Peacekeeping Doctrine: An Autonomous Legal Order?

This article explores the legal bases of autonomy in peacekeeping and whether it has developed to such an extent that there are signs of a self-referential legal order governing peacekeeping, separate from other legal orders. Given that it will be shown that the principles governing peacekeeping are derived from general international law, there must be a presumption against there being a self-referential legal order, but the possibility that there has been a significant development of specific principles and rules will be explored. Moreover, this development may have occurred to such an extent that although the original source may remain in international law, a separate legal order has emerged. If the norms of that legal order no longer reflect the wider principles of international law then concerns revolve not only around fragmentation of international law, but also around the continuing compatibility of peacekeeping with international law.

7 organs. 18 It is largely in the latter layer that UN peacekeeping sits, as a product of the executive (and sometimes governing and legislative) powers of the Security Council under Article 24 (which gives it primary responsibility for peace and security), and Chapters VI and VII, which grant it competence over the peaceful settlement of disputes and the ability to take action to combat threats to or breaches of the peace respectively. Schermers and Blokker categorise the Security Council as a "governing board", with its own broadly drawn functions and powers, independent of the plenary organ (the General Assembly) and, therefore, more autonomous than an "executive board", which simply executes the decisions of the plenary organs. 19 Peacekeeping has also grown from the executive (as well as administrative powers) of the Military Committee established by the Council. 21 More broadly Koutrakos states that the 'deep institutionalization of the CSDP and the development of the culture of cooperation between its administrative bodies comprising national officials highlight the organizational autonomy of the policy'. 22 Nevertheless, with peacekeeping and peace operations generally, the development is in fact due to a combination of institutional policy and lawmaking, combined with contributions, consent, and cooperation by member states. 23 States possess military capability, while organisations do not as yet. The UN depends upon standbyagreements with member states in order to staff a peacekeeping force, agreements that give member states the final say as to whether to contribute troop contingents. 24 There has been limited integration of military forces within parts of EU membership, but not across the membership in whole or in significant part. 25 In the African Union, peacekeeping is based on Article 4(j) of the Constitutive Act of the AU of 2000, namely "the right of Member States to request intervention from the Union in order to restore peace and security".
The authorisation for such forces comes from an executive body, the AU Peace and Security Council (PSC), established by a separate protocol. 26 Again while the development and authority come from the institution, military contributions are from member states, although there is provision for an African Standby Force, which would be available for intervention in the face of grave crimes but also for consensual peacekeeping, 27 progress towards the creation of which has been slow. 28 While these provisions establish the autonomy of EU and AU peacekeeping, both competence to mandate such forces outside these regions and, as the above practice shows, there is often a need for a UN mandate and material support within the region as well. As de Volder argues in the case of the AU, "this hierarchical 'partnership' has prompted cooperation, but at the same time has led to controversies in the working relationship between" the UN and AU. 32 In the case of the UN, peacekeeping exploits the space between Chapters VI and VII of the UN Charter, building on the benign and non-threatening UNEF model crafted in 1956 during the Suez Crisis, when the UN force was, on the one hand, based on traditional principles of international law but, on the other, was institutionally (and therefore legally) separate from member states. In his initial report on the establishment of the first peacekeeping (or "emergency international force") in 1956, Secretary General Hammarskjold emphasised that the first step would be to establish the separateness of UN Command over a force where neither the commanders not the troops would be drawn from permanent members. 33 In his second report on UNEF under the heading "questions of principle", the Secretary General pointed out that the model adopted for the first force was an application of the principles of the UN Charter, reflected in the separate commander whose "authority should be so defined as to make him fully independent from any one nation" and who reported to the Secretary General. 