4,298 WORDS

“Ultimately it is not clear on what basis force can

and cannot be used by peacekeeping operations. Nor
is it clear how far the concept of self-defence can be
pushed. At the moment it is apparently limitless, able
to encompass even the defence of others so long as a
legitimate mandate is pursued. This, in effect, means
that the use of force is dependent on the operation’s
mandate, not on any clear and fixed rules as to how
force may and may not be used.” K. Cox (1999)

Student: Rachel Alberstadt

UN Peacekeeping, Leiden University Advanced
MA/LLM Public International Law

Has the definition of self-defence used by the

United Nations for its peace operations become
customary international law?
11 June 2014
 S1414089

Ulti ately it is ot lear o what asis for e a a d a ot e used y pea ekeepi g

operations. Nor is it clear how far the concept of self-defence can be pushed. At the moment it is
apparently limitless, able to encompass even the defence of others so long as a legitimate
a date is pursued. This, i effe t, ea s that the use of for e is depe de t o the operatio ’s
mandate, not on any clear and fixed rules as to how for e ay a d ay ot e used. K. Cox

I. Introduction

As history marches forward, so too do the organizations created out of its contextual circumstances.
For instance, the United Nations (UN) was created following the two World Wars to facilitate a forum
wherein States would unite in seeking pacific settlements to disputes in avoidance of conflict and war.
The UN continues in this purpose, but has evolved by employing peacekeeping and peace-enforcement
operations to ensure international peace and security. Peacekeeping operations continue to evolve as
socio-political contexts force mission changes. Consequently, mandates have broadened and narrowed
to accommodate these needs.1 A key element of the evolution of the peacekeeping operations is the
use of force, which has traditionally been narrowly restricted to that required only in acts of self-
defence.2

However, the definition and application of what the UN envisages what constitutes self-defence
will be the core issue that this paper will evaluate. This paper will evaluate whether or not the definition
and practice of self-defence under the UNs’ regime for its peacekeeping operations3 has become
customary. First, this paper will briefly define self-defence under public international legal
frameworks, such as the UN Charter itself and as a principle or right as confirmed before the
International Court of Justice (ICJ). Next, it will evaluate the definition used by the UN for its peace
operations. In this evaluation of the specific UN operational paradigm, this paper will engage with
traditional definitions and practices of self-defence under the general framework of international
humanitarian law or IHL.

II. Self-Defence under Public International Law

Chapter VII of the UN Charter, through Article 51, expresses the inherent and fundamental right
of self-defence. This right applies in scope to individual States, and by collective;4 as demonstrated in
historical and current collective security organizations under NATO and the Warsaw Pact. This right

1
Katherine Cox, “Beyond Self-Defence - United Nations Peacekeeping Operations and the Use of Force”, 27(239) Denver
Journal of International Law and Policy, (1999), 267, 243, 250
2
Cox, 241, 242
3
Peacekeeping has been defined by the UN as “the deployment of a United Nations presence in the field, hitherto with
the consent of all the parties concerned, normally involving United Nations military and/or police personnel and frequently
civilians as well, Peacekeeping is a technique that expands the possibilities for both the prevention of conflict and the
making of peace.” The General Assembly, An Agenda for Peace: Preventative Diplomacy, Peace-making, and Peacekeeping,
17 June 1992, UN Document No. A/47/277, S/24111, [21]
4
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. I.C.J.
Reports 1986, p. 14, [194] (cited as: Nicaragua); Collective self-defence is newer and more ambiguous (but found by the ICJ to
be customary). Malcolm Shaw, International Law, CUP (6th edition), (2008), 1146, 1147

1
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can be exercised in the event that an armed attack occurs5 and with the notification of the UN Security
Council.6 Clarifications to the ambiguities of the Charter’s recognition of this right have been clarified
by the ICJ as a right predicated on two things; that of necessity and proportionality.7 In order for States
to derogate from the prohibition on use of force, an exception lawfully recognized under the self-
defence regime,8 the use of force must be necessary in order to respond to an attack.

