Peacekeeping and the Possibility of a Revisionist Law of War

Just War Theorists have traditionally argued that combatants are moral equals,
each permitted to kill their opponent regardless of the justice of their wars. Recently, this
position has been challenged by revisionist just war theorists, who hold that only
combatants who fight in justified wars are permitted to kill. This view is often thought to
be in deep tension with the law of war, and revisionist theorists are divided on the issue
of what the legal implications of their view should be. However, in at least one area the
application of the law of war to United Nations Chapter VI peacekeeping operations
international law takes on a revisionist cast. As I shall discuss for the remainder of this
post, I believe that this narrow area of international law provides a useful test case for
thinking about some of the perils and promises of moving toward a more revisionist law
of war. More specifically, I believe that the attempt to apply revisionist legal principles
to UN peacekeepers reveals that a more broadly revisionist law of war is unlikely to
benefit combatants or civilians.
The general question of whether the law of war applies to UN forces has a tangled
history, and much of the early debate surrounding the answer to this question
foreshadows the current debate between traditionalist and revisionist just war theorists.
From the outset some resisted straightforwardly applying all aspects of the law of war to
UN peacekeepers, for this would require that UN peacekeepers be treated as traditional
combatants.1 As traditional combatants, UN peacekeepers would be legally permitted to
kill; but, importantly, they would also be legally liable to attack by opposing forces.
Legally permitting opposing combatants to kill UN peacekeepers, the argument goes,
runs counter to the pacifying role that UN peacekeepers typically take on, which seems
more akin to domestic law enforcement. As one legal theorist argued, for as the law in
contests between police officials and gangsters is on the side of the police officials, so is
the law on the side of United Nations enforcement action against an aggressor.2 Others,
however, argued for the complete application of the law of war to UN peacekeepers,
given the humanitarian benefits that, it is claimed, follow from the requirement that all
sides obey the law of war in its entirety.3
In addition to the legal uncertainty, the ambiguity surrounding the status of UN
peacekeepers is also due to the fact that UN officials have been resistant to stating clearly
whether or not peacekeepers must abide by the Geneva Conventions. For example,
during the Korean conflict of 1950 the International Committee of the Red Cross wrote to
the United Nations, requesting that UN forces abide by the Geneva Conventions.4 When
asked whether or not he would do so, General Douglas MacArthur, Commander of the

1
William J. Bivens. Restatement of the Laws of War as Applied to the Armed Forces of Collective
Security Arrangements. The American Journal of International Law, Vol. 48, No. 1 (Jan., 1954), pp. 140-
145.
2
Id. 141.
3
Howard J. Taubenfeld. International Armed Forces and the Rules of War. The American Journal of
International Law. Vol. 45. No. 4 (Oct., 1951), pp. 671-679, 676.
4
Daphne Shraga, Current Development: UN Peacekeeping Operations: Applicability of International
Humanitarian Law and Responsibility for Operations-Related Damage, 94 AJIL 406, 406 (2000).
UN forces, acknowledged a specific obligation to abide by Common Article 3, which
calls for the human treatment of prisoners of war. Yet he claimed to have neither the
authority nor the means to ensure that the remaining provisions of the Geneva
Conventions would be enforced.5 Indeed, even the commitment to Common Article 3
would go unfulfilled.6
For the next forty years the UN would remain ambivalent regarding the
application of the law of war to UN peace operations. Finally, however, during the 1990s
the UN clarified (to some extent) the place of the law of war in peace operations. On the
one hand, it is now clear that the law of war applies in full to peacekeepers under UN
authority when engaged in a peace enforcement operation. Peace enforcement
operations fall under the mandate of Chapter VII of the UN Charter and typically feature
the deployment of traditional military forces. As then-Secretary-General Kofi Annan
stated in a 1999 Secretary Generals Bulletin, the law of war is fully applicable in
enforcement actions, or in peacekeeping operations when the use of force is permitted in
self-defence.7 Peacekeepers on such missions are thus legally liable to attack by
opposing forces. At least with regard to Chapter VII missions, there is no remaining
uncertainty on this point.
However, Annan also noted that his statement does not affect the protected
status of members of certain other peacekeeping operations.8 Annan was referring to the
fact that in some cases, namely, Chapter VI missions, peacekeepers are legally afforded a
distinctive status, a status that lies somewhere between civilian and combatant.
Traditionally, Chapter VI missions have attempted to resolve disputes peacefully in order
to preempt a resort to the use of force (as opposed to Chapter VII missions, which are
typically militaristic responses to breaches of international peace). The unique status
granted to Chapter VI peacekeepers is derived from two documents: the 1994 Convention
on the Safety of United Nations and Associated Personnel and the 1998 Rome Statute of
the International Criminal Court. The Safety Convention requires that each State Party
criminalize the murder, kidnapping, or attacking of United Nations and associated
personnel, including persons engaged or deployed by the Secretary-General of the
United Nations as members of the military, police or civilian components of a United
Nations operation.9 State Parties are obliged under the terms of the Convention to
prosecute or indict those within the states territory suspected of violating the
convention.10 According to the Rome Statute, attacks on peacekeepers are illegal so long
as peacekeepers are entitled to the protection given to civilians or civilian objects under
the law of war.11

