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SGTM 3- Legal Framework of United Nations Peace Operations

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									SGTM 3: Legal Framework of United Nations Peace Operations
The 3rd Standardized Generic Training Module (SGTM 3) is an introduction for United Nations peacekeepers to the various legal instruments and issues that underpin peace operations, including the legal basis for the conduct of peace operations, the legal status of operations in a host country and the privileges and immunities enjoyed by United Nations personnel. Background All United Nations peace operations derive their legitimacy from the authority of the Security Council. In establishing a peace operation, the Security Council follows the Charter of the United Nations, exercising its primary responsibility for maintaining international peace and security. The fundamental legitimacy of a peace operation ensures that it commands the respect and support of all Member States in implementing its mandate. International legitimacy and recognition are all-important for the day-to-day work of peacekeepers. Member States contribute personnel, equipment and other resources to a United Nations peace operation because of its legitimacy. Furthermore, legitimacy confers a privileged legal status on a peace operation and its personnel that is essential in implementing its mandate on the ground. All peacekeepers must have a sound understanding of the legal framework of their operation so that they know their own obligations and responsibilities in the implementation of their mandate. Legal norms must be considered in the conduct of their official duties as well as their personal life. The rules of engagement for the operation, which form the legal authority for the use of force, specify the type of equipment they are allowed to carry as well as how and when they are authorized to use force, including deadly force. Other international legal instruments and norms guide the activities of peacekeepers and define the relationship between the operation and the host country, including the peace agreement or ceasefire agreement if such exists, other national laws and international treaties and conventions that can guide their activities in support of the peace process. Altogether the apparatus of authority and law composes the legal framework of peace operations. Aim The aim of SGTM 3 is to help peacekeepers understand the legal issues that are involved in a United Nations peace operation, including the legal basis for an operation and legal norms and instruments that relate to their performance of their official functions as well as their personal conduct. The module aims to familiarize peacekeepers with the treaties, conventions, agreements and laws that apply in the implementation of a peace operation. Learning Outcome On completion of SGTM 3, the peacekeeper should be familiar with the legal framework of United Nations peace operations and the legal norms and standards relevant to his or her daily work and conduct.

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Assessment Criteria After completing this module, peacekeepers should be able to:      Describe what constitutes the legal framework of a peace operation Provide examples of mandates of peace operations Give examples of international and national law applicable to peace operations Describe internal United Nations rules and guidelines that apply to peacekeeping personnel Explain what are internal mission rules and directives, including the rules of engagement.

Duration and Time Schedule The syllabus of a 90-minute presentation on SGTM 3 is outlined below. No more than 60 minutes should be used for the lecture. The remaining 30 minutes should be given to questions and answers and general discussion of real-life examples. The trainer should modify the time allocated for this module according to national training requirements. Syllabus Outline         Structure of the presentation Charter of the United Nations and peacekeeping mandates International law and peacekeeping Other legal documents National law Internal United Nations rules and guidelines Mission rules and directives Summary

Notes on Methodology, Content and Teaching Materials SGTM 3 is best presented by a trainer with a legal background who has served in a peace operation in a legal capacity. The trainer should use examples from national or personal experience, because trainees are likely to understand them more easily than examples from outside their own experience. The legal basis of the trainees’ country for engagement in United Nations peace operations must be discussed. Any divergence that may exist between the legal parameters of the nation’s engagement in peace operations and those the United Nations has set out should be acknowledged. For example, some countries may have restrictions on the contribution of military units to United Nations peace operations or may limit when and how they can use force, including deadly force. At the outset of the presentation, the trainer should inform trainees of the content, format and timing. Knowing what to expect, trainees can improve their ability to focus on the subject and benefit from the presentation. References 2 2

3 4 14 47 16 22 67 51 63 90 72 73 to 76 80 76 to 79 59 60 65 66

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MODULE CONTENT

Structure of the Presentation A standard presentation on the legal framework of United Nations peace operations at the basic level for peacekeepers should cover:  Charter of the United Nations and peacekeeping mandates  International law and peacekeeping o International humanitarian law o International human rights law o Other treaties and conventions o Statutes of international courts/tribunals  Other legal documents o Peace accords o Status-of-forces or status-of-mission agreements o Memoranda of understanding  National law  Internal United Nations rules and guidelines  Mission rules and directives.
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1 UN Charter, peacekeeping mandates International law and peacekeeping Other legal documents National law Internal UN rules and guidelines Mission rules and directives

