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REFUSAL OF UN PEACEKEEPING MISSIONS FOR SECURITY MISSIONS IN CONFLICT COUNTRIES AS A VIOLATION OF INTERNATIONAL LAW
RODON PEDRASON1 ■ ADHI IMAN SULAIMAN2 , YOGI MUHAMMAD RAHMAN4-, BELARDO PRASETYA4
MELLISA TOWADI5
Lecturer, Faculty of Defense Strategy, Indonesian Defense University, Bogor - Indonesia1 Lecturer, Faculty of Law, Jendral Soedirman University, Purwokerto - Indonesia2 Lecturer, Faculty of Law, Galuh University, Ciamis - Indonesia3 Lecturer, Faculty of Law, Sultan Ageng Tirtayasa, Banten - Indonesia4 Lecturer, Faculty of Law, Gorontalo State University, Gorontalo - Indonesia5 rodonpedrason65@gmail.com1 adhi.sulaiman@unsoed.ac.id2
yogi@unigal.ac.id3 belardoprasetya@untirta.ac.id4 mellisatowadi@ung.ac.id5
Abstract - Arrangements for peacekeeping forces can be found in the UN Charter, in particular Article 1 of the Charter, which sets out its mission objectives as a form of world peace. As the oldest subject of international law, the state, in the essence of international relations, cannot be separated from internal and external conflicts. Thus, this kind of conflict could threaten international peace and security. Therefore, it is important to study international legal review of the rules of world peacekeepers in conflict countries and the rejection of world peacekeepers in conflict countries within the framework of international law. The research method used is normative legal research with statutory and conceptual approaches. This study concluded that These peacekeepers could participate in countries experiencing conflict, regulated by UN Security Council decisions through their resolutions. The peacekeeping force also has several main principles, such as the agreement of the parties, impartiality, and not using force except for self-defence and maintaining the mandate of resolutions and a state that rejects the presence of peacekeepers is included in violations of international law; rejecting the results of a joint agreement against UN Security Council resolutions. The UN Security Council resolutions have been considered customary law and a source of international law with binding legal force.
Keywords: Rejection, Peacekeepers, Conflict.
Table of Contents
Introduction
1. Problem Identification
2. Research Purposes
3. Research Method
RESULT AND DISCUSSION
1. A Review of International Law Against the Rules of World Peacekeeping Forces in Conflict Countries
2. Rejection of World Peacekeepers in Conflict Countries Within the Framework of International Law
CONCLUSION ACKNOWLEDGEMENT
INTRODUCTION
The legal system was born from the existence of society and there is no society without a legal system, the purpose of which is to regulate the relations and problems of the community itself. In international law, there is also the international community and laws that regulate it. The characteristics
of international law are philosophically based, which are interpreted as teachings from natural law.1 This law was born and is interdependent with an agreement (ordinary social consciousness) as a shared responsibility to regulate relations in carrying out a legal system to apply, obey, to accept a norm as a legal obligation.2 Which cannot be ruled out and must be obeyed as a coercive rule of law.3
As Frederick's opinion, quoted by Brierly4 "The only necessary conditions for existence are the existence of a political community and the recognition by its members of settled rules binding upon them in that capacity. International law seems to satisfy these conditions altogether." This opinion emphasizes that international law is needed by the international community itself and is not static to develop the international community itself.
Jeremy Bentham, in 1780 gave the initial term of international law (international law) in his book "An Introduction to the Principles of Morals and Legislation."5 The terms and meanings of international law are very diverse and continue to develop from time to time.6 Brierly7defines the law of nations or international law as "as the body of rules and principles of action which are binding upon civilized states to their relations one year later". Furthermore, according to Mochtar Kusumaadmadja8, international law is the general rules and legal principles governing relations and issues that cross national boundaries that are not civil. Between country and country countries with non-state legal subjects or non-state legal subjects are mutually exclusive.
The state, which was initially born as a single subject of international law, is now overgrowing. With the addition of other international legal subjects, such as State9, International Organization10, International Red Cross11, Vatican12, Rebel (beligren)13, and Individuals. 14As the oldest subject of
1 Atip Latipulhayat, Hukum Internasional: Sumber-Sumber Hukum (Sinar Grafika, 2021).
2 Irawati Handayani, "Concept and Position of Peremptory Norms (Jus Cogens) in International Law: A Preliminary Study," Hasanuddin Law Review 5, no. 2 (2019): 2.
3 Zainal Abdul Azis Hadju, "Anotasi Spirit Unable Dan Unwilling Terhadap Kejahatan Perang Israel Palestina," Jambura Law Review 1, no. 2 (2019): 14.
4 David John Harris, "Cases and Materials on International Law," 1991, 1-6.
5 Jeremy Bentham, "An Introduction to the Principles of Morals and Legislation. Kitchener," Batoche Books 10 (2000): 30.
6 Peter Malanczuk, Akehurst's Modern Introduction to International Law (Routledge, 2002), 30.
7 James Leslie Brierly, Brierly's Law of Nations: An Introduction to the Role of International Law in International Relations (Oxford University Press, 2012), 1.
