Restoration and Maintenance of Law and Order

      ONUC's mandate for the restoration and maintenance of law and order involved the performance of a wide variety of tasks, such as patrolling troubled areas, guarding political leaders and government buildings, facilitating the evacuation of civilians from insecure zones, and establishing and guarding protected areas for refugees and others at risk of harm. ¹¹⁰  As reflected in this list, a key component of the law and order mandate was the protection of life and property ¹¹¹  -- which was problematic since ONUC, at no stage, was given enforcement powers for this purpose.

      The power to arrest, detain or disarm could be seen as consistent with peace-keeping principles where exercised in cooperation with the Central Government or other, de facto authorities against 'uncontrolled groups of armed men who defied national or local authority'. ¹¹²  Yet, ONUC was instructed by Hammarskjöld 'to protect the civilian population against attacks from armed units, whatever the authority under which they are acting.' ¹¹³  To the extent such action was directed against recognized Congolese authorities, ¹¹⁴  it would entail a violation of the peace-keeping principle of consent. It could, however, be reconciled, barely, with the principle limiting the use of force to self-defence where peace-keepers, by defending themselves and/or their positions, ¹¹⁵  effectively shielded others from armed attacks, as in the case of a United Nations protected area. ¹¹⁶ 

      Hammarskjöld was also of the view that ONUC could not use force to liberate individuals --in particular Prime Minister Lumumba after his detention by the Central Government. Two considerations appear paramount in his thinking on this point: first, his assessment that such action 'would, in fact, mean overriding by force the authority of the Chief of State' ¹¹⁷  (thus violating the consent principle); second, the fact that it would involve taking the initiative in the use of force ¹¹⁸  (thus violating the principle of the non-use of force except in self-defence, as formulated by Hammarskjöld).

      One would have to conclude, at a minimum, that ONUC's mandate for the restoration and maintenance of law and order, at least as it related to the protection of life, took it very close to the line separating peace-keeping from enforcement action. Hammarskjöld himself acknowledged as much when he situated it 'on the outer margin of the mandate of the United Nations'. ¹¹⁹ 

The Prevention of Civil War

      Resolution 161, adopted just after Lumumba's assassination, with the Congo drifting towards full-scale civil war, authorized ONUC to:

take immediately all appropriate measures to prevent the occurrence of civil war in the Congo, including arrangements for cease-fires, the halting of all military operations, the prevention of clashes, and the use of force, if necessary, in the last resort; ¹²⁰ 

      On its face, the provision appeared to authorize ONUC to use force beyond that for self-defence --i.e., to take the initiative in the use of armed force for the purpose of preventing civil war, albeit 'in the last resort'. Yet Hammarskjöld held that, although the provision extended ONUC's responsibilities to include the prevention of civil war, it did not give it new powers, specifically enforcement powers, for the fulfilment of this mandate. ¹²¹  Thus, ONUC could not 'take the initiative' in order to stop a civil war clash, but it could take up positions 'to prevent a civil war risk' and forcibly defend these if challenged pursuant to its basic right of self-defence. ¹²² 

      In essence, the provision, as interpreted by Hammarskjöld, gave ONUC clear authority to take up and defend positions in prevention of civil war clashes although, crucially, it could not interpose itself between rival factions once fighting had begun. ¹²³  As Hammarskjöld was the one responsible for the overall conduct of the operation, in the absence of any expression of contrary intent by the Security Council, it was this interpretation that prevailed, at least initially. ¹²⁴ 

      Following the resolution of the constitutional crisis and the establishment of a new Central Government led by Cyrille Adoula in August 1961, the UN position changed in two significant respects. First, paragraph A1 of Resolution 161 notwithstanding, the UN Secretariat decided that it would not interfere with military operations conducted by the Adoula Government for the purpose of suppressing secession. ¹²⁵  The mandate to prevent civil war was, rather, to be exercised as against all other armed Congolese groups. ¹²⁶  Significantly --and this is the second change in position --it appears that the UN was prepared to use force beyond that for self-defence for this purpose.

      Thus, on 31 October 1961, the ONUC representative in Katanga formally warned the Katangese authorities that, unless they halted their bombing raids on the neighbouring province of Kasai, the UN would 'take all necessary counter-action.' This would include, if necessary, pursuing Katangese aircraft into Katanga and destroying them or even 'bringing down such aircraft operating in Katanga and eventually destroying them by air to ground action.' ¹²⁷  Similar warnings were issued to the Katangese authorities in August and November 1962, requiring them to halt military action in North Katanga where they had clashed with Central Government forces, failing which ONUC said it would intervene militarily. ¹²⁸ 

      In short, the UN Secretariat interpreted paragraph A1 of Resolution 161 as conferring upon ONUC a power of enforcement, though only against armed groups other than the Central Government. This is reflected in the rejection, for the purposes just described, of the three core principles of peace-keeping. First, the use of force would clearly exceed any reasonable interpretation of self-defence. Second, although ONUC had relied on the consent of the Katangese authorities before deploying to the province, it was prepared to disregard Katangese wishes in order to prevent civil war clashes. Finally, the UN's decision, after August 1961, to treat the Central Government differently from all other armed Congolese groups in implementing paragraph A1 of Resolution 161 involved a breach of the impartiality principle.

Ending Secession

      The UN's support for the 'territorial integrity and political independence' of the Congo, while reflected in several of the early resolutions on the Congo Crisis, ¹²⁹  was stated most explicitly in Security Council Resolution 169, when it was listed as one of the 'policies and purposes of the United Nations with respect to the Congo'. ¹³⁰  In that same resolution, the Security Council stated its firm opposition to the Katangese secession ¹³¹  and, further 'demand[ed] that such [secessionist] activities which are now taking place in Katanga shall cease forthwith'. ¹³²  Yet, ONUC was not authorized to use force, or take any other specific action, in support of this directive. It was mandated, simply, 'to assist [the Central Government of the Congo], in accordance with the decisions of the United Nations, to maintain ... national integrity'. ¹³³  No other resolution gave ONUC any power or mandate more specific than this.

      Nevertheless, four major military operations mounted by ONUC in Katanga were widely perceived as having the termination of the Katangese secession as their principal aim. In fact, all but one of these operations resulted in a significant, though at first temporary, weakening of Katangese military power. Nevertheless, each of the operations was carried out, at least officially, in pursuit of other aims. The first two, conducted in August and September 1961, will be analyzed in the next section of this chapter since they were ostensibly concerned with the removal of foreign military personnel from Katanga. The third operation, 'Unokat', conducted in December 1961, was designed

to regain and assure [ONUC's] freedom of movement, to restore law and order, and to ensure that for the future the United Nations forces and officials in Katanga are not subjected to such attacks; and meanwhile to react vigorously in self-defence to every assault on our present positions, by all the means available to us. ¹³⁴ 

      In fact, Unokat remained within these limits. ¹³⁵ 

      'Operation Grandslam' (December 1962 - January 1963), the fourth and last in the series of operations, was also aimed at the restoration of ONUC's security and freedom of movement. ¹³⁶  Yet, Grandslam went further than Unokat in that ONUC, having quickly cleared road blocks mounted by the gendarmerie (Katangese army) around Elisabethville, then proceeded to assert its right of freedom of movement outside the capital. Force was thus used, not merely to defend positions already held, but also to overcome armed resistance to the taking up of new positions in such Katangese towns as Kipushi, Kaminaville and Jadotville. ¹³⁷  In the event, this was enough to bring the secession to an end. ¹³⁸ 

      ONUC's right of freedom of movement throughout the Congo was enunciated in the 'Basic Agreement', concluded between the UN and the Central Government on 27 July 1960, ¹³⁹  and in the more extensive Status of Forces Agreement of 27 November 1961. ¹⁴⁰  The principle is often seen as a 'concrete application' of a peace-keeping force's right of self-defence, necessary to the preservation of its security. ¹⁴¹  Yet, as Operation Grandslam demonstrated, it affords much wider scope for the use of force than does the self-defence principle, strictly defined. In fact, it is questionable whether the use of force to occupy new positions really remains within the boundaries of peace-keeping. ¹⁴² 

Eliminating Foreign Intervention

      The functions we have examined to date all relate to ONUC's fundamental task of stabilizing the internal situation in the Congo. Yet, as described earlier, it was no less essential to a resolution of the Congolese Crisis that its foreign component be dealt with. Initially this responsibility was indirect. The mere fact of ONUC's deployment in the Congo, for the purpose of restoring and maintaining law and order was supposed to, in fact did, pave the way for the withdrawal of Belgian troops from the country. The exception was Katanga where, although regular Belgian forces were withdrawn after ONUC's deployment in August 1960, many Belgian officers and other soldiers remained to command the Katangese gendarmerie. This problem was exacerbated by the arrival in the province of foreign mercenaries of various nationalities. ¹⁴³ 

      Security Council Resolution 161, for the first time, mandated ONUC to take

measures ... for the immediate withdrawal and evacuation from the Congo of all Belgian and other foreign military and paramilitary personnel and political advisers not under the United Nations Command, and mercenaries; ¹⁴⁴ 

      Yet, specific authorization to use force for this purpose was not granted until Security Council Resolution 169 of 24 November 1961, where, in paragraph 4, the Security Council

Authorizes the Secretary-General to take vigorous action, including the use of the requisite measure of force, if necessary, for the immediate apprehension, detention pending legal action and/or deportation of all foreign military and paramilitary personnel and political advisers not under the United Nations Command, and mercenaries, as laid down in paragraph 2 of Security Council resolution 161 A (1961) of 21 February 1961;

      The first attempts to expel foreign personnel from Katanga were made in August and September 1961. 'Operation Rumpunch' was launched at the end of August 1961 following the UN's failure to secure, through diplomatic means, the departure of foreign officers and mercenaries. The operation had the full backing of the Central Government which, on 24 August, issued an ordinance for the expulsion from the Congo of all non-Congolese officers and mercenaries serving with the Katangese forces and requested the UN to assist in its implementation. ¹⁴⁵  While it was hoped that the swift and resolute execution of Rumpunch would ensure that the Katangese authorities complied peacefully, the UN nevertheless envisaged using force, if necessary. ¹⁴⁶ 

      Rumpunch was launched in the early hours of 28 August. The Katangese were taken by surprise and ONUC met no resistance as it moved to blockade the residence of the hardline Minister of the Interior and take control of the radio, post office (containing the telephone exchange) and gendarmerie headquarters. Having thus disabled the capacity of the Katangese to mount any organized resistance, UN troops proceeded to arrest foreign officers in the Katangese capital Elisabethville and other parts of the rebel province. The sweep was not complete, however, and many foreign officers remained at liberty when ONUC, under pressure from the local consular corps, agreed to transfer responsibility for the expulsions to the Belgian consul. ¹⁴⁷ 

      As relations between the UN and Katangese authorities deteriorated, the UN opted for follow-up action. Under a plan devised by the Chief of the UN Civilian Operation in the Congo, Mahmoud Khiari, named Katangese leaders were to be arrested on the authority of warrants issued by the Central Government. Katangese President Tshombé would be blockaded at his residence while the ONUC representative in Elisabethville, Conor Cruise O'Brien, tried to persuade him 'that his only hope lay in co-operating with the United Nations, and in peacefully liquidating the secession of Katanga.' UN forces would meanwhile take control of the radio station and post office and raid the offices of the Sûreté and Ministry of Information, removing files and apprehending Europeans and senior African personnel working there. The Congolese flag was to be raised on public buildings and UN buildings. An official was expected from Leopoldville in order to assume Central Government authority over the province. ¹⁴⁸ 

      What was envisaged was basically a repeat of Rumpunch, but for the purpose, this time, not simply of expelling foreign military personnel, but of putting an end to the secession itself. ¹⁴⁹  Yet, the circumstances under which 'Operation Morthor' was launched were very different from those of Rumpunch -- not only were the Katangese expecting UN action, they were much better prepared for it. ¹⁵⁰  Morthor, initiated in the early hours of 13 September 1961, went badly from the start. Attempts to seize control of the radio station and post office met with heavy resistance. Only one Katangese leader was arrested and, crucially, Tshombé's residence was not blockaded, apparently because of a misunderstanding between different ONUC military contingents. Control of the radio station and post office was eventually secured, but only after intense fighting. ¹⁵¹ 

      On the basis of these modest results, O'Brien declared that Katanga was back under Central Government control. He also justified Morthor on the basis of paragraph A1 of Resolution 161 authorizing ONUC to use force for the prevention of civil war. ¹⁵²  O'Brien was almost immediately overruled by Dag Hammarskjöld who presented the operation as a continuation of Rumpunch, aimed at the rounding up and expulsion of foreign military personnel. While this was clearly at odds with the facts, ¹⁵³  it appears that, for Hammarskjöld, there was no question of presenting Morthor as an attempt to forcibly end the Katangese secession since, in particular, he saw no basis for such an action in either the Security Council resolutions defining ONUC's mandate or the UN Charter. ¹⁵⁴  Indeed, given the operation's real aim, i.e. to end the secession, one must conclude that Morthor was ultra vires ONUC's mandate. ¹⁵⁵ 

      It seems clear that Operations Rumpunch and Morthor both took ONUC beyond the bounds of peace-keeping. In each case, ONUC took --or, in the case of Rumpunch, was prepared to take -- the initiative in the use of force in order to realize its objectives. Of course, neither operation had the consent of the Katangese authorities; yet, both had the full support of the Central Government. A Central Government ordinance for the expulsion of foreign military personnel preceded Rumpunch, while Central Government warrants formed the basis for the, mostly unsuccessful, attempt to arrest Katangese leaders during Operation Morthor.

