LAW AND ORDER VACUUM: Key Issues and Dilemmas

ADDRESSING THE INSTITUTIONAL LAW AND ORDER VACUUM:
KEY ISSUES AND DILEMMAS FOR PEACEKEEPING OPERATIONS

Bruce ‘Ossie’ Oswald, Lecturer at the Faculty of Law at the University of Melbourne, Australia and Associate Director of the Asia Pacific Centre for Military Law September 2005

Executive Summary

United Nations (UN) peacekeeping operations are frequently deployed into areas in which local law and order institutions have ceased functioning. In such situations, criminal activities continue unchecked, lawlessness dominates local community life and spoilers can pose a constant threat to the safety of the Host State population and of international peacekeeping personnel.

Where lawlessness prevails, it is unlikely that a peacekeeping operation will be able to fulfil its mandate. When military peacekeepers encounter an individual in the midst of committing a violent crime against the peacekeepers or against the local population, they frequently have no Host State police or judicial counterparts to turn such individuals over to and no clear mandate to address the situation. Moreover, the peacekeepers themselves may lack the skills needed to engage in policing, judicial or detention-related activities and often have few options other than to disarm and release the perpetrator. Emboldened by this impunity, the perpetrator might repeat the same criminal conduct the next day, encouraging others to engage in such conduct and posing a serious threat to the local population, to the peacekeeping operation and to the prospect of sustainable peace.

These environments raise complex issues and dilemmas for those planning, managing and conducting peacekeeping operations. To date, however, responses to this problem appear ad hoc and driven more by exigencies on the ground than by policy and prior planning. No firm policy has been developed within the UN or its Department of Peacekeeping Operations (DPKO) to meet the challenges posed by institutional law and order vacuums.

This paper,1 therefore, explores the implications of the nature and extent of institutional law and order vacuums in post conflict environments, the political and legal dimensions of peacekeeping operations, the capacities of local law and order authorities, and the appropriate role of international peacekeepers for DPKO. It seeks to stimulate further thinking as to the optimal role of military and civilian peacekeeprs in addressing this gap on an interim basis, in situations where the UN is not mandated to administer the territory into which it is deployed. Based on the analysis, it concludes that the UN, its Member States and other interested bodies will need to create policy options and corresponding rules and guidelines for the deployment of a peacekeeping operation into an institutional law and order vacuum.

Introduction

More and more frequently, peacekeepers are deployed into situations where the local criminal justice structures, particularly police, judiciary and correction authorities (hereafter referred to collectively as ‘law and order authorities’) are no longer present, or are unwilling or unable to carry out their duties. Peacekeepers often work in hostile and anarchical operational environments where armed groups may still be involved in intermittent hostilities, and/or other persons may be committing crimes with impunity due to the absence of local law and order agencies. The sense of lawlessness may be compounded by the destruction of public and private infrastructure and a lack of legitimacy of former law and order institutions.

The absense of law and order can undermine efforts to achieve the stability and security necessary to attain lasting peace and to rebuild society. Failure to examine and find solutions to fill the institutional law and order vacuum will continue to jeopardise the security of peacekeepers and that of the local population. This in turn can result in a loss of confidence in the UN by the local population, and regularly leads to groups and individuals taking the law into their own hands. In addition, an ineffective response to ethnically motivated crime, organised crime, and the presence of extremist organisations is highly likely to impact adversely on domestic and regional security. Consequently, military peacekeepers have often had to undertake functions to try to restore and maintain basic law and order on an interim basis in order to provide the safe and secure environment that is essential to successful state building.

These situations require consideration of the following issues: the extent to which peacekeepers should restore and maintain law and order; the strategic, operational and tactical consequences of undertaking such functions; and the appropriate organisational and institutional structures for carrying out such functions. This paper explores these issues in order to assist those planning, managing and conducting future peacekeeping operations in developing an appropriate policy on how best to restore and maintain law and order on an interim basis in situations where the UN does not have an executive mandate. In light of the Secretary-General’s call for the UN and Member States to rethink current strategies for addressing the institutional rule of law vacuum,4 the role of peacekeepers in restoring and maintaining law and order should be translated into an operational and normative framework within which to plan, manage and conduct such functions in a holistic and consistent manner.

