Melbourne Law School - SSRN papers

Melbourne Law School

Legal Studies Research Paper No. 299

Addressing the Institutional Law and Order Vacuum: Key Issues and Dilemmas for Peacekeeping Operations Bruce Oswald

This paper can be downloaded without charge from the Social Science Research Network Electronic Library at: http://ssrn.com/abstract=1065561

ADDRESSING THE INSTITUTIONAL LAW AND ORDER VACUUM: KEY ISSUES AND DILEMMAS FOR PEACEKEEPING OPERATIONS Bruce ‘Ossie’ Oswald∗ I. INTRODUCTION More and more frequently, peacekeepers are deployed into situations where the local criminal justice structures, particularly police, judiciary and correction authorities (hereafter referred to collectively as “law and order authorities”) are no longer present, or are unwilling or unable to carry out their duties. Peacekeepers often work in hostile and anarchical operational environments where armed groups may still be involved in intermittent hostilities, and/or other persons may be committing crimes with impunity due to the absence of local law and order agencies. The sense of lawlessness may be compounded by the destruction of public and private infrastructure and a lack of legitimacy of former law and order institutions.1 The absense of law and order can undermine efforts to achieve the stability and security necessary to attain lasting peace and to rebuild ∗

Ossie is grateful to Ms Sarah Finnin for her research and comments on earlier drafts of this paper. He is also grateful to Ms Louise Parrott for her editorial assistance, to Ms Liz Saltnes for her support and to the Conflict Prevention and Peace Forum, Social Science Research Council. In the preparation of this paper, a number of expert academics and practitioners in the areas of peacekeeping, military, international police and the rule of law were consulted. Of particular note was the assistance provided by Ms Isabel Hight, Ms Shelley Inglis, Mr Robert Pulver and Ms Fatemeh Ziai. An earlier version of this paper was prepared for the United Nations, Department of Peacekeeping Operations titled ‘Addressing the Institutional Law and Order Vacuum: Key Issues and Dilemmas for Peacekeeping Operations: Think Piece’ and is available at . 1

As stated by the Secretary-General: “In post-conflict settings, national judicial, police and corrections systems have typically been stripped of the human, financial and material resources necessary for their proper functioning. They also lack legitimacy, having been transformed by conflict and abuse into instruments of repression”: United Nations Secretariat, Report of the Secretary-General: The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc S/2004/616 (3 August 2004), para 27.

2

New Zealand Armed Forces Law Review [Vol 6, 2006]

society.2 Failure to examine and find solutions to fill the institutional law and order vacuum will continue to jeopardise the security of peacekeepers and that of the local population. This in turn can result in a loss of confidence in the UN by the local population, and regularly leads to groups and individuals taking the law into their own hands. In addition, an ineffective response to ethnically motivated crime, organised crime, and the presence of extremist organisations is highly likely to impact adversely on domestic and regional security. Consequently, military peacekeepers have often had to undertake functions to try to restore and maintain basic law and order on an interim basis in order to provide the safe and secure environment that is essential to successful State building.3 These situations require consideration of the following issues: the extent to which peacekeepers should restore and maintain law and order; the strategic, operational and tactical consequences of undertaking such functions; and the appropriate organisational and institutional structures for carrying out such functions.4 This paper explores these issues in order to assist those planning, managing and conducting future peacekeeping operations in developing an appropriate policy on how best to restore and maintain law and order on an interim basis in situations where the UN does not have an executive mandate. In light of the Secretary-General’s call for the UN and Member States to rethink current strategies for addressing the institutional rule of law vacuum,5 the role of peacekeepers in restoring and 2

The nexus between peace and security has been recognised by, amongst others, Boutros Boutros-Ghali in ‘An Agenda for Peace: Preventive diplomacy, peacemaking and peace-keeping’ (1992), online: (last accessed on 6 August 2006), 32–34. 3 For examples of situations where military peacekeepers have undertaken such tasks see the discussion below under “II. Background”. 4 While the primary focus of this article is UN peace operations, many of the matters discussed are also relevant to the planning, management and conduct of regional or ‘coalition of the willing’ peace operations. 5 United Nations Secretariat, Report of the Secretary-General: The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc S/2004/616 (3 August 2004), para 28. In his Report at paragraph 6, the Secretary-General defines ‘the rule of law’ as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency”. See also Neil J Kritz, ‘The Rule of Law in the Postconflict Phase: Building a Stable Peace’ in Chester

Key Issues and Dilemmas for Peacekeeping Operations

3

maintaining law and order should be translated into an operational and normative framework within which to plan, manage and conduct such functions in a holistic and consistent manner.6 II. BACKGROUND The UN has, from its involvement in the first armed peace operations, recognised the importance and necessity of undertaking law and order tasks on an interim basis.7 In his 1958 report on the First United Nations Emergency Force (UNEF I), the Secretary-General recounted how UNEF “took responsibility for maintaining law and order in certain areas, in cooperation with local authorities… [provided] security,… took measures to protect civilian life and public and private property… and exercised a limited power of detention. During this period, UNEF was called upon to

