CONSIDERATIONS REGARDING "PEACE-KEEPING OPERATIONS"
Alonso GÓMEZ-ROBLEDO VERDUZCO^*

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SUMMARY
I. Introduction. II. The United Nations' Security System. III. Definition of "peace keeping operations". IV. The Security Council as "Directorate. V. Parameters of Comprehension. VI. Post-Cold War Crisis. VII. Achieving Peace; Maintaining Peace; Constructing Peace; Typology. VIII. United Nations' Panel's Recommendations. IX. Legal Basis for "Peace Keeping Operations". X. Mexico and the Security Council. XI. Conclusion.

I. INTRODUCTION

The failure of the United Nations' collective security system was to compel the organization to devise new methods of action which would allow it to comply the pacifying function that it had been entrusted with by its members.

This invention of new methods took place almost as an improvisation, in the face of the grave crisis provoked by the intervention of two permanent members of the Security Council (France and Great Britain) in the Suez Canal crisis and as a result of the particular circumstances that surrounded that international controversy.

Since the creation of the United Nations it has become evident that peace building demands as much effort as peace keeping, and that the United Nations Organization could probably do a lot more in this field, as, without a doubt, the San Francisco Charter had been conceived since its foundation, primordially and essentially, as an instrument for the maintenance of international peace and security.

II. UNITED NATIONS' SECURITY SYSTEM

There is not a hint of a doubt that the collective security consecrated by the United Nations' Charter was incomplete from the beginning.

The application of a military instrument, which constituted the master component, was never formed, largely due to a lack of agreement between the five permanent members of the Security Council.

The "Special Agreements" of Article 43 of the Charter, by which the members of the United Nations would commit themselves to placing the necessary armed forces at the disposition of the Security Council to maintain international peace and security, were never implemented.

As a result of not having fitted the key piece, the entire structure was destined to collapse. The East-West conflict had destroyed the United Nations' collective security system before it even began functioning.

It is precisely as a result of the "Special Military Agreements" not having been implemented in which the failure of the security system lies, and not in the immoderate use of the "veto", as is almost always argued. The use of the "veto" was really nothing more than a consequence of the previous situation.¹

In one of the first operations to substitute a security system, in which the United States provided more than 80 percent of the armed contingents, and as a result of the paralysis of the Security Council, the United States was able to influence the General Assembly in the adoption of the famous "Pro Peace Union Resolution" (377 (V) 1950), by which the right to act was granted to the General Assembly in the event of the Security Council being paralyzed by veto. In other words, the Assembly General considered itself enabled to substitute it, in the event of the Security Council being paralyzed, despite the restrictive terms of Article II, paragraph 2 in fine, and in its place, decide on the collective measures of the kind foreseen in Chapter VII of the Charter.

The juridical fiction of the United Nations' force admirably allowed the United States to enter South Korea without having to fully show its face and, on the contrary, making a very good impression for the West.

Another two situations within the spirit of the "Pro Peace Resolution" (although it did not send armed forces) were that of Hungary, during the Soviet military intervention in that nation (its veto), and when the United Nations General Assembly took the pertinent measures (1956).

The other crisis was that provoked by the terrible Jewish invasion of Egyptian territory in 1956 as a consequence of the nationalization of the Suez Canal. The Security Council convened and it was France and England (allies of Israel) that vetoed, with the issue passing to the United Nations' General Assembly.

In these two issues coercive measures were not dictated, as a diplomatic solution was reached first; but in the case of Egypt-Israel, a United Nations force was deployed along the line demarcated by the armistice between both states.

III. DEFINITION OF "PEACE KEEPING OPERATIONS"

In general international law, "peace keeping operations" could be defined as a non coercive operation of peace preservation, carried out by the United Nations on a base of consensus.

In order to configure a "peace keeping operation" an operational activity is required, implying, for one part, a physical presence in the terrain, and for another part, that the operation be truly a United Nations operation and not simply one of the acting member states.

In the Suez Canal crisis (1956) the "blue helmets" were assigned to occupy the territory and supervise the ceasing of hostilities (Egypt agreed, Israel disagreed); forces were also formed by the United Nations in the Congo in 1960 and in Cyprus in 1964 (FNUECH).

