Law of Property From Page 87. By Amoo.pdf - UNIVERSITY OF BOTSWANA LAW JOURNAL VOLUME 9 JUNE 2009 ARTICLES Peacekeeping in Africa Problems and

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Unformatted text preview: UNIVERSITY OF BOTSWANA LAW JOURNAL VOLUME 9 JUNE 2009 ARTICLES Peacekeeping in Africa: Problems and Prospects..............................................3 L. Juma Some Contemporary Challenges Facing Family Law in Botswana.................25 E.K. Quansah From the Organisation of African Unity to the African Union: Rethinking the Framework for Inter-state Cooperation in Africa in an Era of Globalisation.....................................................................49 T. Maluwa Namibian Land Law: Law, Land Reform and the Restructuring of Post-Apartheid Namibia.......................................................87 S.K. Amoo & S.L. Harring RECENT LEGAL DEVELOPMENTS Botswana - E.N. Macharia-Mokobi...........................123 Lesotho - Q. Letsika................................................135 Nigeria - A.O. Enabulele........................................141 South Africa - A. Anderson............................................155 2 UNIVERSITY OF BOTSWANA LAW JOURNAL JUNE 2009 3 ARTICLES Peacekeeping in Africa: Problems and Prospects L. Juma* ABSTRACT Against the background of an expanded need for peacekeeping, the complexity that its programmes entail, and the belief that it will endure for a long time to come, this article discusses the propriety of international peacekeeping operations, its inherent features and weaknesses in creating or preserving peace, and the role that regional organisations play, or should play, in its enhancement. The article traces the history, albeit in brief, of peacekeeping in the continent while acknowledging the political and economic changes that have transformed its programmes. It also appraises the successes and failures against the background of the challenges that peacekeeping operations have had to contend with. Overall, the article draws the conclusion that much of what will become of peacekeeping in the future will depend on the reform of the UN Security Council and the level of participation of the African Union and sub-regional organisations in peacemaking and peacebuilding initiatives on the continent. 1. INTRODUCTION The single most emphatic response to African conflicts by the international community has been through peacekeeping operations.1 Beginning with the truce supervision programmes of the United Nations early years, peacekeeping operations have matured into complex forms of interventions with multidimensional approaches to conflict abatement, human rights enforcement and even regime stabilisation.2 This evolutionary trend has been rendered on the one hand, by the complicity of globalisation trends and the expansion of the neo-liberal agenda after the demise of the Cold War, and on the other, by the rise of complex internal conflicts, mostly on the African continent.3 1 2 3 Associate Professor of Law, Rhodes University. With over 54 missions established world wide since 1948, the prominence of peacekeeping as an instrument of international peace and security cannot be overstated. In 1988, UN peacekeepers were awarded the prestigious Nobel Prize in recognition of their contribution to world peace. S. Ratner, “Peacemaking, Peacekeeping and Peace Enforcement: Conceptual and legal Underpinnings of the UN Role — An American Perspective,” in S. Harrison and M. Nishihara eds., UN Peacekeeping: Japanese and American Perspective, Washington DC, Carnegie Endowment for International Peace (1995), pp. 17-30; Roy Lee, “United Nations Peacekeeping: Development and Prospects,” 28 Cornel International Law Journal (1995), p. 619. T. Neethling, “International Peacekeeping Trends: The Significance of African Contributions to African Peacekeeping Requirements,” 31(1) Politikon (2004), p. 49 at 50. For the change in the nature of conflicts see, generally, M. Kaldor, New and Old Wars: Organized Violence in a Global Era, Cambridge, Polity 4 UNIVERSITY OF BOTSWANA LAW JOURNAL JUNE 2009 Unfortunately, this evolution has engendered considerable criticism, especially on its viability as conflict reduction and stabilization mechanism.4 But this is not entirely without cause. Invariably all UN peacekeeping operations in Africa have been poorly managed, with Somalia providing a perfect example.5 In other cases, UN response to peacekeeping needs have been slow or simply absent, like in Rwanda.6 But the greatest frustration has been the inability of peacekeeping operations to create conditions for sustainable peace. Civil wars in Angola, DR Congo, and even Somalia have continued for a long time with peacekeepers on the ground.7 Recently, analysts have pointed to the worsening situation in Darfur despite the presence of the UN/AU peacekeeping forces on the ground.8 Thus, the overall picture that seems to be associated with international peacekeeping is that of dismal resources, incongruence of mission, and even apathy to African