Charter of the United Nations and Peacekeeping Mandates The Charter of the United Nations (reference 4) is the foundation document for all the Organization’s work including peacekeeping. The Charter vests the Security Council with primary responsibility for maintaining international peace and security. Peacekeeping, while not specifically mentioned in the Charter, has evolved as a tool for the Security Council in discharging that responsibility. A United Nations peace operation derives its legitimacy and authority from the Security Council’s approval and support for its establishment. The authority provided by the Security Council also ensures that all Member States respect and support the implementation of the operation’s mandate. The support of the Security Council is necessary throughout the life of the operation, because the Council must approve periodic extensions of the mandate of the peace operation until the Council believes that the mission has accomplished its objectives or is no longer useful.
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 Charter is foundation for all UN activities  Peace and security are Security Council’s primary responsibility  Peacekeeping is a tool

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Mandates of peace operations. The mandate of a peace operation is the legal basis for all activity that the operation undertakes, including the use of force. The Security Council can mandate the establishment or continuation of a peace operation under Chapters VI, VII or VIII of the Charter. SGTM 1 B on United Nations peace operations describes operations authorized under those Chapters. The action of the Council, normally through a resolution, determines the mandate of each peace operation and its duration. In approving the mandate of a specific operation, the Security Council clearly indicates the type of activities it expects the peace operation to undertake. Mandates are very carefully crafted and negotiated by the members of the Security Council, based on the SecretaryGeneral’s recommendations. Throughout the life of a mission, the Secretary-General can recommend modifications to the mandate of the peace operation according to the situation on the ground. In the periodic progress reports that the Security Council requests on each operation, the Secretary-General often includes recommendations for modifications to the mandate, the personnel strength, the structure, duration or any other aspect of the peace operation. 3 Mandate of a peace operation  Legal basis of all activity  Authorized by Security Council  Modified according to ground reality
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International Law and Peacekeeping United Nations peace operations are subject to the norms and standards of international law. Many international treaties and conventions have a direct bearing on either the status of a peace operation, its personnel or the activities that it conducts in a mission area. The most relevant types of international law are  International humanitarian law  International human rights law  Other treaties and conventions. 4 International law and peacekeeping  Humanitarian law  Human rights law  Other treaties, conventions
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International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. Known as “the law of war” or “the law of armed conflict”, it restricts the means and methods of warfare. It is designed to protect persons who do not participate, or are no longer participating, in the hostilities and maintain the fundamental rights of civilians, victims and non-combatants in an armed conflict.

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International humanitarian law is contained in the 4 Geneva Conventions of 1949 and their 2 Additional Protocols of 1977 (reference 22), as well as in rules regulating the means and methods of combat. 5 International humanitarian law: “Law of War”  Restricts means and methods of warfare  Protects civilians, victims and non-combatants  4 Geneva Conventions (1949), 2 Additional Protocols (1977)
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Among the international conventions that limit the use of certain kinds of weapons on humanitarian grounds are the 1980 Convention on Certain Conventional Weapons, which seeks to limit the use of weapons that have excessively injurious or indiscriminate effects, and the 1997 Ottawa Treaty, which prohibits the use of anti-personnel mines. International humanitarian law also includes conventions and treaties on protection of cultural property and the environment during armed conflict as well protection of victims of conflict. International humanitarian law is relevant to United Nations peacekeeping because many peace operations are deployed when conflict may still be active or may flare up again. Postconflict environments may also have characteristics, such as large civilian populations that have been targeted by the warring parties, prisoners of war and other vulnerable groups, to whom the Geneva Conventions would apply. United Nations peacekeepers must always be mindful of existing international standards and norms that govern their daily activities. The Geneva Conventions generally apply in a peacekeeping context.
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6 Convention on Certain Conventional Weapons, 1980 Ottawa Treaty, 1997 prohibits anti-personnel mines Cultural property, the environment, victims of conflict Applicable in peacekeeping because of conflict potential

International human rights law is contained in the Charter of the United Nations and in other international treaties and conventions. SGTM 8 on human rights carries further information and examples of human rights law. Respect for human rights is one of the main reasons for the founding of the United Nations. The Charter commits all Member States to promote and encourage respect for, and observance of, human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion (Articles 1 and 55). The Charter and the International Bill of Human Rights (of 1948; reference 84), which is the cornerstone document of human rights, emphasize that human rights and fundamental freedoms are universal and guaranteed to everybody. All human beings are born free and equal, are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

