|Law in Humanitarian Crises Volume I : How Can International Humanitarian Law Be Made Effective in Armed Conflicts? (European Commission Humanitarian Office)|
|The Implementation of International Humanitarian Law in the Framework of United Nations Peace-keeping Operations|
The maintenance of international peace and security is a primary purpose committed by the Charter to the Organization of the United Nations.
In pursuing this main purpose, the competent bodies of the United Nations, according to Chapter VI of the Charter, are entitled to take some course of action in disputes or situations the continuance of which is likely to endanger the maintenance of international peace and security: the United Nations does not take sides against a party as such, but acts mainly by way of conciliatory instruments with the aim of inducing the adversaries to agree on a peaceful solution of their problems.
Moreover, according to Chapter VII of the Charter, the United Nations Security Council is also called upon to decide on coercive measures or to undertake enforcement actions against (some of) the hostile Parties if it ascertains the existence of situations of a much more serious nature, that is to say in cases of threats to the peace, breaches of the peace or acts of aggression. Such action may even assume the form of warlike measures.
If one considers the United Nations system, such as envisaged in the Charter, it is clear that, notwithstanding the solemn prohibition of the threat or the use of force in international relations, the event of a breach of the peace is considered very likely to occur. The drafters of the United Nations Charter appear conscious of the fact that it was unrealistic To eliminate the danger per se of armed conflicts by a mere normative statement (Art. 2, par. 4) and that they had to think up various means in order to avert that danger (Chapters VI and VII). In other words, the Charter, with great sense of reality, does not regard peace as a goal achieved once and for all, but as a result to be gained, day by day, in the engagement of the organization's concrete activity on the ground.
The very real risk of armed conflicts breaking out, notwithstanding efforts by the United Nations, was perceived clearly by the post Second World War international community. While the contra bellum system embodied in the Charter of the United Nations was being drafted, at a different diplomatic table, following an initiative of the International Committee of the Red Cross, the elaboration of the four Geneva Conventions for the protection of the victims of armed conflicts in bello was in progress. These Conventions, which are the core of the international humanitarian law now in force, were adopted on 8th august 1949, when the Organization of the United Nations was already on the scene. These Conventions, through a very detailed and ambitious normative system relating to the protection of the wounded, sick, shipwrecked, of prisoners of war and civilians, demand respect for international humanitarian law values in armed conflicts in all circumstances, while accepting at the same time, a broad concept of armed conflict and going as far as laying down - for the first time in an international convention - fundamental rules applying to armed conflicts not of an international character.
The choice, made in the forties, of producing efforts aimed at strengthening ius contra bellum and ius in bello simultaneously soon appeared to be of great shrewdness: it is a fact that a growing number of armed conflicts (both of an international and a non-international character) continued to plague the world after the United Nations began its work - indeed a self-restrained work, insofar as the Cold War confrontation prevented the United Nations from creating under Chapter VII of the Charter its own armed forces fit to undertake significant coercive and enforcement actions. United Nations policy was then characterized by the first practice of peace-keeping operations. Moreover, the bitter experience of post Second World War conflicts assumed such characteristics that the necessity of further developments of the Geneva Conventions were put to the fore. These new developments resulted in the two additional Protocols adopted in 1977 the first relating to the protection of victims of international armed conflicts, the second relating to the protection of victims of non-international armed conflicts.
In more recent years, after the end of the Cold War, old and new conflicts have continued to ravage different parts of the world with great violence, and with their heavy burden of victims, most of whom are civilians and persons belonging to the most vulnerable groups: elders, women, children, refugees and internally displaced persons. Moreover, in many other areas the risk of armed conflicts is present. Therefore the United Nations - no longer paralysed by the East-West confrontation has been compelled to commit its Blue Helmets to a level of action unprecedented both in quantity and in quality.
It is obvious that the presence of situations of the kind envisaged in Chapters VI and VII of the Charter calls (or is very likely to call) for the application of international humanitarian law under various profiles In other words, United Nations action contra bellum operates in situations in which international humanitarian law calls for the application of its in bello rules. It is commonly accepted that situations endangering peace or constituting a threat to the peace also call for current application of international humanitarian law at least insofar as it concerns the accomplishment of the duty to adopt, at different levels, preventive measures for ensuring its observance if, unfortunately, hostilities should break out.
