Legal Challenges for UN Peacekeepers Protecting Civilians in South Sudan
When conflict broke out in South Sudan in December 2013, the UN Mission in South Sudan (UNMISS) opened its doors to tens of thousands of displaced persons fleeing ethnic and political violence, a situation unprecedented in terms of its scale: in more than a decade of protection mandates, peacekeepers have never provided protection to so many civilians in so direct a manner. Today, the number of internally displaced persons (IDPs) under UN protection has passed the 100,000 mark. Unlike traditional settings for refugees or IDPs, these displaced people are living under the watch of armed peacekeepers. While UNMISS has generally succeeded in providing protection to those within the camps from threats posed by organized armed forces, its ad hoc camps have also resulted in significant overcrowding, poor health conditions, and, as this piece focuses upon, crime.
This piece will examine the legal basis for UNMISS protection as well as its basis for maintaining order within its own facilities. Lacking an “executive mandate,” UNMISS does not have the authority to prosecute criminals, and yet the only alternative for justice—the government of South Sudan—has been implicated in massive human rights violations, often targeting certain IDP groups because of their ethnicity. This situation raises critical questions about UNMISS’s authority to maintain public safety, detain individuals, and hand these detainees over to the government without breaching the principle of non-refoulement.
The ongoing situation in South Sudan is as grave as it is complex. In brief, fighting broke out between factions of the Presidential Guard loyal to South Sudan’s President, Salva Kiir, and its Vice President, Riek Machar, in the capital of Juba on December 15, 2013. By the morning, fighting had spread to other military units in Juba and President Kiir appeared on national television to announce that there was an attempted coup against him. Hundreds of civilians in Juba began seeking shelter and safety from the fighting that ensued. Within days, fighting spread to other states, with thousands more civilians seeking refuge at UNMISS facilities in those areas. What began as a political confrontation quickly took on an ethnic dimension, resulting in divisions within the military. Since December 2013, the UN mission and NGOs have documented grievous human rights violations by both sides and more than a million South Sudanese have been displaced.
By January 2014, more than 80,000 civilians had sought refuge inside UNMISS bases. Unlike UNHCR, UNMISS was the only armed UN presence in South Sudan, and thus the peacekeeping mission was in the unique position of providing physical protection to civilians fleeing conflict on a significant scale. However, the UNMISS facilities were designed to accommodate at most hundreds of people. Humanitarian organizations, including Medecins Sans Frontiers, who often keep their distance from peacekeepers to avoid being identified with armed actors, took the rare step of providing humanitarian assistance within the overcrowded UNMISS bases. Yet, in the words of a UNICEF emergency specialist, the situation in UNMISS facilities was a “time bomb.”
Immediate Reaction: Protecting Civilians and Upholding Non-Refoulement
By allowing civilians inside its compounds, UNMISS implemented its mandate to protect civilians under threat of physical violence. This mandate highlights that civilian protection is a strategic goal and provides tools to achieve this goal—“all necessary means”—including the use of force under Chapter VII of the Charter.
With the massive influx of civilians into UNMISS bases, the mission was faced with a situation of potential “refoulement”: the forcible return of a person to a place where their basic human rights would be at risk. The prohibition of refoulement is best known from the 1951 Refugee Convention, where it is mentioned by name, but it was enshrined two years earlier in the Fourth Geneva Convention as well as later human rights instruments.
While debates continue over whether or to what degree peacekeepers are bound by international legal standards, including the principle of non-refoulement, the UN Secretary-General has made it clear that peacekeepers will comply with international humanitarian law (IHL) voluntarily and many UN standards match or exceed the minimum required by international law. UN policies for detention, for instance, uphold the principle of non-refoulement. The UN detention procedures, however, emphasize that the UN’s role should be a temporary one, recognizing that UN missions are generally not mandated or resourced to be judges or jailers, and that the primary human rights duty bearer is the host state.
The Challenges of Protection
The influx of IDPs placed UNMISS in a challenging position because, as in all such missions, it relies upon cooperation with the host government, South Sudan. While the blue-helmeted soldiers may be “world police” in the popular imagination, peacekeepers are only deployed with the consent of the host governments. Where the host country’s consent is given under international pressure, such as in Darfur, missions face significant challenges in implementing their mandate. Some UN missions, such as in Kosovo, had an “executive mandate,” effectively allowing UN peacekeepers, police, and other staff to administer the territory that would become Kosovo. UNMISS, however, was established to support, not replace, the government of South Sudan, and the mission lacks executive powers.
