LEGITIMACY AND THE

PUBLIC SECURITY FUNCTION

In most peace operations the public security function will be assumed in varying degrees by the intervening military force, which poses problems for the selection and preparation of troops and force structure. Of particular concern are the collapsed-state phenomenon and the role public security issues play in the long-term resolution of conflict. Examination of the methods adopted by Australian forces in dealing with these problems, including those in Somalia, Bosnia, and the Middle East, reveals a number of common key issues. These include the primary issue of legitimacy as relates to the action that the peace operation wishes to take, in what often amounts to an intervention into areas usually the specific preserve of the sovereign state. An example of a legitimacy “tool” is the law of occupation, which was employed to good effect in the context of Operation Restore Hope in Somalia in 1993 by the Australian contingent. What often emerges in these operations is the need for a robust approach to get at fundamental problems that if not dealt with will only serve to constitute the seeds for further conflict or instability.² The robust approach must be tempered by cultural sensitivity and the forging of an alliance with the people and their responsible leaders. A possible approach to various aspects of the application of force in this context is also discussed.

The Context

The issue of public security in peace operations has arisen because the context in which they take place has more and more frequently been one of internal conflict. These internal conflicts have resulted in or been a product of the disintegration of a “civil society.” A common feature in the cause of conflict has been the insecurity felt or attacks endured by one particular ethnic, religious, or national group. This is often because the group has lost confidence in the administration of justice to secure their human rights, protect their cultural identity, and guarantee their physical security. In these cases, or in the case of rebellion against an authoritarian regime, the problem has been that the mechanisms of “justice” have been the instruments of repression in the first place. Addressing the issue of the administration of justice therefore goes to the heart of the conflict resolution objective of a peace operation.

In addition, the peace operation should be focused on leaving behind a viable state entity whose institutions will be self-sustaining and from which the intervening forces can depart as quickly as possible. Justice reconstruction issues are centrally tied to this objective. An effective public security environment encourages responsible leadership to step forward and enables economic activity to develop. No one will work when they know that the fruits of their labor will end up in the hands of a rapacious bandit organization or be siphoned off by a corrupt administration. Another common feature of these conflicts is property disputes, which should be addressed by an appropriate dispute resolution forum. If this is not done, the seeds will be sown for future conflict.

In order to deal with the public security function, a peace operation must be provided with a framework of legitimacy tailored to the particular circumstances of the operation. Without this legitimacy, a peace operation can rapidly lose credibility, focus, rationale, and support both internationally and locally. Without a framework, the forces will be left to flounder and will be prone to descend to summary justice measures as occurred in certain notable instances in Somalia. To begin with, a mandate from the United Nations is clearly required, although it would be limited by certain factors. It would be of necessity a brief “warrant” that establishes the basic legitimacy of the presence of the force and sets out its goals in broad terms. These bare bones ought to be provided with flesh in the form of either a detailed framework agreement or some other international law source as a point of reference to justify their actions to the international community and the local population. The other key limiting factor is that a U.N. mandate cannot override the provisions of existing international law, which would be beyond its power under the U.N. Charter.³

Once the framework is settled, it is necessary to determine how the mission will be structured. In theory, in rebuilding a justice system it would be logical to attempt to mobilize civilian experts in the field. Certain factors tend to preclude this, at least in the initial phases of an operation. The environment may be such that the security threat is still beyond that which civilian police forces could cope with. States generally do not have a spare capacity of civilian policing, as these personnel are fully engaged in daily policing at home. As a consequence the police contribution may be of the wrong category (i.e., border police) or from jurisdictions with an inferior human rights record. It has proven difficult to recruit civilian police for peace operations. Even more difficult is the problem of what to do about the other arms of the justice administration, such as the judiciary and prisons. The judiciary in particular presents a major problem, because judges and magistrates cannot be trained and employed within the same time frame as a police force. This aspect must be addressed, however, as a functioning police force cannot exist without a judiciary to serve.

Many important opportunities are lost in the early phases of an operation as a result of the inability to come ready to address these issues. The military offers certain institutional advantages for quickly establishing administrative and technical functions. These advantages include potential speed of mobilization, greater logistic capability, and equipment capability and spare capacity as troops are often engaged in ongoing training rather than operations. Some countries are also equipped with a military capability, which can be enlisted to assist in justice reconstruction. This could include military police, judges, courts, and lawyers, in either an advisory or emergency and interim substitutive role. The United States, for example, has an excellent military police and civil affairs capability geared for the possibility of dealing with public security and rehabilitating administrative functions of this type. If this is considered undesirable, then greater effort needs to go into establishing a call up list of civilian volunteer specialists or a body that can coordinate the speedy recruitment of such volunteers, bearing in mind that the harshness of the operational environment or security threat may not permit this option. The reality is, however, that such an option is unlikely to meet the need.

