1 Introduction
In 1999 the United Nations’ (UN) Security Council mandated the UN Mission in Sierra Leone (unamsil) to use ‘all necessary means’ to protect civilians under Chapter vii of the UN Charter. Since the creation of unamsil, the Security Council has continuously mandated peacekeeping mission to protect civilians
For over 20 years, the Security Council has regularly mandated UN peace missions deployed in niacs to protect civilians without ‘prejudice to the primary responsibility of the State’. While the Security Council has inserted this phrase in assurance of State sovereignty, they are incidentally placing an obligation on States derived from the tasks referenced to in the protection of civilians mandate. As the Security Council is mandating peacekeepers to protect civilians in majority of modern niacs, they are inadvertently forming an emerging obligation on States where UN peacekeepers are deployed.
The implication from the protection of civilians mandate stems from the Security Council’s insistence on the primacy of member States’ sovereignty. As the UN is founded in the principle of State sovereignty, the peacekeeping function cannot be seen to intervene in domestic affairs without consent of the host State. In respect of State sovereignty the Security Council will ensure that UN peace missions are only deployed with consent of the host State. Moreover, protection tasks mandated to peacekeepers are to be undertaken in ‘assistance’ or ‘support’ of the local authorities. Therefore, the protection of civilians mandate is not intended to shift the primary responsibility of the State, but rather is attempting to strengthen that responsibility.
The use of the phrase the ‘primary responsibility of the State’ is inserted to entrench the principle of State sovereignty in UN peacekeeping, however, the Security Council is inadvertently expanding the interpretation of State responsibility in niacs. The wording of ‘the responsibility of the State’ in the protection of civilians mandate implies that the protection owed by the State is an accumulation of the tasks mandated to UN peacekeepers. As peacekeepers are mandated in support of local authorities, the protection of civilians mandate becomes an interpretation of the host State’s responsibility in that conflict. Accordingly, as the protection of civilians mandate is premised on halting all violence there is an implication that States have the primary obligation to put an end to the conflict.
This implied norm will be discovered by first discussing the role of Security Council resolutions in international law, then through an examination of the protection of civilians mandate in context of the phrase ‘the primary responsibility of the State’. It will be concluded that there is an inherent correlation between the protection of civilians mandate and the Security Council’s expectation of the responsibility of the State. Second, from an investigation of the text of the protection of civilians mandate, this responsibility is explicitly connected to armed conflict. Third, the responsibility of the State in peacekeeping resolutions must be compared to existing legal norms, specifically ihl and international human rights law (ihrl). It will be determined that the responsibility mandated by the Security Council goes beyond what is expected by ihl and ihrl, specifically as the protection of civilians mandate finds its roots in the Security Council’s role in the maintenance of international peace and security. Finally, as the protection of civilians mandate is founded in peace and security it is implied that States are responsible to ensure peace and security of their populace, and thus, have a duty to ensure that all violence comes to an end.
2 Security Council Peacekeeping Resolutions and the Protection of Civilians
In 1999 the Canadian Mission to the UN, as president of the Security Council, inserted the cross-cutting theme of the protection of civilians in the Security Council agenda.2 In a positive step to enter the protection landscape, the Security Council adopted their first overarching protection of civilians
Security Council resolutions do not per se create legal obligations, however, within the UN Charter the Security Council is ceded explicit powers that grants them a distinct authority in international law. Predominantly, alongside Article 24, Article 25 of the UN Charter binds all Member States ‘to accept and carry out the decisions of the Security Council’. Although Article 25 binds Member States to the decisions of the Security Council, the Security Council has only expressly referenced Article 25 in Resolution 2118.5 While infrequently used it was decided that Article 25 does not limit Chapter vii, and as suggest by the icj that Article 25 applies to all decisions of the Security Council, for ‘obligation of states to comply with the decisions of the Security Council under Article 25 of the Charter extends to all decisions of the Security Council, not merely under Chapter vii’, moreover, ‘to hold otherwise would be deprive this
While the Security Council is awarded a significant amount of power, it is suggested that they are still bound to the ‘spirit and principles’ of international law, and cannot mandate outside the existing legal structure.7 As the UN is an institution founded in international law, the organisation cannot be above that law,8 for ‘[i]t is not logically possible to claim to represent the power and authority of the law, and at the same time, claim to be above the law.’9 As decided by Sir Jennings in his dissenting opinion in the Lockerbie case,10 Security Council resolutions and decisions cannot override a Member State’s obligations under customary international law, especially ihl and ihrl.11 Therefore, under the traditional view, the Security Council cannot create ‘new’ legal norms, rather should only clarify already existing obligations in the UN Charter or customary international law.12 Notwithstanding this theoretical understanding, in practice the Security Council can create procedures that do ultimately affect international law norms. Although the Security Council does not create new legal obligations, they do make decisions that have a substantive legal effect on Member States.13
Orthodox legal scholars would insist that the Security Council cannot create law, rather merely make political decisions. Though Security Council resolutions are not law they can still create norms that eventually contribute to customary international law. Security Council resolutions have an ability to influence State behaviour and opinions, although not legal documents within
Furthermore, international organisations and tribunals have also recognised and used Security Council resolutions in evidence of customary international law. For example, the International Committee of the Red Cross (icrc) in their examination of customary international law, identifies ‘[s]tate practice at the international level is reflected in a variety of sources, including in resolutions adopted in the framework of the United Nations, in particular by the Security Council.’16 Further the icty recognised that of ‘great relevance to the formation of opinion juris … are certain resolutions unanimously adopted by the Security Council.’17
Regarding niacs, the Security Council has intervened and made decisions more than any other legal person in international law.18 Within modern conflict, it would be rare for an niac not to involve some resolution or response from the Security Council. Moreover, States who are parties to a niac are consistently relying on the decisions of the Security Council, therefore, Security Council resolutions have a significant impact on State behaviour and practice
As such, the continuous use of language by the Security Council in the protection of civilians mandate in NIAC is developing a norm in customary international law. This paper is not suggesting that the norm has been clearly formed, rather the Security Council’s language and decisions have contributed to expanding the interpretation of existing obligations in niacs, specifically in regards to protection of civilians.19
2.1 The Language of the Protection of Civilians in Security Council Resolutions
Since its initial insertion, the Security Council has expanded the original language of the protection mandate to intensify its scope and strength. For example, in 2003 the Security Council extended the protection of civilians mandate from the protection against ‘physical violence’ to ‘promote and protect’ human rights.20 As peacekeeping has grown organically in a reactive manner, the Security Council in response has expanded the parameters of the protection of civilians mandate intensifying its reach.