      Given these facts, it would appear, at first glance, that both operations involved breaches of the impartiality principle. Most observers saw the assistance lent the Katangese administration by the foreign officers and political advisers as the main prop for the secession. Thus, whether ONUC moved to expel the foreign personnel or instead moved directly to end the secession, it arguably amounted to the same thing; in both cases, ONUC was helping the Central Government end the secession and thus taking the side of one disputant against another.

      Yet, the principle of impartiality as formulated by Hammarskjöld looked only to the internal aspect of the conflict between the Central Government and the Katangese secessionists. Specifically, it merely required that ONUC do nothing which would affect the relative power of the two parties, considered independently of any foreign intervention.

Likewise, it follows from the rule that the United Nations units must not become parties in internal conflicts, that they cannot be used to enforce any specific political solution of pending problems or to influence the political balance decisive to such a solution. ¹⁵⁶ 

      ONUC's task was thus limited to the elimination of the foreign intervention. ¹⁵⁷ 

      Clearly, Operation Rumpunch, aimed at the apprehension and expulsion of foreign military personnel, was consistent with the principle of impartiality as formulated by Hammarskjöld. Operation Morthor, on the other hand, ran afoul of the principle. By aiming, not at their foreign supporters, but at the Katangese leaders themselves, ONUC, in Morthor, sought to alter the relative power of the two rivals, considered independently of the foreign intervention.

The Use of Force

      As noted previously, UNITAF's mandate was explicitly grounded in chapter VII of the UN Charter. This, coupled with the authorization to 'use all necessary means', ¹⁸⁷  meant that, in implementing its mandate, UNITAF could take the initiative in the use of force. In fact, force was occasionally used to neutralize threats posed to the security of international military and civilian personnel ¹⁸⁸  and to halt inter-factional fighting. ¹⁸⁹  There can be no doubt, in other words, that UNITAF was authorized and indeed prepared, where necessary, to use force to implement its mandate.

      Nevertheless, more often than not, mission objectives were achieved without the use of force. The implicit threat of force, backed up by an abundance of military power deployed pursuant to the American strategic preference for 'overwhelming force', ¹⁹⁰  was almost always sufficient to secure compliance with the mandate. Where force was to be used, US rules of engagement stressed the need for restraint, ¹⁹¹  with the use of deadly force almost entirely restricted to cases where armed Somalis posed a serious threat to the safety of US soldiers. ¹⁹²  Where contingents could operate with a 'Chapter VI approach', they did so. ¹⁹³  There was a determination at the highest level to avoid armed confrontation with the factions wherever possible. ¹⁹⁴ 

Consent

      Neither the terms of UNITAF's mandate nor its deployment were subject to the approval of the factions or other political authorities. Operation Restore Hope was, in effect, imposed upon them. Nevertheless, whenever possible, UNITAF sought cooperation in reaching its goals.

      UNITAF's deployment to Mogadishu was conducted unopposed. ¹⁹⁵  Ali Mahdi had consistently supported international intervention while Aideed rallied to the idea at the last minute. ¹⁹⁶  Nor was any opposition encountered when UNITAF deployed to towns in Somalia's southern interior. These deployments were facilitated by the US Liaison Office (USLO) whose officials met with Somali authorities and militia leaders in these areas, in advance of deployment, in order to explain UNITAF's objectives and discourage potential resistance. ¹⁹⁷ 

      UNITAF's goals of securing the unopposed delivery of humanitarian assistance and controlling armaments, especially heavy weapons, were pursued, whenever possible, with the cooperation of the faction leaders and other authorities. ¹⁹⁸  A premium was put on continued dialogue and negotiation. ¹⁹⁹  A joint security committee, which brought together UNITAF officials and Somali faction leaders for regular meetings in Mogadishu, served to reduce tension and promote Somali understanding of and compliance with UNITAF goals. ²⁰⁰ 

      The implicit threat of enforcement action was, in all cases, a prime component of the US strategy to achieve mission objectives at minimum cost by eliciting Somali cooperation. ²⁰¹  This was not peace-keeping where mission objectives were essentially hostage to the dictates of host country authorities. Yet, neither was it war. ²⁰² 

Impartiality

      The political and military leadership of Operation Restore Hope attached great importance to the principle of impartiality. Although, as indicated earlier, this principle is a cornerstone of peace-keeping, in the view of these officials it was no less indispensable to the success of their, more muscular, efforts. Although force might have to be used in certain instances, UNITAF sought, in all cases, to avoid generating 'long-term animosity' on the part of any one faction. ²⁰³  While the Force's relations with Aideed's SNA ²⁰⁴  were often strained, ²⁰⁵  it in fact succeeded in 'maintaining and demonstrating military primacy without making a permanent adversary or national hero of any local actor'. ²⁰⁶  However tense relations with the SNA became, they never approached the catastrophic levels of hostility seen in the months following UNOSOM II's assumption of the Somali brief.

      The greater problem for UNITAF lay not in dealing with the factions in an even-handed manner, but in striking the right balance between the factions, on the one hand, and what remained of Somali civil society, on the other. In the eyes of many observers, UNITAF and the USLO made a critical mistake --a mistake which would cost UNOSOM II dearly -- in treating the faction leaders as principal interlocutors. Thus, it was argued, an opportunity was squandered to marginalize the warlords and actively promote the emergence of alternative Somali leadership. ²⁰⁷ 

      The US approach which, at one level, simply involved a recognition of existing power realities, was a necessary adjunct to the overall policy of avoiding confrontation with the warlords. Yet, there were other factors and other policies at work. First, the mere fact of the US intervention and the resultant, though provisional, taming of the warlords which it brought created a certain amount of space for the revival of Somali civil society. ²⁰⁸  Moreover, UNITAF and the USLO took deliberate steps to encourage this development. ²⁰⁹  US Special Envoy Robert Oakley, assiduous in soliciting the faction leaders' cooperation with UNITAF, went so far as to claim that the mission's ultimate goal was, in fact, their marginalization. ²¹⁰ 

      Yet, while US intervention undoubtedly did create space for Somali civil society, both as a matter of deliberate policy and as a byproduct of the military intervention, the decision of the US, in December 1992, to deal with the warlords kept them squarely in the political game. US policy was, in effect, 'being pursued on two parallel tracks: The United States was talking to the warlords, and also encouraging the emergence of other groups'. ²¹¹  It would be up to UNOSOM II to come down on one side or the other of the political equation.

The Use of Force

      As we have seen, UNOSOM II, in its initial phase, had extensive powers of enforcement: (1) to ensure compliance with the cease-fire and (2) the disarmament process agreed within the Addis Ababa framework; (3) to ensure the security of humanitarian relief operations; (4) to 'neutralize' SNA-controlled Radio Mogadishu; and (5) 'to take all necessary measures' against those responsible for the 5 June attacks on UN soldiers. ²³⁶  Moreover, the rules of engagement used by UNOSOM II permitted a more aggressive use of force than those used by UNITAF. ²³⁷ 

      Thus, on paper, UNOSOM II had broad scope for the use of force. The hunt for Aideed would see these powers exercised to their limit. While, as a general rule, UNOSOM military operations were constrained by the need to limit civilian casualties and unintended property damage, ²³⁸  occasional mistakes ²³⁹  and the SNA's use of human shields seriously undermined this policy during the period of armed conflict with the SNA. ²⁴⁰ 

Consent

      Enforcement implies, at some level, a lack of consent. Thus, the Secretary-General, in paragraph 97 of his 3 March 1993 report, states:

the deployment of UNOSOM II ... will be at the discretion of the Secretary-General, his Special Representative and the Force Commander acting under the authority of the Security Council. Such deployment would not be subject to the agreement of any local faction leaders. ²⁴¹ 

      Yet, UNOSOM II was not to be an army of occupation or colonization. To some extent, it did rely on consent.

Notwithstanding the compelling necessity for authority to use enforcement measures as appropriate, I continue to hold to my conviction that the political will to achieve security, reconciliation and peace must spring from the Somalis themselves. Even if it is authorized to resort to forceful action in certain circumstances, UNOSOM II cannot and must not be expected to substitute itself for the Somali people. Nor can or should it use its authority to impose one or another system of governmental organization. It may and should, however, be in a position to press for the observance of United Nations standards of human rights and justice. ²⁴² 

      In fact, in the Addis Ababa Agreement of 27 March 1993, concluded the day after the Security Council voted to establish UNOSOM II, the Somali factions committed themselves to those same objectives whose realization UNOSOM II was mandated to secure, if necessary, through the use of force, namely a cease-fire, ²⁴³  disarmament, ²⁴⁴  and the provision of a secure environment for relief, reconstruction and rehabilitation operations. ²⁴⁵  Moreover, in the 27 March Agreement, the factions expressed their consent to the first two components of UNOSOM II's enforcement mandate. Specifically, they 'Urge UNITAF/UNOSOM to apply strong and effective sanctions against those responsible for any violation of the Cease-fire Agreement of January 1993'. ²⁴⁶  Thus, in March 1993, a consensual framework of a kind underlay the UNOSOM II mission.

      The question arises as to whether this consensual framework was entirely sound. Were the commitments made by the faction leaders in the Addis Ababa meetings genuine? Although the official justifications offered for UNITAF's destruction, on 7 January 1993, of a USC/SNA military compound in Mogadishu centred on the security of international military and civilian personnel, ²⁴⁷  the incident was believed to have played an important role in getting Aideed to end his obstruction of the January 1993 Addis Ababa meeting. ²⁴⁸  Similarly, the agreement reached at the March Addis Ababa Conference was pried out of the faction leaders with threats of the imminent imposition, by the UN, of a transitional administration which would leave them on the sidelines in the absence of any accord. ²⁴⁹ 

      Of course, such pressures are frequent companions of agreements designed to end armed conflicts. More serious was the fact that, as we will see in the next section ('Impartiality'), the Addis Ababa agreements masked fundamental disagreement -- among the factions and between the factions and UNOSOM II --over such matters as disarmament and the re-establishment of Somali governance structures.

      The consensual foundations of the operation, such as they were, came under significant stress almost from the beginning of UNOSOM II's mission in Somalia. The violent conflict which raged between UNOSOM II and the SNA from June - October 1993 did the most damage to these foundations; yet, problems arose even before this. UNOSOM II's apparent determination to make uncompromising use of its enforcement powers, even in such areas of prime concern to the Somali factions as disarmament, constituted one important source of pressure on the mission's consensual foundations. ²⁵⁰  Equally problematic was UNOSOM II's tendency to act as a governing authority --i.e., to impose policies in such areas as the re-establishment of the judiciary and police or the national reconciliation process where it was only supposed to 'assist'. ²⁵¹ 

      These cases will also be reviewed in the next section of the chapter since they played a key role in the deterioration of relations between UNOSOM II and the SNA. Yet, it is worth noting here that UNOSOM II's evident desire to govern, as opposed to facilitate, in the political domain is seen by some observers as a leading cause of its armed conflict with the SNA. ²⁵² 

      That conflict clearly represented the end of cooperation --the end of consent -- as far as the SNA was concerned. It is a simplification, however, to claim that the war fatally undermined the consensual foundations of UNOSOM II's mission in Somalia. First, there remained a significant group of factions, allied with Ali Mahdi, who whole-heartedly supported military action against the SNA, indeed who asserted that this was the price of their own continuing cooperation with the UN mission. ²⁵³  Moreover, among those Somalis who did not consider themselves allied to any particular faction, many welcomed UNOSOM II's military initiatives against the SNA as a necessary first step in the process of defanging all warlords. ²⁵⁴ 

      With respect to Aideed's Habr Gedir clan, some analysts have claimed that Aideed's conflict with the UN weakened his base of support within the clan. ²⁵⁵  Yet, most observers assert, on the contrary, that the war helped him to consolidate ²⁵⁶  his hold on the Habr Gedir and even brought him support, including armed volunteers, from outside the clan. ²⁵⁷  UNOSOM II's attack on the 'Abdi House' ²⁵⁸  appears as something of a watershed in this respect, ending all dissension within Habr Gedir ranks and arousing considerable sympathy for Aideed and his clan on the part of other clans as well. ²⁵⁹ 

      Thus, while UNOSOM II retained the support of much of Somali society, including, in particular, the clans allied to Ali Mahdi, it lost considerable support among the Habr Gedir, other SNA adherents and other Somalis who were receptive to Aideed's claim that he was waging a war against UN-led attempts to re-colonize Somalia. Which is to say that although the UNOSOM - SNA conflict did not entirely sweep away UNOSOM II's consensual foundations, they were at least partly undermined. The situation had become more polarized with many Somalis taking sides, for or against the UN mission.