Crocker, Fen Osler Hampson and Pamela Aall (eds), Turbulent Peace: The Challenges Managing International Conflict (2001) 801 at 801-802 for a discussion on the distinction between the ‘rule of law’ and ‘rule by law’. Adherence to the rule of law ensures that governments conduct themselves in accordance with “prescribed and publicly known rules”; whereas rule by law occurs where “courts, statutes and regulations are manipulated in the service of tyranny”. 6 This paper does not address all the rule of law issues that arise during peacekeeping operations. For example, it is not concerned with strategic issues such as reforming law and order authorities or undertaking constitutional reform. Nor does this paper address the issue of law that peacekeepers must or should apply in peacekeeping operations. That issue is dealt with in the United Nations Secretariat, Report of the Secretary-General: The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc S/2004/616 (3 August 2004). 7 For a historical overview of law and order tasks undertaken by UN peacekeepers, see, for example: Derek William Bowett, United Nations Forces: A Legal Study of United Nations Practice (Stevens Publishing, 1964); Rosalyn Higgins, United Nations Peacekeeping: Documents and Commentary (1969–1981), volumes 1–4; Bruce Oswald, ‘Peacekeeping in Rwanda – A Lawyer’s Experience’ (1996) 70 Australian Law Journal 69; United States Institute of Peace, Building Civilian Capacity for U.S. Stability Operations: The Rule of Law Component (2004), online: (last accessed on 6 August 2006); Mathews Phosa, ‘The Challenges to Multifunctional Peace Support Operations’ in Virginia Gamba and Jakkie Potgieter, Monograph No 8: Multifunctional Peace Support Operations (January 1997), online: (last accessed on 6 August 2006); Siobhan Wills, ‘Military Interventions on Behalf of Vulnerable Populations: The Legal Responsibility of States and International Organisations Engaged in Peace Support Operations’ (2004) 9 Journal of Conflict and Security Law 387.

4


investigate a number of incidents, such as violations of the cease fire, missing personnel and smuggling”.8 Since the UNEF I operation, peacekeepers have increasingly undertaken interim law and order tasks in order to respond to the hostile environment in which they and the local population have been placed, and to comply with their mandates and obligations pursuant to international law.9 Such interim law and order tasks have included: protecting secure or safe areas; providing crowd and riot control; escorting and protecting individuals and convoys; assisting delivery of humanitarian aid and assistance; using force to protect civilians and UN personnel from hostile threats and acts; confiscating weapons and other contraband; restricting the movement of individuals; intervening to stop serious crimes; conducting basic investigations of serious crimes; investigating allegations of gross human rights abuses; detaining individuals accused of committing serious crimes; providing testimony in criminal cases; and, on some occasions, conducting basic judicial proceedings and running interim detention facilities. In Cyprus, for example, UN military police were authorised to take “any Cypriot citizen committing an offence or causing a disturbance on [UN] premises… without subjecting them to the ordinary routine of arrest, in order to immediately hand him to the nearest appropriate Cypriot authorities for the purposes of dealing with such offences or disturbances”.10 In Cambodia, the UN force prevented and dealt with threats to public order and participated in border control.11 In Rwanda, in

8

United Nations Secretariat, Report of the Secretary-General: United Nations Emergency Force: Summary Study of the Experience Derived from the Establishment and Operation of the Force, UN Doc A/3943 (9 October 1958), paras 53–54, 165–166. 9 Undertaking such tasks and functions has usually been justified by relying on the principle of necessity (including self-defence) and/or the mandate for that particular operation. The rules of engagement and standard operating procedures usually spell out the parameters within which such tasks are carried out. 10 Exchange of Letters Constituting an Agreement between the United Nations and the Government of Cyprus Concerning the Status of the United Nations Peacekeeping Force in Cyprus of 31 March 1964, 492 UNTS 57. See also United Nations Secretariat, Report of the Secretary-General, UN Doc S/12946 (1 December 1978), paras 40–41. 11 See, for example, the First Progress Report of the Secretary-General on UNTAC, UN Doc S/23870 (1 May 1992), paras 21 and 29; and the Second Progress Report of the Secretary-General on UNTAC, UN Doc S/24578 (21 September 1992), para 20. See also James A Schear and Karl Farris, ‘Policing Cambodia: The Public Security Dimensions of UN Peace Operations’, in Robert Oakely, Michael Dziedzic and Eliot Goldeber (eds),