If the military is the best source for the short term in addressing public security issues, this does not mean that they are perfectly adapted for it. This is merely to say that the potential is there. In order for that potential to be maximized the troops must have appropriate rules of engagement and operating guidelines, they must be properly trained, and the force must be properly structured with the public security function in mind. This may involve placing the emphasis on military police, engineers, civil affairs, psychological operations, and special forces.

Legal Framework

Having noted the problems in the context of collapsed states in particular, what are the possibilities in terms of legal frameworks to establish the legitimacy of the actions a peace operation may be required to take to restore an efficacious regime of public security? One regime under general international law is particularly relevant and useful in the worst case scenarios, that being the law of occupation, which is embodied in the Fourth Geneva Convention of 1949.

Application of the Convention

There are 185 States party and signatory to all four Geneva Conventions of 1949 making them the most universally adopted international humanitarian law codes.⁴ The questions that arise in relation to the Convention are: (a) in what circumstances will the Convention apply and in particular does it apply to peace enforcement under Chapter VII of the U.N. Charter?, and (b) when does the Convention cease to apply?

The introduction of the Fourth Convention was intended to radically alter the application and shape of the legal regime regulating military presence in foreign territory. It would no longer be accurate to refer to the law of belligerent, or nonbelligerent, occupation.⁵ This resulted from the expansion of the convention coverage to all forms of nontreaty occupation, regardless of whether there was an armed conflict. The new Convention was designed to regulate the relationship between foreign military forces and a civilian population where the force exercises the sole authority or is the only agency with the capacity to exercise authority in a distinct territory. As Adam Roberts puts it:

How does the Convention produce this result and what did the framers have in mind when they so expanded this area of law? The answer to the first question lies in an analysis of Article 2 of the Convention where the application of the laws set out in the Convention is defined. To appreciate the Convention fully, it must be understood that it has different levels of application. The four Conventions of 1949 were drafted with the object in mind of addressing all forms of armed conflict in some way, as by that time the experience of undeclared and civil wars had already been evident.⁷ For example, common Article 3 to all the conventions addresses all forms of armed conflict not of an international character, while paragraph one of common Article 2 applies the remaining provisions in the Conventions to all international armed conflicts, whether a state of war exists or not. We also can see that certain nonconflict situations were to be addressed in the Fourth Convention in particular, dealing as it does with the protection of civilian populations and their relationship with foreign armed forces. The Conventions also create certain peacetime obligations. It is important at this point to set out the exact wording of Article 2:

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if said occupation meets with no armed resistance.⁸

Paragraph two of the Article contains the key formula, providing the expanded coverage of the provisions regulating occupations. The wording to note here is the expression, “The Convention shall also apply,” meaning that it also applies to the following outlined circumstances other than a state of war or armed conflict between or among High Contracting Parties as mentioned in paragraph one. The additional application is to, “all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.”⁹ The language adopted in the “Report on the Work of the Conference of Government Experts,” convened by the ICRC in Geneva in 1947,¹⁰ would have made this clearer, as it stated that the Convention should apply “also in the event of territorial occupation in the absence of any state of war.”¹¹ The report elaborated its intention in this respect by its commentary on the draft provision, stating, “This Article was adopted in order to make the Convention applicable to . . . every occupation of territories, even should this occupation not be forcible.”¹² Nevertheless, as Pictet states regarding paragraph two of Article 2 of the 1949 Geneva Convention:

This general category of occupation is distinct from occupations occurring as a result of armistice or capitulation, which is covered by paragraph one of Article 2. The Pictet commentary explains the distinction as follows:

It was clear therefore that the Convention was not concerned with the circumstances of the coming together of military forces and civilian populations foreign to each other in a relationship of authority and submission, but with the fact of its occurrence. As Roberts states, “The broad terms of common Article 2 establish that the 1949 Geneva Conventions apply to a wide range of international armed conflicts and occupations—including occupations in time of so-called peace.”¹⁵ The practical effect is that, for the parties involved, the Convention will apply to a wide range of situations that were hitherto not within the contemplation of the formal codes or that would have been covered by the less prescriptive law of nonbelligerent occupation.¹⁶

The test is whether the force present is not just passing through, is not engaged in actual combat, and is, in effect, the sole authority capable of exercising control over the civilian population, or if any remaining authority requires the approval or sanction of the force to operate. The test is not based on whether the force has established a formal administrative framework or military government; this would be contrary to the intention of Article 4 of the Convention, which defines protected persons, in relation to whom the rights and obligations of the Convention relate, as those simply “in the hands” of the occupying power.¹⁷ The whole thrust of this law is that the situation is temporary, seeking only the regulation of the relationship between the force and the population while the force is present.

