Introduction
Warner (1995) explains that the UN peacekeeping operations have been placed under increased scrutiny over the past few years. This has come against the introduction of relatively new players in peace keeping efforts such as Germany and Japan. Additionally, continuous scrutiny has been propagated by heightened religious, ethnic and local conflicts among several nations of the world. Consequently, in an analysis of the basis of legal peacekeeping operations by the United nations, it is essential to acknowledge that the UN has failed in some areas and succeeded in others. This means that there must be a revision of the role that this international body is willing to take in dealing with international peace. The paper shall examine specific case studies, outstanding themes and contradictions in both judicial and non judicial opinions of peacekeeping by the UN.
Prevention of Armed conflict
In the UN secretary general’s report (1998) concerning the preventive role of the UN in the African continent a number of legal issues emanate in the need for peacekeeping interventions in this region. First of all, the United Nations is given the mandate to engage in peacekeeping in the process of preventing armed conflicts in certain parts of the world. This is usually seen when the organization mediates agreements between nations with regard to non aggression.
While the latter body acknowledges the need for possession of arms among nations to protect themselves, it may be required to engage in peace keeping when a certain country seems to be operating in a non transparent manner. Additionally, prevention of armed conflicts can be seen through the following peace keeping efforts;
Joint military training
Harmonisation of joint arms policies
Security cooperation agreements
Registration of arms
An example of how the United Nations has demonstrated one of the latter roles is through the 1997 UN Register of conventional Arms. Here, countries were required to give information about the amount of weapons within their borders in order to enhance transparency. Additionally, the UN has prevented armed conflicts by tracing some of the origins of small arms in order to deal with the problem directly, this is further supported by some confidence building efforts with regard to the purchase of ammunition among member states. In other words, countries have been restricted on the number of ammunitions which they can purchase thus preventing intense effects that may arise within particular armed conflicts. (UN, 1998)
Prevention of armed conflict also takes the form of deployment of resources to resolve conflicts. This may take the form of diplomacy where negotiations are made between different parties in order to come up with a comprehensive solution. In other circumstances, peacemaking operations may occur in instances where there is a needs to do some fact finding or when judicial resolutions are necessary. In such circumstances, the UN is normally expected to foster dialogue between countries or to promote reconciliation between affected parties. Usually, this is also coupled with the restoration of the respect for human rights among the affected stakeholders. Additionally, the UN is charged with the responsibility of identifying obstacles and tackling them.
Prevention of armed conflicts is normally done by first handling short term goals and then paving the way for greater long term aspirations. This is necessitated by the provision of small incentives that may include water projects, local infrastructure, business loans and many more. It should be noted that prior to conducting such mediation negotiations, it is imperative for the organisation to familiarise itself fully with the goings on within a particular country and then be willing to change their stance because each situation may present its own complexities. (UN, 1998)
In order to prevent armed conflict, it is imperative for this organisation to look into some of the signs that could necessitate full blown disagreement. Usually, this is legal ground for engaging in peaceful negotiation. Usually, the organisation considers factors that will indicate time bombs for those respective countries. One such example is the issue of scarce resources. When a country is constantly faced by rising tensions about the scarce resources such as land, oil etc, then chances are that this may grow into a bigger issue if left unattended.
The United Nations may be very effective in identifying these warning signs but records show that a follow up of the same may not necessarily be the reality. This is why the organisation has failed to promote peace in a number of African nations. For example, when one looks at the case of North African states, a number of conflicts have spiralled out of control because the United Nations has been ineffective at following up these green lights. In that region, many groups have differing opinions on what should constitute their societies and their vision thereof. Consequently, the United Nations has identified some of these potential areas and looked for ways in which it can deal with them. (UN, 1998)
It is also interesting to note that the United Nations has engaged in peaceful deployment of its military personnel in certain areas of the world. The first country in which such an approach worked was in Yugoslavia where the organisation was highly interested in the restoration of peace through the provision of a reassuring presence and also through the use of certain political channels. Consequently, miscalculations often associated with certain political tensions were gravely prevented.