Impartiality

      At the outset of its mission, it was clear that UNOSOM II was to remain strictly impartial vis-à-vis the Somali factions. Impartiality, in this context, meant that UNOSOM II would implement its mandate, including its enforcement mandate, in a rigorously even-handed manner. This was reflected in the Secretary-General's report of 3 March 1993 which included the following military tasks in its definition of UNOSOM II's mandate:

1. To monitor that all factions continue to respect the cessation of hostilities and other agreements to which they have agreed, particularly the Addis Ababa agreements of January 1993;
2. To prevent any resumption of violence and, if necessary, take appropriate action against any faction that violates or threatens to violate the cessation of hostilities; ²⁶⁰ 

      Nevertheless, impartiality almost immediately became an issue with the UN Force. On the night of 6-7 May 1993, just days after the command of the military operation in Somalia passed from UNITAF to UNOSOM II, the forces of faction leader Omar Jess were repelled by Belgian troops when they tried to mount an attack on a rival in the southern port city of Kismayo. ²⁶¹  Aideed's SNA, which included Jess' faction, accused the UN of bias, noting that several months earlier the rival faction leader General Morgan had managed to infiltrate his men into Kismayo and drive out Jess though the city was then under UNITAF control. ²⁶² 

      Other developments in May widened the rift between UNOSOM II and the SNA. Specifically, UNOSOM II, in its efforts for the re-establishment of the Somali judiciary and police, was accused of trying to usurp SNA prerogatives in these areas. ²⁶³  A particularly serious dispute arose in relation to a conference which Aideed sought to organize, with UN assistance, in order to resolve long-standing problems in the Galcayo region of central Somalia. UNOSOM II, suspicious of Aideed's motives, wanted to broaden both the conference agenda and participation. Convinced that the UN was deliberately trying to undermine him, Aideed eventually convened his own conference, independent of the UN. ²⁶⁴  In fact, by this time, just days before the 5 June attacks on UN soldiers, key UN and US officials had already identified Aideed as the principal obstacle to the implementation of the Addis Ababa agreements and had advocated taking action to bring him to heel. ²⁶⁵ 

      One of the main criticisms levelled at UNOSOM II was that, in responding to the 5 June attacks with military action against the faction believed responsible and a warrant for the arrest of its leader, ²⁶⁶  it had abandoned one of the guiding principles of its mission in Somalia, namely impartiality. We now consider this claim.

      Among the various objectives pursued by the UN and US in the military operations launched against Aideed and the USC/SNA over the June-October 1993 period, four stand out.

      1) The restoration of peace This objective, related to the agreement of the factions, at the Addis Ababa talks, to a binding cease-fire, was enunciated, at least implicitly, in Security Council Resolution 837 ²⁶⁷  and more explicitly in a series of statements, letters and reports issued by the Secretary-General and the Security Council following UNOSOM II's first military operations against the USC/SNA, in June 1993. ²⁶⁸ 

      2) Disarmament The importance of the disarmament process, agreed by the factions at the January and March Addis Ababa talks, was emphasized in Security Council Resolution 837. ²⁶⁹  The first series of military operations conducted by UNOSOM II against the USC/SNA, targeting its weapons stores, was presented as an application of UNOSOM II's enforcement powers in this area. ²⁷⁰  The Secretary-General stressed that the

effective disarmament of all the factions and warlords is conditio sine qua non for other aspects of UNOSOM's mandate, be they political, civil, humanitarian, rehabilitation or reconstruction. ²⁷¹ 

      3) Aideed's capture or marginalization A third objective, explicitly laid out in Security Council Resolution 837, ²⁷²  was the capture of SNA leader Aideed, widely believed to have ordered the 5 June attacks. ²⁷³  Yet, UNOSOM II's inability to capture the General in the first weeks following the attacks led UN and US officials to stress that the real aim was not so much to capture Aideed as to isolate him within his Habr Gedir clan --along with those other SNA officials responsible for the 5 June attacks --and to encourage the emergence of alternative leadership which, it was hoped, would take the SNA and the Habr Gedir back into the peace process. ²⁷⁴ 

      4) Punishment More generally, UNOSOM II's forceful response to the 5 June attacks was designed to punish the USC/SNA for its deadly revolt against UNOSOM and the peace process and deter it and other factions from similar conduct in the future. ²⁷⁵  This broad strategy served a number of more specific policy goals, which included: preserving UNOSOM II's credibility; ²⁷⁶  ensuring the safety of UN personnel, both in Somalia and elsewhere; ²⁷⁷  ensuring the continuing participation in UNOSOM II of those countries, in particular Pakistan, who insisted on a punitive response to the 5 June attacks; ²⁷⁸  and demonstrating the UN's ability to rise to the challenges of its new peace enforcement role. ²⁷⁹ 

      Each of the four objectives just described arguably ran afoul of the impartiality principle in that they were directed against a single party, although the first and second derived from UNOSOM II's broad, initial mandate, applicable to all the factions. Yet, all four objectives, whether directly (the first and second) or indirectly (the third and fourth), were ultimately designed to secure SNA participation in the Addis Ababa peace process. The success or failure of these efforts was obviously of vital importance to the peace process as a whole, determining, in particular, the attitude the other factions would take towards it.

      Although, as described earlier, both sides had been moving towards confrontation in the period leading up to 5 June, it seems clear that UNOSOM II's military campaign against the USC/SNA was a direct response to SNA armed opposition and not the result of a pre-existing bias against the faction. In striking at the faction and its leader after 5 June, UNOSOM II was merely striking at the point of greatest resistance to its mandate in Somalia. Retired Admiral Jonathan Howe, head of mission at the time of the UNOSOM - SNA conflict, puts the argument thus:

Critics allege that we committed a fatal peacekeeping mistake on June 17 by publicly taking sides among competing factions. They tend to ignore that all Somali faction leaders had started with a clean slate. Although some had argued that certain warlords should be punished for past deeds, we considered it our mandate to look forward to the future -- not backward to the past. We were determined to facilitate an even-handed political process in which the Somalis picked their future leaders. It would then be up to newly elected Somali authorities to deal with any accusations of past misdeeds. General Aideed had distinguished himself on June 5 from other Somali leaders by 'taking sides' against the U.N. By brutally attacking Pakistani peacekeepers, he had demonstrated his hostility to the lawful actions of the international community. ²⁸⁰ 

      In the absence of any a priori intent on UNOSOM's part to treat the factions differently, we can therefore conclude that it did adhere to the principle of impartiality. Its implementation of its mandate remained even-handed in the sense that the means it used to that end were determined by the degree of resistance or cooperation it encountered. Throughout the hostilities with the USC/SNA, UNOSOM's abiding concern, in accordance with its mandate, was the preservation of the Addis Ababa peace process.

      Yet, if we evaluate UNOSOM II's conduct on the basis of the definition of impartiality advanced by Dag Hammarskjöld in the context of the UN's Congo initiative, the picture looks rather different. Hammarskjöld's definition focused on the effects of UN action. Specifically, UN forces were not to 'become parties in internal conflicts' or otherwise 'influence the political balance decisive to' their resolution. ²⁸¹ 

      The claim that UNOSOM II became a party to the Somali conflict --at least in practice, if not as a matter of actual intention -- is persuasive. Indeed, UNOSOM's efforts to capture and/or marginalize Aideed took it to the heart of a conflict which, since early 1991, had been driven, in large measure, by Aideed's fight with Ali Mahdi for supreme power. Removing Aideed from the scene would have changed the political equation dramatically. Yet the problem went further than this. Not only was UNOSOM II evidently bent on sweeping Aideed from the political scene, as the UNOSOM - SNA conflict dragged on, the USC/SNA, indeed the Habr Gedir as a whole, came to believe that they too had been targeted by the UN for physical elimination. ²⁸²  It thus appeared to many that UNOSOM II had aligned itself, not merely against a particular faction leader, but against an entire faction and the clan which it represented.

      Officially, UNOSOM II had no intention of disrupting the prevailing balance of military and political power among Somali factions. Thus, the UN indicated that the coercive disarmament of the USC/SNA would be followed, as soon as possible, by a programme of cooperative disarmament in the rest of the country. ²⁸³  Moreover, in an effort to mitigate the effects of a disarmament policy which, in its initial, coercive phase was entirely selective, UNOSOM II sent letters to the leaders of factions opposed to Aideed 'cautioning [them] against taking advantage of a weakened SNA.' ²⁸⁴  Yet, these efforts could not alter the reality on the ground. The four-month conflict with UNOSOM cost both Aideed ²⁸⁵  and his clan ²⁸⁶  dearly. In fact, it appears that the UN was on the verge of prevailing when, as a result of the political fallout from the 3 October battle, it was forced to retreat from peace enforcement. ²⁸⁷ 

      So far, we have been considering whether UNOSOM II, in its dealings with the Somali factions, remained impartial. Yet, the problem of impartiality may be posed at another, deeper level. UNITAF, with its 'two-track' approach, sought to steer a neutral course between the realities of power (the factions), on the one hand, and the needs of a barely renascent Somali civil society, on the other. ²⁸⁸  It was in the nature of its role in Somalia, namely to implement a lasting solution to the problem of warlord-induced misery, ²⁸⁹  that UNOSOM II would find itself necessarily 'aligned against' the factions.

      The national reconciliation process furnishes one example of this. Initially, UNOSOM II, even more than UNITAF, appeared to put the faction leaders at the centre of the political process. Thus, the agreements which emerged from the January and March Addis Ababa meetings, held under UN auspices, were negotiated and signed by the faction leaders alone, despite the attendance, especially at the March meeting, of Somalis representing a broad cross-section of their society. ²⁹⁰ 

      Nevertheless, the Addis Ababa Agreement of 27 March 1993 appeared to endorse the 'bottom-up' approach to the task of re-establishing Somali governance structures, long advocated by various experts in the field. ²⁹¹  Specifically, the Agreement's provisions for the establishment of district and regional councils opened the door to the re-emergence of local leadership independent of the factions --or at least of those factions which did not have local support. ²⁹² 

      Yet, the 15 factions, signatories of the 27 March Agreement, signed a separate document, on 30 March, which sought to refocus the reconciliation process on the prompt establishment of the top-level structure envisaged in the 27 March Agreement, the Transitional National Council (TNC), while ensuring that it remained firmly under the factions' control. ²⁹³  UNOSOM II basically ignored the 30 March Agreement and, through 1993, ²⁹⁴  worked to promote the establishment of district and regional councils in cooperation with local leaders. ²⁹⁵  This policy, disliked by many of the factions, was actively opposed by the SNA. ²⁹⁶ 

      The threat which the UN's interpretation of the political process posed to many of the warlords was, however, overshadowed by an even more fundamental challenge to their authority --disarmament. While some factions genuinely supported the disarmament process, many others did not. ²⁹⁷  It was probably no coincidence that the 5 June attacks coincided with UNOSOM II's resolute assertion of its right to inspect five authorized weapons storage sites (AWSS) belonging to the USC/SNA. ²⁹⁸  It is almost certainly here that the real roots of the UNOSOM - SNA conflict lie. While other factors may have helped bring the situation to the boiling point by early June 1993, ²⁹⁹  armed confrontation over disarmament was probably inevitable. ³⁰⁰ 

The Three Criteria

      The enforcement of the no-fly zone shared several features of the model of peace enforcement sketched out in chapter 1. First, it involved potential enforcement action. NATO could, in fact did, take the initiative in the use of force, albeit as a last resort, for the purpose of securing compliance with the ban.

      Second, there was consent of a kind to the no-fly zone itself, though not to the measures subsequently taken for its enforcement. The Security Council's decision, in October 1992, 'to establish a ban on military flights' over Bosnia ³⁴³  was, in fact, based on an identical commitment made by the warring parties at the London Conference (26-27 August 1992). ³⁴⁴  That commitment was not honoured, however. The continuing use of Serb aircraft in combat missions prompted the Bosnian Government to appeal to the international community, in early October 1992, to enforce compliance with the ban. ³⁴⁵  Since the Bosnian Muslims had almost no potential for air combat themselves, this was entirely in their interest.

      As just suggested, the application of the third component of our earlier model of peace enforcement, i.e. impartiality, is much more problematic in the case of the no-fly zone. Although the prohibition and its associated enforcement measures applied, on their face, to the warring parties in equal measure, the Bosnian Serbs bore the brunt of their actual application. The enforcement of the no-fly zone, though formally impartial, involved in reality the elimination of the Bosnian Serb advantage in air power. ³⁴⁶ 

UNPROFOR's Safe Areas Mandate

      As noted already, Security Council Resolution 836 emphasizes the notion of self-defence with respect to UNPROFOR's implementation of its safe areas mandate. In particular, paragraph 9, specifying the means UNPROFOR may employ in executing this mandate ('acting in self-defence'), would appear to prohibit it from using force except in situations where it is itself under threat. ³⁵⁵  Nevertheless, the rules of engagement adopted for the Force authorized UNPROFOR personnel to use their weapons:

a. to defend themselves, other U.N. personnel, or persons and areas under their protection against direct attack, ...

c. to resist deliberate military or para-military incursions into the United Nations Protected Areas (UNPAs) or Safe Areas. ³⁵⁶ 

      Reporting to the Security Council 10 days after the adoption of Resolution 836, the Secretary-General presented two options for the implementation of those provisions of the resolution concerning UNPROFOR. The first, designed 'to ensure full respect for the safe areas', required approximately 34,000 additional troops, while the second, 'light option' envisaged a troop reinforcement of only around 7,600. ³⁵⁷  The Secretary-General noted that, as the latter 'option cannot, in itself, completely guarantee the defence of the safe areas, it relies on the threat of air action against any belligerents.' ³⁵⁸  The Security Council, responding to the report on 18 June, chose the 'light option', although even this modest commitment to the protection of the safe areas proved difficult to fulfil --it would be a full year before the last of the 7,600 additional troops were deployed in the safe areas. ³⁵⁹ 

      In any case, the Secretary-General had stressed that not much could be expected of this 'minimal troop reinforcement'. ³⁶⁰  It had 'limited objectives' and assumed 'the consent and cooperation of the parties'. ³⁶¹  In implementing its safe areas mandate over the 1993-95 period, UNPROFOR was, in practice, very much dependent on party consent and cooperation. Bosnian Serb forces were able to obstruct access to the safe areas at will ³⁶²  and even block the rotation of UNPROFOR contingents there. ³⁶³  Perhaps the only indication that UNPROFOR was, in fact, in the business of protecting the safe areas, came, in July 1995, when a Dutch platoon, having taken up positions at the entrance to Srebrenica, tried to block a Bosnian Serb advance into the town, They succeeded in stopping one infantry advance, but were later outflanked by another group which moved on to capture the town centre. ³⁶⁴  Yet, this action basically involved the use of force for the purpose of holding existing positions and, as such, did not take UNPROFOR out of its peace-keeping role. ³⁶⁵ 

NATO's Safe Areas Mandate

      Meeting in Athens on 10 June 1993, NATO foreign ministers offered 'our protective airpower in case of attack against UNPROFOR in the performance of its overall mandate, if it so requests.' ³⁶⁶  Yet, although the text of the Athens communiqué suggested otherwise, ³⁶⁷  this measure, which would come to be known as 'close air support', was not designed for the defence of the safe areas or their civilian inhabitants, but rather for the protection of all UN forces in Bosnia, inside and outside of the safe areas. ³⁶⁸ 

      While perhaps surprising to anyone who thought the international community's primary concern should be the protection of the safe areas per se, ³⁶⁹  this was not incompatible with the mandate conferred upon UNPROFOR in Resolution 836 which, as previously noted, limited its role in support of the safe areas to peace-keeping, with the right to use force only in self-defence.