Given the transformation that has been wrought by the Fourth Convention it now seems possible to identify the circumstances which will attract the application of this body of law. Adam Roberts has set out four basic elements in this respect:

These elements were to be found in reference to the UNTAC operation in Cambodia, the IFOR/SFOR operation in Bosnia (although those operations were governed by formal agreements), and, in particular, in the UNITAF and UNOSOM operations in Somalia. Other recent situations that have often contained these elements are “safe haven” operations, which involve a force being deployed into a clearly demarcated area. Within the safe haven the deployed force may be required to undertake the restoration and maintenance of public order. The force may find itself the predominant authority, with the varying degrees of break down in civil authority, including the total lack thereof, that may occur in these areas. Clearly, for example, the Convention applied to the safe haven in Northern Iraq during Operation Provide Comfort and to South-West Rwanda in Operation Turquoise.

There is nothing specified or implied in either the Fourth Geneva Convention, or the customary law of occupation that requires the force to remain. It is not, for example, a requirement that the force must remain until normal civil life or order is restored. The force is only required to work toward this end as far as it is within its capacity for the period during which it is in the territory. The force is free to depart at any time of its own pleasing and all its legal obligations with respect to that territory end with this departure.¹⁹ The only circumstance where the force may be obliged to remain is where a genocide is occurring, in which case there may be an obligation on the force, and indeed the international community at large, under the Genocide Convention to take preventative action.²⁰

There is a gradation of application provided for in the Fourth Convention based on the changing nature of the military presence. Article 6 specifies that in the case of occupied territory occurring in a conflict situation, the general application of the Convention ceases 1 year after the close of military operations.²¹ While the occupation continues, however, and to the extent that the occupying power exercises the functions of government, a number of articles remain applicable. This then poses the question as to what provisions apply to a nonbelligerent occupation, whether the application of the provisions change at any point and when they cease altogether. Pictet comments on this issue:

This produces the result that more provisions continue to apply for an occupation which begins as nonbelligerent, while fewer provisions would apply in relation to an occupation begun in a conflict situation, even though it may have acquired the same character as a nonbelligerent occupation 1 year after the cessation of military operations. This anomaly was addressed by Protocol I. For those states party to it, the Protocol altered the termination provisions of Article 6 of the Convention by clearly stating, without qualification or elaboration, in Article 3(b) that the relevant provisions of the Protocol and Convention will cease to apply “on the termination of the occupation.”²³

The utility of the law of occupation is extensive in relation to the public security issue, including guidelines for dealing with the local law and the parameters for departing from this law when necessary. It also provides well for the temporary administration of justice where there is no local capability. The measures for security of the force and relief operations are clearly spelled out as is the authority for reconstructing the local justice administration.²⁴ Any apprehension that may be felt concerning possible obligations under this law should be dispelled by a closer reading of the manner in which the law is worded and a look at the reality of the modern operating environment. The convention only obliges the force to assume responsibilities for the population in terms of health, sustenance, and welfare to the extent that it has the spare capacity to do so, beyond what it needs to deal with operational demands, and only to the maximum extent feasible. The role of meeting the needs of the population is more than adequately met by simply allowing the array of NGOs to do their job in these environments as they will always be present.²⁵

The United States could have relied on this law to meet the problem it had with its Foreign Assistance Act (FAA) in supporting the standing up of the Somali police force during UNITAF’s Operation Restore Hope. The FAA prohibited the United States from supporting foreign police forces, which forced UNITAF to label the reviving Somali police force as an “Auxiliary Security Force” and limited the extent of U.S. involvement. Citing its obligations under the law of occupation, the United States could have overridden the limitations of the FAA in this respect. In debates UNITAF had with aviation authorities over control of the airspace in Somalia, they could have overcome the concern these authorities felt over whether the U.N. mandate was suitably elastic to cover this by once again citing the force’s rights and obligations under the law of occupation.²⁶

The Current Status of Nonbelligerent Occupation

Recent examples of pacific occupation²⁷ by agreement include the UNTAC experience in Cambodia. The Paris Agreement under which the U.N. forces deployed constituted the temporary transfer of key areas of sovereignty to the United Nations.²⁸ As we have seen, however, there were many areas that remained the source of much contention and uncertainty under the necessarily broad terms of the Agreement. The customary law of pacific occupation will fill any such voids left by an Agreement of this sort and certain fundamental principles can be applied to help clarify uncertainties.²⁹ One example of an area the customary law can illuminate is the right of the force to take measures for its own security.³⁰ Another of the principles discussed above that would also be applicable in the case of occupation by agreement relates to the aspect of control. For example, in the case of UNTAC, the U.N. force was never able to exert its authority in the areas controlled by the Khmer Rouge, who were clearly a force exercising sole control over a part of Cambodia and carrying out sustained and concerted military operations.³¹ The customary laws of pacific occupation therefore did not apply to that particular area of Cambodia, as the occupying force had no control there.

