Background to the Study
Conflict has been a part of man since creation, and man has always tried to solve the problem of conflicts or to reduce their impact on humanity. The whole essence of the international Humanitarian law was created to limit the effects of armed conflicts.Humanity since then, she has found that it can be difficult to completely eliminate conflicts, including armed conflicts. conflicts therefore need to have laws that could limit their devastating effects on people.
Formation of the League of Nations January 10, 19201 and the United Nations The organization (UN) of October 24, 19452 contributed to reducing the number of wars between nations, but it remains the monster of internal conflicts in the Nations, which, according to all signs, was not very expected by the founders of these organizations. The UN has generally accepted the traditional peacekeeping where the conflict is usually between states, but after the end of the Cold War, the nature of peacekeeping changed. Conflict has changed more internally, and the nature of the fights has also changed to an asymmetrical style.
The UN began to deal with armed groups in non-international armed conflicts within the state and
instead of protecting the peacekeepers, they were attacked. Boutros Ghali marked the problem in his peace program in this way:
Many of today’s conflicts occur within states rather than between states… and in the newly independent states there are a lot of wars, often of a religious or ethnic nature and often associated with unusual violence and brutality… interstate wars have become rare. The main characteristics are that they are usually fought not only by regular armies, but also by militias and armed civilians with weak discipline and well-defined chains of command. These are often guerrilla wars without clear front lines. Civilians are the main victims and often the main targets. Humanitarian emergencies are commonplace and the fighter
The UN launched its first peacekeeping operation in the Middle East in 1948 and has since launched 68 peacekeeping missions around the world.4 the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA) is one of the youngest UN missions, created under Chapter VII of the United Nations Charter to support political processes in that country and perform a number of security-related tasks.5
The Battle of Solferino, known in Italy as the Battle of Solferino and San Martino on June 24, 1859, highlighted the urgent need to take care of the wounded in battle and reduce the impact of the armed conflict on humanity.6 the suffering of the wounded and the other negative consequences of this battle, which served as the basis for the formation of the International Committee of the Red Cross (ICRC), also determined the nature of what international humanitarian law will eventually become. International humanitarian law applies to MINUSMA on the basis of the Secretary-General’s Circular on compliance by the United Nations forces with international humanitarian law.’7 it is assumed that the application of international humanitarian law in the United Nations mission should limit the impact of the armed conflict on people in the region. However, it is regrettable to note that between July 2013, the date of the creation of the mission, and June 2017, 120 UN soldiers were killed, of which 80 were killed by hostile elements.8 in addition, 300 UN soldiers were injured, 12 civilians were killed and 20 were injured by rebel armed groups in the country.Nine of the non-state armed groups that organized the massacre lost only about five people whose deaths did not take place.
called neither by the UN, nor by the armed forces of Mali, but by themselves while they were driving the improvised explosive device transported and powered the vehicles of the suicide missions in the UN camps.10 The consequences of these attacks on the Malian civilian population have been devastating. In addition to their deaths, these attacks have also weakened the ability of UN troops to protect them. International humanitarian law prohibits all means and methods of warfare that do not distinguish between those participating in hostilities and those that, for example, civilians who do not participate, cause unnecessary injury or suffering, as well as those that also cause serious or lasting damage to the environment.The International Committee of the Red Cross (ICRC) recognizes the difficulties encountered in the application of international humanitarian law. It says that, given that this set of laws is applied in times of extreme violence, the application of the law will always be very difficult.‖12 consequently, the application of international humanitarian law to MINUSMA poses many problems. Among the problems, we can mention the unilateral application of the law, in which minusma personnel respect the provisions of the LAW, while some non-state armed groups break the rules with impunity without any consequences. Others are the classification by the ICRC of MINUSMA as parties to the armed conflict in Mali.Il there is also the question of whether international humanitarian law applies to peacekeepers, whether they are parties to the conflict or not, and a realistic definition of international humanitarian law in the context of the Malian armed conflict. The root causes of the conflict in Mali, which reduce the effects of international humanitarian law, also pose problems. Likewise, it is necessary to review the legal practice of international humanitarian law according to the nature of armed conflicts in the current world, with a particular emphasis on Mali.
Ladand defines international humanitarian law as international norms established by treaties or customs that restrict the right of parties to a conflict to use methods or means of warfare of their choice, or that protect States not parties to the conflict or people and facilities affected or likely to be affected
conflict.↑ 14arto points out that-IHL is directly challenged by the new concept of world war launched against an unidentified and geographically dispersed enemy.15 Although Article 3 of the Geneva Convention applies to non-international armed conflicts, its application poses a problem in Mali, since most non-state armed groups do not respect it. In addition, although the United Nations Mission in Mali operates in accordance with Chapter 7 of the United Nations Charter, which implies the use of all necessary means to fulfill its mandate, it does not yet act as a coercive mission for peace, which allows non-state armed groups to act with impunity and without regard to the principles of international humanitarian law.