5

fulfilling their mandate to contribute to the security and protection of civilians, UN military peacekeepers were authorised by the Force Commander to search, disarm, and where necessary segregate, suspected criminals. They also held civilians accused of genocide in detention until they were handed over to the local district prosecutor, and conducted operations to disarm militias operating in the camps of internally displaced persons.12 In Sierra Leone, peacekeepers have provided security to the Special Court.13 In the Bunia area of the Democratic Republic of Congo (DRC), UN peacekeepers have conducted “routine patrols and held checkpoints in order to prevent common-law offences such as thefts”.14 In January 2006, the UN Stabilisation Mission in Haiti (MINUSTAH) repelled armed members of a gang who were attacking facilities in Port-au-Prince and subsequently arrested a number of people who were looting.15 It is also relevant to note that, in addition to these tasks, many of these peacekeeping operations have been mandated to provide advice and assist in the reestablishment or restoration of the national law and order authorities, including the corrections and court systems. Although not UN operations, it is worth noting that peacekeepers serving with regional arrangements and ‘coalition of the willing’ forces have also undertaken interim law and order functions and tasks. For example, during operations in Kosovo, military personnel serving with the NATO-led Kosovo Force (KFOR) undertook policing and detention management and in the early days, local judges, prosecutors and defence counsel were flown into military premises to review and decide on Policing the New World Disorder: Peace Operations and Public Security (1998) 69, 93 and 95. 12 Bruce Oswald, ‘Peacekeeping in Rwanda - A Lawyer’s Experience’ (1996) 70 Australian Law Journal 69. 13 See Human Rights Watch, ‘Bringing Justice: The Special Court for Sierra Leone. Accomplishments, Shortcomings, and Needed Support’ (2004) online: (last accessed 6 August 2006). The Human Rights Report states (at 32) that one reason UN peacekeepers have provided this security is because the “Sierra Leone army continues to be ‘in no position’ to ensure security”. 14 Yulu Kabamba and Tom Tshibangu, ‘Verbatim of the news conference of Wednesday 19 April 2006’ (2006) MONUC (UN Mission in Democratic Republic of Congo), online: (last accessed on 6 August 2006). 15 See ‘Deux opérations anti-gangs récentes accomplies par la MINUSTAH’ (Press release PIO/PR/244/FRA/2006, UN Stabilization Mission in Haiti, 30 January 2006), online: (last accessed on 6 August 2006).

6


detention.16 In East Timor, the International Force for East Timor (INTERFET) restored and maintained law and order by undertaking a range of tasks including limited investigations into crimes against humanity; the detention of people accused of serious crimes; and review of the status of those detained to ensure accordance with fundamental legal principles.17 The Regional Assistance Mission to Solomon Islands (RAMSI) undertook operations to assist in the provision of security and safety to persons and property; prevent and suppress violence; and support and develop Solomon Islands’ institutions.18 These operations included forcefully disarming locals and investigating allegations of serious crimes. III. KEY ISSUES AND DILEMMAS The challenge for those planning, managing and conducting peacekeeping operations is to decide how best to implement the mission’s mandate where an institutional law and order vacuum exists, while remaining faithful to the basic peacekeeping principles: consent and cooperation; impartiality; legitimacy (including the application of and adherence to the rule of law, particularly international human rights law); and the appropriate use of force. Critically, the issues and dilemmas which arise when implementing a mission’s mandate must balance concerns relating to the primacy of the local criminal system, local customs, and Host State sovereignty. A. Political and Legal Dimensions19 16 For an analysis of the role of KFOR in filling the rule of law vacuum in Kosovo, see Peter Jakobsen, ‘Military Forces and Public Security Challenges’, in Waheguru Pal, Michael Pugh and Singh Sidhu (eds), The United Nations and Regional Security: Europe and Beyond (Lynne Rienner Publishers, 2003), 137. 17 Bruce Oswald, ‘The INTERFET Detainee Management Unit in East Timor’ (2000) 3 Yearbook of International Humanitarian Law 347. 18 Agreement between Solomon Islands, Australia, New Zealand, Fiji, Papua New Guinea, Samoa and Tonga Concerning the Operations and Status of the Police and Armed Forces and Other Personnel Deployed to Solomon Islands to Assist in the Restoration of Law and Order and Security, entered into force 24 July 2003 [2003] ATS 17. See also James Watson, A Model Pacific Solution? A Study of the Deployment of the Regional Assistance Mission to Solomon Islands (2005), Land Warfare Studies Centre, Working Paper No 126, online: . 19 The law applicable to peacekeepers undertaking law and order is based on the authority to carry out the operation. This authority may be founded on a Security Council resolution, a regional arrangement or a multilateral/bilateral agreement. Peacekeepers must also


