Peacekeeping has become one of the United Nations’ largest missions globally. Despite the vast array of deployments and size of the operations, the United Nations Charter does not contain any direct references to such operations[1]<\/a>. Indeed, these operations are simply interpreted from chapter VI or chapter VIII[2]<\/a>. Furthermore, the nature of UN peacekeeping has also been changing. Before 1991 the UN mainly had authorised peacekeeping missions on the bases of enforcing an already agreed upon peace agreement between two consenting states. However, after this point, the UN became active in imposing peacekeeping operations, including the new concepts of stabilisation, among other unclear objectives.[3]<\/a> This has resulted in an original idea of peacekeeping which was already only vaguely defined, being turned into a much broader and less clear concept that could be described as contradictory to the charter in several respects. These problems have been caused by an absence of a formal legal framework that could have otherwise clarified what exactly these UN missions were meant to do. Though some arguments exist to exclaim the benefits of the UN’s lack of a legal framework, this essay will determine that the absence of a formal legal framework overseeing UN peacekeeping operations is a severe disadvantage.<\/p>\n\n\n\n This essay will first clarify the informal nature of UN peacekeeping and further define what this essay views as peacekeeping. After this, it will explain the detrimental impacts a lack of formal legal framework has caused on UN peacekeeping. It will then discuss some of the perceived benefits then ultimately underline why these advantages fail to negate the disadvantages of an informal legal framework.<\/p>\n\n\n\n Legal Framework<\/u><\/strong><\/p>\n\n\n\n First, to understand what advantages or disadvantages are to be had from the informal UN legal framework for peacekeeping, this framework must be clarified. The UN Charter does not contain an article that calls explicitly for peacekeeping. This is because the UN was not initially intended for such a purpose.[4]<\/a> Consequently, a formal legal framework for peacekeeping does not exist. Instead, the meaning of peacekeeping was derived from a combined interpretation of Chapters 6 and 7 of the UN charter, often described as chapter 6 and a half.[5]<\/a> Chapter 6 determined that the Security Council could make recommendations to resolve international disputes, and chapter 7 authorised the security council to use force to maintain international peace. Hence an informal understanding of peacekeeping can be ascertained by combing both authorities along with aspects of several other UN Chapters. According to the capstone doctrine, the exact definition the United Nations proscribed is that “Peacekeeping is a technique designed to preserve the peace, however fragile, where fighting has been halted, and to assist in implementing agreements achieved by the peacemakers.”[6]<\/a> This definition is very vague as to precisely what peacekeeping will entail. The mandate determines each peacekeeping mission’s role proscribed to it by the security council, as that institution alone can activate such a mission.[7]<\/a> The capstone doctrine labels several aspects of more comprehensive “peacekeeping operations”, including conflict prevention, peace-making peacekeeping, peace enforcement and peacebuilding.[8]<\/a> This essay will determine that all are part of overall peacekeeping but will pay special attention to the impacts of an informal legal framework on peacekeeping and peace enforcement. These two have few differences in any case. Peace enforcement operations are proscribed to use coercive force, which differs from peacekeeping. However, peacekeeping operations have recently adopted the new concept of being robust, which can also entail coercive actions. Accordingly, few operational differences exist between robust peacekeeping and peace enforcement. It is essential also to understand the three fundamental principles which underline all United Nations peacekeeping operations. These are the parties’ consent, the impartiality of the peacekeeping force, and the non-use of force, except when defending the mandate.[9]<\/a><\/p>\n\n\n\n Disadvantages caused by the lack of a formal legal framework<\/u><\/strong><\/p>\n\n\n\n Now that the meaning of the UN’s legal framework regarding peacekeeping has been clarified, along with its definition of peacekeeping, it can be decided whether the lack of a formal legal framework regarding the use of force is a benefit or detriment to the effectiveness of the UN’s peacekeeping forces ability to uphold the mandate and complete its objectives. This essay argues that such an absence of a formal legal framework is a significant detriment to the effectiveness of peacekeeping. The primary reason for this is that no clear guidelines have been created explaining what form peacekeeping should take and how it should operate. This has resulted in an extensively varied implementation of different forms of peacekeeping, some of which had contradicted the charter and potentially undermined international humanitarian law, especially regarding peacekeeping missions in Mali, the CAR and Congo.