On August 28, the UN Stabilization Mission in the Democratic Republic of the Congo (MONUSCO) suffered its first casualty since Security Council Resolution 2098 in March authorized an offensive Intervention Brigade tasked with “neutralizing” rebel groups. During fighting near Goma in eastern Congo, between Congolese armed forces backed up by MONUSCO’s new brigade and M23 rebels, one Tanzanian peacekeeper was killed and several others wounded by artillery fire.
The same evening, MONUSCO promptly denounced the incident, tweeting a statement from Martin Kobler, the new special representative of the Secretary-General (SRSG) and head of the UN mission.
While this type of statement is expected following such an incident, the choice of the wording used reveals that the mission has yet to adapt its language to its new offensive mandate. This is especially true in the French version, which is presumably the original one since the Democratic Republic of the Congo is a French-speaking country. The use of the French word “meurtre”—meaning “murder” and not the more neutral word “killing” used in the English statement—is at best ill-adapted and at worst misleading in a context where MONUSCO has arguably become a party to the conflict and, therefore, a legitimate target under international law.
- The applicability of international humanitarian law to MONUSCO is widely accepted, despite continuing debate on the scope of its application. This implies that peacekeepers involved in combat become a legitimate target under international law.
- The creation of MONUSCO’s Intervention Brigade raises serious—although not entirely new—policy and legal questions regarding the impartiality of the mission, the security of UN staff, and the legal standards it must abide by.
- The deployment of the brigade makes it urgent to seriously address ambiguities that, for the most part, date back to the robust mandate given in 2009 to MONUSCO’s predecessor, MONUC. A good first step would be to adapt the mission’s language to the new operational realities.
The applicability of international humanitarian law (IHL)—also known as the law of armed conflict—to UN peacekeeping forces directly participating in combat has been widely accepted since the UN secretary-general’s adoption of the Bulletin on the Observance by United Nations Forces of International Humanitarian Law in 1999. Nonetheless, the UN has always been reluctant to admit it might become a party to a conflict under IHL, not least because of the implications it has on the safety of blue helmets, as one legal scholar recently noted. Indeed, the prohibition of attacks on peacekeepers, which is considered a war crime by the Rome Statute of the International Criminal Court, is valid “as long as they are entitled to the protection given to civilians or civilian objects under [IHL].” When the UN becomes a party to the conflict, it forfeits this protection and, as fighters, its peacekeepers consequently become legitimate targets.
As reported in a recent IPI publication, the offensive military operations against armed groups that the Intervention Brigade has been mandated to undertake makes the UN a party to the conflict. Legal uncertainty remains as to the scope of IHL’s application—namely, whether it should apply throughout the deployment of the Intervention Brigade or only during active fighting, and whether it extends to MONUSCO as a whole or remains limited to the brigade’s contingents. However, it is clear that the nature of the hostilities that led to the death of the Tanzanian peacekeeper—which reportedly involved ground troops, artillery fire, and helicopter gunships—triggered the applicability of IHL.
The death of a peacekeeper during combat is unfortunate and saddening; however, it hardly qualifies as a “murder” as suggested by SRSG Kobler’s statement. This should be distinguished, for instance, from an attack on a patrol by the UN Mission in Darfur, Sudan, on July 13, which led to the death of seven peacekeepers. Since these peacekeepers were reportedly not participating in offensive operations, this latter attack could arguably be qualified as a war crime and, in common parlance, as “murder.”
But beyond the anecdotal nature of the SRSG’s statement, which might merely reflect a translation mistake as suggested by the differences in wording between the English and French tweets, this episode reveals a wider discomfort within the UN about the implications of such an unprecedented offensive mandate.
As recently highlighted by my colleague Arthur Boutellis in this publication, the involvement of MONUSCO—and, for that matter, of other UN peacekeeping missions—in offensive military operations is not new. Nor is the debate about the applicability of IHL in such situations. However, the explicitly offensive nature of the Intervention Brigade—and the ambiguity of SRSG Kobler’s statement—makes it all the more urgent to clarify legal uncertainties surrounding the participation of UN peacekeepers in military operations and to address the policy implications it raises.
First among them is the potential impact of this new mandate on staff security. While the legal debate remains open as to whether MONUSCO as a whole has also become a party to the conflict, it is crystal clear that UN civilian staff remains protected under IHL. However, it is much less clear how the mission as a whole—as well as UN agencies, funds, and programs, and their implementing partners—will be perceived by the communities it is meant to protect, not to mention the armed groups it is fighting.
MONUSCO’s new offensive mandate seriously calls into question any remaining claims to impartiality, a core value of traditional UN peacekeeping, and might well have adverse effects on other important activities in the Democratic Republic of the Congo. This is the case for humanitarian aid—still badly needed in a country affected by endless conflict—which must be carried out by impartial, independent, and neutral organizations if it is to safely reach all those in need. In this respect, the fact that the UN humanitarian coordinator, one of the most senior humanitarian officials in the country, is also the deputy head of MONUSCO by virtue of structural integration arrangements does not bode well for the image of aid agencies.
On the legal side, beyond issues related to the scope of application of IHL mentioned above, uncertainty remains regarding the question of UN forces’ accountability for potential violations of the law. The applicability of IHL does not only mean that peacekeepers participating in combat can be lawfully targeted, it also carries some obligations for UN forces to respect IHL rules and means that they could be held accountable for war crimes should serious violations occur. But who should have overall responsibility: the UN as an international organization, the troop-contributing country directly involved in the fighting, all states contributing troops to the UN mission?
Similarly, more frequent offensive operations imply a greater likelihood of capturing rebel soldiers and make it ever more urgent to address legal ambiguities relating to the treatment of detainees that have very practical implications. For instance, can MONUSCO legally transfer detainees it captures during combat to the Congolese authorities, given the occurrence of ill treatment and the appalling conditions of detention in the country? If it cannot, does it have the capacity and will to establish and manage its own penitentiary system, and, if so, to what legal standard would it be held?
Most of the complex legal and policy issues raised by the establishment of the Intervention Brigade are not entirely new. The robust mandate given to MONUC in 2009 to help stabilize and extend state authority in eastern Congo had already seriously compromised any pretense of impartiality and allowed the use of force beyond self-defense. Yet, the creation of the Intervention Brigade is a compelling reason to seriously address these ambiguities, which could start by adjusting the language used in public to reflect these new operational realities.
Jérémie Labbé is a Senior Policy Analyst at the International Peace Institute. He tweets at @jeremie_labbe
About the photo: MONUSCO peacekeepers on patrol. (UN Photo/Sylvain Liechti)