7

The political and legal dimensions of an operation may vary depending on a myriad of factors – for example, whether the operation is based on a peace agreement, whether the operation is of a consensual nature authorized under Chapter VI of the UN Charter, whether the operation is authorised as an enforcement action under Chapter VII, and the degree to which the operation is able to garner the support and confidence of the local population. Generally the most acceptable method for addressing the institutional law and order vacuum is to do so with the consent of the Host State and with the cooperation of the communities in which the operation is being undertaken. For example, a peace agreement entered into between warring factions may contemplate the use of peacekeepers to restore and maintain law and order in conjunction with local authorities. In other situations, it may be agreed that peacekeepers will mentor the local law and order authorities by providing expertise and resources. Where local authorities refuse to cooperate with a peacekeeping operation, or where local law and order authorities are unwilling or unable to fulfil their responsibilities, peacekeepers will need to consider the extent of the political and legal implications of their involvement more carefully.20 If a much higher degree of interference is to be required of peacekeepers, the political and legal justification for such interference, and its implications, will need to be considered from the perspective of both the Host State and the international community. Where peacekeepers are working jointly with local authorities to carry out law and order functions, they will need to understand what, if any, express and implied limitations have been placed on them. While some peacekeeping operations recognise the primacy of the local law and order

comply with the laws of the Host Nation and their own national law: see, for example, the discussion below accompanying footnotes 31–32. Peacekeepers are also expected to apply the international principles and standards that deal specifically with maintaining law and order: see the discussion accompanying footnotes 33–39. 20 See, for example, the discussion by the Secretary-General in relation to the importance of consent, cooperation and impartiality in his report concerning law and order operations undertaken by UNEF I: United Nations Secretariat, Report of the Secretary-General: United Nations Emergency Force: Summary Study of the Experience Derived from the Establishment and Operation of the Force, UN Doc A/3943, (9 October 1958), paras 53–54 and 165–166. See also the Report of the Panel on United Nations Peace Operations, UN Doc A/55/305 and UN Doc S/2000/809 (21 August 2000) (‘Brahimi Report’). The Panel concurred at paragraph 48 “that consent of the local parties, impartiality and the use of force only in self-defence should remain the bedrock principles of peacekeeping”.

8


authorities and limit peacekeepers to supporting such authorities,21 the mandates for other operations authorise peacekeepers to protect civilian life and property where local authorities are unwilling or unable to do so. Regardless of the relationship between local law and order authorities and peacekeepers, further reflection must be given to such matters as the most effective and efficient lines of cooperation and coordination, and command and control. As one report has stated that “there is no place in today’s complex missions for ‘stovepipe style’ operations, isolationism and the promotion of narrow goals”.22 A related dilemma which frequently arises in peacekeeping operations, particularly where the consent and cooperation of a new regime is fundamental to the success of the operation, is the categorisation of ‘spoilers’. Conflicts between peacekeepers and the new local authorities may arise where there is dispute over whether spoilers should be considered as “political opponents, criminal elements, or military enemies”.23 A more complex question is that of the legal basis for peacekeepers to undertake law and order tasks without the consent of the Host State. If there is no consent, then peacekeepers will need to rely upon operational necessity and a robust mandate. In relation to operational necessity, military peacekeepers may justify undertaking those tasks that are reasonable and necessary for them to maintain a safe and secure environment. Peacekeepers may also rely on express or implied powers to undertake law and order functions. A mandate may, for example, state that peacekeepers are to “provide security and maintain law and order throughout the territory”.24 Where a mandate does not expressly authorise peacekeepers to restore and maintain law and order, the power to do so 21

See, for example, the United Nations Security Council resolutions relating to Sierra Leone, Liberia and Haiti respectively: SC Res 1270, UN Doc S/Res/1270 (22 October 1999), para 14; SC Res 1509, UN Doc S/Res/1509 (19 September 2003), para 3; SC Res 1542, UN Doc S/Res/1542 (30 April 2004), para 7. 22 The Challenges Project, ‘Meeting the Challenges of Peace Operations: Cooperation and Coordination’ (2005), online: (last accessed on 6 August 2006), para 35. 23 Simon Chesterman, You the People: The United Nations, Transitional Administration and State-Building (Oxford University Press, 2004) 112. See also Brahimi Report, above n 21, paras 20, 21 and 51. 24 SC Res 1272, UN SCOR, UN Doc S/Res/1272 (25 October 1999), para 2(a).