Ladan16 in other works, peacekeeping operations (PSO), citing Wilkinson and McKinley, are multifunctional operations in which impartial military action is designed to create a safe environment and facilitate the efforts made by the civilian elements of the mission to create an autonomous peace. It can be the maintenance of peace, the; imposition of peace, conflict prevention, peacekeeping, peacebuilding and humanitarian operations.‖ Peacekeeping operations include operations under the command and control of the United Nations, such as MINUSMA.The armed conflict in Mali is multifaceted and arose from accusations by the central government of neglecting the northern region.18 the Tuareg struggle for autonomy in northern Mali preceded Mali’s independence in 196019 the African stabilization mission in Mali (MISMA) was reformed into MINUSMA20.
Statement of the Research Problem
The research problem is whether or not the application and observance of IHL by only UN peacekeepers and compliant armed groups in Mali without the non-compliant armed groups‘ adherence to IHL poses a challenge to the application of the law. The compliant armed groups include MouvementNationale pour Liberation d‘Azawad (National Movement for the Liberation of Azawad (MNLA), MouvementArabe de l‘AZAWAD (Arab Movement for the Azawad) (MAA) and Haut Conseil pour l‘Unité de l‘AZAWAD (Supreme Council for the Movement of Azawad) (HCUA). The non-compliant armed groups include AnsarEddine and Al-Mourabitoun among others.21This is also in view of the classification of MINUSMA as a party to the armed conflict in Mali by the International Committee of the Red Cross (ICRC).22 Another aspect of the research problem is whether there is any prospect in the application of IHL in the Malian armed conflict with regard to the current lopsided observance of the law.ICRC and other international bodies strive to ensure that the UN, Government forces and compliant armed groups comply with the provisions of IHL but do not do the same with the non-compliant armed groups. Over 10,000 troops from 50 countries23 are deployed for PSO in Mali and the situation is not getting any better.MINUSMA has been classified as the most dangerous UN mission in the world, 24in spite of the number of troops deployed therein. The non-compliant armed groups have continued to launch several indirect fire attacks of mortar and rockets into MINUSMA camps using villages occupied by civilians as their base, killing several peacekeepers.25They have also been killing innocent civilians who are not involved in combat. In obedience to IHL, MINUSMA Force is prohibited from returning fire in those instances in order to avoid killing civilians. The MINUSMA Rules of Engagement (ROE)
provide that ―positive identification of hostile forces prior to engagement is required. Unobserved indirect fire is prohibited.‖26The Mission in an effort to comply with the application of IHL in the face of non-compliant armed groups that do not care about the law has continued to lose UN personnel and civilians to those armed groups in the country hence the need to deeply study these challenges and proffer solutions.
In view of the foregoing, the following research questions are raised:
- What are the mandatory rules of engagement in PSO under IHL?
- How do the armed groups in Mali carry out their operations?
- What are challenges to the application of IHL in the Malian armed Conflict?
- What are the needed steps to be taken to ensure compliance with IHL in the Malian armed Conflict?
- What is the responsibility of MINUSMA in entrenching IHL in Mali?
Aim and Objectives of the Research
Arising from the statement of the research problem, this work aims at establishinghow IHL is meant to apply in PSOs with particular reference to MINUSMA as a case study. This is meant to achieve the following objectives:
- To examine the mandatory rules of engagement in PSOs under IHL.
- To examine how the armed groups in Mali carry out their operations.
- To examine the challenges to the application of IHL in the Malian armed Conflict.
- To highlight the needed steps to be taken to ensure compliance with IHL in the Malian armed Conflict.
- To suggest better ways to apply IHL in MINUSMA for a quicker resolution of the armed conflict in Mali.
Scope and Limitation of the Research
This work covers the application of IHL in MINUSMA. This will include challenges and prospects. In terms of legal framework, it covers the provisions of IHL and all other legal
- MINUSMA Rules of Engagement March 2017, p. 4.
instruments applied in the PSO in Mali. The geographical scope covers Mali wherein the MINUSMA is operating. In terms of time, it covers pre-MINUSMA period as a background to the conflict and up to 2017 and beyond in certain circumstances. This study will equally touch on diverse views of many scholars with regard to the application of IHL in PSO, especially the heated argument as to whether IHL should even apply to a peacekeeping mission, making the peacekeepers lawful targets, where the Force plays a defensive role as it does in Mali. In terms of limitations, while it was possible to know the demands and mode of operation of the compliant armed groups that were signatories to the Algiers Peace Accord,27 those of the non-compliant armed groups were hardly known. It was not possible to visit the camps of the non-compliant armed groups to study their mode of operations except to experience their devastating acts of violence after they had occurred. These were major limitations to the research.