Background

The UN has, from its involvement in the first armed peace operations, recognised the importance and necessity of undertaking law and order tasks on an interim basis. In his 1958 report on the First United Nations Emergency Force (UNEF I), the Secretary-General recounted how UNEF ‘took responsibility for maintaining law and order in certain areas, in cooperation with local authorities … [provide] security, … took measures to protect civilian life and public and private property … and exercised a limited power of detention. During this period, UNEF was called upon to investigate a number of incidents, such as violations of the cease fire, missing personnel and smuggling.’

Since the UNEF I operation, peacekeepers have increasingly undertaken interim law and order tasks in order to respond to the hostile environment in which they and the local population have been placed, and to comply with their mandates and obligations pursuant to international law. Such interim law and order tasks have included: protecting secure or safe areas; providing crowd and riot control; escorting and protecting individuals and convoys; assisting delivery of humanitarian aid and assistance; using force to protect civilians and UN personnel from hostile threats and acts; confiscating weapons and other contraband; restricting the movement of individuals; intervening to stop serious crimes; conducting basic investigations of serious crimes; investigating allegations of gross human rights abuses; detaining individuals accused of committing serious crimes; providing testimony in criminal cases; and, on some occasions, conducting basic judicial proceedings and running interim detention facilities. In Cyprus, for example, UN military police were authorised to take ‘any Cypriot citizen committing an offence or causing a disturbance on [UN] premises … without subjecting them to the ordinary routine of arrest, in order to immediately hand him to the nearest appropriate Cypriot authorities for the purposes of dealing with such offences or disturbances.’8 In Cambodia, the UN force prevented and dealt with threats to public order and participated in border control. In Rwanda, in fulfilling their mandate to contribute to the security and protection of civilians, UN military peacekeepers were authorised by the Force Commander to search, disarm, and where necessary segregate, suspected criminals. They also held civilians accused of genocide in detention until they were handed over to the local district prosecutor, and conducted operations to disarm militias operating in the camps of internally displaced persons.

In Sierra Leone, peacekeepers provided logistics and security to the Special Court. During operations in Kosovo, military personnel serving with the NATO-led Kosovo Force (KFOR) undertook policing and detention management, and in the early days, local judges, prosecutors and defense counsel were flown into military premises to review and decide on detention. In East Timor, the International Force for East Timor (INTERFET) restored and maintained law and order by undertaking a range of tasks including limited investigations into crimes against humanity; the detention of people accused of serious crimes; and review of the status of those detained to ensure accordance with fundamental legal principles.

In the Democratic Republic of Congo (DRC), peacekeepers have undertaken operations to provide close personal protection for judges and other at-risk personnel, and forcefully disarmed civilians. More specifically, the UN’s Ituri Brigade in the DRC has carried out a number of law and order operations, including cordon and search operations and the detention of criminal suspects. Although not a UN operation, it is worth noting that the Regional Assistance Mission to Solomon Islands (RAMSI) undertook operations to assist in the provision of security and safety to persons and property; prevent and suppress violence; and support and develop Solomon Islands institutions. These operations included forcefully disarming locals and investigating allegations of serious crimes. In the most recent Haiti peace operation (MINUSTAH), UN peacekeepers have assisted with the maintenance of public safety and order.

Key Issues and Dilemmas

The challenge for those planning, managing and conducting peacekeeping operations is to decide how best to implement the mission’s mandate where an institutional law and order vacuum exists, while remaining faithful to basic peacekeeping principles: consent and cooperation; impartiality; the application of and adherence to the rule of law, particularly international human rights law; and the appropriate use of force. Critically, the issues and dilemmas which arise when implementing a mission’s mandate must balance concerns relating to the primacy of the local criminal system, local customs, and Host State sovereignty.