In principle, although there are many forms and exceptions, "peace keeping operations" are not, or should not be, of a dictatorial character, but they must have the consent of the interested states and should not resort to using force, except in the case of legitimate defense. To sum up, they should therefore represent an absolutely neutral element, both in the political and legal spheres.

Despite the abovementioned, the operations cited must not be confused with the United States' intervention in the Dominican Republic in 1965, where the United States used the Organization of American States in order to obtain legitimacy and with no secrecy whatsoever.²

Then the operations relating to the October 1973 war in the Middle East would come; the intervention and massacre by Israel in southern Lebanon in March 1978, etc.³

IV. THE SECURITY COUNCIL AS "DIRECTORATE"

With the mutations of international law in process and the pulverization of the former Soviet Union as a superpower, with the events in Berlin in 1989, the United Nations Security Council quickly got into position.

This new positioning takes place not only as the "main peace keeping body" (article 24) but in fact also in order to act as a kind of "executive body" of the international community, whose self-mandate would be something like the only body authorized as a spokesperson to translate the profound aspirations and immediate gestures of the other countries.

The causes of this ascent in power of the Security Council are evidently political: in the face of a profoundly destabilized international situation due to the collapse of the socialist countries, the United States and all its allies quickly perceived that they could play a much greater role in the United Nations for their own benefits.

In order to be within the apparent legal framework it was only lacking to grant them the notion of "peace keeping," a sufficiently ample acceptance in order for any foreign policy proposal to enter.

In this manner, the Security Council is now perfectly domesticated by a real "directorate," which is, by the five permanent members of the Security Council with the right to veto (United States, Russia, China, France, Great Britain) with unofficial attributions, but, in practice, far-reaching.

This is the motive for which now "peace keeping operations" are carried out frequently as never before (for example, between 1988 and 1992, the United Nations carried out the same number of operations that it had undertaken in the previous forty years) and above all suffering a real mutation in the nature of the missions.

Beside the "classic operations" with absolute respect for the internal affairs of the states in conflict, operations occur now with increasing frequency which are not within the international framework but in the internal framework of a determined country, with the aim of directly supervising the establishment of political regimes in accordance with the ideology of the "Directorate" of the Security Council.

In 1992 alone, the United Nations granted "electoral assistance" to no less than twelve countries (Albania, Congo, El Salvador, Ethiopia, Angola, etc.).

This implies that the United Nations is increasingly involved in the nature of political elections adopted by each State.⁴

V. PARAMETERS OF UNDERSTANDING

The current crises and conflicts as well as the consequent operations cannot be fully understood if we do not take the following parameters into account:

1. Nuclear dissuasion no longer imposes its strategic rationality.
   

2. Bipolarity has disappeared with the collapse of the Soviet empire.
   

3. The emergence of ethnic, nationalistic and minority conflicts has led to an unprecedented explosion which obviously puts the mechanism of collective security in extreme danger with its loopholes and shortcomings.
   

4. With the new imbalance of powers, the United Nations (guided by the United States) has generated a multiplication of "peace keeping operations" and with that the growing and unprecedented "interventionism" of the United Nations in crises and conflicts.
   

5. Conflicts are now increasingly less "interstate" and more "intrastate", meaning within the jurisdiction of the states themselves.
   

6. The militarization of so-called "humanitarian action" under the authority of the United Nations has ceased to be an exceptional phenomenon and become "the daily bread."

On the other hand, the supreme rule in many current conflicts appears to be that of "having two weights and two measures." Why assist Somalia and Rwanda and not assist Liberia and Sudan? Simply due to the presence or absence of the media, as international public opinion reacts emotionally and not rationally: "Absence of television images, absence of problem, and as a result, absence of any form of assistance."

Manipulation by the powerful is obviously protected by the large media consortia.

VI. THE POST-WAR CRISIS

Five crises or conflicts dominate all the differences in the post Cold War era.

