Offensive Use of Force in Peace Operations: The Force Intervention Brigade

Introduction

The effectiveness of military intervention with humanitarian intentions has been discussed since the late Middle Ages and yet the debate has remained unchanged under the collective security system of United Nations (UN). ¹ The difficulty of reconciliation between the State sovereignty and the moral obligation to intervene to save the lives of strangers still consists one of the major issues in International Relations. ² In the 19th century, the principle of non-intervention was supported by John Stuart Mill³, and later by the third world states that achieved their independence as a result of the decolonisation process in the aftermath of the World War II. ⁴ The Charter of the United Nations and especially the article 2(7) has been regarded as the guaranty to protect the sovereignty of the States. For this reason, there were 18 military interventions in the Cold War with only one example of the use of force. ⁵

In the post Cold-War area, the number of intra-state conflicts increased exceptionally. ⁶ In this new environment, UN had to intervene in many civil wars without having either enough experience or the necessary means to manage these kinds of conflicts that necessitate the use of coercive methods. The targets and the victims of these new conflicts were the civilians, especially women and children. ⁷ Under the influence of the CNN effect that made visualising human suffering possible on the televisions of ordinary people, the expectation of “doing something, anything” became a pressing factor facing the western governments. ⁸ The growing sensibility of the international community with regard to human suffering is at the source of UN’s forced interventions without analysing the conditions on the field or making the necessary preparations. ⁹ Subsequently, the traditional peacekeeping operations are mostly replaced by more robust and coercive peace enforcement operations. From this point forward, the distinction between peacekeeping and peace enforcement became obscure. ¹⁰ As a consequent, there had been some success in humanitarian intervention in 90’s, but also some major failures took place that jeopardized the legitimacy of the organization as the universal actor maintaining the international peace and security. ¹¹

The creation of the intervention brigade by the Security Council in March 2013, with the adoption of the Resolution 2098, consists of a milestone for the peace operations. The latter remain ineffective in most of the civil war situations in spite of the use of “all necessary means”, including the use of force for the protection of the civilians and the restoration of the stability in the host countries. Even though the peace operations acquired progressively a coercive nature, the adherence to the basic principles of peacekeeping obliges the peacekeepers to take actions within a more restrictive interpretation of the international humanitarian law. However, in a civil war situation, the success depends on the quick reaction initiatives and on the capability to perform actively. The intervention brigade is free from the barriers of peacekeeping, but this flexibility regarding the use of force can be challenging once the combat unit is operating offensively. It can jeopardize the success of the mission as well as the legitimacy of the UN by transforming it into an aggressive actor charged paradoxically to maintain international peace and security.

The Congolese Conflict and the Implementation of Intervention Brigade

The conflict in Congo has a long story and the UN confronted it with more than a few times. The organization’s first intervention was in Congo in 1960, where UNOC remained as the only example of the use of force during the Cold War. UNOC was mandated within the Chapter VI dealing with the “Pacific Settlement of Disputes”. In other words, this type of intervention does not consider the use of force. Two days after the adoption of Resolution 143 in July 1960, the first group of peacekeepers arrived in Congolese territory with a mandate to assist the Government in maintaining law and order and providing technical assistance. ¹² However, the peacekeepers noticed soon that the mandate of the mission was infeasible because of the ongoing civil war. The Secretary General of the UN, Dag Hammarskjöld, took the initiative for the use of force to restore peace in the country torn by the civil war. When the intervention ended 4 years later, the territorial integrity of Congo had been maintained, but the UN entered a deep crisis in both political and financial levels. Therefore, the UNOC remained as the only example of a coercive use of force during the Cold War.

The fragile stability of DRC was broken by the mid 90’s, and the country has become victim of poverty, militia violence, and foreign interference. ¹³ The danger that presents the collapsed security system forced UN Security Council to adopt the Resolution 1279 in 1999, which established MONUC (The UN Organization Mission in the Democratic Republic of the Congo). The first mandate of the mission aimed at monitoring and observing the peace process of the Second Congo War settled with Lusaka Ceasefire Agreement in July 1999. With the adoption of Resolution 1925 in May 2010, the MONUC was transformed to MONUSCO (United Nations Organization Stabilization Mission in the Democratic Republic of the Congo). The current form of MONUSCO has had a larger mandate including the implementation of a ceasefire agreement to protect the civilians. MONUSCO was authorized to “use all necessary means to carry out its mandate relating, among other things, to the protection of civilians, humanitarian personnel, and human rights defenders under imminent threat of physical violence and to support the Government of the DRC in its stabilization and peace consolidation efforts”. ¹⁴

