The UN peacekeeping mission in the Central African Republic (CAR), known by its French acronym MINUSCA, reported last month that on February 26 it “had intervened” militarily to halt “an offensive maneuver” (‘la progression offensive’) by approximately 40 alleged members of an armed group near the town of Bambari. The UN mission then clarified that one alleged militant had been killed and seven wounded, while three other suspects were being detained for “questioning about their presence in the vicinity of the city.” MINUSCA’s force commander explained that UN peacekeepers “had to react” because the alleged militants had “crossed a red line,” while multiple other sources (see here and here) confirmed later that the reason a UN attack helicopter targeted the individuals on the road into Bambari was because they had crossed a line around the city, imposed by MINUSCA in order to protect civilians in the city itself.
With security deteriorating in many parts of CAR, the Feb. 26 attack raises a series of questions about the nature of the UN’s presence there. As emphasized in MINUSCA’s mandate (UNSC Res. 2301), UN-mandated peacekeeping is formally premised on a set of three virtues: consent, impartiality and – last but not least – non-use of force. However, the scope and limits of these principles are becoming increasingly hazy as states deploy peacekeepers to hostile environments with little or no peace to keep. Three other missions in Africa (South Sudan, Democratic Republic of Congo (DRC), and Mali) blur the distinction between traditional peacekeeping – premised on the non-use of force – and peace enforcement, which authorizes coercive force. But it is MINUSCA that is now testing how far UN peacekeepers may go to enforce their mandates without running afoul of international law. Operations like the Feb. 26 attack near Bambari raise difficult questions about the UN’s legal authority to target non-state actors and, conversely, whether pro-active interpretations of peacekeeping mandates compromise the UN’s immunity from counter-attacks.
What exactly is MINUSCA’s mandate in CAR? Adopted under Chapter VII of the UN Charter, the peacekeeping mission has authority to “take all necessary means” within its area of deployment, including priority tasks such as protection of civilians, promotion and protection of human rights, and creating a secure environment for the delivery of humanitarian assistance (para. 33, UNSC Res. 2301). Critically, however, the UN Security Council decided that:
MINUSCA’s strategic objective is to support the creation of conditions conducive to the sustainable reduction of the presence of, and threat posed by, armed groups through a comprehensive approach and a proactive and robust posture without prejudice to the basic principles of peacekeeping… (para. 34)
While the resolution is less expansive than MONUSCO’s famous Intervention Brigade, which was authorized in 2013 to ‘neutralize armed groups’ in the DRC (UNSC Res. 2098, para. 9), there is little doubt that references to “proactive” and “robust” in MINUSCA’s mandate give UN peacekeepers very broad authority in CAR. The question is what are the limits of this admittedly broad authority to enforce the mission mandate and how does that relate to international law generally?
UN Peacekeeping and International Law
An important preliminary issue is whether MINUSCA is currently in an armed conflict, which would trigger the application of international humanitarian law (IHL) as recognized by the 1999 UN Secretary General’s Bulletin. (Let us bracket, for the moment, the possibility that IHL applies by virtue of the fact that MINUSCA initiated hostilities, thereby forfeiting its status as a traditional peacekeeping force, Art. 1.1 of the Bulletin). First of all, it is safe to assume that the law of non-international armed conflict (NIAC) would be the applicable body of norms, given that MINUSCA is engaging only non-state actors in CAR. One can also assume that the NIAC requirement of “a sufficient degree of military organization” is satisfied for groups like the Popular Front for Central African Renaissance (FPRC), which was involved in the Feb. 26 attack, since this group appears to have a command structure. For some self-defense groups in CAR, known as the anti-balaka, it cannot be stated unequivocally that they’re sufficiently organized to meet this requirement.
The key IHL question is whether hostilities have reached the required intensity threshold to recognize an armed conflict between MINUSCA and the FPRC. We do not have all the facts, but it is clear that the Feb. 26 attack against the FPRC rebels is just the most recent round of fighting between MINUSCA and that group. Joseph Zoundeko, the FPRC’s leader was killed in a separate UN helicopter attack on Feb. 11. Although details of MINUSCA engagements are murky for obvious operational reasons, there are grounds to believe that these incidents are just the tip of the iceberg. For instance, a recent news report suggests that the mission’s Portuguese contingent, which was involved “in direct combat with armed rebels,” inflicted “heavy casualties” near Bambari. As noted by Evan Cinq-Mars of the Center for Civilians in Conflict, “heavy casualties” and “direct combat” are simply not terms one usually hears in relation to UN peacekeeping.