The responsibilities mandated by the Security Council in UN peacekeeping have cultivated organically to reflect the risks and damage occurring to civilians on the ground. As conditions transpire in a UN peace mission, the Security Council will intensify the protection of civilians mandate to rectify the breach in civilian protection occurring within the conflict. As illustrated by the sporadic influx of displaced persons in the vicinity of UN bases in South Sudan, the Security Council amended the UN Mission in South Sudan (unmiss) mandate to include protections afforded to those provisional camps. As a result, the protection of civilians mandate becomes reflective of the protection that ought to be awarded to civilians within a particular conflict. Therefore, while there are generic tasks mandates throughout UN peace missions, the protection of civilians mandate is intended to mirror the specific threats faced by civilians within the conflict. While this could indicate that the protection of civilians mandate is supplementary to the State’s responsibility, the Security Council will reconfirm the ‘responsibility of the State’ within the text of the mandate and the operative part of the resolution.
As stated in the Secretary-General’s report the ‘success’ of a peacekeeping mission becomes largely dependent on a Mission’s ‘willingness and capability to act when civilians are threatened.’25 This was evidenced with the July 2022 protests in the drc for monusco’s alleged failure to protect and create a secure environment.26 This is further reiterated in the Department of Peace Operations’ (dpo) the Protection of Civilians Handbook, which only focuses on ‘sources of violence’ when advising on ‘identifying and prioritising’ protection
2.2 The Principle of Consent, State Sovereignty and the Protection of Civilians
At the creation of the peacekeeping function, the Security Council entrenched all UN peace missions in three principles: consent, impartiality, and the use of force in self-defence and defence of the mandate. While these principles do not originate from the UN Charter or international law, they have long been considered “constitutional” pillars of UN peacekeeping. As stated in the Special Court of Sierra Leone, these principles are ‘widely understood as the necessary foundations for a peacekeeping operation.’28 As such, the Security Council has continually ‘reaffirm[ed] the basic principles of Peacekeeping’29 within the body of peacekeeping resolutions. Although these principles have been diluted in practice within UN peace missions, they are still referenced by the Security Council when mandating UN peace missions.30
While questions remain regarding the modern relevance of these principles, the consent principle is nevertheless considered an
It must be noted that under Chapter vii of the UN Charter, the Security Council is not legally obliged to obtain the consent of the host State before the deployment of a UN peace mission. For while Article 2 emphases the sovereignty of States, the remaining part of Article 2(7) specifies, ‘but this principle shall not prejudice the application of enforcement measures under Chapter vii.’ Although not a legal requirement, the Security Council has insisted on procuring consent before the deployment of any peacekeeping mission. As the Security Council does not want to be alleged in declaring ‘war’ against its members, international politics rather than international law, dictates that consent is always sought.
While undoubtably it is questionable at times whether this consent is freely obtained or politically coerced, consent is still sought by the UN. The interpretation of ‘consent’ came into question in July 2022 with the civilian protests in the drc and consent of the local population.34 Although there are calls for the consent principle to encompass the local population,35 as the UN is founded on the principle of State sovereignty, consent is only sought from the host government. While there are legal questions of the nature and ability of governments to grant consent,36 nevertheless, no UN peace mission has been deployed without the consent of the host State.
As tangible consent is ingrained in the logistics and politics of deployment, the consent principle is visualised in the language of peacekeeping resolutions
As such, peacekeepers are envisaged to be deployed to strengthen the protection structures of the host State, rather than working against it. Subsequently, within the field, peacekeepers are reluctant to use force or to intervene into domestic situations without the presence or the express consent of the host State.38 While UN reports and the dpo documentation insist that the protection of civilians doctrine exists against all sources of violence, practically, peacekeepers have not engaged in protection activities against local authorities.
Currently, only unmiss is explicitly mandated to protect civilians ‘irrespective of the source of such violence’.39 However, even unmiss (who is mandated irrespective of assistance of local authorities) is not intended to shift the ‘primary responsibility’ of the South Sudanese government to protect their own civilians. Nonetheless, outside unmiss, all other missions are explicitly mandated to protect civilians in ‘assistance’ or ‘support’ of the local authorities. The emphasis of the peacekeeping support function is to depart from the Responsibility to Protect (R2P) doctrine, or other humanitarian intervention. This distancing is primarily done as the protection of civilians mandate is not attempting to shift any responsibility away from the host State, but rather strengthen that responsibility.