UN secretary general (2005) also summarised some of the cases in which the UN can engage in peace negotiations and these include;
-Translational organised crime
-Terrorism
-Possession of chemical and biological weapons
-Environmental degradation
-Infectious disease
-Poverty
-Genocide
-Human rights abuses
-Interstate conflicts
It should be noted that not all the latter issues apply to peace keeping negotiations but most of them do. The United Nations has a legal basis for preventing civil wars in the event that a particular country possesses or has shown signs of possessing chemical, biological or nuclear weapons of destruction. In such scenarios, the UN may step in to ensure that this does not become an actual threat to other nations surrounding it. Additionally, the United Nations may also engage in negotiations by persuading such countries to deal with disarmament. In other words, this means that agreements need to be made between likely parties that are affected and the UN has engaged in such measures. (UN, 2005)
Besides that, the United Nations has the responsibility of preventing certain countries from expanding or constructing uranium enrichment programs. This is especially necessary given the fact that some countries have used their nuclear program to negotiate political and economic benefits to other groups. A case in point was the nuclear weapons program in North Korea which was used as a barging tool by the country against the US. The UN participated in peace negotiations between these parties but is yet to resolve the issue as the matter is still under discussion.
The issue of international terrorism also forms a strong reason for taking part in international peace keeping missions for the United Nations. This is especially the case when such a country is found to possess evidence that draws towards its possession of weapons that could be destructive in nature. Usually, this is done by the endorsements of certain agreements between these groups and an encouragement by the international body to adhere to the issues laid out in agreements. (UN, 2005)
In certain scenarios, it may be prevalent that civil societies may be in need of protection from internal aggressors. In such cases, the United Nations will have to show evidence that this has the actual likelihood of occurrence. In other words, there must be certain institution within the country under consideration to indicate that this can actually happen. However, it should be noted that these kinds of responsibilities may require collective responsibility amongst member states mentioning from wealthy areas and also from poor ones.
The latter assertions were made by the UN secretary general during the dispensation of high panel findings on the matters of collective security facing different parts of the world. In other words, these responsibilities are a global challenge and therefore require global efforts from organisations such as the United Nations in order to deal with them adequately.
Because of the levels of interconnectedness and vulnerability of different nations when dealing with these global challenges, then prevention would definitely be the best bet to handle some of these problems rather than waiting for them to fall out of hand. (UN, 2005)
Indifference to certain regions and inconsistencies
After the end of the cold war, first world countries that had been supporting African countries for their own selfish interests suddenly withdrew from these areas. Because the United Nations Security Council is highly influenced by these countries, then the association along with many other international peace keeping bodies adopted a hands off approach to the African continent. This kind of attitude is what caused one of the greatest failures of the UN peacekeeping efforts in the Rwandan genocide. The UN secretary General of 2005 – Kofi Annan acknowledged that the group had failed Rwanda on preventing one of the most horrendous crimes against humanity. (UN, 1998)
The latter act depicted indifference on the part of the United Nations and this has been one of the areas of intense scrutiny about the organization. Proponents to this argument claim that the UN should not adhere to international biases about certain regions of the world and that it should carry out its mandate irrespective of this matter. Consequently, it can be argued that this international organisation has clearly laid out rules and regulations with regard to prevention of armed conflict, however, their selectivity on particular areas is undermining their peace making role.
It should however, be noted that the latter scenario is not the general trend within the African continent. In fact, it can be argued that this continent has taken up the largest chunk of peacekeeping operations within the United Nations. However, the conditions favouring intervention have been questionable given its inconsistency in the continent. In fact, it can be argued that despite the many peacekeeping efforts that have been going on in Africa, the proportion of resources and time required for these interventions do not meet the challenges that are inherent in this region.
Reconciliation of warring communities in coalition based governments
The United Nations may engage in peacekeeping missions when a country had been formed out of the unification of differing regions, countries or communities. Theodorides (1982) explains this scenario under the United Nations Peacekeeping Force in Cyprus. The UN decided to participate in this mission three years after the formation of Cyprus as an independent state. Problems began arising after the rising conflict between Greek Cypriots and Turkish Cypriots with the latter’s rights being subdued by the former through the constitution. These tensions began showing through a violence outbreak that occurred in the year 1963 thus causing necessitating some interventions.
The issues in Cyprus were also related to problems in constitution making. There were complains that Turkey was interfering in the affairs of the United Kingdom and that it had intentions of engaging in aggression against the United Kingdom of Cyprus. In the subsequent year of 1964, the United Nations decided to enter Cyprus through the formation of an external body known as the United Nations Peacekeeping Force In Cyprus. The body had been created so as to ensure that the rule of law was adhered to in this nation and that the 1963 violence between the communities was not propagated.