      If UNPROFOR in fact occupies 'some key points on the ground' within the safe areas, ³⁷⁰  one would assume that most threats to the safe areas would also constitute threats to UNPROFOR and thus trigger its right of self-defence. Yet, the two types of threat (to UNPROFOR / to the safe areas) need not always coincide. The question of whether Resolution 836 can be read so as to confer, at least upon NATO, a right to use force in direct defence of the safe areas is thus of considerable practical importance.

      Paragraph 10 of Resolution 836 authorizes NATO to use air power 'to support UNPROFOR in the performance of its mandate set out in paragraphs 5 and 9'. ³⁷¹  If paragraphs 5 and 9 are separable, then NATO could employ air power, either for the ends specified in paragraph 9 (to defend UNPROFOR) or those specified in paragraph 5 ('to deter attacks against the safe areas'). The latter provision would effectively allow NATO to launch air strikes in defence of the safe areas, independently of any specific threat to UNPROFOR. If, however, paragraphs 5 and 9 are not separable, NATO would necessarily share the limitation of means imposed on UNPROFOR in paragraph 9. In other words, it could only use air power in defence of UNPROFOR.

      In practice, at US insistence, the former interpretation of Resolution 836 was to prevail --NATO would have the right, subject to the specific approval of UN officials, ³⁷²  to use force in direct defence of the safe areas ³⁷³  --yet only after persistent Bosnian Serb pressure on the safe areas finally forced the issue.

      At the end of July 1993, the Bosnian Serbs looked set to complete their stranglehold on Sarajevo with the capture of Mount Igman. The US, arguing for a broad interpretation of Resolution 836, threatened unilateral action if its NATO allies did not agree to authorize the use of air power for the direct defence of the safe areas, including Sarajevo. ³⁷⁴  In meetings held on 2 and 9 August, NATO's North Atlantic Council (NAC) indicated that the Alliance was prepared, in principle, to use air power for this purpose. Operational options for air strikes were drawn up and approved, although a final decision to authorize NATO commanders to launch air strikes at UN request was deferred. ³⁷⁵ 

      Continued Bosnian Serb artillery and mortar attacks on Sarajevo finally led the Alliance, on 9 February 1994, to threaten immediate air strikes in case of further attacks on the city and issue an ultimatum for the withdrawal of all heavy weapons from a 20 kilometre 'exclusion zone' around it. ³⁷⁶  It followed this, two months later, with a similar set of ultimatums in respect of the Gorazde safe area, then under Bosnian Serb attack. ³⁷⁷  The Bosnian Serb assault of November 1994 on the Bihac safe area led the Security Council to adopt Resolution 958 (19 November) which extended the authorization to use air power pursuant to Resolution 836 to measures taken on Croatian territory. ³⁷⁸ 

      Thus, NATO took on the task of enforcing respect for the safe areas, either by providing 'close air support' to UNPROFOR troops who came under Bosnian Serb attack within them, or by launching air strikes, with UN approval, in direct defence of the safe areas. UNPROFOR's mission was to deter Bosnian Serb attacks on these areas within a strict, peace-keeping framework. This combination of peace enforcement and peace-keeping, not only within the same theatre of operations, but within the context of the same operation (the protection of the safe areas), constituted perhaps the best illustration of the international community's fundamental ambivalence in its approach to the Yugoslav Crisis. In fact, it was soon evident that peace enforcement and peace-keeping could not be made to coexist. ³⁷⁹ 

The Breakdown of the Safe Areas Regime

      Air power proved far less effective in defending the safe areas than had been hoped. The Bosnian Serbs' deployment of air defence systems acted as one constraint on its utilization. ³⁸⁰  Even more problematic was the Bosnian Serb tactic of responding to limited air strikes ³⁸¹  by taking large numbers of UN personnel hostage and withholding all cooperation from UNPROFOR. ³⁸²  By the end of May 1995, the UN's peace-keeping mission in Bosnia had reached a virtual impasse. ³⁸³  Worse was to follow in July 1995 with the fall of the Srebrenica and Zepa safe areas. ³⁸⁴ 

      The Bosnian Serbs' seizure of close to 400 UN personnel as hostages, in late May 1995, prompted France, the Netherlands and the UK to set up a 'rapid reaction force', some 4,500 strong, for the Bosnian theatre. The initial proposal stressed that the force 'would not change the United Nations role to peace-enforcement'. Placed under UN military command, it 'would act in support of UNPROFOR, functioning within its existing mandate'. ³⁸⁵  Unlike UNPROFOR, it was, however, equipped for combat. Its first task, once deployed in late July 1995, was to protect UN convoys crossing the treacherous Mt. Igman route into Sarajevo. Significantly, it would not do the same for Bosnian Government convoys, ³⁸⁶  preferring, at least initially, to play no favourites.

      The fall of the two safe areas led to the adoption of another inconsequential Security Council resolution ³⁸⁷  and, more seriously, a series of decisions by Western leaders which resulted in important changes to the air strikes policy. The 'pin-prick' strikes of the past were rejected. Any new Bosnian Serb threat to the safe areas was to be met with a 'firm and rapid' use of NATO air power. The 'zone of action' would not be limited to the safe area under threat and force could be used pre-emptively -- in response to a perceived concentration of Bosnian Serb forces or any other activity presenting a direct threat to the safe areas. ³⁸⁸ 

Operation Deliberate Force

      On 28 August, a Bosnian Serb mortar struck a market in central Sarajevo, killing 37 people. Immediately afterwards, the UN completed its pull-out of peace-keepers from exposed positions in Bosnia with the departure of the last troops from the remaining eastern safe area of Gorazde. ³⁸⁹  The stage was set for 'Operation Deliberate Force'. Beginning on 30 August, NATO aircraft conducted a wide-ranging bombing campaign against Bosnian Serb military targets throughout Bosnia while the rapid reaction force shelled Bosnian Serb targets in the Sarajevo area. These operations were jointly decided by NATO and UN military commanders ³⁹⁰  and continued, with a four-day pause at the beginning of the month, until 14 September when Bosnian Serb leaders finally agreed to NATO and UN demands.

      The basic objectives of Operation Deliberate Force were enunciated as: ending Bosnian Serb attacks on Sarajevo and the other safe areas; securing the withdrawal of Bosnian Serb heavy weapons from the Sarajevo exclusion zone; and securing complete freedom of movement for UN forces and personnel, and NGOs, along with the unrestricted use of Sarajevo airport. ³⁹¹  Much of the evidence pointed, however, to a link between the bombing campaign and a US peace initiative for Bosnia. ³⁹²  In any case, the objectives of Operation Deliberate Force, whatever they were, were pursued through the destruction of much of the Bosnian Serbs' military capability. ³⁹³ 

Consent and the Safe Areas

      The Security Council resolutions defining the safe areas regime ³⁹⁴  were imposed on the warring parties, specifically the Bosnian Serbs. In fact, they were adopted in direct response to Bosnian Serb attacks on these areas. Despite this, the Secretary-General repeatedly stressed that their effective protection depended, to a large extent, on the consent of the warring parties, including the Bosnian Serbs. ³⁹⁵  Where such consent could not be found, it had to be manufactured. Thus, in respect of both the Srebrenica and Zepa safe areas, the UN brokered agreements between the warring parties for a cease-fire, the deployment of UNPROFOR troops, 'ad hoc demilitarization' and 'other measures including, in particular, a clear delimitation of the safe area'. ³⁹⁶  Anti-sniping agreements were reached in respect of Sarajevo (14 August 1994) and Gorazde (28 August 1994). ³⁹⁷  Agreements relating to the withdrawal or placement under UNPROFOR control of heavy weapons (9 February 1994) and freedom of movement (17 March 1994) were also reached in respect of Sarajevo. ³⁹⁸ 

      Yet, as is well known, compliance with these agreements was at best partial. ³⁹⁹  There was a further problem in that certain agreements were at variance with the Security Council resolutions defining the safe areas regime. Of particular importance, was the lack of provision in these resolutions for the demilitarization of the safe areas, ⁴⁰⁰  a key element of the cease-fire agreement for Srebrenica (18 April 1993). ⁴⁰¹  Although steps were taken to implement the latter agreement, Srebrenica's Muslim defenders surrendered less than half of their weapons in the initial 72-hour period in which total demilitarization was to have occurred pursuant to its terms. Additional weapons and armed individuals flowed into Srebrenica thereafter and a formal military organization was retained in the enclave ⁴⁰²  which, as described in the next section, remained a base for military activities.

      In an effort to ground the safe areas regime more firmly in party consent, the Secretary-General proposed the following modifications to it:

• Delineation of the safe areas;
• Demilitarization of the safe areas and cessation of hostilities and provocative actions in and around the safe areas;
• Interim measures towards complete demilitarization;
• Complete freedom of movement. ⁴⁰³ 

      Yet, these proposals barely scratched the surface of the problem. No arrangement in respect of the safe areas could ever really satisfy the Bosnian Serbs.

      With the possible exceptions of Tuzla and one half of Sarajevo, the mere existence of the safe areas directly clashed with Bosnian Serb war aims --to exercise complete control over these territories. ⁴⁰⁴  It appears clear that what limited 'cooperation' the latter gave UNPROFOR in respect of the safe areas was motivated by a fear of tougher action on the part of the international community. The Bosnian Serbs were simply deterred, for awhile, from seizing these areas by the threat of coercive action. When deterrence failed -- when the Bosnian Serbs perceived they could capture certain safe areas without suffering the adverse consequences long threatened by the UN and NATO --they did so.

Impartiality and the Safe Areas

      Impartiality was considered central to UNPROFOR's implementation of its mandate, including its mandate to deter attacks on the safe areas. ⁴⁰⁵  It was also a central feature of the mandate of the rapid reaction force. ⁴⁰⁶  The practical reality, however, was very different. The UN itself recognized that the defence of the safe areas involved a direct denial of Bosnian Serb war aims. ⁴⁰⁷  Moreover, these areas often served as a base for Bosnian Government troops, weapons and military installations. Small-scale militia raids and large-scale military offensives were launched and/or directed from these areas against surrounding Serb-held territory. ⁴⁰⁸  Seen in this light, it is clear that the defence of the safe areas could not be an impartial act.

