Siobhán Wills is Professor of Law at the University of Ulster, Northern Ireland.
I have been researching the peacekeeping operation in Haiti, MINUSTAH, and in doing so coming up against a problem that I would appreciate the thoughts of EJIL:Talk! readers on. There have been a number of incidents that have raised complaints of excessive use of force and counter arguments that the force was not excessive. My query is simply ‘what law applies’ to the peacekeeping mission (in particular in the context of the use of force) given that there is not, and never was, an armed conflict in Haiti. When the Security Council authorises use of force (whether in an enforcement action against a State or in a peacekeeping operation) I assume that the coalitions of the willing or UN troops undertaking the action must exercise their authority to use force in accordance with international law. But if there is no armed conflict what law governs peacekeepers’ use of force under Chapter VII?
Reports and commentaries by MINUSTAH personnel suggest that the commanders of MINUSTAH, and their political advisors at the UN, and advisors from the US, France and Canada, believe that since MINUSTAH has a Chapter VII mandate they can use whatever force they deem necessary to carry out that mandate so long as they comply with their Rules of Engagement (ROE). However, presumably the ROE must be drafted to fit within the constraints of the applicable international law framework. MINUSTAH’s ROE are not publicly available but the language used in MINUSTAH reports and commentaries suggests that International Humanitarian Law (IHL) is the overall governing framework within which the mission believes it ought to be operating. (Certainly mission personnel do not appear to be thinking within a Law Enforcement framework and frequent references to ‘collateral damage’ suggest an IHL framework). This would not be surprising since IHL is the law in which peacekeepers are primarily trained ie when peacekeepers initiate use of force they do so within a legal framework (they don’t make up their own rules just because they have a Chapter VII mandate) and that framework is normally IHL.
I have not spoken to anyone from MINUSTAH but I have spoken to commanders that have served in UN peacekeeping missions in other countries where there is no armed conflict (UNMIL in particular) and their view is that, regardless of whether or not there is an armed conflict in the country to which they are deployed, if the mission has a Chapter VII mandate it may use whatever force is necessary to carry out that mandate; and when the mission does use force for this purpose IHL becomes applicable to that particular operation.
I have sympathy for commanders trying to carry out their tasks under a Chapter VII mandate in a violent and volatile situation; but I do not understand how (or on what basis) IHL can be applicable where there is no armed conflict.
The Secretary-General’s 1999 Bulletin on ‘Observance by United Nations forces of international humanitarian law’ states that IHL is applicable ‘to United Nations forces when in situations of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement.’ I am not aware of any UN guideline suggesting that IHL might also apply in other circumstances.
For there to be an armed conflict there must be identifiable parties to the conflict. Gangs with a fluid membership carrying out criminal activity are not parties to an armed conflict however violent their activities. The Geneva-based Rule of Law in Armed Conflicts Project (RULAC) states that there is no armed conflict in either Haiti, or Liberia, and that IHL does not apply in those countries. In contrast RULAC states that it is unclear whether there is an armed conflict in Mexico: it depends on whether or not the criminal armed groups in Mexico are parties to an armed conflict, and there are differing views on that. There is no such controversy in relation to Haiti or Liberia. Some situations have been regarded as armed conflicts by at least some commentators even though the governments of the countries concerned have not acknowledged the existence of an armed conflict eg situations in Chechnya and in Northern Ireland: but the situation in Haiti is not one of these. There appears to be consensus that there is no armed conflict (de jure or de facto) in Haiti. Since MINUSTAH is not deployed in a ‘situation of armed conflict’ IHL does not apply (at least according to the Secretary-General’s 1999 Bulletin on the issue).
Acting under Chapter VII the Security Council, in resolution 1542 (2004), authorised MINUSTAH to undertake a range of tasks including ‘in support of the Transitional Government to ensure a secure and stable environment in Haiti within which the constitutional process can take place.’ MINUSTAH is also mandated to promote and protect human rights. The Preamble to SC/RES1542 ‘urges the Transitional Government to take all necessary measures to end impunity and to ensure that the continued promotion and protection of human rights and the establishment of a State based on the rule of law and an independent judiciary are among its highest priorities.’ This is the only reference in the resolution to ‘all necessary measures.’ There is no authorisation to MINUSTAH to use all necessary means/measures. MINUSTAH’s mandate has been repeatedly renewed and expanded (with increasing emphasis on security).