The United Nations Security Council carried out its peacekeeping operations through this body that had been set up specifically for the United Kingdom of Cyprus. The most instrumental time at which the UN depicted their importance and presence was during a coup de tat in the year 1974. At that time, some Cypriots originating from Greece attempted to seek alliance with their native country. On the other hand, their adversaries were interested in taking over a part of the northern part of the country. Consequently, there was a need to unite these warring factions by negotiating ceasefire agreements and looking into some of the issues that these groups had to contend with. Besides that the Security Council made a number of resolutions that were centred on preventing the occurrences of the 1974 de tat. (Theodorides, 1982)
Irrespective of some of the successes in Cyprus, peace negotiations by the UNFICYP had hit some snarls in a number of ways. This is because there are still certain challenges in this country that show how peace is yet to be achieved. All in all, the latter body has indicated how the United Nations deals with security matters facing such united countries and what would necessitate their entry into such lands.
In close relations to this body is another commission that was formed when Ethiopia and Eritrea were separated as nations. Their situation was somewhat different from the Cyprus one because in Cyprus, two different factions were unified whereas in Ethiopia and Eritrea, two different groups were separated. In order to handle the challenges that emanate from such issues, it is imperative for the latter body to look into the overall questions that are prevalent with regard to the kind of problems facing them. (Theodorides, 1982)
Following the separation of Eritrea and Ethiopia, the United Nations decided to participate in peaceful negotiations though the formation of an external body know as the Eritrea Ethiopia Claims Commission. The latter countries decided to sign an agreement in the year 2000 that was signed in Algiers. In order to ensure adherence to this agreement and respect to the rule of law, the latter commission was formed. Most of the work carried out by the latter commission mostly deals with the challenges that are likely to crop up when dealing with two countries that have newly created boundaries.
Some of these challenges include claims of injury and damage conducted by one government against another government. The formation of such a commission was in adherence to the Cessation of Hostilities Agreement signed by member states within this international body. Additionally, the latter commission was in accordance with the Geneva Convention that had been set up to ensure compliance to humanitarian and international laws.
There are a number of challenges that are facing such commissions owing to the fact that it can be extremely tedious to cope with multiple filing systems that may be related to judicial matters affecting both countries. This is especially the case because the Commission is not located within any of these two countries and it has been handling a large number of cases that mandate from either of these bodies. According to Article 5 of their rules and procedures, some clarity has been laid out with regard to filing mass claims. However, this issue is not a straight forward one because the latter body has chosen to operate without it.
Governance of post conflict societies
The United Nations ought to operate in accordance with the UN Security Charter with regard to a number of issues facing post conflict societies. In his book “United Nations Governance of post Conflict Societies”, it has been found that there are certain contradictions in the peacekeeping role that the UN plays when governing post conflict nations. This was done in Matheson’s (2001) book through the use of two countries i.e. East Timor and Kosovo.
In the latter mentioned book, Matheson (2001) cites the issue of interference in matters that are in essence domestic jurisdiction. Through Article 2 of the UN Security Charter, the UN is given the mandate to do any of the following during its administrative role within post conflict societies
Change political structures
Change boundaries
Alter territorial status
Modify legal systems
Etc
Matheson (2001) notes that by exercising these rights, then the UN peacekeeping missions may end up taking the role of what sovereign states are supposed to carry out through the actions of their leaders. It should also be noted that the latter functions can only be exercised in extreme situations where the UN feels that failure to act in such a manner may jeopardise the chances of peace and international security. But the contradiction arises in the fact that the UN is the one with the mandate to determine when such a scenario occurs. Many government related policies are actually thought to fall in line with the domestic jurisdiction of a particular country and it would therefore be difficult for the UN not to cause some conflict of interest with these bodies.
When dealing with issues regarding boundary alteration, it is likely that many nations will be in firm opposition to it. This is an extremely sensitive matter and would therefore put into question the legitimacy and the success of peace keeping missions conducted by the United Nations as an International administrator in this regard.
It should also be noted that the issue of boundaries has both elements of international law and domestic law. This is because boundaries affect other nations. However, the option to alter them is an issue of the sovereignty of states. Matheson (2001) also argues that it may sometimes be tricky determining which measures are enforcement measures and which ones are not.
Korhonen (2001) also explains that international organisations are now adopting intrusive roles when conducting their peace negotiations or their peace missions. However, he also argues that post conflict administration is a crucial role in fostering peace for the UN and other bodies because of the fact that it ensures the steady flow of political, economic and social well being in countries that have been host to conflict. For instance, through their mandate as administrators, then the UN can ensure that elections are conducted in a democratic manner. In other words, peace negotiations are justified when the UN finds it necessary to ensure that fair elections are conducted in such politically sensitive areas.