2.3 The Primary Responsibility of the State to Protect Within Security Council Resolutions
Recalling that the car authorities have the primary responsibility to protect all populations in the car in particular from genocide, war crimes, ethnic cleansing and crimes against humanity.43
To protect, in line with s/prst/2018/18 of 21 September 2018, without prejudice to the primary responsibility of the car authorities and the basic principles of peacekeeping, the civilian population under threat of physical violence.45
In comparison, at the conclusion of unmiss’ protection of civilians mandate, the Security Council, ‘reminds South Sudanese authorities of their primary responsibility to protect civilians in South Sudan.’46 The above references to the responsibility of State, together with the ‘assistance’ of UN peacekeepers, indicates a commonality between the protection of civilians mandate and the ‘primary responsibility of the State to protect’. As the Security Council is not intending to shift the host States responsibility, the protection of civilians mandate becomes an indicator of the Security Council’s understanding of the host State’s responsibility to protect their civilians within that conflict. That is to say, as peacekeepers are mandated to assist local authorities, ‘to take active
This implication is further supported as the UN Secretariat has insisted that peacekeepers are not to replace the role of the government. The dpo has, for example, asserted that the language of the Security Council indicates ‘that the mission is not expected to substitute for the role of the host State in protecting the population.’48 As the Security Council has repeatedly articulated that the protection of civilians mandate does not shift the responsibility of the State, it can logically be concluded that the mandate is the Security Council’s expectation of the obligation that is owed to civilians within that conflict. With the consistent use of language by the Security Council, the mandate on the protection of civilians becomes a measure of whether a host State is fulfilling their ‘primary responsibility to protect their civilians’ within that conflict.
This concept that the State has the primary responsibility to protect is not innovative, for ‘protection’ as a concept that finds its foundations in the law, and thus ‘the duty to protect civilians traditionally belongs first and foremost to the States.’49 The obligations of the State to protect civilians can be discovered in ihl, ihrl, and refugee law. As asserted by the Secretary-General in his report on the protection of civilians, ‘[s]tates bear the primary responsibility to protect civilians, and peacekeepers are not a substitute for political engagement to tackle sources of violence.’50 However, in the context of Security Council peacekeeping resolutions, the ‘primary responsibility of the State’ is a reference to the responsibilities within the protection of civilians mandate.
As stated earlier, the protection of civilians mandate outlines an expected list of tasks and responsibilities of protection that are owed to civilians during that specific conflict. As peacekeepers are not intended to shift the responsibility of the host State, rather to assist local authorities to be able to undertake these tasks, there is an implication that the protection of civilians is the
3 Protection of Civilians in Armed Conflict and The Emerging Norm of Peace and Security
While a State’s primary responsibility to protect is rather broad and intersects multiple areas of law, the Security Council does constrain the theme of protection to armed conflict. From its first insertion in the UN peace mission to Sierra Leone,51 the protection of civilians mandate has been continually aligned with armed conflict. For example, the Security Council’s overarching resolutions on the protection of civilians is titled ‘The Protection of Civilians in Armed Conflict.’52
Moreover, protection tasks are confined to civilians ‘affected by armed conflict’ or ‘in armed conflict’.53 As the Security Council restricts the protection of civilians mandate in times of armed conflict, therefore the primary responsibility of the State to protect is also confined to situations of armed conflict. As UN peace missions are mainly deployed in niacs, the protection of civilians mandate can be perceived as an indicator of the responsibility of the host State to protect in a niac. While the Security Council might not intend to define the legal norm of the State’s responsibility to protect in armed conflict, by drafting resolutions with the consistent phrase of ‘State responsibility’ they are contributing to an emerging norm within niac.
As the protection of civilians mandate is linked to armed conflict, this would innately invoke a State’s obligations under ihl. However, from the text of UN peacekeeping resolutions, the Security Council is initiating and mandating an obligation of protection that is beyond the traditional view of a State’s obligation in a niac. For while the Security Council may intend to invoke pre-existing norms, subsequently, the text of the protection of civilians mandate creates an expansive interpretation of the State’s responsibility to protect in an armed conflict.
The theoretical underpinning of the obligations in ihl is to ensure that armed attacks are not directed towards civilians. Further, parties to a conflict are to guarantee that armed attacks do not destroy ‘objects indispensable to the survival of the civilian population.’59 Therefore, the ethical construction of ihl is that ‘protection’ incorporates parties not specifically targeting civilians, or civilian objects, when implementing their military manoeuvring. Following this line of reasoning, ihl accepts that civilian casualties will and can occur, as long as they are not the target of the attack. This concession can be appreciated when considering that although the use of force was prohibited in 1945, States had also conceded the occurrence of war by negotiating and drafting the regulation of conflict within the Geneva Conventions in 1949. As such, the philosophical obligations under ihl are to guarantee that civilians are not
Although the protection of civilians mandate relates to armed conflict, the language of the mandate raises differing ethical considerations to that of ihl. Explicitly, the protection of civilians mandate instructs for protection to occur pre-emptively, in deterrence, and does not distinguish between a legal or an illegal attack. In other words, the protection of civilians mandate is not concerned with the legality of the attack against civilians, rather, it mandates protection against all and any ‘physical violence’. This is emphasised by the Security Council not mandating against an ‘armed attack’ or ‘armed force’ but rather using the language of ‘violence’, clearly intending a broader understanding than that by ihl. Accordingly, the protection of civilians mandate demands more than what is required or obligated under ihl.
