|Law in Humanitarian Crises, Volume I : How Can International Humanitarian Law be made Effective in Armed Conflicts? (ECHO)|
|The Implementation of International Humanitarian Law in the Framework of United Nations Peace-keeping Operations|
The United Nations, taking note of the difficulties encountered in implementing Chapter VII of the Charter insofar as enforcement actions to be carried out through a United Nations permanent army are concerned, developed the experience - alternative one may say, but in fact they may co-exist - of operations entrusted to the aforementioned "peace-keeping forces", in accordance with a denomination largely accepted within United Nations practice itself.
Forces of this kind, used to prevent, manage, or resolve conflicts, are not specifically mentioned in the Charter, but the competence of the United Nations to establish them - notwithstanding some doubts initially expressed by some States - is not contested. The International Court of Justice itself, when questioned about their legitimacy, affirmed that "it cannot be said that the Charter has left the Security Council impotent in face of an emergency situation when agreements under Art. 43 have not been concluded
Usually, the basis of their establishment and action is sought within the framework of Chapters VI or VII of the Charter, depending on the circumstances and context in which they are called to operate, and sometimes a "Chapter VI and a half" has been referred to. I believe that, insofar as the specific regulation of peace-keeping forces escapes specific rules, it is proper just to say that their basis is to be found mainly in practice which entered those gaps which were left open by the explicit rules of the Charter and by its Chapters VI and VII especially. The distinctive features of these forces - supposing one may refer to them as a class - may be highlighted by reading both the United Nations resolutions which have established these operations and the agreements reached with contributing States and possibly with host States on the status of United Nations missions, as well as in the reports on the missions activities prepared by the Secretary-General, to whom the executive direction of the operations is usually entrusted under the overall political direction of the Security Council.
In conclusion one may simply say, in line with Art. 1 (c) of the 1994 Convention on the Safety of United Nations and Associated Personnel, that such United Nations operations are in general terms established "in accordance with the Charter" they are deployed in situations in which one may invoke either Chapter VI or Chapter VII; the competence of the Security Council alone or, in addition, of the General Assembly as well in setting them up depends upon the Chapter invoked.
Inasmuch as it is established in the light of the exigencies of each specific case and, moreover, m an international reality in constant and sometimes pronounced change during five decades of United Nations activities, each one of these missions should be perhaps considered to have features of its own, even though some basic common parameters tend to repeat themselves, possibly with some variant shapes.
Peace-keeping forces are set up by the competent organs of the United Nations by using contingents subject to the command and control of the United Nations: they truly are forces of the United Nations. The direction of the operations is entrusted, as already mentioned, to the Secretary-General who operates under the general political guidance and control of the Security Council. It is the Secretary-General's duty to appoint (and dismiss) the Commander in the field, that is to say the head of the mission.
Besides, peace-keeping missions are made up of national contingents placed by States voluntarily at the disposal of the United Nations for a specific operation. In function of political considerations, the Security Council decides which Country's offer to accept. Until the end of Cold War, it was considered preferable to exclude the participation of troops belonging to the permanent members of the Security Council, so as to moderate, as far as possible, the friction of regional conflicts in the spheres of influence of the superpowers.
Furthermore, these forces may have a more or less complex structure, whether from the point of view of the numbers of United Nations personnel involved (they may consist of small units as in some cases of international observer missions for the monitoring of a truce line, as well as of large units, as in Cambodia, Somalia and former Yugoslavia) or from the point of view of the type of personnel composing them: military personnel may stand side by side with civilian police and/or international civilian personnel in the case of multifunctional peace-keeping operations. The plurality of personnel composition of a mission is obviously connected with the complexity of its mandate which varies greatly depending on the different situations envisaged - situations which, I repeat, may relate to international conflict or domestic crisis endangering peace or constituting a threat to the peace or a breach of the peace: deployment in situations preceding armed conflict, in the course of armed conflicts with all their variables, or following the end of an armed conflict in view of regaining a more stable civilian order (peace-building). These situations may sometimes overlap with each other and slip from one to the other and back again.
The tasks of the United Nations peace-keeping forces have increased especially in recent years, so that operations of low and high complexity now co-exist. It may happen that peace-keeping forces have no combat mission and that their main function is to prevent the resumption of hostilities in certain areas in fulfilment of a purely international, "static" mandate consisting in the observation and separation of combatants along a more or less demarcated boundary.