Political and Legal Dimensions

The political and legal dimensions of an operation may vary depending on myriad factors – e.g., whether the operation is based on a peace agreement, whether the operation is of a consensual nature authorized under Chapter VI of the UN Charter, whether the operation is authorized as an enforcement action under Chapter VII, and the degree to which the operation is able to garner the support and confidence of the local population. Generally, the most acceptable method for addressing the institutional law and order vacuum is to do so with the consent of the Host State and with the cooperation of the communities in which the operation operates. For example, a peace agreement entered into between warring factions may contemplate the use of peacekeepers to restore and maintain law and order in conjunction with local authorities. In other situations, it may be agreed that peacekeepers will mentor the local law and order authorities by providing expertise and resources. Where local authorities refuse to cooperate with a peacekeeping operation, or where local law and order authorities are unwilling or unable to fulfil their responsibilities, peacekeepers will need to consider the extent of the political and legal implications of their involvement more carefully. If a much higher degree of interference is to be required of peacekeepers, the political and legal justification for such interference, and its implications, will need to be considered from the perspective of both the Host State and the international community.

Where peacekeepers are working jointly with local authorities to carry out law and order functions, they will need to understand what, if any, express and implied limitations have been placed on them. While some peacekeeping operations recognise the primacy of the local law and order authorities and limit peacekeepers to supporting such authorities, the mandates for other operations authorise peacekeepers to protect civilian life and property where local authorities are unwilling or unable to do so.

Regardless of the relationship between local law and order authorities and peacekeepers, further reflection must be given to such matters as the most effective and efficient lines of cooperation and coordination, and command and control. A related dilemma which frequently arises in peacekeeping operations, particularly where the consent and cooperation of a new regime is fundamental to the success of the operation, is the categorisation of ‘spoilers’. Conflicts between peacekeepers and the new local authorities may arise where there is dispute over whether spoilers should be considered as ‘political opponents, criminal elements, or military enemies.’

A more complex question is that of the legal basis for peacekeepers to undertake law and order tasks without the consent of the Host State. If there is no consent, then peacekeepers will need to rely upon operational necessity and a robust mandate. In relation to operational necessity, military peacekeepers may justify undertaking those tasks that are reasonable and necessary for them to maintain a safe and secure environment. Peacekeepers may rely on express or implied powers to undertake law and order functions. A mandate may, for example, state that peacekeepers are to ‘provide security and maintain law and order throughout the territory.’ Where a mandate does not expressly authorise peacekeepers to restore and maintain law and order, the power to do so may be implied by the general tasks given to peacekeepers on that mission. For example, a mandate that requires peacekeepers to create a secure environment for
the distribution of humanitarian assistance; or assist with the maintenance of the rule of law, public safety and public order;14 or protect civilians under imminent threat of physical violence, should be sufficient to justify their involvement in some law and order functions. There is also a growing recognition that in circumstances where peacekeepers are faced with gross violations of international law (such as genocide, crimes against humanity or war crimes) they may be justified in stopping such violations by exercising law and order powers that are reasonable and necessary. Beyond this, there is a lack of clarity on the extent of peacekeepers’ obligation to protect civilians under imminent threat. Regardless of the justification used by peacekeepers to restore and maintain law and order, their actions must fall within the domestic law of the Host State. For example, domestic laws will stipulate procedural requirements as to jurisdiction; how criminal procedures are to be commenced; the powers of the police, prosecution, defence and the judiciary to investigate, deal with and try criminal offences; court procedures for certain criminal offences; sentencing powers; and appeal processes and procedures. If peacekeepers do not comply with these and other legal requirements relating to criminal law, procedure and evidence, the consequences could range from not being able to successfully try a person accused of committing a serious crime, to undermining local confidence in the way peacekeepers are exercising their powers. When not undertaking law and order functions directly, UN rule of law units may be tasked with liaising with other mission and local constituencies to develop a better understanding of the formal and informal criminal justice system. In this context it is important to explore the role that such units may play in facilitating early engagment of local approaches and robust capacity building. By engaging these capacities early, the peacekeeping operation is likely to be in a better position to transfer law and order responsibilities as soon as possible. Needless to say, if rule of law units take on such tasks they will need to be properly resourced and staffed.

