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: VIII. A Conclusion in the Light of the 1994 Convention on the Safety of United Nations Personnel

Law in Humanitarian Crises, Volume I : How Can International Humanitarian Law be made Effective in Armed Conflicts? (ECHO)

(introduction...)

Introduction

The Laws of War: Problems of Implementation in Contemporary Conflicts

I. Introduction

II. Implementation Provisions and Mechanisms

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1. From 1899 to the Second World War

2. The Post-Second World War Trials

3. The Post-1945 Conventions: General

4. The Post-1945 Conventions: Humanitarian, Monitoring and Fact-Pinding Tasks

5. The Post-1945 Conventions: Punishment and Compensation

6. Other Mechanisms of Implementation

7. The Involvement of the United Nations

8. The International Court of Justice

III. Problems of Implementation in Wars since 1980

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1. Iran-Iraq War 1980-88

2. The 1990-91 Gulf Conflict

3. The Wars in the Former Yugoslavia since 1991

4. Civil War and Humanitarian Intervention in Somalia 1992-95

5. International Conference, Geneva, August-September 1993

6. Rwanda 1994

IV. General Issues

1. Woodrow Wilson's Dilemma in 1914

2. Successors' Responses to illegal Acts of Previous Regimes

3. One Alternative Vision

V. Summary and Conclusions

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1. Realist and Idealist Images of the Laws of War

2. Still a World of States

3. Humanitarianism as a Substitute for Policy

4. Application to Non-International Conflicts

5. Mines

6. Limits of Compliance Provisions

7. Trials

8. International Criminal Court

9. Reparations

10. The United Nations

11. Barbarians?

12. A Set of Professional Military Standards?

13. Need to Keep Our Own Houses in Order

14. The Relation between Ius in Bello and Ius ad Bellum

15. Taking Implementation Seriously

The Implementation of International Humanitarian Law in the Framework of United Nations Peace-keeping Operations

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I. The United Nations and Humanitarian Law

II. The failure of the UN in Constituting Enforcement Instruments and the Practice of the Security Council of Authorizing Enforcement Action by States

III. The Law of International Armed Conflicts and UN Enforcement Operations Under Chapter VII

IV. The Alternative Experience of Peace-keeping Operations

V. The 1994 Convention on the Safety of United Nations Personnel as an Instrument Proscribing Attacks Against United Nations Missions in the Framework of Ius ad Bellum and the Contextual Recognition of the Applicability of Ius in Bello

VI. The Applicability of International Humanitarian Law to Peace-keeping Operations in the Light of General Instruments of International Law

VII. The Practice of Specific Instruments Concerning the Applicability of International Humanitarian Law in Peace-keeping Operations

VIII. A Conclusion in the Light of the 1994 Convention on the Safety of United Nations Personnel

International Humanitarian Law and the Law of Refugees and Internally Displaced Persons

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I. Introduction

II. The Inadequacy of International Refugee Law in Situations of Armed Conflict

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1. The Need for Reconsidering the Refugee Definitions in International Law

2. The Need for Improving the Substantive Rights of Refugees in Situations of Armed Conflict

3. The Need for Improving International Co-operation with Regard to Refugees from Situations of Armed Conflict

4. The Need for Further Consideration of International Action in Favour of Refugees from Situations of Armed Conflict

III. The Inadequacy of International Law in Respect of Internally Displaced Persons

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1. Existing Norms of International Law Applying to Internally Displaced Persons

2. The Lacunae of International Law in Respect of Internally Displaced Persons

3. Possible Ways of Improving the Legal Situation of Internally Displaced Persons

4. The Need for Further Consideration of International Action in Favour of Internally Displaced Persons

IV. The Need for Comprehensive Approaches

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1. Overcoming the Differentiation Between Externally Displaced Persons (Refugees) and Internally Displaced Persons

2. Overcoming the Still Existing Differentiation in International Law as Regards Norms Applicable Before, During and After Situations of Armed Conflicts Resulting in Forced Movements of Persons

V. Conclusions and Recommendations

Notes on the Contributors

Abbreviations

VIII. A Conclusion in the Light of the 1994 Convention on the Safety of United Nations Personnel

In the light of the remarks contained in the previous paragraph, let us once again consider the formula contained in the "saving clause" of the 1994 Convention and move one step forward.

