By Nicholas Serafin

Just War Theorists have traditionally argued that combatants are moral equals, each permitted to kill their opponent regardless of the justice of their wars.  Recently, this position has been challenged by ‘revisionist’ just war theorists, who hold that only combatants who fight in justified wars are permitted to kill. This view is often thought to be in deep tension with the law of war, and revisionist theorists are divided on the issue of what the legal implications of their view should be. However, in at least one area – the application of the law of war to United Nations Chapter VI peacekeeping operations – international law takes on a revisionist cast.

As I shall discuss for the remainder of this post, I believe that this narrow area of international law provides a useful test case for thinking about some of the perils and promises of moving toward a more revisionist law of war.  More specifically, I believe that the attempt to apply revisionist legal principles to UN peacekeepers reveals that a more broadly revisionist law of war is unlikely to benefit combatants or civilians.

The general question of whether the law of war applies to UN forces has a tangled history, and much of the early debate surrounding the answer to this question foreshadows the current debate between traditionalist and revisionist just war theorists.  From the outset some resisted straightforwardly applying all aspects of the law of war to UN peacekeepers, for this would require that UN peacekeepers be treated as traditional combatants.[1]  As traditional combatants, UN peacekeepers would be legally permitted to kill; but, importantly, they would also be legally liable to attack by opposing forces.  Legally permitting opposing combatants to kill UN peacekeepers, the argument goes, runs counter to the pacifying role that UN peacekeepers typically take on, which seems more akin to domestic law enforcement.  As one legal theorist argued, “for as the law in contests between police officials and gangsters is on the side of the police officials, so is the law on the side of United Nations enforcement action against an aggressor.”[2]  Others, however, argued for the complete application of the law of war to UN peacekeepers, given the humanitarian benefits that, it is claimed, follow from the requirement that all sides obey the law of war in its entirety.[3]

“the attempt to apply revisionist legal principles to UN peacekeepers reveals that a more broadly revisionist law of war is unlikely to benefit combatants or civilians.”

In addition to the legal uncertainty, the ambiguity surrounding the status of UN peacekeepers is also due to the fact that UN officials have been resistant to stating clearly whether or not peacekeepers must abide by the Geneva Conventions.  For example, during the Korean conflict of 1950 the International Committee of the Red Cross wrote to the United Nations, requesting that UN forces abide by the Geneva Conventions.[4]  When asked whether or not he would do so, General Douglas MacArthur, Commander of the UN forces, acknowledged a specific obligation to abide by Common Article 3, which calls for the human treatment of prisoners of war.  Yet he claimed to have neither the authority nor the means to ensure that the remaining provisions of the Geneva Conventions would be enforced.[5]  Indeed, even the commitment to Common Article 3 would go unfulfilled.[6]

For the next forty years the UN would remain ambivalent regarding the application of the law of war to UN peace operations.  Finally, however, during the 1990s the UN clarified (to some extent) the place of the law of war in peace operations.  On the one hand, it is now clear that the law of war applies in full to peacekeepers under UN authority when engaged in a “peace enforcement” operation.  Peace enforcement operations fall under the mandate of Chapter VII of the UN Charter and typically feature the deployment of traditional military forces.  As then-Secretary-General Kofi Annan stated in a 1999 Secretary General’s Bulletin, the law of war is fully applicable “in enforcement actions, or in peacekeeping operations when the use of force is permitted in self-defence.”[7]  Peacekeepers on such missions are thus legally liable to attack by opposing forces.  At least with regard to Chapter VII missions, there is no remaining uncertainty on this point.

However, Annan also noted that his statement “does not affect the protected status” of members of certain other peacekeeping operations.[8]  Annan was referring to the fact that in some cases, namely, Chapter VI missions, peacekeepers are legally afforded a distinctive status, a status that lies somewhere between civilian and combatant.  Traditionally, Chapter VI missions have attempted to resolve disputes peacefully in order to preempt a resort to the use of force (as opposed to Chapter VII missions, which are typically militaristic responses to breaches of international peace).  The unique status granted to Chapter VI peacekeepers is derived from two documents: the 1994 Convention on the Safety of United Nations and Associated Personnel and the 1998 Rome Statute of the International Criminal Court.  The Safety Convention requires that each State Party criminalize the murder, kidnapping, or attacking of United Nations and associated personnel, including “persons engaged or deployed by the Secretary-General of the United Nations as members of the military, police or civilian components of a United Nations operation.”[9]  State Parties are obliged under the terms of the Convention to “prosecute or indict” those within the state’s territory suspected of violating the convention.[10]  According to the Rome Statute, attacks on peacekeepers are illegal so long as peacekeepers “are entitled to the protection given to civilians or civilian objects” under the law of war.[11]

“in at least one area – the application of the law of war to United Nations Chapter VI peacekeeping operations – international law takes on a revisionist cast.”

The Safety Convention and the Rome Statute criminalize attacks upon UN and humanitarian personnel and threaten violators with extradition and prosecution.  Both devices are limited, however, to situations in which UN personnel are not engaged in combat.  In other words, the Safety Convention and the law of war are mutually exclusive: where the Convention applies, UN personnel are immune from attack, and those who attack UN personnel are criminals.  By contrast, UN personnel engaged in combat are not entitled to the protection given to civilians, and so attacking UN personnel is not a criminal violation in these circumstances.  Combatants who attack UN personnel during combat cannot be prosecuted under the statute.