Developing Doctrine and Procedures

The international community must continue to develop principles and standards to which peacekeepers should adhere when carrying out law and order functions. In the context of peacekeeping operations emphasis should be placed on identifying relevant principles and standards that set a ‘best practice benchmark’, rather than focusing only on the minimal standards to be met as a matter of law. International organisations and States must examine more closely the legal obligations and duties arising from undertaking law and order functions and tasks, particularly in light of applicable international standards including the International Covenant on Civil and Political Rights and its protocols (ICCPR). More work may be required to translate the principles and standards contained in international instruments such as the ICCPR, Code of Conduct for Law Enforcement Officials, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Basic Principles on the Independence of the Judiciary, Standard Minimum Rules for the Treatment of Prisoners and the Basic Principles for the Treatment of Prisoners into doctrine and standard operating procedures which reflect the operational realities faced by peacekeepers. Arguably, a bulletin such as The UN Secretary-
General’s Bulletin on Applicability of IHL to UN Forces17 would be extremely useful for setting out fundamental principles and rules that are applicable to peacekeepers conducting law and order tasks.

The absence of doctrine to which peacekeepers undertaking such tasks can be held accountable also impacts on the capacity to prepare adequate standard operating procedures, mission-specific rules of engagement and force commanders directives, and training regimes. Peacekeepers cannot, and should not, expect that their actions involving the use of force, limiting freedom of movement, and detaining individuals are justifiable solely on the basis of necessity or the ‘fog of peacekeeping’. Rather, their actions must be guided by sufficiently detailed principles and standards so that they and the local population are clear about the parameters within which peacekeepers will undertake law and order functions and tasks.

Classifying and Defining Law and Order Functions

In examining the nature and extent of the role that peacekeepers should play in restoring and maintaining law and order, it is important to be clear about exactly what law and order functions their role might entail.

There is some disagreement as to whether tasks such as stopping, searching and questioning suspicious persons; disarming individuals who are not authorised to carry weapons; detaining individuals found committing serious offences, such as murder; conducting cordon and search operations; and restricting the freedom of movement of individuals are law and order tasks or security tasks. The Handbook on United Nations Multidimensional Peacekeeping Operations categorises the following as security tasks, and not law and order tasks: controlling movement and access through checkpoints; providing armed escort for safety and to facilitate access; conducting cordon and search operations; conducting crowd control; and confiscating weapons. However, in many States, questioning, searching and detaining an individual, controlling crowds, and confiscating weapons are considered law and order tasks. It has also been argued that the term ‘law’ refers to the functions carried out by the police, judiciary and correction authorities; whereas the term ‘order’ refers to the security functions undertaken by the military. In this way, the words ‘law’ and ‘order’ are used to distinguish between the functions of law enforcement, and those of the military.

More problematic is that fact that effective law and order includes the provision of due process, which involves the prosecution, defense and adjudication of criminal responsibility and imprisonment of offenders to protect society. Past experience indicates that searches, arrests and detentions that result only in eventual release of perpetrators can be particularly detrimental to establishing law and order and the rule of law. However, for civilian peacekeepers to undertake independent judicial functions directly raises a number of substantially complex questions, which have only been faced by the UN in the context of executive mandates.

A lack of agreement on whether particular tasks are properly considered as security tasks or law and order tasks, and the extent of these, may lead to a number of dilemmas for peacekeepers who are conducting their operation in situations that straddle the divides between security, and law and order and justice. These questions include: dealing with individuals where it is unclear whether those individuals are criminals or represent a security threat or both; and providing due process to ensure offenders are dealt with in accordance with accepted legal principles. Furthermore, the failure to develop a common understanding of what is meant by the term ‘law and order’ adds to operational confusion in identifying the extent and precise nature of the institutional law and order vacuum, and who should fill it.

