at
THE NATIONAL DEFENSE UNIVERSITY
Washington, D.C.
by
Thomas B. Baines
Copyright © Thomas B. Baines, January, 6, 1997
THE LAWS OF WAR AND THE RULES OF PEACEKEEPING
This paper is not intended as an exhaustive treatise on the laws of war, nor a complete discourse on planning and prosecuting peacekeeping missions. It does not delve into the diplomatic exigencies of various formulations of peace protocols to be negotiated between and among parties to a conflict and peacekeepers assigned to assist them. It is aimed specifically at raising some moral and ethical challenges that arise in the context of military operations in support of peacekeeping, and proposing some institutional formalisms to help limit the potential negative consequences of dealing with these challenges.
PRINCIPAL ASSERTIONS
The future of peacekeeping missions will be focused on activities and objectives not anticipated by the framers and developers of traditional Laws of War. It is becoming clear that:
The future of peacekeeping organization and control will be framed in terms of what the Canadian Institute of Strategic Studies has called "The New Peacekeeping Partnership"...a working arrangement among military forces, humanitarian aid agencies, "governance" officials, non-government organizations, and civilian police. The traditional laws of war cannot contain the activities of such arrangements.
A new instrument of international law must be developed to make it possible for military commanders to function responsibly and effectively in peacekeeping roles. I use the term instrument to indicate a standard format document to be "filled in" by the international body which raises and directs the employment of a peacekeeping force. This instrument will include concepts drawn form the laws of war, but will also include some from international criminal law. As bad as it sounds to one steeped in the U.S. military tradition, I think peacekeepers must learn to function under rules similar to those imposed on civil law enforcement in most western nations- i.e. the requirements for a showing of probable cause for action, and rules on the escalation to and use of deadly force.
THE CONCEPT OF "JUST WAR" AND ITS CONSEQUENCES FOR PLANNING AND MANAGING PEACEKEEPING OPERATIONS
Events and developments occurring in the latter part of the 20th Century have called into question the legitimacy of war as an instrument of international policy. War has become far more destructive and brutal with the reliance on airpower and stand-off weaponry, mines, and greater firepower for the individual soldier. As the nature of war has changed¹ since WWI, the standards by which the morality of military action is judged has also changed. The diminished legitimacy of war as an option for attaining the objectives of a state power has not diminished, however, the threat of violence. Internecine and localized struggles based on ethnic, religious, and cultural schisms have increased the likelihood that there will outbreaks of bloodshed that threaten international peace and moral rectitude. Response to these threats must be managed according to standards and protocols that maintain not only the appearance, but also the substance of impartiality and justice.
Western military policy is based in the concept of just war. As all scholars of the subject are aware, under the concept of just war there are two distinct standards of action and four premises of instantiation by which the planning and prosecution of a military action are examined². The first standard is that of jus ad bellum, the just initiation of combat. This standard requires that military combat be an instrument of last resort - military action is justified only when diplomacy has failed in gaining protection for important national interests. The second standard is that of jus in bello, the just prosecution of war - when combat begins, fight with efficiency and discrimination so as to win with a minimum of destruction and suffering.
The premises of instantiation are used to determine the justification for a specific military act of one state against another, short of war. A premise is referred to by a state initiating military action as justification for that action. These premises are:
The legality of humane intervention has been debated for a century or more, but the practice of states and international bodies seems to have erased such doubts3. The legitimacy of intervention to assist a state in responding to an armed uprising of its own citizens is still highly debatable, however4, as is the use of intervention to respond to state-sponsored terrorism5.
THE EXPANSION OF DEMAND FOR PEACEKEEPING FORCES AND THE RESULTING "AMENDMENT" OF INTERNATIONAL LAW
The post-cold war world has seen military conflict removed from the purview of dueling superpowers and returned to "the people" as an option for resolving age-old perceived inequities. As the Morrises and I have written elsewhere:
[As] "[t]ransnational and subnational groups, rogue states, and breakaway republics, civil warmongers and tinhorn dictators, ethnic purists, and religious fundamentalists all see the inchoate environment of the post-cold-war world as an opportunity to seize or increase power. The result is an environment of spreading destabilization that can be characterized as chaos6.