9

may be implied by the general tasks given to peacekeepers on that mission. For example, a mandate that requires peacekeepers to create a secure environment for the distribution of humanitarian assistance; or assist with the maintenance of the rule of law, public safety and public order;25 or protect civilians under imminent threat of physical violence;26 should be sufficient to justify their involvement in some law and order functions. There is also a growing recognition that in circumstances where peacekeepers are faced with gross violations of international law (such as genocide, crimes against humanity or war crimes) they may be justified in stopping such violations by exercising law and order powers that are reasonable and necessary. Beyond this, there is a lack of clarity on the extent of peacekeepers’ obligation to protect civilians under imminent threat.27 Regardless of the legal justification used by peacekeepers to restore and maintain law and order, their actions when undertaking law and order functions and tasks must comply with the criminal laws and procedures of the Host State.28 For example, the domestic laws of the Host State will stipulate procedural requirements as to jurisdiction; how criminal procedures are to be commenced; the powers of the police, prosecution, defence and the judiciary to investigate, deal with and try criminal offences; court procedures for certain criminal offences; sentencing powers; and appeal processes and procedures. If peacekeepers do not comply with these and other legal requirements relating to criminal law, 25

SC Res 1542, UN SCOR, UN Doc S/Res/1542 (30 April 2004), para 7. SC Res 1545, UN SCOR, UN Doc S/Res/1545 (21 May 2004), para 5. 27 In this context it is worth noting that the Secretary-General’s High-level Panel on Threats, Challenges and Change has also stated that “in deciding whether or not to authorise the use of force, the Council should adopt and systematically address a set of agreed guidelines, going directly not to whether force can legally be used but whether, as a matter of good conscience and good sense, it should be”: United Nations Secretariat, A More Secure World: Our Shared Responsibility: Report of the Secretary-Generals Highlevel Panel on Threats, Challenges and Change (2004), para 205. 28 The exception to this requirement is where the law of the Host State breaches a universally accepted international norm. For example, UNTAET did not apply Indonesian laws, such as the law on anti-subversion, law on national protection and defence, and the law on defence and security, in so far as those laws did comply with internationally recognised human rights standards. The regulation also abolished capital punishment in East Timor. See Regulation Number 1999/1, UNTAET/REG/1991/1 (27 November 1999) sections 2 and 3. It should also be noted that the national laws of the troop-contributing nation will also apply in circumstances where such laws apply extra-territorially. For a discussion of the application of domestic human rights law extra-territorially, see R (AlJedda) v Secretary of State for Defence [2006] EWCA Civ 327. 26

10


procedure and evidence, the consequences could range from not being able to successfully try a person accused of committing a serious crime, to undermining local confidence in the way that peacekeepers are exercising their powers.29 When not undertaking law and order functions directly, UN rule of law units may be tasked with liaising with other mission and local constituencies to develop a better understanding of the formal and informal criminal justice system. In this context it is important to explore the role that such units may play in facilitating early engagement of local approaches and robust capacity building. By engaging these capacities early, the peacekeeping operation is likely to be in a better position to transfer law and order responsibilities as soon as possible. Needless to say, if rule of law units take on such tasks they will need to be properly resourced and staffed. B. Developing Doctrine and Procedures The international community must continue to develop principles and standards to which peacekeepers should adhere when carrying out law and order functions. In the context of peacekeeping operations, emphasis should be placed on identifying relevant principles and standards that set a ‘best practice benchmark’, rather than focusing only on the minimal standards to be met as a matter of law. International organisations and States must examine more closely the legal obligations and duties arising from undertaking law and order functions and tasks, particularly in light of applicable international standards including those embodied in the International Covenant on Civil and Political Rights (ICCPR)30 and its protocols. More work may be required to translate the principles and standards contained in international instruments such as the ICCPR, Code of Conduct for Law Enforcement Officials,31 Basic Principles on the Use 29

It should be noted that pursuant to the Status of Force Agreements (SOFA) entered into for specific UN peace operations, UN military peacekeepers are “immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity”: United Nations Secretariat, Report of the Secretary-General: Draft Model Status-of-Force Agreement between the United Nations and Host Countries, UN Doc A/45/594 (9 October 1990), para 46. Therefore, any breach of local criminal law and procedure will impact on dealing and trying the accused rather than the criminal liability of the peacekeeper for not complying with local criminal law and procedure. 30 Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). 31 Adopted by General Assembly resolution 34/169 (17 December 1979).


11

of Force and Firearms by Law Enforcement Officials,32 Basic Principles on the Independence of the Judiciary,33 Standard Minimum Rules for the Treatment of Prisoners34 and the Basic Principles for the Treatment of Prisoners35 into doctrine and standard operating procedures which reflect the operational realities faced by peacekeepers. Arguably, a bulletin such as The UN Secretary-General’s Bulletin on Applicability of IHL to UN Forces36 would be extremely useful for setting out fundamental principles and rules that are applicable to peacekeepers conducting law and order tasks. The absence of doctrine to which peacekeepers undertaking such tasks can be held accountable also impacts on the capacity to prepare adequate standard operating procedures, mission-specific rules of engagement and force commanders’ directives, and training regimes. Peacekeepers cannot, and should not, expect that their actions involving the use of force, limiting freedom of movement, and detaining individuals are justifiable solely on the basis of necessity or the fog of peacekeeping. Rather, their actions must be guided by sufficiently detailed principles and standards so that they and the local population are clear about the parameters within which peacekeepers will undertake law and order functions and tasks. C. Classifying and Defining Law and Order Functions In examining the nature and extent of the role that peacekeepers should play in restoring and maintaining law and order, it is important to be clear about exactly what law and order functions and tasks their role might entail. There is some disagreement as to whether tasks such as stopping, searching and questioning suspicious persons; disarming individuals who are not authorised to carry weapons; detaining individuals found to be 32

Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba (27 August – 7 September 1990). 33 Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 (29 November 1985) and 40/146 (13 December 1985). 34 Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) (31 July 1957) and 2076 (LXII) (13 May 1977). 35 General Assembly Resolution 45/11 (14 December 1990). 36 United Nations Secretariat, Secretary-General’s Bulletin: Observance by United Nations Forces of International Humanitarian Law, UN Doc ST/SGB/1999/13 (6 August 1999).

12


committing serious offences, such as murder; conducting cordon and search operations; and restricting the freedom of movement of individuals are law and order tasks or security tasks. The Handbook on United Nations Multidimensional Peacekeeping Operations categorises the following as security tasks, and not law and order tasks: controlling movement and access through checkpoints; providing armed escort for safety and to facilitate access; conducting cordon and search operations; conducting crowd control; and confiscating weapons.37 However, in many States, questioning, searching and detaining an individual, controlling crowds, and confiscating weapons are considered law and order tasks. It may also be argued that the term ‘law’ refers to the functions carried out by the police, judiciary and correction authorities; whereas the term ‘order’ refers to the security functions undertaken by the military. In this way, the words ‘law’ and ‘order’ are used to distinguish between the functions of law enforcement, and those of the military. Similarly, some military commanders view their security responsibilities in the context of the maintenance of public order and seek to avoid any involvement in the prevention and detection of crime.38 Regardless of which approach is taken to categorise the functions and tasks undertaken by military peacekeepers, there is no doubt that on many UN peacekeeping operations they have enforced law and order. More problematic is the fact that effective law and order includes the provision of due process, which involves the prosecution, defence and adjudication of criminal responsibility and imprisonment of offenders in order to protect society. Past experience indicates that searches, arrests and detentions that result only in the eventual release of perpetrators, against whom there is a case to answer, can be particularly detrimental to 37

United Nations Department of Peacekeeping Operations, Peacekeeping Best Practices Unit, Handbook on United Nations Multidimensional Peacekeeping Operations (2003), online: (last accessed on 6 August 2006), 60. However, the Handbook does not identify what tasks are considered to fall into the category of restoring and maintaining law and order: see, for example, at 63. 38 For example, Brigadier General John Castellaw has described how, when pushed to provide military lawyers for investigating atrocities and other civil legal issues in East Timor, he argued that it was the ‘wrong thing to do’ as it is not a military role: Peace Through Law Education Fund, A Force For Peace and Security: U.S. and Allied Commanders’ Views of the Military’s Role in Peace Operations and the Impact on Terrorism of States in Conflict (2002), online: (last accessed on 6 August 2006), 54. Brigadier General Castellaw was a Commander of US Marine Forces in East Timor, 1999–2000.


13

establishing law and order and the rule of law. However, for civilian peacekeepers to undertake independent judicial functions directly raises a number of substantially complex questions, which have only been faced by the UN in the context of executive mandates. A lack of agreement on whether particular tasks are properly considered as security tasks or law and order tasks, and the extent of these, may lead to a number of dilemmas for peacekeepers who are conducting their operation in situations that straddle the divides between security, law and order and justice. These questions include: dealing with individuals where it is unclear whether those individuals are criminals or represent a security threat or both; and providing due process to ensure offenders are dealt with in accordance with accepted legal principles. Furthermore, the failure to develop a common understanding of what is meant by the term ‘law and order’ adds to operational confusion in identifying the extent and precise nature of the institutional law and order vacuum, and who should fill it. D. Capacity and Capabilities Any policy option which intends that peacekeepers fill the rule of law vacuum needs to address issues of capacities and capabilities, utilising, where possible, what is available in the international community, as well as what may be harnessed relatively rapidly within the local community. There is a spectrum of potential options involving military and/or civilian peacekeepers as well as national capacities to address a law and order vacuum. These may require developing both military and civilian capabilities to undertake a range of law and order functions. While one option may depend almost entirely on military peacekeepers undertaking law and order tasks to the extent necessary to ensure that the area of operations is safe and secure, another may have military peacekeepers complementing the work of the civilian law and order organisations (police, judiciary and corrections), undertaking only those tasks for which the civilians lack the capacity or the ability.39 Hybrid approaches, such as the embedding of key civilian police, judicial or detentions expertise, either international or national, within military components or vice versa, 39

Some of the experts interviewed for this paper argued that the international community should focus much more on developing the capacity and capability of gendarmerie type units that could straddle both policing and military tasks, in order to limit the use of military peacekeepers carrying out constabulary or policing duties. Others did not subscribe to the gendarmarie model.

