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UN Peacekeeping Operations: Applicability of International Humanitarian Law and Responsibility for Operations-Related Damage

Published online by Cambridge University Press:  27 February 2017

Daphna Shraga
Daphna Shraga*
Affiliation:
Office of the Legal Counsel, Office of Legal Affairs, United Nations
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Extract

In the five decades that followed the Korea operation, where for the first time the United Nations commander agreed, at the request of the International Committee of the Red Cross (ICRC), to abide by the humanitarian provisions of the Geneva Conventions, few UN operations lent themselves to the applicability of international humanitarian law

Type
Current Developments
Information
American Journal of International Law , Volume 94 , Issue 2 , April 2000 , pp. 406 - 412
Copyright
Copyright © American Society of International Law 2000

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References

1 On violations of human rights and international humanitarian law committed by members of UN forces in the Congo and Somalia, see R. Simmonds, Legal Problems Arising from the United Nations Military Operations in the Congo 188–91 (1968); Finn Seyersted, United Nations Forces in the Law of Peace and War 189–97 (1966); Robert Fox & Agence France-Presse, Belgian UN troops admit to “roasting” Somali boy, Daily Telegraph (London) June 24, 1997, at 15; Alex de Waal, A Brutal Peace, Guardian, Oct. 30, 1997, at 21; Mark Huband, UN Forces Deny Somali Detainees Legal Rights, Guardian, Sept. 25, 1993, at 14; Keith B. Richburg, Somalis ‘Imprisonment Poses Questions about UN Role, Wash. Post, Nov. 7, 1993, at A45; Report of the Commission of Inquiry established pursuant to Security Council resolution 885 (1993) to investigate armed attacks on UNOSOM II personnel which led to casualties among them, UN Doc. S/1994/653, paras. 231, 236, 237; Report of the expert of the Secretary-General, Ms. Graça Machel, submitted pursuant to General Assembly resolution 48/157, UN Doc. A/51/306, para. 98 (1996).

2 Bulletin on the Observance by United Nations Forces of International Humanitarian Law, UN Doc. ST/SGB/1999/13 (1999), reprinted in 38 ILM 1656 (1999) [hereinafter Bulletin].

3 On the applicability of international humanitarian law to UN forces, see Seyersted, supra note 1, at 178–220; Simmonds, supra note 1, at 168–96; Paul De Visscher, Les Conditions d’application des his de la guerre aux operations militaires des Nations Unies, [1971] 1 Annuaire del’Institut de Droit International 1; Resolution I, Conditions of Application of Humanitarian Rules of Armed Conflict to Hostilities in Which United Nations Forces May Be Engaged, in id. at 465; Yves Sandoz, L’Application du droit humanitaire par les forces armées de l’Organisation des Nations Unies, Int’l Rev. Red Cross, No. 206, Sept.–Oct. 1978, at 274; Dietrich Schindler, United Nations Forces and International Humanitarian Law, in Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet 521 (Christophe Swinarski ed., 1984); Umesh Palwankar, Applicability of International Humanitarian Law to United Nations Peacekeeping Forces, Int’l Rev. Red Cross, No. 294, May–June 1993, at 227; Claude Emanuelli, Les Actions Militaires de l’ONU etle droit International Humanitaire (1995); Richard D. Glick, Lip Service to the Laws of War: Humanitarian Law and United Nations Armed Forces, 17 Mich. J. Int’l L. 53 (1995); Christopher Greenwood, Protection of Peacekeepers: The Legal Regime, 7 Duke J. Comp. & Int’l L. 185 (1996); Daphna Shraga, The United Nations as an Actor Bound by International Humanitarian Law, in The United Nations and International Humanitarian Law 11 (Actes du Colloque International de l’Université de Genève, 1996); Hilaire McCoubrey & Nigel D. White, The Blue Helmets: Legal Regulation of United Nations Military Operations (1996); Brian D. Titlemore, Belligerents in Blue Helmets: Applying International Humanitarian Law to United Nations Peace Operations, 33 Stan. J. Int’l L. 61 (1997).

4 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 UST 3114, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 UST 3217,75 UNTS 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135 [hereinafter Third Geneva Convention]; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 UNTS 3 [hereinafter Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 UNTS 609; Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 UNTS 240.

5 Agreement on the Status of the United Nations Assistance Mission for Rwanda, Nov. 5, 1993, UN-Rwanda, Art. 7, 1748 UNTS (forthcoming). An identical provision was subsequently inserted in the following agreements: Agreement on the Status of the United Nations Mission in Haiti, Mar. 15, 1995, UN-Haiti, Art. 7, 1861 UNTS 249; Agreement on the Status of the United Nations Peacekeeping Operation in Angola, May 3, 1995, UN-Angola, 1864 UNTS (forthcoming); Agreement between the United Nations and the Government of the Republic of Croatia, May 15, 1995, id.; Agreement on the Status of the United Nations Interim Force in Lebanon, Dec. 15, 1995, UN-Leb., 1901 UNTS (forthcoming); Agreement concerning the Status of the United Nations Mission in Western Sahara, Feb. 11, 1999, UN-Morocco (similar agreements were concluded with Algeria and Mauritania on Nov. 3 and 20, 1998, respectively).

6 Bulletin, supra note 2, §5. On the basis of the distinctions between civilians and combatants, and civilian objects and military objectives, the UN force is instructed to take all feasible precautions to avoid or minimize incidental loss of life and property, and, in its area of operation, to refrain from locating military objectives within or near densely populated areas. In recognition of the “peaceful nature” of military installations and equipment used in peacekeeping operations, section 5.4 provides: “Military installations and equipment of peacekeeping operations, as such, shall not be considered military objectives.”