According to the new wording of the saving clause the United Nations Forces are bound not only by "the principles and spirit" of humanitarian law Conventions, but by "international humanitarian law as contained in international instruments". That is to say, the normative humanitarian law standards binding United Nations peace-keeping forces are those provided by the specific contents of the humanitarian law conventions themselves, following the evolutive line of the practice considered above.

As has been pointed out,

"the recognition that United Nations personnel are duty-bound to respect international humanitarian law also implies that the long debated questions of whether the United Nations can or may be a party to a conflict, or whether it should formally accede to the Geneva Conventions in order for the latter to apply to United Nations Forces, are now moot question ".

The applicability of international humanitarian law to peace-keeping forces in situations which may be qualified as armed conflict acquires relevance under the aspect of guaranteeing a protective status to United Nations missions, but - as the saving clause explains, in a bilateralism of the juridical subjective situations involved - also under the aspect of the responsibility of United Nations personnel to respect the law included in humanitarian conventions. The Convention's purpose of enhancing the safety of United Nations personnel "does not absolve such personnel from respecting, in turn, rules of international humanitarian law as well as human rights obligations" in a balance of rights and duties.

Therefore, as United Nations Forces as a whole (military as well as non-military components) are deployed in situations of armed conflict, international humanitarian law applies to such forces. If, as is usually the case, they are not intended to be a party to a conflict and in fact they are not involved directly in the conflict, they are, as a whole, regarded by international humanitarian law as having a protected status (whose content is related to the tasks assigned to each category of personnel), and must abide by those duties which persons having a protected status are bound to respect.

If the military component of a peace-keeping mission becomes involved in a conflict, from the limited point of view of international humanitarian law, it becomes addressee of duties and rights pertaining to the conduct of military personnel in combat mission, according to the principle that international humanitarian law applies equally to all parties in conflict. Even if, from another point of view, the attack against the United Nations mission per se is regarded, in the framework of ius ad bellum, as illicit.

Art. 8 of the Convention reflects the same logic insofar as captured or detained United Nations personnel are concerned. Insofar as the Convention forbids attacks against United Nations personnel, its Art. 8 also forbids, the capture and detention of United Nations peace-keeping personnel. But, at the same time, in case such a "primary" duty is not honoured, the party having captured United Nations personnel is obliged to treat such personnel according to "the principle and spirit" of international humanitarian law itself such as specified in the rules contained in the Geneva Conventions of 1949: in this case the relevant Geneva Conventions are primarily the third and the fourth, depending on whether the captured personnel is part of a military or civilian component of the peace-keeping mission. I believe that - leaving aside the faculty of the detaining Power to retain a prisoner until the cessation of active hostilities - the debated problem whether or not qualifying the United Nations personnel captured or detained as prisoners of war becomes highly semantic.

I have thus concluded my general examination. The way forward is that of consdering the different active and passive juridicial subjective situations contained in various categories of international humanitarian law provisions in order to verify - insofar as it is possible from an abstract point of view - the specifities which concern their application to United Nations missions: from the law governing the conduct of hostilities to the treatment of detained persons; from the rules providing for the protection of the wounded, the sick and of medical units and establishments to those relating to the protection of persons who do not take part in the hostilities; from the rules concerning civil defence and relief operations to those rules providing for the means of execution and implementation of international humanitarian law etc. As I have already said, at the end of heading IV, such a review must to take account of the very articulated and multiform characteristics of the reality of peacekeeping and, at the same time, of the principle of sharing of responsibilities between organization and Member States, insofar as the Organization, in the end, acts on behalf of member States. The responsible institutions, first of all the International Committee of the Red Cross as traditional guardian of international humanitarian law, are on the way.