With a U.N. Intervention Brigade in place and moving toward operation-readiness in the next month, questions have surfaced regarding the legal status of the deployment.

More than 3,000 troops from Tanzania, Malawi, and South Africa reportedly have assembled in Goma, in the eastern part of the Democratic Republic of the Congo. (map credit) This Intervention Brigade, Melbourne Law Professor Bruce “Ossie” Oswald writes in a new ASIL Insight, is intended as the United Nations’ “first-ever ‘offensive’ combat force.” By dint of Security Council Resolution 2098 (March 28, 2013), the Brigade has been authorized “to undertake military operations against armed groups” in order to “help the Congolese Government strengthen its control over territory.” As stated in ¶ 12(b) of Resolution 2098, the U.N. mission, MONUSCO, is authorized to support Congolese authorities, working unilaterally or together with Congolese armed forces,

‘taking full account of the need to protect civilians and mitigate risk before, during and after any military operation, [to] carry out targeted offensive operations through the Intervention Brigade …, in a robust, highly mobile and versatile manner and in strict compliance with international law, … to prevent the expansion of all armed groups, neutralize these groups, and to disarm them in order to contribute to the objective of reducing the threat posed by armed groups on state authority and civilian security in eastern DRC and to make space for stabilization activities; …’

(A little further into the resolution, ¶ 12(d), which makes no reference to the Intervention Brigade, authorizes MONUSCO to “[s]upport and work with the Government of the DRC to arrest and bring to justice those responsible for war crimes and crimes against humanity in the country, including through cooperation with States of the region and the ICC.” The International Criminal Court Situation in the Congo currently lists 1 at-large accused.)

Though some civil society groups were reported to support the Brigade, in recent weeks 19 nongovernmental organizations wrote U.N. Secretary-General Ban Ki-moon to express concern about the relation between the Brigade and other activities in the region. In a followup interview, one organization stressed the need to keep any “military action” separate in order not to block humanitarian access to civilians.

Meanwhile, Oswald’s Insight unpacks numerous legal issues, though it offers no certain answers to them. He asks:

► Is the Brigade to be considered a party to the conflict, and if so, does that consideration extend to the entire U.N. mission in the country?

► What is meant by the Security Council’s grant to the Brigade of authority to “neutralize” armed groups?

That uncertainty gives rise to other questions. One such question jumps to mind on reading Oswald’s quotation of a 1999 Secretary-General’s Bulletin to the effect that if members of the Brigade are classified as combatants in the conflict,

‘they “can be legitimate targets for the extent of their participation in accordance with international humanitarian law”.’

Article 8(2)(b)(iii) of the Rome Statute authorizes the International Criminal Court to prosecute persons for the war crime of

‘[i]ntentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict ….’

Notably, the offense already has been charged in the court, in the Situation in Darfur, Sudan. Oswald’s reasoning suggests that in a different situation in some future case involving an entity like the new Brigade, that final proviso might require considerable interpretation.