| United Nations peacekeeping operation is taken by the United Nations(U.N.)to maintain international peace and security.In practice,the peacekeeping operation has been put into effect and has formed considerably abundant practice since it was implemented for the first time.It develops an extremely important role on solving regional conflicts,and recovering or maintaining peace of such regions.Restrained by lacking explicitly provided legal documents,such as the Charter of the United Nations,as well as affected and restrained by a series of objective factors,there are a series of international law issues in U.N.peacekeeping operation which should be further considered,for the sake of definitely maintaining validity,rationality and legitimacy of peacekeeping operation: Firstly,what is peacekeeping operation? Secondly,what is the legal basis of implementing peacekeeping operation? Thirdly,what is the basic principle of peacekeeping operation,and whether its practice conforms to basic principles of international law? Fourthly,can the domestic law of host country applicable to the peacekeeping operation and peacekeeper? FIfthly,whether international humanitarian law is applicable to peacekeeping operation? Who should be the undertaker of legal responsibility when peacekeeping operation violating international humanitarian law and how to assume the responsibility?Based on that,this paper is divided into five chapters,and it aims at clarifying “what is peacekeeping operation”,“why should/can peacekeeping operation should be taken”,“how peacekeeping operation is taken/how should peacekeeping operation be taken”,and “what is the legal result if the implementation of peacekeeping operation is illegal and impropriate”.Therefore,this paper may clearly and comprehensively illustrate every aspect of the international law system of U.N.peacekeeping Operation.Chapter One: “The Overview of U.N.Peacekeeping Operation”.In Section One,it aims at clarifying what “peacekeeping operation” is,namely how to define peacekeeping operation.First of all,according to the elaboration on the definition and connotation of U.N.peacekeeping operation,it can be observed that peacekeeping operation should be equipped with the following elements: firstly,the purpose of peacekeeping operation is to solve international conflicts,recover or maintain international peace.Secondly,peacekeeping operation generally is limited to solve the conflict between countries.However,some conflicts between different groups in a country can be solved in practice.Thirdly,the peacekeeping force in peacekeeping operation is composed of military personnel,police officers and civil personnel,which are dispatched by U.N.member states voluntarily and commanded by the U.N.(Secretary General)uniformly.Fourthly,the implementation of peacekeeping operation should be firstly approved by parties concerned.Fifthly,the force of peacekeeping operation is restricted by self-defense.Use of force can't be used as a means to make peace.Then,based on the fact that there are both relations and differences between peacekeeping operation and collective security mechanism,when defining peacekeeping operation,it shouldn't be defined as a constituent part of collective security mechanism or be subject to the collective security mechanism.Meanwhile,peacekeeping operation should not be separated from the collective security mechanism resolvedly neither.Instead,it should be realized that peacekeeping operation actually constitutes a “substitution” when the United Nations fails to take collective security measures.And it doesn't mean the “weak version” of collective security mechanism.Peacekeeping operation is an “ambitious alternative choice” to the collective security mechanism,which is promoting international peace and security.In Section Two,it aims at clarifying the implementation mechanism of U.N.peacekeeping operation comprehensively and completely.First of all,specific implementation of peacekeeping operation should be taken charge by the competent authority—Department of United Nations Peacekeeping Operation and its subordinate organizations,especially the Military Burau.Secondly,as the authorities that is responsible for maintaining international peace and security,United Nations General Assembly and the Security Council both have a very important role in the implementation of peacekeeping operation.Thirdly,according to different purposes and contents of necessary tasks,as well as different means and ways in practical implementation process,implementation modes of peacekeeping operation can be divided into two types,including “military observer missions” and “peacekeeping force”.In Section Three,the practice development of U.N.peacekeeping operation can be divided into two stages: The first one is called “start-up stage”,since the establishment of the United Nations till the Cold War.And the second one is called “developing stage”,since the end of the Cold War till now.Chapter Two: “The Factual and Legal Basis of U.N.peacekeeping operation”.In Section One,it aims at clarifying the factual basis of U.N.peacekeeping operation.The factual basis of implementing peacekeeping operation should be attributed to the United Nation fulfilling the duty of maintaining international peace and security.To be specific,affected by constant evolution of international peace and security,severe eastern and western standoff during the Cold War and major revolution