34  Security Council under Chapter VII. 35 The Secretary General did not rule out the Security Council using peacekeeping forces "within the wider margins provided under Chapter VII", 36 but this issue did not arise given that UNEF was mandated by the General Assembly in the face of opposition by France and the UK in the Security Council. That meant that UNEF was based on clear principles of international law, respecting sovereignty (in the form of consent both to the presence of the force and to contributions to it) and non-aggression (on the basis that it could not enforce a peace), which seemingly restricted the autonomy of peacekeeping. 37 However, peacekeeping was crafted as a consensual form of intervention against a background of a rejection of more coercive military forms of intervention, and its benign birth should be contrasted with the more belligerent progeny that came later. There was a more practical restriction on the basis that while the command of the operation was clearly with the UN, the necessity of setting up the force in short order, meant that "countries participating in the Force should provide self-contained units", 38 35 Ibid. 36 Ibid,p.4. 37 Ibid, pp.4-5. 38 Ibid, p.6. The UN, EU, AU and other organisations possessing international legal personality are legally autonomous from member states, but they still remain dependent upon member states to achieve their tasks, especially military ones where troops have to be drawn from TCNs, and thereby bringing with them national security concerns into what is intended to be an exercise in collective security. This might seem to make it more difficult to claim autonomy in peacekeeping and other military operations than in other areas of institutional activity, which are not so dependent upon the capabilities of states. For example, international organisations can impose sanctions upon other states without positively calling on the resources of member states, but the reality is that organisations still depend on states to enforce those sanctions. Perhaps a better example would be in the actions of the specialized agencies, or programmes such as the UNHCR, who have their own resources that can be put into place in times of emergency, without the need to call on states' resources. However, even in military operations, close to the heart of the sovereignty of states, there is evidence of autonomy more so in peacekeeping than peace enforcement operations.

Elements of Autonomy
In general terms, the above analysis revealed two key elements of autonomy in peacekeeping: first the legal independence of the organisation and its peacekeeping missions from member states; and secondly, evidence of a self-referential peacekeeping legal order, independent from international law and national law. The second element flows from the first in that legal personality creates an autonomous space between organization and member states, which is consolidated by the creation of peacekeeping forces that are at least in part creations of the organisation. Those political organs responsible for their creations enclose them in a legal framework, largely to prevent them from too powerful. 39 Of course there remains the possibility that such forces may become more powerful, and the peacekeeping regime is stretched to allow for wider and wider action reflected in peacekeeping law that departs significantly from general international law. The advantage of autonomy in the shape of a self-referential legal order is that it is a specialist area of law developed to regulate specific activities, in contrast to the application of abstract and arguably indeterminate principles of international law such as non-intervention. 40 The disadvantage of autonomy is that peacekeeping may become isolated from broader community norms, which all states have signed up to. The ICJ in the Expenses case analysed specific articles in its quest to find a legal basis, but rather with a view to determining the limitations on the General Assembly's competence. 42 The Court comes close to a doctrine of inherent powers, 43 although it does not use the term "powers" to any great extent. A wide view of implied powers linked to the purposes of the UN is the more orthodox way of analysing the approach taken by the Court in the Expenses case, 44 but that is a long way from the idea of implied powers being derived from the intent of the founding states. As has been seen, the idea of international organisations having competence to create peacekeeping operations was considered to be mainstream by the time of the creation of the EU's CSDP first recognised in 1998, and in the shape of the AU's Constitutive Act in 2000 and its Security Protocol in 2002, in which peacekeeping is expressly included.