So does this mean that IHL applies to MINUSCA’s operations against the FPRC in CAR? IHL applicability is always a sensitive question, but its consequences are especially acute in the context of multidimensional peace operations like MINUSCA, where civilian personnel work alongside military contingents to monitor human rights and deliver humanitarian aid, among other activities. The mission knows full well that accepting IHL as the applicable law puts the entire mission at risk, with potentially adverse consequences for its humanitarian objectives (more on this below). Thus, regardless of the objective intensity of hostilities, MINUSCA is likely to insist that the violence near Bambari remains below the threshold of armed conflict.
Not surprisingly, just one week after it “proactively” deployed attack helicopters against the FPRC, the UN sought to project an image of “business as usual.” In a March 4 communiqué, MINUSCA called on the FPRC and other armed groups “to refrain from hindering the work of humanitarian actors” while underscoring that the Security Council had given it a mandate to ensure “a secure environment for the immediate, full, safe and unhindered, civilian-led delivery of humanitarian assistance.”
This was to be expected. The UN always resists the notion that peacekeepers are embroiled in hostilities, even though IHL applicability is a purely objective factual determination beyond its control. And yet the existence (or not) of armed conflict has serious legal consequences, one of which is the delicate question of who is a lawful target under IHL. Put differently, whether there is an armed conflict (or not) between MINUSCA and (certain) Central African rebel groups raises at least four difficult questions for the UN:
- What legal framework governs the targeting of rebels?
- May the rebels lawfully target peacekeepers?
- For how long are peacekeepers targetable?
- And, most controversially, whom within MINUSCA may the rebels target?
Who is a Legitimate Target?
It is impossible to comprehensively address these four legal questions in a blog post, but some general remarks may help illuminate what is at stake. The situation in CAR is unusual in that it is MINUSCA who is – as it openly concedes – launching attacks against rebels. Given that, normally, the hard part is determining when peacekeepers who resort to force in self-defense are bound by IHL norms (see T. Ferraro, Multinational Forces, p. 577-579), it seems implausible for MINUSCA to suggest that IHL does not apply when it repeatedly uses “proactive” and “robust” force. However, if we accept – for the sake of argument – this hypothetical possibility, it raises an intriguing question: If not IHL, what is the source of the UN’s authority to target rebels in CAR?
This is a complex area of UN peacekeeping, and the UN Security Council’s mandates do not provide satisfactory answers. As seen above, UNSC 2301 resolution re-affirms the principle of the non-use of force in its preamble. However, it also adds two significant exceptions: force is not allowed “except in self-defense and defense of the mandate.” The first exception to the principle of non-use of force is relatively uncontroversial, but determining when force is allowed in ‘defense of the mandate’ is the legal conundrum that MINUSCA and the UN’s other ‘robust’ peacekeeping operations currently face.
Relying on its mandate, presumably the parts about creating “conditions conducive to the sustainable reduction of the presence of, and threat posed by armed groups”, MINUSCA decided earlier this year that Bambari should be a “zone without armed groups.” This explains why, on February 26, when FPRC rebels approached Bambari, the UN deployed an attack helicopter to enforce a ‘red line’ around the city and – by extension – MINUSCA’s interpretation of its mandate. In its March 4 communiqué, MINUSCA appears to invoke its mandate to explain this operation, but – unless we are prepared to accept that there now exists an entirely new and autonomous body of UN peacekeeping law regulating the use of force – this simply begs the question: Which norms actually govern offensive UN operations against groups like the FPRC: Is it IHL or international human rights law (IHRL)?
The answer would be relatively straightforward if IHL governed the targeting of rebels in CAR, but the UN is unlikely to easily concede its applicability for reasons explained below. By contrast, the relationship between UN peacekeeping and IHRL is not immediately obvious. For starters, the UN has never recognized the general applicability of IHRL to peacekeeping (there is no human rights equivalent to the 1999 Bulletin on IHL), even if it is increasingly accepted that peacekeepers are bound by at least some human rights norms as a matter of customary international law. Presumably this would include the (non-derogable) right to life, which prompts the following question: If we accept that IHRL – not IHL – is the legal framework governing the attack on Feb. 26, the killing of one FPRC member seems to be a prima facie violation of the right to life, given MINUSCA’s acknowledgement that the FPRC was targeted because the group crossed the red line around Bambari. Crossing a line is not normally a reason for resorting to lethal force, although much will depend on the facts surrounding this incident. Did peacekeepers fire the first shot, or was MINUSCA, in fact, responding to fire from the FPRC after the helicopter fired a series of warning shots? Relatedly, what were MINUSCA’s rules of engagement? Not enough is known about the incident; the point is merely that, if IHRL is the framework that applies to operations like the Feb. 26 attack, then invoking MINUSCA’s mandate to justify the attack is circular. To be sure, MINUSCA has authority to enforce its mandate, including “zones without armed groups,” but any uses of force – even if they are undertaken to enforce the mission mandate – are still governed by binding international norms, whether it be IHL or IHRL.