In addition to the general deterioration of sanitation facilities and crowded shelters, crime also soon became a problem. Many IDP leaders worked to establish impromptu community watch programs and UN Police patrolled the camps, but patrols alone did not deter crime. UNMISS needed to maintain security for IDPs as well as to UNMISS staff, but the mission was not authorized or resourced to perform criminal justice functions. Ordinarily, if peacekeepers detain someone, the primary objective is to facilitate hand-over to government authorities. In this case, however, were UNMISS to return criminals to the government of South Sudan, the act may have violated the principle of non-refoulement, as the IDPs, including the criminals amongst them, had sought protection from persecution. There was, moreover, little hope that criminals of the “wrong” ethnicity would get fair treatment in South Sudan’s courts and prisons.
UNMISS was thus faced with difficult questions regarding how to best deal with IDPs who committed crimes under its auspices: Which law should apply? What criminal justice process, if any, should be followed? Under IHL, occupying powers can (and must) provide public order and internationally recognized guarantees of due process. Yet military forces must meet a standard of belligerence to be considered occupiers (even if territory is taken by the peaceful surrender of the occupied), a criterion that peacekeeping missions generally do not meet because they act with host state consent. While relations between UNMISS and the Government of South Sudan no doubt reached a nadir during this period, the mission’s Status of Forces Agreement (SOFA) remained in place and the mission leadership and the government maintained regular political relations.
The UN quickly determined that South Sudanese law applied to crimes committed within UNMISS bases, yet absent an executive mandate, or implied powers as an occupier, UNMISS did not have a legal basis to establish a criminal justice system independent of the Government. It instead focused its efforts on its priority mandate: protecting civilians. This meant utilizing the narrow authority provided under its SOFA to maintain safety and security within its premises. It also resulted in the development of guidelines to ensure that, where the mission considers handing over criminals to the government, the mission undertakes assessments to prevent refoulement. As Human Rights Watch has noted, these practices may not always have been followed.
The mission’s solution remains a work in progress, forged in the heat of crisis and implemented in the most difficult of circumstances. Whatever the merits or shortcomings of this particular response, the Department of Peacekeeping Operations (DPKO) and its partners should be more readily engaged in providing better-defined guidance for future crises. Indeed, the Security Council appears to have recognized the importance of providing missions a degree of authority through its mandate for the UN Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA). There, the Council has authorized peacekeepers facing widespread ethnic violence and a government that is near total collapse to take “urgent, temporary measures” to address issues of law and order.
Peacekeepers find themselves more frequently sent to address ongoing conflicts than in the past with the protection of civilians as a primary goal. In such environments, the challenges faced by UNMISS over the past ten months and the legal questions raised are certain to resurface. While peacekeeping is always context-sensitive, its legal framework would benefit from clarification of peacekeepers’ powers and duties, such as a lex specialis for peacekeeping or greater policy development. Between the Security Council’s capacity to create legal direction for peacekeepers on overarching questions and DPKO’s ability to provide policy guidance, establishing practical answers to these challenging questions is an achievable goal.
About the Author: Ralph Mamiya is a lawyer, currently co-editing The Protection of Civilians in International Law with Oxford University Press, who served with the UN for seven years in Sudan, South Sudan, and New York.
 Andrew Gilmour, The Future of Human Rights: A View from the United Nations, 28 Ethics and International Affairs 23, 243–244 (2014).
 Waakhe Simon Wudu, Fearing New Fighting, South Sudanese Pour into UN Camps, Voice of America (July 3, 2014, 2:04 PM), www.voanews.com/content/south-sudan-idp-unmiss-camps-unrest/1950405.html.
 See, UN Sets up New Detention Center for Criminals at Malakal Camp, Radio Tamajuz (July 23, 2014), https://radiotamazuj.org/en/article/un-sets-new-detention-centre-criminals-malakal-camp.
 For a more complete history, see U.N. Secretary-General, Report of the Secretary-General on South Sudan, U.N. Doc. S/2014/158 (March 6, 2014), available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2014/158.
 See Daniel Howden, South Sudan Fighting Forces Civilians to Seek Refuge at UN Bases, The Guardian (Dec. 17, 2013, 5:31 PM), http://www.theguardian.com/world/2013/dec/17/south-sudan-fighting-civilians-refuge-un-bases.