Despite the rhetoric of subjectivity attached to implied powers, in reality an objective approach is taken to the competence to establish and maintain peacekeeping forces rather than a subjective one, meaning that the autonomy of peacekeeping is neither derivative nor in 41 A. Orakhelashivili, Collective Security Law (Oxford University Press, Oxford, 2011) ch 8. 42 In Articles 11(2) and 12 of the UN Charter 1945. 43 As cogently argued before the Court delivered its opinion by F. Seyersted, 'UN Forces: Some Legal Problems', 37 British Yearbook of International Law (1961) p.351. 44 Schermers and Blokker, supra note 12, p.182. the hands of member states, but in the very nature of an organisation having the purpose of achieving peace and security. In the case of the EU, although peace is not seen as prominent, it can be seen as the primary reason for the creation of the European Economic Community in the Treaty of Rome 1957, which stated in its preamble that the founding states were "resolved to strengthen the safeguards of peace and liberty by establishing this combination of resources". In the case of the AU, peace and security is more prominent in the purposes one of which is to "promote peace, security, and stability on the continent", 45 while the UN's primary purpose is depicted as being the achievement of international peace and security. 46 This is supported by the range of powers granted in the UN Charter to the most powerful organ, the Security Council, which are exclusively concerned with peace and security. 47 The plenary organ's powers are also largely designed to create a normative framework to achieve peace and security, although this framework also includes socio-economic matters and human rights. 48 The UN's competence to create peacekeeping forces ceased to be controversial after the dust In the field of peacekeeping the UN exhibits the greatest autonomy and this is further reflected in the fact that the UN historically has accepted responsibility for the wrongful acts of its peacekeeping forces as subsidiary organs. 58  applies. 61 Article 6 states that "the conduct of an organ or agent of an international organization in the performance of function of that organ or agent shall be considered an act of that organization", while Article 7 states that the "conduct of an organ of a State … that is placed at the disposal of" an international organisation shall be considered an act of the organisation if it "exercises effective control over that conduct". Given that a peacekeeping force is both a UN subsidiary organ (as recognised by the UN) and a collection of organs of states (in the form of contingents from TCNs) then, in theory, either or both Articles are applicable. However, the ILC in its commentary views issues of attribution of conduct in peacekeeping operations as coming within the test under Article 7 rather than Article 6. 62 That position does not extinguish UN responsibility even when it does not exercise such a high degree of control if the UN continues to accept it. 63 The gradual emergence of the UN from behind its shield of immunity in Haiti, 64 but only in the sense of accepting moral rather than legal responsibility for the lethal outbreak of cholera due to the negligence of its peacekeepers in 2010, 65 is an acid test as regards the UN's status as an independent moral and legal actor.
Immunity from the jurisdiction of local courts is potentially a negative aspect of autonomy although its rationale is to protect the UN's independence from interference by member states. On the other hand, accountability is a positive aspect and its presence would show a growing confidence in the robustness of the UN's legal order, in the sense that the order has not only generated norms of conduct for peacekeeping operations and peacekeepers, but that compliance and accountability mechanisms are also developing. A developed legal order should contain both primary rules and secondary means to ensure compliance, and accountability for violation. 66  Chapter VII. While UN-authorised peace enforcement operations are "managed at the operational level by a non-UN entity such as a regional arrangement, coalition, or lead state", UN peacekeeping missions are "managed at the operational level by the UN itself (today through the Department for Peacekeeping Operations/Department of Field Support)". 73 UN command and control is not complete but neither is it a chimera. 74 Orders are given by the UN Force Commander to those in command of TCNs, but there is the possibility that some of the more significant ones (for example to deploy a contingent into a more dangerous area of the host country) will not be followed after the TCN commander consults with his or her government. 75 There is also the lack of on-going control of specific operations once a command is given; but largely UN commands are followed and overall control is exercised by the UN over TCNs. Indeed, Johnstone has described the Secretary General's pivotal role in the chain of command as one of "norm entrepreneur", in that he must interpret the often broad terms of the mandate given by the Security Council and exercise his discretion in carrying them out. 76 Johnstone gives the example of the move after 1999 towards Chapter VII mandates for peacekeeping operations in order "to protect civilians under imminent threat of physical violence", though these instructions are limited by the phrase "within the mission's capabilities and areas of deployment". 77 These terms entail the delegation of "considerable discretion" to the Secretary General with, for example, robust action to protect civilians being taken by MONUC peacekeepers in the east of the DR Congo, "based on an expansive reading 72  of the mandate" including pre-emptive action against some of the armed groups on the grounds that they were a "constant threat to civilians". 78 territorial integrity and political independence of states"; "non-intervention in matters that are essentially within the national jurisdiction of any State"; as well as respect for the more specific basic principles of peacekeeping, namely "consent of the parties, impartiality and the non-use of force except in self-defence". 82

Evidence of a Legal
These principles are adapted from quite basic and orthodox axioms of international law: sovereignty; non-aggression and non-intervention; but have proved remarkably adaptable to the changing nature of conflict, post-conflict violence and peacekeeping, so that in the most recent UN iteration of peacekeeping doctrine (the Capstone Doctrine of 2008), force is allowed against spoilers or other non-state actors that undermine the peace. Consent is linked to a peace process or peace agreement, and impartiality is in the application of the force's mandate, not neutrality between the parties. 83 It should be borne in mind that this was anticipated by the Congo force in the 1960s, when the International Court of Justice found that ONUC did not constitute enforcement action exclusively within the competence of the UN Security Council because it was based on the consent of the government and did not take military measures against any state. 84 Nevertheless, the force engaged secessionists, mercenaries and other armed groups in combat.