This chaos has resulted in a growing demand for international and regional organizations to provide military forces to ensure that those embroiled in the chaos do not, of necessity, breach the fragile peace possible with the reduction of tensions among the superpowers. To effectively respond to this chaos, however, the redefinitions of the "roles and missions of not only militaries but diplomatic corps and international entities such as the United Nations and the North Atlantic Treaty Organization (NATO), as well as the role of the United States as world leader and the single remaining superpower, are critical lest chaotic destabilization erode the credibility of the international community to maintain order and the rule of law."7
Lawyers, by nature, abhor chaos. They view such circumstances as an opportunity to show that order, like beauty, is in the mind of the beholder. When international legal scholars attempt to fit a specific set of facts into an existing rule of law to determine appropriate action under an existing treaty or agreement, they follow a logical process that generally includes the principles stated in Latin as rebus sic stantibus, ceteris paribus, and mutatis mutandis. The first principle says that, if it can be shown that there has been such a fundamental change in circumstances as to obviate the intention of the parties to the treaty or agreement, the parties must either amend the pact or one of them can declare it null and void. The second principle implies that, if one can show that, with a noted change in interpretation of either the facts or the pact, the obligations of the parties can be clearly maintained, the pat is still valid. The third stated principle is a catch-all that implies that, under an appropriate change in interpretation of the facts, the rule of law is still applicable to the parties to the pact. Needless to say, the commander of a military peacekeeping force in the field finds it at least irritating to stall decisions about the use of force to protect his or her troops from an armed band of "former belligerents" while the lawyers sort all this out.
The problems for the peacekeeper lie in the nexus between the traditional laws of war and the premises of instantiation, and the growing body of international humanitarian law.8 This nexus has grown out of the reality that most of the conflicts that are likely to be the subject of modern peacekeeping operations are not characterized by the clear specifications of legitimate state authorities and responsibilities assumed by traditional international law to be available for satisfying human rights considerations.
Based on such declarations as Common Article 3 of the 1949 Geneva Conventions, and the Universal Declaration of Human Rights9, human rights law was traditionally focused on the peacetime relationship between states and their own nationals. Increasingly, with the distinction between internal and external conflicts being blurred by the acts of those pursuing "wars of self determination" and "wars of national liberation," the norms of humanitarian law are being applied regardless of the official status of persons involved in a conflict (combatant or non-combatant). The reality is that few of the conflicts are between or among "states" as anticipated by traditional laws of armed conflict. They are, instead, prosecuted by persons with tribal, religious, cultural, or economic objectives that are not contained with political boundaries10. The contingencies likely to be faced by peacekeepers will not fit nicely into the formalisms of traditional international law.
These contingencies...are characterized by the absence of an easily identifiable adversary who can be isolated and attacked; by the intermingling of combatants and non-combatants; by limited U.S. stakes that diminish our tolerance for high costs and friendly fatalities; and by a desire to ...[minimize] the damage, death, and lingering bitterness resulting from "peace enforcement" operations.11
This nexus of the laws of war and humanitarian law become most problematical when military personnel become involved at the fine line between peacekeeping and peace enforcement.