Another recent experience of pacific occupation was that established by the Dayton Agreement, which involved the warring parties in the Former Republic of Yugoslavia, NATO, OSCE, and the United Nations.³² This agreement provided for the deployment of a large NATO IFOR for a period of 1 year pursuant to U.N. Security Council authorization and Chapter VII of the U.N. Charter.³³ IFOR was empowered to “take such actions as required, including the use of necessary force, to ensure compliance with the . . . [agreement] and to ensure its own protection,” a point to be emphasized throughout the document.³⁴ There were a number of other provisions assigning authority to the IFOR commander and various agencies, approximating an occupation condition.

Of particular interest was the development of the role of an International Police Task Force building on the experience in numerous recent deployments. The management of this operation was assigned to the United Nations and headed by a Commissioner appointed by the Secretary-General in consultation with the Security Council. It was coordinated by and came under the guidance of the High Representative. The Commissioner was permitted to receive and request personnel, resources, and assistance from States as well as from international and nongovernmental organizations.³⁵ In carrying out their functions they were to act in accord with international standards but were to respect local laws and customs.³⁶

The tasks of the IPTF included monitoring, observing, and inspecting law enforcement activities and facilities, including associated judicial organizations, structures, and proceedings; advising law enforcement personnel and forces; training law enforcement personnel; facilitating, within the IPTF’s mission of assistance, the Parties’ law enforcement activities; assessing threats to public order and advising on the capability of law enforcement agencies to deal with such threats; advising governmental authorities in Bosnia and Herzegovina on the organization of effective civilian law enforcement agencies; and assisting the Parties’ law enforcement personnel as they carried out their responsibilities, as the IPTF deemed appropriate.³⁷

To fulfill these tasks the IPTF was to have complete freedom of movement and be allowed access to any site, person, activity, proceeding, record, or other item or event in Bosnia and Herzegovina. This was to include the right to monitor, observe, and inspect any site or facility at which it believed police, law enforcement, detention, or judicial activities were taking place.³⁸

Clearly pacific occupation is alive and well and is finding new modes of application and relevance as it is employed by the international community to meet the challenges of the diverse security crises that threaten international peace and stability. This is clearly being driven by the need to address the source of this threat which is not primarily that of tackling cross-border invasions but internal disintegration and violence. It is important, however, that the terms of a pacific occupation be sufficient to allow a robust approach to establishing an efficacious public security administration. Both the Paris Accord in particular and to a lesser extent the Dayton process have not fully measured up to this test. It is only through action that equates to occupation that such internal strife can be effectively addressed, if addressed at all. It also requires a realization that process requires engagement of one form or another, depending on the circumstances, over a number of years.

The treaty approach is certainly the best option to pursue where possible. One of the problems that may be experienced with the treaty approach, however, is that it is sometimes not feasible to do any kind of deal with the factions, or some of them, as they may be unworthy partners, unrepresentative, or too chimerical. In strictly legal terms, any agreement with an internal armed faction that cannot be described as representing “the State” has no status in international law. Such an agreement, then, can only acquire such status through its endorsement and enforcement by the U.N. Security Council.

The Proper Use of Force

The dilemma that faces any peace operation is the appropriate use of force in dealing with the public security aspect. This becomes an even more complicated issue when there is no law enforcement agency of any form or civil authority capable of enforcing a code of law. The troops will often in these circumstances be caught between the force appropriate for combat situations and something more akin to civil policing.³⁹ This difficult circumstance places emphasis on two aspects of military preparation: the training of the troops and the rules of engagement. It was clear in Somalia that some troops were better prepared for the complexity of the operation than others.⁴⁰ The Canadian Airborne Regiment Battle Group (CARBG) was able to achieve much good work in the Belet Weyn area, but its reputation was tarnished by the inappropriate manner in which the unit dealt with the issues of base security and crowd control. This deficiency was a consequence of disciplinary problems within one of the subunits; poor leadership and command attitude in relation to ROE standards; inadequate training of at least one subunit and the lack of a proper framework for effecting the ROE.⁴¹

It is not advisable to deploy assault units of this kind into a situation like Somalia without careful supplementary training. This was recognized, for example, in the preparation of the 1^st Battalion, Royal Australian Regiment (1 RAR), before it deployed to Somalia. While this unit was also trained for intense and aggressive combat, in the 2 years prior to the Somalia deployment it had been coming to grips with more complicated mission concepts. These revolved around low-level conflict scenarios in Northern Australia and Services Protected Evacuations of Australian citizens in circumstances such as internal conflicts and the disintegration of law and order. In the course of this training the soldiers learned to deal with varying levels of threat and the discriminating use of force. The training was in reference to two simple states of restraint based on a “red” and an “amber” card. The cards are plastic and carried permanently in the soldier’s basic pouch. The cards themselves would be meaningless, of course, without appropriate training. Training might consist of taking a rifle platoon and having members of the platoon play act a scenario with props in an outdoor setting. The remainder of the platoon would observe as the scene was played out. Afterward, the soldiers would be queried as to appropriate responses and given the opportunity to ask questions and discuss the issues. The scenarios would then be varied to present gradations of the problem. In subsequent exercises the troops would be exposed to civilians, sometimes their own families, who had volunteered to participate. Also encountered would be delegates of the ICRC who have been incorporated into major Australian exercises since 1989.