Stress[es] the responsibility of parties to armed conflict to abide by all their obligations under international humanitarian law, international human rights law, and international refugee law, as applicable and reiterated by relevant Security Council resolutions.61
The core of human rights law is to protect individuals from violations committed by their own State. As such, ihrl gives rise to a State’s obligation to protect
To assist the Malian authorities in their efforts to promote and protect human rights, in particular in the areas of justice and reconciliation, including to support, as feasible and appropriate, the efforts of the Malian authorities, without prejudice to their responsibilities, to bring to justice without undue delay those responsible for serious violations or abuses of human rights or violations of international humanitarian law.65
From the above text, the Security Council replicates the obligation to protect already existing in ihrl, mandating peacekeeping assistance to strengthen the institutional structures of the host State. Therefore, the mandate to protect human rights reconfirms that the host State needs sufficient procedures to safeguard individuals’ rights from violations, and significantly, remedial structures when they are violated. While the human rights protections within the Security Council resolutions replicate existing legal obligations, this does not shed light on the Security Council’s aggregated language in the protection of civilians mandate, specifically with regards to protection against physical violence.
Whereas the Security Council and the UN echoes that the protection of civilians mandate has its origins in international law, the evolving text of the mandate has incidentally given rise to an expansive interpretation of State obligations in an armed conflict. Regardless of the UN’s invocation of international
4 The Protection of Civilians Mandate and its Foundation in the Maintenance of International Peace and Security
As the protection of civilians mandate encapsulates the Security Council’s responsibility for the maintenance of international peace and security, the rationale of the mandate differs from ihl. The Security Council is not explicitly authorised under the UN Charter to deploy peacekeepers, therefore, the Security Council relies on their responsibility under Article 24 of the UN Charter. As Article 24 grants the Security Council the primary responsibility for the maintenance of international peace and security, the protection of civilians mandate must also find its foundations in Article 24.
Since the initiation of the cross-cutting theme of protection, both the Security Council and the Secretary-General have frequently asserted that the protection of civilians is mandated principally in guarantee of international peace and security.66 Therefore, the protection of civilians mandate finds its legal foundations, and hence its interpretation, through international peace and security.
4.1 The Maintenance of International Peace and Security
in support of the authorities of the drc … to ensure effective, timely, dynamic and integrated protection of civilians, and to contribute to the objective of reducing the threat posed by armed groups to state authority and civilian security in the drc and to make space for stabilisation activities, either unilaterally or jointly with the Congolese security forces.68
The emphasis on peace and security is further reaffirmed by the Security Council explicitly referencing ‘peace and security’ in connection to specific tasks of protection. For example, the Security Council ‘affirms in this regard that effective steps to prevent and respond to such acts of sexual violence can significantly contribute to the maintenance of international peace and security’.69
As the protection of civilians theme finds its beginning in Article 24 of the UN Charter, the protection of civilians mandate’s philosophical compass differs from the obligations under ihl. Whereas ihl obligates the mitigation of harm, the protection of civilians mandate obligates the cessation to all violence for the creation of international peace and security. In other words, as the obligations in ihl attempt to regulate conflict to minimise harm to those not participating in hostilities, the obligations under the protection of civilians mandate attempt to create peace and security for all involved. Moreover, while the obligations under ihrl obligates protections within the institutions of the State, the protection of civilians mandate positively obligates the creation of a secure environment in order for those institutions to be developed.
While the divergence of philosophical considerations seems merely theoretical, it does have a practical significance to civilians in the field. For instance, recent protests in the drc are centred around monusco’s inability to protect and stabilise their areas of deployment. As stated by the USA State department, ‘monusco plays a critical role in fostering peace and security,
4.2 The primary responsibility of the State and the maintenance of international peace and security
As the Security Council mandates the protections owed to civilians within specific conflicts, they are incidentally expanding a State’s obligation to protect their civilians. This expansion in the language of the Security Council implies that the responsibility of the State in an armed conflict should also be founded in the maintenance of peace and security and the protection of civilians. As the protection of civilians mandate is a list of obligations owed to civilians and those obligations are founded in ‘peace and security’, there is an emerging obligation on the host State to maintain ‘peace and security’. While pre-existing obligations of States under international law allow the existence of an armed conflict, the language of the protection of civilians mandate implies a State’s obligation to extinguish that conflict. As such, the Security Council is mandating UN peacekeepers to assist the host State to create peace and security, which is their primary responsibility. Therefore, from the text of the protection of civilians mandate this obligation to create peace and security ultimately is the primary responsibility of the host State.
to take mobile, flexible, robust and proactive steps to protect civilians, including through the set-up of a Mobile Task Force, prioritizing the deployment of ground and air assets, as available, in areas where civilians are most at risk, while expecting Malian authorities to assume their responsibilities in the respective areas.73
In other words, the responsibility of the State is to ensure the proactive protection of civilians against any attack or violence from the niac, not just from their own military manoeuvring. Moreover, the protection of civilians mandate disregards whether the violence functions as part of a legal attack under ihl. While ihl and ihrl accepts civilian casualties and obligates the protection to minimise harm or implement remedial structures, the protection of civilians mandate on the other hand intends to prohibit any violence as a violation of the duty owed to civilians.
This shift in ethical and theoretical construction implies that local authorities should be using force in order to create a secure environment rather than bolstering their own power. Accordingly, within a niac the Security Council is inevitably placing an obligation on States to put an end to the conflict. Therefore, from the text of the Security Council, States should prioritise ending the conflict than ‘winning’ the war.