Colonel James H. Allen, a retired Canadian Army officer and highly experienced peacekeeper has stated unequivocally that:
Once violence erupts the peacekeeper must often wait until the smoke of battle clears and the parties have agreed to their first steps toward conflict resolution. In cases where the fighting does not stop and a decision sis taken to intervene regardless, we are no longer talking about peacekeeping, but rather enforcement, intervention, or plain old war. Whatever we call it, we are in a totally different province from peacekeeping.12
This distinction is workable only so long as one abides by a definition of peacekeeping that may no longer be meaningful. For Allen," peacekeeping" must be limited to situations where:
Allen's essential elements of a successful peacekeeping operation are in general accord with proponent of "new approaches" for peacekeeping operations undertaken by the U.S.14, and the U.N.15
Allen rues the blurring of the distinction between peacemaking and peacekeeping typified by such policies as that espoused by the 1992 Agenda for Peace, promulgated by U.N. Secretary General Boutros-Ghali16, with "peacemaking" distinguished as diplomatic activities, and all other functions and operations entailed in "peacekeeping." This characterization allows only distinctions among peacekeeping missions where the military involved have a right of enforcement, and where they do not. In recounting his own experiences as a peacekeeper, Allen clearly attests that this blurring of missions has made military planing, command, and control within peacekeeping extraordinarily difficult, if not impossible.
The U.N. has officially maintained as late as 1990 that it would stringently observe the distinctions between peacekeeping and enforcement.17 Further, a major thinker on U.N. peacekeeping policy has listed the requirements for successful peacekeeping as:
In forming the concepts under which NATO and the WEU will cooperate to attain stability and peace throughout the trans-Atlantic community, the diplomats and drafters did not specifically mention peacekeeping as a mission. The promulgation of the Strategic Concept for cooperation took place in May, 1992. It was not until late June that agreement could be reached on how NATO would provide support to the Council on Security and Cooperation in Europe "on a case by case basis" for peacekeeping activities. Even after issuance of a communique in December, 1992, confirming that NATO was prepared to cooperate fully in peacekeeping operations with the WEU, there was still no agreement of the "practical options and modalities" for conducting such operations, as had been called for in June.19
Based on the U.N.'s recent record of peacekeeping missions nearly all of the stated essential elements of a peacekeeping operation will be non-attainable in any actual circumstances.20 The military commanders on the ground will be forced to deal with political ambiguities which must be translated into military contingency plans, with a real potential for disaster. Too often, the very people that peacekeepers are sent in to protect become incensed when the peacekeepers, acting pursuant to their stated mandate, refuse to make peace a zero-sum game, with no clear winners or losers.21
The dilemma for the military as stated by one writer, is that "Forces must not cross the impartiality divide from peacekeeping to peace enforcement. If perceived to be taking sides, the force loses its legitimacy and credibility as a trustworthy third party, thereby prejudicing its security22." That distinction between peacekeeping and peace enforcement has caused the greatest difficulties for U.S. forces involved in peacekeeping, because they, like personnel from most Western nations, bring a specific set of assumptions, beliefs, and perspectives with them into a peacekeeping operation.
Bozeman goes on to point out that the collection of presumptions that Western civilization is imbued with are carried into every involvement with non-Western cultures.
These ideas culminate in a belief in the virtue of "progressive" societies, which are focused on change and development. In most of the non-Western world, people hold to a polar principle - that societies exist to protect status, not develop it.25 Bozeman quotes, for example, President Mohammed Zia Ul-Haq, the late President of Pakistan who said "[Western] democracy is a bitter pill to swallow."26 President Zia made that comment in discussing how the requirement to share political power with those intending to change a government, and accommodating speech and behavior inimical to social norms established by a religious and cultural majority were so hard to manage in a post-colonial nation.
Western diplomates and military commanders planning a peacekeeping operation may thus be faced with a determined reluctance to embrace one of the main elements of a successful peace - a willingness on the part of the parties to the conflict to change the status quo so that the reasons underlying the conflict are eliminated.
The U.N. has demonstrated that peacekeeping operations conducted under it's aegis will henceforth pay less attention to the clear distinctions among peacekeeping and peace enforcement.27 NATO, while showing great concern for establishing "effective civil-military relationships", has not clearly dealt with this issue.28 In establishing the Combined Joint Task Force to meet peacekeeping requirements, the drafters made a distinction between peacekeeping and humanitarian operations, but not between peacekeeping and peace enforcement.29
If the shift from the traditional distinction between peacemaking as a diplomatic function, peacekeeping as a observational function without enforcement responsibilities, and peace enforcement as a collective military operation ab initio, the set of Western moral and cultural "perquisites" can be the source of enormous difficulties for the individual soldier, sailor, marine, or airman, regardless of his or rank or position, when thrust into a peacekeeping mission planned, executed, and managed under traditional international legal premises.
