HUMANITARIAN AND SECURITY LAW F
Lecture 8: CAPITA SELECTA: PEACE OPERATIONS WITH HANNA BOURGEOIS
LECTURE 8: CAPITA SELECTA: PEACE OPERATIONS WITH HANNA
BOURGEOIS
INTRODUCTION
► Although we have had many peace operations, there is still debate about the legal
framework.
► Origins of Peace Operations
o Art. 43 UN Charter:
1. All Members of the United Nations, in order to contribute to the
maintenance of international peace and security, undertake to make
available to the Security Council, on its call and in accordance with a
special agreement or agreements, armed forces, assistance, and facilities,
including rights of passage, necessary for the purpose of maintaining
international peace and security.
2. Such agreement or agreements shall govern the numbers and types of
forces, their degree of readiness and general location, and the nature of
the facilities and assistance to be provided.
3. The agreement or agreements shall be negotiated as soon as possible
on the initiative of the Security Council. They shall be concluded between
the Security Council and Members or between the Security Council and
groups of Members and shall be subject to ratification by the signatory
states in accordance with their respective constitutional processes.”
o Never materialized, because MSs failed to agree on their contributions
=> UNSC cannot oblige states to undertake measures.
► Alternative actions (based on the voluntary cooperation of MSs = consensual
military option to contribute to military security):
o Peacekeeping operations: Conducted by the UN itself
Difference with the envisaged Art. 43 is that there must be agreement by
the host states + consent of MSs to contribute with armed forces/facilities.
“Blue helmets” – operate under the operational control and command of
the UN.
o Military action: conducted by States or regional organizations/
arrangements as authorized by the UN.
1
, HUMANITARIAN AND SECURITY LAW F
Lecture 8: CAPITA SELECTA: PEACE OPERATIONS WITH HANNA BOURGEOIS
Difference with Art. 43 is that UNSC authorizes MSs to undertake actions
and does not oblige them.
Up to the State/Organization to carry out the mission.
► Distinction between1:
o Enforcement operations
Sustainable full-scale operations (i.e., full-scale warfare) directed against a
State – authorized by the UNSC.
o Peace enforcement operations.
Similarly, to enforcement operations operate under Chapter VII BUT
involve only limited combat (NOT full-scale warfare).
In support of government or transitional authority in order to establish a
protected environment.
Usually proactive use of force.
o Peacekeeping operations
Require consent + no use of force beyond self-defense + impartiality
during operation (difference from peace enforcement operations).
► Despite blurring, peacekeeping operations are guided by the 3 principles
above, while in peace enforcement, they are not necessarily maintained.
► Used terminology will be Peace Operations – which abide by the principles of
consent, impartiality and non-use of force except in self-defence (and defence of their
mandate):
o UN Peace Operations2
o Peace Operations Conducted by States or Regional
Organizations/Arrangements
1
Scholars disagree on the distinctions => no unanimous consent. => Blurring especially between
peace enforcement and peacekeeping operations. Peacekeeping operations were traditionally
used to maintain peace after a ceasefire. Many recent peacekeeping operations, however, have to
operate within unstable intra-state environment. As a result the UNSC has made three important
changes => Peacekeeping operations are no longer only a buffer between forces => They also
promote a stable environment, maintain public order, provide humanitarian assistance, and
protect civilians for violations of IHL. The UNSC also started using Chapter VII UN Charter (which is
associated with coercive measures against the consent of the State). There has also been a change of
wording in peacekeeping mandates (e.g., “permitted to take all actions necessary”) => those terms
were usually kept solely for non-peacekeeping operations.
2
More multidimensional = not only peacekeeping, but also peacebuilding (UN itself changed the
terminology)
2
, HUMANITARIAN AND SECURITY LAW F
Lecture 8: CAPITA SELECTA: PEACE OPERATIONS WITH HANNA BOURGEOIS
GENERAL LEGAL FRAMEWORK
► Emerging questions which can only be answered by looking at the General
Legal Framework.
► Rules providing for a legal basis for the Peace Operation:
o I.e., rules governing the establishment of the peace operation, but also the
deployment.
o External Legal Basis (General International Law and the UN Charter)
Principle: Prohibition on the use of force (Art. 2(4) UN Charter)
Exceptions: Self Defence (Art. 51 UN Charter) or UNSC Mandate under
Chapter VII
No Violation: Intervention by invitation (Consent of Host State)
External Mandate can be given by:
Host State (Consent)
Competent International Organisation (Usually UNSC; UNGA in
certain cases, but there were also always consent).