[10]<\/a><\/p>\n\n\n\n Initially, this was not a fundamental problem of peacekeeping. Throughout the Cold war, peacekeeping activities were mostly confined to maintaining interstate peace by keeping hostile forces apart after both had agreed to a peace accord or in other areas where peace had already been established. Indeed, before 2010, most peacekeepers were deployed in areas where the conflict had ended.[11]<\/a> Maintaining peace in post-conflict environments had been a comparatively simple task that could uphold the three pillars of peacekeeping, consent, impartiality and non-use of force outside of self-defence. However, this situation was altered after the end of the Cold war. Due to the new international climate, it was hoped that peacekeeping forces could take more prominent roles in maintaining peace. The Brahimi report pushed this, supporting peacekeeping forces to be more aggressive in defending their mandate and taking more robust actions to protect civilians.[12]<\/a> This led to new and much more complicated peacekeeping mandates, which began to enshrine the ideas of stabilisation through peace enforcement and robustness in peacekeeping.[13]<\/a> By 2015 two, thirds of peacekeepers had been deployed to such mandates in ongoing conflicts, and three out of the four largest UN deployments had stabilisation in the name of the mandate.[14]<\/a> These new concepts created fundamental problems directly linked to a lack of formal legal framework.<\/p>\n\n\n\n These problems undermined all three core principles of UN peacekeeping. Firstly, by directly taking sides in a conflict to restore government authority or fight rebel or terrorist groups deemed as spoilers to the mandate, the UN peacekeeping force is clearly operating without the consent of those parties. These same problems also affect the ideal of impartiality. UN peacekeepers can’t be impartial in robust peacekeeping and peace enforcement operations when they are directly fighting one of the conflicting sides. Finally, the non-use of force ideal is also compromised, as though technically, when peacekeepers use force, it may be in defence of the mandate; if this mandate is so broad as to be effectively authorising that force to conduct a war, then that essentially betrays the fundamental ideal of this principle as well. These are not the only contradictory aspects of peace enforcement and robust peacekeeping mandates. Even more problematically is the prospect that UN forces are violating international humanitarian law (IHL).[15]<\/a> Indeed, when supporting the government of the host state, as is the case in the UN’s peacekeeping mission in Congo (MUNUSCO), Peacekeepers could be legally accountable for that government’s human rights abuses due to the support the peacekeeping operation provides it.[16]<\/a> Moreover, all these contradictions call into question the exact purpose of these peacekeeping operations. If it is purely to create peace and uphold international law, then to fight a guerrilla campaign against rebels, insurgents, and other anti-government forces hardly seems of any utility. A pragmatic peace process is the only way out of this predicament, and UN peacekeeping forces have increasingly become contradictory to such a process by taking a direct role in these wars rather than supporting the peace process as it should be. The lack of a formal legal framework to provide solid guidance on what UN peacekeeping forces should be able to do directly causes these problems. A formal framework would have clarified the purpose and ideals of these missions and ruled out such contradictions to international law and UN principles that peace enforcement and robust peacekeeping mandates are now creating.<\/p>\n\n\n\n However, the lack of a formal legal framework undermines the legality and effectiveness of more modern UN peace enforcement missions and impacts the legitimacy of all UN peacekeeping operations. As the security council alone can enact such peacekeeping operations, the very legitimacy of these operations is under question. The security council comprises only five permanent members with veto abilities Britain, France, America, Russia, and China. These states are far from representative of the global community; however, they hold almost all power regarding creating and managing such peacekeeping operations. This puts the legitimacy of these mandates under question as very few states have a say in their creation. This can lead to these forces being seen as neo-colonialist actions that would undermine their ability to reconcile groups and support peace. Indeed, the UN peacekeeping mission to Yugoslavia was legally questioned due to the informality of its legal basis.