Freedom of Movement

      In addition to securing their own freedom of movement, ⁴⁵⁰  I/SFOR have been mandated 'to assist the movement of organizations in the accomplishment of humanitarian missions' ⁴⁵¹  and ensure that the parties to the Dayton accords comply with their obligation to facilitate the 'free and unimpeded access and movement' of 'international personnel ... in Bosnia and Herzegovina pursuant to [the Dayton accords]'. ⁴⁵² 

      Yet, the focus of attention in this area --seen as a prerequisite to the effective reintegration of Bosnia-Herzegovina --has been I/SFOR's mandate to ensure civilian freedom of movement. ⁴⁵³  After a slow start, ⁴⁵⁴  IFOR and SFOR have played a key role in the promotion of freedom of movement throughout Bosnia-Herzegovina. Their main contribution in this regard has been the removal of unauthorized checkpoints. ⁴⁵⁵  They have also repaired or built roads, bridges and railways ⁴⁵⁶  and have assisted initiatives, such as inter-entity bus lines, launched by the UNHCR and other international agencies in order to facilitate movement across the Inter-Entity Boundary Line. ⁴⁵⁷ 

      By the end of 1997, these efforts had helped generate a marked improvement in freedom of movement throughout Bosnia-Herzegovina, as compared with December 1995 when the Dayton accords were signed, though the situation was still far from perfect. ⁴⁵⁸ 

The Return of Refugees and Displaced Persons

      The parties have a clear obligation under the Dayton accords to permit, in safety, the return of refugees and displaced persons to their homes. ⁴⁵⁹  Nevertheless, by the end of 1997, only about 400,000 of an estimated 2 to 2.5 million refugees and displaced persons had returned. ⁴⁶⁰  Only 35,000 of these were returning to areas in which they were an ethnic minority with returns of Croats or Muslims to the Serb-run Republika Srpska especially rare. ⁴⁶¹ 

      Local authorities have prevented returns through the use of property laws or administrative measures as well as through the use of violence and intimidation, and the destruction of houses. The latter, coercive measures have also been used to drive recent returnees out of certain areas. Moreover, many of those who escaped 'ethnic cleansing' during the Bosnian War have fallen prey to the process in the post-Dayton period. Although the climate for minority returns appeared to improve somewhat in the latter part of 1997 (at least in central Bosnia, under Muslim and Croat control, and in parts of northern Bosnia, under Serb control), at the end of the year, the number of people forced from their homes since the conclusion of the Dayton accords far outweighed the number of minority returns. ⁴⁶² 

      Neither IFOR or SFOR have been explicitly mandated to support, and if necessary enforce, the return of refugees and displaced persons. It is submitted, however, that such a mandate emerges quite clearly from several, broadly-worded provisions of Annex 1-A of the Dayton accords. The party obligations to 'provide a safe and secure environment for all persons in their respective jurisdictions' ⁴⁶³  and arguably that to 'cooperate fully with all entities involved in implementation of [the Dayton accords]' ⁴⁶⁴  (including, presumably, the UNHCR) would constitute one foundation of a mandate in support of the right of return. ⁴⁶⁵ 

      A separate basis for such a mandate would appear to lie in article VI(3) of Annex 1-A of the Dayton accords, defining I/SFOR's 'supporting tasks', the first of which is 'to help create secure conditions for the conduct by others of other tasks associated with the peace settlement'. ⁴⁶⁶  In addition, though the Force has received no explicit powers in this respect, several of the provisions just referred to would appear to enable I/SFOR to intervene to halt ethnic cleansing, if it felt so inclined. ⁴⁶⁷ 

      In 1996, IFOR distinguished itself by its inaction, both in relation to publicized instances of ethnic cleansing ⁴⁶⁸  and in respect of the right of return, which it said it would not enforce. ⁴⁶⁹  Instead, IFOR assisted the return process in more modest ways, in particular by promoting freedom of movement across the Inter-Entity Boundary Line. ⁴⁷⁰ 

      SFOR has continued to offer such indirect forms of assistance to the return process. In fact, as civilian efforts to promote minority returns have intensified, SFOR's support for these activities has also been stepped up. ⁴⁷¹  But in certain cases, SFOR, in contrast to IFOR, has also directly assisted returns, specifically by ensuring the security of individual returnees. ⁴⁷² 

      Both IFOR and SFOR have also been called upon to restore order and, where possible, prevent clashes arising from attempts at resettlement by one group in areas controlled by another. ⁴⁷³  For these purposes, they have confiscated weapons, ⁴⁷⁴  detained individuals, ⁴⁷⁵  and restricted access to and activity in areas of confrontation. ⁴⁷⁶ 

The Investigation and Prosecution of War Crimes

      In keeping with their mandate to assist the International Criminal Tribunal for the Former Yugoslavia (ICTY), ⁴⁷⁷  IFOR and SFOR have conducted aerial and ground surveillance of suspected mass grave sites, provided logistical support and local area security for ICTY teams investigating such sites, and transported to The Hague persons wanted by the Tribunal for questioning or trial. ⁴⁷⁸ 

      The question of the detention and transfer to ICTY custody of persons indicted for suspected violations of international humanitarian law is rather more complex. There can be little doubt that IFOR and SFOR have had the legal authority to make such arrests. ⁴⁷⁹  Nevertheless, in defining the operational parameters of its Bosnia missions, NATO has used only a fraction of this authority. As part of the Operational Plan (OPLAN) adopted for IFOR by the NAC on 16 December 1995, it was agreed that IFOR would

detain and transfer to the ICTY persons indicted for war crimes, when coming into contact with them in carrying out its duties as defined by the military annex of the Peace Agreement. ⁴⁸⁰ 

      Statements made by NATO and US officials following IFOR's deployment to Bosnia-Herzegovina made it clear that this narrow NAC mandate would be strictly adhered to. ⁴⁸¹  In fact, following repeated sightings of Bosnian Serb leader Radovan Karadzic, occasionally in close proximity to IFOR troops, ⁴⁸²  and wider revelations in the press concerning the high profile of other indicted war crimes suspects, ⁴⁸³  some observers concluded that IFOR had a 'deliberate policy ... not to arrest [war crimes suspects].' ⁴⁸⁴ 

      The NAC mandate governing the detention of war crimes suspects was left unchanged with the establishment of SFOR in December 1996, ⁴⁸⁵  despite appeals for a tougher approach. ⁴⁸⁶  While diplomatic and economic pressure did succeed in securing the extradition or surrender of some suspects, most remained at large throughout 1997. ⁴⁸⁷  It was against this background that SFOR mounted special operations on 10 July and 18 December which resulted in the capture of one Bosnian Serb and two Bosnian Croat suspects and the death of one Bosnian Serb suspect. ⁴⁸⁸  Both operations, involving sealed (non-public) indictments, ⁴⁸⁹  were planned in advance and could in no way be construed as accidental encounters occurring as SFOR soldiers carried out other duties. ⁴⁹⁰  NATO officials insisted, nevertheless, that there had been no change in SFOR policy. ⁴⁹¹ 

      While, by the end of 1997, it appeared that SFOR was prepared, on a selective basis, to arrest war crimes suspects, the two most notorious suspects --Radovan Karadzic and Ratko Mladic, the Bosnian Serb political and military leaders -- remained at large. Reported plans for a special operation to seize the heavily-guarded Karadzic ⁴⁹²  were not implemented, though American intelligence teams did closely monitor his movements. ⁴⁹³  It appeared that the international community preferred to try to marginalize the hard-line Bosnian Serb leader, specifically by vigorously supporting his chief rival in the Republika Srpska, RS President Biljana Plavsic. ⁴⁹⁴ 

Media Restructuring

      Since August 1997, on the basis of authority previously conferred by the Steering Board of the Peace Implementation Council, ⁴⁹⁵  the High Representative ⁴⁹⁶  has led efforts to curb inflammatory media broadcasts in Bosnia. The principal target of these initiatives was the hard-line Bosnian Serb faction, based in Pale, ⁴⁹⁷  but, during the latter part of 1997, all media in Bosnia-Herzegovina were subject to close international scrutiny and demands for reform. ⁴⁹⁸ 

      SFOR has lent key support to these efforts, in particular by taking control of vital transmission facilities and placing them at the disposal of the more moderate Bosnian Serb faction led by Biljana Plavsic, based in Banja Luka. ⁴⁹⁹  Since the provisions of the Dayton accords which appear most relevant in this area, ⁵⁰⁰  namely those dealing with freedom of expression / freedom of the press ⁵⁰¹  and reconciliation, ⁵⁰²  are situated outside of SFOR's main domain, i.e. Annex 1-A, it appears that SFOR's formal mandate for the curtailment of media networks acting in contravention of Dayton would derive from article X of Annex 1-A in which the parties agree to 'cooperate fully with all entities involved in implementation of [the Dayton accords]', ⁵⁰³  including the High Representative. ⁵⁰⁴  The NAC authorized SFOR to take up such assignments in August 1997. ⁵⁰⁵ 

The Use of Force

      As noted previously, I/SFOR's enforcement powers are extensive, underpinning a wide range of military and non-military tasks. Although the rules of engagement which NATO, pursuant to Security Council Resolutions 1031 and 1088, adopted for IFOR and SFOR subject any use of force for the purpose of Dayton implementation to the requirements of international humanitarian law, including the 'principles of proportionality and the use of minimum necessary force', ⁵⁰⁶  they do not limit the scope of I/SFOR's enforcement powers in any way. Thus, the two forces have been given blanket authorization to use 'deadly force ... [t]o safely implement the peace plan.' ⁵⁰⁷ 

      Statements made by political and military authorities have emphasized IFOR and SFOR's capacity and determination to use force to secure implementation of the Dayton accords. ⁵⁰⁸  That resolve was clearly demonstrated to the parties immediately after IFOR's deployment through the latter's vigorous assertion of its right of freedom of movement. ⁵⁰⁹  Nevertheless, in the course of their missions, IFOR and SFOR have shown considerable restraint in the exercise of their enforcement powers.

      A lack of party cooperation in the implementation of Dayton's military provisions, more frequent than is sometimes assumed, ⁵¹⁰  has led IFOR and SFOR to issue verbal warnings, ⁵¹¹  confiscate and destroy weapons and ammunition, ⁵¹²  impose bans on military training and the movement of armed forces, ⁵¹³  and, in particularly serious cases, mount shows of force. ⁵¹⁴  Given the two forces' undeniable military 'leverage' over the parties, ⁵¹⁵  this has been sufficient to secure party compliance when IFOR and SFOR have insisted on it, although, up until the middle of 1997, they only insisted on compliance with the military provisions of the Dayton accords.

      As previously indicated, it has been the smaller SFOR which has enforced, albeit selectively, Dayton's civilian provisions. Returning refugees have been protected, ⁵¹⁶  indicted war crimes suspects have been seized, ⁵¹⁷  and hard-line media have been shut down. ⁵¹⁸  Yet, in all these operations, the actual use of force has typically been held in reserve --employed only as a last resort. ⁵¹⁹ 

Consent

      The parties to the Dayton accords ⁵²⁰  expressed therein their consent to IFOR's establishment under NATO authority ⁵²¹  and to the various components of its mandate, ⁵²²  including its enforcement mandate. ⁵²³  In addition, the parties agreed to 'cooperate fully with all entities involved in implementation of [the Dayton accords],' including IFOR. ⁵²⁴  This consent was, at NATO's express request, reaffirmed by the parties in respect of SFOR. ⁵²⁵ 

      American political and military leaders saw the consent of the Bosnian factions to the IFOR mission, and their commitment to the Dayton settlement generally, as essential preconditions to the participation of American troops in the NATO-led Force. ⁵²⁶  Although those American and NATO officials most closely associated with IFOR invariably glossed over this problem, ⁵²⁷  the agreements, initialled at the Wright-Patterson Air Force Base near Dayton on 21 November and signed in Paris on 14 December 1995, in fact masked fundamental discord.

      In Dayton, the Bosnian Muslims were put under considerable pressure, especially by American negotiators, to reach a settlement with their Serb and Croat counterparts. ⁵²⁸  Nevertheless, the Muslim delegation directly negotiated the Dayton accords and, after weighing their options, signed the resulting agreements freely. ⁵²⁹  The situation in respect of the Bosnian Serbs was rather different.

      Serbian President Slobodan Milosevic, anxious to reach an agreement at Dayton, ⁵³⁰  deliberately kept the three Bosnian Serb members of his team out of the negotiations, revealing the final details of the settlement only just before it was initialled. ⁵³¹  They then denounced the accord and boycotted the initialling ceremony. ⁵³²  Those sections of the Dayton accords to which the Republika Srpska (RS) was a party ⁵³³  were initialled for it by the Minister of Foreign Affairs of the Federal Republic of Yugoslavia (FRY), Milan Milutinovic. ⁵³⁴ 

      Bosnian Serb opposition to the Dayton accords centred on the requirement that they surrender the four Sarajevo suburbs which they held and on the sweeping authority given to IFOR. ⁵³⁵  Although a subsequent meeting between Milosevic and Bosnian Serb leaders went some way towards securing the latter's grudging acceptance of Dayton, ⁵³⁶  they remained dissatisfied. Shortly after IFOR's deployment, they appealed for a delay in the transfer of Serb-held Sarajevo to Federation control. ⁵³⁷  They had, however, already given the game away. On 14 December, Bosnian Serb leader Nikola Koljevic signed those sections of the Dayton accords to which the RS was a party at the formal ceremony held for this purpose in Paris. ⁵³⁸ 

      Thus, IFOR's consensual foundations, though real enough, were fragile. Not surprisingly, IFOR and SFOR have been quite assiduous in their attempts to nurture and sustain the cooperation of the Bosnian factions. A principal means of achieving this has been the Joint Military Commission, provided for in the Dayton accords. ⁵³⁹  Chaired by the I/SFOR Commander or his representative and bringing together the senior military commanders of the rival Bosnian forces, ⁵⁴⁰  it allows I/SFOR to clarify matters relating to the implementation of Dayton's military provisions and resolve any problems arising in that context. ⁵⁴¹  The establishment of subordinate military commissions at various levels of the military command hierarchy allows problems to be resolved at the lowest possible level. ⁵⁴² 

      Party compliance with Dayton's military provisions has been good. Isolated incidents aside, ⁵⁴³  the cease-fire has been observed, and provisions for the separation, cantonment and partial demobilization of the rival forces were basically complied with, though not always within the stated deadlines. ⁵⁴⁴  Yet, problems have arisen. The Bosnian Muslims were extremely slow to see off their foreign Islamic fighters and advisors as the accords require. ⁵⁴⁵  Various other violations of the military provisions have been committed by the three sides, with the declaration and/or storage of weapons and ammunition in approved sites a particular problem, especially on the Bosnian Serb side. ⁵⁴⁶ 

      The most serious problems of compliance have, however, arisen in respect of Dayton's civilian provisions. We have already examined, in some detail, four such areas -- freedom of movement, the return of refugees and displaced persons, the investigation and prosecution of war crimes, and media restructuring. Progress in other areas which are just as important to the effective reintegration of Bosnia-Herzegovina, but where IFOR and SFOR's role has been much less central --such as the establishment and functioning of common national institutions -- has also been slow. Each of the former warring factions bears some blame for the slow pace of civilian implementation and, as a result, Bosnia's continuing division into three ethnic territories, ⁵⁴⁷  but the Bosnian Serbs have distinguished themselves in their obstructionism. ⁵⁴⁸ 

Impartiality

      The IFOR and SFOR missions have both been premised on the principle of impartiality, understood as the 'even-handed' implementation of the mandate, including the enforcement mandate. ⁵⁴⁹  A link with the principle of consent is recognized, with I/SFOR's impartiality seen as a crucial determinant of party cooperation. ⁵⁵⁰ 

      Despite some initial scepticism, especially on the part of the Bosnian Serbs, ⁵⁵¹  that IFOR, once deployed, would really be impartial, the overall record tends to show that IFOR and SFOR, at least up to mid-1997, implemented their mandates in an even-handed manner, carrying out their activities without regard to the identity of the parties they were dealing with, but only the fact of their compliance, or noncompliance, with the Dayton accords. ⁵⁵²  The situation in the last half of 1997 has, at first glance, been rather different.