James Leslie Brierly
8 Mochtar Kusumaatmadja and Etty R. Agoes, Pengantar Hukum Internasional (Penerbit Alumni, 2021), 5.
Mochtar Kusumaatmadja and Etty R. Agoes
9The state as a subject of international law in a general sense is defined through four basic characteristics: Population; Region; Government and; Sovereignty. The totality of all citizens who live in a certain area, apart from other areas, which are under the government. Look, Aneta Stojanovska-Stefanova*& Drasko Atanasoski, State As A Subject Of International Law, Us-China Law Review Vol. 13: 25, 2015, p. 2
^International organizations are discussed from various perspectives to emphasize the importance of one or more issues regarding broad issues in the field of international law. The sui generis character of international organizations determines their importance as subjects of international law. See, Marko, International organizations as sui generis subjects of international law, Acta Politica Polonica nr 1/2021, p. 3
^The International Red Cross, based in Geneva, has its own (unique) place in the history of international law. It can be said that this organization as a legal subject (which is limited) was born due to history although later its position (status) was strengthened in the treaty and then the convention of the Red Cross (now the 1949 Geneva Convention on the Protection of War). Victim). See, Ridwan Arifin and Dhanny Saraswati, Zaeda Zulfa, International Committee of Red Cross versus International red Crescent: The Recent Practices as Subject International Law, Volume 1 Issue 2 July-December 2022, p. 5
12
The Holy See is the highest governing organ of the Catholic Church, representing it in the international arena, as a subject of international law, in carrying out bilateral agreements and multilateral agreements, as well as its role in international peace settlements. Look,Juan José Ruda Santolaria, Vatican and the Holy See, see,https://www.oxfordbibliographies.com/display/document/obo-9780199796953/obo-9780199796953-0128.xml, Accessed January 20, 2023
13Rebels or belligerents become subjects of international law when a group becomes a subject of international law. See, JG Starke, Introduction to International law, 9th Edn, London: Butterworths, 1984, p. 3 554-557
^International law undergoes a process intended to transform it into a legal system which views the individual as one of the main subjects of its efforts, it requires a certain international personality. Both privately and publicly, which are carried out in the territory of another country. Individuals have become limited subjects in international law because the latter has imposed on them certain obligations, the breach of which directly implies international criminal responsibility. See, https://www.lawyr.it/index.php/articles/international-focus/347-individuals-as-subjects-in-international-law, Accessed 20 January 2023
international law to date, the state cannot be separated from various existing problems. Carrying out the running of a sovereign government sometimes has its problems, both in internal and external aspects. Of course, this will have an impact on the stability of the state itself.
As described above, internal and external conflicts often occur in a country, thus. So the legitimacy of international law can be seen in sending UN peacekeepers to conflict countries. Sending peacekeeping troops aims to maintain regional stability in a country regarding security and humanity. UN peacekeepers sometimes often get collective rejection in several countries.
At the end of World War II, San Francisco formed the United Nations (UN) to save the next generation from habits in the form of war.15Furthermore, they decided to ensure, by accepting existing international law principles by various methods, that armed force should not be used, except for the common good.16 Some even argue that the very purpose of international law is to promote peace. 17
The general prohibition on the use of force stated in Article 2(4) of the UN Charter is accompanied by two exceptions: the right to self-defense as stated in Article 51 on authorization from the UN Security Council. The latter can be state powers to use force under Chapter VII or regional organizations under Chapter VIII. However, the use of force in the organs determined by the UN Security Council, namely peacekeeping operations.
Peacekeeping forces have never been regulated in the UN Charter. Therefore, the United Nations must find ways to protect and promote world peace and international security. In many cases, peacekeeping may be the most efficient and effective way to avoid protracted war.18 The United Nations has sixteen designated peacekeeping operations in the field worldwide. Since 1948, the UN has authorized sixty peacekeeping operations. The current operation relocates some 92,311 personnel, most of whom are military and police (76,726), and has an annual budget of approximately $5 billion. The objectives of these missions vary significantly throughout the year.19 Initially, international peacekeeping operations were intended to be mere "interposition" forces between warring parties which had succeeded in brokering ceasefires and enabling the parties to reach peace agreements.20
The United Nations has carried out some cease-fire monitoring. Some peacekeeping operations have been entrusted with broader observations, such as mandates (elections and transitions to democracy and peace processes), humanitarian crises and even conflict prevention. The most ambitious operations involve the administration of the entire region for a certain period, with the United Nations acting as a "government" in the sense that this term is used when referring to elements of a sovereign State. 21As happened in Cambodia (1991-1993)22, East Timor (I999-2002)23, and Kosovo (since 1999).24
The first UN peacekeeping operation, the United Nations Emergency Force (UNEF), was deployed in 1956 to separate the belligerents in the War of the Suez Canal.25 Therefore, settings peacekeeping has never been formally defined by a United Nations organ or its Secretariat. The UN in its mission makes it
15 United Nations, The Charter of the United Nations, Preamble (UN Charter)
16UN Charter, Preamble
17 Anna Spain, "Deciding to Intervene," Hous. L. Rev. 51 (2013): 51.
18 At least it has been rather popular. UN Peacekeepers were awarded the Nobel Peace Prize in 1988 with the motivation that "the Peacekeeping Forces through their efforts have made important contributions towards the realization of one of the fundamental tenets of the United Nations. Thus, the world organization has come to play a more central part in world affairs and has been invested with increasing trust.
19 United Nations, The Blue Helmets. A Review Of United Nations Peacekeeping, New York, UN, Department of Public Information, 1996, p. 3-9, See also, see also The Secretary-General, Report of the Panel on United Nations Peace Operations, 1$ 15-28, delivered to the Security Council and the General Assembly, UN Doc. A/ 5 5/ 305 -S/2ooo/8o9 Aug. 21, 2000
20 Mari Katayanagi, Human Rights Functions of United Nations Peacekeeping Operations, vol. 73 (Martinus Nijhoff Publishers, 2002), 42-54.
21Restatement (Third) Of The Foreign Relations Law Of The United States § 201,The American Law Institute Case Citations Rules and Principles Part 1 - International Law and Its Relation to United States Law,1987; see also Convention on Rights and Duties of States art. I, Dec. 26, 1933. Pp. 21-25
22 Jordi Sellarés Serra, "Administración Internacional de Un Estado Por Naciones Unidas: Camboya, 1991-1993" (PhD Thesis,
2002).
23 Jaume Saura, "Free Determination and Genocide in East Timor," Human Rights Review 3, no. 4 (2002): 49.
24 William G. O'Neill, Kosovo: An Unfinished Peace (Lynne Rienner Publishers, 2002), 16,37.
25 Andrzej Sitkowski, UN Peacekeeping: Myth and Reality (Praeger Security Intl, 2006), 22.
possible to adjust to the conflict that occurs.26The United Nations Charter is designed to deal with disputes and conflicts between sovereign states which are conflicts between states. During the post-cold war period, interstate conflicts were more common in peace support operations.27
The essence of changes in the dynamics of world politics which tend to be aspects of war, is increasingly challenging and demanding peace. Despite all the challenges, peacekeeping operations will continue to strive to facilitate the political process, protect civilians, assist in the disarmament, demobilization, and reintegration of combatants, protect and promote human rights and help restore the rule of law.
