Jayden van Leeuwen’s column on UN peacekeeping and its accounting to the global community raises some important issues that thematically fall within the Centre’s global security programme.
Jayden addresses the problem of sexual abuse by personnel in UN peacekeeping missions – and the ‘startling lack of accountability’ applied to contributing member states. The main barrier to accountability is the ‘legal status quo’ imposed by the Status of Forces Agreements under which individuals in UN missions are subject to the jurisdiction of the contributing State for any criminal offence committed in the host country.
As Jayden observes, the foundation of the UN system is state consent, so the UN can only pursue non-legal accountability, such as financial assistance to victims and support for whatever redress the contributing State decides, which is usually inadequate.
The UN itself acknowledges that it lacks ‘the authority or legal mandate to criminally prosecute individuals’, and can only refer allegations to the ‘relevant national authorities’ for action.
The broader message of Jayden’s piece, I suggest, is this. The inability of the UN to assert governance over criminal acts within operations established under its mandate highlights the inadequacy of our 20th c. international system to deal with its responsibilities towards the emerging global community in the 21st c.
The central concept in the UN Charter is the maintenance of international peace and security. For this, chapter VII empowers the UN (through the Security Council) to resort to the legitimate use of force in the name of collective security. The paralysis of the Council through the veto meant that collective security in response to aggression has not worked, the only significant cases being Korea (1951) and Iraq (1991).
In its place, the phenomenon of UN peacekeeping emerged, essentially as a backstop. Its origin was in unarmed UN truce observers (1948 Middle East; 1949 South Asia). UN peacekeeping involving armed troops commenced in 1956 (Middle East) but, under ‘classical peacekeeping’, force is to be used only in self-defence.
Since the early 1990s, ‘modern’ UN peace operations have developed, for both military stability and civilian rebuild. Proactive force may be employed against any action designed to thwart mission objectives. This applies across all regions where such operate – Africa, Middle East, Asia, Pacific and America.
All missions, however, have been reliant upon voluntary contributions from UN member States and governed by SOFAs in which responsibility for individual behaviour remains with the contributing State. This extends to the enforcement missions as well as peacekeeping. In Korea the original UNC (UN Command) was authorised by the Security Council on the basis that it would be under the operational command of the US with multinational forces which continues to this day. The Council authorised the UN flag to fly alongside the national flags of contributing countries, but the operational and jurisdictional command remained with the US. The recent development in which North and South Korea share observation responsibility, at the demilitarised zone, does not change this underlying framework. In Japan, the UNC-Rear provides logistical supplies to the UNC in Korea under a SOFA between the UN and Japan which makes it clear that jurisdiction remains with the US.
Clearly, the UN is largely impotent in lacking any ability to control its peacekeeping forces, because of the 20th c. constraint of State consent. The only way to resolve this is to progress beyond the practice of member State contributions to UN peacekeeping.
In 1992 the Security Council, noting the ‘new favourable international circumstances’ in a time of ‘momentous change’, requested the Secretary-General to recommend ways the UN could strengthen its work in peace and security. The SG’s report (Agenda for Peace) proposed a conceptual framework: preventive diplomacy, peace-making, peacekeeping and peace-building. Within peace-making, he proposed the creation of ‘peace enforcement units’ under his operational control as UN Secretary-General. Although the report laid the basis for effective peacebuilding missions, the peace-making proposal for enforcement units was never adopted.
In 2000 the Brahimi Report, noting the broad criticism of slow peacekeeping deployment, proposed among other things a standing army and a standing police force. The report did not mince its words.
Many Member States have argued against the establishment of a standing United Nations army or police force, resisted entering into reliable standby arrangements, cautioned against the incursion of financial expenses for building a reserve of equipment or discouraged the Secretariat from undertaking planning for potential operations prior to the Secretary-General having been granted specific, crisis-driven legislative authority to do so. Under these circumstances, the United Nations cannot deploy operations ‘rapidly and effectively’ within the timelines suggested.
In 2015, the Horta Report sought to strengthen the contemporary peacekeeping system.
The Panel believes it is past time to institutionalize a framework to engage troop-and police-contributing countries and the Secretariat to truly forge a common and realistic understanding of the mandate and what capabilities and standards are required to implement the mission.
The conclusion is that, despite the three reports, nothing substantive has been done by Member States to fundamentally change the operational nature and jurisdictional framework of UN peace operations since its inception. Changes have been made at the margin and these have made a useful difference, but marginal improvement is not fundamental change.
Until the nature of the mission progresses to a qualitatively new framework with a standing UN contingent, directly recruited, financially and logistically supported, operating under the direct jurisdiction of the UN Secretary-General, and accountable to the UN operationally and to the ICC for any individual criminal liability, we shall not be answering properly to the legitimate interest of the global community of peoples.
Dr Kennedy Graham is Director of the NZ Centre for Global Studies