[17]<\/a> This has caused much-reduced local support for such mandates, which is crucial for the success of mandates which are supposed to stabilise states and improve local governance. The lack of legal framework is to blame for these problems as, in its absence, ad hoc measures have had to be taken from the security council in ways never intended at the UN’s creation.<\/p>\n\n\n\n The lack of a formal legal framework for UN peacekeeping has also caused severe problems for accountability. As these mandates lack a clear framework, no serious provisions have been created to ensure the Peacekeeping forces are accountable for human rights violations they may commit.[18]<\/a> Peacekeepers are meant to be held responsible by their home nations, not the UN.[19]<\/a> However, the UN has little ability to pressure the home nations of peacekeepers to prosecute them. Accordingly, peacekeepers’ prosecution rates for rights violations are low.[20]<\/a> Another problem regarding accountability is that there are no other organisations to oversee the security council, which results in only limited perspectives being understood in that council and next to no checks on its power. This has only further undermined the legitimacy of UN peacekeeping operations, which again is especially detrimental to the success of these operations when tasked with complicated roles such as stabilisation or robust peacekeeping. This problem is again caused by a lack of formal legal framework, which could have otherwise provided a solid basis to hold peacekeepers and the overseeing council accountable and maintain the mandate’s legitimacy.<\/p>\n\n\n\n Limited advantages caused by the lack of a formal legal framework<\/u><\/strong><\/p>\n\n\n\n Despite these extreme disadvantages of a lack of legal framework, it may be true that the situation offers some advantages. A lack of legal framework allows the role and enaction of peacekeeping operations to be highly flexible. This can significantly benefit its position due to how complex international crises can become. Consequently, having the ability to maintain peace no matter what political situation, provided the Security Council agrees, is of immense utility. Many other aspects of the UN charter cannot be acted upon because the framework around it is too formal and so can be easily contradicted and made obsolete, including chapter VII, as veto’s in the security council by adversary permanent members have almost always denied the UN the ability to actually prevent breaches of the peace.<\/p>\n\n\n\n This can be seen especially in the shift after the cold war. Though the shift to stabilisation and robust peacekeeping created severe problems, the essence of the idea is solid and often necessary in the event of a state collapse. The atrocities of the Rwandan and Bosnian genocides, among other humanitarian catastrophes caused by collapsed states, do serve as proof of the necessity to have some form of an international organisation that can protect people to alleviate human suffering. If UN peacekeeping had been formalised at the organisation’s inception, such a role would have almost certainly been ruled out. Moreover, the absence of such formality allows local commanders to have a lot more freedom to most effectively pursue the goals of the mandates in their own opinion, which is when peacekeepers are understood to work best.[21]<\/a> Indeed in the Central African Republic, UN forces utilised attack helicopters to prevent rebels from entering villages and potentially killing civilians. Such an action “bent various administrative rules” yet succeeded in protecting civilians and the mandate.[22]<\/a> Consequently, if a formal legal framework had been forced on all peacekeeping operations, then today, there would have been even fewer solutions to international crises resulting from a collapse of a state’s government, especially considering the failure of other attempts to resolve these problems such as R2P which contributed to humanitarian disasters such as Libya.[23]<\/a><\/p>\n\n\n\n UN trustee system as an alternative legal framework<\/u><\/strong><\/p>\n\n\n\n Though these arguments do lend themselves to the view that a formal legal framework has advantages, it does not illustrate that these advantages outweigh the severe disadvantages it carries. Moreover, it is an oversimplification to suggest that any institutionalised formal legal framework overseeing peacekeeping operations would have become obsolete or unworkable. Indeed, even if the exact wording of such a document did fail to meet new criteria, it could easily be reinterpreted to do so. This is precisely how the concept of peacekeeping was created in the first place, as it is but the vague interpretation of chapters VI and VII of the UN charter. The UN charter is considered a living document because it can be reinterpreted to fit new scenarios.[24]<\/a> A formalised legal document regarding peacekeeping could at least be reinterpreted more clearly, even if the original wording did not fit modern problems exactly. It would undoubtedly have been more transparent than a mixed interpretation of articles VI and VII in any case. The suggestion, then, that an absence of any formal legal framework for UN peacekeeping allows it to be more flexible is not valid, considering that a more detailed document on the matter would have qualified for a simpler reinterpretation, done so with more respect to its original core ideals.