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Research Report

The Intervention Brigade:: Legal Issues for the UN in the Democratic Republic of the Congo

Copyright Date: Nov. 1, 2014
Pages: 28

Table of Contents

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  1. (pp. None)
  2. (pp. i-ii)
  3. (pp. iii-iv)
  4. (pp. 1-2)
  5. (pp. 2-4)

    The Intervention Brigade in MONUSCO was both welcomed and controversial at its inception. In March 2013, the UN Security Council noted the lack of progress in the DRC and unanimously adopted Resolution 2098 establishing the first UNled overtly offensive force. There was a recognized need to address the cycle of violence in the eastern DRC with a more robust response.¹ The Intervention Brigade was given an unprecedented mandate to neutralize rebel forces, something that neither the UN peacekeeping mission nor the Congolese government had been able to successfully address up to that point. The UN Secretariat asserted that it was...

  6. (pp. 4-5)

    The key element of the Security Council mandate provided to the Intervention Brigade is its authority to use force. International law makes a clear distinction between the authority to use force (jus ad bellum) and the legitimate means and methods of using force in armed conflict (jus in bello). The latter is also known interchangeably as the international law of armed conflict or international humanitarian law (IHL).

    Resolution 2098 created the Intervention Brigade within MONUSCO and under the same force commander as the rest of the force. It explicitly authorized the Intervention Brigade to “take all necessary measures” to carry...

  7. (pp. 6-9)

    For the conduct of MONUSCO activities, there are two main legal frameworks that are applicable: IHL26 and IHRL.27 The former regulates the UN peacekeeping mission only when it is considered a party to a conflict, and the latter is relevant at all times, although the applicability of IHRL may be limited in scope during times of armed conflict. While the UN is not party to the relevant treaties for IHL and IHRL, it is accepted that the same legal rules may apply to the organization and its peacekeepers.28 The Security Council takes the view that both bodies of law are...

  8. (pp. 9-12)

    The impact of the Intervention Brigade’s mandate on safety and security of MONUSCO’s peacekeepers is a significant issue. UN peace - keepers, both military and civilian, benefit from legal protections from attack under various legal regimes—general rules of IHL, the Convention on the Safety of United Nations and Associated Personnel (1994) and its Optional Protocol (2005), and the Rome Statute of the International Criminal Court (1998). However, these legal protections are not absolute and the Intervention Brigade’s mandate and actions may negate their applicability to MONUSCO’s military forces.

    The general approach of the secretary-general’s bulletin is that UN peacekeepers...

  9. (pp. 12-14)

    It is natural that the offensive operations conducted by the Intervention Brigade are more likely to generate detainees, including those who have been captured, wounded, or surrendered. This raises issues concerning the legal authority, treatment, and transfer of detainees. While the UN emphasizes publicly its offensive operations are in support of the FARDC, there are media reports of armed rebels trying to surrender to the UN forces, rather than the government authorities, including due to fears of being tortured or harmed by the FARDC.78

    There is no truly comprehensive legal framework that governs the taking, handling, and transfer of detainees...

  10. (pp. 14-16)

    With the Intervention Brigade forces operating under more demanding conditions than most UN peacekeeping forces, and carrying out high pressure and timely combat operations, there is a greater likelihood of mistakes being made in the “fog of war.” Collateral damage, which may include civilian deaths caused by MONUSCO operations, if proportionate, is permissible when attacking military objectives in the course of offensive operations. This may inevitably lead to a greater relevance of responsibility and accountability for loss or damage caused by MONUSCO, and possible violations of IHL or IHRL even if unintentional. There also have been serious issues raised concerning...

  11. (pp. 16-19)

    The UN’s assertion that the Intervention Brigade is peace enforcement rather than peacekeeping has naturally attracted concerns that it contradicts the agreed “basic principles” of UN peacekeeping— consent, impartiality, and non-use of force except in self-defense (including in defense of the mandate).109 The Security Council’s Resolutions 2098 and 2147 recognized this issue by taking the unprecedented step of noting that the Intervention Brigade’s mandate was without “any prejudice” to the agreed basic principles of peacekeeping.110

    While there has always been debate about the nature and scope of UN peacekeeping, the basic principles are today agreed and mostly clear. The 2008...

  12. (pp. 19-20)

    The mandating of the Intervention Brigade by the Security Council was a bold, innovative, and controversial step. It was also a UN operation that the consequences of which, particularly the legal issues, had not been fully thought out. It is now largely considered a success, and some consider it a model for future UN peacekeeping operations. While the focus has been primarily on its political and operational aspects, the legal issues are real and of practical consequence. This includes the lawful targeting of UN forces and difficulties, for example, in the UN operation meeting its international obligations concerning detainees. It...

  13. (pp. 22-22)