In conclusion, there is every reason to believe that international humanitarian law has to play an important role from the point of view of the United Nations in situations falling within the organization's competence and envisaged in Chapters VI and VII of the Charter. Moreover, the growing relevance of international humanitarian law for United Nations bodies is underlined by the fact that the International Committee of the Red Cross in recent years has been granted consultative status with the organization,3 conducive to a closer network of relations between the two institutions.
The said relevance of international humanitarian law may result from various points of view which include the following:
a) In the first place, from the point of view of the United Nations Organization itself which is used to carrying out a concrete action, with its forces, in situations characterized by the presence or a high risk of armed conflict. It is rational to think - in general terms which need to be discussed and further specified - that the United Nations Forces as a whole, operating on the ground, in a theatre in which international humanitarian law is relevant, cannot escape international humanitarian law itself. These forces, in all of their elements, have to abide by international humanitarian law rules, insofar as their action falls materially within the field of application of such rules, if they are to take advantage, in turn, of humanitarian law's protective status in case a conflict should, as a matter of fact, break out.
b) In the second place, from the point of view of the reciprocal obligations of conduct with which the opposite Parties must comply during the conflict. It is an old and commonly accepted idea that the respect of the rule of law in armed conflicts helps to restore the status of peace, when the time for peace comes. One might therefore be lead to believe that ensuring observance of international humanitarian law by the parties in conflict could appear to the United Nations not only as a value per se - insofar as its purpose is to alleviate the sufferings of all human beings affected (or possibly affected) by situations of armed conflict - but also as an appropriate device aimed at keeping the ground prepared for regaining peace, in due time, through the organization's appropriate political efforts.
The following pages are mainly devoted to some remarks about the first of these two issues. In this context I wish to stress from now that the subject I am going to discuss has been enriched by a recent normative instrument: the Convention on the Safety of United Nations and Associated Personnel, adopted without a vote by the General Assembly with Resolution 49/59 of 9 December 1994. This Convention will inevitably attract my attention insofar as the field of application of international humanitarian law with regard to United Nations Forces may be remarkably influenced today by the current and delicate debate on the solutions adopted in this new instrument.
The management by the United Nations of situations of crisis involving the maintenance of international peace, has been characterized - as already mentioned - by the fact that the enforcement device considered in Art. 42 ff. of the Charter remained unachieved as a consequence of the Cold War era confrontation. The great powers, in mistrust of each other, were unable to conclude the special agreements which, according to Art. 43 of the Charter, were to make armed forces permanently available to the Security Council. And now too, notwithstanding the changing reality in the world's political balance, the fulfilment of the conditions permitting the United Nations, with forces under its command and control, to take prominent enforcement action against those responsible for threats to the peace, breaches of the peace or acts of aggression is not foreseeable. As the Secretary-General has recognized in the Supplement to the Agenda for Peace "neither the Security Council nor the Secretary-General at present has the capacity to deploy, direct, command and control operations for this purpose (enforcement action), except perhaps on a very limited scale it 8
The consequence of this set of circumstances consists in the fact that the United Nations, not being in the condition to intervene effectively in many international and internal conflicts flaring throughout the world, have in fact left the management of these crisis to the individual enforcement action of States operating extra organization, in the framework - you may say - of their traditional and reciprocal interpower relations to which international humanitarian law of armed conflicts naturally applies.
However, in some cases, the United Nations has divested itself explicitly of its competence in leading enforcement actions, and has instead "authorized" member States to undertake enforcement actions by use of force. Such was the case in Korea, in 1950, when the Security Council, by Resolution 82, recommended that Member States furnish assistance to the Republic of Korea as may have been necessary to repel the armed attack coming from North Korea and to restore international peace and security in the area. Such was again the case, in 1990, when the Security Council, by Resolution 678, acting under Chapter VII of the Charter, authorized a group of member States to undertake an enforcement action making use of "all necessary means" in response to the aggression perpetrated against Kuwait, in case Iraq should refuse implementation of Resolution 660 (1990) ordering its withdrawal from the Kuwaiti territory.
More recently, the Security Council, in situations characterized by some sort of current, but inadequate presence of United Nations Forces, has authorized groups of Member States to undertake enforcement action aimed at certain more specific goals. This is what happened in Somalia, when the Security Council, referring to Chapter VII, by Resolution 794 (1992) welcomed and authorized the offer by members States of an action to be taken, by use of all necessary means, in order to establish as soon as possible a secure environment for humanitarian relief operations.