After the cold war, there was a rapid increase in peacekeeping operations. With the new consensus, the Security Council authorized 20 new operations between 1989 and 1994, increasing the number of peacekeepers from 11,000 to 75,000. The peacekeeping operation has come under fire. As peacekeepers encounter situations where warring parties fail to comply with peace agreements or when civilian casualties increase and hostilities continue, the reputation of UN Peacekeepers suffers.28
The United Nations conducted a vital exercise to examine peacekeeping challenges in the 1990s and introduced reforms to strengthen the capacity to manage and sustain operations effectively. With a better understanding of the limits and potential of UN Peacekeeping, to undertake more complex tasks. It started in 1999 when the UN served as administrator of Kosovo in the former Yugoslavia, Congo, East Timor, and East Timor, which was in the process of gaining independence from Indonesia.29
A peacekeeping force in a classic peacekeeping operation has the uncomplicated task of monitoring the demilitarized zone between the two armies after a war between countries over territory. The aim is to give both parties confidence that no one is taking advantage of the truce. The combatants had various weapons, but they were a disciplined military force that attacked each other rather than civilians. So that the peacekeepers are not targeted.30
Wars between countries for territory are sporadic nowadays. However, the cause of this kind of war occurs due to territorial disputes, which are very difficult to avoid. As a result, wars between countries have become a classic and endless issue, so the role of international law through peacekeeping forces is the primary key to the rescue. However, the presence of UN peacekeepers in conflict countries could run better, as described above. The essence of acceptance from the peacekeepers began to be rejected by the conflicting countries.
Rejection of the entry of peacekeepers has been carried out in several countries. Including First, the Government of Somalia has rejected the African Union's (AU) proposal for a joint stabilization mission with the United Nations (UN) in peacekeeping operations in their country. 31Second, Rage rejected the possibility of the United Nations (UN) sending peacekeepers to Ukraine.32Third, Israel rejects the UN peacekeeping force in Palestine.33
Rejection itself, according to the English-Indonesian dictionary in an English-Indonesian Dictionary translates the word Rejection which means Dismissal. 34 Meanwhile, according to the Law Dictionary, refusal is defined as a termination of employment caused by an action. 35 Furthermore, according to
26 Ibid
27 https://afd.gov.bd/un-peacekeeping/peacekeeping-history. Retrieved 20 January 2023
28 https://peacekeeping.un.org/en/our-history, Accessed January 20, 2023
29 Ibid
30 https://afsa.org/why-peacekeeping-fails, Accessed January 20, 2023
31https://www.beritasatu.com/news/840667/somalia-tolak-usulan-pasukan-perdamaian-uni-afrika
32 https://dunia.rmol.id/read/2022/03/14/526798/rusia-tolak-kegulungan-pbb-kirim-pasukan-penjaga-perdamaian-ke-ukraina, Accessed January 20, 2023
33 https://www.antaranews.com/berita/40509/muhammadiyah-kecam-israel-tolak-pasukan-perdamaian-indonesia, see alsohttps://www.pressreader.com/indonesia/jawa-pos/20151018/281535109833194,
Lookhttps://international.sindonews.com/read/434148/43/pakar-russia-israel-tak-akan-pernah-izinkan-penjaga-perdamaian-di-territory-1621616744, Accessed January 20, 2023
34 John M. Echols and Hassan Shadily, An English-Indonesian Dictionary (Cornell University Press, 1975), 187.
35 Muhammad Marwan and P. Jimmy, Kamus Hukum: Rangkuman Istilah-Istilah & Pengertian Dalam Hukum Internasional, Hukum Pidana, Hukum Perdata, Hukum Islam, Hukum Perburuhan, Hukum Agraria, Hukum Administrasi Negara, Hukum Pajak & Hukum Lingkungan (Reality Publisher, 2009), 173.
other translations, refusal means rejection, refusal, and denial36 as a form of unwillingness to have an action from another subject, which in this research, refusal can give birth to rights and obligations as well as legal consequences as a result of that action.
As a legal subject, the state should not refuse the entry of UN peacekeepers as described above. This is undoubtedly a form of violation of the law. Sending peacekeepers by the United Nations is a form of the implication of the inability or unwillingness of a country to maintain the stability of its country's security.Peacekeepers who arrive in conflict countries are Non-use of force except in self-defense and defense of the mandate.37 So that his presence is only a form of security is very sad and ironic for a country that considers its presence a threat to the country itself. The political aspect of international law cannot be separated as the reason for this rejection. However, theoretically that the refusal of UN peacekeepers is a violation of international law and injures the UN, which is tasked with maintaining international peace and security.
1. Problem Identification
Based on the description above, it is interesting for the author to examine an international legal review of the rules for world peacekeeping forces in conflicting countries. Second, Rejection of World Peacekeepers in Conflict Countries Within the Framework of International Law?
2. Research Purposes
This study aims to examine and analyze the realization of international law in the aspect of refusing peacekeeping troops in conflicting countries and to examine the impact and legal consequences caused to countries that reject peacekeeping forces which have a legal basis for their implementation.
3. Research Method
Normative law research uses legal case studies in the form of legal behavior products, such as reviewing draft laws. The study's main subject is a law conceptualized as a norm or rule that applies in society and becomes a reference for everyone's behavior. So that this type of research focuses on positive law inventory, legal principles and doctrine, legal findings in concreto cases, legal systematics, level of legal synchronization, legal comparisons, and legal history. The research approach used is philosophical and analytical. The statutory approach is taken (Statute Approach), using primary legal materials (legal products), secondary (library studies) and tertiary (dictionaries, internet and other credible sources).38
RESULT AND DISCUSSION
1. A Review of International Law Against the Rules of World Peacekeeping Forces in Conflict
Countries
United Nations Peacekeeping Operations(UN peacekeeping force) is a UN "flagship enterprise" formed by the UN to maintain international peace and security. Initially, the role of UN peacekeepers was limited to maintaining ceasefires and stabilizing the situation on the ground to make room for political efforts to resolve conflicts.39
The context of UN peacekeepers is changing from traditional missions prioritizing military tasks to more multi-dimensional missions. This change occurred both in terms of the mandate and composition of personnel (increasingly involving police and civilian components) in order to implement a peace agreement comprehensively and help lay the foundations for creating sustainable peace.