Case law mainly supports right of defence regarding State actors; the same core principles of
necessity and proportionality apply when any actor lawfully uses force.9 There also exists separate and
legally distinctive levels of self-defence, national and that of unit.10 Only national defence holds
declaratory obligations. Unit self-defence operates on a tactical level, determined by commanders
operating on the ground, whilst national self-defence operates at a strategic level.11 At the crux of these
levels is the application of sovereignty; this applies directly to national self-defence as the majority of
States believe that unit self-defence, and also individual self-defence is an inherent and non-derogable
right.12 National defence is found both in international legal instruments and in customary law;
alternatively, unit self-defence is predominantly found in customary law.13 Both exist whether the
attack stems from a State or a non-State actor.14 The principles of IHL bind States during armed conflict
and similarly lends guidance and obligations to other actors, including peacekeepers throughout the
duration of their engagement in hostilities.15

While self-defence varies according to different State regimes, Rules of Engagement (ROE)
expand upon levels of force allowable for missions. However, no ROE infringes upon the inherent

5
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1. C.J. Reports 1996, p. 226 [38] (Cited as: Nuclear
Weapons); Nicaragua,[195, 211] This includes the need for States to declare themselves to be victims of an armed attack, [199]
6
Nuclear Weapons, [44]; Nicaragua, [200]; Shaw, 1143
7
Nuclear Weapons, [41]; Nicaragua, [176]
8
Nicaragua, [74]
9
Charles P. Trumbull IV, “The Basis of Unit Self-defence and Implications for the Use of Force”, 23(121), Duke Journal of
Comparative and International Law, (2012), 131
10
Trumbull IV, 128, 139
11
Hosang, 422; Capstone Doctrine, 34-35
12
Trumbull IV, 129
13
Trumbull IV, 145
14
Trumbull IV, 130
15
Controversially, the UN position expresses that peacekeeping forces are civilians and IHL only applies for the duration of their
engagement with hostilities. This is inconsistent with State practice and with factual application of circumstances. Indeed, see
Jaume Saura, (‘Lawful Peacekeeping: Applicability of International Humanitarian Law to United Nations Peacekeeping
Operations’, 57, Hastings Law Journal, (2007)) where he states “But if we accept that armed troops, numbering several thousands
and under responsible military command, are deployed in a territory where international humanitarian law is already applicable,
and that the troops have a mandate that in certain circumstances may compel them to use armed force, then it is difficult to
understand why the troops should not be bound de jure by such body of law from the very beginning of their mission, even before
a single shot is fired. The fact that the Bulletin is only applicable to peacekeepers while they engage in hostilities means that its
scope is excessively narrow. This minimalist approach, however, is consistent with the views of many scholars who claim that
‘although an armed conflict between other parties may take place at the same time, [peacekeepers] enjoy the status of civilians.'
However, such a view fails to fully take into account the factual characteristics of foreign troop deployment in conflict areas,
even when the troops are neutral and enjoy the agreement of the parties.” (502-3)

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right of individual or unit defence.16 States claim that ROE’s assert self-defence as a fundamental right
grounded in existing law and practice which is additional to permitted uses of force. Because States
view it as fundamental rather than authorized by the ROE, this demonstrates that self-defence below a
national level has become a customary norm.17 Generally, ROE outline threshold situations applicable
to self-defence such as hostile act and hostile intent. For this paper, hostile intent refers to the capability
to carry out a hostile act (including actions preparatory for an armed attack)18 or a threat of imminent
attack.19 A hostile act refers to an armed attack. These thresholds are determined by observation and
intelligence gathering. Ultimately, self-defence must be exercised as a response to an attack or an
imminent attack.20

Customary definitions of self-defence are outlined in the Caroline test.21 This criteria requires three
factors be fulfilled; an imminent attack, a proportionate response, and a defensive attack against the
attacking unit.22 The rational of the execution of defence predicates on the instant and overwhelming
need constrained by reasonableness and without excess.23 Necessity involves a threshold requiring the
imminence of threat to be demonstrable in that there exists, “no time to pursue non-forcible measures
with a reasonable chance of averting or stopping the attack.”24