Two main functions of the mandate:
3
Lecture 8: CAPITA SELECTA: PEACE OPERATIONS WITH HANNA BOURGEOIS
LECTURE 8: CAPITA SELECTA: PEACE OPERATIONS WITH HANNA
BOURGEOIS
INTRODUCTION
► Although we have had many peace operations, there is still debate about the legal
framework.
► Origins of Peace Operations
o Art. 43 UN Charter:
1. All Members of the United Nations, in order to contribute to the
maintenance of international peace and security, undertake to make
available to the Security Council, on its call and in accordance with a
special agreement or agreements, armed forces, assistance, and facilities,
including rights of passage, necessary for the purpose of maintaining
international peace and security.
2. Such agreement or agreements shall govern the numbers and types of
forces, their degree of readiness and general location, and the nature of
the facilities and assistance to be provided.
3. The agreement or agreements shall be negotiated as soon as possible
on the initiative of the Security Council. They shall be concluded between
the Security Council and Members or between the Security Council and
groups of Members and shall be subject to ratification by the signatory
states in accordance with their respective constitutional processes.”
o Never materialized, because MSs failed to agree on their contributions
=> UNSC cannot oblige states to undertake measures.
► Alternative actions (based on the voluntary cooperation of MSs = consensual
military option to contribute to military security):
o Peacekeeping operations: Conducted by the UN itself
Difference with the envisaged Art. 43 is that there must be agreement by
the host states + consent of MSs to contribute with armed forces/facilities.
“Blue helmets” – operate under the operational control and command of
the UN.
o Military action: conducted by States or regional organizations/
arrangements as authorized by the UN.
1
, HUMANITARIAN AND SECURITY LAW F
Lecture 8: CAPITA SELECTA: PEACE OPERATIONS WITH HANNA BOURGEOIS
Difference with Art. 43 is that UNSC authorizes MSs to undertake actions
and does not oblige them.
Up to the State/Organization to carry out the mission.
► Distinction between1:
o Enforcement operations
Sustainable full-scale operations (i.e., full-scale warfare) directed against a
State – authorized by the UNSC.
o Peace enforcement operations.
Similarly, to enforcement operations operate under Chapter VII BUT
involve only limited combat (NOT full-scale warfare).
In support of government or transitional authority in order to establish a
protected environment.
Usually proactive use of force.
o Peacekeeping operations
Require consent + no use of force beyond self-defense + impartiality
during operation (difference from peace enforcement operations).
► Despite blurring, peacekeeping operations are guided by the 3 principles
above, while in peace enforcement, they are not necessarily maintained.
► Used terminology will be Peace Operations – which abide by the principles of
consent, impartiality and non-use of force except in self-defence (and defence of their
mandate):
o UN Peace Operations2
o Peace Operations Conducted by States or Regional
Organizations/Arrangements
1
Scholars disagree on the distinctions => no unanimous consent. => Blurring especially between
peace enforcement and peacekeeping operations. Peacekeeping operations were traditionally
used to maintain peace after a ceasefire. Many recent peacekeeping operations, however, have to
operate within unstable intra-state environment. As a result the UNSC has made three important
changes => Peacekeeping operations are no longer only a buffer between forces => They also
promote a stable environment, maintain public order, provide humanitarian assistance, and
protect civilians for violations of IHL. The UNSC also started using Chapter VII UN Charter (which is
associated with coercive measures against the consent of the State). There has also been a change of
wording in peacekeeping mandates (e.g., “permitted to take all actions necessary”) => those terms
were usually kept solely for non-peacekeeping operations.
2
More multidimensional = not only peacekeeping, but also peacebuilding (UN itself changed the
terminology)
2
, HUMANITARIAN AND SECURITY LAW F
Lecture 8: CAPITA SELECTA: PEACE OPERATIONS WITH HANNA BOURGEOIS
GENERAL LEGAL FRAMEWORK
► Emerging questions which can only be answered by looking at the General
Legal Framework.
► Rules providing for a legal basis for the Peace Operation:
o I.e., rules governing the establishment of the peace operation, but also the
deployment.
o External Legal Basis (General International Law and the UN Charter)
Principle: Prohibition on the use of force (Art. 2(4) UN Charter)
Exceptions: Self Defence (Art. 51 UN Charter) or UNSC Mandate under
Chapter VII
No Violation: Intervention by invitation (Consent of Host State)
External Mandate can be given by:
Host State (Consent)
Competent International Organisation (Usually UNSC; UNGA in
certain cases, but there were also always consent).
Two main functions of the mandate:
3