36 https://glosbe.com/id/en/penolakan, Accessed January 20, 2023
37UN peacekeeping operations are not a law enforcement tool. However, they may use force at a tactical level, with the authorization of the Security Council, if acting in self-defense and maintaining a mandate. See,https://peacekeeping.un.org/en/principles-of-peacekeeping, Accessed January 20, 2023
38 Jimly Asshiddiqie, "Introduction to Constitutional Law," PTRajaGrafindo Persada, Depok, 2019, 308.
39 https://kemlu.go.id/portal/id/read/91/malam_list_lainnya/indonesia-dan-misi-petroleum-perdamaian-pbb, Accessed January 25, 2023
The earliest known peacekeeping force has allowed the United Nations Security Council to assume its primary responsibility for the maintenance of international peace and security regardless of the division between the Blocs.40This happened without any provisions in the UN Charter, which is basically to avoid either the veto power exercised by the permanent members. 41 As such, peacekeeping is intended to overcome the political and practical obstacles posed by the implementation of the enforcement measures referred to in Chapters VI and VII of the UN Charter.
The United Nations peacekeeping force is an instrument that provides security, political and peace-building support to help countries make the difficult transition from conflict to peace. 42 By UN Security Council resolutions on special missions, peacekeeping operations with a mandate required to protect civilians under physical and violent threats.
To find out the arrangements for peacekeeping forces can be found in the UN Charter, which sets out its mission objectives as a form of world peace. Article 1, paragraph 1 of the UN Charter explains:43 "To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace".
Based on the above article, the international community is to maintain international peace and security by collective measures to prevent and eliminate threats to peace, to suppress acts of aggression or other breaches of the peace, and do so in a peaceful manner and in accordance with the principles of international law.
To achieve the intended world security, the UN Charter has given authority to the UN Security Council to ensure international peace security as article 24 of the UN Charter which states:44
"1. To ensure prompt and effective action by the United Nations, its members confer on the Security Council's primary responsibility for maintaining international peace and security. They agree that the Security Council acts on their behalf in carrying out its duties under this responsibility. 2. In discharging these duties, the Security Council shall act by the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII. 3. The Security Council shall submit annual and, when necessary, special reports to the General Assembly for its consideration."
The description above clearly explains that the UN Security Council has full responsibility for achieving and fulfilling this goal as the mandate to establish the UN.
If efforts to resolve disputes using other methods fail, the Charter envisages a mechanism for maintaining collective security, which permits the use of coercive measures in Chapter VII, "Actions Regarding Threats to the Peace, Breach of the Peace, and Acts of Aggression".
Based on Chapter VII of the UN Charter, the UN Security Council can carry out military actions (Article 42). Initially, it was intended to have a permanent army (Article 43), a strategic command to be exercised by the Military Staff Committee (Articles 46, 47). However, this system is crippled by reasons of confrontation with the forces of the permanent members of the Security Council. 45
The United Nations Charter assigns the primary responsibility for maintaining international peace and security to the Security Council. However, when unable to decide due to lack of unanimity among the permanent members, the General Assembly may act (Resolution 377[V] adopted by the General
40United Nations, 'Charter of the United Nations, Chapter V, Article 24', 2019, https://www.un.org/en/sections/un-charter/chapter-v/index.html, Accessed 25 January 2023
41 Trevor Findlay, The Use of Force in UN Peace Operations (SIPRI, 2002), 3.
42 USG DFS, "The Protection of Civilians in United Nations Peacekeeping," 2015, 3.
43 Article 1 (1) UN Charter 1945
44 Article 24 UN Charter 1945
45 https://guide-humanitarian-law.org/content/article/3/peacekeeping/, Accessed January 25, 2023
Assembly in November 1950 and entitled "United for Peace". 46In cases of threats to international peace and security, breach of the peace, or acts of aggression, the General Assembly may not decide to use force. But may promptly consider the matter and make recommendations to Members for collective action to be taken to maintain or restore international peace and security.
UN efforts to minimize violent conflicts that occur in a country are increasingly turning to peacekeeping operations and peace enforcement. 47 Many terms have been used to describe peacekeeping forces, including traditional peacekeeping, broader peacekeeping, peace enforcement, and peace support operations. The UN itself uses terminology to distinguish between offensive and defensive peacekeeping forces. 48
The goal of international law itself is to promote peace.49 To this end, the UN Secretary-General examines peace operations, using the term "peace operations" as an umbrella term that includes conflict prevention and peacebuilding, peacekeeping; and peacebuilding. 50
The United Nations can find ways to protect and promote international peace and security. In many cases, peacekeeping may be the most efficient means an organization has. 51the use of force by peacekeeping and security will remain highly controversial, especially when carried out against the wishes of the countries involved.52
The general definition of peacekeeping can be found in the so-called Capstone Doctrine, which explains that: Peacekeeping is a technique designed to maintain peace, ensure fighting has stopped, and assist in implementing agreements for peace. Over the years, peacekeeping has evolved from a military model observing ceasefires and separation of forces following wars between nations to incorporate a complex model of many military, police, and civilian elements working together to help lay the foundations for sustainable peace. 53
As such, Peacekeeping has proven to be one of the essential steps available to the United Nations to help host countries navigate the thorny path from conflict to peace.
Peacekeeping has unique strengths, including legitimacy, burden sharing, and the ability to deploy and sustain troops and police worldwide, integrating them with civilian peacekeeping to advance a multidimensional mandate. UN peacekeeping provides security and political support and peacebuilding to help countries make the problematic initial transition from conflict to peace.
Therefore. PeacekeepersThe United Nations is guided by 3 main principles that form the basis of its implementation, namely:
1. Agreement of the parties (Consent of the parties).
The need for consent is related to state sovereignty. Unlike the collective security system in which state sovereignty is not protected from organized enforcement, in the same way, a system is organized around peacekeeping, state sovereignty is protected and force cannot be used without state consent.54
46Resolution 377A (V) "Uniting for Peace Resolution" which concerns the maintenance of international peace and security. There are several steps that the General Assembly can take when the UN Security Council fails to adopt a conflict resolution. The General Assembly resolution 337A (V) also discussed the ability of the General Assembly to take steps to resolve conflicts. Even in this resolution, the General Assembly has the ability to take steps to use force to resolve conflicts. See, Sumaryo Suryokusumo, International Organizational Law (United Nations Law).