This soldier-level regime of standard response is called orders for opening fire (OFOF), to distinguish it from higher level ROE reserved for commanders in control of significant weapon systems which focus more on the strategic implications of conflict. The OFOF training emphasizes certain key elements of the soldier’s decision making reference. The first is the clear identification of the target. This was a fundamental discipline in Somalia to which the soldiers adhered exceptionally well.⁴² This concept places soldiers under the stricture that they must be able to identify the target to be fired upon as hostile or the source of a hostile act (depending on the circumstances) and not open fire indiscriminately or engage, for example, in “reconnaissance by fire.”⁴³

The element emphasized and debated most extensively in the training is the issue of self-defense and proportionate or necessary force. Here, through demonstration and discussion, the soldier is made intimately familiar with the concepts of this legal standard and the parameters set by the courts. The goal here is threefold: reduce the hesitation of the soldier that might otherwise result in his death or the death of a person it is his duty to protect; minimize the risk to innocent bystanders; and equip soldiers with the means of explaining and accounting for their actions in any subsequent review.

In training, the concept of the proportionate use of force is carefully explored. The focus here is providing soldiers with guidelines as to the options they might use when confronted with particular situations. The first distinction drawn is whether the soldier faces a lethal or nonlethal threat. If they face a nonlethal threat that nevertheless has the potential to cause physical injury, then methods of responding are canvassed such as the use of batons, warning shots, or Riot Control Agents. The force they are instructed to apply in this circumstance must be no more than is required to neutralize the threat; it must not kill or cause more bodily harm than is absolutely necessary. In response to a lethal threat, soldiers are authorized to use whatever means they can to counter the threat including the employment of lethal force subject only to the requirement to attempt to minimize the risk of death or injury to innocent bystanders.

When 1 RAR was warned for deployment to Somalia, the troops were put through refresher OFOF training, which was modified according to the known facts about the operational environment, the specific ROE for the mission, and the law and order role. They were permitted to employ the level of firepower considered necessary to neutralize the threat, restricted by consideration of the proportional risk to civilians. In this respect the training of the soldiers in the Laws of Armed Conflict and discussion in the acted out scenarios assisted them in judging the issue of proportionality. This training and the command philosophy of the commanding officer also highlighted the individual responsibility of the soldier and the standards of behavior expected of them when dealing with civilians. This training was validated when members of the contingent reportedly observed violations of these standards committed by members of another contingent resulting in disciplinary action.⁴⁴ Any reports of an inclination to lack respect for the local population were quickly acted upon by the commanding officer. The combination of training, realistic ROE, command philosophy, the creation of a law and order regime relying on the law of occupation and a civic action program explains the remarkable good will enjoyed by the Australian contingent with the local population. No progress in rehabilitating the public security function can be made without maintaining the good will of the population.

It is therefore imperative for common standards to be developed in the application of force and the Laws of Armed Conflict for all troops who are nominated to become part of a peace operation with a public security dimension. To this end, it is a matter of some urgency that a training package be created and adopted by the United Nations and by regional military cooperation organizations that focus on the essential elements of behavior and the application of force for peace operations. This package should then be provided to every prospective troop contributing nation, and a training regime commenced for those forces who have been nominated as part of the standby force arrangements between the United Nations and participating countries.

The United Nations should have a permanent training officer who can advise on the implementation of this training and monitor the standards attained. The advice of this officer could then be obtained as to whether a contingent being offered for a mission had achieved a satisfactory level of training in this respect, measured against the type of operation. Such a package could form the basis of a general standard to apply to all armed forces in the same manner as U.N. rules relating to standards of criminal justice.

Training should also be put into effect to prepare troops to operate in accord with the particular ROE for a given mission. When ROE are promulgated to supplement or alter original ROE, then the onus is on commanders to ensure there is proper briefing and training for troops expected to adapt to new operating conditions,⁴⁵ as explained by Colonel Kenneth Allard, U.S. Army:

It is a fundamental prerequisite that the military force be well disciplined and led by forceful and moral leaders. This basic soundness prevented contingents like the U.S. and Australian troops from experiencing the extent of the problems other contingents had in Somalia and on other operations. This is not enough, however. It is also important that the commanders of the contingents examine carefully the management of the application of force in peace operations.⁴⁷ In this respect the commanders must appreciate the differing circumstances of operations so that they will understand that most peace operations are closer in nature to what used to be termed “counterinsurgency” operations, now given the generic term Low-Intensity Conflict.