Capacity and Capabilities

Any policy option which intends that peacekeepers fill the rule of law vacuum needs to address issues of capacities and capabilities, utilizing, where possible, what is available in the international community, as well as what may be harnessed relatively rapidly within the local community. There is a spectrum of potential options involving military and/or cilivian peacekeepers as well as national capacities to address a law and order vaccum. These may require developing both military and civilian capabilities to undertake a range of law and order functions. While one option may depend almost entirely on military peacekeepers undertaking law and order tasks to the extent necessary to ensure that the area of operations is safe and secure, another may have military peacekeepers complementing the work of the civilian law and order organizations (police, judicial and corrections), undertaking only those tasks for which the civilians lack the capacity or the ability. Hybrid approaches, such as embedding of key civilian police, judicial or detentions expertise, either international or national, within military components or vice versa may be worth exploring on a more systematic basis. Where the rule of law vacuum is geographically isolated, innovative approaches to draw on national or international capacities through, for example, mobile courts should be examined. Determinating which option to use and at what time in any peacekeeping operation may depend on the necessities of the operational environment, including the level of safety and security, the
complexity of the law and order tasks, and the will of the national actors and authorities.
While the benefits of involving international civilian law and order personnel in the early phase of peacekeeping operations are recognised on the rhetorical level, the reality to date suggests a lack of willingness to address this significant problem outside the context of interim administration missions. Thus, in practice, there have been limitations on the numbers of positions that have been approved by the Security Council, the numbers available to be deployed rapidly, the duration of their deployment, the resources available for them, and, in some cases, the ability to function in circumstances where the security situation is unstable. These challenges will need to be more effectively managed if the law and order vacuum is to be addressed through civilian capabilities.

Some operations have required that police have specialist skills to gather forensic evidence, deal with organised crime, and undertake crowd and riot control tasks. Other operations may require psychiatrists, forensic pathologists and anthropologists to assist in investigating and dealing with gross violations of human rights. Most police services do not have personnel with these skill sets in sufficient numbers to release them for service in peacekeeping operations. Similarly, trying to find judges to serve in such operations with the necessary knowledge and experience to deal with the types of legal problems that are likely to arise is also difficult in short timeframes. Furthermore, the extent and nature of the institutional law and order vacuum may be unclear prior to deployment, and this may impact on the types and skills of law and order authorities
needed and available at short notice. These realities have often led civilian peacekeepers to limit the carrying out of law and order functions to the most essential tasks (such as monitoring and reporting violations), or to an expectation that military peacekeepers must undertake some law and order functions on an interim basis until sufficient local or international personnel and resources are available to take over such tasks.

Due to political, resource, training and organisational limitations, it is generally accepted that the more complex the law and order functions, the less appropriate it is for the military to undertake those functions. Generally, military peacekeepers advise that they are neither trained nor resourced to undertake complex criminal investigations and evidence collection; investigate past atrocities; or perform constabulary duties such as dealing with property disputes, minor crimes or the arrest of petty criminals. Holding people in detention for long periods of time or providing a functioning judicial system that is adequately resourced with judges, prosecutors, defence lawyers and court administrators are roles that are also beyond the training and resource capacities of most military forces.

In addition, some military personnel express concern about diverting valuable resources to developing skills and expertise in fields which are not usually relevant to the conduct of combat operations, and some commanders see such tasks as detracting from more traditional military functions. Many military, legal and human rights experts consider that undertaking such tasks sends the wrong message to the local population regarding the role of military peacekeepers and the role of the military generally. Military experts generally agree that providing an interim solution to maintaining law and order in a very limited sense is necessary, but emphasise that they are not suited to such functions, and that the longterm solution to law and order problems is not a military responsibility. They remain concerned that the interim solutions they provide might create unreasonable demands and expectations.

In this regard, training and devoting more resources to providing military peacekeepers with means and methods that permit them to graduate their responses when carrying out law and order tasks should be a priority. Training in negotiation techniques and the use of non-lethal weapons may be appropriate. The deployment of riot control equipment, and appropriate materials to set up road blocks and checkpoints should also be considered. The use of techniques which do not require the use of force, such as static observation posts, patrols, curfews and information campaigns, will also assist in ensuring that peacekeepers do not have to resort to force when undertaking law and order tasks.

