Hostname: page-component-cd9895bd7-8ctnn Total loading time: 0 Render date: 2024-12-27T09:48:55.707Z Has data issue: false hasContentIssue false
  • English
  • Français

International Humanitarian Law and United Nations Military Operations*

Published online by Cambridge University Press:  17 February 2009

Christopher Greenwood
Get access

Extract

The application of international humanitarian law to United Nations military operations is a subject that has attracted considerable interest almost from the inception of the United Nations. While the basic premise that United Nations forces should, at the very least, respect the ‘principles and spirit’ of international humanitarian law conventions has long commanded general acceptance, there has been considerable controversy both about the legal basis for this proposition — in particular, whether this duty of respect is something derived from general international law or the result of a specific and voluntary undertaking by the United Nations — and about the exact meaning of ‘principles and spirit’ in this context.

Type
Articles
Information
Yearbook of International Humanitarian Law , Volume 1 , December 1998 , pp. 3 - 34
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 1998

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. See in particular, Bowett, D.W., United Nations Forces (London, Sweet and Maxwell 1964) pp. 484–516Google Scholar; Seyersted, F., United Nations Forces in the Law of Peace and War (Leiden, Sijthoff 1966)Google Scholar; ICRC, Symposium on Humanitarian Action and Peace-Keeping Operations (Geneva, ICRC 1994)Google Scholar; Condorelli, L. et al. , eds., The United Nations and International Humanitarian Law (Paris, Editions Pedone 1996)Google Scholar; Schindler, D., ‘United Nations Forces and International Humanitarian Law’ in Swinarski, C., ed., Studies and Essays on International Humanitarian Law (The Hague, Martinus Nijhoff 1984) p. 521Google Scholar; Benvenuti, P., ‘The Implementation of International Humanitarian Law in the Framework of United Nations Peace-keeping Operations’ in European Commission, Law in Humanitarian Crises (Luxembourg, Office for Official Publications of the European Communities 1995) vol. I, p. 83Google Scholar; van Hegelsom, G.-J., ‘The Law of Armed Conflict and United Nations Peace-Keeping and Peace-Enforcing Operations’ 6 Hague Yearbook of International Law (1993) p. 45Google Scholar; and Palwankar, U., ‘Applicability of international humanitarian law to United Nations peace-keeping forces’, 33 International Review of the Red Cross (1993) p. 227CrossRefGoogle Scholar. See also the two resolutions adopted by the Institut de droit international: Resolution on the Conditions of Application of Humanitarian Rules of Armed Conflict to Hostilities in which United Nations Forces may be Engaged, adopted at Zagreb in 1971 (‘the Zagreb Resolution’), 54 (II) Annuaire de l 'institut de droit international (1971) p. 465Google Scholar, and the Resolution on the Conditions of Application of Rules other than Humanitarian Rules of Armed Conflict to Hostilities in which United Nations Forces may be Engaged, adopted in Wiesbaden in 1975 (‘the Wiesbaden Resolution’), 56 Annuaire de l 'institut de droit international (1975) p. 540Google Scholar.

2. United Nations General Assembly Resolution 49/59, 34 ILM (1995) p. 482Google Scholar. For an example of implementing legislation, see the United Nations Personnel Act (United Kingdom) 1997. Although reference will be made to this Convention in so far as it is relevant to the application of international humanitarian law to United Nations operations, it is not intended to analyse it in detail. For discussion of the Convention, see Bloom, E., ‘Protecting Peacekeepers: The Convention on the Safety of United Nations and Associated Personnel’ 89 AJIL (1995) p. 621CrossRefGoogle Scholar, Bourloyannis-Vrailas, C., ‘The Convention on the Safety of United Nations and Associated Personnel’, 44 ICLQ (1995) p. 560CrossRefGoogle Scholar, Greenwood, C., ‘Protection of Peacekeepers: The Legal Regime’, 7 Duke Journal of Comparative and International Law (1996) p. 185Google Scholar; and W. G. Sharp, ‘Protecting the Avatars of International Peace and Security’, loc. cit., Duke Journal of Comparative and International Law p. 93.

3. See the articles by Boustany, Young and Siekmann, infra pp. 371, 362, and 301 respectively.

4. Although the two resolutions of the Institut de droit international (loc. cit. n. 1) distinguish between rules of a humanitarian character and other rules of the law of armed conflict, so much disagreement exists as to the classification of individual rules that the distinction tends to confuse rather than clarify.