Those commanders who are not sensitive to the subtleties of such operations should not be appointed. This was one of the major lessons to emerge from the Canadian experience in Somalia, much of the explanation for which stems from the attitude of the Airborne Regiment leadership at the time. The employment of firepower must also be highly selective and confined. The circumstances of peace-enforcing occupations and humanitarian interventions dictate a standard higher than would apply in a state of war and therefore it is incumbent on commanders to adopt tactical options that offer a more surgical approach. This once again places emphasis on the need for the assets to open up such options, including special forces and intelligence.

Justice Reconstruction and Interim Measures

We have seen how important an effective justice reconstruction program was to the overall success the Somalia intervention hoped to achieve and how this was not reflected in the urgency, resources, or efficiency with which the issue was approached. The recurrence of this central problem in peace operations requires that the international community find a way of addressing it at the outset of the contemplation of a mission.

The two crucial aspects of creating an effective international response are funding and physical capability. First, the program in Somalia suffered because funds to support it could not come from the peace-keeping budget for the mission, but had to come instead from donors. Perhaps the United Nations may have had greater success in raising funding support had it used the argument that the troop- contributing countries had obligations in this respect under the laws of occupation. In missions of this type in the future, where it is clear that the re-establishment of a justice regime is going to be involved, an estimate should be provided as to the costs involved. This cost should then be factored into the determination by the Security Council and contributions assessed against Member States in accordance with their assessed proportional contributions to the United Nations in general. In “contracted out” operations, which appear to be the most likely for the foreseeable future, participating states should be required in the authorizing resolution to organize an effective means of dealing with such reconstruction issues in tandem with the United Nations and other agencies.

Second, having noted the difficulty of quickly deploying civilian experts in a peace operation, what is the interim solution? It is essential that some nations who are intending to offer standby forces to U.N. operations develop a deployable civil affairs capability geared to address the restoration and maintenance of law and order. Such units could deploy rapidly, at less cost, and in harsher environments than civilian alternatives. Once circumstances permit, these units could either hand over control to civilians or to local authorities who had resumed functioning. They would have the capability to establish interim measures such as military courts to hear cases involving major offenders against the force and public order. It would also be equipped and staffed to conduct investigations to support the work of international criminal tribunals or assist local prosecution efforts against major violators of international humanitarian law. These units could use as their reference the provisions of the laws of occupation and international standards established by conventions, general principles, and published U.N. rules. Under these authorities a basic code could be drawn up that could serve as an interim regime in the worst case of no local code capable of application. Primarily the focus should be on rehabilitating pre-existing local codes pursuant to the obligations of the law of occupation. The world is predominantly divided into criminal law traditions derived from the Napoleonic Code, English Common Law, and/or Sharia Law. The nation called upon to contribute a civil affairs unit to a mission could be selected on the basis of a tradition or capability matching the assisted country so that familiarization on deployment will be quicker. The NGO community could also be drawn into such efforts.

Apart from the failure of UNOSOM to deal effectively with justice reconstruction for reasons of funding and capability, it was critically undermined by the approach taken during the UNITAF phase to the issue and the restoration and maintenance of order in general.⁴⁸ This stemmed from the reluctance to recognize the need for a framework for the interim administration of justice and the rejection of the laws of occupation for this purpose. One option in this early phase, according to the former head of the Somali police force, Brigadier Ahmed Jama, would have been to have foreign judges come in to operate courts until a transitional government was formed and enough judges found, trained, and vetted to take over. He believed this was necessary at least in Mogadishu, where it would take some time for the people to accept that a Somali judge would not be clan biased. He believed the foreign judges would have been required for at least a year,⁴⁹ which would have created problems for UNITAF and UNOSOM because of the uncertainty both experienced over the authority for taking such action. This authority was clearly available under the law of occupation. This option has been partially adopted in the pacific occupation arrangements of the Dayton Agreement where nonnationals have been nominated to the role of Human Rights Ombudsman and on the panel of the Human Rights Chamber.

