The Impact of the Responsibility to Protect on the Protection of Peacekeeping Missions under the Rome Statute of the International Criminal Court

Summary

INTRODUCTION

Since the establishment of the first United Nations peacekeeping mission in 1948, peacekeeping has evolved into one of the key tools used by the international community to manage complex crises that pose a threat to international peace and security. Not only has United Nations peacekeeping grown in size but it has also become increasingly multi-dimensional and robust. The growing complexity of peace operations has raised troublesome questions concerning their legal, political and military aspects including the use of force by peacekeepers and the protection of peacekeeping missions from direct attacks. The prohibition of attacks on peacekeeping personnel is included in a few international legal instruments, the most important being the 1998 Rome Statute of the International Criminal Court. It is the first multilateral treaty which proscribes explicitly as a war crime in international and non-international armed conflicts:

‘intentionally 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’.

The international law of armed conflict (international humanitarian law) provides that civilians shall be protected from direct attacks as long as they refrain from taking direct part in hostilities. If they do take such part, they lose protection and become legitimate targets for the duration of their participation. This is in line with the principle of distinction and non-combatant immunity, which is one of the fundamental principles of international humanitarian law. It requires that parties to the conflict distinguish at all times between civilians and civilian objects on the one hand and combatants and military objectives on the other, and direct attacks only against the latter group.

The use of force in personal self-defence does not amount to taking direct part in hostilities, hence it does not deprive civilians of protection. It is an inherent right of every individual to defend oneself against unlawful attack and this is recognised in all legal systems around the world, although the limits of this right might differ. Some states apply a narrow, restrictive definition of self-defence, while others extend this right to include the defence of third persons or property.