Methodologies

Any short-term approach for a peacekeeping operation to deal with criminal threats that arise in a law and order vacuum should be consistent with longer-term strategies for strengthening the rule of law in the Host State. While these longer-term approaches are well beyond the scope of this paper, a few reflections are appropriate on the relation of short-term approaches to address the law and order vacuum with the much broader
question of rule of law reform.

It is now generally accepted that any participation in the restoration and maintenance of the rule of law on the part of peacekeeping operations must avoid a ‘one size fits all strategy’. In each operation, a different emphasis may need to be placed on each of the following: the primacy of the local criminal system; support for domestic reform constituencies; assistance in building the capacity of national justice or sector institutions; and facilitating national consultations on justice reform and transitional justice.20 These should all fit into a nationally-led strategy for strengthening the rule of law. In order to get the balance right, a holistic approach to planning, managing and conducting the operation must be taken. In this context, planners and managers should ideally develop operations to address an institutional law and order vacuum in the context of an overall, long-term plan to support the strengthening of the rule of law.

A holistic approach would require effectively and efficiently identifying the particular needs of the Host State, and the corresponding capabilities of the peacekeeping operation. Such mapping will be useful to those planning both short and long-term approaches, and provide answers to the following questions: to what extent, if any, does the Host State suffer from an institutional law and order vacuum?; Does that vacuum exist equally across the nation, or does it differ regionally?; Which aspects of that law and order vacuum need to be addressed?; Which of those aspects should be given priority?; What types of resources, personnel and skills would be required in order to address those aspects of the vacuum? This exercise will also require the identification of the capabilities of local law and order institutions (both formal and informal) including: the state of detention facilities; the laws and customs that are applied; and any local resources or skills that could be tapped quickly and effectively.

Information on the role that regional and neighbouring States may be able to play should also inform the process. Such an approach will allow those planning a peacekeeping operation to make informed judgments as to the temporal and geographical scope of the operation and the capacities it will require. It is particularly important to develop methods for identifying the specific political, diplomatic, legal, military and other concerns which may arise during the operation so that such concerns are properly addressed right from the planning stage. This is essential to managing the expectations of the local community by ensuring that peacekeepers are not given tasks that they cannot fulfil legitimately, effectively and efficiently. When addressing the institutional law and order vacuum in the short-term, those planning and managing operations must remain focused on handing over such functions to the local authorities as soon as those authorities are capable and willing to carry them out.

Furthermore, such planning will also be relevant to developing short-term and long-term strategies to ensure better cooperation and coordination within the UN and between the broader international community (such as regional organisations, bilateral and multilateral donors, international organisations, aid agencies and non-governmental organisations) and the local population. Allowing for coordination and cooperation will therefore avoid confused command and control structures, gaps in filling the law and order vacuum, duplication of effort, and a waste of resources.

Conclusion

Experts consulted during the preparation of this paper generally agreed that it is inevitable that peacekeepers will be called upon to restore and maintain law and order in most, if not all, future peacekeeping operations.

They also agreed that military peacekeepers in most peacekeeping operations will play a fundamental role in restoring and maintaining law and order at least until the time delays and limited resources available to the international community for deployment of appropriately skilled and qualified civilian police, judges and correction officers are addressed. A general consensus existed that any law and order functions undertaken by military peacekeepers should be limited to what is absolutely necessary to create a safe and secure environment, and should only be undertaken on an interim basis. It was also felt that if the military could provide the ‘security space’, civilian peacekeepers would be able to ‘get on with’ restoring and maintaining police, judicial and corrections functions.

In light of the issues and dilemmas explored in this paper, it is recommended that DPKO, Member States and other interested organisations further examine and elaborate the strategies and options available for addressing the institutional law and order vacuum. As a result, an agreed policy should be developed that can allow for the appropriate balancing between the capacity and capabilities that exist in any given area of operations, and the political and legal dimensions of that particular operation. More specifically, the international peacekeeping community should consider developing a set of agreed rules and guidelines which can be used by those responsible for planning, managing and conducting peacekeeping operations to address the institutional law and order vacuum in the most appropriate manner. (Reproduced from www.un.org)