The failure to establish any form of effective law and order regime by either UNITAF or UNOSOM led directly to the frustration that emerged among the troops of contingents where no alternative had been attempted similar to the Australian initiatives. This frustration led to incidents that would only further alienate the troops from the population and seriously damaged the international image of the operation. The frustration of troops who have their initial motivation to help restore order checked, plus the loss of faith of a population with high expectations of what the force will do to restore security to their lives, combine to produce a tragic atmosphere of bitterness, futility, and the decay of morale. There was also confusion among the commanders trying to come to grips with the complexity of the operation. In considering the detainee issue, the Canadian Board of Inquiry into the CARBG made what was a common error in Somalia—looking for guidance on the handling of detainees in the Third Geneva Convention of 1949 Relative to the Treatment of Prisoners of War, rather than in the Fourth Convention.⁵⁰ All troop-contributing governments and the United Nations have a responsibility to ensure that the men and women of their armed forces are never placed in such a position again. No mission into a failed state or to establish a safe haven should proceed without an interim administration of justice plan and a concept of operations with the appropriate resources and assets for the longer term restoration of the local capability.⁵¹

Such plans do not necessarily imply the commitment of vast sums of money and personnel. The Australian experience in Baidoa proved that much can be achieved with little; in fact, the best approach is to rely as much as possible on what can be gleaned locally. For example, it was not necessary to bring large numbers of police trainers to Somalia. In many cases the trainers that were brought in had inferior training to the formerly highly competent Somali force and were an insult to the locals. The Australian approach of locating survivors from the old police academy and putting them to work doing the training in coordination with members of the former Somali Criminal Investigation Division (CID) and Somali judges was the better and would have saved much time and money. Similarly, weapons could have been issued from the confiscated stock and buildings restored from the least damaged available. The police could have been equipped with vehicles from confiscated technicals or the vehicles of bandits. All that may have been needed then was some basic office equipment, stationery, communications gear, generators, and uniforms to supplement what was salvaged from Somali stock in Kenya.

Another measure that should have been adopted to help finance the operation in terms of pay for the police and judges was the commencement of some form of rudimentary taxation, once the markets, farms and livestock trade were functioning again in areas where councils were established. The Somali Democratic Movement (SDM) council in Baidoa had wanted to commence taxation for this purpose toward the later period of the Australian presence. As the justice system was providing a secure environment for the economy, to revive the measure would have had moral logic. The authority that could have been used to provide a framework for taxation was the law of occupation. Under these provisions the force may gather revenue for the administration of the territory and take measures necessary for the welfare of the population. As long as the taxation was applied solely for paying local personnel, it would have been easily justified. In this way the officials would be paid in accordance with what the economy could bear and there would be no difficulty of sustainability after U.N. departure or lowering of expectations, and one less string to the cycle of dependency could be severed. To avoid any acrimony within the population from the United Nations gathering the revenue, re-established councils acting in accord with U.N. guidelines and under U.N. supervision and financial monitoring could have collected the actual monies.

Perhaps the key issue a law-and-order regime would have had to contend with is the position to be taken toward the warlords. Prosecution action greatly assisted the long-term objectives of the Australian contingent in Baidoa. It was advocated in some quarters that all the warlords who had been guilty of committing grave atrocities during the civil war should have been arrested en masse and placed on trial.⁵² What would have been the correct approach? For the seizing of the warlords to have been effective, in the sense of being seen to be evenhanded and preempting conflict with any particular faction, all the warlords would have had to be arrested simultaneously. Clearly this would have been extremely difficult and fraught with great risk. There is also the important consideration that there ought to be some evidence connecting particular individuals with specific acts, in the possession of the seizing force, that would justify every arrest if it was intended to bring the warlords to trial. Such evidence would not have been available, if at all, until after careful investigation. More legally sustainable would have been the detention of the warlords on the grounds of the threat they represented to public safety and the safety of the force. This would still have carried grave operational risk and would have been difficult to execute.

A more feasible approach would have been the establishment, once the force was effectively and securely established, of a humanitarian law violations investigation operation to gather evidence of atrocities committed during the civil war. Initially, regional bandits such as Gutaale in Baidoa and Jess and Morgan in the south could have been targeted for possible prosecution (as opposed to the approach taken in the hunt for Aideed). Once sufficient evidence had become available, the warlords could have been arrested, when the opportunity presented and without announcing beforehand that these individuals were being sought. Targeting the lesser regional figures would have sent a powerful message to the major faction leaders to cooperate lest the same fate befall them. It would have had the added benefit of eroding the regional support for these main players. This proved to be the case with the warlord Gutaale, who was tried and executed in Baidoa and whose demise resulted in a reduction in revenue and support for Aideed.