Nevertheless, the situation kept decreasing and the violence kept spreading, so the Secretary General had to publish ten reports until the end of February 2013, on the emergency needs and the threat of destabilization in Congo. ¹⁵ A call for an evolution and an adaptation of the UN peacekeeping to the changing times through its transformation in a more robust nature was made by these reports of the Secretary General. ¹⁶ It was also recommended to involve “a military enforcement capability designed to neutralize the threat posed by the most recalcitrant elements of the armed groups” until the Government of the Congo could reinforce a Congolese defence force. ¹⁷

In early 2013, the deteriorating security and humanitarian situation in the Democratic Republic of the Congo (DRC) required putting an end to the recurring cycles of violence. To begin with, “The Peace, Security, and Cooperation Framework Agreement for the Democratic Republic of the Congo and the Region” was signed in February 2013 to build “an avenue of hope for the people of the region to build stability by addressing the root causes of the conflict and fostering trust between neighbours”. ¹⁸

The United Nations Security Council unanimously adopted Resolution 2098 in March 2013 creating the Intervention Brigade within MONUSCO. This brigade has the first-ever offensive mandate in UN history to use all necessary means to neutralize and disarm armed groups in Congo, a task that the UN peacekeeping mission nor the Congolese government had been able to achieve. There is no doubt that the brigade has had a decisive impact on the principles of the use of force. For some, the implementation of the brigade as the offensive unit of MONUSCO can be acknowledged within the limits of a robust peace enforcement operation while for others this combat force extremely extends the barriers of any peace operation. As one might expect, the question is to know whether the brigade is sui generis or whether it is promising a new model for the future peacekeeping operations. ¹⁹

Although the Security Council created the brigade “on an exceptional basis and without creating a precedent or any prejudice to the agreed principles of peacekeeping”, it is widely recognized that the existing forms of peacekeeping are often unable to realise the mandate of the missions when there is an ongoing civil conflict. ²⁰ The Congolese conflict serves as a particular example of illustrating the complex nature of the intervention. There are many parties in the conflict, like M23 (the March 23 Movement) also known as the Congolese Revolutionary Army, the Democratic Forces for the Liberation of Rwanda (FDLR), and the Lord’s Resistance Army (LRA). All of these armed groups, and particularly M23 exerting a regional patronage, operate in multiple countries in the region and so they consist a threat to the stability of these States. ²¹ That is the reason for signing a “Framework for Peace, Security and Cooperation for the Democratic Republic of the Congo and the Region”, by eleven countries in February 2013. ²² This document, signed within the frame of International Conference on the Great Lakes Region, emerges as the starting point of the idea, establishing an intervention brigade to cease the cycle of violence in the first place in Congo and then in the region. ²³

For many, while the intervention brigade occurs as a solution to the problem of efficiency, for others this offensive combat unit is contradictory to the very essence of peacekeeping and jeopardizes the legitimacy of the UN. For those who have doubts regarding the brigade, the threat is that this offensive initiative could become a model for future interventions. The brigade has changed considerably the nature of peace operations. However, the consultation process before its implementation had concerned only the African states and the African organizations such as the African Union and the Regional Economic Communities. The lack of attempting for a consensus among the UN member states before undertaking the implementation of such a coercive force is criticised by a considerable number of states. In other words, an ad hoc exercise would become a norm concerning the peace operations as a whole. For those who believe that the existing mandates of UN peace operations are robust as well as necessary whenever the use of force is required, there is no reason to create an intervention brigade, transforming the UN’s discourse and appearance to aggressive ones. Moreover, a threatening language in Security Council resolutions might have a negative impact on the willingness of the troop contributing countries taking part in peace operations.

Although the logic behind the proposed deployment is largely recognised, the brigade brought many polemics about the effectiveness and lawfulness of such a decision. However, independently from all these controversial debates, the UN Security Council has renewed the mandate of the brigade every six months since 2013 and the next most likely prolongation will take place in April 2016. ²⁴

Creating an offensive brigade resulted in controversies in legal, political and military levels of peacekeeping operations. There is not any evidence showing that the UN conducted a profound research regarding especially legal aspects of such a decision. The use of the expression “all necessary means” in the body of resolutions has already been causing several problems when the use of force was admitted as necessary to attempt the mission’s mandate. Involving “neutralizing and disarming” Congolese rebels and foreign armed groups, as an additional part of the mandate turned the peacekeeping mission into an offensive military operation with considerable levels of use of force.