Insofar as the case of Rwanda is concerned, the Security Council, by Resolution 929 (1994), welcomed the offer of member States to cooperate with the Secretary-General in order to achieve the humanitarian objectives of the United Nations in that devastated country through the establishment of a temporary operation under national command and control. Consequently the Council, acting under Chapter VII of the Charter, authorized member States to conduct such operation resorting to all necessary means until the United Nations Force (UNAMIR) was brought up to the necessary strength.
Again, in the case of Haiti, the Security Council acting under Chapter VII of the Charter, by Resolution 940 (1994), authorized member States to form a multinational force under unified command and control and to use all necessary means to facilitate the departure of the military leadership and the restoration of democracy in Haiti.
Insofar as the situation in former Yugoslavia and especially in Bosnia-Herzegovina is concerned, the Security Council, by various - you may say a burst of - Resolutions once again based on Chapter VII (I may recall numbers 770 (1992),781 (1992),787 (1992),816 (1993),824 (1993), 836 (1993), 844 (1993), 908 (1994) etc.), has authorized Member States, acting nationally or through regional agreements, to use force in order to ensure compliance with its measures of embargo and with its ban on military flights m that country's air space, to support the United Nations Forces in the performance of their mandate, including defence of personnel who may be under attack, and to deter attacks against the so called six "safe areas" created in order to guarantee protection to the civilian population endangered by the ethnic cleansing policy. The Member States concerned decided to take on those tasks acting under the cover of the North Atlantic Treaty Organization (NATO). Moreover, recently, the Security Council welcomed the deployment in Bosnia-Herzegovina of a British-Dutch-French rapid reaction force - which includes heavy artillery - fit to undertake an enforcement action of a military strength which it would have been impossible for UNPROFOR to express.
It seems obvious and it is generally acknowledged that the enforcement military actions carried out by States in the aforementioned cases, outside their national borders and in the territory of a foreign country, while being "authorized" by the United Nations (and therefore not qualifying as aggression or illegal use of force), do not differ in any way from traditional interpower intercourse involving use of armies, which naturally falls in the field of application - such as widely indicated in the Geneva Conventions and Protocols - of international humanitarian law and of international law of armed conflicts as a whole. Furthermore it is a most stable principle that international law of armed conflicts (ius in bello) applies in equal manner to all parties involved irrespective of any other consideration, including those considerations (even if coming from the United Nations) relating to the legality of the use of force and the objective of the use of force (ius ad bellum). The acting States are therefore under the duty to strictly implement international customary rules and those sets of conventional rules which are usually referred to as "Hague Law" and "Geneva Law" no additional problems seem to arise with regard to ordinary implementation of international humanitarian law.
I may stress that such a rational solution appears to be perfectly in tune with the provision now embodied in Art. 2, par. 2 of the recent 1994 Convention on the Safety of United Nations and Associated Personnel. This norm, in defining the Convention's scope of application, establishes that it "shall not apply to a United Nations operation authorized by 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 conflicts applies".
There is no doubt about the fact that the rule in question - perhaps somewhat ambiguous in its wording if read in conjunction with the definitions contained in Art. 1 of the Convention - refers to the already mentioned enforcement operations conducted directly by third States, whose action, authorized by the Security Council under the coverage of Chapter VII, is intended to fill the gap left open by the failure to implement Art. 43. Such action is clearly carried out not by mutual consent, but against some of the Parties which have given rise to a situation qualified as a threat to the peace, a breach of the peace or an act of aggression, in order to force such Parties and subordinate their political will to the political will of intervening States and, after all, to the political will of the United Nations.
Although in the previous section I have concluded in favour of the applicability of international law of armed conflicts to States' operations authorized by United Nations, I think one may well move a step forward. One may say that Art. 2, par. 2 of the 1994 Convention also embraces those operations undertaken by armed forces of the United Nations to be constituted, perhaps in a distant future, according to Art. 43 of the Charter, in order to empower the Organization to take enforcement actions under its direct command and control, in situations envisaged in Chapter VII: I mean missions undertaken without the consent of the adverse Parties concerned, but rather against them, in order to forcibly subordinate their will to the Organization's will.
In such cases undoubtedly one would be in the presence of United Nations operations authorized by the Security Council under Chapter VII of the Charter rather than in the presence of "United Nations operations", such as envisaged in Art. 1 (c) of the 1994 Convention, established by a competent organ of the United Nations (General Assembly or Security Council) "in accordance with the Charter". The latter expression is well apt to limit its meaning to United Nations "peace-keeping operations" which do not have a juridical basis in specific norms of the Charter: these simply developed in practice, having been established merely "in accordance with the Charter" for the purpose of maintaining or restoring international peace and security.
