Norms of Public International Law by a State

The loot of technology, the greed for power, and the lack of democracy has been the main causes of hostilities in the contemporary world. United Nations has been engaged in various types of peacekeeping activities for maintenance of international peace and security which are called as ‘peacekeeping operations’. There is a separate force for this purpose wherein every country contributes to it as an international obligation or by reason of being a party to the UN charter. Therefore after Indian independence, India decided to contribute the most to the peacekeepers. After the partial success of League of Nations, its object of establishment of peace and resolution of international disputes by peaceful methods was replaced by the United Nations. Later on after the Cold War, international peacekeeping climbed to the top of the agenda of the UN. The pertinent question that arises is whether these forces have been successful in preventing conflicts and maintaining peace?

For the number of years, the spectrum of peace operations has full-fledged increasingly broad and has come to embrace various dimensions such as conflict prevention, peacekeeping, peace-making, peace-enforcement and peace-building. In fact, the obligations and tasks allocated to peacekeeping operations have transcended the traditional monitoring of ceasefires and observation of fragile peace settlements. Contemporary peace operations are more ambitious than their predecessors in that they are supposed to achieve more than simply preventing the resumption or spread of an armed conflict.

The peacekeeping operations were operated through the UN Office of Special Political Affairs until late 1980s and the official DPO was formally created in 1992 as the Department of Peacekeeping Operations when Boutros Boutros-Ghali took office as Secretary-General of the United Nations. This department is devoted in helping the member states and the Secretary-General in their efforts to maintain international peace and security. The DPO provides political and executive directions to the UN peacekeeping operations carried on at the global level and upholds contact with the Security Council, the troops and financial contributors, and the parties to the conflict in the implementation of Security Council mandates.

The first UN peacekeeping operation was set up in 1948, when the Security Council authorized the employment of UN military forces in the Middle East to scrutinize the Armistice Agreement between Israel and Arab nations. As of January 2016, there were 16 peacekeeping operations consisting of military, police and civilian personnel who work to deliver security, political and early peace building support. Their persistent and dedicated work resulted in the award of the Nobel Peace Prize in 1988.

Even though, the UN charter does not mention about the creation of a peacekeeping force, it has turned out to be the foremost instrument to deter violence and conflict since World War II. The Peacekeepers wear their motherland’s uniform and are branded as UN Peacekeepers only by a UN blue helmet and a badge. In the last 7 decades, over one million men and women have served under the UN flag in more than 70 UN peacekeeping operations. Today, more than 100,000 military, police and civilian personnel from 125 countries continue to serve in 14 peacekeeping operations across four continents.

According to Article 17 of the Charter of the United Nations, every member state is legally obligated to pay their respective share towards peacekeeping. The developing and less developed nations appear to contribute the most human resource and the developed nations provide largest financial assistance. Therefore, under developed and developing countries like Ethiopia (6,479), Rwanda (6,126), Bangladesh (6,224), India (6,242), Nepal (5,376), Pakistan (5,025) contribute the more soldiers than other countries whereas Iran and Myanmar contributes the least soldiers ie. only 1 and 2 respectively. The developed countries like America and China which have the capability of funding these operations contribute the most which is clear from the assessment report by the General Assembly. According to the report, the effective rate of contribution by America is 28.4344 (28.47%) and China is 10.2377 (10.25%).

A Brazilian peacekeeper, Lieutenant Commander Marcia Andrade Braga serving in the Central African Republic has been presented with the United Nations Military Gender Advocate of the Year Award from UN Secretary-General Antonio Guterres on 29th March 2019 for her commendable contribution in the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA).

In many cases, women are better-placed to carry out peacekeeping tasks, including interviewing victims of sexual and gender-based violence, working in women’s prisons, assisting female ex-combatants during the process of demobilization and reintegration into civilian life, and mentoring female cadets at police academies. Security Council resolution 2450 (OP11) reaffirms its support for the development of an integrated performance policy framework that identifies clear standards of performance for evaluating all United Nations civilian and uniformed personnel working in and supporting peacekeeping operations, and calls on the United Nations to apply this framework to United Nations Disengagement Observer Forces, and requests the Secretary-General seek to increase the number of women in UNDOF, as well as to ensure the meaningful participation of women in all aspects of operations. Recently, UN Security Council has adopted the UNDOF resolution renewing its mandate for six months which is until 30th June 2019.