1. The Gulf War crisis (1990-1991) between Iraq and Kuwait.
   

2. The Yugoslavian crisis and conflict (1991-1995).
   

3. Operation Restore Hope in Somalia (1992-1993). Here there is simply a civil war in a state in a process of collapse.
   

4. Operation Turquoise in Rwanda (1994). Here there is an ethnic war accompanied by a terrible genocide.
   

5. Operation Restore Democracy in Haiti with the reestablishment of the priest J.B. Aristide in power (1994). Here the real intentions can be clearly identified. Nobody with the minimal seriousness could sustain that it was a conflict that would put international security in danger, but it was certain interests of the United States that they saw to be threatened.

Points in common with these five are those which take place in Third World nations and the United Nations is the great protagonist, intervening either via the mediation of the "blue helmets," either authorized by the states to do so, but always with the official backing of the United States without the slightest embarrassment, and with the greatest arrogance.⁵

The United Nations appears to have sadly resigned itself to accepting within this context of operations the intransigent but constant refusal by the United States to place its troops under another command that is not its own. However, the damages to the United Nations are evident: if the operation is successful, the United States assumes all the honors, but if the operation is not successful the failure is attributed -in a Machiavellian way- to the United Nations, with the consequent detriment to the international organization.⁶

VII. ACHIEVING PEACE: MAINTAINING PEACE, CONSTRUCTING PEACE: TYPOLOGY

The United Nations' "peace keeping operations" refer to three principal activities:

1. Prevention of conflicts and construction of peace.
   

2. Maintaining peace.
   

3. Constructing peace.

Activities qualified as peace making refer to conflicts underway, and in which an attempt is made to put an end to the conflict by the use of diplomatic and mediation tools. The peace makers can be sent by governments, by groups of states, regional organizations or by the United Nations.

They can also be made up of non governmental groups or unofficially, as was the case, for example, in the negotiations that would lead to a peace agreement in Mozambique.

The activities qualified as peace keeping have been known for more than 50 years and have quickly evolved in the last decade, moving from the traditional military model with observers and a cease-fire, and forces of separation at the end of interstate bellicose conflicts to incorporate a complex model of a large number of troops, both civil and military, working jointly to build peace in the dangerous terrain at the end of civil wars.

The activities qualified as peace building, the more recent term, refers to actions carried out outside the conflict itself, to set the foundations for peace and provide the necessary tools for the construction of such bases, i.e. something that goes beyond the simple absence of war.

In this way, peace building includes the reintegration of old combatants into civil society; the strengthening of the rule of law (for example, the restructuring or reform of the judicial or penal system); the improvement in respect for human rights through monitoring, education and the investigation of past events and possible abuses; providing technical assistance for democratic development; and promoting the resolving of conflicts and techniques of reconciliation.⁷

The majority of the doctrine continues to agree that the prior agreement by the parts in the conflict, impartiality, the non-use of force, except in the case of legitimate defense, must remain as constitutive elements and the bedrock of the "peace keeping operations."

However, international practice shows us -unfortunately- that in the contemporary context of "peace keeping operations" the "consent" can be widely manipulated in very diverse ways by the same local sides in the conflict.

In this way, one side may grant its consent to the presence of United Nations forces, but only with the aim of gaining time to restructure its "combat forces" and withdraw the consent granted previously when the "peace keeping operations" no longer serve their interests.

In the same way, one side may seek to limit the freedom of movement of a determined United Nations' operation or adopt a persistent policy of non compliance in the face of stipulations of an international agreement relating to the conflict it deals with.

VIII. UNITED NATIONS' PANEL'S RECOMMENDATIONS

The United Nations' Panel relating to Peace Operations (August 21, 2000) presented various recommendations that seek to find a balance between the principles and the pragmatic vision within the spirit of the United Nations' Charter.

Among them, we can highlight the following:

1. The essential responsibility of the member States for the maintenance of peace and international security, and the need to strengthen both the quantity and the quality of the support for the United Nations in order to carry out its principal responsibilities.
   

2. The primordial importance regarding the clarity, credibility and adequate source of resources of the mandates of the Security Council.
   

3. The supervision of the United Nations' system in the "prevention of conflicts" wherever possible.
   

4. The need to have a more effective database in the United Nations' offices, including a better system of prevention of "possible conflicts" in order to detect and recognize the threat or risk of conflicts or possible crimes against humanity.
   