5. Geneva Convention No. I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1949, 75 UNTS (1950) 31 (Roberts, A. and Guelff, R., Documents on the Laws of War (Oxford, Clarendon Press, 2nd edn., 1989) p. 169Google Scholar); Geneva Convention No II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 1949, 75 UNTS (1950) 85 (Roberts and Guelff, p. 193); Geneva Convention No. III Relative to the Treatment of Prisoners of War, 1949, 75 UNTS (1950) 135 (Roberts and Guelff, p. 215); and Geneva Convention No. IV Relative to the Protection of Civilian Persons in Time of War, 1949, 75 UNTS (1950) 287 (Roberts and Guelff, p. 271).

6. Additional Protocol I, relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS (1979) 3 (Roberts and Guelff, op. cit. n. 5, p. 385).

7. 249 UNTS (1954) p. 240 (Roberts and Guelff, op. cit. n. 5, p. 339). The Convention and Protocol were adopted under the auspices of UNESCO. Revision of the Convention and the Protocol was under discussion at the time of writing. For a discussion of the review process, see Hladik, infra, p. 313; Year in Review at p. 135.

8. In particular, the Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, 1925, XCIV LNTS (1929) 65 (Roberts and Guelff, op. cit. n. 5, p. 137); the United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects (‘The Weapons Convention’) and the Protocols thereto, 1981, 19 ILM (1980) p. 1523 (Roberts and Guelff, ibid., p. 471); and the Chemical Weapons Convention, 1993, 32 ILM (1993) p. 800Google Scholar.

9. 205 CTS (1907) p. 227 (Roberts and Guelff, op. cit n. 5, p. 43).

10. Art. 2 common to the four Geneva Conventions provides that the Conventions shall apply ‘to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them’. In practice, the Conventions have been applied to armed conflicts even if none of the parties have recognized the existence of a state of war. Additional Protocol I applies in the same circumstances, as well as to what are known as ‘wars of national liberation’ (Art. 1 (4)). It is now generally accepted that the rules of customary international humanitarian law apply to any international armed conflict, irrespective of the existence of a formal state of war; see Greenwood, C., ‘The Concept of War in Modern International Law,’ 36 ICLQ (1987) p. 283CrossRefGoogle Scholar.

11. Pictet, J. S., ed., Commentary on Geneva Convention III (Geneva, ICRC 1960) p. 23Google Scholar.

12. The Prosecutor v. Duško Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-AR72, 2 October 1995, 105 ILR 419 at 453, para. 70. For comment, see Greenwood, C., ‘International Humanitarian Law and the Tadić case,’ 7 EJIL (1996) p. 265CrossRefGoogle Scholar.

13. Digest of United States Practice in International Law (1981–1988) Vol. III, p. 3456Google Scholar.

14. Lauterpacht, H., Oppenheim's International Law, Vol. II (London, Longman 7th edn., 1952) pp. 203–204Google Scholar; Kotszch, L., The Concept of War (1956) p. 56Google Scholar.

15. See in particular, United States v. List 15 AD (1948) p. 632Google Scholar, United States v. Krupp 15 AD (1948) p. 620Google Scholar and the decision of the Court of Appeal of Singapore applying the same principle to Japan in NV de Bataafsche Petroleum Maatschappij v. War Damages Commission (the ‘Singapore Oil Stocks Case’), 23 ILR (1956) p. 810Google Scholar.

16. Lauterpacht, H., ‘The Limits of the Operation of the Law of War,’ 30 BYIL (1953) p. 206Google Scholar.

17. 105 ILR 419 at 453, para. 70.

18. Additional Protocol II to the Geneva Conventions of 1949, relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS (1979) p. 609 (Roberts and Guelff, op. cit. n. 5, p. 447).

19. Art. 1(1). Art. 1(2) also raises the threshold for the application of the Protocol.

20. See supra n. 12.

21. Geneva Convention No. I, Art. 49; No. II, Art. 50; No. III, Art. 129; No. IV, Art. 146; and Additional Protocol No. I, Art. 85.

22. Pictet, J. S., Commentary on Geneva Convention IV (Geneva, ICRC 1958) p. 16Google Scholar. See also L. Condorelli and L. Boisson de Chazournes, ‘Quelques remarques à propos de l'obligation des Etats de ‘respecter et faire respecter’ le droit international humanitaire ‘en toute circonstances’ in Swinarski, op. cit. n. 1, p. 17.

23. Thus, Professor Roberts comments: ‘This interpretation of article 1 does not appear to have a basis in the negotiating history of the 1949 Geneva Conventions. In the various meetings at Stockholm and Geneva, the words ‘to ensure respect’ had another meaning: to ensure that the whole population of a country which was party to the Conventions would respect the law in all circumstances, even perhaps in the case of civil war. There appears to be little or nothing in the records of the Diplomatic Conference to suggest an awareness on the part of government delegates, or indeed ICRC participants, that the phrase ‘to ensure respect’ implied anything beyond this. (A. Roberts, ‘The Laws of War: Problems of Implementation’ in European Commission, op. cit. n. 1, p. 13 at pp. 31–2).

