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Perspective on the applicability and application of international humanitarian law: the UN context

Published online by Cambridge University Press:  05 June 2014

Katarina Grenfell
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Extract

The applicability of international humanitarian law (IHL) to United Nations (UN) forces has long generated discussion. When peacekeepers have become engaged in hostilities of such a nature as to trigger the application of IHL (either via acts in self-defence, or in the course of carrying out a mandate as authorised by the UN Security Council under Chapter VII of the Charter of the United Nations), questions have arisen as to whether they should be equally subject to the rules of IHL. Such questions arise as UN peacekeeping forces act on behalf of the international community and thus have a ‘just cause’, so to speak, to use force. Despite these questions, however, it now appears well settled that the distinction between jus ad bellum (the right to use force under public international law) and jus in bello (the law governing the conduct of hostilities) should be maintained, and that IHL applies in respect of UN peacekeeping operations whenever the conditions for its application are met. That said, questions regarding the conditions for the application of IHL, as well as its scope of application, continue to be relevant, particularly at a time when the Security Council is tasking UN operations with increasingly robust mandates.

Keywords

United Nations peacekeeping operationsapplicability of international humanitarian law1994 Convention on the Safety of United Nations and Associated PersonnelRome Statute of the International Criminal Court
Type
Research Article
Information
International Review of the Red Cross , Volume 95 , Issue 891-892: Multinational operations and the law , December 2013 , pp. 645 - 652
Copyright
Copyright © icrc 2014 

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References

1 For example, current peacekeeping operations, such as the UN Stabilisation Mission in the Democratic Republic of the Congo (MONUSCO), the United Nations Operation in Côte d'Ivoire (UNOCI), the UN Stabilisation Mission in Haiti (MINUSTAH), and the African Union/UN Hybrid Operation in Darfur (UNAMID) are authorised by the Security Council under Chapter VII of the Charter of the UN to carry out tasks such as the protection of civilians under imminent threat of physical violence. See the mandates of MONUSCO under SC Res. 2098, 28 March 2013; ONUCI under SC Res. 2000, 27 July 2011, as extended by SC Res. 2112, 30 July 2013; MINUSTAH under SC Res. 1542, 30 April 2004, as extended by SC Res. 2119, 10 October 2013; UNAMID under SC Res. 1769, 31 July 2007, as extended by SC Res. 2113, 30 July 2013.

2 For example, in 1952, the Committee on Study of Legal Problems of the UN considered the question, ‘should the laws of war apply to United Nations enforcement action?’ Without resolving the issue, it concluded that ‘[t]he purposes for which the laws of war were instituted are not entirely the same as the purposes of regulating the use of force by the United Nations. This we may say without deciding whether United Nations enforcement action is war, police enforcement of criminal law, or sui generis.’ Report of the Committee on Study of Legal Problems of the United Nations, Proceedings of the American Society of International Law, Vol. 46, 1952, p. 216.

3 References hereinafter to UN peacekeeping operations concern those operations which are conducted under UN command and control. Regarding the distinction between military operations conducted under UN command and control, and military operations authorised by the UN and conducted under national or regional command and control, see the comments by the UN to the International Law Commission on the responsibility of international organisations: Responsibility of International Organizations: Comments and Observations Received from International Organizations, UN Doc. A/CN.4/637/Add.1, 17 February 2011, p. 10.

4 See Greenwood, Christopher, ‘International humanitarian law and United Nations military operations’, in Yearbook of International Humanitarian Law, Vol. 1, 1998, pp. 3–34Google Scholar; Shraga, Daphna, ‘The United Nations as an actor bound by international humanitarian law’, in International Peacekeeping, Vol. 5, No. 2, Summer 1998, pp. 64–81Google Scholar; Zwanenburg, Marten, Accountability of Peace Support Operations, Martinus Nijhoff Publishers, Leiden, 2005, pp. 159–208Google Scholar; Akande, Dapo, ‘Classification of armed conflicts: relevant legal concepts’, in Wilmshurst, Elizabeth (ed.), International Law and the Classification of Conflicts, Oxford University Press, Oxford, 2012, pp. 64–70Google Scholar.

5 SC Res. 2098, 28 March 2013, op. para. 9.

6 Ibid., op. para. 12(b).

7 UN Doc. S/PV.6943, Security Council provisional records of the 6943rd meeting, 28 March 2013.

8 Ibid., p. 3.

9 Ibid., p. 4.

10 See UN Department of Peacekeeping Operations and Department of Field Support (DPKO/DFS), UN Peacekeeping Operations: Principles and Guidelines (the ‘Capstone Doctrine’), 2008, p. 33, available at: http://pbpu.unlb.org/pbps/Library/Capstone_Doctrine_ENG.pdf (last visited in December 2013).