Because operations other than war, including peacekeeping missions conducted under the premises of the U.N.'s Agenda for Peace, will bring Western troops into conflict with cultural and historical antecedents which we a), do not comprehend, and b) tend to ignore, we may cede to the belligerents much of the arguments about discrimination and proportionality. Problems will occur when Western-bred commanders and troops, operating under generalized mandates and vague rules of engagement that do not account for the actual uncertainties on the ground. Military personnel, no matter how well prepared, may resort to moral relativism and parochialism in resolving uncertain situations. Moral relativism can cause a military commander to determine that "immoral" acts committed by a belligerent justifies an "exceptional" response by peacekeepers.30 The question then becomes whether basing action on a just war foundation "merely serves as a rationalization" for whatever the states convening the peacekeeping force determine to do.31 Attempts at maintaining strict formalities as to the use of force can cause terrible unforseen consequences, as stated by a leading scholar on the application of the just war paradigm.
Short of fostering a Mai Lai incident, however, placing military commanders in circumstances calling for them to make moral decisions between strict adherence to Rules of Engagement and the safety of his or her forces in circumstances not anticipated by the authorities convening a peacekeeping operation can lead to horrific outcomes.
Although the U.S. war in Viet Nam was not a peacekeeping operation (if one overlooks the fact that it was ostensibly begun as a "police action"), it involved a number of examples of the consequences of setting up decision environments wherein operational leaders are faced with the legitimate concern for the effectiveness and safety of people under their command, and with externally imposed constraints subject to frequent interpretation and amendment. Such constraints not only complicate the mission but also unnecessarily imperil the military forces. As a recent article put it, "[Military leaders in these circumstances] face two realities. First, they do not have a lot of options. Second, none of the options are attractive.33 A perfect example is the saga of General John D. Lavelle, commander of U.S. Air Forces toward the end of the war.34
When General Lavelle inherited the Rules of Engagement in August, 1971, they maintained a presidentially imposed constraint on when U.S. aircrews could attack enemy aircraft or weapons systems. Essentially, there could be no engagement unless a U.S. aircrew was under imminent threat. (This is the same constraint imposed on coalition aircrews operating in Iraq and Bosnia today.) This implies that there must be evidence that a specific SAM site"activates" against a specific aircraft before armed response could given. This constraint was intended to foster the ongoing peace talks in Paris, and to prevent any claim that the U.S. was taking armed response against "non-combatants" who might be living near a SAM site. When the NVA integrated its early warning, surveillance, tracking, and guidance radars and communications, they were able to launch missiles with out warning or detection by the aircrews targeted. Lavelle decided that the entire system was constantly "activated." He attempted to get the ROE amended to reflect reality. The changes were denied. The result was a terrible loss of life As U.S. aircrews were brought down by undetected SAM's. Lavelle then had to make a choice between the ROE and the safety of his aircrews. He chose the latter. He directed that aircrews report detecting "fan song" (detection) and "fire can" (tracking) radar engagements, and then used those reports to direct "retaliatory" strikes. Lavelle was made the subject of Congressional inquiry and Air Force Inspector General investigation. He was demoted to Major General and forcibly retired in April, 1972.
General Lavelle's decisions and his handling of the consequences affected his entire command. Command integrity deteriorated with the effect that personnel up and down the command chain believed that it was OK to submit false reports and intelligence. After a while, no one believed any official statement about anything.