14


may be worth exploring on a more systematic basis. Where the rule of law vacuum is geographically isolated, innovative approaches to draw on national or international capacities through, for example, mobile courts should be examined. Determining which option to use and at what time in any peacekeeping operation may depend on the necessities of the operational environment, including the level of safety and security, the complexity of the law and order tasks, and the will of the national actors and authorities. An interesting case study that might be useful to examine more closely in this context is the approach taken by RAMSI where the multi-national and multi-agency mission was led by the Australian Department of Foreign Affairs and Trade with regional military forces providing security and support in restablishing law and order in the Solomon Islands.40 While the benefits of involving international civilian law and order personnel in the early phase of peacekeeping operations are recognised on the rhetorical level, the reality to date suggests a lack of willingness to address this significant problem outside the context of interim administration missions. Thus, in practice, there have been limitations on the numbers of positions that have been approved by the Security Council, the numbers available to be deployed rapidly, the duration of their deployment, the resources available, and, in some cases, the ability to function in circumstances where the security situation is unstable. These challenges will need to be more effectively managed if the law and order vacuum is to be addressed through civilian capabilities. Some operations have required that police have specialist skills in gathering forensic evidence, dealing with organised crime, and undertaking crowd and riot control tasks.41 Other operations may require psychiatrists, forensic pathologists and anthropologists to assist in investigating and dealing with gross violations of human rights. Most police services do not have personnel with these skill sets in sufficient numbers to release them for service in peacekeeping operations. Similarly, 40

One study of the RAMSI operation has emphasised the need for “developing interagency doctrine of command and control, intelligence assessment and the conduct of combined operations and for the delivery of logistical support”: see Lieutenant Colonel John Hutcheson, ‘Helping a Friend: An Australian Military Commander’s Perspective on the Regional Assistance Mission to the Solomon Islands’ (2005) 2(2) Australian Army Journal 47, 54. 41 See, for example, Michael Dziedzic, ‘Policing from Above: Executive Policing and Peace Implementations in Kosovo’, in Renata Dwan (ed), Executive Policing: Enforcing the Law in Peace Operations (Oxford University Press, 2002).


15

trying to find judges to serve in such operations with the necessary knowledge and experience, to deal with the types of legal problems that are likely to arise, is also difficult in a short timeframe. Furthermore, the extent and nature of the institutional law and order vacuum may be unclear prior to deployment, and this may impact on the types and skills of law and order authorities needed and available at short notice. These realities have often led civilian peacekeepers to limit the carrying out of law and order functions to the most essential tasks (such as monitoring and reporting violations), or to an expectation that military peacekeepers must undertake some law and order functions on an interim basis until sufficient local or international personnel and resources are available to take over such tasks. Due to political, resource, training and organisational limitations, it is generally accepted that the more complex the law and order functions, the less appropriate it is for the military to undertake those functions. Generally, military peacekeepers advise that they are neither trained nor resourced to undertake complex criminal investigations and evidence collection; investigate past atrocities; or perform constabulary duties such as dealing with property disputes, minor crimes or the arrest of petty criminals. Holding people in detention for long periods of time or providing a functioning judicial system that is adequately resourced with judges, prosecutors, defence lawyers and court administrators are roles that are also beyond the training and resource capacities of most military forces. In addition, some military personnel express concern about diverting valuable resources to developing skills and expertise in fields which are not usually relevant to the conduct of combat operations, and some commanders see such tasks as detracting from more traditional military functions. Many military, legal and human rights experts consider that undertaking such tasks sends the wrong message to the local population regarding the role of military peacekeepers and the role of the military generally. Military experts generally agree that providing an interim solution to maintaining law and order in a very limited sense is necessary, but emphasise that they are not suited to such functions, and that the longterm solution to law and order problems is not a military responsibility. They remain concerned that the interim solutions peacekeepers provide