<\/p>\n\n\n\n Moreover, other examples exist of the UN successfully using a formal legal framework to support the stabilisation and development of states, illustrating how practical a formal legal framework may have been to peacekeeping operations. This is in reference to the UN trustee system. This system was created as a major organ of the United Nations. It was intended to support the development of previous colonies, specific mandates, and areas separated from the defeated Axis powers of the second world war.[25]<\/a> Its powers were given a formal legal framework in chapters 11, 12 and 13 of the UN charter.[26]<\/a> Its purpose was to act as an overseer and adviser to an administering authority to ensure that the trusteeship territories were moving towards independence and were being a player in the maintenance of peace and security. Despite the formal legal framework, the endeavour proved successful and flexible, and all trusteeships had either attained independence or had joined another state by 1994.[27]<\/a> This process was guided by the core principles laid out by the UN charter and allowed little confusion as to what the purpose and operation of these trusteeships were, allowing for the successful utilisation of this.<\/p>\n\n\n\n Indeed, it has even been argued that had Peacekeeping been included inside the trusteeship system or added later, it too would have been far more precise and successful in its missions. A council like the Trusteeship council for peacekeeping would have fixed many of the core problems crippling the effectiveness of modern UN peacekeeping, especially regarding its more recent focus on stabilisation missions and robust peacekeeping. By utilising the Trustee council for peacekeeping missions, the opinion of many smaller states could be included enabling mandates from the Trustee Council to be much more represented and so legitimate and more widely accepted.[28]<\/a> The trusteeships council could have a much greater focus on peacekeeping and be much more able to be held accountable for several reasons. Firstly, reports had to be submitted to the council annually to analyse the situation in the territory, and petitions on the situation in the territory could be heard in the council.[29]<\/a> This would allow any human rights abuses to be quickly identified and ended. The council could also visit the territories to ensure no abuses were occurring. Finally, it would have to create surveys on several aspects of the territory’s progress, including human rights, which would have also ensured abuses were identified and stopped. [30]<\/a><\/p>\n\n\n\n The security council cannot do such things as its focus is on a much more comprehensive array of issues limiting its effectiveness in operating complex peacekeeping missions. It also lacks any institutionalised ability to analyse such petitions and outside opinions such could have aided its ability to craft relevant policies.[31]<\/a> Indeed, this portrays the problems of a lack of legal framework, as it is a result of that absence that the security council and not something more suitable like the trusteeship council is utilised as the primary body to operate peacekeeping missions and the effectiveness of peacekeeping once again suffers a direct result. It also dismisses the concept that a formalised legal framework could be more detrimental to peacekeeping than the current lack of it.<\/p>\n\n\n\n Conclusion<\/u><\/strong><\/p>\n\n\n\n In conclusion, a lack of a formal legal framework is a significant disadvantage to UN peacekeeping operations. It has led to a confused understanding of what peacekeeping and peace enforcement should be. The result of this has been an ever-expanding set of objectives for peacekeeping missions which are becoming more untenable and more contradictory to both the purpose of UN peacekeeping missions and increasingly to International Humanitarian Law. Indeed, even outside the more recent tasks of peace enforcement and robust peacekeeping, a string of problems, including the lack of accountability of the security council along with its lack of representation of the broader global community, and its questionable ability to unilaterally devise effective peacekeeping policy, all directly caused by the informal legal basis that UN peacekeeping operates under, has constantly undermined the core objective of UN peacekeeping. Though it can be argued that the informality of UN peacekeeping can allow it to fit in more complex scenarios, this is based on the notion that a more formal and more straightforward legal framework could not also be reinterpreted, which is untrue. Moreover, the success of the Trustee system already illustrated the potential effectiveness of such a formalised institution. Consequently, the lack of a formal legal framework has handicapped the UN’s proficiencies and legitimacy, making it far less able to properly carry out peacekeeping’s intended purpose of keeping peace and upholding international law.