Future peace operations will be further complicated by the increasing involvement of non-military Non-governmental Organizations (NGO's), such As the International Red Cross, and relief organizations such As OXFAM. These groups will assume massive importance in the actual care and feeding of the victims of cultural conflict and political warfare. The difficulties for the military personnel in this arrangement is that:
They may need the military for security, but cooperate only reluctantly, and they have pre-existing security arrangements with local "protectors" who may be reluctant to give up this source of income.35
Such a consequence arose during U.S. humanitarian operations in Somalia.36 In October, 1993, the world was presented with television images of the desecration of dead Americans in the streets of Somalia. The events that lead up to those scenes were predicated on decisions made by military officers on the ground who perceived that their forces were in imminent danger from rogue armed gangs who had developed a symbiotic relationship with the agencies dispensing food and medicine. These gangs, in the absence of any constituted civil authority, contracted with aid agencies to provided "security" for persons and stores of supplies. (In Chicago, we call this the protection racket.) Control of the flow of this aid became a source of power for the warlords. When U.S. military forces began providing "impartial" security for aid workers and supplies, the warlords retaliated in small ways - slashed tires, small fires, and random shots fired. As time went by, the threat of more violent retaliation was registered. U.S. policy makers and diplomatic authorities were unable to establish clearly how the ROE could be interpreted in the face of such a threat. The U.S. commanders requested specific and public guidance, but none was forthcoming. The result was the mounting of the ill-fated missions to capture Adib As an example to the other warlords. As in the situation with General Lavelle, the military officers who acted to protect their troops from a threat not anticipated by the ROE, this time based on a peacekeeping mandate (no use of force except when under an actual attack), found themselves with no good choices. The image of the U.S. elite forces was unnecessarily tarnished, and promising careers were ended prematurely.
IS THERE A BETTER WAY?
In his 1990 book, LIC 2010: Special Operations & Unconventional Warfare in the Next Century,37 Colonel Rod Paschall, U.S. Army retired, and a highly experience former Special Forces operator and planner, laid out sound reasons for acknowledging that military activities in peacekeeping were something supportive of, but distinctly different from the diplomatic definition of peacekeeping. Col. Paschall suggests that military activities in peacekeeping are designed to maintain conditions which foster a state of peace, and should properly be called stability operations. The formula for Paschall is peacekeeping + any measure of enforcement= stability operations.38 Such are operations are a sub-set of low intensity conflict; and that, should hostilities on the ground escalate to combat between regular armed force - e.g. between regular organized forces, continuously in the field, using coordinated maneuver and fire to gain identified military objective - then the mission has become war, As limited geographically and technologically As the conflict may be. This formulation is even applicable to humanitarian intervention where there may not be a pre-existing cease-fire, or consent of all parties, and, As we have seen in Somalia, Haiti, and elsewhere:
This formulation also makes more sense than current U.S. Army doctrine which defines peace operations As entailing support to diplomacy, peacekeeping, and peace enforcement; with "military humanitarian assistance" tagged on As "an area of concern."40 It is far better, in terms of defining roles and missions for military forces to establish that some level of conflict is likely to be encountered in every peacekeeping and humanitarian intervention activity. Such a formulation allows us to make much better use of the topologies and categorizations of peacekeeping tasks that thoughtful writers have given us.