Nations), Jakarta, PT. Tatanusa, 2015, p. 34
47 Marten Coenraad Zwanenburg, Accountability of Peace Support Operations (BRILL, 2005), 28.
48The Panel on United Nations Peace Operations, Report of the Panel on United Nations Peace Operations, delivered to the Security Council and the General Assembly, UN Doc. A/55/305, S/2000/809 Aug. 21, 2000
49 Spain, "Deciding to Intervene," 847.
50 Alex J. Bellamy, Paul D. Williams, and Stuart Griffin, Understanding Peacekeeping (Polity, 2010), 95-96.
51UN Peacekeepers were awarded the Nobel Peace Prize in 1988 with the motivation that "the Peacekeeping Forces through their efforts have made important contributions towards the realization of one of the fundamental tenets of the United Nations. Thus, the world organization has come to play a more central part in world affairs and has been invested with increasing trust.
52Ibid
53DPKO, 'United Nations Peacekeeping Operations Principles and Guidelines' Capstone Doctrine, 2008
54 Nicholas Tsagourias, "Consent, Neutrality/Impartiality and the Use of Force in Peacekeeping: Their Constitutional Dimension," Journal of Conflict and Security Law 11, no. 3 (2006): 3.
Any peacekeeping operation that does not require enforcement action under Articles 41 or 42 or an interim measure that is mandatory under Article 40 requires the consent of the parties.55 In addition, a UN force consisting of foreign military forces needs approval from the host country to be valid. Despite its mandate to use force, its mere presence would otherwise violate the principle of non-intervention.
Article 2(7) of the Charter prohibits the United Nations from intervening in 'matters which essentially within the domestic jurisdiction of any country (except for enforcement measures under Chapter VII). Full sovereignty of the host nation is also the basic principle underlying the Status of Forces Agreement, which is an agreement that defines the roles and responsibilities of the troop-contributing state and the host state.56
As described above, the approval criteria create a fork in the road that separates peacekeeping operations from law enforcement operations. As soon as a host country does not consent to UN operations taking place on its territory, the absence of consent also risks turning the peacekeeping force into a party to the conflict, withdrawing it from its role of peacekeeping and enforcement action. 57
The Council can enforce peacekeeping operations in certain countries by binding resolutions under Article 25 of the UN Charter. The agreement of the parties is still being sought because this is still part of the concept of peacekeeping as an agreement-based instrument.58
2. Impartiality.
Impartiality implies that the peacekeeping force must carry out its mandate without favor or prejudice against either side. UN peacekeepers must be impartial in their agreements with parties to a conflict but not be neutral in the exercise of their mandate.59 Moreover, in peacekeeping operations, there is no designated enemy and no forced solutions. All parties must be treated relatively towards the mandate of the mission and encouraged to reach a mutually agreed settlement. 60
However, UN troops should refrain from sitting idly when someone violates the agreement. The Capstone Doctrine notes that UN peacekeepers can punish any party that does not honor the peace treaty the peacekeepers are meant to protect.61 From a legal point of view, impartiality may or may not be a requirement, depending on the legal basis on which the decision is made. Nevertheless, it remains essential for the parties to understand impartial operations. 62
Peacekeeping operations are not tools of law enforcement. With the authorization of the UN Security Council, if acting in self-defense and defending the mandate, peacekeepers can use force at a tactical level. The right of UN troops to use force in self-defense must be distinguished from the right to self-defense of the state, Article 51 of the UN Charter, and also from the right of individual self-defense included in domestic criminal code and private law. 63
The UN interprets this as meaning that UN troops may not take the initiative in using armed force but are entitled to respond with a forceful attack with weapons, including attempts to use force to induce them to withdraw from positions they occupy under orders from commanders. The United Nations have widely interpreted the right of peacekeepers to use self-defense.64
Although the original form has been universally accepted, its later extensions have been subject to criticism. Regarding its legal status, the principle of the right of personal defense of peacekeepers is found to be supported in both the legal systems of the host country and the sending country. Therefore,
55 James Sloan, The Militarisation of Peacekeeping in the Twenty-First Century (Bloomsbury Publishing, 2011), 177.
56 Bruno Simma, The Charter of the United Nations (oup Oxford, UK, 1995), 1186.
57UN Peacekeeping website
58Simma, Op. Cit
59 Tsagourias, "Consent, Neutrality/Impartiality and the Use of Force in Peacekeeping," 12.
60Ibid
61 Sloan, The Militarisation of Peacekeeping in the Twenty-First Century, 132.
62Ibid
63 Marten Zwanenburg, "International Military Forces," Max Planck Encyclopedia of Public International Law, 2013, 22.
64 Gustaf Lind, "The Revival of Chapter VIII of the UN Charter: Regional Organisations and Collective Security" (PhD Thesis, Juridiska Institutionen, 2004), 259.
it is a general principle of international law. It also appears to be inherently customary law in that it has been accepted without resistance in all matters of peacekeeping missions. 65
Historically, the use of force in these operations had to be limited to self-defense since then the UN General Assembly does not have the authority to apply coercive measures, a power that is exclusive to the UN Security Council under Articles 24 and 25 of the Charter.66
Although the mandate is set by the UN General Assembly (and in subsequent operations by the UN Security Council), detailed regulations on the use of force are not spelled out in resolutions and regulations remain obscure in UN Security Council practice and do not yet explicitly permit the use of force. On the contrary, it has mandated a mission to use all means necessary to achieve its mandate.67
3. Do not use force except in self-defence and defense of the mandate (Non-use of force except in self-defense and defense of the mandate).
The use of force is only for self-defense, then it is relaxed. Following ONUC's experience in the 1960s, the idea of self-defense emerged, including the rejection of efforts by force to prevent peacekeeping operations from releasing their duties under the mandate of the UN Security Council. 68
In theory, this definition sets the bar for using relatively low force. But even in the absence of authorization under Chapter VII, UN troops still practice non-use of force as this could jeopardize impartiality towards certain groups.