5
Murphy, Ray. United Nations Military Operations and International Humanitarian Law: What Rules
Apply to Peacekeepers? 14 CRIMINAL LAW FORUM 153, 180 (2003).
6
Owen Bowcott, US Troops Violated Geneva Convention, THE GUARDIAN, January 2, 2003, available at
http://www.guardian.co.uk/uk/2003/jan/03/northkorea.usa
7
ST/SGB/1999/13
8
Id.
9
U.N. Safety Convention Para. 2 Art 2.
10
Id.
11
Rome Statute Art. 8 para. 2.
 The Safety Convention and the Rome Statute criminalize attacks upon UN and
humanitarian personnel and threaten violators with extradition and prosecution. Both
devices are limited, however, to situations in which UN personnel are not engaged in
combat. In other words, the Safety Convention and the law of war are mutually
exclusive: where the Convention applies, UN personnel are immune from attack, and
those who attack UN personnel are criminals. By contrast, UN personnel engaged in
combat are not entitled to the protection given to civilians, and so attacking UN personnel
is not a criminal violation in these circumstances. Combatants who attack UN personnel
during combat cannot be prosecuted under the statute.
This hybrid legal regime came about in part as a response to the rise of robust
Chapter VI missions. Broadly speaking, in robust Chapter VI missions, such as UNIFIL
in Lebanon and MONUSCO in the Democratic Republic of the Congo, UN forces
deployed with a mandate geared towards self-defense are nonetheless permitted to take a
more proactive approach toward enemy belligerents.12 In practice this means that
during robust Chapter VI missions it is possible, in some cases likely, that peacekeeping
forces will become involved in a level of combat that, ordinarily, would fall under the
scope of the law of war.13
The reasoning behind the Safety Convention and the Rome Statute illuminates the
precarious balance that must be struck between criminal law enforcement and the law of
armed conflict. Negotiators to the Safety Convention believed that an overlap between
the Convention and the law of war would lead to UN personnel fighting as combatants
while being immune to attack, which might weaken the protections afforded by the
Geneva Conventions. Negotiators therefore refrained from criminalizing attacks on UN
personnel in all cases, for they feared that this would lessen the willingness of opposing
forces to adhere to the laws of war.14 Negotiators feared that, faced with criminal
charges for attacking peacekeepers, opposing forces would view the law of war as
fundamentally lopsided and so would be disinclined to exercise any form of restraint. By
allowing UN personnel to be attacked when engaged as combatants, the negotiators
sought to preserve the principle of combatant equality, which they considered to be
fundamental to the restraining effect of the law of war.
Thus far, it is unclear that this hybrid legal regime has had much practical effect.
Nevertheless, there are good reasons to worry about its implementation. Under the
current regime, peacekeepers on robust Chapter VI missions are granted civilian
protection from attack while being afforded the combatants privilege to use force
consistent with the law of war.15 But to receive this protection, peacekeepers must
qualify as civilians. There are good reasons to doubt, however, that peacekeepers can
realistically move between these statuses in a manner that is consistent with other aspects

12
Jean-Marie Guhenno, Robust Peacekeeping: Building Political Consensus and Strengthening
Command and Control, in Robust Peacekeeping : the Politics of Force (New York: Center on
International Cooperation, November 2009), p. 48.
13
Bloom, Evan. Protecting Peacekeepers: The Convention on the Safety of United Nations and Associated
Personnel. 89 AJIL 621, 625 (1995).
14
Bloom supra at 625.
15
Keiichiro Okimoto, Violations of International Law by United Nations Forces and Their Legal
Consequences. Yearbook of International Humanitarian Law. Vol. 6., (2003), pp. 199-136.
of the law of war. For instance, in order to regain civilian status, organized groups of
combatants must cease to assume their continuous combat function. This would require,
among other things, that UN peacekeepers discard their uniforms and weapons and
effectively disband. Meeting this requirement would almost certainly undermine any
prolonged peacekeeping operation. Ultimately, then, it seems as peacekeepers on robust
Chapter VI missions occupy a limbo of sorts within the law of war.
I believe that the protected status currently granted to Chapter VI peacekeepers
approximates what a revisionist law of war might look like: just combatants, under such a
regime, would be legally permitted to attack unjust combatants, whereas unjust
combatants would risk legal punishment were they to attack just combatants.16 But note
that this would require the creation of an entirely novel legal category. This is because
the laws of war that grant immunity from attack to civilians could not simply be applied
to just combatants; as we saw above, such laws demand that combatants lay down their
arms in order to receive protection. There would thus need to be a special legal category
for just combatants, distinct from unjust combatants and civilians alike.
While this may not seem immediately problematic, it also bears noting that a
revisionist law of war would have to supplement, not replace, traditional law of war.
This is because presumably there will continue to be wars in which both sides fight for an
unjust cause; in such cases, traditional law of war might still play an important role in
restraining both sides. Additionally, it is plausible to suppose that even just combatants
will sometimes violate jus ad bellum or jus in bello and so forfeit their protected status.
A revisionist law of war would thus require criteria by which to discriminate between
unprotected civilians and unprotected combatants as well as between protected civilians
and protected combatants. Moreover, it would also require criteria for ascertaining when
just combatants forfeit their protected status.
If a revisionist law of war were to succeed in reducing the moral cost of war, it
would require answers to these questions that can be realistically applied on the
battlefield. My point in this short post is not to suggest that such answers cannot be
found but rather to indicate the scope and complexity of a law of war that takes on board
revisionist moral insights. My suspicion is that a law of war with this level of complexity
would have substantially less restraining force than the traditional law of war. But this
argument I must leave for future consideration.

16
For a view of the law of war along these lines, see Rodin, David. Morality and Law in War, in H.
Strachan and S. Scheipers, eds., The Changing Character of War, Oxford University Press, (2011), pp.
44663.