of international pattern after the Cold War,two basic modes of maintaining international peace and security which are explicitly confirmed in the Charter of the United Nation: peaceful settlement of international disputes and compulsory collective security precautions failed to fully cope with and dispose of situations that destroying or threatening international peace and security in practice.Therefore,Under the dilemma for both impossible peaceful settlement of international disputes and compulsory collective security precautions,peacekeeping operation emerged in the crack between peaceful settlement of international disputes and compulsory collective security precautions.Even if it has no coerciveness,peacekeeping operation is able to prevent and control conflicts effectively.Therefore,peacekeeping operation is taken by the United Nations,which is for the sake of fulfilling the responsibility of maintaining international peace and security.In Section Two,it aims at clarifying the legal basis of U.N.peacekeeping operation.In this regard,it should be realized that the legal basis and jurisprudential basis of U.N.peacekeeping operation have different connotations: On the one hand,legal basis is the legal reflection of international law on peacekeeping operation,namely under the precondition that legality of peacekeeping operation is affirmed in international law,it is reflected in the form of legal norm(specific provisions in international treaties and specific contents in international organizational resolution.While on the other hand,jurisprudential basis means that under the circumstance of insufficient international legal documents,it still makes peacekeeping operation have legality of international law.In other words,it can firmly explain the legality of peacekeeping operation in international law.Based on that,it must be confirmed that the U.N.has the right to implement the “implicit power” of implementing peacekeeping operation,and the “implicit power” constitutes the jurisprudential basis of its legality in the international law under the circumstance of lacking explicitly provided legal documents,such as the Chapter of the United Nations.Therefore,the preface,Article 1.1 and Article 40 of the Charter of the United Nations constitute the legal basis of all peacekeeping operations.Furthermore,Multilateral or bilateral treaties or agreements,resolutions of international organizations and domestic laws,constitute the supplement of the legal basis of the peacekeeping operation in different peacekeeping operations correspondingly.Chapter Three: “The Basic Principle of U.N.peacekeeping operation”.In Section One,it aims at elaborating connotation,confirmation and development in basic principle of U.N.peacekeeping operation.Firstly,peacekeeping operation should abide by the basic principles including:(1)“Consent of the parties”—implementation of peacekeeping operation must be approved by the concerned parties;(2)“Impartiality”—peacekeeping operation should remain impartiality,should neither intervene in internal affairs or benefits of disputing parties nor lean to any party in disputing parties;(3)“Non-use of force ”—peacekeeping operation should neither force parties concerned to accept or participate in implementation nor force disputing parties to accept results of conflicts.What's more,it should not take use force as the compulsory means to make peace.Secondly,with the increasingly complicated and severe conflicts,practical situation of peacekeeping operation also causes a great impact and challenge to the above-mentioned principles: Firstly,some peacekeeping operation may put into effect without the approval of disputing parties.Secondly,some peacekeeping operation intervene in internal affairs or benefits of disputing parties or support and shield the party but suppress the other party deliberately.Thirdly,some peacekeeping operation may force disputing parties to accept results of conflicts and use force power as the means to make peace compulsorily.In Section Two,it aims at elaborating the basic principles of peacekeeping operation and basic principles of international law,namely principle of state sovereignty,principle of non-interference in domestic affairs,and principle of non-use of force.On the basis of their close relation on connotations and features,it indicates that practical situation of peacekeeping operation may be out of keeping with the basic principle of international law,while abiding by the essential basic principle.In addition,suggestions are made on how to eliminate adverse effects of peacekeeping operation to the basic principle of international law as follows:Firstly,peacekeeping operation should not ignore state sovereignty of disputing parties based on the reality of making peace.However,in the implementation process,it must strictly abide by the principle of state sovereignty and the principle of “Consent of the parties”,which insists in the precondition of being approved by disputing parties.Meanwhile,the exception of principle of state sovereignty should be happened in very few cases,so it will not be developed in the general practical situations.Secondly,in most of situations,although for protecting human rights in a country,“humanitarian intervention” should not be the trigger to intervene in domestic affairs of disputing parties without their approval.Therefore,peacekeeping operation which based on “humanitarian intervention” should