5 An Emerging Legal Norm of an Obligation for Peace and Security
Demands all parties to the conflict and other armed actors to immediately end fighting throughout South Sudan and engage in political dialogue, reminds South Sudanese authorities of their primary responsibility to protect civilians in South Sudan.74
As the Security Council is mandating tasks striving to conclude all violence, the Security Council is developing a customary norm for States involved in a niac. For example, in the recent resolution in the situation in Mali, the Security Council ‘emphasizing that the Malian authorities have primary responsibility for the provision of stability, security and protection of civilians throughout the territory of Mali.’75 As such, host States within a niac have a responsibility to ensure security and stability for their population. From this developing norm, it is implied that military force should only be used to create peace and security. Therefore, it can be implied that States should be taking all reasonable steps to conclude fighting in order to create a secure environment. This is illustrated as one of the major tasks mandated throughout the lifespan of the protection of civilians mandate is the creation of a ‘secure environment’.76
As stated earlier, while an iac is highly regulated within the Geneva Conventions, the law in a niac relies heavily on customary international law. Therefore, the Security Council has much more influence in effecting and developing norms within a niac. This distinction between an iac and a niac can be found in the construction of ihl, as many obligations are premised on the perception of two sovereigns in conflict. That is, these States are permitted
the primary responsibility of the Government of Sudan to protect civilians across its territory … while expressing concern that the security situation in some regions of Darfur remains precarious, and underscoring the need to protect peacebuilding gains in Darfur, avoid a relapse into conflict and mitigate the risks for the population posed inter alia by threats against civilians in Darfur, inter-communal violence, human rights violations and abuses, violations of international humanitarian law and continued displacement.78
Due to the nature of urban conflict, the Security Council assumes that a ‘relapse into conflict’ is a threat to civilian protection and violations of international law. As parties to a conflict are to distinguish between civilians and military objects, and to ensure that no destruction occurs of civilian objects indispensable to survival, urban conflict by its very nature can be comprehended as a violation of obligations owed to civilians under ihl. As evidenced in Security
As modern niacs are occurring continuously within civilian areas, it is understandable that the Security Council’s interpretation of the obligation to protect encompasses sustaining a secure environment. As host States are parties to the niac, by their role within that conflict, the State’s use of force will contribute to the insecure environment and hence a violation of their obligations. Within the emerging norm the use of force by the State, unless proportionate to peace and security, would be a breach of their responsibility to protect their civilians and a failure of their sovereignty. Particularly as this force is not against another sovereign State but against the people that they are obliged to protect.
States engaged in a niac will find it difficult to adhere to the customary international law principles of distinction, proportionality and precautions in an urban context.80 While objects such as houses and schools are protected as civilian objects, they lose their protected status when used for military purposes. Therefore, under an obligation of ‘peace and security’, in modern urban settings the distinction principle, and as a result the proportionality principle, becomes problematic as the ‘enemy’ and civilians become indistinguishable. As there is no practical way to differentiate between military and civilian objects in modern urban warfare, the use of force will commonly violate a State’s obligations under ihl to protect civilians. Therefore, to adhere to the spirit of ihl, the Security Council obligates States to create a secure environment, and therefore attempt to put an end to conflict to protect their civilians. For this reason, the developing obligation for States to create a secure environment and put an end to conflict for the sake of international peace
Taken from the theoretical underpinnings of R2P, and applied by the UN General Assembly, State sovereignty, ‘today closely carries with it the obligation of a State to protect the welfare of its own peoples and meet its obligations to the wider international community.’81 As such, when a sovereign State is engaged in a niac, they cannot abandon their responsibility to protect their people for the sake of victory. Part of this protection is to ensure a secure environment, and as such, they must attempt to put an end to conflict within urban settings that hinders that security. Therefore, within a niac there is an emerging expectation within Security Council resolutions that governments will only engage in conflict to ensure ‘security’ rather than to cement their own power.
This norm emerging from the protection of civilians doctrine has expanded beyond peacekeeping resolutions and is being emphasized by the UN in their response to other internal conflicts. For example, the UN Human Rights Committee’s resolution on the conflict in Syria reiterating ‘its urgent call upon the Syrian authorities to put an immediate end to all violence and all human right violations, and to meet its responsibility to protect the Syrian population.’82 Alternatively, as declared by the Uruguayan delegate to the Security Council in 2017, ‘that Côte d’Ivoire is no longer a threat to international peace and security and that the Security Council has transferred all responsibility for achieving sustained peace in the country to its Government.’83
Although this emerging norm is an expectation in a niac, it is yet to be applied the Security Council to jus ad bellum. Majority of writings on jus ad bellum focus on the use of force in a foreign territory, rather than on internal jus ad bellum.84 Therefore, internal use of force, is generally discussed as a form of ‘hostilities’ governed by ihrl and rules within law enforcement. While discussion of the custom of internal jus ad bellum is beyond the scope of this paper, the emerging norm is yet to be applied to a State’s use of force against their own people before the application of ihl. Theoretically, the obligation for peace and security would not remove the State’s ability to use force to impede
It must be noted that dissimilar to the doctrine of R2P this emerging norm in the protection of civilians mandate does not intend to shift that responsibility to the international community. The emerging obligation of peace and security is not distorting State sovereignty, rather cementing that sovereignty in clarifying the obligation on States to protect their civilians and ensure security within their territory. As such, this obligation does not give rise to humanitarian intervention, but rather invokes a State’s responsibility to respect their sovereignty in protecting their people. As the role of government is to represent their State, therefore, governments are obligated to ensure all attacks are proportionate to overall security of the populace, rather than to sustain their power. Accordingly, government responsibility to protect their civilians is not in conflict with State sovereignty, but rather enforcing it.
6 Conclusion
As the Security Council is consistently mandating peacekeeping missions within a niac, they are incidentally affecting State behaviour and opinions of a State’s obligations within a niac. Since the Security Council is involved in the majority of niacs, and States are relying on these decisions by the Security Council, these resolutions are developing legal norms and interpretations within niacs.