International Tribunals

The idea of an international tribunal to try such figures is fine in theory. However, the difficulty in establishing the Rwanda and Former Yugoslavia tribunals indicates that these instruments cannot be rendered operable within at least a year. The other problem with a tribunal in the Rwandan circumstance is that it focuses attention and funding on an external legal mechanism rather than on reviving the local system. The Rwandan Tribunal could only prosecute at best a small number of perhaps the key figures in the genocide. In the meantime, 100,000 languish in appalling conditions in Rwandan prisons awaiting trial. Many of these people have had accusations leveled against them that have not and will not be supported by further evidence but who have been nominated by the word of a single complainant who may have had particular motives for making the accusation, such as acquiring the land of the accused.⁵³ While the trial of the key figures by the tribunal is desirable, the real problem is the inability of the system to handle the languishing thousands. An Argentinian team working in Ethiopia⁵⁴ concentrated on enabling the Ethiopians themselves to handle the investigation and prosecutions relating to the atrocities committed by the Mengistu regime.⁵⁵ In Somalia, the priority should have been in equipping Somalis to prosecute the bandits and warlords. Major figures beyond the capability of the locals to handle could have been tried by the domestic courts of one of the troop-contributing states where there was evidence of such persons having committed grave breaches of common Article 3 of the Geneva Conventions of 1949. With no Somali sovereignty left to offend, and these figures having passed into the hands and authority of the occupying power, this would have been justifiable.

More robust but still limited action was taken by SFOR in support of the Hague Tribunal in Bosnia. Once again the question arises of whether such action is wise in the context of establishing the momentum of a peace process, with the hope of moving away from confrontation and recrimination. However, this is really a question of timing, building confidence, equitable dealing, and demonstrating the value of due process as opposed to summary revenge or stored grievances for a later conflict. In this respect apprehension and trial of offenders should be, where possible, evenhanded. In other words, if a Serb is to be arrested, then attempt to also arrest a Croat or Muslim suspect. In particular focus should be on the prime instigators. Once again, the emphasis should be on ensuring that the internal processes of justice in Bosnia are efficacious and eliminate the suspicions of ethnic groups.

There may be established in the future a permanent international criminal court before which may be brought major violators against international humanitarian law. Notwithstanding this possibility, the priority of effort should always be in enabling the assisted country to conduct its own trials in missions seeking to salvage and revive collapsed states. This approach is better for the long-term viability of such states and is a better investment than spending large sums of money to support international tribunals conducting trials outside of the assisted country.

Property Disputes

Justice reconstruction should not focus solely on the issue of maintaining order, however. As the Australian experience in Baidoa and the operations in Haiti and Rwanda have demonstrated, an integral factor in laying the foundations for long-term order is the need to address the attempted usurpation of ownership of land and property, often accompanied, as in Baidoa, by genocidal activities.⁵⁶ It is essential to include a mechanism for resolving land and property disputes in many operations, and this may include establishing a special tribunal. The same logic as was discussed in relation to crimes tribunals applies here in that effort should be directed primarily at creating an indigenous capability to deal with these matters, albeit perhaps with close supervision. This can help take the heat out of potentially explosive situations.

The Long-Term View

The mission in Somalia could have achieved a great deal more had the international community been fully committed to the long-term view, finally expressed in U.N. Security Council Report 814, from the first day the troops hit the beach and sent in assets capable of carrying it out with them. In principle it is possible to restore a Somalia, a Rwanda, a Liberia, an Ethiopia, or many other situations like them. The world learned how to go about such a task in Germany and Japan after World War Two and is relearning in Haiti and Bosnia. Internal civil wars and/or social breakdown pose much greater difficulties, but they are not insurmountable. Resolution of such conflicts depends on the ability of the intervening force to manage and begin the resolution of inherent grievances, to guarantee security, and to create mechanisms that will give all parties confidence that this guarantee will continue on the departure of the force.

When dealing with the public security issue in a collapsed state scenario, the idea that laboratory solutions produced in Western think tanks can be automatically and inflexibly applied should be dispelled. Similarly the concept that all developing states should be made over in the image of Western economies and societies is destructive of the social fabrics that must be built upon for long-term results and usually cannot be sustained by the environment or resources of the assisted country. The failure of the instant “short sharp shock” remedies applied to some post-Cold War Eastern Bloc countries has demonstrated the counterproductive consequences of this approach. An intervention should deploy with a capability and with experienced staff in key positions but should be prepared to be flexible and imaginative, adapting the mission to the circumstances and being as inclusive of the local population and sensitive to their culture and laws as possible. It must also be prepared to remain engaged in one form or another for an extended period, with 5 years being a suggested conceptual planning figure.

From the perspective of the military it is critical that the public security function in peace operations be addressed in planning for the early phases of a deployment and force structures adjusted accordingly. Where a public security function is likely to be significant, it is advisable that a Civil Affairs Task Force be formed to include sizable units of military police, engineers, and civil affairs specialists in the areas of administration and law, including the three aspects of police, prisons, and judiciary. The public security function is a thorny nettle, but it is one that can be grasped if we properly equip ourselves for the task. It is worth the effort to do so, for if the issue is dealt with effectively, the cultivation of a lasting peace has a brighter prospect.

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