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The International Bill of Human Rights consists of  Universal Declaration of Human Rights  International Covenant on Civil and Political Rights  International Covenant on Economic, Social and Cultural Rights  2 Optional Protocols. 7 International human rights law  Charter of the United Nations (1945)  International Bill of Human Rights (1948)
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Having such rights is considered fundamental to human existence. Subsequently, various instruments and conventions have sought to protect all human beings, particularly such vulnerable groups as refugees, ethnic and other minorities, women, children and the elderly, and migrant workers. Examples of human rights instruments that address specific issues are • International Convention on the Elimination of All Forms of Racial Discrimination (1965) • Convention on the Elimination of All Forms of Discrimination against Women (1979) • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) • Convention on the Rights of the Child (1989) • International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990). Many multidimensional peace operations are mandated to monitor and promote respect for human rights in their areas of deployment. Building respect for human rights is a fundamental obligation of the United Nations. Peace operations should do everything possible to further that objective. Even without such a mandate, all peacekeepers should be aware of human rights law and its applicability in their daily tasks. Peacekeepers must never do anything in their official or personal conduct that could be a violation of human rights. 8 Examples of human-rights law  Protects vulnerable groups (children, migrant workers)  Outlaws torture, outlaws discrimination (racial, against women) Peacekeepers must uphold human rights in official and personal conduct
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Other international treaties and conventions. Other international legal instruments may be relevant for United Nations peacekeepers personally or in the conduct of their official work. The Convention on the Safety of United Nations and Associated Personnel of 1994 obligates all signatories to ensure the safety and security of United Nations and associated personnel deployed in their territory and to make punishable by national law any violent acts against such personnel. Prohibited acts include murder, kidnapping or any other violent attack against the person, official premises or private accommodation and means of transportation of United Nations and associated personnel. 7

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Under the Convention, a State Party May not attack or hinder United Nations operations or personnel. Must ensure safety of United Nations personnel and premises. Must release detained United Nations personnel promptly and without interrogation. Pending their release, must be treated consistent with the provisions of the Geneva Conventions. Must prosecute those who commit crimes against United Nations and associated personnel.

The Convention does not apply to a United Nations operation authorized by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations, in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies. 9 Convention on Safety of UN and Associated Personnel, 1994  Ensure safety, security of personnel, premises, operations  Prompt release of detained UN personnel without interrogation  Does not apply for combatants under Chapter VII of Charter
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The Convention on the Privileges and Immunities of the United Nations of 1946 is the agreement that provides legal status to the United Nations and its subsidiary bodies. Because a peace operation is a subsidiary body of the United Nations, the Convention is applicable to the operation as well. The Convention provides certain privileges and immunities to the United Nations and its officials for the fulfilment of the Organization’s purpose and to allow its personnel to conduct their official duties without interference. Such provisions are to be specified in any agreement the United Nations concludes with the country regarding its hosting of a peace operation. The Convention provides the following privileges to the United Nations:  Property and assets are immune from every form of legal process.  Property and assets are immune from search, requisition, confiscation, expropriation or any other form of interference.  Premises are inviolable.  All documents are inviolable.  The Organization is exempt from all direct taxes and customs duties.  The Organization may hold funds, gold or currency of any kind and operate accounts in any currency.  Official communications are accorded diplomatic privileges and immunities. 10 Privileges and immunities (1946): United Nations  Legal immunity for property, assets  Premises, documents inviolable  Exempt from direct taxes, customs duties
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For officials and experts performing missions for the United Nations (for example, United Nations military observers and police officers are considered experts on mission), the immunities provided by the Convention include 8

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Immunity from legal process in respect of words spoken or written and all acts performed by them in their official capacity. Immunity from personal arrest or detention. Inviolability of all papers and documents. Exemption from taxation on the salaries and emoluments paid to them by the United Nations. For communications with the United Nations, the right to use codes and to receive papers or correspondence by courier or in sealed bags. Diplomatic immunities and facilities for their personal baggage.