The influence of UN doctrine on regional organisations such as the EU and AU is not simply through the UN's dominance of the field and the fact that it very often mandates regional or joint UN-regional operations, but is also due to the provisions of Chapter VIII of the UN Charter, which establish the basic legal framework for regional organisations. Article 52 states that nothing in the Charter precludes regional organisations from "dealing" with such matters of peace and security "as are appropriate for regional action", provided that "their activities are consistent with the Purposes and Principles of the United Nations". Consensual peacekeeping, based on UN principles as developed by the universal organisation outlined above, can clearly come within this provision. When it comes to enforcement action, however, Article 53(1) states that such regional action must come under the "authority" of the Security Council, requiring the "authorization" of that body. Furthermore, the application of international actor between states or within states, in these instances the UN acts as a statelike autonomous actor. 98 The infusion of Chapter VII elements into peacekeeping mandates has introduced the idea that the right to use lethal force is grounded in UN Law rather than in those international regimes that regulate the use of force by statesthe jus ad bellum, the jus in bello, and international human rights law. Operating normally outside of an armed conflict, the trend has been to recognise that peacekeepers have a very robust right of self-defence that includes using force to protect civilians and essential property, but also to protect the mandate, meaning that peacekeeping forces should not simply respond to attacks but should be proactive and prevent them. That might lead them to engage as combatants and therefore be bound by international humanitarian law as recognised in the Secretary General's Bulletin of 1999, but even that was a form of incorporation by administrative act into UN peacekeeping law. 99 When not engaged as combatants peacekeepers seem to be subject to a legal regime that is not as restricted as provided for in human rights law, which allows state agents to use potentially lethal force in self-defence when absolutely necessary in defence of themselves or others, to effect and arrest or prevent the escape of a detainee, or during action to quell a riot or insurrection. 100 The UN has, in effect, shaped a new law governing the use of lethal force by peacekeepers drawing on the powers contained in Chapters VI and VII of the Charter; one that ranges from a UNEF model of passive peacekeeping with peacekeepers defending themselves from attack, to proactive protection operations with peacekeepers preventing attacks on civilians by taking initiatives in using force, to all out enforcement against non-state groups. Bearing in mind that, at the same time, UN peacekeepers when not engaged as combatants are themselves protected from attacks against them under UN Law by virtue of the 1994 UN Convention on the Safety of UN and Associated Personnel and by provisions in the Rome Statute, 101 then the result is an independent armed force subject to its own legal regime separate from the national legal order of the hosts state, and increasingly autonomous from general international law.