This hybrid legal regime came about in part as a response to the rise of “robust” Chapter VI missions.  Broadly speaking, in robust Chapter VI missions, such as UNIFIL in Lebanon and MONUSCO in the Democratic Republic of the Congo, UN forces deployed with a mandate geared towards self-defense are nonetheless permitted to take a more “proactive” approach toward enemy belligerents.[12]  In practice this means that during robust Chapter VI missions it is possible, in some cases likely, that peacekeeping forces will become involved in a level of combat that, ordinarily, would fall under the scope of the law of war.[13]

The reasoning behind the Safety Convention and the Rome Statute illuminates the precarious balance that must be struck between criminal law enforcement and the law of armed conflict.  Negotiators to the Safety Convention believed that an overlap between the Convention and the law of war would lead to UN personnel fighting as combatants while being immune to attack, which might weaken the protections afforded by the Geneva Conventions.  Negotiators therefore refrained from criminalizing attacks on UN personnel in all cases, for they feared that this would “lessen the willingness of opposing forces to adhere to the laws of war.”[14]  Negotiators feared that, faced with criminal charges for attacking peacekeepers, opposing forces would view the law of war as fundamentally lopsided and so would be disinclined to exercise any form of restraint.  By allowing UN personnel to be attacked when engaged as combatants, the negotiators sought to preserve the principle of combatant equality, which they considered to be fundamental to the restraining effect of the law of war.

Thus far, it is unclear that this hybrid legal regime has had much practical effect.  Nevertheless, there are good reasons to worry about its implementation.  Under the current regime, peacekeepers on robust Chapter VI missions are granted civilian protection from attack while being afforded the combatants’ privilege to use force consistent with the law of war.[15]  But to receive this protection, peacekeepers must qualify as civilians.  There are good reasons to doubt, however, that peacekeepers can realistically move between these statuses in a manner that is consistent with other aspects of the law of war.  For instance, in order to regain civilian status, organized groups of combatants must cease to assume their continuous combat function.  This would require, among other things, that UN peacekeepers discard their uniforms and weapons and effectively disband.  Meeting this requirement would almost certainly undermine any prolonged peacekeeping operation.  Ultimately, then, it seems as peacekeepers on robust Chapter VI missions occupy a limbo of sorts within the law of war.

I believe that the protected status currently granted to Chapter VI peacekeepers approximates what a revisionist law of war might look like: just combatants, under such a regime, would be legally permitted to attack unjust combatants, whereas unjust combatants would risk legal punishment were they to attack just combatants.[16]  But note that this would require the creation of an entirely novel legal category.  This is because the laws of war that grant immunity from attack to civilians could not simply be applied to just combatants; as we saw above, such laws demand that combatants lay down their arms in order to receive protection.  There would thus need to be a special legal category for just combatants, distinct from unjust combatants and civilians alike.

While this may not seem immediately problematic, it also bears noting that a revisionist law of war would have to supplement, not replace, traditional law of war.  This is because presumably there will continue to be wars in which both sides fight for an unjust cause; in such cases, traditional law of war might still play an important role in restraining both sides. Additionally, it is plausible to suppose that even just combatants will sometimes violate jus ad bellum or jus in bello and so forfeit their protected status.  A revisionist law of war would thus require criteria by which to discriminate between unprotected civilians and unprotected combatants as well as between protected civilians and protected combatants.  Moreover, it would also require criteria for ascertaining when just combatants forfeit their protected status.

If a revisionist law of war were to succeed in reducing the moral cost of war, it would require answers to these questions that can be realistically applied on the battlefield.  My point in this short post is not to suggest that such answers cannot be found but rather to indicate the scope and complexity of a law of war that takes on board revisionist moral insights.  My suspicion is that a law of war with this level of complexity would have substantially less restraining force than the traditional law of war.  But this argument I must leave for future consideration.

[1] William J. Bivens.  Restatement of the Laws of War as Applied to the Armed Forces of Collective Security Arrangements.  The American Journal of International Law, Vol. 48, No. 1 (Jan., 1954), pp. 140-145.

[2] Id. 141.

[3] Howard J. Taubenfeld. International Armed Forces and the Rules of War. The American Journal of International Law. Vol. 45. No. 4 (Oct., 1951), pp. 671-679, 676.

[4] Daphne Shraga, Current Development: UN Peacekeeping Operations: Applicability of International Humanitarian Law and Responsibility for Operations-Related Damage, 94 AJIL 406, 406 (2000).

[5] Murphy, Ray.  United Nations Military Operations and International Humanitarian Law: What Rules Apply to Peacekeepers? 14 Criminal Law Forum 153, 180 (2003).

[6] Owen Bowcott, US Troops Violated Geneva Convention, The Guardian, January 2, 2003, available at http://www.guardian.co.uk/uk/2003/jan/03/northkorea.usa

[7] ST/SGB/1999/13

[8] Id.

[9] U.N. Safety Convention Para. 2 Art 2.

[10] Id.

[11] Rome Statute Art. 8 para. 2.

[12] Jean-Marie Guéhenno, “Robust Peacekeeping: Building Political Consensus and Strengthening Command and Control,” in Robust Peacekeeping : the Politics of Force (New York: Center on International Cooperation, November 2009), p. 48.

[13] Bloom, Evan.  Protecting Peacekeepers: The Convention on the Safety of United Nations and Associated Personnel. 89 AJIL 621, 625 (1995).

[14] Bloom supra at 625.

[15] Keiichiro Okimoto, Violations of International Law by United Nations Forces and Their Legal Consequences.  Yearbook of International Humanitarian Law. Vol. 6., (2003), pp. 199-136.

[16] For a view of the law of war along these lines, see Rodin, David. “Morality and Law in War,” in H. Strachan and S. Scheipers, eds., The Changing Character of War, Oxford University Press, (2011), pp. 446–63.

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