But frequently, especially in situations connected to a civil war, it has been necessary to organize multifunctional "dynamics" and assertive operations with some protective tasks but also aimed even at the reconstruction and working of fundamental State functions on the basis of proper democratic and humanitarian principles in the context of a comprehensive post-war settlement.
In summary, depending upon the circumstances, United Nations Forces may have one or more mandates including the supervision of cease-fires and control over buffer areas, together with the regroupment and demobilization of forces and their reintegration into civilian life; the disarmament of military and paramilitary forces and the destruction of their weapons together with the drawing up and implementation of mine clearance programmes; repatriation and resettlement of refugees and displaced persons; humanitarian assistance and securing safe conditions for its delivery even during continuing warfare such as by way of humanitarian corridors; protection of the civilian population in designated safe or protected areas; supervision of existing administrative structures; training of new police forces; promotion, monitoring and protection of human rights; control over and reporting about respect for international humanitarian law; drawing up and supervision of constitutional, judicial and electoral reforms; observation, supervision and even organization and conduct of fair elections; co-ordination of support for economic rehabilitation and reconstruction: all these are tasks in which from time to time peace-keeping operations are engaged, according to an approximate list of responsibilities drawn from completed and ongoing missions, which does not exclude further responsibilities in the future if the necessity of coping with new problems should arise.
One may observe that United Nations missions are set up ad hoc with the consent of the Parties concerned in the crisis, especially the Parties controlling the territory of deployment: the consent of the territorial State of course, but also the consent of the other parties to the conflict, even if these should be non-governmental, as in the case of civil strife. One may specify that when the Security Council establishes the mission acting under Chapter VII of the Charter the Parties involved are obliged to give their consent.
If the requirement of the consent of the Parties (governmental and non-governmental) to the deployment of peace-keeping forces is usually considered important, it may however occur - and problems are likely to arise in such situations - that the consent given is not sufficiently convinced or clear. Sometimes, instead of an explicit consent, there is an absence of refusal. Moreover, in the course of the operation the Parties' attitude towards the United Nations Forces may change, notwithstanding the original consent: that is to say that sometimes, in practice, a reluctant party may put forth obstacles to the carrying out of the mandate of the United Nations Forces as deployed. Besides, it may occur that the mandate is modified in the course of the operation and turns out to be broader if compared with the mandate to which the original consent referred. The Secretary-General had observed, recalling the case of Somalia and Bosnia-Herzegovina, that there have been aspects of the mandates that have led to forfeit the consent of the Parties (and to behave in a way that was perceived as being partial and/or involving the use of force for reasons other than in self-defence): he refers to the tasks of protecting humanitarian operations during continuing warfare, protecting the civilian population in designated safe areas and pressing the parties to achieve national reconciliation at a pace faster than they were ready to accept. In such cases, existing peace-keeping forces were given additional mandates that required the use of force and therefore could not be combined with existing mandates requiring the consent of the parties, impartiality and the non-use of force.
And it is precisely the attitude of impartiality between the opposite sides which is commonly indicated as a further characterizing feature of United Nations peace-keeping missions: the Secretary-General reaffirmed such a requisite in the addendum to the Agenda for Peace. Peace-keeping forces have to comply with mandates which are not usually intended to be against a party as such: I note that the safe areas concept itself in Bosnia-Herzegovina has been construed, at least according to the Secretary-General's opinion, as giving the United Nations a humanitarian mandate under which the use of force is authorized, but solely for the limited and local purpose of protecting the civilian population in the face of ethnic cleansing and not to bring the war to an end. However - as already mentioned - it may occur that the attitude of impartiality in some cases, as in Somalia or in former Yugoslavia, in the course of the operation may weaken insofar as one Party prevents the United Nations Forces from pursuing the mandate entrusted to them: the situation may become troublesome in situations in which the mandate at a given moment turns out to be in contrast with the war aims of one of the parties, as unfortunately may be the case when relief to a particular population is concerned, and warring Parties make it difficult or impossible for the United Nations to operate. Then it may happen that the United Nations Forces cross the "Mogadishu line" combining strict peace-keeping with some sort of peace enforcement against one party, albeit in the context of the defensive mandate conferred to it.