11 Report of the Committee on Study of Legal Problems of the United Nations, above note 2, p. 218.

12 Convention on the Safety of United Nations and Associated Personnel of 9 December 1994, 2051 UNTS 363 (entered into force 15 January 1999). Art. 2(2) of the Safety Convention provides that it ‘shall 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’.

13 In 1972, proposals were made that Additional Protocol I include a provision under which the Geneva Conventions would be open for accession by the UN, to apply ‘each time the forces of the United Nations are engaged in operations’. See Report of the Secretary-General, UN Doc. A/8781, 20 September 1972. However, these proposals were ultimately not adopted following an explanation on behalf of the Secretary-General that such ‘accession would raise questions as to the legal capacity of the Organisation to become a party to multilateral treaties … Chiefly, the lack of certain competences, including the lack of territorial jurisdiction and of disciplinary and penal authority, would make it impossible for the Organisation to discharge many of the obligations laid down in the Geneva Conventions’. Ibid., para. 218.

14 International Court of Justice (ICJ), Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p. 174.

15 Ibid., p. 179.

16 Regulations issued by the Secretary-General for the United Nations Forces in the Congo (ONUC), UN Doc. ST/SGB/ONUC/1, 15 July 1963, Art. 43.

17 United Nations, Secretary-General's Bulletin, UN Doc. ST/SGB/1999/13, 6 August 1999.

18 Report of the Special Committee on Peacekeeping Operations, UN Doc. A/50/230, 22 June 1995, para. 73.

19 Secretary-General's Bulletin, above note 17, Preamble.

20 Secretary-General's Bulletin, above note 17, Section 2.

21 For example, see the Status of Forces Agreement between the United Nations and the Government of the Republic of South Sudan concerning the United Nations Mission in South Sudan (UNMISS), Registration No. 48873 (entered into force on 8 August 2011), para. 6. While such provisions are not included in the ‘Model status-of-forces agreement for peacekeeping operations’ as prepared by the Secretary-General at the request for the General Assembly (UN Doc. A/45/594, 9 October 1990), they have been included in relevant SOFAs since the UN concluded a SOFA with the Republic of Rwanda in respect of the UN Assistance Mission in Rwanda (UNAMIR) on 5 November 1993, 1748 UNTS 3.

22 Ibid.

23 Rome Statute of the International Criminal Court, 17 July 1998, UN Doc. A/Conf.183/9 (entered into force 1 July 2002).

24 For example, see the Status of Forces Agreement between the UN and the Government of the Republic of South Sudan concerning UNMISS, above note 21, para. 48.

25 Safety Convention, Art. 2(2) (emphasis added).

26 See Bourloyannis-Vrailas, M.-Christiane, ‘The Convention on the Safety of United Nations and Associated Personnel’, in International and Comparative Law Quarterly, Vol. 44, 1995, pp. 567–568Google Scholar, for further discussion concerning the scope of the exclusion in Art. 2(2) of the Safety Convention, including the reference to UN operations authorised by the Security Council as an ‘enforcement action’ under Chapter VII of the Charter of the UN.

27 See Report of the Secretary-General on Scope of legal protection under the Convention on the Safety of United Nations and Associated Personnel, UN Doc. A/55/637, 21 November 2000, note 3.

28 Rome Statute, above note 23, Arts. 8(2)(b)(iii) and 8(2)(c)(iii) (emphasis added).

29 Secretary-General's Bulletin, above note 17, Section 1.1.

30 See Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol. I: Rules, ICRC, Cambridge University Press, Cambridge, 2005CrossRefGoogle Scholar, for helpful guidance on many issues concerning the application of customary law in the context of non-international armed conflicts.

31 Armed Forces of the Democratic Republic of the Congo.

32 SC Res. 1856, 22 December 2008, op. para 3(g).

33 See SC Res. 2071, 12 October 2012; SC Res. 2085, 20 December 2012; letter dated 20 January 2013 from the Secretary-General addressed to the President of the Security Council, UN Doc. S/2013/37.

34 However, UN support for AFISMA from the trust fund established pursuant to SC Res. 2085, 20 December 2012, may still raise questions until the new UN peacekeeping mission, MINUSMA, commences its military operations pursuant to SC Res. 2100, 25 April 2013.