to a renewal of the concept of Protection of Civilians which was explained in the DPKO s New Horizon study. 39 The focus of the study was creating clarity among peacekeeping stakeholders and the creation of a common understanding of a peacekeeping mission. In the following five years, policy guidelines were created, structures were clarified, and partnerships between actors were made. However, in 2014, the UN Office of Internal Oversight Service (OIOS) still listed concerns about high civilian toll. The OIOS reported that, in practice, the troop-contributing countries and the Security Council had a different view on the use of force. 40 Though both DPKO and the Department of Field made a reservation concerning this recommendation, the other recommendations were accepted. The OIOS also reported that troop-contributing countries and missions leadership created a double line of command that may create different instructions. In addition, the OIOS report stated that there is a lack of clarity on the responsibility to protect civilians when the host government is unwilling or unable to act. 41 Contingent members were concerned about penalties when the use of force was viewed as inappropriate. Finally, peacekeepers were concerned about the insufficiency of their resources when responding to force with force. The report s most innovative part is that it addressed that responsibilities of the troopcontributing states affect the protection of civilians. The use of force instructions from the states heavily influence the effectiveness of protection of civilians. The use of force is highly debatably and consensus among troop-contributing states is still not crystalized. The permanent members of the Security Council have shown willingness to engage in the use of 37 Boutellis, Popovski, Quick, 2016, p Curran, 2016, p UN General Assembly, Report of the Office of Internal Oversight Services, A/68/787/2014/142, 7 March 2014, p

15 force. According to the OIOS report, a solution for the gaps would be increasing operational control over the military contingents, clarifying peacekeeping tasks on a tactical level, and improving working relations among humanitarian entities. 42 Developments around the time of the Kigali Principles In 2015, the year the Kigali Principles were launched, a wide variety of activities emerged, stimulating the protection of civilians. A main stimulator for the attention on the protection of civilians, was the appointment of the High-Level Independent Panel on Peace Operations by the Secretary-General Ban Ki-moon in October 2014 to review the UN peace operations. 43 After the release of the Kigali Principles, the Secretary-General released its own report concerning its agenda and priorities until the end of his last term 44. The High-Level Independent Panel on Peace Operations report was criticized for being too similar to previous reports by its predecessors, such as the Agenda for Peace in 1992 and the Brahimi- Report However, four changes are visible, which are the primacy of politics, more responsive operations, global-regional relationship, and field-focused and people-centred approach. The primacy of politics means that peace is achieved by political solutions in which military and tactical operations play a supportive role. The Secretary-General has endorsed this shift by denoting the range of used responses with especially highlighting the use of special political missions, special envoys, and regional offices. The Panel s call for more regional offices was also supported. The Secretary-General s report does not include funding for partnerships, as the African Union had hoped for. The final element is the fieldfocused and people-centred approach, which mean more focus by the UN Headquarters on supporting field missions and personnel. The report by the Secretary-General had very few concrete examples that would increase the people-centred approach but, instead, showed a state-centred approach. The Secretary-General also noted that the continuing lack of adhering to international humanitarian law by some States and non-state armed groups, has become a critical challenges for the Protection of Civilians. The year 2015 ended with an unprecedented joint appeal of the Secretary-General and the President of the International Committee of the Red Cross (ICRC) in which they condemned the decline in the protection of civilians and the lack of respect for international humanitarian 42 UN General Assembly, Report of the Office of Internal Oversight Services, A/68/787/2014/142, 7 March 2014, p Boutellis, UN General Assembly, The future of United Nations peace operations: implementation of the recommendations of the High-level Independent Panel on Peace Operations, A/70/357 S/2015/682, 2 September Curran, 2016, p