III. Self-Defence under UN Peacekeeping Operations: an Evolving Process

Use of force only in self-defence or when strictly necessitated is one of the three bedrock tenets of
UN operations, alongside impartiality and consent of the parties involved.25 It dates back to the first
UN operation in 1956.26 UN self-defence rules apply to all UN commanded and controlled operations;
this includes both peacekeeping and peace enforcement. However, for brevity purposes this paper will
only engage with self-defence definitions employed for peacekeeping operations.27

16
Trumbull IV, 139
17
Trumbull IV, 134
18
In U.S. law, the same terms are used to qualify attack and imminent attack; both NATO and the U.S. use longer expressions to
clarify whereas the UN uses U.S. terminology without offering clarification leading to a confusion between self-defence and
hostile intent and hostile act. Hans F. R. Hosang, ‘Force Protection, Unit Self-Defence, and Extended Self-Defence’, The
Handbook of The International Law of Military Operations, Terry D Gill & Dieter Fleck, (eds), OUP (2010), 424, 425
19
Trumbull IV, 124
20
Hosang, 421
21
Shaw, 1131
22
Hosang, 423
23
Shaw, 1131
24
Shaw, 1141; see also Chatham House, Principles of International Law on the Use of Force by States in Self-Defence, (2005)
25
UN, United Nations Peacekeeping Operations: Principles and Guidelines, (2008), 31 (cited as Capstone Doctrine); Cox, 249,
256; UN, United Nations Infantry Battalion Manual: Volume 1, (2012), 12 (Cited as Battalion Manual); Shaw, 1234, 1235
26
Capstone Doctrine, 34
27
Which are narrowly distinguished as peacekeeping restricts the use of force to self-defence only. Cox, 247

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The UN Safety Convention was adopted by the UN General Assembly in 1994 and expresses the
right to act in self-defence in Article 21.28 This Convention has been controversially accepted to also
apply to non-UN operations;29 but clarifies UN guidance on peacekeeping missions. Earlier guidance
was found in the creation of the UN Emergency Force, adopting rules addressing clarifications on the
right of peacekeepers’ self-defence. Dag Hammarskjöld, former Secretary-General, asserted
clarification on the official policy of the UN in his report summarizing operation experiences that a
fundamental premise to any UN use of force was the prohibition on the UN forces initiating the use of
force.30 The report stated:

“[M]en engaged in the operation may never take the initiative in the use of armed force, but
are entitled to respond with force to an attack with arms, including attempts to use force to
make them withdraw from positions which they occupy under orders from the Commander,
acting under the authority of the Assembly and within the scope of its resolutions. The basic
element involved is clearly the prohibition against any initiative in the use of armed force.”31

Unlike contemporary operations, the earliest definitions of lawful or acceptable use of force by UN
operational forces32 was narrowly construed and predicated on necessity of usage for defensive
purposes.33 As force was defensive, this predicated on a responsive and not instigative action.34 The

28
Convention on Safety of United Nations and Associated Personnel, UNGA, http://www.un.org/law/cod/safety.htm, accessed 3
June 2014; Trumbull IV, 137; Saura, 516
29
The U.S. has stated it believes it applies to non-UN operations, whilst The Netherlands has declared it does not apply
30
See UN Doc. A/3943 (8 October 1958), [179]; Cox, 250
31
UN Doc. A/3943 (8 October 1958), [179], underlined emphasis added
32
By UN forces, this paper refers to those forces who are under the direct command and control of the UN, Hosang, 417
33
While the UN issues no explicit policy regarding self-defence for its peacekeeping operations, it can be pieced together through
examination of various mandates and practice. Overall, the UN definition of self-defence is defined as: ‘Troops shall not take the
initiative in the use of armed force. The use of armed force is permissible only in self-defence. The expression "self-defence"
includes: (a) The defence of United Nations posts, premises and vehicles under armed attack; (b) The support of other personnel
under armed attack. No action is to be taken by the troops which is likely to bring them in to direct conflict with either party,
except in the following circumstances: (a) Where members of the Force are compelled to act in self-defence; (b) Where the safety
of the force or of members of it is in jeopardy; (c) Where specific arrangements accepted by both communities have been or in
the opinion of the commander on the spot are about to be, violated, thus risking a recurrence of fighting or endangering law and
order.’
‘When acting in self-defence, the principle of minimum force shall always be applied, and armed force will be used only when
all peaceful means of persuasion have failed. The decision as to when force may be used under these circumstances rests with the
commander on the spot, whose main concern will be to distinguish between an incident which does not require fire to be opened
and those situations in which troops may be authorized to use force. Examples in which troops may be so authorized are: (a)
Attempts by force to compel them to withdraw from a position which they occupy under orders from their commanders, or to
"infiltrate and envelop such positions as are deemed necessary by their commanders for them to hold, thus jeopardizing their
safety; (b) Attempts by force to disarm them; (c) Attempts by force to prevent them from carrying out their responsibilities as
ordered by their commanders; (d) Violation by force of United Nations premises and attempts to arrest or abduct United Nations
personnel, civil or military. Should it be necessary to resort to the use of arms, advance warning will be given whenever possible.
Automatic weapons are not to be used except in extreme emergency and fire will continue only as long as is necessary to achieve
its immediate aim.’ (paraphrased from Cox, FN 52-3)
34
Personal self-defence also requires legal action taken against the attacker. This is because if the defensive action is found to be
instigation, this may be held against you in recourse (culpa in causa). See also Cox, 252