The flipside of this discussion is how IHL (or IHRL) applicability relates to the prohibition of attacks on peacekeeping personnel and installations. In the March 4 communiqué, MINUSCA warns that “any attack targeting the civilian population, UN personnel and humanitarian organizations constitutes a war crime…”. It is easy to understand why the UN would make this claim, but it raises two problems. First, a war crime can only be committed if there is an armed conflict, so is the UN inadvertently conceding that IHL applies to these incidents around Bambari? Second, it beggars belief that MINUSCA can first attack an armed group only to then turn around and claim absolute immunity from counterattack. Under international criminal law, UN peacekeepers are entitled to protection, but only to the extent they retain protected status under IHL. For instance, Article 8 (e) (iii) of the Rome Statute criminalizes “intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission… as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict” (emphasis added).
Here, again, the threshold question is whether hostilities around Bambari have reached the level of an armed conflict, and, if so, what are the precise circumstances in which a MINUSCA member is killed? There are reports that Central African rebels have actively targeted UN peacekeepers, but there are also cases where absolute immunity seems out of the question. If the UN’s facts are correct, “proactive” and “robust” uses of force, such as the Feb. 26 helicopter attack, arguably give rebels the right to defend themselves without violating the prohibition of attacking peacekeepers. This could be viewed as the inherent right of individual self-defense, which is recognized by the criminal law of all states and applicable regardless of whether there is an armed conflict.
What is much less clear, however, is the duration and scope of permissible targeting of UN peacekeepers. Two distinct issues are worth highlighting. First, do we assume that if there is an armed conflict between the FPRC and MINUSCA, FPRC rebels can target peacekeepers for the duration of that armed conflict? Or would the permissibility of targeting extend only to when peacekeepers are not “entitled to the protection given to civilians… under the international law of armed conflict” (Rome Statute, art. 8 (e) (iii))? If it is the latter and peacekeepers are treated like civilians for the purpose of IHL, does that mean we have the much criticized revolving door phenomenon, whereby UN peacekeepers lose and regain protection “in parallel with the intervals of… their direct participation in hostilities”? (ICRC Interpretive Guidance, p. 70-73). This seems to undermine the principle of equality of belligerents, since MINUSCA would be able to invoke their mandate to carry out offensive operations whenever it pleases, while armed groups would have to wait for an attack against them before being able to respond in kind.
A second and even more controversial issue is whether targetability extends to just UN military personnel directly involved in combat operations, or conversely, to the entire mission. Although experts are careful to distinguish between the military, police and civilian components of peacekeeping operations, the fact is that all peacekeeping personnel use the same UN emblem, which creates problems for the application of the principle of distinction under IHL. MINUSCA is, of course, right to remind armed groups in CAR that they should not impede the delivery of humanitarian assistance, but it is not hard to imagine a situation where non-military UN personnel are targeted by virtue of their association with the UN, especially if MINUSCA military convoys escort – as is often the case – humanitarian actors in conflict zones. This is yet another unresolved issue in multidimensional peacekeeping (see M. Pacholska, (Il)legality of Killing Peacekeepers, p. 67-71), which – as the situation in CAR demonstrates – urgently needs more attention.
The relationship between peacekeeping and international legal norms does not get as much attention as, for example, the targeting practices of state armed forces. But this may soon change. Just last month, the Central African authorities finally appointed the Special Prosecutor of the Special Criminal Court (SCC), an eagerly awaited hybrid tribunal tasked with prosecuting various crimes in CAR, including serious violations of international humanitarian and human rights law. The SCC has open-ended temporal jurisdiction, which means it will be able to investigate the violence around Bambari, including attacks on UN peacekeepers. In doing so, the SCC may help to provide not just accountability for serious crimes but also clarify the nature and limits of modern UN peacekeeping and its relationship to other bodies of international law.