problems. Despite these weaknesses and problems, the need for peacekeepers has not abated. Currently, many nations and humanitarian organisation are demanding for an increased UN involvement in DR Congo.9 The political crisis in Ivory Coast and the humanitarian crisis currently developing in Zimbabwe have equally attracted calls for peacekeeping interventions. In 3 4 5 6 7 8 9 Press (1999); K. Holsti, The State, War, And The State Of War, Cambridge, Cambridge University Press (1996), pp. 19-40. See for example A. Roberts, “The Crisis in UN Peacekeeping,” in C. Crocker et al eds., Managing Global Chaos, Washington DC, US Institute of Peace (1996) p. 299; R. Wilde, “Taxonomies of International Peacekeeping: An Alternative Narrative,” 9 ILSA Journal of International & Comparative Law (2003) p. 391; R. Thakur and C. Thayer eds., A Crisis of Expectations: UN Peacekeeping in 1990s, Boulder Co, Westview (1995). See also, “The Future of peacekeeping,” New York Times, 8 January 1995 at A24. The editors, while calling on the UN to rethink its peacekeeping strategies so that there can be a “shift back toward more limited objectives like policing cease-fires, asserted that the traditional peacekeeping was good: It makes no sense to continue eroding its credibility by asking it to do what it cannot.” See M. Bryden, ‘Somalia: Wages of Failure’ 94 Current History, (1995) p.145; J. Drysdale, Whatever Happened to Somalia? A Tale of tragic Blunders London, HAAN Associates (1994); Martin Meredith, The Fate of Africa: From the Hopes of Freedom to the Hearts of Despair, New York, Public Affairs (2005) pp. 470-484; M. Huband, The Skull Beneath the Skin: Africa After the Cold War, Boulder Co, Westview (2001) pp. 277-306; Michael Marren, “Somalia: Whose failure?” 95 Current History (1996) pp. 201-205. See generally, M. Mamdani, When Victims Become Killers: Colonialism, Nativism, and the Genocide in Rwanda, Princeton, Princeton University Press (2001); P. Gourevitch, We Wish to Inform you that Tomorrow We Will be Killed with Our Families New York, Farrar Straus & Giroux (1999); G. Prunier, The Rwanda Crisis: History of a Genocide New York, Columbia University Press (1995). A. Roberts loc.cit. in note 4; K. Emizet, “The Massacre of Refugees in Congo: A Case of UN Peacekeeping Failure and International Law,” (2000) 38(2) Journal of Modern African studies (2000), pp. 163-202. Srebrenica in 1995, which is still remembered as one of the UN’s most appalling peacekeeping blunders. One analyst has summed it up as follows: “Srebrenica was militarily indefensible, but only because the UN military deterrent operated under ambiguous and unweidly rules designed less to protect Bosnians than to avoid western casualties and obscure the accountability of western governments.”See Charles Lane, New Republic, 14 August 1995. See also, the Report of the UN Secretary General to the General Assembly, “The Fall of Srebrenica” 15 November 1999 (available at srebrenica.pdf); See also, Jean-Marie Guéhenno, “On the Challenges and Achievements of Reforming UN Peace Operations,” 14(2) International Peacekeeping (2002), p. 69 at 72. See “More EU Peace keepers Deployed in DRC” RTE News, 22 August 2006 (available at http:// ); “Thousands more UN troops needed in DRC” CAFOD News 23 March 2005 (available at ). For a detailed analysis of the conflict see G. Nzongola-Ntalaja, The Congo: From Leopold to Kabila, New York, Zed Books (2003); L. Juma, “The War in Congo: Transnational Conflict Networks and the Failure of Internationalism” 10 (2) Gonzaga Journal of International Law (2006), pp. 97-162 (available at http:// ). PEACE-KEEPING IN AFRICA 5 Somalia, a renewed interest by the international community accentuated by the fear that terrorist elements may have infiltrated the leadership ranks of the Islamic Courts, a group of fundamental Islamist group staking leadership to a greater portion of the country, has already spurred the African Union (AU) into sending a paltry contingent of peacekeepers there.10 Given these developments, and the fact that the community of world nations by and large still share the view that the UN should play the central role in matters of international security, peacekeeping is unlikely to vanish from the international peace agenda anytime soon.11 Considering too, that the terminology of peacekeeping is slowly expanding to encompass conflict resolution strategies that hitherto had no recourse to the international system, the movement towards its reform is likely to overshadow any quest for its abandonment. And with continental efforts revealing acute paucity of resources needed to sustain lengthy engagements in conflict zones, the role of UN is likely to remain central to any peacekeeping programmes in Africa. It against this background that this article examines the major constraints that attends to UN peacekeeping in Africa. It takes the view that peacekeeping could be an essential feature in peace-building, human rights enforcement and humanitarian intervention processes if its conceptual base were fortified with a strong normative regime, and its operational aspects matched with adequate resource and structural support. 