24. Arts. 39–42 of the Charter.

25. Art. 43. For a description of this system and the ambitious plans discussed in the first years of the United Nations, see Bowett, op. cit. n. 1, pp. 12–28.

26. See Bowett, op. cit. n. 1, pp. 29–60 and Higgins, R., United Nations Peacekeeping 1946–1967, Vol. II (Oxford, Oxford University Press 1970) pp. 153–314Google Scholar. The United Nations force in the Congo, ONUC, is also considered by some commentators to have been a Chapter VII operation, Higgins, ibid., Vol. III (1980) p. 54.

27. The best known is probably that in the Secretary-General's Agenda for Peace, UN Doc. S/24111 (17 June 1992).

28. Bowett, op. cit. n. 1, p. 485.

29. UN Doc. S/24540 (10 September 1992) para. 9. A similar approach had earlier been adopted in the case of UNIFIL in Lebanon, UN Doc. S/1 2611 (19 March 1978), para. 4 (d).

30. That was the case with the United Nations operations in the former Yugoslavia, where UNPROFOR was not established as an enforcement operation but was subsequently given a Chapter VII mandate to use ‘all necessary means’ to achieve certain of its objectives, such as the protection of safe areas. In addition, the Council authorized NATO to use force in order to enforce a ban on flights over Bosnia-Herzegovina and later in more general support of UNPROFOR.

31. That was the reason for the initial decision to adopt a Chapter VII resolution (Res. No. 794(1992)) in Somalia. Fighting involving the United Nations and associated forces broke out only some time after the deployment pursuant to that resolution.

32. Higgins, op. cit. n. 26, Vol. II, p. 195.

33. See the model agreement between the United Nations and Participating States, UN Doc. A/46/185 (23 May 1991).

34. See Greenwood, C. ‘New World Order or Old? The Invasion of Kuwait and the Rule of Law’, 55 MLR (1992) p. 153CrossRefGoogle Scholar. Although it has been argued by some commentators (e.g., Schachter, O., ‘United Nations Law in the Gulf Conflict’ 85 AJIL (1991) p. 452CrossRefGoogle Scholar and Rostow, N., ‘Until What? Enforcement Action or Collective Self-Defence?’, 85 AJIL (1991) p. 506CrossRefGoogle Scholar) that the Security Council approved an action by way of collective self-defence, rather than authorizing enforcement action, the United Kingdom considered that the legal basis for the military action which followed was derived from the resolution, not from the right of collective self-defence; 62 BYIL (1991) p. 704 et seq., a view supported by ProfessorBowett, , ‘Collective Security and Collective Self-Defence: the Errors and Risks in Identification’ in Rama-Montaldo, M., ed., International Law in an Evolving World: Liber Amicorum Eduardo Jimenez de Arechaga (Montevideo, Fundaçion de Cultura Universitaria 1994), Vol. 1, p. 425Google Scholar.

35. For a more detailed analysis of this question, see Greenwood, C., ‘The Relationship between lus ad Bellum and lus in Bello’, 9 Review of International Studies (1983) p. 221CrossRefGoogle Scholar.

36. Lauterpacht, loc. cit. n. 16, p. 212.

37. Bowett, op. cit. n. 1, pp. 493–495.

38. Para. 16.

39. Governing Council Decision No. 7, para. 21(a), UN Doc. S/AC.26/1991/7/Rev. 1, 109 ILR, and the Report and Recommendations of the Panel of Commissioners in the Well Blowout Control Claim (18 December 1996) UN Doc. S/AC.26/1996/5, 109 ILR 479.

40. Although there have been proposals for the direct recruitment of a United Nations force, these have never come to anything. The United Nations does, of course, have its own force of security guards at Headquarters and members of this force have been used in certain operations abroad. It is not, however, a military force.

41. See below, p. 18. See also Bothe, M. in Simma, B., ed., The Charter of the United Nations: A Commentary (Oxford, University Press 1994) pp. 598–600Google Scholar.