      The last half of 1997 has been marked by a struggle for power between the elected President of the Republika Srpska, Biljana Plavsic, and a group of RS hard-liners, led by Radovan Karadzic. By the end of 1997, Plavsic, confounding initial expectations of a quick defeat, had control of almost all of the western half of the RS, including the Republic's largest town, Banja Luka, leaving the hard-liners, based in Pale, with its eastern half. In this, Western support has been crucial. ⁵⁵³  Western governments, seeing Plavsic as their best hope among the Bosnian Serbs for the implementation of Dayton's civilian provisions, have given her extensive diplomatic support, ⁵⁵⁴  offered economic assistance in return for progress in implementing Dayton, ⁵⁵⁵  and warned her adversaries not to topple her by force. ⁵⁵⁶ 

      SFOR has, in fact, been instrumental in preventing a coup by the hard-liners against Plavsic ⁵⁵⁷  and in helping her to consolidate and extend her control over the western half of the Bosnian Serb Republic. ⁵⁵⁸  It has also played a key role in shutting down hard-line radio and TV broadcasts, a crucial weapon in the propaganda wars, and transferring the relevant communications facilities to Plavsic's control. ⁵⁵⁹  Although all of these initiatives can be justified on the basis of the extensive powers accorded to IFOR and SFOR, examined earlier, international officials have acknowledged, off the record, that their real objective has, in fact, been to enhance Plavsic's power while diminishing that of her rivals. ⁵⁶⁰ 

      It is submitted that SFOR's strong partisanship in the Bosnian Serb power struggle has not involved the abandonment of the impartiality its mission prescribes. First, the differential treatment at issue has occurred, not between the parties, as defined by Dayton, but within the ranks of one of those parties. Second, and most important, SFOR's favouritism among Bosnian Serbs has been motivated by the same fundamental concern which has underpinned all its activities in Bosnia -- namely, to secure the implementation of the Dayton accords. This, at least, has been the official response to accusations of bias. ⁵⁶¹  Yet, it appears clear that this has, in fact, been the real reason for SFOR's partisanship. The latter, as previously described, has been just one component, albeit a key one, of a wide-ranging international effort clearly aimed at obtaining significant improvements in Bosnian Serb compliance with Dayton's civilian provisions by strengthening the faction perceived as more inclined to cooperate in this respect. ⁵⁶² 

Peace-keeping

      The US military's concept of 'peacekeeping' is the same as that developed by the UN, introduced in the first chapter. The use of force is essentially limited to self-defence. ⁵⁷⁶  Peace-keeping operations are deployed and conducted with the consent of the principal parties to the conflict ⁵⁷⁷  and are impartial. ⁵⁷⁸ 

Peace Enforcement

      US military doctrine defines 'peace enforcement' as:

the application of military force, or the threat of its use, normally pursuant to international authorization, to compel compliance with resolutions or sanctions designed to maintain or restore peace and order. ⁵⁷⁹ 

      Peace enforcement forces may be assigned the following missions: the enforcement of sanctions; ⁵⁸⁰  the guarantee and denial of movement; ⁵⁸¹  the establishment and supervision of protected zones; ⁵⁸²  the protection of humanitarian assistance; ⁵⁸³  the restoration and maintenance of order and stability; ⁵⁸⁴  and the forcible separation of belligerents, ⁵⁸⁵  including the related task of establishing buffer or demilitarized zones ⁵⁸⁶  and other action, such as disarmament and demobilization, designed to maintain their disengagement. ⁵⁸⁷ 

      Under US military doctrine, a peace enforcement operation may take the initiative in the use of force. ⁵⁸⁸  In fact, US doctrine allows for the use of 'overwhelming force' where necessary. ⁵⁸⁹  Yet, in general, peace enforcers are to use only such force as is needed to secure compliance with the mandate. ⁵⁹⁰  US doctrine puts special emphasis on the need 'to minimize collateral damage ⁵⁹¹  to the fullest extent possible.' ⁵⁹²  The principle of restraint, applicable under US military doctrine to all 'military operations other than war (MOOTW)', including peace enforcement, is of prime importance. ⁵⁹³ 

      The US military recognizes some role for consent in peace enforcement, while stressing that it cannot be relied upon. ⁵⁹⁴  A peace enforcement force may, in fact, be deployed without the consent of the state on whose territory such deployment occurs. ⁵⁹⁵  Even when the cooperation of the belligerents allows the force to conduct itself in most circumstances 'as if performing [peace-keeping]', it must be prepared to use force to implement its mandate. ⁵⁹⁶  Yet, wherever possible, it is to nurture cooperation in order to ease the transition to a durable peace. ⁵⁹⁷ 

      The US military considers impartiality in peace enforcement to be 'desirable but not necessary'. ⁵⁹⁸  It is desirable since, as with consent, it helps pave the way to a lasting peace. ⁵⁹⁹  Nevertheless, 'it may be extremely difficult to attain and maintain in an actual [peace enforcement operation], no matter how the [peace enforcement] force executes its mission.' ⁶⁰⁰  Impartiality, in US doctrine, does not derive from the effects of a peace enforcement operation's actions. US military doctrine recognizes that '[e]ven the least intrusive [peace operation] is unlikely to affect all parties equally.' ⁶⁰¹  The US concept of impartiality focuses, rather, on the way in which the force implements its mandate.

Impartiality means that the [peace operation] force will treat all sides in a fair and even-handed manner, recognizing neither aggressor nor victim. This implies that the force will carry out its tasks in a way that fosters the goals of the mandate rather than the goals of either of the parties. During [peace enforcement], the force maintains impartiality by its focusing on the behaviour of a recalcitrant party -- employing force because of what is being done, not because of who is doing it. ⁶⁰² 

Distinctions

      The major differences between peace-keeping and peace enforcement are summarized in US Army Field Manual 100-23. ⁶⁰³  Thus, consent is 'clear' or 'high' in peace-keeping, but 'not absolute' or 'low' in peace enforcement. The use of force is limited to self-defence (including the 'defence of the mandate') in peace-keeping, whereas in peace enforcement 'force is used to compel or coerce.' Finally, impartiality is 'more easily maintained' or 'high' in peace-keeping, while harder to maintain or 'low' in peace enforcement.

Transitions

      Although, as the preceding discussion would indicate, peace-keeping and peace enforcement are seen as clearly distinct categories in US military doctrine, ⁶⁰⁴  the latter does envisage the possibility of transition from one to the other. A shift from peace enforcement to peace-keeping may occur as a deliberate response to a high level of cooperation from the warring parties. ⁶⁰⁵  Yet, in such a situation, the force, though temporarily and provisionally operating in peace-keeping mode, remains prepared to use force in order to implement the mandate should this become necessary. ⁶⁰⁶ 

      A shift from peace-keeping to peace enforcement, on the other hand, is a more perilous undertaking, though a serious deterioration in the prevailing situation (the collapse of a cease-fire, the withdrawal of consent, and so forth) may make it necessary. ⁶⁰⁷  Thus, US doctrine emphasizes the need to plan in advance for possible transitions from peace-keeping to peace enforcement and vice versa. ⁶⁰⁸ 

Peace-keeping

      Having dispensed with 'wider peacekeeping', Peace Support Operations' revised concept of 'peacekeeping', as a single category, is virtually identical to that developed in UN practice. Thus, the use of force is, in principle, limited to self-defence ⁶²³  and full consent and impartiality are both considered essential. ⁶²⁴ 

Peace Enforcement

      Peace Support Operations defines 'peace enforcement' as:

Coercive operations carried out to restore or maintain peace in situations of chaos, or between parties who may not all consent to intervention and who may be engaged in combat activities, in order to help create the conditions for diplomatic and humanitarian activities to support political goals. ⁶²⁵ 

      The various tasks or missions envisaged for peace enforcement ⁶²⁶  include: 'peace restoration'; ⁶²⁷  the protection of humanitarian operations; ⁶²⁸  conflict containment; ⁶²⁹  the forcible separation of belligerents; ⁶³⁰  the establishment and supervision of protected or safe areas; ⁶³¹  the guarantee and denial of movement; ⁶³²  and the enforcement of sanctions. ⁶³³ 

      Peace Support Operations stresses the coercive nature of peace enforcement. ⁶³⁴  Thus, a 'force deployed for [peace enforcement] must be prepared to fight and to escalate if need be to achieve the mission.' ⁶³⁵  The use of ''overwhelming' force' is also envisaged where a peace enforcement operation is 'challenged to create an immediate impact and provide credibility.' ⁶³⁶  Nevertheless, as with US doctrine, the use of force in peace enforcement is subject to restraint in the interests of 'the long-term requirements of peace building'. ⁶³⁷  This means specifically that, as a rule, force is to be used only when other methods of persuasion have failed and only 'in response to an offensive action initiated by a belligerent party'; ⁶³⁸  further, when force is used, that 'all positive measures [are] taken to avoid civilian casualties and minimise collateral damage.' ⁶³⁹  In fact, any use of force is to be guided by the principle of '[m]inimum necessary force ... defined as the measured and proportionate application of violence or coercion, sufficient only to achieve a specific objective and confined in effect to the legitimate target intended.' ⁶⁴⁰ 

      Like US doctrine, Peace Support Operations recognizes a role for consent in peace enforcement. While a peace enforcement operation can be conducted in the absence of consent, consent will often be present, though in the context of a 'volatile' environment where it is incomplete and/or unstable. ⁶⁴¹  Though not crucial in the short-term, the promotion of consent by a peace enforcement operation is seen as a key determinant of long-term success. ⁶⁴²  This need to nurture consent explains the importance Peace Support Operations attributes to impartiality in peace enforcement, as well as peace-keeping, and its emphasis on restraint in the use of force. ⁶⁴³ 

In practice, [peace support operations] are likely to represent a continual struggle between the use of force and the need to promote, preserve, and sustain whatever consensual framework might exist. ⁶⁴⁴ 

      Peace Support Operations goes somewhat further than US doctrine in stressing the importance of impartiality to peace enforcement, ⁶⁴⁵  although it acknowledges that perceptions of bias will invariably plague even the most 'scrupulously impartial' of operations. ⁶⁴⁶  As presented in Peace Support Operations, the concept of impartiality appears virtually identical to its US counterpart. Again, the emphasis is on the 'even-handed' implementation of the mandate:

The conduct of a [peace support operations] force should always be impartial and even-handed, and should force have to be used against a particular party, it will only be because of what that party is doing, or not doing, as the case may be, rather than who they are. ⁶⁴⁷ 

Distinctions

      Peace Support Operations' tripartite division of the 'spectrum of conflict' ⁶⁴⁸  into peace-keeping, peace enforcement, and war is neatly illustrated in chapter 3 of the draft manual: ⁶⁴⁹ 

      Several comments on the diagram are in order. First, the consent divide is rather less abrupt than the vertical 'CONSENT' bar would suggest, although the text accompanying the diagram helps convey a more nuanced picture. Thus, as indicated previously, while full consent is a feature of peace-keeping alone, consent also plays a role in peace enforcement, both in shaping the 'volatile' environments to which peace enforcement operations will often be deployed and in defining an objective to be pursued. As the diagram shows, the impartiality divide, by contrast, is abrupt. While both peace-keeping and peace enforcement demand a strictly even-handed application of the relevant mandate, war, involving a 'designated enemy', is entirely partial. A further distinction between war and peace enforcement, not shown in the diagram, but nonetheless contained in the text of the draft manual, is the requirement, in peace enforcement, for greater restraint in the use of force given its long-term goal of a durable peace.

Transitions

      While Peace Support Operations acknowledges the dangers of mixing peace-keeping and peace enforcement within the context of a single mission, ⁶⁵⁰  it appears relatively comfortable with the notion of a deliberate ⁶⁵¹  transition between the two types of operation, especially that from peace enforcement to peace-keeping (and back again). ⁶⁵²  It recognizes that shifting from peace-keeping to peace enforcement is more difficult. ⁶⁵³  A peace-keeping operation rendered incapable of fulfilling its mandate will often have to be withdrawn from the theatre. ⁶⁵⁴  Yet, a transition to peace enforcement, whether as a result of the peace-keeping force's reconfiguration or its complete replacement by another force, is also an option, provided that the new force is able to meet peace enforcement's greater operational demands and that other necessary preparations, relating, in particular, to the mission's civilian and humanitarian components, are made. ⁶⁵⁵ 

'Maintien de la paix'

      The French concept of peace-keeping, like its American and British counterparts, is faithful to the traditional model developed by the UN during the Cold War. Thus, the use of force is limited to self-defence ⁶⁶⁵  and full consent ⁶⁶⁶  and impartiality ⁶⁶⁷  are considered indispensable.