When the Security Council is mandating peacekeepers to protect civilians, they are inadvertently forming an obligation on States involved with UN peace missions. By consistently referencing ‘the primary responsibility of the State to protect’ the Security Council is developing a norm of State responsibility in a niac. From the text of the Security Council resolutions there is an expectation that States who are a party in a niac have a responsibility to maintain peace and security. Therefore, States should only engage in force proportional to the creation of a secure environment. This expectation means that force will be used for peace and security, rather than “winning” the conflict, or entrenching the power of local authorities. As such, from the language of the Security Council, and other UN agencies commenting on niacs, there is an interpretation that the obligation for States to protect their civilians can only be
UN, ‘Charter of the United Nations’ (1945) 1 unts xvi at Article 25.
United Nations Security Council (unsc), ‘Overview of Security Council Meeting Records’ (1999) UN Doc s/pv/3980.
unsc, ‘Resolution 1265(1999)’ (adopted 17 September 1999) UN Doc S/RES/1265(1999) at operational paragraph 11.
Although nearly 30 years have passed, the UN is still haunted that while the UN Assistance Mission for Rwanda (unamir) notified the UN Secretariat of evidence of possible ‘extermination’ of the Tutsis in Kigali, they were ordered that no ‘action, including [a] response to request for protection, should be taken by unamir until clear guidance is received from Headquarters.’ (unsc, ‘Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda’ (1999) UN Doc s/1999/1257 at para.10) The UN’s reluctance to protect civilians was further illustrated with the Srebrenica mass killings occurring the following year, where “at least five written messages were sent on that day, expressing alarm about potential human rights abuses having been committed or that potentially might be committed.” (United Nations General Assembly (unga), ‘Report of the Secretary-General Pursuant to General Assembly Resolution 53/35: The Fall of Srebrenica’ (15 November 1999) UN Doc a/54/549 at para.352).
unsc Resolution 2118 (27 September 2013) UN Doc S/RES/2118(2013).
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) 1971, icj Reports 1971 p.16.
Neha Jain, ‘A Separate Law for Peacekeepers: The Clash between the Security Council and the International Criminal Court’ (2005) 16(2) ejil 239 at 243.
ibid at 243.
Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising From the Aeria Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom) (Judgment) [1998] at 110.
ibid.
James D Fry, ‘The UN Security Council and the Law of Armed Conflict: Amity or Enmity?’ (2006) 38(2) Geo Wash Intl L Rev 327 at 334; Erika de Wet, The Chapter vii Powers of the United Nations Security Council (Hart Publishing 2004) at 203.
Sufyan Droubi, Resisting United Nations Security Council Resolutions, (Routledge Research in International Law 2014) at 2–3.
Marko Divac Öberg, ‘The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the icj’ (2005) 16(5) ejil 879 at 881–882.
For more on soft law and the effects of customary international law and ihl, see Emily Crawford, Non-binding Norms in International Humanitarian Law: Efficacy, Legitimacy, and Legality (Oxford University Press 2021).
unsc ‘Resolution 2184 (2014)’ (12 November 2014) UN Doc S/RES/2184 (2014) at operative paragraph 14; unsc ‘Resolution 2182 (2014)’ (24 October 2014) UN Doc S/RES/2182 (2014) at operative paragraph 21; unsc ‘Resolution 2125 (2013)’ (18 November 2013) UN Doc S/RES/2125 (2013) at operative paragraph 13; unsc ‘Resolution 2077 (2012)’ (21 November 2012) UN Doc S/RES/2077 (2012) at operative paragraph 13; unsc ‘Resolution 2020 (2011)’ (22 November 2011) UN Doc S/RES/2020 (2011) at operative paragraph 10; unsc ‘Resolution 1950 (2010)’ (23 November 2010) UN Doc S/RES/1950 (2010) at operative paragraph 8; unsc ‘Resolution 1897 (2009)’ (30 November 2009) UN Doc S/RES/1897 (2009) at operative paragraph 8; unsc ‘Resolution 1851 (2008)’ (16 December 2008) UN Doc S/RES/1851 (2008) at operative paragraph 10.
Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume 1: Rules (Cambridge University Press 2009) at Introduction p. Iiii.
Prosecutor v Tadić (Decision on Defence Motion for Interlocutory Appeal on Jurisdiction), it-94-1 (2 October 1995) at 133.
Gregory H. Fox, Kristen Boon, and Ian Jenkins, ‘The Contributions of United Nations Security Council Resolutions to the Law of Non-International Armed Conflict: New Evidence of Customary International Law’ (2018) 67 aulr 649 at 664.
Further research is needed to articulate State opinion and interpretation of their responsibility in modern niac. As such, this paper hopes to begin discussions by examining the text of the Security Council.
unsc ‘Resolution 1509 (2003)’ (19 September 2003) UN Doc S/RES/1509 (2003).
In unsc ‘Resolution 1270 (1999)’ (22 October 1999) UN Doc S/RES/1270 (1999) the Security Council originally mandated unamsil to ‘afford protection of civilians under imminent threat of physical violence.’
Carlos Alberto dos Santos Cruz, Willliam R Phillips, and Salvator Cusimano, Improving Security of United Nations Peacekeepers: We Need to Change the Way We Are Doing Business (United Nations 2017) at 5.
In 2009, dpko and dfs released the ‘Draft Operational Concept on Protection of Civilians’. The document identified that there was no common understanding of what ‘protection’ is, and also established the still-current three-tier understanding of protection: Tier 1: Protection through political process; Tier 2: Providing protection from physical violence; Tier 3: Establishing a protective environment.