42. The Holy See is a party to the Geneva Conventions and Additional Protocols, as well as to the Hague Convention on Cultural property and its Protocol. The Byelorussian and Ukrainian Soviet Socialist Republics were also parties before they became independent from the USSR in 1992. These were, however, special cases, since the Holy See had all the attributes of statehood prior to 1870 (Crawford, J., Creation of States in International Law (Oxford, Clarendon Press 1979) pp. 152–160Google Scholar), while Byelorussia and the Ukraine were founding members of the United Nations. By contrast, in 1989 when the Swiss Government received a document by which Palestine purported to become party to the Geneva Conventions and the Additional Protocols, it responded by informing all parties that ‘due to the uncertainty within the international community as to the existence or non-existence of a State of Palestine’ it was not in a position to decide whether this communication constituted an instrument of accession. (ICRC, ‘Geneva Conventions of 12 August 1949 and Additional Protocols of 8 June 1977: Ratifications, Accessions and Successions’, p. 3). It is implicit in this statement that only states were considered as capable of becoming parties to the Conventions and Protocols.

43. Advisory Opinions on Reparations, ICJ Rep. (1949) p. 174 at p. 179Google Scholar.

44. Schindler, loc. cit. n. 1, at p. 526.

45. Meron, T., Human Rights and Humanitarian Norms as Customary Law (Oxford, Clarendon Press 1989) pp. 3–78Google Scholar, Baxter, R., ‘Treaties and Custom’, 129 Hague Receuil (1970–1971) p. 27Google Scholar, Greenwood, C., ‘Customary Law Status of the 1977 Additional Protocols’ in Delissen, A. and Tanja, G., eds., Humanitarian Law of Armed Conflict: Challenges Ahead (Dordrecht, Martinus Nijhoff 1991) p. 93Google Scholar.

46. Of the 185 Members of the United Nations, only Eritrea, the Marshall Islands and Nauru were not parties to the Geneva Conventions at 1 January 1998 (ICRC, loc. cit. n. 42). 148 States were parties to Additional Protocol I and 140 to Additional Protocol II. A number of important military Powers, including the United States, France, India and Pakistan, were not parties to the Protocols.

47. The Parliamentary Under-Secretary of State at the United Kingdom Ministry of Defence stated in a written Parliamentary answer that:

‘It was the common understanding, reflected at all times in the practice of coalition forces, that member States acting under [the authorization given by Resolution 678] remained bound by the principles and rules of international law regulating the conduct of armed conflict.’ HC Debs, Vol. 531, WA 43–4, 22 July 1991; 62 BYIL (1991) p. 676.

The same approach was taken by the other coalition states; see e.g., United States Department of Defense, Conduct of the Persian Gulf War: Final report to Congress (Washington, USGPO 1992)Google Scholar, Appendix 0. In addition, the ICRC stated:

‘The Middle East conflict is beyond any doubt an international armed conflict as defined in Article 2 common to the Geneva Conventions of 12 August 1949. The fact that military action has been authorized by Security Council resolution 678 does not affect this definition or the application of the laws of armed conflict.’ (ICRC, ‘Outline of the Legal Aspects of the Conflict in the Middle East’, 21 January 1991, reproduced in Weller, M., ed., Iraq and Kuwait: Hostilities and their Aftermath (Cambridge, Grotius Publications 1993) p. 332Google Scholar).

Additional Protocol I did not apply, because neither Iraq, nor some of the most prominent members of the coalition were parties to it; ibid.

48. Bowett, op. cit. n. 1, p. 504, concludes that ‘national contingents in the service of the United Nations are bound to the same extent and degree, to all those rules of warfare which would obtain if the same forces were engaged in international armed conflict for the State alone.’ See also Schindler, loc. cit. n. 1, p. 528 and Higgins, op. cit. n. 26, Vol. II, p. 194.

49. Zagreb Resolution, loc. cit. n. 1, Art. 2.

50. Weisbaden Resolution, loc. cit. n. 1, Art. 2.

51. In practice, it is Additional Protocol I which is most likely to give rise to such problems.

52. Higgins, op. cit. n. 26, p. 191.

53. Ibid. and documents quoted there, especially UN Doc S/2232 (6 July 1951).

54. Bailey, S., How Wars End (Oxford, Clarendon Press 1982) Vol. II, p. 444Google Scholar.

55. Bowett, op. cit. n. 1, p. 56.

56. See e.g., D. Shraga, in Condorelli, loc. cit. n. 1, at p. 323.

57. Whether the degree of United Nations involvement makes any difference to the application of specific provisions of international humanitarian law is another matter, which is considered in section 6, below.

58. UN Doc. A/46/185 (23 May 1991). Similar provisions had been included in earlier agreements; see e.g., the Exchange of Notes between the United Nations and Canada regarding the participation of Canadian units in UNFICYP (1966) 555 UNTS 120.