Arnold Kanter and Linton F. Books agree with the Morris and me that "widespread intervention will play a growing role in future U.S. policy."41,42 They go on to note that the interaction of feasibility, desirability, and cost yields three categories of potential U.S. action for what others call peacemaking, peacekeeping, and humanitarian activities. The categories and characterizations given by Kanter and Brooks are:43
| THREAT TO INTERESTS | AVAILABILITY OF ASSETS | APPROPRIATE RESPONSE | |
| 1 - "Mandatory" Action | | ||
| 2 - "Unwarranted" Action | |||
| 3 - "Discretionary" Action | |
There is nothing magic about this table, but it does clearly lay out the issues that must be dealt with in determining whether a peace operation is feasible and practicable. What this formulation means is that, when the threat to "important" interests are at stake, there assets available to prosecute a mission, and the appropriate response to the situation on the ground is clear, military action is mandated by international and domestic political and humanitarian standards. For such situations, a standardized contingency can be implemented to guide the operation. If the threat to such interest is low or the appropriate response is unclear, no response is warranted or advisable. If the threat, the availability of assets, and the appropriate response are all unclear, then discretion must intervene, and a unique answer to the situation must be formulated. This is very much like the conditions for Preplanned and Contingency operations that all military planners recognize. It is also consonant with the elements that must be present for any significant United States involvement in the kinds of expanded peacekeeping operations envisioned by the Agenda for Peace, which have been stated As:
While they insist on maintaining the distinction between peacekeeping and peace enforcement, William J Durch and J. Matthew Vaccaro discuss what they call "multidimensional peacekeeping," which includes not only reduction of tensions between and among former foes, but also implementation of a peace accord that addresses the underlying causes of conflict, with an implementation schedule and a timeline.45
They go on to say that "[b]ecause multi-dimensional peacekeeping primarily involves settlement of internal conflicts, it operates in a much more complex domestic political environment that traditional peacekeeping," and includes "sizable civilian components in the peacekeeping force.46
Based on the evidence that I have presented above, I submit that this "multi-dimensional" peacekeeping will be the norm, and not the exception for future peace operations. I also submit that Rod Paschall's formulation of such operations As "stabilization operations" if far more instructive As to the true nature of the military activities involved.
To develop both pre-planned "standard" packages for either type 1 or type 3 responses to peacekeeping situations, one must shave a clear idea of what tasks are involved. I find the task lists presented by Durch and Vaccaro to be a good starting point.47 They list tasks that are:
It seems clear that what I follow Rod Paschall in calling stabilization operations entail tasks that are new to the traditional military planner, and familiar tasks that must be "rethought" to make them applicable in these new mission areas. It also seems clear that there must be a standardized way of adjusting the mix of tasks and forces As the diplomatic and political actors "continually reassess and adjust objectives and the composition of the force" once the operation is on the ground. Of particular concern is how to adjust the ROE and the distribution and commitment of firepower As the contingencies faced unfold. This will require a clear and documented presentation to the authority convening the operation, I think, of facts calling for the intended changes, and of the expected results of such changes. If the presentation convinces the authorities, the military commander should then be permitted to make adjustments. If the commander is denied the changes, there should be a clearly defined process whereby the commander can remove his forces from the perceived threat that prompted the request for change. Most importantly, if a situation arrives whereby the commander, or anyone in the force, exceed the level of deadly force permitted under the ROE, by either type or volume, there should be a clearly defined process for conducting an investigation into the conditions under which the excessive use of force occurred. This investigation should not be conducted by the commander or the convening authority. It should be done under the aegis of a body such As the proposed International Criminal Court,48 to insure that there is not only actual impartiality, but apparent impartiality in the findings of the investigation.
To create a workable system whereby the facts underlying the decision to convene a stabilizing operation are well documented (As per the Kanter/Brooks topology); that the appropriate mix of tasks and forces are laid out (As per Durch and Vaccaro); and, that the ROE are logically adjusted As the situation on the ground unfolds, and exceptions to the ROE are properly documented and investigated, the international community should adopt a standardized formality on which these considerations are proposed, discussed, and documented. I suggest that something analogous to the notifications protocols in use by the arms control community would be most suitable. These protocols provide standard formats for messages and documents which declare and validate the production, movement, storage, and destruction of weapons subject to the various arms treaties. A similar system of protocols and standard formats, together with a clearly planned organization structure and process for generating notifications of changes in the objectives and adjustment of the force. This arrangement will require that the diplomatic corps be somewhat more open As the actual status of an operation, and the military corps be somewhat less parochial and defensive about making necessary changes in force structure and tasks allocation. As a stabilization operation unfolds, however, there would be a greater likelihood of effective and efficient prosecution of stabilization missions, and a diminished likelihood of the sorts of moral dilemmas that have plagued these operations in the past, and threaten to arise in the future.