Law is the tool to promote peace. The UN Charter is a hymn to peace. Peace can be considered both – a value and a right in the conscience of humanity. Article 51(a) of the Indian Constitution provides that the State shall endeavor to promote international peace and security and clause (d) encourages settlement of international disputes by arbitration which clearly suggests that India as a nation acts in consonance of peace because the rule of law is also an important pillar of any modern peace operations. The international humanitarian law and human rights are required to be respected not only by the local populations and authorities, but also by the international community and its representatives, both in their professional and private conduct.

Various international treaties, covenants and agreements for the protection of human rights, protection of refugees, protection against terrorism, organized crimes and corruption and also relating to disarmament exist. Some of them are International Covenant on Economic, Social and Cultural Rights 1966, International Covenant on Civil and Political Rights 1966, Convention Relating to the Status of Refugees 1951, International Convention for the Suppression of Acts of Nuclear Terrorism 2005, United Nations Convention against Corruption 2003, Cartagena Protocol on Biosafety to the Convention on Biological Diversity 2000, Comprehensive Nuclear-Test-Ban Treaty 1996, WHO Framework Convention on Tobacco Control 2003.When an international dispute arises as a consequence of the infringement of norms of public international law by a state, that cannot be resolved by peaceful means, the aggrieved party has the opportunity to use a series of limited measures and countermeasures against all those who have committed such acts, though they usually avoid as far as possible the armed forces.

In Kulbhushan Jadhav case , where the dispute relates to interpretation and application on consular relations. In this case, there was a breach of Article 36 of the Vienna Convention and the Court recently on 17th July 2019 decided the matter and ordered Pakistan to provide consular assistance to Jadhav and also review the execution of death sentence awarded.

In peace operations, Status of Forces Agreements (SOFA Agreement) exempts peacekeepers from prosecution under local jurisdiction. This however does not imply that misconduct by peacekeepers is exempt from punishment or sanction. The contrary is true and any misconduct by a peacekeeper is intolerable as it undermines the purpose and credibility of the international presence. Efforts undertaken by the United Nations Department of Peacekeeping Operations to counter sexual abuse of women and children by UN personnel are needed and should be supported by every troop-contributing country.

NEUTRALIZED STATE

All nations need to declare themselves as ‘neutralized states’. The rationale behind neutrality is that it will help to localize the area of war and discourage it. In consequence of neutrality, the states would be kept away from war which will also regularize international relations. However, the facts establish that Norway, Denmark, Ireland and Belgium were neutral states during the Second World War which is a complete irony. The provisions of UN charter contradict the concept of ‘neutral state’ including Article 2(5) which states that all members shall provide every assistance to UN in any action it takes in accordance with the Charter.

Thus, though the provisions like Article 49 (mutual assistance in carrying out the measures decided upon by the Security Council) and 51(right of individual or collective self-defense in case of an armed attack) of the Charter put an end to this concept, there is still a ray of hope in the guise of Article 48 (the action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine) and 50 (if preventive or enforcement measures against any state gives rise to special economic problems to any other, whether member or not, then it has right to consult the Security Council for its solution). It is indeed difficult for the member states of the UN to remain neutral because when the states resort to war there can be two conditions ie. he can either be aggressor or a defender and if he is an aggressor then preventive action can be taken against him under the Charter and if he is a defender then he should be assisted by the UN, but what can be done is that every country shall refrain from initiating war. Post independence history of India shows that India is a country which has till date never initiated war against any nation though India has not declared itself to be a neutral state.

There are millions of individuals who have only known war, a situation into which they were born. Protracted regional armed conflicts opposing specific groups and leading to the deprivation of freedoms and development dehumanize human relations, multiplying hostile factors and desperate reactions. Criminal organizations benefit from such situations. Terrorism, forced immigration, human trafficking, illegal exploitation of natural resources, and drug trafficking are all realities which seem to thrive in armed conflicts and violent situations. The rule of law gets shattered, the natural cycle of birth and death also gets disturbed and people start migrating in search of a better place to live peacefully. It is one of the creations of UN and has proved to be a valuable instrument in controlling conflicts and maintaining peace and security. Therefore, any operation which is taken to insulate the areas of conflict and to neutralize them by providing presence in various forms to avoid dangerous situations may be termed as the peace keeping operations.