Privileges and immunities are granted to officials and experts in the interests of the United Nations and not for the personal benefit of the individuals themselves. The Secretary-General has the right and the duty to waive the immunity of any official or expert in any case where, in his opinion, the immunity would impede the course of justice and could be waived without prejudice to the interests of the United Nations. 11 Privileges and immunities: officials, experts  Legal immunity for official acts  Immunity from personal arrest, legal process  Inviolability of all papers and documents  Exemption from taxation on salaries
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Statutes of international courts/tribunals. Other international instruments that have become relevant to peacekeeping are the statutes of international courts and tribunals that prosecute war crimes or crimes against humanity. They include the statutes of the International Criminal Court (established at The Hague in 1998) and of such specialized tribunals as the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia. 12 Courts, tribunals for war crimes  International Criminal Court  International criminal tribunals for Rwanda, Yugoslavia
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Other Legal Documents Peace accords. In most post-conflict environments, a peace accord or other agreement, such as a ceasefire agreement or agreement on disengagement of forces, is likely to be in effect and directly relate to the peace operation. The peace accord may be quite detailed, spelling out the various phases of the peace process and the specifics of post-conflict arrangements. Or, it could be more general, leaving details for future negotiation. The signatories to a peace agreement have a legal obligation to respect the terms of the agreement. In certain cases, the United Nations or key Member States have also signed peace agreements as guarantors, who undertake to ensure that the peace process remains on track. 13 Peace accords
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Ceasefire agreement Disengagement of forces Phases of peace process

Status-of-forces or status-of-mission agreements. A bilateral agreement that defines the relationship between a host country and a peace operation is called the status-of-forces or status-of-mission agreement (SOFA or SOMA). The SOMA or SOFA provides the legal basis for the presence and operation of the peacekeeping force in the host country. Mission-specific, it details the privileges and immunities of the operation and its personnel and the responsibilities and obligations of the host nation. It also provides for dispute resolution. A SOMA or SOFA usually provides for  Status of military or police contingents  Freedom of movement within areas of operation  Easy access to certain key areas  Communications facilities for the performance of tasks  Use of flags, uniforms and weaponry  Privileges and immunities of the operation and its personnel  Applicability of local laws  Claims and disputes. The basis for all SOMAs and SOFAs is the 1946 Convention on the Privileges and Immunities of the United Nations. Since peace enforcement operations do not require the consent of the State where an operation is conducted, a SOMA or SOFA is generally not required. A model SOFA was adopted by the General Assembly in 1990 (reference 63). Most SOFAs or SOMAs are adaptations of that model. Before a SOMA or SOFA is formally signed between a host nation and the United Nations, the model SOFA serves as an interim agreement, going into effect as soon as the Security Council establishes a peace operation. 14 SOFA or SOMA provides for  Status of military, police contingents  Freedom of movement  Communications facilities  Use of weaponry, flags, uniforms  Privileges and immunities  Applicability of local laws  Claims and disputes
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Memoranda of understanding. Nations contribute personnel or other assets to a peace operation under terms set out in a memorandum of understanding (MOU) between the contributing State and the United Nations. The MOU includes specifics of the contribution such as number and category of personnel, their equipment, standards of conduct that personnel must observe, conditions of service and details of reimbursement that the United Nations makes to the contributing country, among other items. 10

The MOU spells out the respective obligations and responsibilities of the United Nations and the contributing country. The MOU may also spell out disciplinary authority over personnel, especially for cases of serious misconduct, such as acts of sexual exploitation and abuse. The obligations of a contributing nation include  Contributions of personnel and equipment must meet agreed standards.  All personnel must comply with United Nations standards, rules and procedures.  Personnel cannot accept or seek instructions from any authority other than the United Nations.  The contributing Government commits itself to prosecuting, to the fullest extent of its own national laws, any military personnel who may commit a crime while deployed with the United Nations operation. Obligations of the United Nations include  Reimbursement for contributions.  Keeping the contributing nation’s authorities fully informed of all developments in the area of deployment.  Providing mission subsistence and other allowances, as applicable.  Coordinating the rotation of contingents and the transport of their equipment. 15 MOU sets terms for  Contributions  Obligations of contributing country  Obligations of United Nations
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National Law National law that applies in a peace operation includes the law of the host country and the military law of contributing nations. SOFAs and SOMAs include the obligations of United Nations personnel to respect the laws of the country where they are deployed. Among the privileges and immunities provided for in those agreements is that contributing countries retain “exclusive criminal jurisdiction” over their military members of the contingents that it contributes to the peace operation. Military members of a contingent who commit a crime must be repatriated to their own country and undergo judicial process there; they cannot be tried in the host country. Such an exception to host-country criminal jurisdiction applies only to military members of national contingents and not to military observers, police officers or civilian staff of a peace operation. Contributing nations ask for that exception because, in most countries, military personnel are subject to military law, which often includes provisions for crimes committed by their military personnel when serving overseas. The only immunity from host-country prosecution that the other personnel of a peace operation enjoy is “functional immunity”: for acts that form part of their official duties. For all other actions, they can be prosecuted under both civil and criminal law in the host country. The Secretary-General has the right and the obligation to waive even the functional immunity