16 law during armed conflict. 46 As the year ended with an extraordinary appeal by the Secretary- General and the ICRC president, the Kigali Principles were just one occasion that asked for more attention for the protection of civilians. This chapter showed that peacekeeping has developed extensively from the first peacekeeping mission which was a group of neutral observers. The environment of the missions demanded for more action, such as in the UNOC Congo mission, but only after the Cold War peacekeeping diversified. Four types of missions can be distinguished that included missions with a Chapter VII mandate to enforce peace. However, the failure to protect civilians in Bosnia, Rwanda, Sierra Leone, and Liberia led to peacekeeping missions with a focus on the protection of civilians. At the same time, the Responsibility to Protect emerged which is a parallel trend in the UN that also increases proactive peace operations. Ten years after the first Protection of Civilians mandate, a movement of evaluations started. The Kigali Principles seem to be part of the movement in which peacekeeping in practice is improved. 46 Boutellis,

17 Chapter 2. The Analysis of the Kigali Principles On 28 and 29 May 2015, the Rwandan government held a High-level International Conference on the Protection of Civilians that would run-up to a Leaders Summit on UN Peacekeeping. 47 The highlight of the event was the presentation of the Kigali Principles on the Protection of Civilians. The top 30 troop and police-contributing states and the top 10 financial-contributing states of UN peace operations, were present at the event. During the conference, the states were asked to endorse the Principles. After the conference, more states have endorsed the Principles and, nowadays (March 2017), 40 states have endorsed them. The function of the Kigali Principles is not to replace UN policies and strategies, but, instead, aim at stipulating and expanding the responsibilities of the troop-contributing states. The Kigali Principles accommodate a wide range of issues which are the following: Training on protection of civilians (Principles 1 and 2) Use of force and rules of engagement (Principles 3, 8, 9, and 10) Delays and rapid deployment (Principles 4, 7, and 11) Resources and capabilities (Principles 5, 6, and 17) Disciplinary action against our own personnel (Principles 12, 13, and 15) Consultation and review (Principles 14, 16, and 18) The issues included in the Principles are often related to discussions that already took place in the UN institutions. As shown in the previous chapter, peacekeeping is an evolutionary process with a tension between state sovereignty and protection of civilians. Peacekeeping development has been constant and depends on the UN political climate, especially the Security Council s. The Kigali Principles will also become part of this evolution of peacekeeping and can further shape the focus on inclusion of protection of civilians. For the evaluation of the Principles, it is therefore relevant to review which of its elements are new and innovative. As peacekeeping is a development, it is also necessary to understand to which previous discussions the Principles are connected to and what is developing. In the following chapter, the Principles are discussed and connected to earlier discussions, if possible. In addition, a summary is given on what is innovative in these set of Principles. 47 Civilian Protection,

18 2.1 Analysis of the Kigali Principles Training on Protection of civilians The first Principle states that troop-contributing states should train all troops on the protection of civilians prior to their deployment to missions. This training aspect of UN peacekeeping is widely discussed. 48 In 2009, the Security Council adopted resolution 1894 which requested the development of an operational concept and mission-wide planning and training on the protection of civilians. 49 In addition, DPKO released a tactical training manual. The responsibility of the training is at the level of the troop-contributing states. Principle 1 is valuable because it is standard setting, but it does not add new aims and/or goals. Principle 2 also concerns training but describes that troop-contributing states should ensure that their sector and contingent commanders, as well as their nominees for mission leadership positions, have a high level of training and preparedness on peacekeeping operations and, particularly, on the protection of civilians. The success or failure to protect civilians during an UN mission largely depends on the Force Commander and the other commission s leadership, 50 as they are in the lead when it comes to interpretation of the mission s mandate and the rules of engagement. Training of the mission s leadership is therefore essential to increase the protection of civilians, leading to a debate on a UN Field Commanders academy in However, since 2011, heads of military components have already received an intensive orientation course that includes mentoring by a former Force Commander. A sectorwide approach with an own institution could create a consistent and universal level of training. The Principle does not specifically refer to an academy but is specific on the necessity of leadership s knowledge of the protection of civilians in the field. Nevertheless, the principle does not lead towards a new standard Use of force Most Kigali Principles, including Principles 3, 8, 9, and 10, are related to the use of force. Principles 4, 7, and 11 also focus on delaying the use of force and Principle 13 is on disciplinary actions against failures to use force. Principles 3, 8, and 9 focus on hesitations to use force. Principle 10 focusses on prevention of threats against civilians. 48 Curran, 2017, p Wilmot, Weller, Mayima & Sheeran, 2016, p Curran, 2017, p Wilmot Weller, Mayima & Sheeran, 2016, p