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UN approach to self-defence is minimalist as a general theme as the UN operates under the assumption
that any use of force is a failure to achieve its goal through other means, primarily negotiation.35

Following, Hammarskjöld’s report further guidance on specifics of self-defence arose as a

reactionary method out of lessons learned from the UNs’ first mission in Cyprus. This was due to
critical problems arising from a reluctance to use force, particularly individuals exercising self-
defence. Following the Cyprus mission, the scope of self-defence definition has extended to
accommodate practical need.36 The UN Security Council Report in April 1964 (or Cyprus Report)
asserted that troops carry arms primarily for defensive purposes, but expanded beyond personal self-
defence to ‘when necessary by its function.’37

Following the Cyprus operation an evolutionary expansion of self-defence included defence of

mandate. 38 Indeed, the report explains this expansion as functional defence. Its legal basis is found in
implied powers, but the Cyprus Report used identical terminology to Chapter VII legal text as it
explains operational function includes restoration or protection of international peace and security,
including through prevention of fighting or escalation.39

The UN sanctioned self-defence in expanded scenarios to include defence of mandate, and general
performance functions of the mission itself,40 including protection of civilians.41 Definitions of self-
defence expanded the scope of protection afforded UN troops to ensure independence of their duties,
but was limited to minimal uses of force necessitated by circumstances42 to comply with general non-
interference and impartiality.43 Restrictions included limitations on weaponry and required advance
warning wherever possible.44 This closely relates to precautionary measures under IHL which also
requires that the type of weaponry used is appropriate as to minimize potential harm.45

In 1999, the Secretary-General’s Bulletin on Observance by United Nations Forces of

Humanitarian Law (or Bulletin) expressed in Section 1.1 that IHL applies to peacekeeping forces, and

35
See Capstone Doctrine, ‘A United Nations peacekeeping operation should only use force as a measure of last resort, when
other methods of persuasion have been exhausted’, 35
36
UN Doc. S/5653 (1964), [1] (referred to as Cyprus Report); Cox, 257
37
UN Doc. S/5653 (1964), [10]
38
Cox, 250
39
UN Doc. S/5653 (1964), [10]; see also Capstone Doctrine:“The notion of self-defence has subsequently come to include
resistance to attempts by forceful means to prevent the peacekeeping operation from discharging its duties under the mandate of
the Security Council.”, 34; Battalion Manual, 12
40
Cox, 255, 260
41
Battalion Manual, 12
42
As outlined in UN Doc. S/5653 (1964), [17, 18]; Cox, 254
43
See Capstone Doctrine; Cox, 256
44
UN Doc. S/5653 (1964), [19]
45
See Rule 22, Jean-Marie Henckaerts, & Louise Doswald-Beck, Customary International Humanitarian Law: Volume I: Rules,
International Committee of the Red Cross, CUP, (2005), 68-71