Peacekeeping missions are mandated with multiple tasks which varies over the lifespan of the mission. Therefore, the emphasis of physical protection is in the evaluation of the protection of civilians mandate, rather than the entire mission or a other mandated tasks. It is not suggested that all UN missions regardless of their mandate are evaluated the same, rather the success of the mandate to protect is peacekeepers’ ability to protect civilians from the threat of violence.
unsc ‘Report of the Secretary-General on the Protection of Civilians in Armed Conflict’ (13 May 2016) UN Doc s/2016/447 at paragraph 58.
Aljazeera, “dr Congo Expels UN Peacekeeping Mission Spokesman After Protests”, (Aljazeera, 3 August 2022) <
United Nations Department of Peace Operations, The Protection of Civilians in United Nations Peacekeeping Handbook (United Nations 2020) at 8.1.
Special Court for Sierra Leone Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (Judgment) scsl-04-15-T (2 March 2009) at paragraph 225.
unsc ‘Resolution 2625 (2022)’ (15 March 2022) UN Doc S/RES/2625 (2022) at operational paragraph 19.
For example, unsc ‘Resolution 2605 (12 November 2021)’ (2021) UN Doc S/RES/2605 (2021) third paragraph in the preamble.
Ralph Mamiya ‘A History and Conceptual Development of the Protection of Civilians’ in Haidi Willmot, Ralph Mamiya, Scott Sheeran and Marc Weller (eds), Protection of Civilians (Oxford University Press 2016) 80. For further discussion regarding the ‘constitutional’ principles of UN peacekeeping, see John Karlsrud ‘The UN at War: Examining the Consequences of Peace-Enforcement Mandates for the UN Peacekeeping Operations in the car, the drc and Mali’ (2015) 36 twq 40 at 48; Mats Berdal and David Ucko, ‘The Use of Force in UN Peacekeeping Operations: Problems and Prospects’ (2015) 160 rusi 6 at 11.
Tamer Morris, ‘The Legal Obligation of the Security Council’s Mandate on the Protection of Civilians in UN Peacekeeping’ (PhD thesis, University of Sydney 2021).
Nicholas Tsagourias, ‘Consent, Neutrality/Impartiality and the Use of Force in Peacekeeping: Their Constitutional Dimension’ (2007) 11 jcsl 465 at 465–466.
Anjali Dayal, ‘A Crisis of Consent in UN Peace Operations’ (ipi Global Observatory, 2 August 2022) <
For example of some of the discussion, see Jenna Russo, ‘Protests Against UN in Eastern Congo Highlight Peace Mission’s Crisis of Legitimacy’ (The Conversation, 31 July 2022) <
Consent is an elusive concept in practice, while the Security Council attains consent via political manoeuvring, this ‘consent’ does not always translate in the field. For more see, Sofia Sebastián and Aditi Gorur, ‘U.N. Peacekeeping & Host-State Consent: How Missions Navigate Relationships with Governments’ (Stimson, March 2018).
unsc ‘Resolution 2584 (2021)’ (29 June 2021) UN Doc S/RES/2584 (2021) at operational paragraph 30(c)(ii).
For example, as reported in UN Office of Internal Oversight Services Report ‘Evaluation of the Implementation and Results of Protection of Civilians Mandates in United Nations Peacekeeping Operations’ (7 March 2014) UN Doc a/68/787 at paragraphs 41, 42 and 44.
unsc ‘Resolution 2625 (2022)’ (n 29) at operational paragraph 3(a)(i); while dpo suggests that all UN peace missions are authorised to use force irrespective of the source of violence, only unmiss has been expressly mandated to do so.
unsc ‘Resolution 2552 (2020)’ (12 November 2020) UN Doc S/RES/2552 (2020) at operational paragraph 31(a)(i).
Victoria Holt, Glyn Taylor and Max Kelly, Protecting Civilians in the Context of UN Peacekeeping Operations: Success, Setbacks and Remaining Challenges (United Nations 2009) at 44.
unsc ‘Resolution 2149 (2014)’ (10 April 2014) UN Doc S/RES/2149 (2014) at preamble.
unsc ‘Resolution 2625 (2022)’ (n 29) at preamble.
ibid at operative paragraph 34(a)(v).
unsc ‘Resolution 2625 (2022)’ (n 29) at operational paragraph 34(a)(i); Similar in the protection of civilians mandate to minusma the Security Council mandates, ‘To protect, without prejudice to the primary responsibility of the Malian authorities, civilians under threat of physical violence’ in unsc ‘Resolution 2584 (2021)’ (n 37) at operational paragraph 30(c)(i).
unsc ‘Resolution 2625 (2022)’ (n 29) at operational paragraph 5.
unsc ‘Resolution 2584 (2021)’ (n 37) at operational paragraph 30(c)(i).
United Nations Department of Peace Operations, The Protection of Civilians in United Nations Peacekeeping Handbook (n 27) at 2.1.1.
Sylvie Caverzasio (ed), Strengthening Protection in War (International Committee of the Red Cross 2001) at 9.
unsc, ‘Report of the Secretary-General on the Protection of Civilians in Armed Conflict’ (10 May 2017) UN Doc s/2017/414 at para 58.
unsc ‘Resolution 1270 (1999)’ (n 21).
For example, unsc Resolution 2573 (2021)’ (27 April 2021) UN Doc S/RES/2573 (2021); unsc Resolution 1894 (2009)’ (11 November 2009) UN Doc S/RES/1894 (2009) at operational paragraph 33.
unsc ‘Resolution 2640 (2022)’ (29 June 2022) UN Doc S/RES/2640 (2022) at operative paragraph 26(c)(iii).
Currently, all protection of civilian mandated missions are deployed in non-international armed conflicts, for example, South Sudan, Mali, drc and Central African Republic.