19 Principle 3 states that troops should be prepared to use force to protect civilians, as necessary and consistent with the mandate. Such actions encompass making a show of force as a deterrent, interposition their forces between armed actors and civilians, and taking direct military action against armed actors with clear hostile intent to harm civilians. The willingness of deployed troops to use force is an issue that is discussed in UN debates. The OIOS evaluation report showed a major gap in the UN s approach towards the protection of civilians and reported that in peacekeeping operations, force is almost never used to protect civilians under attack. 52 The problems UN peacekeepers face are related to the inconsistent level of political support, the composition of UN Missions, practical limitations of UN peacekeeping, and the paucity of reliable information. 53 The aim to protect civilians, however, is not new. These Principles reiterate a current gap between policy and practice. Principle 8 is on the use of force and states that troops should not hesitate to act, in accordance with the rules of engagement, to protect civilians in the absence of an effective host government response or in absence of a demonstration of willingness to carry out its responsibilities to protect civilians. The main element of Principle 8 is the reliance on the host government to protect its civilians, which, in practice, has caused UN peacekeeping missions hesitation to protect civilians. The relationship between the host government and UN peacekeeping missions may become difficult. The underlying principles of UN peacekeeping (consent by the states and impartiality) heavily define the relationship between host government and the troops. 54 Security Council resolutions stipulate the protection of civilians. The main issue for Principle 8 is the difference between practice and policy as described by the OIOS report. 55 Though the rules of engagement are mentioned in Principle 8, their main focus is described in Principle 9. Troop-contributing states and mission s leadership are supposed to demand clarity from the UN on the rules of engagement, including clarification on the circumstances under which the use of force is appropriate. A main facet of this Principle seems to be demand clarity, which emphasizes the role of the troop-contributing states to actively create a good understanding of their tasks and mandate. There has been quite some critique on the UN for the lack of clarity on the rules of engagement. It is interesting that this Principle 52 UN General Assembly, Report of the Office of Internal Oversight Services, A/68/787/2014/142, 7 March 2014, p Blocq, 2006, p Blocq, 2006, p UN General Assembly, Report of the Office of Internal Oversight Services, A/68/787/2014/142, 7 March 2014, p

20 creates more responsibility at the level of the contingent troops to initiate clear rules of engagement, as the practical implications of this new Principle remain unclear. In Principle 10, the focus is shifted towards prevention. The troop-contributing states are supposed to identify, as early as possible, potential threats to civilians and proactively take steps to mitigate such threats or, otherwise, reduce the vulnerability of the civilian population. To some extent, this Principle seems to create a basis for preventive use of force but the main aim could also be increasing the use of military intelligence. Missions have introduced a range of information-gathering techniques that include Community Alert Networks and aerial surveillance. 56 In general, however, states have been reluctant to supply UN missions with information and intelligence capabilities, by which the term intelligence has even been avoided in UN peacekeeping for a long time. The Joint Mission Analysis centres are important for gathering information on potential threats. This Principle might encourage states to invest in gathering intelligence during UN peacekeeping missions Delays and rapid deployment For peacekeeping, time is an extremely relevant factor. Conflicts can escalate quickly and a late response may create a failure to protect civilians, as was sometimes the case in the past. This Principles category cover instructions by states that delay the use of force and the deployment of the missions. Principles 4 and 7 are on caveats that limit the ability of troops to respond quickly, whereas Principle 11 is on the rapid deployment of missions. Principle 4 specifically notes not to stipulate caveats or other restrictions that prevent states from fulfilling their responsibility to protect civilians in accordance with the mandate. Caveats are restrictions that states place upon their troops during peacekeeping operations. 57 For years, the UN Secretariat enforced that there were no caveats on the use of force. However, if, in practice, more risks had to be taken, the hidden restrictions appeared. Contingent troops refused to follow orders and waited for national authorities to confirm or to countermand orders. Since the missions have become more complex, refusal or waiting for approval has become the norm. The June 2015 High-Level Independent Panel on Peace Operations report also acknowledged the problem of caveats, as field commanders were severely hampered by the caveats. The report stimulated the UN to review these actions as acts of disobedience of lawful demand. The following report of the Secretary-General asked 56 Dorn, 2016, p Future Peace Operations,

