Gazing in the Congo (DRC): the dark heart of Africa (2006-2017)

[jmm99]

The questions raised by Oswald still seem to be open; see Ashley Deeks, How Does the UN Define “Direct Participation in Hostilities”? (October 21, 2013):

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:

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.

If the UN is consistent with the policies it "recommends" for others (mostly invoked in criticism of the US "war paradigm"), one would predict that the UN would follow its own guidance, as in Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (by Ben Emmerson, 18 Sep 2013), which calls for "strict compliance" with IHL; and adopts the ICRC "direct participation" standard:

Differences of view about the forms of activity that amount to direct participation in hostilities under international humanitarian law will almost inevitably result in different assessments of civilian casualty levels. The Special Rapporteur adopts herein the interpretative guidance on direct participation in hostilities promulgated by the International Committee of the Red Cross (ICRC) in Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (Geneva, ICRC, 2009); see paras. 69-72.

Melzer's "Interpretive Guidance" adopted the most restrictive test for "combatants" (and, conversely, the most expansive test for "civilians"). The 2009 ICRC's "Interpretive Guidance" was and still is controversial; e.g., as per these snips from pp. 65, 67:

Measures preparatory to the execution of a specific act of direct participation in hostilities, as well as the deployment to and the return from the location of its execution, constitute an integral part of that act.
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A deployment amounting to direct participation in hostilities begins only once the deploying individual undertakes a physical displacement with a view to carrying out a specific operation. The return from the execution of a specific hostile act ends once the individual in question has physically separated from the operation, for example by laying down, storing or hiding the weapons or other equipment used and resuming activities distinct from that operation.

The ICRC wholeheartedly endorses the concept of the "transitory guerrilla" (aka "freedom fighter"), which has morphed the Laws of War since the 1977 APs to the GCs.

The second major point made by Ben Emmerson is this:

24. The Special Rapporteur does not use the expression “targeted killing” herein because its meaning and significance differ according to the legal regime applicable in specific factual circumstances. In a situation qualifying as an armed conflict, the adoption of a pre-identified list of individual military targets is not unlawful; if based upon reliable intelligence it is a paradigm application of the principle of distinction. Conversely, outside situations of armed conflict, international human rights law prohibits almost any counter-terrorism operation that has the infliction of deadly force as its sole or main purpose (A/HRC/14/24/Add.6, paras. 28 and 32-33). The threshold question therefore is not whether a killing is targeted, but whether it takes place within or outside a situation of armed conflict (see paras. 62-68 below).

Here, there is added UN guidance in Philip Alston, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, with Addendum: Study on targeted killings (A/HRC/14/24/Add.6):

Summary

In recent years, a few States have adopted policies that permit the use of targeted killings, including in the territories of other States. Such policies are often justified as a necessary and legitimate response to “terrorism” and “asymmetric warfare”, but have had the very problematic effect of blurring and expanding the boundaries of the applicable legal frameworks. This report describes the new targeted killing policies and addresses the main legal issues that have arisen.
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28. Whether or not a specific targeted killing is legal depends on the context in which it is conducted: whether in armed conflict, outside armed conflict, or in relation to the interstate use of force. The basic legal rules applicable to targeted killings in each of these contexts are laid out briefly below.

Drawing "a line" between what is and what is not an "armed conflict" (aka "war") has its restrictive proponents and its expansive proponents. The logic tends to be a priori - which some admit, and others do not.

Finally, these recent NGO reports follow the Alston-Emmerson construct based on Melzer's "direct participation" argument: Amnesty International’s “Will I Be Next?” - US Drone Strikes in Pakistan; investigates nine drone strikes in North Waziristan between January 2012 and August 2013; and Human Rights Watch’s “Between a Drone and Al Qaeda” - The Civilian Cost of US Targeted Killings in Yemen; examines six drone strikes in Yemen, one from 2009 and the remaining five from 2012 and 2013.

So, what policy will the UN adopt for its FIB ? What ROEs will that force likely follow in the real operational world ?

Regards

Mike