'Restauration de la paix'

      In contrast to peace-keeping operations, deployed following the cessation of hostilities, peace restoration operations are sent to environments characterized by ongoing armed conflict or general instability. ⁶⁶⁸  Peace restoration aims at ending, or at least moderating, these hostilities. ⁶⁶⁹  Conflict moderation involves, in particular, the protection of threatened populations through such missions as the organization of refugee returns, ensuring the free movement of humanitarian convoys, and establishing and maintaining safe areas and no-fly zones. ⁶⁷⁰ 

      While the use of force is authorized for such purposes, ⁶⁷¹  as with US and UK military doctrine, it must be carefully controlled and closely tailored to the specific objectives being pursued. ⁶⁷²  As for consent, the Chief of Staff's guidelines simply state that a military intervention launched for purposes of peace restoration is not subject to the approval of the warring factions:

L'intervention militaire pour favoriser le retour de la paix dans un pays déstabilisé, selon les dispositions d'ordre coercitif du chapitre VII, ne peut être assimilée à une simple opération de maintien de la paix. En effet, notamment lorsqu'il s'agit d'assurer la sécurité des populations, il n'est plus question de s'interposer sur une base consensuelle, ... ⁶⁷³ 

      Subsequent doctrinal work specifies that, while consent is typically present in peace restoration, it is artificial, incomplete, and/or unstable. ⁶⁷⁴  These same sources emphasize the importance of strengthening the consensual basis for peace restoration operations through such means as negotiation and assistance to civilian populations. ⁶⁷⁵ 

      In peace restoration, there is no designated adversary. ⁶⁷⁶  A peace restoration operation is 'impartial' though not 'neutral'. ⁶⁷⁷  As with American and British doctrine concerning 'peace enforcement', impartiality in peace restoration means the even-handed implementation of the mandate. The peace restoration force ensures that all parties comply, to the same extent, with the terms of the mandate, even though in practice this may prove more detrimental to certain parties than to others. ⁶⁷⁸ 

Observatrice du statu quo dans les opérations de maintien de la paix, [la force de paix] est, dans le cadre des opérations de restauration de la paix, l'arbitre des manquements commis par les belligérants à l'encontre du respect du mandat, lequel constitue une règle supérieure de droit qui s'impose à tous et dont la force de paix est chargée de faire respecter les termes. ⁶⁷⁹ 

'Imposition de la paix'

      In contrast to both peace-keeping and peace restoration, there is a 'designated adversary' in 'peace enforcement'. ⁶⁸⁰  Peace enforcement aims, not to destroy that adversary, but rather to force a change of behaviour which disrupts international peace and/or violates international law. ⁶⁸¹  Specific scenarios include: bringing an act of interstate aggression to a halt; ⁶⁸²  forcing an aggressor to participate in a process of peaceful dispute settlement; ⁶⁸³  and preventing a state from committing acts of repression or violence against part of its own population. ⁶⁸⁴ 

      A peace enforcement force makes use of the full range of means normally used in full-scale combat operations. ⁶⁸⁵  Nevertheless, the use of force must be closely tailored to the specific objective being pursued which, again, is not to destroy the target state or faction, but rather to compel it to change its unlawful behaviour. Escalation to extreme force levels, especially those involving the use of weapons of mass destruction, is to be scrupulously avoided. ⁶⁸⁶ 

      There is no consent in peace enforcement. ⁶⁸⁷  The target's opposition to the change in behaviour the international community demands of it is what renders the peace enforcement operation necessary in the first place. Finally, with respect to impartiality, it has already been noted that the existence of a designated adversary is central to the French concept of peace enforcement. In contrast to peace-keeping and peace restoration, peace enforcement is entirely partial. ⁶⁸⁸ 

Distinctions

      The main distinctions between the various kinds of military operations just described may be summarized as follows. ⁶⁸⁹  The distinction between peace enforcement and war in French military doctrine is a relatively fine one. In neither of these is there consent or impartiality. The use of force is more restrained in peace enforcement, as opposed to war, in that any such use must be harnessed quite narrowly to the specific objective being pursued and extreme levels of violence, especially involving the use of weapons of mass destruction, are to be avoided. Yet, the main distinction between peace enforcement and war centres on purpose. In peace enforcement, the aim is to bring to an end conduct which disrupts international peace and/or violates international law, not to achieve military victory as such.

      The principal distinctions between the three categories of peace operation can be analyzed in terms of the three criteria of the use of force, consent, and impartiality. The use of force in peace-keeping is limited to self-defence. While both peace restoration and peace enforcement involve enforcement, this is subject to rules of restraint similar to those seen in respect of US and UK military doctrine. French doctrine considers consent to be full in peace-keeping, artificial, incomplete, and/or unstable in peace restoration, and completely absent in peace enforcement. Both peace-keeping and peace restoration require impartiality, in contrast with peace enforcement which is premised on the designation of an 'adversary', or target state or faction.

Transitions

      French doctrine allows for the possibility of transition from peace-keeping to peace operations of a coercive nature. In fact, it advocates equipping peace-keeping forces, not only for self-defence, but also for combat in case such a transition becomes necessary, though the doctrine also emphasizes that until a decision to change the nature of the operation has been taken, a peace-keeping force, though equipped for combat, remains strictly non-coercive in nature. Like its American and British counterparts, French military doctrine stresses that any transition from peace-keeping to a coercive peace operation must be the product of a deliberate decision in which all the risks inherent in such a shift are carefully weighed. The withdrawal of the peace-keeping force from the theatre of operations is always an option. ⁶⁹⁰ 

      French doctrine also admits the possibility of transition from peace restoration to peace enforcement, notably as a result of a loss of impartiality in the former (designation of an adversary), though this should only follow a careful assessment of the political costs (specifically, the abandonment of certain of the peace restoration force's tasks) and military requirements (necessary force restructuring) involved. ⁶⁹¹ 

Narrowing the Field

      Halderman has argued that a primary, even sufficient, legal basis for the establishment and deployment of UN armed forces, including those of an enforcement nature, is contained in Charter article 1(1):

The Purposes of the United Nations are:

1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, ... ⁷³³ 

      In fact, article 1(1), as formulated, is sufficiently broad in scope to accommodate military enforcement measures, including peace enforcement operations. At the same time, it appears that nothing in the Charter preparatory works would limit the scope of this provision. ⁷³⁴  Yet, article 1(1) is not a sufficient legal basis for the establishment and deployment of UN armed forces.

      The overriding concern of those who drafted chapter 1 of the Charter ('Purposes and Principles'), within which article 1 resides, was to prescribe broad limits to the exercise, especially by the Security Council, of those powers assigned elsewhere in the Charter. ⁷³⁵  That chapter 1 was not intended to serve --in fact, cannot serve --as a source of substantive power emerges clearly from the fact that it makes no mention of any UN organ, referring only to 'the United Nations' and its 'Members'. As Bowett has suggested, if we conclude that article 1(1) confers certain powers on the Security Council, then it must follow that it confers these same powers on the UN's other principal organs, such as ECOSOC --which is clearly untenable in light of the attributions of competence made elsewhere in the Charter. ⁷³⁶  At most, article 1(1) tells us that the UN, as a whole, may 'take effective collective measures' for the stated purposes. The question of what exact powers specific UN organs may possess along such lines is addressed elsewhere in the Charter.

      Having already excluded the General Assembly from our analysis, we necessarily turn to those Charter articles conferring specific powers on the Security Council. We need not consider the possibility that the Council possesses 'inherent', 'implied', 'general' or 'residual' powers. ⁷³⁷  These doctrines only come into play where the Charter does not make specific provision for the activity under consideration, which, as we will see, is not the case with UN-conducted peace enforcement.

      Within chapter VII of the Charter, we can eliminate from consideration articles 48(1) and 49. Article 48(1) basically 'reaffirms', within the framework of chapter VII, the obligation of member states 'to accept and carry out the decisions of the Security Council' under Charter article 25, ⁷³⁸  while specifying, probably unnecessarily, ⁷³⁹  that the Council may require only selected member states, as opposed to the entire membership, to carry out certain decisions. ⁷⁴⁰ 

      As for article 49, whatever one thinks of the clarity of the text, ⁷⁴¹  its core meaning is not much in dispute --member states are to assist each other in implementing 'measures decided upon by the Security Council', whether they are directly mandated with such implementation or not. ⁷⁴²  While the practical significance of article 49 appears rather less certain, especially when considered in relation to article 43, ⁷⁴³  the main points of controversy concern article 49's relationship with articles 25 and 50 of the Charter. ⁷⁴⁴ 

      These debates need not detain us here. Neither article 49 nor article 48(1) provide a legal basis for the establishment, by the Security Council, of a military force, whether mandated for enforcement or not, since, on any interpretation, they govern only the modalities of implementation of Security Council decisions (art. 48(1)) or measures (art. 49) taken on the basis of other chapter VII provisions. ⁷⁴⁵  They do not provide independent, or even supporting, authority for the taking of these decisions or measures. ⁷⁴⁶ 

      This process of elimination leaves us with three articles, all situated within chapter VII, as potential legal bases for UN-conducted peace enforcement.

Article 39

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

      One key aspect of article 39 is procedural in nature; this provision, which opens chapter VII, defines the circumstances in which the other provisions of chapter VII apply. Before taking any action under this chapter, the Security Council must determine that the situation under consideration constitutes a 'threat to the peace, breach of the peace, or act of aggression'. ⁷⁴⁷  Clearly, this requirement must also be met where the Security Council, exercising the substantive powers conferred upon it within the framework of chapter VII, decides to establish a peace enforcement operation. At issue here is whether article 39 furnishes, in whole or in part, a substantive basis for peace enforcement.

      In addition to its procedural significance, article 39 also has substantive importance, deriving, specifically, from the following passage of the article's English text:

The Security Council ... shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. ⁷⁴⁸ 

      With its two commas, this text ties the Security Council's power of decision to articles 41 and 42 alone, leaving it a general power of recommendation under chapter VII which is limited only by the purpose of maintaining or restoring international peace and security. We will reserve for later the question of whether the Security Council's power of decision is really limited, within chapter VII, to articles 41 and 42, specifically when we consider the extent of the Security Council's powers under article 40. For now, we merely need to determine whether the Council's general, chapter VII power of recommendation, suggested by the English text of article 39, could provide a legal basis for peace enforcement.

      It has been argued in the literature that the Security Council can set up a military force on the basis of recommendations made under article 39. ⁷⁴⁹  Yet, we need not consider the merits of this claim as it is not relevant to the scenario presently under scrutiny --that of a UN-conducted peace enforcement operation. While the establishment of a UN-conducted force could be accompanied by a Security Council recommendation to member states to contribute troops and/or equipment to it, the establishment of the force itself would be effected, not through a recommendation, but rather, as it is a UN force, through a decision directing the UN Secretary-General or some other UN body, such as the Military Staff Committee (article 47), to carry out the steps needed to set up and eventually deploy the force. To conclude therefore, article 39 does not provide a legal basis for UN-conducted peace enforcement.

      Before embarking upon a detailed consideration of articles 40 and 42 as possible legal bases of peace enforcement, a brief reiteration of the latter's main features is in order. First, peace enforcement, whether it encompasses a more specifically humanitarian mission or not, always involves, as its basic aim, the restoration and/or preservation of peace. It has three main characteristics: its enforcement nature; its employment in environments of imperfect consent; and impartiality, understood as the even-handed implementation of a mandate which is of general application.

Article 40

In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.

      Turning now to article 40, dealing with provisional measures, we find a remarkable similarity between the basic purpose of these measures, 'to prevent an aggravation of the situation,' and the basic ends of peace enforcement mentioned above, especially where one assumes that 'the persistence of hostilities is always an aggravation in the sense of Art.40'. ⁷⁵⁰  Indeed, as applied by the Security Council, provisional measures, like peace enforcement, have been designed to bring hostilities to a halt and pave the way to a lasting peace.

      Typical examples of provisional measures adopted by the Security Council include ⁷⁵¹  Security Council directives to belligerents to respect agreed cease-fires or otherwise cease hostilities, ⁷⁵²  to withdraw their forces from the zone of conflict, ⁷⁵³  and to negotiate with a view to the peaceful resolution of their differences. ⁷⁵⁴  Provisional measures may also take the form of Security Council directives to other states to refrain from any action which could contribute to the aggravation of the conflict ⁷⁵⁵  and, arguably, the imposition, by the Council, of embargoes on the delivery of weapons and military equipment to the belligerents. ⁷⁵⁶ 

      The second-to-last sentence of article 40 articulates a second, key characteristic of provisional measures and another point of correspondence with peace enforcement:

Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned.

      Implicit in the 'without prejudice' clause is the notion of impartiality. Yet, before concluding that impartiality in article 40 and peace enforcement are one and the same, we need to examine this provision in some detail.

      On one interpretation, the 'without prejudice' clause merely prevents the Security Council from taking measures which would affect the parties legal rights. ⁷⁵⁷  Yet, as written, the clause goes much further than this. It refers, not only to the 'rights ... of the parties concerned', but also their 'claims, or position'. Moreover, the text suggests that it is not simply the purpose of provisional measures which matters, but also their actual effect: 'Such provisional measures shall be without prejudice ...' (emphasis added). As we have seen, peace enforcement, though impartial in its means (even-handed implementation ...) and ends (... of a mandate of general application), is not necessarily impartial in its effects.