That, of course, may be immediately appealing as it represents the evolution of a legal order specific to the needs and many functions of peacekeeping, but it does represent a significant legal development that largely sits somewhere between the relatively tightly restricted occasions when authorised agents can use force in peacetime (in human rights law), and the general right to use of lethal force against combatants in wartime (in international humanitarian law). This may be of greater concern when the increasing use of private security contractors by the UN is taken into account, given that UN control over such actors is largely of a contractual rather than a military nature, meaning that the application of UN peacekeeping law to these forces will be problematic. Although UN doctrine restricts such actors to specific tasks such as guarding, which will not usually expose them to military action, they remain armed personnel in hostile situations and as such there will be occasions when they use lethal force. 102

Peacekeeping and Peacebuilding
The expansion of peacekeeping forces into peace operations, starting with the multidimensional force in Namibia in 1989, has increased the autonomy of such operations, with the so-called "civilianization" of peacekeeping reflecting a trend towards UN administrators exercising sovereign powers, most clearly in East Timor and Kosovo in 1999. 103 Sovereign powers cannot easily be reconciled with the UN Charter. Indeed, the necessity of the UN exercising sovereign powers when necessary for the purposes of achieving peace and security without a clear prohibition on such, encapsulates the idea of inherent powers of the UN rather than powers that can be tied back to the intent of the drafters. Although peacekeepers play a vital role in these operations, the influence of TCNs has been watered down by the growth of administrators who work for the UN and not their national states. 104 'Peacebuilding', defined by the UN Secretary General's Policy Committee in 2007 as a "range of measures targeted to reduce the risk of lapsing or relapsing into conflict by strengthening national capacities at all levels for conflict management, and to lay the foundations for sustainable peace and development". 105 It is a distinctly UN phenomenon, evidenced by the establishment of the Peacebuilding Commission by joint resolutions of the Security Council and General Assembly in 2005. 106 It intimately involves the UN in stabilising, often reconstituting, a post-conflict state, something that cannot be entrusted to individual states. That Commission has been underpowered in practice due to the reticence of key states, but this dependency will be reduced as other UN programmes and agencies such as the World Bank, and non-state actors including foundations, charities and businesses coordinate their actions.

Conclusion: Limiting Autonomy?
Of course the direction is not all one waytowards increasing autonomy of peacekeeping law and practice. The influence of states, especially TCNs, remains strong so that sovereign concerns prevail in a number of circumstances. For instance, the availability of troops for UN peacekeeping is weighted in favour of TCNs under the existing standby agreements between the UN and states, 107 referral by TCN commanders of problematic UN commands to their governments for approval or not remains endemic, and TCNs from developing countries still interpret the rules on the use of force conservatively despite what is stated in UN doctrine and in the mandate. 108 Furthermore, in the case of conflicts between UN and TCN rules of engagement the latter may well prevail in practice, 109 something that is primarily because military discipline remains with the TCNs and not the UN. The standard SOFA of 1990 is geared to protect the troops from local prosecution but, in so doing, it allows a huge amount of TCN discretion being exercised on the issue of accountability of peacekeepers. 110 The UN seems reluctant to do anything about this by, for example, introducing fundamental human rights guarantees into SOFAs or in the form of a Bulletin on Human Rights, 111 given that it might impact on the availability of troops for its operations.
While the above can be represented as a ways of providing checks on the growing autonomy of the UN, they also contribute to the lack of accountability of the UN for the misconduct or lack of due diligence of its peacekeepers. The lack of accountability is also contributed to by UN immunity before national courts, 112 and also because of the consolidation of the "effective control of conduct test" for attribution often giving rise to responsibility on the part of the TCN but not the UN. 113 Consciously or not, by preserving a significant degree of control over their military contributions to peacekeeping, TCNs have contributed to what might be called the negative autonomy of UN peacekeeping, namely the lack of UN responsibility and accountability for the wrongful acts or omissions of peacekeepers.
There is plenty of evidence that there now exists an autonomous legal order governing peacekeeping, in which the UN is the dominant lawmaker and actor and in which specific rules, for example, on the use of force have been developed. Furthermore, there is some evidence that those rules on the use of force are not fully compatible with general international law. In addition, while the rule-making element of an autonomous legal order for peacekeeping is present, there remain serious gaps in enforcement and redress when those rules are breached. 111 Recent SOFAs incorporate references to international humanitarian law treaties but not to human rights ones.