Transfer agreements are an increasingly common feature of multinational peace operations. Under these agreements, the receiving State generally gives assurances that the transferred person will be treated in accordance with international law. If, from a legal point of view, such agreements are not prohibited under international law, they do not, per se, relieve the transferring State of its obligations under the non- refoulement principle. Moreover, from a protection point of view, the ICRC is concerned about their actual effectiveness as well as about their ability to remove the risk of torture and other forms of ill-treatment. Today, political and military actors sometimes consider armed intervention, in particular within the framework of a peace operation, as an opportunity to test new integrated approaches to conflict management.

These forces are sent on a detailed agreement between the parties in conflict and therefore it is consensual. U. Thant, the former Secretary General of UN once remarked that the consent of the host country is the basic principle which applied to all peacekeeping operations.

Nonintervention is a cardinal principle of international law that is based upon the principles of sovereignty, equality, and political independence of States as for instance, Military and Paramilitary Activities . This imposes an obligation upon the States to refrain from intervening in the internal affairs of the states. Therefore, initially it was decided that these forces will be only sent for the dispute between the two nations, this later turned in 1992, when the internal dispute of nations endangered the world peace.(COUNTRY’S NAME) Given the various conditions that have traditionally internationalized the internal conflicts and also the recent Security Council resolutions on internal conflicts in Somalia (Security Council Resolution 794), Haiti (Security Council Resolution 841), and Iraq (Security Council Resolution 688), civil strife of any significance may no longer be ‘essentially within the domestic jurisdiction of Member States.’Chapter VI of UN Charter dealing with pacific settlement of disputes provides under article 36 that “the Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.” Therefore, Security Council has jurisdiction when there is potential or actual threat to the peace.

International Humanitarian Law is a branch of international law which provides protection to human beings from the consequences of armed conflicts. It applies to all armed conflicts, ie. international armed conflicts as well as non- international armed conflicts international conflicts may mean an armed clash between two or more states or where people fight against colonial domination and alien occupation and racist regimes in the exercise of their right of self-determination. It is applied with equal force to both sides in the conflict irrespective of the fact that who is the aggressor. Prima facie, this seems completely illogical to place the aggressor and the victims of that aggression on an equal footing because this clearly contravenes the general principles of law ex injuria non oritur ius ie. no one should obtain a legal benefit from his own illegal action.

While civil war, civil strife and threshold internal conflicts are included in non-international armed conflicts. Humanitarian law protects the rights of certain persons in certain circumstances. These rules are inspired by the principles of humanity and they are meant to avoid human sufferings, barbarism and brutality in armed conflicts. The capricious and dangerous circumstances in which these peacekeeping forces operate makes it more likely for them to get involved in the use of force. In such situations, the issue of the applicability of international humanitarian law (IHL) and human rights law turns out to be acute. When military forces themselves deliver humanitarian assistance, they take on a more ambiguous role that is likely to create confusion with other actors engaged in a purely humanitarian mission, and suspicions about those other actors as well. Such confusion undermines respect for and protection of humanitarian personnel, which is contrary to the letter and the spirit of IHL. Since the Geneva Conventions of 1949, the evolution of international humanitarian law has made great strides ahead. States have an obligation to respect it, and to teach its rules to their armed forces.

In re Kesavananda Bharati v. State of Kerala , the Supreme Court observed that ‘ The Universal Declaration of Human Rights (UDHR) may not be a legally binding instrument but it shows how India understood the nature of Human Rights’ at the time the Constitution was adopted. Thus, although the Supreme Court has stated that declaration “cannot create a binding set of rules” and that even international treaties may at best inform judicial institutions and inspire legislative action, constitutional interpretation in India has been strongly influenced by the Declaration. Article 51 (c) provides that the State shall foster respect for international law and treaty obligations in the dealings of organized peoples with one another.

Humanitarian is different from the law of war because the former does not cover all those matters which according to a traditional view belongs to the law. Thus, the impact of war on the diplomatic and treaty relations of the parties to a conflict, the rules regarding economic warfare and those concerning relations to neutral states are outside the ambit of humanitarian law. However, those rules of war which are based on humanitarian considerations or motivations are called humanitarian law. Thus, it would not be inappropriate to refer humanitarian law as a branch of rules of warfare.

Though the most effective peace keeper in recent times are the UN peacekeeping forces, but they still face a lot of hardships like the attack on these forces, lack of coordination among the troops, security council, police personnel, regional organizations and uneven political support also adds to it. Initially, UN peacekeeping goals were primarily limited to maintaining ceasefires and stabilizing situations on the ground, so that efforts could be made at the political level to resolve the conflict by peaceful means. Those missions consisted of military observers and lightly armed troops with monitoring, reporting and confidence-building roles in support of ceasefires and limited peace agreements. The nature of conflicts has changed from interstate to intra state.