5. The essential importance of the United Nations' system for the international adhesion and promotion of instruments of human rights and the standards of international humanitarian law in all aspects of peace and international security.
   

6. The need to construct within the United Nations a structure so that the UN can really contribute to peace building, both in the preventive stage and the post-conflict stage in a genuinely integrated form.
   

7. It is recommended that a new body be created as a support for the Secretary General's need for information and analysis, and for that of the members of the "Executive Committee for Peace and Security" (ECPS A/51/829).

The creation of a "Secretariat of Strategic Information and Analysis" (EISAS) would formulate long-term strategies for the "Executive Committee," as well as a databank and analysis for eventual conflicts in development.

It is proposed that the "Secretariat of Strategic Information and Analysis" be created via the consolidation of the Department of Peace Keeping Operations adding to it a small team of true military analysts, experts in international criminal networks and specialists in more complex information systems.⁸

IX. THE JURIDICAL BASE OF "PEACE KEEPING OPERATIONS"

It has been upheld that the juridical base of "peace keeping operations" could be found in Article 40 of the United Nations' Charter.

However, the provisional measures Article 40 relates to are directives given by the Security Council to the sides in the conflict. They consist of measures that should be adopted by them, such as cease-fire, the withdrawal of troops, the ceasing of hostilities, the establishment of a truce, etc.

On the other hand, "peace keeping operations" consist of certain actions and measures that must be adopted, not by the parties themselves, but by the bodies of the United Nations.

Their foundation cannot be found in Chapter VI (the peaceful solution of controversies) of the Charter, like for example Article 34, which only refers to investigations with a well-defined purpose. The "peace keeping organizations" constitute something more than simple investigations.

The inevitable conclusion which appears to be reached is that these "peace keeping operations" -an expression not used in the Charter- constitute a development outside the Charter (Praetor Legume), which does not have its juridical foundation either in Chapter VI or Chapter VII of the Charter.

In any event it could be said that its foundation would be one of the so-called "implicit powers or faculties" of the United Nations' Organization, with the aim of assuring its fundamental purpose, which is none other than "the maintenance of peace and international security."

"...The United Nations' Organization must be considered to possess these powers which are not expressly announced... but which are essential to the exercise of its functions."⁹

X. MEXICO AND THE SECURITY COUNCIL

On the other hand, and at a personal level, I find very praiseworthy the efforts made in order that Mexico occupy a place on the Security Council (made up of five permanent members and ten non-permanent members elected for two years by the United Nations' General Assembly, Chapter V), as this will be the second time since 1946 that Mexico sits on the Security Council (the last time was in the two-year period 1981-1982).

In general, Mexican foreign policy has been one of abstaining from occupying a seat on the Security Council in order to avoid friction with the United States (sic). On the contrary, occupying a seat on the Security Council serves our foreign policy by giving us greater weight in the key United Nations' resolutions; greater protection and a better space in international relations.

Mexico must participate in the Security Council, not to try to forge alliances or support concrete interests with other countries, but to support just causes and principles according to our own foreign policy lines, proposing solutions or necessary proposals for the solutions of conflicts. This was widely and eloquently demonstrated by our country between 1981 and 1982 by promoting, supporting and reinforcing strategies and resolutions, particularly with three big themes of the era:

1. The situation in Iran and the taking of hostages in the U.S. embassy in Tehran (1979).
   

2. The problem in South Africa and the process of de-colonization.
   

3. The different manifestations of the Middle East conflict.

Lastly, and as mentioned above, United Nations' "peace keeping operations" must not be confused with that ill-fated "inter American peace force" formed by the United States and its marines in the Dominican Republic between 1965 and 1966, in which Mexico and three other countries (Chile, Peru and Uruguay) refused to give their vote, as the measure violated the United Nations' Charter and that of the Organization of American States.

Apart from in legitimate collective defense (TIAR-1947), the Organization of American States can only use force with the prior authorization of the Security Council, as its faculties are delegated. However, in this case the rule of "inherent faculties" of the Charter of the Organization of American States was also wielded. This is the real danger of this document.¹⁰

XI. CONCLUSION

We share the opinion of those writers who consider that, despite the many merits "peace keeping operations" may have, these cannot be the permanent substitute for the collective security mechanism outlined by the United Nations' Charter.