21 troop-contributing states to communicate caveats during negotiations. Additional caveats would be considered as unacceptable. The Secretary-General supported its report by asking all missions to inform UN Headquarters of any refusal by the Force Commander. 58 In the directive, the UN-Secretariat pledged to repatriate the unit concerned. Compared to the early discussions and debates, the Principle stipulated an outcome of an earlier discussion. Principle 7 is also on the use of force and argues that states should avoid undue delay in protecting civilians by investing their contingent commander with the authority to use force to protect civilians in urgent situations without the need for further consultations with the capital. As explained in principle 2, caveats cause undue delay in following the commander s orders. This Principle seems another reference to caveats, but the focus is now on the result of these caveats. Commanders may be required to delay, due to hidden restrictions, because the commanders need to establish contact with the capital. The delays have harmful results when civilians are in destress. Stating the problem of caveats in this matter may raise the awareness but the discussion has already taken place before. Principle 11 is on the length of necessary time for deployment and states to seek enhancement of arrangements for rapid deployment, including supporting a full review of the UN s standby arrangements, exploring a system in which earmarked units from troop and police-contributing countries could be placed in readiness to ensure rapid troop deployment, and encouraging the utilization of partnerships with regional organizations such as the African Union. Two things are relevant in this Principle, namely the reference to creating a more standing UN force and the inclusion of regional support. The initial goal of the UN Charter was to create a standing UN military force when the plan was unsuccessful because UN states commit troops on a case by case basis 59. The delay of military deployment can be disastrous and can still create problems, which was shown by the slow pace of the operation in Mali and the Central African Republic in The idea of creating a force reserve again was explored by Netherlands and Canada in the mid-1990s. Both states are active endorsers of the Principles and their influence on Principle 11 is visible. This is, however, not the only attempt to create UN earmarked troops. In 1995, on behalf of Secretary-General Butros Ghali, the UN Standing High Readiness Brigade was in action shortly 60. Almost ten years 58 Dorn, 2016, p Goulding, 1993, p Blocq, 2006, p

22 later, in 2007, the General Assembly Special Committee on Peacekeeping Operations reviewed the possibility for Enhanced Rapidly Deployable Capacity. A main problem of these initiatives, however, remains the costs of having standby troops. The Principle s proposal seems to create a better coordination of moving deployed troops between missions, which is another current problem. The Principle also refers to the African Union that has taken steps to establish a regional rapid response in the past. The African Union becomes a more active player in the region and has taken a role as a peace enforcer as well 61. The African-led International Support Mission in Mali, for instance, was active until the UN Multi-Dimensional Integrated Stabilization Mission in Mali took over because of the regional fear for infiltration by international terrorist groups Resources and capabilities Three Principles relate to resources and capabilities which are relevant because resources and capabilities can limit the implementation of mission mandates. Whereas Principles 5 and 17 are on increasing the efficient use of resources and capabilities, Principle 6 is on the use of technology. Principle 5 supposes that troop-contributing states identify and communicate any gaps to the UN on resources and capabilities that inhibit their ability to protect civilians. During both the UN peacekeeping missions to Rwanda and former Yugoslavia, the lightly armed troops in white vehicles and blue helmets were not the solution to the conflict. 62 The mismatch between the lack of resources compared to the ambitious mandates was often not reported. Acknowledgment of the lack of resources and the communication on this lack may create a more actively engagement of the UN and other actors. Though the issue is not new and was already addressed in the Brahimi Report, 63 Principle 6 can be valuable because the responsibility lies with troop-contributing states to deploy serviceable equipment, vehicles, weapons, and ammunition. The way in which the principles are phrased, may increase the information of the resources failures and may increase better responses to the lack of resources. Principle 17 adds that troop-contributing states should urge the Security Council to 61 Curran, 2016, p Blocq, 2006, p UN General Assembly and Security Council, Report of the Panel on United Nations Peace Operations, A/55/305- S/2000/809, 21 August

