|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|
I shall now examine the precedents I referred to in the previous paragraph in order to trace the conceptual evolution concerning the applicability of humanitarian law in the case of deployment of United Nations peace-keeping forces in territories where a potential or actual conflict exists. First, however, I want to make a few remarks concerning general instruments of international law.
The issue I am discussing was not dealt with when the Charter of the United Nations was being drafted insofar as peace-keeping forces were invented later in the course of United Nations activities. In fact, documents and records of the debates held in San Francisco do not even deal with the problem of the conduct - from the point of view of the law of armed conflicts - of United Nations Forces acting in armed enforcement against an aggressor on the basis of Chapter VII, Art. 42 ff. of the Charter. But one could assume that such an issue was not discussed, because it was unquestionable - according to the remarks proposed in previous paragraph 3 - that international law of armed conflicts strictly applies in such situations.
When the contents of the Geneva Conventions were discussed and adopted in 1949 the question of the relations between international humanitarian law and United Nations Forces was once again neglected. In the course of the negotiation preceding the adoption of the Hague Convention of 1954 for the protection of cultural property in the event of an armed conflict the issue was addressed, but no provision was introduced in the final text. The intergovernmental Conference, however, adopted Resolution I, according to which "The Conference expresses the hope that the competent organs of the United Nations should decide, in the event of a military action being taken in the implementation of the Charter, to ensure application of the provision of the Convention by the armed forces taking part in such action ". It is a significant statement insofar as it demonstrates a governmental opinion according to which no structural obstacle prevents United Nations Forces from applying and from being under the duty to respect the rules contained in the Convention.
Similarly, in 1977, no specific provision on the subject was adopted in the Additional Protocols, notwithstanding an initial attempt by the International Committee of the Red Cross to stimulate interest on this issue in the debate. Nevertheless I wish to draw attention to Art. 89 of Additional Protocol I, as it is a conventional provision which includes a reference to a role of the United Nations in the law of armed conflict. According to this article, included in the Section devoted to the repression of breaches of the Conventions and the Protocol, "in situations of serious violations of the Convention or of this Protocol, the High Contracting Parties undertake to act, jointly or individually, in cooperation with the United Nations and in conformity with the United Nations Charter". If Art. 89 calls upon the United Nations to react (albeit in co-operation with States) against serious violations of international humanitarian law, one may rationally be led to think that such a reaction presupposes that international humanitarian law is also applicable to the organization itself. The organization, as it is entitled to claim respect for international humanitarian law, is also called upon consequently - to abide by international humanitarian law insofar as the conduct of its organs is concerned. Moreover it is rational to conclude that an action undertaken by States and the United Nations together pursuant to Art. 89 is subject to the entire system of international humanitarian law of which Art. 89 itself is a part. Art. 89 indeed specifies that such action has to be "in conformity with the Charter" but the Charter and international humanitarian law cannot be seen as being conflicting systems.
On the contrary, I note that the wording of Art. 89 is very similar to the formula originally employed in Art. 56 of the Charter, and - as already mentioned in paragraph 3 - it is precisely in the Charter that a general and binding recognition of humanitarian values is to be found (Preamble, Art. 1, 55, 56) together with the affirmation that contracting States are determined "to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind". preventing such unspeakable sorrow is the very goal of international humanitarian law too, when a call to arms has been brought about by events which the United Nations care was unable to avert, and it remains likewise necessary "to serve, even in this extreme case, the interests of humanity and the ever progressive needs of civilization ".37
In considering Additional Protocol I it is also worth recalling Art. 37 insofar as it too refers to the United Nations. Art. 37 refers to the prohibition of perfidy and prohibits "the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not parties to a conflict. This rule, which is not to be neglected, betrays the idea according to which United Nations Forces are not intended to be in principle a party to a conflict, in the same logic of the 1994 Convention - and are consequently protected - as is a State which is neutral or otherwise extraneous to the conflict. But neutral States or other States which are not parties to a conflict continue to be in such a condition only up to the moment in which they are involved even if unwillingly - in a conflict and their condition becomes a more complex one from the point of view of the law of armed conflicts: the same may occur - we are authorized to believe - to United Nations Forces which are correctly placed by Art. 39 itself at the same level as States. If deployed in situations of armed conflict, they are plunged rightly into international humanitarian law.
If one is to draw a conclusion from an overall consideration of the general instruments mentioned above, one may in general affirm the relevance of international humanitarian law in peace-keeping missions while they are not in principle intended to be a party to a conflict - but at the same time space for taking firm steps in the direction of a greater normative precision is lacking.