Besides these, the UN has a legal mandate for participating in post conflict regions or countries when there are concerns about security levels. This is because such territories are always in danger of falling victim to security threats. Examples of countries in which these kinds of concerns have been eminent include Afghanistan and the Democratic Republic of Congo. In certain circumstances, the administrative role may take the form of civil society development. Conflict torn regions often find themselves in situations where they cannot handle the challenges that emanate out of the very nature of these circumstances when dealing with some of the issues. It should also be noted that a large share of the problems facing some the United Nations as administrators are highly ambitious thus making it extremely difficult for these kinds of issues to be addressed properly on their own.
Korhonen (2001) also argues that there is an underlying issue facing the UN in its election monitoring or peace keeping efforts; that of cooperation with other players. The latter author argues that the enormity of post conflict administration is so large that the United Nations cannot handle it alone. In other words, it would be more effective if this particular role was handled by more than one body. In fact, if there was a centrally planned post conflict peace keeping efforts, then chances of succeeding in carrying out this heavy task would have been handled properly. Additionally, if there was a centrally planned scenario in which a number of international bodies were to work together to govern post conflict regions, then chances are that greater accountability would be restored. Most of the reasons why the United Nations has failed in the promotion of peace within certain conflict torn regions of the world, is that the manner in which it carries out its mandate is not peer reviewed or it has not obtained acknowledgements for some of the action that it carries out. Consequently, its actions have been viewed with suspicion and the like.
In countries such as Kosovo, the United Nations also needed to restore its legitimacy amongst members of the latter country. This would have been more successful if the latter organisation had been operating under a centrally planned governance operation that the organisation is dealing with. However, the creation of such a body or such forms of cooperation requires aggressive institutional and structural changes within this organisation. All the latter issues are mere suggestions made by Korhonen (2001). The facts on the ground with regard to post conflict administration are highly wanting. The UN possesses powers to intervene into these areas without cooperation with others. Additionally, it is allowed to play an intrusive role if it sees that there is a need for it. However, this legal mandate can only be carried out through adherence United Nations Security Charter.
Collaborating with international associations
The International Criminal Justice Court has been under intense scrutiny for its decision making partly because the kind of decisions it makes have a wide raging effect on so many countries and also because it decisions can affect the decisions made by this Court and also because similar decisions may affect the analysing parties. (Okowa, 2005)
A case in point was the Armed Activities case between the Democratic Republic of Congo and Uganda. The latter two countries would be adversely affected by the decisions of ICJ and also by the UN because of the peace negotiations going on between these various countries. It should be noted that prior to the making of such decisions, the ICJ is required to engage in fact finding. However, it has been asserted that the very structure of such a body is such that fact finding would be particularly difficult. Most of the cases facing such a body especially the Uganda vs DRC case are highly complex and any shallow dealings with the matter may severely undermine the administration of justice in such areas.
It should also be noted that most of the decisions made were based on atrocities committed in other parts of the world such as Yugoslavia. This indicates a very serious problem in this area because it prevents the latter group from looking at the problem from an African perspective rather than from another method.
Another issue that brought out a lot of contradictions with this regard to the latter case is that the ICJ through the United Nations utilised a commission that had been created by the very state that was being tried. In this regard, Uganda had formed a commission known as the Porter commission. The purpose of this body was to examine the weaknesses that were inherent in the Ugandan government. These findings were then used against the Ugandan government to propagate some of the judgements made against the latter country. It is also interesting to note that some of the bodies created by the United Nations in Uganda were then used against the very nation that allowed them. Consequently, it can be said that this has created a lot of suspicion between countries that must be tried by the ICJ and those ones that must be investigated by the UN. These countries may not allow or cooperate with such UN bodies so as to save their names in case of a hearing. (Okowa, 2005)
After an assessment of the latter case, it can be said that the UN may engage in peace negotiations in certain regions with a long term perspective so as to act as an example for other cases or so that their work can be used as a third party basis for establishing the truth behind certain kinds of matters in international cases. Besides this, it should also be noted that another challenge in such cases is that the ICJ gives too much weight to other bodies than it does to others. This is especially because the UN may sometimes be engaging in fact finding missions without considering the fact that the latter body has presented findings that were non judicial in nature.
This particular case has also drawn a lot of interest from various parties with regard to matters surrounding these issues. In order to understand some of these contradictions, it is essential to study some of the legal issues that are surrounding the case.
