The recent attack by a militia on the United Nations mission in the Democratic Republic of the Congo, in which seven peacekeepers were killed, highlighted a question that the Security Council has hesitated to confront for years. What are the consequences when UN peacekeeping missions become parties to the conflict?
The Security Council responded to the latest attacks on Monusco, as the mission in the Congo is known, by reiterating that deliberate attacks targeting UN peacekeepers may constitute war crimes under international law. A year ago, UN Secretary-General António Guterres used similar language after an attack by a militia killed 17 Monusco peacekeepers.
In a statement responding to this month’s killings, however, the secretary-general made no reference to possible war crimes. Was this merely an “oversight,” as his spokesperson said later?
The UN recognized that Monusco had become a party to the conflict as early as 2013. Any military component of a peacekeeping operation may, in defending itself or in carrying out its protection of civilians mandate, become engaged in sustained or intensive armed hostilities. In Monusco’s case, this possibility was inevitable. Its mandate calls for enforcement action against named armed groups and authorizes its force intervention brigade, or FIB, to take targeted military action against them.
When Monusco became a party to the armed conflict in the Congo, its military contingents — including but not limited to the FIB — lost their protected status under international humanitarian law and became legitimate military targets. As such, attacks on Monusco’s military contingents by the armed rebel groups were no longer necessarily war crimes.
In the ever-evolving realities of UN peacekeeping, the consequences of becoming a party to a conflict within the meaning of international humanitarian law must be transparently acknowledged and clearly understood — in operational as well as legal terms.
Let’s consider the effect on the protection of civilians. If an attack on Monusco troops is lawful, then any proportionate loss of civilian life incidental to such an attack is also lawful. It is therefore imperative to take measures, as Monusco surely does, to ensure that its presence and positioning do not pose a threat to the very civilians its troops are deployed to protect.
This brings us back to the Security Council’s pronouncements. Although attacks on Monusco troops may now be legal under international humanitarian law, they continue to be “penalized” by the Security Council under its Chapter VII sanctions regime in the Congo. While continuing to impose such sanctions on the armed groups conducting attacks against Monusco in the Congo is well within the Council’s prerogatives, it should stop referring to such attacks as possible war crimes.
Monusco may not be alone in losing its protected status under international humanitarian law. Peacekeeping operations in other hostile areas are similarly pressured to take robust and even aggressive action. Consider the high-threat operating environments facing other UN missions in Africa: Mali, the Central African Republic and South Sudan. There is an increased likelihood of each of these missions becoming a party to the armed conflicts in those countries, if they are not already engaged so now.
The changing nature, intensity, scale and duration of UN military actions may also trigger the loss of protected status.
Finally, the provision of material support to the military operations of the host-country forces or parallel forces operating in the countries in which they are deployed not only violates the principle of impartiality but may also render a UN peacekeeping mission a party to the conflict.
In 1999, the secretary-general at the time, Kofi Annan, issued a bulletin confirming the applicability of international humanitarian law when UN peacekeepers become actively engaged as combatants in armed conflicts. The Secretariat — the policymaking heart of the UN — should consider updating the bulletin on its 20th anniversary.
In light of the legal and practical consequences of the new realities on the ground, it is imperative that these issues and realities be addressed anew with greater clarity, transparency and urgency.
The lives of UN peacekeepers and civilians alike are at stake.
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Mona Ali Khalil is an internationally recognized public international lawyer with 25 years of UN and other experience, including as a former senior legal officer in the UN and in the IAEA, with expertise in peacekeeping, peace enforcement, disarmament and counterterrorism. She holds a B.A. and an M.A. in international relations from Harvard University and a master’s in foreign service and a J.D. from Georgetown University. She is an affiliate of the Harvard Law School Program on International Law and Armed Conflict and a nonresident fellow at the UN Institute for Disarmament Research. She is the Founder and Director of MAK LAW INTERNATIONAL, a legal advisory and strategic consulting service, assisting governments and intergovernmental organizations in the service of “We the Peoples.”