Forces have a mandate in which the Secretary-General construes self-defense to include resistance to attempts by force to prevent forces from relinquishing their duties under the mandate of the Security Council. 69In its resolution 341 also explicitly agreed to the definition. 70Another permanent duty of peacekeepers is to protect civilians. The targeting of civilians in armed conflicts and the denial of humanitarian access to civilians suffering as a result of war may itself constitute a threat to international peace and security and thus trigger Action by the UN Security Council. 71
Peacekeepers are often deployed into unstable political and security situations through the authorization of peacekeepers to protect civilians under constant threat. 124 Two resolutions, 1265 and 1296, mention the responsibility of peacekeepers to protect civilians. As an attempt by the UN Security Council to define its guidelines for action in an abstract way, regardless of the particular situation. 72 The protection of civilians has become part of the routine duties of peacekeepers and is often included in their mandate to use force. 73
UN member states gathered at the Summit in 2015 also discussed and underlined that protecting civilians is a serious responsibility. Failure to protect civilians risks lives and undermines the credibility and legitimacy of UN peacekeeping forces. Further, it states a commitment to ensure that uniformed personnel deployed in peacekeeping operations are adequately trained on United Nations policies and guidelines on the protection of civilians, including on the use of force consistent with operations mandates and rules of engagement. 74
65 Ibid
66Simma, Op. Cit, p. 1183
67 Findlay, The Use of Force in UN Peace Operations, 315.
68See para 5 of the Report of the SG on the Implementation of Security Council resolution 340, UN Doc. S/11052/Rev.1
(1973)
69UN Secretary-General, Report of the Secretary-General on the Implementation of Security Council Resolution 340 (1973), UN Doc. S/11052/Rev. 1 (1973)
70UNSC Res. 341 (1973)
71Report of the Panel on United Nations Peace Operations, 'Comprehensive review of the whole question of peacekeeping operations in all their aspects' UN Doc A/55/305-S/2000/809 (2000), para 53
72 Niels M. Blokker and Nico J. Schrijver, The Security Council and the Use of Force: Theory and Reality-a Need for Change? (Brill, 2005), 97.
73See the Report of the Office of Internal Oversight Services, UN Doc A/68/787 (2014)
74Press Release from the White House, Declaration of Leaders' Summit on Peacekeeping, https://www.whitehouse.gov/the-press-office/2015/09/28/declaration-leaders-summitpeacekeeping, Accessed January 25, 2023
Protection of civilians into the mandate and to extend the right to use force to defend civilians. The final section on this commitment to investigate and even discipline any violation of this principle marks an essential step towards upholding peacekeeping forces' duty to protect civilians.75
2. Rejection of World Peacekeepers in Conflict Countries Within the Framework of International
Law
National defense is a policy through various aspects of structured policies based on the national interests of each country. The scope of national defense includes how a country can protect its people and has power over territorial boundaries on land, sea and air. 76 As explained above, peacekeeping troops in a security mission in a country are carried out through the UN Security Council and the UN General Assembly.
The United Nations carry out peacekeeping operations. This operation is under a department in the United Nations, namely the Peacekeeping department, which aims to help each country in conflict to be able to take other legal remedies, such as negotiations, for the sake of peace. Peacekeeping Operation offers a form of non-military cooperation to maintain peace between two or more conflicting groups within a country. In 1948 the Peacekeeping Operation was carried out by sending troops to the state of Israel, where there was a conflict between Israel and Arab countries that opposed Israel's establishment, which had made a ceasefire. This begins the UN's Peacekeeping Operation (PKO) mission.
A country can take two forms of participation in Peacekeeping Operations. Namely: First, a country member of the United Nations can participate by donating funds. Second, the country can participate by sending security force assistance. Second, this form of assistance is expected to ease tensions between two conflicting groups in a country. 77
The UN Peacekeeping Operation is basically divided into 4 core activities, including:78
1. Conflict prevention and mediation.
UN peacekeepers operate in areas that are particularly vulnerable to conflict. While peacekeepers work to protect civilians, stabilize conflict zones and strengthen the rule of law, they also strengthen the social and civic conditions necessary for peace. Peacekeeping helps strengthen national and sub-national institutions to address the root causes of conflict, such as discrimination and inequality. 79
2. Peacemaking(peacemaker)
Peacekeeping evolved from an isolated and limited set of tasks, such as monitoring and ensuring compliance with ceasefires between countries in conflict, including assistance in making, enforcing, maintaining, and building peace within countries. 80
3. Peace enforcement (peacekeeping).
The United Nations implements four strategies to support peace enforcement: peacekeeping, peacekeeping, peacebuilding, and peacekeeping. The strategy for multinational and multilateral impartiality is based on the principles of state equality and universally applicable human rights as stated in the UN Charter. The multinational character is based on cross-ethnic and cross-ideological cooperation between member countries through reform and justice.81
4. Peacebuilding(implementation of peace).
Peacebuilding is carried out by international action to help people hit by civil wars identify the root causes of the conflict that has just ended and devise ways to eradicate these root causes.
75Report of the Office of Internal Oversight Services, UN Doc A/68/787 (2014)
76 Kementerian Pertahanan, "Buku Putih Pertahanan Indonesia," Jakarta: Kementerian Pertahanan Republik Indonesia,
2015, 2.
77
http://www.un.org/en/peacekeeping/resourcesZs statistics/contributors.shtml, Accessed 25 January 2023
78 https://peacekeeping.un.org/en/terminology, Accessed January 25, 2023
79https://peacekeeping.un.org/en/preventing-conflicts
80 Boutros Boutros-Ghali, Report on the Work of the Organization from the Forty-Seventh to the Forty-Eighth Session of the General Assembly (UN, 1993), 46-56.