 See United Nations Mission in South Sudan, Conflict in South Sudan: A Human Rights Report (May 8, 2014), available at www.unmiss.unmissions.org/Portals/unmiss/Human%20Rights%20Reports/UNMISS%20Conflict%20in%20South%20Sudan%20-%20A%20Human....
 U.N. Office for the Coordination of Humanitarian Affairs, South Sudan Crisis Report as of 30 January 2014, (January 30, 2014), http://reliefweb.int/report/south-sudan/south-sudan-crisis-situation-report-30-january-2014-report-number-15.
‘Time Bomb’ in South Sudan Camp, United Nations Radio (Mar. 26, 2014), www.unmultimedia.org/radio/english/2014/03/time-bomb-in-south-sudan-camp/#.U-g4xYBdXmU.
 See S.C. Res. 1996, ¶ 3(b)(v), U.N. Doc. S/RES/1996 (July 8, 2011); S.C. Res. 2109, ¶ 8, U.N. Doc. S/RES/2109 (July 11, 2013).
 See Haidi Wilmot and Ralph Mamiya, The Protection of Civilians and Security Council Practice, in The Oxford Handbook of the Use of Force in International Law (Marc Weller and Alexia Solomou eds., 2014) (forthcoming).
 Convention Relating to the Status of Refugees, art. 33, July 28, 1951, 189 U.N.T.S. 137.
 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art. 45(4), Aug. 12, 1949, 75 UNTS 287 [hereinafter Fourth Geneva Convention].
 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3, Dec. 10 1984, 1465 U.N.T.S. 85.
 Bruce Rashkow, Remedies for Harm Caused by Peacekeepers, AJIL Unbound (Apr. 2, 2014, 3:55 PM), www.asil.org/blogs/remedies-harm-caused-un-peacekeepers.
 See U.N. Secretary-General, Bulletin on Observance by United Nations Forces of International Humanitarian Law, U.N. Doc. ST/SGB/1999/13 (Aug. 6, 1999).
 See Bruce Oswald, The Security Council and the Intervention Brigade: Some Legal Issues, ASIL Insights (Jun. 6, 2013), http://www.asil.org/insights/volume/17/issue/15/security-council-and-intervention-brigade-some-legal-issues.
 U.N. Department of Peacekeeping Operations and Department of Field Support, UN Peacekeeping Operations: Principles and Guidelines (2008).
 See Victoria Holt & Glyn Taylor, Protecting Civilians in the Context of UN Peacekeeping Operations: Successes, Setbacks and Remaining Challenges, The Department of Peacekeeping Operations and the Office for the Coordination of Humanitarian Affairs (2009), available at http://www.peacekeepingbestpractices.unlb.org/PBPS/Library/FINAL%20Protecting%20Civilians%20in%20the%20Context%20of%20UN... .
 Colum Lynch, Special Report into the Darfur Genocide, Part I: They Just Stood Watching, Foreign Policy (Apr. 7, 2014), http://www.foreignpolicy.com/articles/2014/04/07/special_report_darfur_united_nations_peacekeeping_investigation.
 S.C. Res. 1244, para. 9–11, U.N. Doc. S/RES/1244 (June 10, 1999).
 Fourth Geneva Convention, supra note 12, art. 64–78; see also Tristan Ferraro, Determining the Beginning and End of an Occupation under International Humanitarian Law, 94 Int’l Rev. Red Cross 133, 136 (2012).
 Bruce Oswald, The Law on Military Operations: Answering the Challenges of Detention during Contemporary Peace Operations, 8 Melbourne J. Int’l. L. 311 (2007), available at http://www.law.unimelb.edu.au/files/dmfile/download01a11.pdf; Chris Faris, The Law of Occupation and Human Rights: Which Framework Should Apply to United Nations Forces?, 12 Austl. Int’l. L. J. 58, 61–67 (2005).
 South Sudan’s New War: Abuses by Government and Opposition Forces, Human Rights Watch 76–80 (Aug. 11, 2014), available at www.hrw.org/reports/2014/08/11/south-sudans-new-war.
 S.C. Res. 2149, para. 40, U.N. Doc. S/RES/2149 (Apr. 10, 2014).
 Oswald, supra note 22; Naz Modirzadeh, The Dark Sides of Convergence: A Pro-Civilian Critique of the Extra-Territorial Application of Human Rights Law in Armed Conflict, 86 Naval War C. Int’l L. Stud. 349, 398–400 (2010).