If MINUSTAH was deployed in a classic enforcement action against a State presumably IHL would apply when force is used (the UN mission and the target State would be the parties to the conflict). But MINUSTAH is a Chapter VII peacekeeping mission deployed, with the consent of the government, (albeit given in controversial circumstances) to a situation where there are no parties to an armed conflict. So what law applies when MINUSTAH uses force; and does the same (international) law apply to criminals that respond with force against MINUSTAH? Is the law governing use of force by MINUSTAH the same or different from the law governing the use of force by the Haitian government?
My understanding is that as a general rule IHRL applies all the time and IHL applies in armed conflicts. If there is an armed conflict some rules of IHRL may have to be interpreted through the lens of IHL; but if there is no armed conflict IHRL applies without modification by IHL. The exact rules that are applicable will depend on which treaties have been ratified; but customary law applies regardless.
If so, since there is no armed conflict in Haiti, when the Haitian government deals with criminals it must do so within a law enforcement paradigm: customary IHRL is applicable. (In addition Haiti is a party to the ICCPR, ICERD, CEDAW and the CRC). Under customary IHRL an operation to kill a gangster is not permitted. Using force in self-defence would be lawful, and force would probably also be permitted if it is necessary to effect an arrest or to quell a riot; provided that the force used is no more than is absolutely necessary (in contrast to the robust self-defence norm in which most peacekeepers are trained). Moreover the collateral damage concept (which is an integral factor in the application of the core IHL rules of distinction, proportionality and precautions in attack) has no relevance to law enforcement. In a law enforcement situation accidental deaths of non-criminals that could not be foreseen would not entail a breach of IHRL unless the officer was negligent. But outside of IHL there is no principle that I am aware of that allows a commander/officer, when planning an operation, to weigh up the lives of innocent non-civilians that might be killed or injured, against the ‘military advantage’ to be gained by forcefully arresting the criminal; and in doing so allow for some innocent peoples’ deaths to occur provided that these are not excessive in relation to the military advantage to gained. (It would be quite worrying if governments did have this authority.) Hence undertaking an operation to arrest a criminal in an area full of innocent people, knowing that the criminal will use force to resist and that innocent non-criminals will almost certainly die, should be avoided unless it is absolutely necessary (in contrast to the IHL standard which permits casualties provided that these are not excessive in relation to the military advantage to be gained from carrying out the operation). An only if ‘absolutely necessary’ standard where operations are virtually certain to result in loss of innocent life, might make it difficult for the Haitian government to clear criminals from their patches since the criminals live and operate in densely populated urban areas and peoples’ houses are comparatively flimsy (eg Cité Soleil).
What about MINUSTAH? Unless the SC resolution specifically states that IHL shall apply to operations carried out by the mission I do not see any legal (as distinct from practical) reason why a Chapter VII peacekeeping mission would not be bound by the general rules of international law governing use of force (ie IHL applies in armed conflict only; IHRL applies all the time): all the more so if, as is the case with MINUSTAH, the mandating resolutions do not use classical enforcement language such as an authorisation to use ‘all necessary means.’ There are issues with regard to extra-territorial jurisdiction in relation to IHRL treaties; but customary IHRL (especially in relation non-derogable rights such as the right to life) is not subject to the same constraints. It would seem then that if there is no armed conflict IHL does not apply and customary IHRL does (some treaty based IHRL may also apply).
To me this is all extremely difficult. Peacekeepers are trained as soldiers not law enforcement officers and arguably a Chapter VII mandate envisages some robust use of force. The kind of mandates peacekeeping missions are given today may be impossible to implement under an IHRL regime. But can the Security Council implicitly authorise use of IHL instead of IHRL in situations where there is no armed conflict (in contradiction to the terms of the UN’s own Bulletin on the matter) merely by stating that it is ‘acting under Chapter VII’? Is this not undermining the right to life obligations owed to innocent non-criminals by putting them potentially in collateral damage category as if their country was at war or embroiled in a civil war when all authorities are in agreement that it is not? [Whilst most people in Haiti would doubtless want to see an end to violence the people most likely to be killed in an operation to ‘take on’ the criminals, are poor; the people keenest that the criminals be ‘taken on’ are members of the business community, Haitian elites and foreigners, most of whom would not be living in those areas. The USA and Canada put strong pressure on MINUSTAH to ‘take on’ the criminals.]
If IHRL is the applicable regime are peacekeepers being trained for this and are the mandates realistic? The peacekeepers that I have spoken to believe that in general IHRL is applicable to some matters (they are unwilling to hand over detainees where there is a likelihood of torture for example) but in relation to use of force to carry out a Chapter VII mandate they regard any suggestion that just because there is no armed conflict in places like Haiti and Liberia, the governing paradigm for UN operations there is IHRL, as ‘idiotic’ (and other considerably more colourful descriptions).