81 https://www.peaceinsight.org/en/articles/peacemaking-peacekeeping-peacebuilding-peace-enforcement-21st-century/?location=&theme=, Accessed February 27, 2023
This requires a deeper understanding and is too sensitive. This is because it touches on issues deep within the jurisdiction of the country concerned. 82
Engaging to identify and support structures that will strengthen peace to avoid returning to conflict within a country to create conditions that support peace.83 The peace-building process should include: the establishment and maintenance of law and order, providing humanitarian assistance such as the return and reintegration of refugees and internally displaced persons, the performance of essential civil administration functions, development of local democratic political institutions, including the holding of elections for these institutions, and infrastructure and community development civil society, and economic reconstruction and development. 84 Normatively, peacekeeping is in line with the peacemaking process in an ongoing effort that can produce resolutions for conflicts that occur. Peacemaking aims to create a situation that allows negotiations to occur while ensuring peacekeeping activities occur afterward. Whereas peacekeeping runs and encourages peacemaking after negotiations have been successfully approved and applied to the warring parties to carry out a ceasefire and will indirectly cooperate with existing peacekeeping operations. 85
So that in practice, peacekeepers must carry out their missions in conflicting countries by the goals of peace and the mandate of the United Nations through UN Security Council resolutions. The UN Charter notes the maintenance of international peace and security as a goal with two main ways to achieve the goal, namely collective steps to prevent threats to peace as well as acts of aggression and violations of the peace and adjustment or settlement of international disputes by peaceful means.86
The primary responsibility for maintaining peace and security lies with the UN Security Council. Thus, the security mission of the peacekeepers depends on the legitimacy of the UN Security Council. The legal basis for this implementation is the UN Security Council resolution. The term "resolution" has been used in United Nations practice but broadly includes two types of statements: recommendations and decisions. When the International Court of Justice (ICJ) refers to UNSC resolutions, the term decision is used for binding resolutions and recommendations for non-binding resolutions.87 The results can be in the form of resolutions, decisions, declarations or recommendations.88 Decision-making in the UN system often cannot be separated between resolutions, decisions or declarations. 89
Resolution results from a decision on a problem approved through consensus or voting according to the rules and procedures set by the International Organization or the agency concerned. Resolutions generally consist of two parts, namely preamble paragraphs and operative paragraphs. Regarding its legal validity, it depends on its interpretation, especially UN resolutions.90
According to Black's Law Dictionary, a decision (decision) is "a determination arrived at after consideration of facts and, in a legal context, law" is a provision reached after considering the facts and in a legal context. Meanwhile "Resolution:91 a formal expression of the opinion or will of an official body or a public assembly, adopted by vote; as a legislative resolution ", namely that a resolution is an official
82Goulding, Peacemonger, Baltimore, The Johns Hopkins University Press, 2003, p. 265
83 Boutros Boutros-Ghali, "An Agenda for Peace. New York, 1992," Report on the Work of the Organization from the Forty-Sixth to the Forty-Seventh Session of the General Assembly (1992b).-, Report on the Work of the Organization from the Forty-Seventh to the Forty-Eighth Session of the General Assembly, 1993, 46.
84 Richard Caplan, International Governance of War-Torn Territories: Rule and Reconstruction (OUP Oxford, 2005), 30.
85 United Nations, "The Blue Helmets: A Review of United Nations Peacekeeping" (New York: United nations Publication DPI, 1990), 8.
86 James Barros, PBB: Dulu, Kini Dan Esok (Bumi Aksara, 1975), 6.
87https://www.ukessays.com/essays/law/status-of-un-security-council-public-international-law.php
88 Sumaryo Suryokusumo, Studi Kasus Hukum Organisasi Internasional (Alumni, 1997), 30.
89Ibid. p. 32
90 Sumaryo Suryokusumo, Hukum Diplomatik: Teori Dan Kasus (Alumni, 1995), 173.
91 Henry Campbell Black, Black's Law Dictionary: Definitions of the Terms and Phrases of American (Minnesota, 1990),
statement regarding the opinion or will of an official body or an assembly of a general nature which is passed through a vote, as a legislative settlement.
The concept of resolution is a legacy and the most popular model of international conferences in the early 19th century. This model is considered the most representative form of diplomacy for expressing the interests of the international community.92 The goal is to build a future vision of the international community that is based on a balance between politics and law.93
As described above, it has been emphasized that the legal basis for peacekeeping forces is not explicitly regulated in the UN Charter. So that the legal basis is the UN Security Council, by issuing resolutions.94 The resolution itself has an urgent basis for UN member states based on Article 25 of the UN Charter: "The Members of the United Nations agree to accept carry out the decisions of the Security Council in accordance with the present Charter." It was stated that all UN member states have agreed to accept and implement the decisions of the Security Council and have the power to make decisions that have binding power, including those decisions that are resolutions of the Security Council. This has consequences, whether consciously or not. Whatever decision the DK issues about its function in resolving disputes, the parties concerned are obliged to carry it out. 95
Therefore, the UN Security Council can only act based on the provisions mentioned in Article 24, paragraph (2) of the Charter, Article 1, paragraph (1) of the Charter and Article 2, paragraph (7) of the UN Charter.96 Voting procedures and processes in the UN Security Council in Article 27 of the Charter.a UN Security Council resolution in the resolution of an international dispute as a result of a session conducted by the UN Security Council is valid if it has been approved(affirmative) by nine members, while other (non-procedural) matters are determined by the affirmative votes of nine members of the UN Security Council on condition that there is an agreement of the votes of the five permanent members, provided that decisions taken within the framework of Chapter VI and Article 52 paragraph (3) Charter, disputing parties do not vote (Article 27 paragraph (3) of the Charter).97
Suppose there is a threat to international peace and security. In that case, the UN Security Council will carry out its duties to regulate peace through Chapters VI and VII of the UN Charter by making the necessary efforts to safeguard the goals of the UN mission. The UN Security Council, in carrying out the provisions of this Chapter, will issue a Resolution to act on conflicts that occur in the country. Furthermore, this resolution is present as part of efforts to prevent conflict based on Articles 39, 40, 41, and 42 of the UN Charter, which is mandated to UN member states and international organizations as well as through peacekeeping forces.
The peacekeepers mandated by UN Security Council resolutions will be involved in countries in conflict and will carry out the mandate of resolution with the aim of peace. However, resistance to peacekeeping forces is expected and often seen as threatening the country.
The author thinks that the refusal of the conflicting countries to the arrival of peacekeepers violates international law. As described above, Article 25 of the UN Charter emphasizes that every UN member state is obliged to comply with the provisions of this article. Through the UN Charter, all UN member states provide at least a mandate to the UN Security Council to make decisions and determine policies to maintain international peace and security so that the state's refusal to arrive with peacekeeping troops violates international law.
UNSC resolutions are aimed at the objects of reception (recipients), which can be countries, individuals, or UN agencies.98 So in international law, the binding power of this resolution lies in the intent and will of the maker.99 For example, resolutions issued by the United Nations General Assembly
92 Pierre Klein and Philippe Sands, "Bowett's Law of International Institutions," 2001, 1-5.
93 Norman Llewellyn Hill, The Public International Conference: Its Function, Organization and Procedure (Stanford University Press, 1929), 82.