16


might create unreasonable demands and expectations and that such demands and expectations could lead to ‘mission creep’.42 In this regard, training and devoting more resources to providing military peacekeepers with the means and methods that permit them to graduate their responses when carrying out law and order tasks should be a priority. Training in negotiation techniques and the use of non-lethal weapons may be appropriate. The deployment of riot control equipment, and appropriate materials to set up road blocks and checkpoints should also be considered. The use of techniques which do not require the use of force, such as static observation posts, patrols, curfews and information campaigns, will also assist in ensuring that peacekeepers do not have to resort to force when undertaking law and order tasks. At the very least, peacekeepers must be trained in the fundamental principles relating to the use of force when undertaking law and order functions and tasks.43 E. Methodologies Any short-term approach for a peacekeeping operation to deal with criminal threats that arise in a law and order vacuum should be consistent with longer-term strategies for strengthening the rule of law in the Host State. While these longer-term approaches are well beyond the scope of this paper, a few reflections are appropriate on the relation of short-term approaches to address the law and order vacuum with the much broader question of rule of law reform. It is now generally accepted that any participation in the restoration and maintenance of the rule of law on the part of peacekeeping operations must avoid a ‘one size fits all’ strategy. Consequently, planners and managers of peace operations must consider maintaining a case by case strategy while keeping in mind some fundamental principles and norms. In each operation, a different emphasis may need to be placed on each of the following: the primacy of the local criminal system; support for domestic reform constituencies; assistance in building the capacity of national justice or sector institutions; and facilitating national consultations on 42

The term ‘mission creep’ is used in this paper to describe situations where a commander or subordinate undertakes tasks beyond that specified or implied by, or essential to, the mandate given to the force, unit or sub-unit. In such situations the commander or subordinate is likely to be exceeding their authority. 43

These principles should include the need for legitimacy, necessity, proportionality / minimum force and accountability.


17

justice reform and transitional justice.44 These should all fit into a nationally-led strategy for strengthening the rule of law. In order to get the balance right, a holistic approach to planning, managing and conducting the operation must be taken. In this context, planners and managers should ideally develop operations to address an institutional law and order vacuum in the context of an overall, long-term plan to support the strengthening of the rule of law. A holistic approach would require effectively and efficiently identifying the particular needs of the Host State, and the corresponding capabilities of the peacekeeping operation. Such mapping will be useful to those planning both short and long-term approaches, and provide answers to the following questions: • • • • •

To what extent, if any, does the Host State suffer from an institutional law and order vacuum? Does that vacuum exist equally across the nation, or does it differ regionally? Which aspects of that law and order vacuum need to be addressed? Which of those aspects should be given priority? What types of resources, personnel and skills would be required in order to address those aspects of the vacuum?

This exercise will also require the identification of the capabilities of local law and order institutions (both formal and informal) including: the state of detention facilities; the laws and customs that are applied; and any local resources or skills that could be tapped into quickly and effectively. Information on the role that regional and neighbouring States may be able to play should also inform the process. Such an approach will allow those planning a peacekeeping operation to make informed judgments as to the temporal and geographical scope of the operation and the capacities it will require. It is particularly important to develop methods for identifying the specific political, diplomatic, legal, military and other concerns which may arise during the operation so that such concerns are properly addressed right from the planning stage. This is essential to managing the expectations of the local community by ensuring that peacekeepers are not given tasks that they cannot fulfil legitimately, 44

United Nations Secretariat, Report of the Secretary-General: The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc S/2004/616 (3 August 2004), summary.

18


effectively and efficiently. When addressing the institutional law and order vacuum in the short-term, those planning and managing operations must remain focused on handing over such functions to the local authorities as soon as those authorities are capable and willing to carry them out. Furthermore, such planning will also be relevant to developing shortterm and long-term strategies to ensure better cooperation and coordination within the UN and between the broader international community (such as regional organisations, bilateral and multilateral donors, international organisations, aid agencies and non-governmental organisations) and the local population. Allowing for coordination and cooperation will therefore avoid confused command and control structures, gaps in filling the law and order vacuum, duplication of effort, and a waste of resources. IV. CONCLUSION Experts interviewed during the preparation of this paper generally agreed that it is inevitable that peacekeepers will be called upon to restore and maintain law and order in most, if not all, future peacekeeping operations. They also agreed that military peacekeepers in most peacekeeping operations will play a fundamental role in restoring and maintaining law and order at least until the time delays and limited resources available to the international community for deployment of appropriately skilled and qualified civilian police, judges and correction officers are addressed. A general consensus existed that any law and order functions undertaken by military peacekeepers should be limited to what is absolutely necessary to create a safe and secure environment, and should only be undertaken on an interim basis. It was also felt that if the military could provide the ‘security space’, civilian peacekeepers would be able to ‘get on with’ restoring and maintaining police, judicial and corrections functions. In light of the issues and dilemmas explored in this paper, it is recommended that DPKO, UN Member States and other interested organisations further examine and elaborate upon the strategies and options available for addressing the institutional law and order vacuum. As a result, an agreed policy should be developed that can allow for the appropriate balancing between the capacity and capabilities that exist in any given area of operations, and the political and legal dimensions of that particular operation. More specifically, the international peacekeeping community should consider developing a set of agreed rules and guidelines which can be used by those responsible for planning, managing and


19

conducting peacekeeping operations to address the institutional law and order vacuum in the most appropriate manner.