2. THE NATURE OF INTERNATIONAL PEACEKEEPING Peacekeeping evolved from a climate of international incongruity rendered by the Cold War superpower standoff. This climate, diminished the UN Security Council’s ability to make effective use of pacific measures to resolve conflicts and/or enforce peace, and threatened to make the entire UN system irrelevant to world security, and its peace functions, moribund.12 But world leaders, keen to preserve the image of the organisation, created a role for it in conflict resolution by devising a system of using impartial and non combative force to maintain ceasefires. The idea was based on the assumption that the interposition of “neutral” soldiers between two warring groups may reduce the chances of renewed combat, calm heated passions and ultimately deliver peace. Thus, international peacekeeping was born, and its first soldiers sent to 10 11 12 The African Union Mission to Somalia (AMISON) was created in January 2007 by the AU’s Peace and Security Council. It is now composed of soldiers from Uganda, Nigeria, Malawi, and Burundi. See also F. Fall, ‘UN Security Council Resolution 1744 (2007) Authorising the AU Mission in Somalia (AMISON)’ 14(5) International Peacekeeping (2007), pp. 675-678. GA Res 58/317 adopted on 5 August 2004 where member states affirmed the role of the UN in the maintenance of peace and security. See generally, R. Higgins, United Nations Peacekeeping: Documents and Commentary (4 Vols.) Oxford, Oxford University Press (1969-1981). 6 UNIVERSITY OF BOTSWANA LAW JOURNAL JUNE 2009 the Balkans in 1947 under the banner of the UN Special Mission to the Balkans (UNSCOB).13 A year later, the UN dispatched military personnel from its headquarters to the Middle East under the Truce Supervisory Organisation.14 Since then, peacekeeping has become a major component of the UN’s work around the world. Studies have now identified five to seven different epochs in the continuum of the UN peacekeeping involvement the world over.15 The first period was between 1946 and 1956 and is often described as the nascent period; 1956 to 1967, the assertive period; 1967 to 1973 as the dormant period; 1973 to 1978 as the resurgent period; 1978 to 1993, the maintenance period; 1988 to 1993, the expansion period. Recently, Dennis Jett has labelled the period between 1993 to present day as the period of contraction.16 Peacekeeping most invariably follow the conclusion of a peace agreement or accord. It does not bring about agreement between the fighting groups, but assists in implementing the agreements already reached. This may occur in situations where parties have agreed to a temporary cessation of hostilities, and the presence of a neutral force will then act as a deterrent measure. Also, it may create a favourable atmosphere for the implementation of other terms of the agreement. In the early days, it was anticipated that these objectives could be achieved without the use of force. However, modern manifestations have seen a continued increase of situations where UN peacekeepers are called upon to use force.17 Thus, even though the United Nations strategy in internal wars has always been to deny both combatants victory and to persuade them that “the use of force to resolve dispute will not succeed,” as suggested by John Ruggies, peacekeeping is an undertaking that today exceeds the mere stabilisation of a conflict situation.18 That is why the term peacekeeping has become the “catch all” phrase that encompasses a varying range of tasks which UN forces in a conflict arena are often called to do. In Africa, UN peacekeeping activities have included the general freezing of conflict and maintenance of ceasefires; assisting in disarmament and decommissioning in DR Congo and Sierra Leone; monitoring of elections in Namibia; assisting in the delivery of humanitarian services in the DR Congo and Somalia; reporting on violations of human rights in DR Congo. In some cases they have even prepared the groundwork for the establishment of an 13 14 15 16 17 18 R. Rotberg, “Peacekeeping and Effective Prevention of War,” in R. Rotberg ed., Peacekeeping and Peace Enforcement in Africa: Methods of Conflict Prevention, Washington DC, World Peace Foundation (2000), p. 3. Ibid. See H. Wiseman, The United Nations and International Peacekeeping: A Comparative Analysis, in the United Nations and the Maintenance of International Peace and Security, UNITAR, (1987), pp. 264-99. See D. Jett, Why Peacekeeping Fails, New York, Palgrave Macmillan (1999), pp. 22-23. See generally, J. Helderman, “Legal Basis for United Nations Armed Forces,” (1962) 56 AJIL (1962), p. 971; D. Bowett, United Nations Forces: A Legal Study London, Stevens (1964), p. 485. J. Ruggie, “Wondering in the Void: Charting the United Nations’ New strategic Role,” 72 (5) Foreign Affairs (1993), pp. 29-31. PEACE-KEEPING IN AFRICA 7 international human rights tribunal.19 2.1 The Problem of Definition