be strictly limited and standardized,so as to ensure that the situation that encroaches on human rights has already exceeded the range of domestic affairs by the U.N.Security Council.Thirdly,peacekeeping operation should take use of force for self-defense or protecting civilians in the armed conflicts,and it must conform to the “necessary” and “suitable” requirements.Under such circumstance,taking use of force does not violate the principle of non-use of force and it is allowable in the international law.On the contrary,peacekeeping operation should not take use of force to recover or maintain the peace in conflict regions.Otherwise,the use of force is inconsistent with the principle of non-use of force,and its legality and rationality should be defined consequently.Chapter Four: “The Regulation in Domestic Law of U.N.peacekeeping operation”.In Section One,according to the provisions in the “Draft Agreement of Peacekeeping Operation Troops” between the United Nations and the host country,and the “Convention on Privileges and Immunities of the United Nations”,the peacekeepers in different working areas,posts,functions and resources,have their corresponding legal status and corresponding privileges and immunities.Peacekeepers in peacekeeping operation can be divided into such different types as “senior members”,“U.N.clerks”,“specially appointed experts”,“military personnel” and “U.N.volunteers”.Different types of peacekeepers have the diverse legal status and enjoy corresponding privileges and immunities which are matched with their legal status.In Section Two,it aims at analyzing the exception of the privileges and immunities enjoyed by peacekeepers,especially the immunity of jurisdiction.To be specific: Immunity of jurisdiction is only applicable to illegal behaviors of peacekeepers.Meanwhile,immunity of jurisdiction is not absolute,but can be excluded or abandoned.Therefore,the host country is able to govern and investigate the peacekeepers' violating of domestic civil law when not executing peacekeeping operation,except for the “senior members” of peacekeepers.Moreover,under the circumstance that immunity of jurisdiction enjoyed by peacekeepers is excluded or abandoned,the host country is able to govern and investigate the other peacekeepers who violate civil law of the host country when executing peacekeeping operation,as well as the “senior members” who violate civil law of the host country when not executing peacekeeping operation.Based on that,in terms of exception of immunity of jurisdiction,when investigating the illegal behaviors of peacekeepers,if the host country is unable to govern peacekeepers' behaviors of violating domestic criminal law,according to Article 51 of the “draft”,U.N.Secretary General and the host country should establish a Grievance Committee together to dispose it.Secondly,under the circumstance that peacekeepers with civil responsibility or incidental civil responsibility to criminal behaviors have no capacity of compensation: If the illegal behavior of the peacekeeper is the “duty behavior”,the United Nations should assume obligations for compensation.While,if the illegal behavior of the peacekeeper is not for executing the peacekeeping operation,namely is the “individual behavior”,the dispatch country should assume obligations for compensation.Chapter Five: “The Regulation in International Humanitarian Law of U.N.peacekeeping operation”.In Section One,it aims at demonstrating jurisprudential basis and factual basis of the application of international humanitarian law on U.N.peacekeeping operation.In addition,it will further elaborate specific situations of peacekeeping operation violating international humanitarian law,on the basis of the application of specific contents of international humanitarian law on peacekeeping operation.First of all,in terms of the fact that international humanitarian law is applicable to peacekeeping operation: On the one hand,the principle of “impartiality” of peacekeeping operation will not affect the applicability of international humanitarian law,because no matter that peacekeeping operation intervenes in international armed conflicts or non-international armed conflicts,it belongs to the range of “armed conflict” which should comply with international humanitarian law.And once peacekeeping operation intervenes in armed conflicts and take the use of force,international humanitarian law should be applicable consequently.Meanwhile,on the other hand,legality for peacekeeping operation to take use of force will not exclude the applicability of international humanitarian law.In the armed conflict,essentially there is totally no difference of the fact of taking use of force between the peacekeeping operation troops and the military forces of disputing parties.As a result,both the peacekeeping operation troops and the military forces of disputing parties should comply with the international humanitarian law.Moreover,based on the legal value that international humanitarian law which is protecting the sufferers in the armed conflict,peacekeeping operation should not take the legality of use of force as the reason to exclude the applicability of international humanitarian law and to ignore protecting the sufferers in the armed conflicts.Secondly,as to the factual basis of the applicability of international humanitarian law to peacekeeping operation: On the one hand,in quite a few peacekeeping operations,the