Intervention Brigade vs. Basic Principles of Peacekeeping

There are three basic principles -consent, impartiality, and non-use of force except in self-defence and defence of the mandate- that serve as a guide for UN peacekeeping operations to maintain international peace and security. ²⁵ These principals are the cornerstones for the legitimacy and the credibility of the UN peace operations. In spite of the violations of each of the three basic principles in several peace enforcement operations in post Cold War period, the latter are still considered within the limits of peacekeeping ideals. However, as an overtly offensive force, the intervention brigade goes beyond the basic principles with its aggressive character regarding the use of force to eliminate or neutralize armed groups.

As recommended by the Brahimi Report, the peace enforcement missions have had robust mandates in the past without seeking the consent of the host state when there was a humanitarian emergency. In this new posture of the mission, to neutralize armed groups inevitably requires the use of force and even the use of deadly force. Furthermore, the detention or internment of people oversteps the traditional frame of peacekeeping operation transforming the UN into a party of the conflict, whereby it loses its impartiality in the eyes of the local population. ²⁶ In that case, the question is to know whether the UN can be responsible for the damages caused by peacekeepers. The new posture is also against the other basic principle allowing the use of force only in self-defence. The compensation for deaths and the penal responsibility for peacekeepers remain an unsolved problem.

The Legal and Operational Issues

The concept of peacekeeping is not explicitly mentioned in the UN Charter. It has evolved over time to be a remedy to the changing nature of the conflicts and thus, to meet the Organization's changing role in the maintenance of international peace and security.

Whatever the type of the peace mission (peacekeeping or peace enforcement), the legal basis for every operation must rely on international humanitarian law. Despite the lack of a clear code of obligations about the peace operations in general, the peacekeepers should affiliate their actions with the international human rights law. Their status as “non-parties” to conflicts provides them a protection under the international humanitarian law. In the case of the intervention brigade, it can be presumed that this combat force has engaged in an armed conflict with the non-state armed groups in the DRC. ²⁷ The brigade has been implemented with the consent of the Congolese government and has been acting in concert with the Congolese armed forces. ²⁸ While performing, the brigade has to distinguish between civilians and combatants, protect the civilian populations from attack, employ the proportional use of force, avoid unnecessary suffering and treat the prisoners with dignity according to international conventions. ²⁹

Since the formal adoption of Responsibility to Protect at the United Nations World Summit in September 2005, the use of force to protect civilians has been justified. The mandate of MONUSCO is supposed to protect civilians with the use of force whenever it is required. It is already difficult to understand the thought of using force to protect civilians in a peacekeeping operation; it is much more difficult to justify this employment when an offensive unit operates in a more traditional war-fighting.

As recommended by the report of the Secretary General in February 2013, the intervention brigade would be charged with “preventing the expansion of, neutralizing and disarming armed groups”. ³⁰ To execute the assigned task, the brigade “would carry out targeted offensive operations, either on its own or jointly with FARDC (Armed Forces of the DRC). ³¹ On the operational level, the command and control of the brigade is attached directly to the MONUSCO’s central command, and the Force Commander of MONUSCO is as well in charge of the brigade. The decision to bind the brigade and the peacekeeping mission reflects the emphasis to avoid competing structures within the multinational force and to guarantee the unity of the chain of command. However, the brigade retains a small measure of autonomy when executing its mandate as it performs offensive operations in the eastern part of the Congo. ³²

Introducing the intervention brigade as a combating unit within MONUSCO, while this latter will continue to function as a traditional peacekeeping mission, has caused a ambiguous situation on the field when it comes to differentiating the offensive and the defensive components of the mission. This double appearance of the UN through the mixing of offensive operations and traditional peacekeeping functions could jeopardize the safety of the civilian staff of MONUSCO. An attack against the non-military units of the mission will necessitate questioning the UN’s responsibility to protect the safety of its personnel.

The brigade would be composed of three infantry battalions, one artillery and one special forces and reconnaissance company headquartered in Goma under the direct command of the MONUSCO Force Commander. ³³ This command attachment makes combining the offensive goals of the mission with the non-coercive ones difficult. It has also suggested that the brigade could operate as a self-standing unit with specific duties distinguishable from those of MONUSCO’s other components. ³⁴

In legal terms, the UN can be held responsible for the peacekeeping missions and the peacekeepers’ actions. To guarantee the compliance with international law, UN signs a SOFA (The Status of forces agreement) establishing the rights and privileges of foreign personnel present in the host country. As the legal basis of the brigade stays controversial, the defensive units of MONUSCO might also lose the protection provided by the international humanitarian law. The SOFA that relies on the Convention on the Safety of United Nations and Associated Personnel might not be sufficient to keep the members of the units safe from a possible trial at the ICC (International Criminal Court).