In the light of the fact that they are impartial in principle, these forces - once again in principle - pursue their aims peacefully. Some missions, such as UNTSO, may actually consist of unarmed military observers only; and obviously unarmed are purely civilian missions such as the first mission established by the General Assembly in Haiti (MICIVIH) in 1993 (Res. 47/20B). In all events, United Nations military personnel is usually equipped basically with light weapons of defensive character to be used at a minimum standard, only in self-defence. One should however take note of the fact that the concept of self-defence has in some cases been understood in a wide sense, i.e. including the protection of the Mission's mandate and effective defence against all those who want to prevent it from being carried out. Nevertheless, I note that the delivery of humanitarian relief itself, and enforced disarmament even more, require adequate control of territory, consequent rules of engagement and capable forces with specific military functions and skills. In such cases the United Nations Forces are in fact called to play an assertive role and are armed not only with strict self-defence light weapons, but with heavier arms as well.
A much greater challenge to impartiality, with the difficulties that follow, probably arises when peace-keeping operations intersect, as currently in the case of former Yugoslavia, with military enforcement conducted under the authorization of the Security Council by third States against some of the warring Parties in view of supporting the United Nations mission in the performance of its mandate (see Security Council Res. 836 (1993) and 958 (1994), insofar as UNPROFOR is concerned). Such actions are conducted by States following the request of the Secretary-General and the assent of the Chief of the mission in the field: Resolution 958 (1994) states that the authorization to Member States acting through regional organizations or arrangements is given "under the authority of the Security Council and subject to close coordination with the Secretary-General and UNPROFOR". It is clear that the impartiality of peace-keeping operations becomes truly problematic (as the element of the consent of the parties in the field may become little more than a phantom) and that peace-keeping operations may appear, in fact, to be an element of a wider set of enforcement measures carried out by United Nations and States as a whole.
I may add that the presence of United Nations sanctions against some of the Parties in the field may further complicate the impartial role of peace-keeping operations.
It is not the object of my study to face all the issues relating to peace-keeping operations per se. My purpose is limited to highlighting some fundamental elements which may turn out to be relevant in relation to the applicability of international humanitarian law in the framework of peace-keeping operations
In the first place, United Nations peace-keeping forces, as deployed in situations envisaged in Chapters VI or VII of the Charter, in principle - notwithstanding the presence of military elements - are not intended to take sides against one or more of the parties involved as such. Their purpose is not that of becoming a party to the dispute, even in cases in which the conflict flares around them: they are, as someone used to say, "soldiers without enemies". From this point of view, United Nations personnel - I refer now to military personnel especially -, in entering into situations characterized by the presence to a greater or lesser extent of an armed conflict, does not automatically acquire combatant status and cannot be considered to be the legitimate target of an armed attack. United Nations personnel - UN civilian and police personnel by definition, but UN military personnel also - appears rather to make up a category of protected persons not considered as such by the general instruments of international humanitarian law now in force.
In short, as they are on the scene of a conflict, they are inevitably touched by international law of armed conflict, but not - in principle by that set of norms which relate to combatants or more generally to persons directly participating in hostilities. But this, as I have indicated, is the situation in principle. In fact, - as we will see later - whether one becomes (whether components of United Nations peace-keeping operations become) a party to a conflict or not is not an abstract concept, but a factual issue which does not depend exclusively on individual choice. It also depends on the concrete action of the adversary, insofar as, notwithstanding one's wish to remain impartial, one might become involved in the conflict: a State being the object of an aggression, for example, would have preferred not to be involved in a conflict, but, unfortunately, reluctantly, it is a party to the conflict.
Secondly, one may observe that the reality of peace-keeping is a very articulated and multiform one and that consequently the solution to the problems relating to the applicability of international humanitarian law rules is probably conditioned by such complexity. One may well note that the relevance of international humanitarian law has to take various elements conditioning the applicability of specific sets of rules into account: different categories of personnel involved in the mission, types of operational tasks, more or less static or assertive mandates, types of military forces used and level of force envisaged, interstate or internal context of the mission, degree of the consent of the Parties in the field to carrying out the mission etc.