Despite its prominence, peacekeeping still lacks a proper definition. The word peacekeeping does not appear even once in the UN Charter’s 111 articles. One might argue that the general absence of a formal Charter framework for all peacekeeping operations renders them flexible and thus adaptable to conditions of difficulty upon which they are deployed. But given that the UN functions on the basis of consent and impartiality, the lack of uniformity portends a great risk. Ironically, this is precisely the reason why the UN sponsored Intergovernmental Committee on Peacekeeping Operations, rejected the idea of putting a precise definition on the term. Doing so, they argued, would impose “a straitjacket on a concept whose flexibility made it the most pragmatic instrument at the disposal of the world organisation.”20 But, such broad use of the term, implied by the lack of concrete legal definition has bred misconceptions and confusion among the players in any arena of conflict – a fact that has limited the debate as to the legal responsibility of a peacekeeping operation or what exactly it ought to accomplish. The misconception may somewhat be a product of deliberate policy machinations of the UN and its collaborators meant to relegate concerns as to the quality of UN engagements in conflict zones and the prospects of establishing a more permanent rapid response force away from the mainstream of international security debate. But, defining the role peacekeepers are expected to play is key to the elimination of false expectations and the determination of the overall success of any mission.21 Despite the want of definition, a little inference can be drawn from Article 43 which enjoins member states to contribute to the maintenance of international peace and security by undertaking to make available to the Security Council their armed forces and other military resources. Although the formal recognition of peacekeeping as an instrument of international security came in 1965 with the establishment of the Special Committee on 19 20 21 Rwanda after the genocide and Sierra Leone after the civil war are good examples. See P. Akhavan, “The International Criminal Court for Rwanda: The Politics and Pragmatics of Punishment,” 90 AJIL (1996), p. 501; L. Juma, “The Human Rights Approach to Peace in Sierra Leone: The Analysis of the Peace Process and the Human Rights Enforcement in a Civil War Situation,” 30 Denver Journal of International Law (2002), p. 325. See S. Tharoor, “The Changing Face of Peacekeeping and Peace Enforcement,” 19 Fordham International Law Journal (1995), p. 408. US Senator John McCain in reference to the Somali debacle lamented, “Neither the UN Secretary General, the Security Council, the General Assembly, nor for that matter, the Clinton administration could define the concept in the same way one day to another or from one country to another. To the Americans, peacemaking in Somalia meant feeding a starving people. To the UN Secretary General it meant war lord hunting.” See J. McCain, “The Proper United States Role in Peacemaking,” in D. Quin ed., Peace Support Operations and the US Military, Washington DC, National Defence University Press (1994), p. 97. 8 UNIVERSITY OF BOTSWANA LAW JOURNAL JUNE 2009 Peacekeeping Operations, 22 still, there has been no clear definition. But the term has gained acceptance within diplomatic circles, international legal community and even within the UN itself as general reference to “the prevention, containment, moderation and termination of hostilities between or within states, through the medium of peaceful third party intervention organized and directed internationally using a multinational force of soldiers, police and civilians to restore and maintain peace.”23 Goulding has defined it as a military operation by and under the command of the UN carried out with the consent of parties concerned to help resolve the conflicts between them, but at “the expense collectively of member-states, and with military and other personnel and equipment provided voluntarily by them, acting impartially between parties and using force to the minimum extent necessary.”24 Boutrous Ghali, in his famous treatise, Agenda for Peace, defined thus: “The deployment of a United Nations presence in the field, hitherto with the consent of all parties concerned, normally involving United Nations military and/or police personnel and frequently civilians as well. Peace keeping is a technique that expands the possibilities for both prevention of conflict and the making of peace.”25 This characterisation extends the meaning to include, preventive diplomacy, peace-making and peace-building. The four correlative terms were coined out of the effort to surmise an understanding of the UN involvement in conflict situation as a composite undertaking with a myriad of objectives. Indeed, such an understanding emerged as early as 1961 when the idea of “preventive diplomacy” was used in reference to the peacekeeping operati...
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