59. Art. 25.

60. Quoted in Shraga, in Condorelli, loc. cit. n. 1, at p. 325 note 16. The Agreement was also communicated to the Rwandan Patriotic Front (at that time the forces fighting the Government of Rwanda, the RPF, overthrew the then-Government in 1994) ‘which confirmed its readiness to co-operate in the implementation of its provisions’, Report of the Secretary-General of the United Nations, UN Doc. S/26927, 30 December 1993, para. 7.

61. See SC Res. No. 872 (1993). The tragic events of 1994 showed that this assumption was false and also demonstrated the worthlessness of the undertakings given by the-then Government of Rwanda in the provision quoted above.

62. See the discussion of a related question by Professor Boustany in connection with United Nations operations in Somalia, infra p. 371.

63. See page 6 et seq. above.

64. Prosecutor v. Tadić (Jurisdiction) 105 ILR 419 and Prosecutor v. Tadić (Merits), Case IT-94-1-T, decision of 7 May 1997. This decision will be reported in volume 112 of International Law Reports.

65. See Report of the Secretary-General pursuant to Res. 982 (1995) and 987 (1995), UN Doc. S/1995/444 (30 May 1995).

66. See supra note 12.

67. Nor, it would appear, did the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in the Rule 61 proceedings regarding Karadžić and Mladić, 108 ILR 85; see Greenwood, C., ‘The Development of International Humanitarian Law by the International Criminal Tribunal for the Former Yugoslavia’ 2 Year Book of United Nations Law (1998), p. 97Google Scholar.

68. Quoted at page 20, supra.

69. Bloom, loc. cit. n. 2, at p. 625.

70. At least, it seems that that was the intention. The drafting is, however, less than satisfactory since the application of the laws of international armed conflict brings the Convention's application to an end only in respect of ‘a United Nations operation authorized by the Security Council as an enforcement action under Chapter VII of the Charter.’ Yet it has been seen that a United Nations operation which was not established under Chapter VII may have certain Chapter VII powers or may engage in heavy fighting merely in the exercise of its right of self-defence. See Greenwood, loc. cit. n. 2, at p. 198.

71. The United States stated in the debate on the draft Convention that the draft would cover the personnel in Rwanda, Somalia and Bosnia and even went so far as say that NATO personnel operating in support of UNPROFOR would have been covered by the Convention, UN Doc. A/49/PV 84, p. 15.

72. Bowett, op. cit. n. 1, at pp. 509–10.

73. See SC Res. Nos. 837 and 885 (1993).

74. It is e.g., contrary to the approach adopted by the Institut in its Zagreb and Weisbaden Resolutions, n. 1, supra.

75. Weisbaden Resolution, loc. cit. n. 1, Art. 4.

76. See Doswald-Beck, L., ed., San Remo Manual on International Law Applicable to Armed Conflicts at Sea (Cambridge, Grotius Publications 1995) paras. 7–9CrossRefGoogle Scholar.

77. The coalition states occupied about 15 percent of Iraq at the end of the Gulf Conflict.

78. As was done in the Gulf conflict in Res. Nos. 686 and 687 (1991).

79. UN Doc. A/50/230, 22 June 1995.

80. ICRC, Report of a Meeting of Experts on the Applicability of International Humanitarian Law to United Nations Forces (Geneva, ICRC 1995)Google Scholar.

81. Directives for UN Forces Regarding Respect for International Humanitarian Law.

82. It is hoped to comment in a later volume on any final directive or guidelines issued by the United Nations.

83. For an interesting discussion of the administration of Somalia and the law of belligerent occupation, see Kelly, M. J., Peace Operations (Canberra, Australian Government Printing Service 1997)Google Scholar, Chapter 4. Major Kelly, a legal officer with the Australian Defence Force, served in the United Nations operation in Somalia.

84. The travaux préparatoires of the provision make clear that it was not intended to apply to situations in which United Nations forces were engaged as combatants.

85. Protocol II, Article 8. An amended version of this Protocol was adopted in 1996, 35 ILM (1996) p. 1209. A treaty banning the use of anti-personnel land mines was adopted in 1997. The former entered into force on 3 December 1998, the latter will enter into force on 1 March 1999.

86. Res. 912 (1994) para. 5. On the status of forces agreement, see above, pp. 21–22.

87. See Report of the Commission of Inquiry established pursuant to Security Council Resolutions 885 (1993). UN Doc. S/1994/653.

88. For a moving argument to this effect, see MacInnis, J. A., ‘Peacekeeping and International Humanitarian Law’, 3 International Peacekeeping (1996) p. 92CrossRefGoogle Scholar. Major-General MacInnis was deputy Force Commander of UNPROFOR. See, however, the different perspective offered by Siekmann, p. 301.