94 Sri Setianingsih Suwardi, "Penyelesaian Sengketa Internasional," Jakarta: Penerbit Universitas Indonesia, 2006, 137.
95 Huala Adolf, Hukum Penyelesaian Sengketa Internasional (Sinar Grafika, 2020), 96.
96 Suryokusumo, Studi Kasus Hukum Organisasi Internasional, 203.
97 Derreck William Bowett, "Hukum Organisasi International" (Sinar Grafika, 1995), 35..
98 Manley Ottmer Hudson, Progress in International Organization (Stanford University Press, 1932), 41.
99 Margaret Ernestine Burton, The Assembly of the League of Nations (University of Chicago Press, 1941 ), 184.
are not legally binding, while resolutions made by the UN Security Council are legally binding on member countries. 100
Thus, UN member states have rights and obligations attached to them, so member states must fulfill the UN Charter and decisions of the UN Security Council. Violating international law by rejecting the results of a joint agreement on UN Security Council resolutions violates international law. Refusing the arrival of peacekeeping troops is tantamount to rejecting UNSC resolutions with the permanent legal force for the UNSC and UN member states.
The refusal of the arrival of peacekeepers who carry out the mandate of the UN Security Council Resolutions also violates international legal sources and customary international law (customary law). Thus, the author outlines several reasons why the refusal of peacekeepers is a violation of international law, including:
1. The resolutions issued have the authority derived from the UN Charter, which is part of international agreements that bind UN member states.
2. The resolution of the UN Security Council is one of the essential elements of customary law or customary international law. This can be seen from the resolution regarding the universal declaration of human rights, which is recognized as a source of international law.
3. This resolution is also an authority attached to international organizations for access to interact with its member countries. If the member countries heed this matter, legal remedies may be required, binding on member countries.
The UN Security Council resolution itself has been considered customary law and a source of international law; it is very ironic when UN member states fully agree with this provision and then commit violations of international law itself by refusing to accept peacekeeping troops. It was said that the peacekeeping force's rejection also included the rejection of UN Security Council resolutions as a source of law that has permanent legal force and has responsibility for such rejection.
International law, according to Austin, is not the law in its true sense because international law does not contain the main elements of law, namely orders and sanctions; international law is considered as pseudo law (figurative law)101 Meanwhile, according to Hart, the law does not only talk about orders and sanctions; more than that, included in the law is custom. One of the sources of international law is customary law. 102 Thus, international law can be used as a law that has rights and obligations for its subjects and has responsibilities when these obligations are violated.
The rejection of the peacekeepers, as described above, is a violation of the source of law that has binding power, namely UN Security Council resolutions. The rejection of this peace mission needs to be held accountable and have legal consequences for every country that refuses the arrival of troops and peacekeepers, even if this could threaten the country's stability. However, this mission was carried out on a clear legal basis, namely the UN Security Council resolution.
The UN Security Council needs to apply sanctions to respond more rapidly and efficiently to threats to international peace and security.103 Countries that do not comply with UNSC resolutions will face sanctions. Among them:
1. Suspension of the privileges of UN member states as stated in Article 5 of the UN Charter.
The UN can impose sanctions by Article 5 of the UN Charter. To suspend (suspension) privileged
membership rights in response to enforcement action taken under Chapter VII of the Charter104,
Only when a country takes preventive or enforcement actions by the UN Security Council against
a particular country its rights and privileges as a member state are suspended, as described in
Article 5 of the Charter. The UNSC must propose that a member country be partially revoked
100 Gregory J. Kerwin, "Role of United Nations General Assembly Resolutions in Determining Principles of International Law in United States Courts, The," Duke LJ, 1983, 891.
101John Austin, The Province of Jurisprudence Determined, New York, Cambridge University Press, 1995, p. 15
102 Herbert Lionel Adolphus Hart et al., The Concept of Law (oxford university press, 2012), 213-32.
103 Kofi A. Annan, Common Destiny, New Resolve. Annual Report on the Work of the Organization, 2000 (UN, Dept. of Public Information, 2000), 34.
104 Frederic L. Kirgis Jr, "International Organizations in Their Legal Setting: Selected Documents," 1993, 500.
from its membership or even expelled from the organization. Article 18, paragraph 2 of the Charter, containing the suspension of membership benefits, can be used as a deterrent so as not to violate organizational norms.105 2. Expulsion of a State from Membership in the United Nations Article 6 of the Charter
Article 6 of the UN Charter can also take punitive measures. If a member country consistently acts in a way that is not by the principles outlined in the UN Charter, the UN Security Council can propose that the UN General Assembly issue a warning or even expel the violating country from the organization based on Article 6 of the Charter.106
The refusal of peacekeepers to carry out the mandate of the UN Security Council Resolutions is a violation of international law and customary international law. The UN Security Council resolution has been considered customary law and a source of international law. Therefore, countries that refuse the arrival of peacekeepers need to be held accountable for these violations.
The UN Security Council needs to provide faster and more efficient sanctions against countries that do not comply with UN Security Council resolutions. These sanctions can be in the form of suspension of the privileges of UN member states or even the expulsion of a country from membership in the UN.
In this case, respect for and customary international law is fundamental. In making decisions, UN member states must always refer to existing sources of international law, including UNSC resolutions. This is important to maintain international stability and security, a common interest. As good citizens of the world, we must also understand and appreciate the importance of respecting international law and customary international law. Only in this way can we create a more peaceful, just and sustainable world.
CONCLUSION
The peacekeeping force is an instrument that provides security, politics and peace-building for countries experiencing conflict in the country. These peacekeepers can participate in countries experiencing conflict, which is regulated through decisions security CouncilUnited Nations through its resolution. The peacekeeping force also has several main principles, such as Agreement of the parties, Impartiality, and not use of force except for self-defence and defending the resolution's mandate.
A state that refuses the presence of peacekeeping troops violates international law by rejecting the results of a joint agreement on the resolution Security Council United Nations. Resolution security CouncilThe UN itself has been considered customary law and a source of international law. Thus, refusing the arrival of peacekeepers is tantamount to refusing a resolution. Security CouncilThe United Nations has permanent legal force and has legal consequences for violating member countries as stipulated in the UN Charter.
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[92] https://www.whitehouse.gov/the-press-office/2015/09/28/declaration-leaders-summitpeacekeeping.
[93] https://www.oxfordbibliographies.com/display/document/obo-9780199796953/obo-9780199796953-0128.xml.