There is need of a strong political support from the ruling and opposition parties of various countries and also from the regional organizations. New strategies and improved training and equipments would help protecting them against the attacks and maintaining peace. Changing mindsets and enhancing the preparedness of troops is helping to significantly limit casualties during attacks, such as against our base in Timbuktu last April, when the perpetrators were met with a strong response. On 5th June, 1993 twenty-four Pakistani soldiers serving with UNOSOM were killed and fifty-six were wounded and eleven seriously injured in a series of attacks that started in the morning and continued until late afternoon. Responsibility for the attacks was promptly attributed to the forces of General Aideed’s Somalia Patriotic Movement (SPM). Further, on 7th June, General Aideed released five out of six Pakistani troops which were captured and sixth soldier was released on 10th June with a wounded leg. Six Somali civilians who were appointed by the UN were murdered on 7th July.

The legitimacy of peacekeeping is apocryphal because when peacekeeping is imposed on the host nations by the western powers, they forward their own agendas or ideas and impose foreign ways which are not really acceptable to them because they seldom care about their needs and social justice. Therefore, the developing nations view peacekeeping with suspicion and as a means of controlling them. When war takes place between two nations, there might not be consensus among them for the enforcement of peacekeeping operations which entails additional military risks to the peace keepers. There is need of introduction of procedures for providing transparency in the monitoring, investigation which would provide relief from the abuse by the UN forces employed for the purpose of securing peace. This shall be done by providing adequate reliefs like payment of compensation to such victims where necessary and also punishing the guilty member either by imprisonment or by imposition of fine by way of disciplinary action. All these actions must be reported to the UN headquarters in Geneva and New York for future considerations and record.

The interests of the contributing nations decide the scope of operations and extent of liabilities. In fact, as the operations are conducted under the guidance of the UN, the UN should be the one setting guidelines and providing the scope and ambit of the operations. This step will help the host nations to regain faith in these missions. State is obliged to respect the sovereign immunity of foreign States within its own territory and cannot subject a foreign State to its tribunals for acta jure imperii.

Another crucial problem is that these operations do not take root causes of conflicts into consideration and hardly take into account the importance of religious, political and psychological aspects. During the Somalia conflict, they failed to consider the religious aspects ie. the confrontation between General Aideed and his supporters and UNOSOM forces. This majorly contributed to the failure of UNOSOM II. Thus this shows that until and unless the main or root causes are addressed, the missions barely have the chances of achieving success or attaining long lasting peace.

Since 1990s, these forces have been accused of numerous allegations of abuse such as rape, sexual exploitation, human trafficking, prostitution, child abuse and exploitation. Such complaints have arisen from West Africa, Cambodia, East Timor, Bosnia-Herzegovina. In 2011, an incident of rape which took place in Haiti against an 18 year old man named Johnny Jean by a Uruguayan UN peacekeeping troop in the Caribbean state wherein, the Uruguayan President Jose Mujica apologized to Haitian President Michel Martelly for this incident of rape and also provided the compensation to the victim.

UN peacekeeping helps countries to attain aeonian peace. These peacekeeping operations face several challenges and in response to it, the Secretary-General launched Action for Peacekeeping with better mandates in order to strengthen the operations and better equipped and trained forces. On September 25th 2018, the Secretary General hosted a GA73 High-Level meeting on Action for Peacekeeping. The progress as stated by the UN suggests that the Secretariat prioritizes the developing integrated regional strategies for the Great Lakes, Horn of Africa, Sahel, Central Asia & Middle East; Supporting field missions in the development and implementation of political agreements and strategies; Improving reporting to the Security Council through standardized info graphics and analytics; Integrating an “A4P lens” into reporting; Preparing proposals on sequencing and prioritization of mandates; Developing modalities to enhance sharing of reviews and lastly Rolling out local conflict analysis and planning tool. Integrating Protection of Civilians (POC) strategic approaches into mission actions; Social media campaign to improve strategic communications and engagement in peacekeeping are some of the measures taken for strengthening the protection provided by the peacekeeping operations.

Today, we live in a different world. Our security environment is characterized by an ever-increasing demand for peacekeeping. But the countries must ideally take seriously the warning mechanism and the prompt response with measures for conflict prevention, including preventive deployment of human rights operation, moving rapidly to address the causes and symptoms of conflict and enhancing deployment, institution building, and reforms in the country.