Title: White Paper on South African Participation in International Peace Missions - Part 3
3. THE INTERNATIONAL MANDATE FOR PEACE MISSIONS
3.1. The UN Mandate
The competence of the UN to conduct peace missions flows from its basic purpose to maintain international peace and security, as detailed in the provisions and principles of the Charter. Within the UN, competence to establish peace missions resides with two principal organs: the Security Council and the General Assembly. In practice, the Security Council has the primary responsibility for the conduct of peace missions, while the Secretary-General and the Secretariat provide executive direction and supervision of such operations.
While authority to establish a mission rests solely on the sovereign powers of the overarching organ (the UN), authority to deploy is derived, in part, from the consent of the host country. The principle of consent and request by the host country is essential for the establishment of a peace mission in any sovereign territory, except when the mandate of the Security Council indicates otherwise (according to Chapter VII powers).
A UN peace support force is strictly an impartial international force. In the sense of the UN Charter, such a force, authorised by the competent organ of the UN and operating under its supervision, is a subsidiary organ of the UN - in effect, a UN agency. The fundamental status of a UN force in a host country is derived from Articles 104 and 105 of the UN Charter. These articles confer on the UN the legal capacity, privileges and immunities that are necessary to fulfil its purposes. Similarly, officials of the UN will benefit from privileges and immunities necessary to the exercise of their functions in connection with UN activities.
The above provisions were developed in the 1946 Convention on Privileges and Immunities of the UN and adopted by a large majority of UN member nations. Where a UN force deploys in a host country not party to the Convention, the legal regime of the Convention is nonetheless declared applicable in the Status of Forces Agreement (SOFA) entered into between the UN and the host country.
Where possible, the legality of a peace support mission in any country's territory should be guaranteed by a SOFA signed between the host country and the UN, regulating the following in detail:
- Privileges and immunities of the force, officers, officials and members of the force;
- Matters concerning the application of taxation, customs and fiscal regulations;
- Communications and postal services;
- Freedom of movement;
- Use of roads, waterways, port facilities and airfields;
- Use of water, electricity and other public utilities;
- Availability of local currency for use by the force;
- Provisions, supplies and services;
- Terms and conditions of locally recruited personnel;
- Settlement of disputes or claims;
- Arrangements for liaison between the armed forces and security personnel of the host government and the Force;
- Civil and criminal jurisdiction; and
- Identification and status.
As a rule, the UNSC decides on the establishment of UN peace support operations. When the need for a peace support mission is raised by a member of the Security Council and before it makes a decision on the matter, the UN Secretariat will make an initial assessment of the task, send out a fact-finding team, and ask several nations and regional organisations about possible contributions. A report by the UN Secretary-General will be considered by the Security Council in conjunction with other information made available by its members. Once the Security Council resolution authorising a new peace support mission is agreed on and the mandate is published, every effort is made by the Secretariat to recruit contingents with broad geographical representation. The Security Council resolution provides international legal authority for the mission.
Once the force is established, the overall direction of the operation is in the hands of the Secretary-General, acting on behalf of and being responsible to the Security Council. The Secretary-General delegates the daily operational handling to the Head of Mission (traditionally the military Force Commander, but now almost always a civilian SRSG), but usually retains direct control over policy and major decision-making. This principle, which may limit the Head of Mission's freedom of action, is generally required by the Security Council.
To facilitate early involvement in the planning process, the UN should maintain liaison with national military headquarters as soon as it considers involving a particular country in an operation. Throughout the life of a mission, the political sensitivity and multinational character of peace support operations require very clear command relationships, which are generally as follows:
- For UN peace support operations the Security Council will exercise political control and guidance through the Secretary-General or his designated agent, the Head of Mission;
- The Head of Mission for a particular mission will be selected by the Secretary-General in consultation with the contributing nations, regional organisations involved and the parties in conflict;
- The Force Commander of a peace support operation is usually chosen from one of the nations contributing to the operation;
- The Force Commander exercises operational control over all units contributed to the operation for the duration of their participation;
- A national military contingent consists of a nation's entire contribution to a peace support operation, which may include several separate units without a functional relationship to each other. Each nation designates one officer, not necessarily a unit commander, to serve as its contingent commander to interact on behalf of the nation with the Force Commander. In addition to other duties, contingent commanders will be responsible for the good order and discipline of their personnel, as well as administrative matters;
- Civilian police personnel do not have a national chain of command, but resort as individuals under the direct authority of the UN Police Commissioner and his/her chain of command. The Police Commissioner may liase closely with the Force Commander, but reports directly to the Head of Mission; and
- Other civilians contributing to the peace mission, in the employment of the UN, are likewise responsible to the Head of Mission via the civilian administrative structure. A lead UN agency (such as UNHCR) is normally appointed to co-ordinate the humanitarian assistance and peace building efforts of all UN agencies, as well as NGOs working in the mission area.
3.2. Regional and Sub-Regional Mandates
UN peace missions are widely perceived to be in a state of crisis in terms of finances, doctrine, co-ordination, and quality troop contributions. According to UN Secretary-General Kofi Annan,
"The United Nations does not have, at this point in its history, the institutional capacity to conduct military enforcement measures under Chapter VII of the UN Charter. Under present conditions, ad hoc member states coalitions of the willing offer the most effective deterrent to aggression or to the escalation or spread of an ongoing conflict. ... The Organisation still lacks the capacity to implement rapidly and effectively decisions of the Security Council calling for the dispatch of peacekeeping operations in crisis situations. Troops for peacekeeping missions are in some cases not made available by member states or made available under conditions which constrain effective response. Peacemaking and human rights operations, as well as peacekeeping operations, also lack a secure financial footing, which has a serious impact on the viability of such operations". (UN Report on Reform, released 16 July 1997.)
