One theme of Ben Emmerson’s interim report on remotely piloted aircraft and targeted killings is that governments must be more transparent with regard to any civilian deaths they cause. It’s easy to find lots of other calls for greater transparency on related issues. For instance, many have urged the United States to be more transparent with regard to who the United States believes it can target as a matter of international law, where geographically it believes it may use lethal force, which forces count as “associated forces” for purposes of the Authorization for the Use of Military Force, and so on.
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In March 2013, the Security Council authorized a “Force Intervention Brigade” (FIB) as a military unit within MONUSCO, the UN stabilization mission in the Democratic Republic of Congo. The FIB was established to perform (and continues to undertake) offensive actions against rebel groups that were fighting the Congolese army, including the M23 group.
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(One difference between the FIB and a future offensive force in Somalia is that the FIB falls squarely within a UN-led mission, while AMISOM in Somalia is AU-led, though the UN provides it with logistical support.)
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... First, there are targeting questions. In the Congolese context, how does the FIB decide when some set of actors becomes a rebel group covered by the Resolution? (The Resolution authorizes force against “all armed groups” without providing any additional guidance.) How does the UN (or the troop-contributing countries) interpret the concept of “direct participation in hostilities”? Who count as “members” of organized armed groups? Which members perform “continuous combat functions”? By what metric do the UN forces contemplate and calculate permissible levels of civilian deaths when conducting proportionality analyses?
Second, there are likely to be detention questions. ...
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What if the person detained poses a security threat to the UN forces but it is not clear that his action is criminal under Congolese law? On the flip side, what if the FIB worried that the DRC would mistreat a particular detainee if it transferred him to Congolese forces? Must it nevertheless surrender custody to the host government? Must the UN forces take into account Congolese law, and how do they educate themselves about that law? How has this all played out in practice? How might it play out in the Somalia context?
In a useful
ASIL Insight, Professor Bruce Oswald wrote:
Quote:
As a starting point, it is reasonable to assume that the [FIB] will apply the UN “Interim Standard Operating Procedures: Detention in United Nations Peace Operations” when dealing with detainees. As these Procedures are over two years old, they may be updated to reflect more recent detention principles and guidelines such as found in the “Copenhagen Process: Principles and Guidelines concerning detention in non-international armed conflict and peace operations.” Furthermore, it is also reasonable to assume that, consistent with the UN’s past practice, the Brigade will transfer the armed group members that they have captured to the DRC authorities.
As far as I know, the Interim SOPs are not publicly available. If they are, I would welcome a link to them. A UN publication reported that the Interim SOPs were to be reviewed after 12 months and finalized, but that seems not to have happened.
Based on second-hand reporting, the SOPs apparently do not contemplate non-criminal detention by UN forces for more than 72 hours, except in rare circumstances. One can easily imagine cases in which that rule would prove problematic for the self-protection of FIB forces.