7 Id., §6. The following types of weapons are prohibited: asphyxiating, poisonous, or other gases and biological methods of warfare; bullets that explode, expand, or flatten easily in the human body; and certain explosive projectiles, nondetectable fragments, antipersonnel mines, booby traps, and incendiary weapons. Also prohibited are methods of warfare that cause superfluous injury or unnecessary suffering, destroying objects indispensable to the survival of the civilian population, and installations that contain dangerous forces whose release would cause severe losses among the civilian population.

8 Id., §§7.2, 7.3.

9 Id., §7.4.

10 Id., §8. For the Third Geneva Convention, see supra note 4.

11 Bulletin, supra note 2, §9.

12 On the customary international law nature of the Geneva Conventions as a whole, see Theodor Meron, The Geneva Conventions as Customary Law, 81 AJIL 348 (1987); Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993), UN Doc. S/25704, para. 35 (1993), reprinted in 32 ILM 1159 (1993).

13 Additional Protocol I, supra note 4, Art. 55; Bulletin, supra note 2, §6.3.

14 Additional Protocol I, supra note 4, Art. 45(2); Bulletin, supra note 2, §6.7.

15 Additional Protocol I, supra note 4, Art. 56; Bulletin, supra note 2, §6.8.

16 These provisions were considered innovative at the time of their adoption, and though no longer innovative, they are still, two decades later, considered conventional international law provisions. See Christopher Greenwood, Customary Law Status of the 1977 Geneva Protocols, in Humanitarian Law of Armed Conflict: Challenges Ahead 93, 101, 104, 110 (Astrid J. M. Delissen & Gerard J. Tanja eds., 1991); Georges Abi-Saab, The 1977 Additional Protocols and General International Law: Some Preliminary Reflexions, id. at 115, 121–22.

17 Convention on the Safety of United Nations and Associated Personnel, Dec. 9, 1994, Art. 20, 34 ILM 482 (1995).

18 Rome Statute of the International Criminal Court, July 17, 1998, Art. 8(2)(b)(iii) & (e)(iii), UN Doc. A/CONF.183/9*, reprinted in 37 ILM 999 (1998). The Bulletin, supra note 2, §1.2, provides in that respect as follows:

The promulgation of this bulletin does not affect the protected status of members of peacekeeping operations under the 1994 Convention on the Safety of United Nations and Associated Personnel or their status as non-combatants, as long as they are entiled to the protection given to civilians under the international law of armed conflict.

19 UN Doc. ST/SGB/UNEF/1 (1957), 271 UNTS 135.

20 UN Doc. ST/SGB/ONUC/1 (1963), reprinted in Basic Documents on United Nations and Related Peacekeeping Forces 89 (Robert C. R. Siekmann ed., 1985).

21 UN Doc. ST/SGB/UNFICYP/1 (1964), 555 UNTS 119.

22 Feb. 13, 1946, 21 UST 1418, 1 UNTS 16. Under Article 29 of the Convention, the United Nations is obliged to provide for appropriate modes of settlement of disputes of a private-law character, to which the United Nations is a party, or which involve any of its officials who by reason of his official duties is immune from legal process.

23 Exchange of Letters Constituting an Agreement concerning the Status of the United Nations Emergency Force in Egypt, Feb. 9, 1957, UN-Egypt, Art. 38, 260 UNTS 61. A standard clause to that effect is inserted in paragraph 51 of the model status of forces agreement, UN Doc. A/45/594 (1990).

24 GA Res. 50/235, UN GAOR, 50th Sess., Supp. No. 49, Vol. 2, at 33, UN Doc. A/50/49 (1996); GA Res. 51/13, UN GAOR, 51st Sess., Supp. No. 49, Vol. 1, at 282, UN Doc. A/51/49 (1996). What triggered the call to limit UN liability was an undocumented joint claim submitted by Bosnia and Herzegovina against the United Nations in the amount of $70 million, of which $64 million was for damage caused in the normal use of roads, bridges, and parking places by UN vehicles. In receiving notice of the claim, the Advisory Committee on Administrative and Budgetary Questions noted: “This sort of information is, in the view of the Committee, compelling evidence of the need for the United Nations to develop, as quickly as possible, effective measures which could limit its liability.” Report of the Advisory Committee on Administrative and Budgetary Questions, Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations: financing of the United Nations peacekeeping operations, UN Doc. A/51/491 & annex (1996).

25 Report of the Secretary-General, Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations: financing of the United Nations peacekeeping operations, UN Doc. A/51/389 (1996).

26 Report of the Secretary-General, Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations: financing of the United Nations peacekeeping operations, UN Doc. A/51/903 (1997).

27 Third-party liability: temporal and financial limitations, GA Res. 52/247 (June 22, 1998).

28 See Model Contribution Agreement between the United Nations and [Participating State] Contributing Resources to [the United Nations Peace-keeping Operation], Art. 9, in Note by the Secretary-General, Reform of the procedures for determining reimbursement to Member States for contingent-owned equipment, UN Doc. A/50/995, annex (1996).

29 Report of the Secretary-General, supra note 26, paras. 30–36.

80 For the liability clause proposed by the Secretary-General to be included in future status of forces agreements, see id., para. 40.

31 An Agenda for Peace—Preventive Diplomacy, Peacemaking and Peace-keeping, Report of the Secretary-General, UN Doc. A/47/277–S/24111 (1992), UN Sales No. E.95.I.15 (1995).