The republic of Uganda filed a case against the Democratic Republic Of Congo whom it accused of carrying out attacks in part of Uganda’s regions. The reason why this matter brought out a lot of concerns was that both countries seemed to be carrying out claims that had nothing to with the overall nature of its respective kinds of approaches. For instance Uganda had claimed that rebel groups from DRC were responsible for carrying out some of the attacks that had taken part in its South western region. Consequently, the DRC government should be responsible for the actions taking part in Uganda. (Okowa, 2005)
On the other hand, the democratic Republic of Congo claimed that its armed forces were so limited in order to lay blame to them. Besides the latter issue, the matter was further compounded by the existence of another country that was also party to the claims made by Uganda. The Ugandan government asserted that since the rebels in DRC were opposing some of the Rwandan occupations of their territory, then Rwanda should also be included in the process. Because of all these complexities, there were greater problem in the final decisions that had to be arrived at by the ICJ. But the interesting aspect of their decision was that judges operating in this Court adhered to the UN charter. This was especially necessary when trying to determine which group is the guilty parties and which ones were not. For instance, in Article 2, paragraph 4 of the UN Charter, it has been asserted that another party is guilty of committing aggression when that respective party is violates the latter provisions. Consequently, it can be said that these parties are normally guilty if such offences when there are no other underlying issues that are going to be present in those respective areas. (Okowa, 2005)
Another case that has drawn a lot of international interest is the case of the Nicaragua versus United States. Through this case, it is possible to see another scenario in which the United Nations is mandated to carry out peaceful operations. In this regard, the UN can engage in peacekeeping when a particular offending party that had been instructed to carry out certain ruling by the International Criminal Justice Court and then fails to do so. In other circumstances, the UN Security Council can also step in when a country decides to carry out a veto against another. In this case, the matter under consideration may be contentious and the affected parties may want to operate in another manner. (Joyner and B. Grimaldi, 1985)
However, in order to understand the conditions for peacekeeping by the UN in this particular case, it is imperative to examine some of the underlying issues that occurred prior to and during the ruling. The latter case occurred in the year 1985, when Nicaragua claimed that the United States was conducting a war against them through the use of guerrillas that the US had been supporting and also through the process of instating mines in Nicaragua. The Court focusing against the United States and for Nicaragua thus commanding the US to pay reparations to the offended party.
There were a number of legal implications about this particular case. First of all, the United States lost the arguments that the ICJ did not have the legal jurisdictions to preside over the matter but this was nullified. Additionally, it was found that the United States had breached its international obligations that can be summarised as follows
Intervening in others affairs
Violation of sovereignty
Adherence to obligations in the treaty
Interruption of peaceful maritime operations
Using force against another state (ICJ reports, 1986)
By acting in such a manner, the United States demonstrated that it was in fact guilty of the offenses that had been labelled against it and should therefore pay for behaving in the manner that it. Perhaps the most significant aspect of the Nicaragua vs United States case was that the latter party was instrumental in clarifying some of the roles of the UN in peace keeping missions. For instance, the UN can take part in peacekeeping when there is evidence to illustrate that the offending party has used excessive force. Besides that, the case was also instrumental in calcifying hat can justify self defence. While Nicaragua was paid reparations, it did not win the part of the case involved the issue of self defence. This was because Article 51 of the UN charter states that self defence can only be done in attacks and non indirect interventions by the parties. (Joyner and B. Grimaldi, 1985)
Conclusion
It can be said there are three major pathways that would constitute a legal basis for UN intervention, the first is in preventive measures of armed conflicts. In such cases, there must be evidence pointing to this such as possession of weapons of mass o destruction. The UN can also engage in peaceful negotiations when states have just been separated or unified so as to facilitate adherence to international law and domestic law too. Lastly the UN may engage in peacekeeping operations in post conflicts territories. In such circumstances, it takes up an administrative role.
References
Warner, New Dimensions of Peacekeeping (1995) 1-69 and 159-179
Theodorides, ‘The United Nations Peace-Keeping Force in Cyprus (UNFICYP)’, ICLQ (1982), 765
Matheson, ‘Unted Nations Governance of Post-Conflict Societies’, HILJ (2001), 76
Korhonen, ‘International Governance in Post-Conflict Situations’, LJIL (2001), 495
A More Secure World: Our Shared Responsibility. Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change, 2004, pp. 67-74, 83-86.
Ph. Okowa, Case Concerning Armed Activities on the Territory of the Congo (DRC v Uganda), 55 ICLQ (2006), 742
C.C. Joyner and B. Grimaldi, The United States and Nicaragua: Reflections on the Lawfulness of Contemporary Intervention, 25 Virginia Journal of International Law (1985), 621
CArmed activities on the territory of the Congo (DRC v Uganda), ICJ, 2005 (http://www.icj-cij.org)
Eritrea-Ethiopia Claims Commission, Jus Ad Bellum, Ethiopias Claims 1-8, available at http://www.pca-cpa.org/showpage.asp?pag_id=1151
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