Closing gaps between promises and outcomes: the argument for and formation of a unified use of force rule for UN missions engaged in armed conflict

Abstract

Disagreement and conflict is inbuilt in human civilization. Perhaps, the extensive provision made in the Charter of the United Nations for the resolution of disputes of varying gravity reflects an acceptance of this fact. This thesis analyses how the use of force by UN troops, an instrument that has become indispensable to the maintenance of international peace, can be regulated to better accommodate the objectives that they pursue. The discussion herein is limited to uses of force taking place during situations that satisfy the armed conflict threshold and pursues a step by step approach that first contextualises UN deployment, then develops a ‘chain motif’ comprised of the legality and morality of resort to and use of force by the UN before finding the answer to its central research question; clarifying why and how UN uses of force should be regulated. Chapter 2 sets the setting by discussing the UN troop generation process, its intricacies and the classification of UN missions, and then addresses the pivotal question of conduct attribution. It formulates a framework of attribution that reflects the conceptual bases of legal Responsibility, notes the possibility of dual attribution and limits the ensuing discussion to the regulation of only those courses of conduct that can be completely attributed to the UN. The thesis then moves to the moral sphere in Chapter 3 and discusses the morality of both the resort to and use of force. Through an assessment of UN policy documentation, the chapter identifies crucial distinctions that lie in the objectives in pursuance of which, the UN and States resort to force. It argues that these legal distinctions permeate into the moral sphere and influence how the just war calculation gets operationalised in the case of resort to force by the UN. It then identifies and analyses a number of crucial links that exist between the ad bellum and in bello levels, both in the case of war and of UN uses of force, and concludes that these linkages shape the respective in bello moralities of each activity in distinct ways. The chapter explores these differences through a ‘Pressure Point’ system that is capable of highlighting the specific considerations within the in bello moral calculus on which each activity places its reliance. The connections so established between the legality and morality of resort to force, and the morality of use of force, create a collective accent. This collective accent dictates that it be accommodated by and reflected in the legal regime by reference to which use of force is regulated. Chapters 4 and 5 address how this could be achieved by identifying the regulatory candidates, the content of the relevant rules and the nature of the conflicts created by the parallel application of the said rules. Chapter 6 analyses how these conflicts could be resolved in a way that accommodates the purposes for which UN troops are authorised to use force. This is achieved through what is referred to as the ‘common contact point’ formulation of lex specialis, which allows the objectives of deployment to be infused into the factual matrix to which the candidate rules are applied. The Chapter then examines, with reference to practical examples, how this approach reduces gaps between the promises made and outcomes achieved by the UN in using force. It is in consequence of this analysis that this thesis develops a ‘uniform use of force rule’ for the UN that explains and clarifies to UN troops, how force should be used in light of why they use it. The sequential approach that is utilised in this endeavour allows the legal and ethical considerations on which the promises end of the spectrum – the resort to force by the UN – are based, to be reflected in its outcomes end – the use of force by the UN. The discussion essentially carries out the ‘behind the scenes’ meta level thinking that precedes UN uses of force on behalf of ground troops, ultimately providing them with a rule set that can be applied with little or no hesitation or doubt.