peacekeeping operations troops not only keep the mutually hostile state with one party of the disputing parties,but also show the tendency to oppose and suppress the other party deliberately,which is breaking down the principle of “impartiality” of peacekeeping operation.And under such circumstance,international humanitarian law should be applicable to peacekeeping operation.Meanwhile,on the other hand,several U.N.legal documents in different levels(including the “Notice of Secretary General on U.N.Forces Abiding by International Humanitarian Law”,which is general binding on all peacekeeping operations,and agreement on legal status of peacekeeping operation troop concluded between the United Nations and the host country)explicitly stipulate that peacekeeping operation troop should abide by international humanitarian law,indicating that international humanitarian law should be applicable to peacekeeping operation.On the basis of confirming that international humanitarian law is applicable to peacekeeping operation,it must notice that not all the provisions of international humanitarian law can be applied to peacekeeping operation,but only the “universal principle and spirit” of international humanitarian law.According to the provisions of the “Notice of Secretary General on U.N.Forces Abiding by International Humanitarian Law”,the “universal principle and spirit” of international humanitarian which can be applied are as follows: protecting civilians,restricting means and methods of fighting,giving humanitarian treatment to civilians,armed personnel out of action,detainees,the sick and wounded,and medical workers.And accordingly,the specific situations of violating international humanitarian law mainly involve the violating the “universal principle and spirit” of international humanitarian of protecting civilians and giving humanitarian treatment to civilians and detainees.In Section Two,it aims at analyzing the attribution of the behaviors of violating international humanitarian law.To confirm the attribution of illegal behaviors is the precondition to confirm the attribution of the corresponding responsibilities.According to the provisions of the “Liability Clause Draft of International Organizations”,behaviors of international organizations or agents of international organizations of fulfilling functions should be attributed to international organizations as follows: the behaviors of organs or agents dominated by international organizations,the behaviors of exceeding permission or violating instructions by organizations or agents of international organization,and the behaviors admitted by international organizations as their own behaviors.Therefore,as to the attribution of the behaviors of violating international humanitarian law in peacekeeping operation: On the one hand,except for the “military personnel”,the other peacekeepers' behaviors of violating international humanitarian law can be attributed to the United Nations,by comparing with the behaviors of international organizations or agents of international organizations of fulfilling functions,or the behaviors of organizations or agents of international organizations of exceeding permission or violating indications.While,on the other hand,the behaviors of violating international humanitarian law of the “military personnel” can be attributed to the United Nations by comparing with the behaviors of organizations or agents dominated by international organizations under the precondition that the United Nations has “effective control” on such behaviors.In Section Three,it aims at elaborating the jurisprudential basis,capacity of responsibility,and specific means of the United Nations to assume the legal responsibilities of violating international humanitarian law in peacekeeping operation.On the basis of confirming the behaviors of peacekeeping operation violating international humanitarian law can be attributed to the United Nations,although the United Nations should assume the corresponding legal responsibilities,in order to make the United Nations assume such international legal responsibilities feasibly and sufficiently,it must be figured out whether the United Nations is the suitable subject to assume international law responsibility,whether it has the capacity of responsibility,and how should it assume the responsibilities.Firstly,the international legal personality of the United Nations is the jurisprudential basis of the United Nations to assume the international legal responsibilities.Because of the international legal personality,the U.N.must assume the international legal responsibilities led by the violation of international law.Secondly,the capacity of responsibility of the United Nations to assume the responsibilities of violating international humanitarian law is limited.The United Nations should only take the responsibilities caused by the behaviors of fulfilling the functions of peacekeeping operation.Moreover,the independence of the capacity of responsibility of the United Nations to assume the responsibilities of violating international humanitarian law is not absolute.That means,under some specific situation,the United Nations and its member states should assume responsibilities together.Thirdly,compensation should be the main way of the United Nations to assume the responsibilities,including the means of reconversion,redress and repayment. |
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