1.5 Research Methodology
This work is based on doctrinal and teleological research methods. In terms of doctrinal research methodology, the researcher made use of conventions and UN Charter as primary sources and textbooks, journals and articles as secondary sources. With regard to teleological research methodology, this researcher made use of his practical experience as MINUSMA Force Legal Adviser between 2015 and 2017. This involved training UN and state armed groups on the provisions and applications of IHL especially concerning the Secretary General‘s Bulletin on the Observance of IHL by UN troops.
1.6 Justification of the Research
Harzards of war in Mali have been devastating to the citizens of the country. The northern part of the country has been without significant government presence. This research will be of great benefit to the Malian populace, the UN, the ICRC, academics in the field of
- Accord Pour la Paix et la Réconciliation au MaliIssu du Processus d‘Algier, 24 July 2014.
IHL and students. This is achieved by clearly bringing out what IHL expects from UN troops, state armed groups and non-state armed groups in Malian armed conflict, highlighting what they are doing so far and recommending the way forward. The non-state armed groups have been exploiting the gap of non-full implementation of peace enforcement mandate of MINUSMA under Chapter VII of the UN Charter to cause havoc in Mali. The outcome of the study will also be available for other PSOs to emulate in order to make IHL easily practicable and ultimately reduce the effect of armed conflict on humanity. It will also be of great benefit to all those who seek for quick resolution of armed conflicts which are springing up in most countries in Africa and around the world. So many armed groups in Mali, especially the non – compliant armed groups are killing peacekeepers and civilians at will, knowing that while they do not observe any law, MINUSMA is highly restrained from acting while trying to comply with the tenets of IHL hence the need to proffer solutions to the problem.
The application of IHL in peace operations has generated a lot heated arguments among scholars and many of the views are divergent. Many of the writers, while leaning heavily on protecting their own side of the story left the spirit behind IHL which is to reduce the effect of armed conflict on humanity. If armed conflict is stopped, that completely removes the suffering experienced in war for both combatants and non-combatants alike so any solution that stops or reduces armed conflict will equally be in line with the spirit of IHL. This work examines several literatures in this regard.Paradoxically, soldiers are trained to fight, using lethal weapons, yet they are used to restore peace in conflict zones. That was why the former Secretary General of the UN stated that ―peacekeeping is not a job for soldiers but only soldiers can do it.‖28Observance of IHL by troops in a PSO is more restraining than its observance in a conventional war. It requires extra training and sometimes, the troops become paranoid about even keeping the peace just to avoid breaking IHL rules. The UN has continued to observe IHL in all its missions. The list of the 68 missions in which the UN has engaged in, including that of Mali, containing the period the mission began and ended and those ongoing are contained in this Thesis.
Ferraro30 observed that:
There is therefore a general assumption that multinational forces are boundby IHL rules in the same manner as their adversaries and that the principleof equality between belligerents remains valid in the armed conflicts in which they are engaged. Abandoning the principle of equality betweenbelligerents or nuancing it, would have adverse effects on parties‘ respect for IHL, since non-state armed groups would have little incentive to comply with IHL if all attacks on peace forces were deemed unlawful.
There is a gap in this view which this work will fill. The belligerents in Mali, especially
the non-compliant armed groups do not respect IHL. They target peacekeepers even without
being provoked.31 No international organization has any overt meeting with them and if one is
talking of equality of application of IHL rules, there should at least be a contact with the other
party and for non-compliant armed groups in Mali, there is no such overt contact. The view
above is equally classifying multinational forces as belligerent forces when he averred that the
principle of equality which applies to belligerents should apply to multinational peacekeeping
forces. These forces were selected by the world body to restore peace in the area. Classifying
them as belligerent does not suit the purpose for which they were deployed.
In terms of whether IHL applies to the peace operation in Mali, involving multinational
forces, this researcher agrees with Ferraro in his support-based approach wherein he submitted
that IHL applies in Non-International Armed Conflict (NIAC) when the following conditions are met:
Emmanuel Onyekachi UGWU (2021) AN APPLICATION OF INTERNATIONAL HUMANITARIAN LAW IN PEACE SUPPORT OPERATIONS: A CASE STUDY OF UNITED NATIONS MISSION IN MALI. A phd THESIS SUBMITTED TO THE SCHOOL OF POSTGRAGUATE STUDIES
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