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these rules are applicable during uses of force in self-defence.46 Indeed, the 2003 Capstone Doctrine
providing principles and guidelines to UN peacekeeping operations explains force is a last resort after
all other measures have been exhausted or failed. Even then, force should be used with restraint47 and
with the specific intent to deter harm against the peace process or civilians. It expresses “The use of
force by a United Nations peacekeeping operation should always be calibrated in a precise,
proportional and appropriate manner, within the principle of the minimum force necessary to achieve
the desired effect.”48

The main distinction of self-defence between an individual or unit level is when self-defence
becomes a lawful option. This option does not mandate required action. Self-defence for UN
operations arises under a broad definition as defence against imminent attacks and armed attacks to
interfere with the execution of the mandate.49

On the peacekeeping level, a narrow application of self-defence is triggered by a hostile act. In

some cases, the right to use self-defence by implication extends to protection of mission equipment or
defence of position (such as defending territorial control or freedom of movement50).51 Although UN
reports have included anticipatory self-defence predicated on the commander’s final decision.52
Exercise of this right predicates on following restrictions of necessity and proportionality as consistent
with general self-defence principles falling under traditional models of national self-defence.53
Therefore, the original position of the UN to only resort to force defensively in the event of an armed
attack was expanded to mean force can be employed against hindrances to carrying out the mission.54
This further demonstrates this paper’s point regarding the evolution of the UN’s peacekeeping roles
but also proves problematic to the original intention behind minimal use of force restrictively used as
defensive means predicated on maximum impartiality and neutrality in the on-going conflict.55

46
UN Doc. ST/SB/1999/13 (1999), [1.1]; see also ICRC, ICRC Expert Meeting on Multinational Peace Operations: Applicability
of International Humanitarian Law and International Human Rights Law to UN Mandated Forces, (2004), 10 (cited as ICRC
Expert Meeting) Problematically, the Bulletin implies that the UN will only be obligated to uphold IHL norms when party to a
conflict. Saura, 499
47
Bruce Oswald, “The Control and Creation of Places of Protection During United Nations Peace Operations”, 83(844) IRRC,
(2001), 1021-1022
48
Capstone Doctrine, 35
49
Hosang, 417; Cox, 250, 255, 260
50
ICRC Expert Meeting, 24; Cox, 260
51
See Safety Convention; Saura, 516; Cox, 260, 267 (Cox argues this correlation with defence of freedom of movement correlates
with humanitarian concerns, such as delivering aid)
52
See Cyprus Report, [18] ‘the decision as to when use force may be used under these circumstances rests with the commander
on the spot whose main concern will be to distinguish between an incident which does not require fire to be opened and those
situations in which troops may be authorized to use force.’; Cox, 254
53
Hosang, 420; Trumbull IV, 131
54
Suara, 482-3
55
Cox, 246, 256

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IV. Observations

For both State and UN lead operations, the ROE will outline the parameters for allowable levels
of force appropriate for the mission. ROE focus upon escalation dominance or rather, the de-escalation
of the conflict. There exist consistent similarities with the premise of self-defence in both traditional
models employed by States in national self-defence as compared to the UN policies for its troops. Yet
it is in the execution or circumstances triggering self-defence that differs under technical nuances that
renders the UN definition incompatible with general State practice.56 For instance, when force is
deployed in defence against an attack, the decision to act in defence of the unit is issued by the
commander.57 Under general State practice, particularly the U.S., the commander is obligated to issue
defensive measures to protect his or her troops,58 wherein UN policy guidelines do not give
commanders this same obligation.59

Another example is self-defence of a territorial position or occupation, referred to as ‘stand your

ground defence,’ and is expressed in UN operation guidance as a situational circumstance triggering
self-defence.60 This form of self-defence is controversial,61 even amongst State practice. This expanded
definition avoids raising the level of the operation from that of peacekeeping to peace-enforcing but
results in an artificial construct.62

Unit or personal self-defence is an inherent right not dependent or contingent upon mandate or
mission.63 In the U.S. military, unit self-defence is considered both a "right and obligation."64 It exists
without need for authorization.65 Nonetheless, a “fundamental conceptual difference exists between
the right of self-defence as an inherent right to save life and defend against an attack on the one hand,
and the use of force to achieve a mandate or a military or political objective” on the other hand.66 The
UN definition of self-defence includes actions taken against imminent attacks and armed attempts to
interfere with the execution of the operation’s mandate.67 While self-defence against the mandate are
not restricted to Chapter VII (peace-enforcement) operations, missions under Chapter VII are
authorized to use force to enforce the entire mandate at all times and are not limited to reactive uses of