There are three particular challenges in the brigade’s mandate: the use of “all necessary measures” for executing “targeted offensive operations” to “prevent the expansion of all armed groups, neutralize these groups, and to disarm them”. The use of the expression “all necessary means” is a political choice not to restrain the autonomy of the states when a change of the mandate is necessary. It is largely understood that whenever the expression “all necessary means” is used, the possible use of force is considered although the resolution does not explicitly mention this probability. “Neutralize” could entail a large list of actions such as pursuit, capture, internment and even using deadly force. In addition to stabilizing the country and, therefore, reducing the risk of war in the region, the brigade has to report the human rights abuses committed by rebel armed forces.

The Brigade in Action

The brigade achieved neutralizing M23 in November 2013, only a few months after its activation in Spring 2013. M23 was a rebel military group based in eastern areas of the Democratic Republic of the Congo. In November 2012, the large-scale attacks of this armed group in Goma, a city where almost one million people were seeking refuge, were at the origin of the decision to transform MONUSCO’s mandate in a more robust nature by creating the brigade. ³⁵ This defeat restarted Kampala Talks in Uganda between the government of the Democratic Republic of Congo and the rebel M23, for a fresh round of peace. ³⁶ Even then, neither the success of the brigade in defeating the M23, nor the signing of a declaration in Nairobi in December 2013 have not succeeded to remove the doubt concerning the brigade’s actions.

The next target was FDLR (The Democratic Forces for the Liberation of Rwanda), which is a Rwandan Hutu rebel group in the eastern part of Congo. ADF (Allied Democratic Forces) is a rebel group opposed to the Ugandan government, and LRA (the Lord’s Resistance Army) is a rebel group and heterodox Christian cult operating in several African countries including Congo. These armed groups with different ethnic origins confirm the difficulty of the brigade’s mandate. However, there are still many other armed groups threatening the relative order restored by the brigade in the country.

The so far successful presence of the brigade contributes to the stability in the region. At present, the brigade comprises approximately 3000 soldiers from Tanzania, South Africa, and Malawi within the present MONUSCO troop ceiling 19815. ³⁷ The troop contributing countries of the region are determined to execute the offensive mandate of the mission and to use force without hesitation whenever it is required. While the contribution of the neighbour states (Tanzania) or the regional power (South Africa) remains challenging in a peacekeeping operation in terms of the national interest, sending troops for the brigade might threaten the delicate balance among the actors of the region. ³⁸ On the other hand, the “Africanized” peacekeeping missions also provide an acquaintance of local languages and cultures, geographical challenges and intelligence gathering. ³⁹

Conclusion

The UN’s initiative to implement the intervention brigade has changed the face and the nature of peace operations. Even if it is stated that the creation of the brigade is “on an exceptional basis and without creating a precedent or any prejudice to the agreed principles of peacekeeping”, it still can be considered as a turning point in the history of UN’s military interventions. The intervention brigade might correspond to an evolution in terms of the UN’s conflict management methods, and implicate a re-evaluation process for the basic principles of peacekeeping.

Currently, the mandate of the brigade has been renewed for several times and the combat force managed to defeat the M23 rebel force. The use of offensive methods to protect civilians and to help the Government of the DRC in its stabilization efforts might lead into a new era of peacekeeping. However, the challenges remain the same. It was obvious that MONUSCO was unable to manage the ongoing conflict, and that in spite of the authorisation to use “all necessary means” to restore order in the DRC. An offensive force with a dissuasive and credible nature was necessary to keep the region stable. The proposal for the creation of an intervention brigade was born under such circumstances. Once the clear need to implement a more robust force to mitigate the situation in a country torn by the civil war has been admitted, UN cross over the limits of peacekeeping. Whenever it is necessary for peacekeepers to perform offensively, they undermine the legitimacy of the organization even though it is for the protection of the civilians. The implementation of the intervention brigade is more likely to entangle the fragile equation of peacekeeping by making the justification of the offensive use of force difficult.

Acknowledgments

The author gratefully acknowledges support of Galatasaray University through research funding under grant no: 16. 101. 001

References