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of United Nations personnel if such immunity impedes the course of justice. Therefore, respect for the law of the host country is an essential obligation of all peacekeepers. 16 UN personnel subject to law of host country  Some immunities defined in SOMA or SOFA Military members of contingents  Criminal jurisdiction of military law of homeland Military observers, police officers, civilian staff  Some “functional immunity” that may be waived
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Internal United Nations Rules and Guidelines Apart from agreements with the host country and international and national law, which are discussed in the following pages, United Nations peace operations are governed by internal United Nations rules and guidelines. They include  Financial rules and regulations  Other internal administrative regulations, instructions and various documents. Internal United Nations documents include the Secretary-General’s bulletins. The SecretaryGeneral’s Bulletin on Special measures for protection from sexual exploitation and sexual abuse (reference 93) is discussed in great detail in SGTM 5 D on prevention of sexual exploitation and abuse. Another key bulletin, Observance by United Nations forces of international humanitarian law (reference 47), provides for respect for international humanitarian law by United Nations forces. Related concerns are mentioned in that bulletin and are covered in detail elsewhere:  Means and methods of combat  Treatment of civilians and persons not involved in combat  Treatment of detained persons  Protection of the wounded, the sick and medical and relief personnel. 17 UN internal rules and guidelines  Financial rules and regulations  Secretary-General’s bulletins
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Mission Rules and Directives The peace operation itself provides rules and guidance for its personnel. They include the  Mission’s concept of operations, which is drawn from the mandate of the operation and spells out the operational tasks the mission is to perform.  Force commander’s or police commissioner’s directives, which deal with operational matters.  Rules of engagement for the military and police. 18 Mission rules, directives  Concept of operations  Commander’s directives
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 Rules of engagement Rules of engagement. The rules of engagement (ROE) for a peace operation are operational tools that guide peacekeepers on the use of force. Based on the mandate of the mission, they are an operational, political and legal interpretation of the Security Council’s authorization to use force, sometimes up to deadly force, in the implementation of the mandate of the mission. The ROE are prepared by the Department of Peacekeeping Operations (either its Military Division or Police Division), reviewed by the Office of Legal Affairs, and approved by the Under-Secretary-General for Peacekeeping Operations. 19 Rules of engagement (ROE)  From mission’s mandate  How, when to use force  Practical guidance to commanders
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The ROE clarify for commanders both the constraints and the degree of latitude in decisionmaking that they operate under. ROE notwithstanding, all personnel may exercise their right of self-defence at any time —the ROE do not negate a commander’s right and obligation to take all necessary and appropriate action for self-defence. Other principles that are reflected in the ROE include  Minimum use of force  Use of force proportional to the threat  Minimum collateral damage  Use of force in proportion with purposes of the United Nations Charter and the mission’s mandate. In some instances, contributing nations may have their own national legal restrictions on how and when they can use force. These caveats must be made known to the Department of Peacekeeping Operations and the force commander in order to anticipate operational problems. 20 ROE  Constraints and latitude in using force  Right of self-defence  Minimum use of force  Minimum collateral damage  Use of force according to Charter, mandate
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The 5 basic areas of a set of ROE are Use of force  Use of weapons systems  Authority to carry weapons  Authority to detain, search and disarm  Reactions to civil action or unrest.
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21 ROE cover  Use of force  Use of weapons systems  Authority to carry weapons  Authority to detain, search, disarm  Reactions to civil actions or unrest
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Summary The legal framework of a peace operation legitimizes its activities and guides its personnel in their daily activities. The mandate of the operation, which is authorized by the Security Council, is the basis of all operational tasks. Both national and international law guide peacekeepers in their official functions and personal conduct. Finally, internal United Nations and mission directives and rules provide more detailed, operational guidance to peacekeepers. In short, peacekeepers are  Provided a mandate and a mission.  Expected to abide by the laws of the host nation in their mission area.  Accorded certain privileges and immunities, by international conventions and/or a SOFA or SOMA, so that they may accomplish their tasks without interference.  Held personally accountable if they commit an offence while serving the United Nations.  Allowed to carry weapons under certain conditions and are given strict rules on how and when to use force. 22 Peacekeepers are  Provided a mandate and a mission  Expected to abide by laws of host country  Accorded privileges, immunities to accomplish mission  Held personally accountable if commit an offence  Given strict rules on how and when to use force
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