<\/p>\n\n\n\n Bibliography<\/u><\/strong><\/p>\n\n\n\n Howard, Lise Morj\u00e9, and Anjali Kaushlesh Dayal. “The Use of Force in UN Peacekeeping.” International Organization 72, no. 1 (2018)<\/p>\n\n\n\n Gilder, A. The Effect of ‘Stabilisation’ in the Mandates and Practice of UN Peace Operations. Neth Int Law Rev 66, 47\u201373 (2019)<\/a><\/p>\n\n\n\n UN website<\/p>\n\n\n\n Howard, Lise Morj\u00e9. “Peacekeeping, Peace Enforcement, and UN Reform.” Georgetown Journal of International Affairs 16, no. 2 (2015)<\/p>\n\n\n\n Mohamed, Saira. “From Keeping Peace to Building Peace: A Proposal for a Revitalised United Nations Trusteeship Council.” Columbia Law Review 105, no. 3 (2005)<\/p>\n\n\n\n Christine Grey, International Law and the Use of Force, Oxford University Press, 2018<\/p>\n\n\n\n Leeper, Donald S. “International Law: Trusteeship Compared with Mandate.” Michigan Law Review<\/p>\n\n\n\n 49, no. 8 (1951)<\/p>\n\n\n\n WILLIAMS, ABIODUN. “The UN Secretary-General and Human Dignity: The Case of Kofi Annan.” In Human Dignity and the Future of Global Institutions, edited by Mark P. Lagon and Anthony Clark Arend, 67\u201384. Georgetown University Press, 2014<\/p>\n\n\n\n Bellamy, Alex J. “The Responsibility to Protect and the Problem of Military Intervention.” International Affairs (Royal Institute of International Affairs 1944-) 84, no. 4, 2008<\/p>\n\n\n\n Principle and guidelines of UN peacekeeping operations (capstone doctrine), United Nations Secretariat, 2008,<\/p>\n\n\n\n [1]<\/a> Howard, Lise Morj\u00e9, and Anjali Kaushlesh Dayal. \u201cThe Use of Force in UN Peacekeeping.\u201d International Organization 72, no. 1 (2018)<\/p>\n\n\n\n [2]<\/a> Ibid<\/p>\n\n\n\n [3]<\/a> Ibid<\/p>\n\n\n\n [4]<\/a> Howard, Lise Morj\u00e9, and Anjali Kaushlesh Dayal. \u201cThe Use of Force in UN Peacekeeping.\u201d International Organization 72, no. 1 (2018) p.24<\/p>\n\n\n\n [5]<\/a> Mohamed, Saira. \u201cFrom Keeping Peace to Building Peace: A Proposal for a Revitalized United Nations Trusteeship Council.\u201d Columbia Law Review 105, no. 3 (2005), p.820<\/p>\n\n\n\n [6]<\/a> Principle and guidelines of UN peacekeeping operations (capstone doctrine), United Nations Secretariat, 2008, p.16<\/p>\n\n\n\n [7]<\/a> Christine Grey, International Law and the Use of Force, Oxford University Press, 2018, p.263<\/p>\n\n\n\n [8]<\/a> Principle and guidelines of UN peacekeeping operations (capstone doctrine), United Nations Secretariat, 2008,<\/p>\n\n\n\n [9]<\/a> Ibid, p.16<\/p>\n\n\n\n [10]<\/a> Gilder, A. The Effect of \u2018Stabilization\u2019 in the Mandates and Practice of UN Peace Operations. Neth Int Law Rev 66, 47\u201373 (2019)<\/p>\n\n\n\n [11]<\/a> Ibid<\/p>\n\n\n\n [12]<\/a> Howard, Lise Morj\u00e9. \u201cPeacekeeping, Peace Enforcement, and UN Reform.\u201d Georgetown Journal of International Affairs 16, no. 2 (2015), p.12<\/p>\n\n\n\n [13]<\/a> Gilder, A. The Effect of \u2018Stabilization\u2019 in the Mandates and Practice of UN Peace Operations. Neth Int Law Rev 66, 47\u201373 (2019)<\/p>\n\n\n\n [14]<\/a> Gilder, A. The Effect of \u2018Stabilization\u2019 in the Mandates and Practice of UN Peace Operations. Neth Int Law Rev 66, 47\u201373 (2019)<\/p>\n\n\n\n [15]<\/a> Ibid<\/p>\n\n\n\n [16]<\/a> Ibid<\/p>\n\n\n\n [17]<\/a> Mohamed, Saira. \u201cFrom Keeping Peace to Building Peace: A Proposal for a Revitalized United Nations Trusteeship Council.\u201d Columbia Law Review 105, no. 3 (2005), p.822<\/p>\n\n\n\n [18]<\/a> Ibid<\/p>\n\n\n\n [19]<\/a> Ibid, p.827<\/p>\n\n\n\n [20]<\/a> Ibid<\/p>\n\n\n\n [21]<\/a> Howard, Lise Morj\u00e9. \u201cPeacekeeping, Peace Enforcement, and UN Reform.\u201d Georgetown Journal of International Affairs 16, no. 2 (2015)<\/p>\n\n\n\n [22]<\/a> Gilder, A. The Effect of \u2018Stabilization\u2019 in the Mandates and Practice of UN Peace Operations. Neth Int Law Rev 66, 47\u201373 (2019)<\/p>\n\n\n\n [23]<\/a> Bellamy, Alex J. \u201cThe Responsibility to Protect and the Problem of Military Intervention.\u201d International Affairs (Royal Institute of International Affairs 1944-) 84, no. 4 (2008<\/p>\n\n\n\n [24]<\/a> WILLIAMS, ABIODUN. \u201cThe UN Secretary-General and Human Dignity: The Case of Kofi Annan.\u201d In Human Dignity and the Future of Global Institutions, edited by Mark P. Lagon and Anthony Clark Arend, 67\u201384. Georgetown University Press, 2014<\/p>\n\n\n\n [25]<\/a> Leeper, Donald S. \u201cInternational Law: Trusteeship Compared with Mandate.\u201d Michigan Law Review 49, no. 8 (1951), p. 1199<\/p>\n\n\n\n [26]<\/a> Ibid, p.1200<\/p>\n\n\n\n <\/a> <\/p>\n\n\n\n [28]<\/a> Mohamed, Saira. \u201cFrom Keeping Peace to Building Peace: A Proposal for a Revitalized United Nations Trusteeship Council.\u201d Columbia Law Review 105, no. 3 (2005)<\/p>\n\n\n\n [29]<\/a> Ibid, p.829<\/p>\n\n\n\n![\"\"](\"http:\/\/www.consecon.uk\/wp-content\/uploads\/2023\/02\/UN-peacekeerps-s.sudan_.jpg\")
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