On the other hand, it must be emphasized as much as necessary that current international law offers no foundation whatsoever to the so called "right of interference" or to a right granted to any State to unilaterally resort to force to make human rights respected within a third state.

Finally, nobody can deny that the Security Council has labeled internal conflicts and international conflicts of a diverse kind as a threat to international peace and security, as can be clearly seen in the cases of Haiti, Somalia, Liberia, the former Yugoslavia, Rwanda, Zaire or Sierra Leone, when the application of uniform criteria was not evident in human rights situations which are only similar at face value.

Notes
* Chief Researcher of the UNAM Juridical Research Institute.
1 Virally, Michel, L'Organisation Mondiale, Paris, Librarie Armand Colin, 1972. pp. 467-531. Roberts, Adam and Benedict (eds.), United Nations, Divided World, 2nd edition, Oxford, Clarendon Press, 1994, pp. 63-103 and 183-239.
2 Gómez-Robledo, Antonio, Las Naciones Unidas y el sistema interamericano, Mexico, El Colegio de México, 1974, pp. 89-123: "....the Johnson Doctrine was nothing more than an inference of the Monroe Doctrine, and, as such, incompatible with the Charter of the Organization of American States." (p. 114).
3 Daudet, Yves, Aspects du Systeme des Nations Unies dans le cadre de l'idee d'un nouvel ordre mundial, Paris, Pedone, 1992 (Colloque, 1991), pp. 43-92. With the collapse of the Soviet empire, strategists' notion of the difference between "central conflicts" (Cuba), "regional conflicts" (Korea) and "local conflicts" collapsed, in which the Cold War was pursued but via intervening protagonists.
4 Moreau, Defaurges, Les Relations Internationales dans le monde d'aujourd'hui, Paris, STH, 1984, pp. 173-234. Noyes, John (ed.), The United Nations at 50: Proposals for Improving its Effectiveness, USA, American Bar Association, 1997, pp. 29-60.
5 Colard, Daniel, La Societe Internationale apres la Guerre Froide, Paris, Armand Colin, 1996, pp. 73-108. Lechman, Ingrid A., Peace Keeping and Public Information: Caught in the Crossfire, London, Frank Cass, 1999, passim.
6 Badi, Bertrand and Scout, Hane, Le Retournement du Monde: Sociologie de la scene internationale, Paris, Dalloz, 1992, pp. 114-145. The United Nations Organization does not yet have the indispensable material measures to assume the functions of "police" that it has been obviously invested with. Besides the Iraqi case, the problem of the constitution of an international police force remains pending, if an "order" is sought to be instated in which the law must prevail over violence.
7 "Report of the Panel on United Nations Peace Operations, 21-VIII-2000," International Legal Materials, USA, AS IL, Vol. XXXIX, November 2000, pp. 1432-1498.
8 Ibidem, numerals 56-75. In the Report the Peace enforcement is not specified in the typology of the reestablishment, maintenance and consolidation of peace, the collective coercive action carried out by the Security Council based on Chapter VII, with the aim of putting an end to a "threat to peace and international security or a rupture of peace," including an act of aggression.
9 CIJ, "The CORFU Strait Case," Recueil des Arrets, 1949, p.182. The approval given to "peace keeping operations" by the Court at The Hague is found within the Advisory Opinion with reference to "Certain United Nations expenditures": "But when the Organization takes action which warrants the assertion that it is as appropriate for the fulfillment of one of the stated purposes of the United Nations, the presumption is that such action is not 'ultra vires' the Organization"; CIJ, AdvisoryOpinion of 20 July 1962. Reports of Judgements. Advisory Opinions and Orders, p. 168, paragraph 2.
10 Castañeda, Jorge Obras completas, v. I (United Nations), Mexico, El Colegio de México, 1995, pp. 113-202. It must be pointed out that the fact Mexico participates as a "non permanent member" of the Security Council in no way implies, according to the San Francisco Charter, that it has the obligation or legal duty to participate in any of the kinds of "peace keeping operations."