23 ensure that mandates are matched with the requisite resources and should address current critical resource gaps in several missions. Principle 6 is on the strive of the troop-contributing states, within their capabilities, to contribute to enabling capabilities (including helicopters) to peacekeeping operations that facilitate improved civilian protection. It is questionable what the Principle means by enabling capabilities. The Principle s example is not helping either. 64 On one hand, the Principle could mean the inclusion of technologically advancement, but, on the other hand, it could also mean resources in general. The inclusion of more technology is an interesting development at the UN since the UN is often criticized for being slow in transformation. Nevertheless, from 2012 onwards, DPKO made progress under stimulation of Hervé Ladsous, the Under-Secretary-General for Peacekeeping Operations. 65 The success was seen in the procurement of materials in the DRC in 2013 and the creation of a panel, the Panel of Experts on Technology and Innovation in UN Peacekeeping. In 2015, this Panel of Experts produced a report to further promote technologies, which led to a Technology and Innovation Strategy in 2015, jointly created by DKPO and the UN Information and Communications Technology Division. The goal of this Strategy was to implement the Panel of Experts strategy. This Principle endorses the inclusion of technology into the mission, as actively stimulated by the UN. The Principle also acknowledges that there may be a technological gap between states but it asks for action within the capabilities of the states. Unfortunately, the principle does not address the movement in the peacekeeping missions in which states contribute technology separately from general troops. For example, the Netherlands and Sweden have attributed well-equipped intelligence, surveillance, and reconnaissance units in Mali Disciplinary action against our own personnel Troop-contributing states are responsible for holding their own troops accountable since the peacekeepers are individually immune in the state they operate in. Two types of accountability are addressed in the Principles: human rights abuses and the responsibility to protect civilians. It is relevant to urge states to investigate these, because they are the actors that can improve the disciplinary action. 64 Dorn, 2016, p Boutellis, Dorn, 2016, p

24 Principle 12 demands troop-contributing states to be vigilant in monitoring and reporting any abuse of human rights or signs of impending violence in the areas in which its personnel serve. Because human rights abuses by peacekeepers are very unfortunate and unacceptable, the UN Human Rights Due Diligence Policy was launched in early The policy aims at preventing UN support to states that engage in grave human rights violations and humanitarian law violations and focuses on the responsibility of third states and the UN. The Principles touches upon a recurring problem but is not necessarily adding a new element. Principle 15 is very similar to Principle 13 but emphasizes the investigation and prosecution of abusers. The UN is committed to zero tolerance when it comes to sexual exploitation and abuse. 68 Important was the Secretary-General s 2003 Bulletin that promoted the nontolerance of sexual misconduct by peacekeepers. 69 The contingent-contributing countries, however, hold the main responsibility for the prosecution of abuse. This Principle can motivate troop-contributing states to remain alert and active against abuse. Principle 13 appears to be similar to Principle 12 but focuses on disciplinary action. It urges troop-contributing states to take disciplinary actions against their own personnel if they fail to act to protect civilians when circumstances warrant such action. This Principle refers to the legal framework of UN peacekeeping missions as UN troops are immune from host state jurisdiction. The counterbalance for this immunity is that troop-contributing states have a duty to prosecute troops who commit crimes. Nevertheless, the Principle s notion that peacekeepers have a responsibility, is a new element. The Principle, however, is unclear to what extent peacekeepers can be held accountable Consultation and review Principles 14, 16, and 18 focus on consultation and self-review which is less of a legal issue but can increase the quality of peacekeeping in practice. Principle 14 requires troopcontributing states to undertake their own review, parallel to after-action review. The aim is to identify and to share key lessons for avoiding protection of civilian failures in the future. 67 UN General Assembly, UN Human Rights Due Diligence Policy, A/67/775-S/2013/110, 5 March Kanetake, 2010, p UN Secretary-General, Special Measures for Protection from Sexual Exploitation and Sexual Abuse, ST/SGB/2003/13, 9 Oct