56
Cox, 267
57
Ibid at 53; Oswald, 1032
58
Trumbull IV, 129
59
Trumbull IV, 121; Hosang, 420
60
See, Cyprus Report; These must specifically address who may be defended. Oswald, 1026
61
Cox, 267
62
Cox, 255, 268
63
Hosang, 426 Ultimately, personal self-defence varies in practice whilst national self-defence is more internationally consistent.
64
Trumbull IV, 123, Hosang, 426
65
Hosang, 423
66
Hosang, 424
67
Hosang, 417; Cox, 255

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force, such as armed interference.68 This conceptual difference underlines the incompatibility of the
UN definition of self-defence with definitions used by States.69

Customary international law comprises i) States’ belief that a practice is legally mandated (opinio
juris) and ii) State practice. In 1968 in the North Sea Continental Shelf Case, the Court found that in
order for a customary threshold to apply, this requires extensive and virtually uniform State practice.70
This standard was later relaxed in the 1986 Nicaragua case when the Court found general consistency
to be enough to achieve a customary threshold.71 Therefore, as the UN definition of self-defence varies
significantly even within its own practice, it fails to reach achieve customary status comparative to
State definitions.

V. Conclusion

This essay has demonstrated that the definition of self-defence has evolved both in regards to State
or national defence and also for the purposes of individual or unit for UN peacekeeping operations.
Whether the current definitions exist under customary status has been evaluated, but this has not been
found. While the inherent right of self-defence enjoys customary status,72 the broadened definition by
the UN to include defence of the missions’ mandate does not hold customary status in international
law. This premises on the legal ambiguity of justifying use of force for humanitarian purposes. Thus,
the UN position is analogous to that of humanitarian intervention for crises (or even Responsibility to
Protect, or R2P).73 While there have certainly been instances where humanitarian interventions have
been carried out, the vast majority fall under the auspices of the UN organizations and have not
achieved customary status as many States dispute the legality of these actions.

Consequently, while self-defence exists as a well-acknowledged customary principle,74 this

pertains to narrow definitions constrained to the specific scope of responding with force to defend
against armed attacks. Broader definitions, employed by the UN as in defence of the operation’s
mandate,75 however, and the State level analogy to that of humanitarian intervention, have not been
met with wide consensus, neither as opinio juris, nor with consistent or fairly uniform practice. Present

68
Hosang, 418-419; Oswald, 1032
69
Traditionally, personal self-defence is individual, unit is group or national, but now extended is mission or mandate.
70
North Sea Continental Shelf, Judgment, ICJ Reports 196 [74, 77] See also the 1950 Asylum case where the Court determined
that customary rules must be constant and uniform; International Court of Justice, "Colombian-Peruvian asylum case, Judgment
of November 20th 1950 : ICJ Reports 1950, 14
71
Border and Trans-border Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, ICJ Reports 1988
[184, 186]
72
Cox, 256
73
Cox, 258, 268
74
Trumbull IV, 122, 133
75
Whether expressly authorized as such in the mandate, or carried out during the operation in practice

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practice demonstrates the conflated balance between having a set mandate with an expressed legal
basis for defensive measures and ad hoc adoptions necessitated by practice, leading to legal uncertainty
and inconsistency.

Expanding the definition of self-defence to include defence of the mandate is legally problematic
as i) really any activity can be rationalized or justified to be in defence of the mandate; ii) this results
in practical inconsistency as the decision to use force in defence of the mandate will be subject to
individual decisions by commanders; iii) expanding the definition of self-defence to include a
theoretical construct such as a ‘mandate’ or thesis of a mission as opposed to personal or unit self-
defence on an ad-hoc basis is unnecessarily broad and lacks secure foundation; iv) this expanded
definition opposes the principle purpose of UN peacekeeping as predicating on consent and
impartiality.76

76
Cox, 269-70, 272, 3; Shaw, 1234, 1235