Chapter VIII of the UN Charter provides for regional bodies such as the OAU, North Atlantic Treaty Organisation (NATO) or ECOWAS to participate in peace missions in their respective regions on the basis of their own initiative. The only proviso is that such missions should fall within the area of regional jurisdiction of the regional body and be consistent with the purposes and principles of the UN. Moreover, any involvement in peace enforcement operations must receive prior authorisation from the UN Security Council.
There is presently a clear trend towards the deployment of an increasing number of non-UN peace missions under Chapter VIII of the Charter. Substantial and forceful missions have been conducted since 1990 by ECOWAS in West Africa, since July 1992 by Russia and the Commonwealth of Independent States (CIS) in Georgia, Azerbaijan and Tajikistan. However, it is since the 40 000-strong NATO Implementation Force (IFOR) took over from the over-extended UN Protection Force (UNPROFOR) in the former Yugoslavia at the end of 1995, that the idea of regional peace operations has steadily gained ground.
The turning point for the OAU, in terms of a role in the maintenance of peace, security and stability in Africa, came in 1993. The Cairo Declaration established the OAU Mechanism on Conflict Prevention, Management and Resolution. In establishing the Mechanism, the African Heads of State and Government emphasised that the United Nations, with its cumulative experience, expertise and greater resources than the OAU, should clearly remain the pre-eminent international authority with the responsibility for dealing with international peace and security - including internal crises which threaten regional stability in Africa.
However, it was also realised that regional and sub-regional organisations on the one hand, and the United Nations system on the other hand, should endeavour to share proportionately the burden relating to the maintenance of world-wide peace, security and stability. Moreover, the OAU realised the need to take the primary ownership of its own problems, especially those relating to issues of peace, security and stability. Paragraph 15 of the Cairo Declaration states that: "In circumstances where conflicts have occurred, it will be the Mechanism's responsibility to undertake peace making and peace building functions in order to facilitate the resolution of these conflicts. In this respect, civilian and military missions of observation and monitoring of limited scope and duration may be mounted and deployed."
Since 1993, conflict resolution has been handled by the OAU mainly through the concept of preventive diplomacy which has taken many forms, including the use of the good offices of the Secretary General, the use of Eminent Persons, the use of Special Envoys, Representatives of the Secretary General, direct contacts between the OAU and the government of the country concerned, as well as missions from the General Secretariat to the country in question.
The OAU has also mandated and funded the deployment of military observers to assist with conflict resolution in countries such Rwanda, Burundi, and the Comoros. While the OAU recognises the fact that the bulk of activities within the realm of conflict management should be in the field of prevention, the Organisation has realised Africa must also be prepared to take some degree of responsibility for broader peace support operations, in collaboration with external friends and operational partners. In addition to the efforts being deployed by the OAU, extra-continental powers have become increasingly involved in attempts to enhance African capabilities for the conduct of peace operations.
Since the OAU only has a permanent secretariat and no permanent ambassadorial presence from different states (unlike the UN Security Council and the General Assembly), the communication of member states' intentions and concerns are mainly channelled through the Secretary General via either the ambassadors in Addis Ababa or personally by the Ministers of Foreign Affairs or the Heads of State. No formal mechanism exists via which speedy approval can be secured for the deployment of a peace mission, except in those cases where the Summit or Foreign Ministers of the OAU Central Organ for Conflict Prevention, Management and Resolution is summoned to lend its approval. Any OAU Member State can request this.
Unlike the UN Charter the OAU Charter does not provide for a mechanism to control or enforce the implementation of the Organisation's decisions. Rather, under the auspices of the Mechanism, the OAU is mandated to co-ordinate closely its activities with African regional and sub-regional organisations and to co-operate, as appropriate, with neighbouring countries with respect to conflicts arising in the different parts of the continent.
The OAU encourages sub-regional organisations to initiate preventive diplomacy efforts. In this instance, the OAU Secretary General is kept abreast of all initiatives and, in turn, maintains contact with the OAU Chairperson as well as the UN Secretary General. He or she has the Summit's mandate to despatch special envoys and observer missions and to initiate related efforts to establish the relevant facts on the ground.
At the sub-regional level, South Africa is a signatory of the Southern African Development Community (SADC) Treaty, which commits its members to recognising the sovereign equality of all member states, the peaceful settlement of disputes, and the observance of human rights, democracy and the rule of law. In Article 21 of the SADC Treaty (which deals with areas of co-operation), member states also explicitly agree to co-operate in the area of "politics, diplomacy, international relations, peace and security". To give effect to these provisions, in May 1996, the SADC Heads of State and Government endorsed the recommendations of the SADC Ministers responsible for Foreign Affairs, Defence and Security, proposing the establishment of a SADC Organ for Politics, Defence and Security.
On 28 June 1996, the Summit of Heads of State and Government reaffirmed that the SADC Organ constituted an appropriate institutional framework by which the SADC countries would co-ordinate their policies and activities in the areas of politics, defence and security. The Summit also decided that the objectives of the Organ would include: regional security and defence co-operation through conflict prevention, management and resolution; the promotion of peace-making and peacekeeping in order to achieve sustainable peace and security; co-ordination of the participation of member states in international and regional peacekeeping operations; and the addressing of extra-regional conflicts which impact on peace and security in Southern Africa.
The institutional framework for achieving these objectives is presently much less developed than that of the OAU, but it includes the Inter-State Defence and Security Committee (ISDSC). The ISDSC has already made significant progress in the realm of co-operation in capacity-building for participation in peace support operations, but modalities for conflict resolution and mandating actual peace missions under the auspices of the SADC remain unclear, pending further institutional development of the SADC Organ.