      It has been pointed out that the broader interpretation of the 'without prejudice' clause, though faithful to the actual wording of the provision, would deprive article 40 of any practical value. ⁷⁵⁸  Indeed, even the most characteristic type of provisional measure, namely an order for the cessation of hostilities, will, in practice, often prove disadvantageous to one or other of the parties concerned. ⁷⁵⁹ 

      Strictly speaking, by its terms, article 40 demands a tradeoff between the realization of the purpose of provisional measures, 'to prevent an aggravation of the situation,' and the requirement that these measures be 'without prejudice'. Clearly, the restoration and/or preservation of peace will almost always adversely affect the military and/or political 'position' of one or more of the parties concerned. ⁷⁶⁰ 

      In practice, the Security Council has not allowed difficulties of this kind to hinder its action under article 40, rejecting, in effect, strict adherence to the 'without prejudice' clause. As applied by the Security Council, provisional measures are not impartial in their effects. ⁷⁶¹  One could argue, further, that, in contrast to peace enforcement, they are not always impartial in their ends either. A good example of this would be those orders addressed by the Security Council to only one party to withdraw their troops from disputed territory. ⁷⁶²  In any case, it is clear that the requirement of impartiality enunciated in article 40, as interpreted by the Security Council, is not so strict so as to preclude the application of article 40 to peace enforcement.

      As noted previously, former UN Secretary-General Boutros-Ghali, in outlining, in An Agenda for Peace, his proposal for 'peace-enforcement units', indicated that these should be considered provisional measures, established pursuant to article 40 of the Charter. ⁷⁶³  Although this assertion is not explained, it appears to derive from the fact that the only function of the 'peace-enforcement units' specifically mentioned in Agenda, paragraph 44 is the restoration and maintenance of a cease-fire, itself one of the most characteristic forms of provisional measure.

      This notion that mechanisms set up to oversee party compliance with provisional measures are themselves provisional measures, more specifically 'second degree' provisional measures, has been advanced in the legal doctrine. ⁷⁶⁴  Peace-keeping operations arguably fall into this category. ⁷⁶⁵  In any case, article 40 is often cited in the legal doctrine as a possible, even preferred, legal basis for UN peace-keeping. ⁷⁶⁶  As noted earlier, peace-keeping, like peace enforcement, is impartial. Moreover, it seems clear that peace-keeping, in general, has the same conflict-dampening rationale as peace enforcement --preserving, though not itself restoring, peace over the short-, medium- and long-term. ⁷⁶⁷ 

      Nevertheless, as previously noted, the differences between the two types of peace operation are fundamental. The full and continuous consent, necessary to peace-keeping, is typically lacking in peace enforcement, even though some degree of consent to the operation exists. Underlying this difference is another -- probably the key point of distinction between them. Peace enforcement, in contrast to peace-keeping, involves the use of force beyond that for self-defence. It is this characteristic which also tends to distinguish peace enforcement, viewed as a 'second degree' provisional measure, from the 'first degree' provisional measures whose implementation it is mandated to enforce.

      While provisional measures may take the form of binding Security Council decisions, as well as non-binding recommendations, ⁷⁶⁸  this is not enforcement. The failure of certain parties to comply with binding Security Council decisions under article 40 may lead the Council to take enforcement measures for the purpose of securing compliance with the same, as suggested in the last sentence of article 40:

The Security Council shall duly take account of failure to comply with such provisional measures. ⁷⁶⁹ 

      Yet, the Security Council has no basis for taking enforcement action under article 40 itself.

Article 42

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action many include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

      As indicated earlier, legal doctrine, to the extent it has dealt with the question at all, tends to look to article 42 for the legal basis of UN-conducted military enforcement operations. This is entirely logical since, under the Charter, only article 42 confers on the Security Council explicit authority to take military action for the purpose of maintaining or restoring international peace and security. There can be little doubt that the 'action by air, sea, or land forces' that article 42 refers to is coercive military action, i.e. the use of armed force beyond that for self-defence. ⁷⁷⁰  Which is to say that article 42, uniquely, captures two crucial characteristics of peace enforcement operations: their enforcement nature and their employment in environments of imperfect consent.

      Nevertheless, there are two arguments which, if accepted, would rule out article 42 as a possible legal basis of UN-conducted peace enforcement. The first would deny article 42 any applicability as a result of the failure of UN member states to conclude, pursuant to article 43, 'special agreements' for the provision of armed forces and other forms of assistance to the Security Council when it takes action for the maintenance of international peace and security, while the second would limit article 42's applicability to interstate, as opposed to intrastate, conflict.

      In the absence of article 43 agreements, it appears clear that the Security Council cannot oblige UN member states to supply armed forces for military enforcement action under article 42. ⁷⁷¹  Yet, can it be said that such action can only be conducted through the mechanisms sketched out in articles 43 to 47 of the Charter? This was the prevailing view in the UN's early days, held by UN member states ⁷⁷²  and many others, ⁷⁷³  though both former UN Secretary-General Hammarskjöld and the International Court of Justice kept the question of article 42's potential applicability open. ⁷⁷⁴  There are those who continue to believe that, without any article 43 agreements, the Security Council cannot act on the basis of article 42. ⁷⁷⁵  Nevertheless, since the UN's early years, the legal doctrine has swung decisively behind a reading of article 42 which affirms its autonomy from articles 43-47. ⁷⁷⁶ 

      The best support for the theory of article 42/43 linkage is provided by article 106 of the Charter, dealing with 'transitional security arrangements', specifically the first words of the provision:

Pending the coming into force of such special agreements referred to in Article 43 as in the opinion of the Security Council enable it to begin the exercise of its responsibilities under Article 42, ...

      The arguments against linkage are, however, far stronger. As several legal scholars have pointed out, the provisions which are supposed to be linked contain no language which would indicate this. ⁷⁷⁷  In fact, '[t]he wording of Article 42 is broad, leaving open both the method of recruiting the Forces and the precise nature of their command.' ⁷⁷⁸  Thus, the last sentence of article 42, which envisages 'action ... by air, sea, or land forces of Members of the United Nations', would appear to involve forces independent of those to be put at the disposal of the Security Council pursuant to article 43. ⁷⁷⁹ 

      Nor is the theory of linkage supported in the Charter preparatory works. ⁷⁸⁰  It is submitted, rather, that the latter indicate quite clearly that the Security Council's use of its enforcement powers under article 42 did not depend on the conclusion of article 43 agreements per se, but merely on the Council's acquisition of such capacity as would enable it to take enforcement action --whether by the means outlined in article 43 or through some other mechanism. ⁷⁸¹ 

      The assessment as to whether or not the Security Council had such capacity rested with the Council itself. It was to determine when its authority under article 106 terminated and its powers under article 42 became effective. ⁷⁸²  In light of the practice described elsewhere in the dissertation --including, in particular, the UN-conducted military enforcement operations in the Congo (ONUC) and Somalia (UNOSOM II) -- it seems safe to conclude that the Security Council has, at least implicitly, determined that it has the capacity to act under article 42. ⁷⁸³ 

      A second argument which, if accepted, would largely rule out article 42 as the Charter basis for peace enforcement is that enforcement action under the Charter is to be conducted only against states and, as such, can have little or no application to internal conflicts. Probably the most important formulation of this position is to be found in the Certain Expenses case:

it can be said that the operations of ONUC did not include a use of armed force against a State which the Security Council, under Article 39, determined to have committed an act of aggression or to have breached the peace. The armed forces which were utilized in the Congo were not authorized to take military action against any State. The operation did not involve 'preventive or enforcement measures' against any State under Chapter VII and therefore did not constitute 'action' as that term is used in Article 11. ⁷⁸⁴ 

      The phrase 'preventive or enforcement measures', used by the Court, is in fact taken from Charter article 50 which expressly associates such measures with states. ⁷⁸⁵  It is also claimed in the doctrine that the Charter preparatory works justify a narrow reading of enforcement action under chapter VII. ⁷⁸⁶ 

      There is a strange inconsistency in the Court's line of argument in Certain Expenses. In advance of the passage quoted above, the Court determined that the limitation on the powers of the General Assembly contained in the last sentence of Charter article 11(2) applied only where the 'action' in question was 'coercive or enforcement action.' ⁷⁸⁷  Such action, the Court stated:

is solely within the province of the Security Council ... [i.e.] that which is indicated by the title of Chapter VII of the Charter, namely 'Action with respect to threats to the peace, breaches of the peace, and acts of aggression'. ⁷⁸⁸ 

      In determining, 12 pages later in the judgement, that ONUC's military operations did not involve 'action' within the meaning of article 11(2), the Court dropped one of the three grounds just cited for Security Council action under chapter VII, namely 'threats to the peace'. ⁷⁸⁹  The Court, in effect, derived its conception of enforcement action exclusively from the two other grounds enumerated in article 39 --'breaches of the peace' and 'acts of aggression' --both of which contemplate interstate conflict, in contrast to 'threats to the peace' which, as will now be explained, can encompass both intra- and interstate conflict. ⁷⁹⁰ 

      Article 39 in fine indicates that, within the framework of chapter VII, the Security Council acts 'to maintain or restore international peace and security' (emphasis added). ⁷⁹¹  Arguably then, each of the specific grounds for Security Council action under chapter VII, set out in the first part of article 39, should be read in this light; the relevant prerequisites for Council action are, in effect, a threat to international peace, breach of international peace, or act of international aggression. Where a breach of the peace or act of aggression is 'international' in nature, it would have to involve at least one state, usually two. Yet, it seems clear that a threat to international peace may arise from intrastate, as well as interstate, conflict. In fact, nothing in the Charter limits the Security Council's discretion to determine that a situation of a purely internal nature poses a threat to international peace. ⁷⁹² 

      Thus, the International Court's narrow conception of enforcement action appears quite arbitrary, largely the result of it shunting aside the first ground for Security Council action under chapter VII ('threat to the peace'). There is, really, nothing in the text of the Charter which justifies a narrow definition of enforcement action. Article 50, which, as previously mentioned, also seems to have pushed the International Court in this direction, addresses the distinct problem of compensating individual states for economic hardship resulting from the imposition of 'preventive or enforcement measures' -- in particular, economic sanctions -- on another state. ⁷⁹³  Of far greater relevance to the question of enforcement action under the Charter are articles 39, 41 and 42; yet, these nowhere suggest that the Security Council cannot take enforcement action against non-state entities. ⁷⁹⁴ 

      Not only does a narrow interpretation of enforcement action jar with the plain meaning of the relevant Charter provisions, it is also at odds with much of the legal doctrine ⁷⁹⁵  and, crucially, Security Council practice, both during the Cold War and since. ⁷⁹⁶  It appears clear, then, notwithstanding claims to the contrary, that the Security Council can take military enforcement action against non-state entities on the basis of article 42. Which means that article 42 can indeed serve as a legal basis for UN-conducted peace enforcement.

Conclusion

      As we have seen, both article 40 and article 42 capture key features of peace enforcement. Article 40 captures the conflict-dampening ends of peace enforcement, along with the crucial characteristic of impartiality. Article 42 provides the indispensable legal foundation for the enforcement nature of these operations, together with the typically flawed consensual environment they work within. Note that there is no overlap. Each article captures a different set of characteristics. Only when put together do they provide a complete portrait of peace enforcement.

      Thus, the question arises as to whether both articles 40 and 42 can supply peace enforcement's legal basis. The first sentence of article 40 suggests that the two types of measure are not to be combined:

the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. [emphasis added]

      Yet, despite such wording, the Charter preparatory works make it clear that provisional measures and enforcement measures can be applied simultaneously. ⁷⁹⁷  If these measures can be simultaneous, there is no reason why they cannot be combined within the framework of a single initiative, i.e. a peace enforcement operation.

      Note that there is no incompatibility of a legal nature inherent in such a combination. Nothing in article 42 or elsewhere in the Charter precludes the Security Council from taking military enforcement action which is impartial in the sense previously described in relation to peace enforcement. ⁷⁹⁸  At the same time, it is clear, both from the text of article 42 and the preparatory works, that while the Security Council must, at least implicitly, determine that economic sanctions would not be adequate to the task at hand, it need not actually impose such sanctions before taking military enforcement action under article 42. ⁷⁹⁹ 

      Yet, while a UN-conducted peace enforcement operation would derive its legal basis from both articles 40 and 42 of the Charter, the two types of measure remain, even in this context, conceptually distinct. Pursuant to article 40, the Security Council, in effect, orders the parties to the conflict to comply with specified provisional measures. These will often, yet not always, take the form of a comprehensive peace settlement that the parties themselves will have agreed to. In any case, these measures will necessarily share the conflict-dampening rationale implicit in article 40 and intrinsic to all the peace enforcement missions examined earlier in the dissertation. On the basis of article 42, party compliance with these measures is to be secured, if necessary, through the use of armed force beyond that for self-defence; at the outset of its mission, the peace enforcement operation will be authorized to take military enforcement action for this purpose.

      This way of conceptualizing the combination of articles 40 and 42 within the framework of a single, albeit complex, Security Council initiative is entirely consistent with post-Cold War Security Council practice in the enforcement realm generally -- where non-compliance with a Security Council decision leads directly to the imposition of enforcement, including military enforcement, measures, often within the scope of a single Council resolution. ⁸⁰⁰  As noted previously, ⁸⁰¹  in its last sentence, article 40 itself suggests such a two-step approach.