International Committee of the Red Cross, How Does Law Protect in War? – Online Casebook (icrc Online Casebook 2023) <
For more see Sandesh Sivakumaran, The Law of Non-International Armed Conflict (Oxford University Press 2012).
Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, ‘Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts’ (Protocol ii) (adopted 8 June 1977, entered into force 7 December 1978) art 13(1).
ibid art 13(2).
Protocol ii (n 57) art 14.
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) 1996 icj Reports 226 at para 25.
President of the Security Council, ‘Statement by the President of the Security Council – Protection of Civilians in Armed Conflict’ (21 September 2018) UN Doc s/prst/2018/18 at 4.
Siobhan Wills, Protecting Civilians: The Obligations of Peacekeepers (Oxford University Press 2009) at 112.
Henry Shue, Basic Rights (Princeton University Press 1980).
Haidi Willmot and Scott Sheeran ‘The Protection of Civilians Mandate in UN Peacekeeping Operations: Reconciling Protection Concepts and Practices’ (2014) 95(891/892) icrc 517 at 526.
unsc ‘Resolution 2584 (2021)’ (n 37) at operational paragraph 30(d)(i).
unsc ‘Resolution 1261 (1999)’ (25 August 1999) UN Doc S/RES/1261 (1999) at operational paragraph 16; unsc ‘Resolution 1820 (2008)’ (19 June 2008) UN Doc S/RES/1820 (2008) at operational paragraph 1; unsc Women and Peace and Security: Report of the Secretary-General (United Nations 2020) UN Doc s/2009/465 at paragraph 8.
unsc ‘Resolution 2122 (2013)’ (18 October 2013) UN Doc S/RES/2122 (2013) at preamble.
unsc ‘Resolution 2612 (2021)’ (20 December 2021) UN Doc S/RES/2612 (2012) at operational paragraph 29(i)(e).
unsc ‘Resolution 1820 (2008)’ (n 66) at operational paragraph 1.
Africa News, ‘US Urges dr Congo to Protect Peacekeepers After Deadly Unrest,’ (Africa News, 29 July 2022) <
unsc, ‘Security Council, 77th Year: 9081th Meeting’ (29 June 2022) UN Doc s/pv.9081 at 21.
unsc ‘Resolution 2605 (2021)’ (n 30) at operational paragraph 34(a)(iii); another example is when peacekeepers are mandated to ‘to take active steps to anticipate, deter and effectively respond to threats to the civilian population’ in unsc ‘Resolution 2584 (2021)’ (n 37) at operational paragraph 30(c)(ii).
unsc ‘Resolution 2584 (2021)’ (n 37) at operational paragraph 30(c)(ii).
unsc ‘Resolution 2625 (2022)’ (n 29) at operative paragraph 5.
unsc ‘Resolution 2640 (2022)’ (29 June 2022) UN Doc S/RES/2640 (2022) at preamble.
unsc ‘Resolution 2164 (2014)’ (26 June 2014) UN Doc S/RES/2164 (2014) at operational paragraph 13(a)(iv); unsc ‘Resolution 2149 (2014)’ (10 April 2014) UN Doc S/RES/2149 (2014) at operational paragraph 30(a)(i); unsc ‘Resolution 2003 (2011)’ (29 July 2011) UN Doc S/RES/2003 (2011) at operational paragraph 3; unsc ‘Resolution 2063 (2012)’ (31 July 2012) UN Doc S/RES/2063 (2012) at operational paragraph 3; unsc ‘Resolution 2173 (2014)’ (27 August 2014) UN Doc S/RES/2173 (2014) at operational paragraph 8(a); unsc ‘Resolution 2155 (2014)’ (27 May 2014) UN Doc S/RES/2155 (2014) at operational paragraph 4(a)(ii); unsc ‘Resolution 2304 (2016)’ (12 August 2016) UN Doc S/RES/2304 (2016) at operational paragraph 5; unsc ‘Resolution 1856 (2008)’ (22 December 2008) UN Doc S/RES/1856 (2008) at operational paragraph 3(e).
To read more about the compatibility of ihl with urban warfare, see Jeroen van den Boogaard, ‘Contemporary Urban Warfare: Does International Humanitarian Law Offer Solutions?’ in Rob Johnson, Martijn Kitzen, Tim Sweijs (eds) The Conduct of War in the 21st Century; Kinetic, Connected and Synthetic (Routledge 2021).
unsc ‘Resolution 2524 (2020)’ (3 June 2020) UN Doc S/RES/2524 (2020) at preamble.
unsc, ‘Security Council, 76thYear: 8812th Meeting,’ (2 July 2021) UN Doc. s/pv.8812. As an example, the Member of Vietnam stated ‘…about the alarming levels of violence and killing of civilians, including women, children and humanitarian workers, as well as the destruction of civilian infrastructure indispensable to the civilian population in Tigray. Those acts of violence are totally unacceptable and run counter to international humanitarian law.’
See icrc, ‘Additional Protocol i to the Geneva Conventions (api)’ (icrc, 1977) arts 48, 51 and customary law rules 1 and 7. See Jeanne Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume i: Rules (Cambridge University Press 2005).
unga, ‘High-level Panel on Threats, Challenges and Change addressed to the Secretary-General’ (6 December 2004) UN Doc. a/59/565 at paragraph 29.
unhrc, ‘Situation of Human rights in the Syrian Arab Republic’ (17 October 2012) a/hrc/res21/26 at operation paragraph 5.
unsc, ‘Security Council Seventy-Second Year: 7957th Meeting’ (2 June 2017) UN Doc s/pv.7957at 9.
The term taken from Elav Lieblich, ‘Internal Jus Ad Bellum’ (2016) 67 Hastings Law Journal 687.