The suggested literal interpretation appears to be well in keeping with the conventional system. In fact, the logic of the recent Convention, taken as a whole, is clearly intended to limit its own applicability to those United Nations operations which may be broadly qualified as "peace-keeping operations". This expression includes, in addition to the management of existing conflicts in view of maintaining a feeble peace and restoring peace, elements of preventive peace-keeping and post-conflict peace-keeping (that is peace-building) in view of maintaining and solidifying peace: at times, there may be some overlapping among these elements. In short, the case of United Nations peace-enforcement operations conducted by use of arms against a party as such, in order to coerce its will in view of imposing peace, appears to be, in line with its Art. 2, par. 2, outside the aims of the Convention.
Furthermore, if one considers its Preamble, one may note that the Convention was drafted in view of facing problems arising precisely in the framework of the current United Nations operations experience (that is to say a broad peace-keeping experience): the contracting States indicate that they have been lead to negotiate by the deep concern over the growing number of deaths and injuries resulting from deliberate attacks against United Nations and associated personnel (consideranda 1) and the recognition of the inadequacy of existing measures of protection (consideranda 6).
Besides, the Preamble recalls the contribution of United Nations personnel to United Nations efforts in the ''fields of preventive diplomacy, peace-making, peace-keeping, peace-building and humanitarian and other operations" (consideranda 4). The avoidance of any specific reference to peace enforcement actions deserves to be noticed, even though the list is admittedly not exclusive.
Moreover, the Preamble underlines the importance of the consent and co-operation of the host State and of the comprehensive support of all others on whom such personnel may rely for an enhanced conduct of its operations (consideranda 8). It is therefore clear that such operations are not envisaged by the negotiating States as being coercive operations directed against a Party as such. They are carried out - one may after all say - in the supposed (balance of) interest of all Parties in conflict (and also in the common interest of the international community).
Having drawn such general lines, the attitude of impartiality required by United Nations peace-keeping operations and clearly envisaged in Art. 6 of the new Convention - which calls United Nations personnel to respect the laws of the host State and to refrain from any action or activity incompatible with the impartial and international nature of its duties - appears to be consequential.
The fact that United Nations military operations established under Chapter VII of the Charter and directed against a party in conflict, are excluded - according both to a literal and to a systematic reading - from the field of application of the 1994 Convention purports, as consequence stressed by Art. 2, the applicability of "the law of international armed conflicts". This is a much more convincing solution insofar as it appears consistent with basic principles of international law.
I may recall the principle of effectiveness, indeed so relevant from many points of view in international law generally and in international law of armed conflicts in particular. United Nations enforcement operations do not differ from actions conducted by a military coalition warring against an adverse Party: if one considers the factual situations calling for the applicability of international law of armed conflicts, nothing changes if an operation is conducted against an adverse party by a State directly, by a coalition of States, by a coalition of States by means of a regional organization, by States or regional organizations authorized by the United Nations, or by the United Nations under its own command and control, acting - according to the significant expression of Art. 24 of the Charter - "on behalf" of the Member States.
Moreover, one should consider the strict logic of principles of international law relating to the transfer of functions and activities by States to international intergovermental organizations: states cannot confer functions to intergovernmental organizations in such a way as to elude their own international obligations deriving from treaties and custom in force. Therefore, if States in international relations delegate the use of armed force to an international organization and even contribute troops to such organization, it follows that the organization in question must abide by international law of armed conflict when it acts through its own armed forces in substitution of the armed forces of States. One may also conclude, reciprocally, that United Nations missions are guaranteed by the protective rules of humanitarian law. That is to say, United Nations military forces carrying out enforcement actions "on behalf" of States are under the duty to respect international customary rules and those sets of conventional rules which are currently referred to as "Hague Law" and "Geneva Law" and at the same time they enjoy the rights provided for in return.
In other words, the compliance with international humanitarian law by United Nations Forces authorized to carry out an enforcement action is just the obvious and direct consequence of the fact that States being parties to the Organization have to comply with international humanitarian law if they undertake a similar action directly.
It is worth observing that the contents of international humanitarian law binding upon United Nations Forces are in the first place those deriving from customary law. But one cannot exclude the relevance for the United Nations Forces of those substantive rules which are confirmed in conventions adopted by Member States at a universal level. In fact, the United Nations have undertaken the general commitment to solve international problems of humanitarian character and to promote respect for human rights (Preamble, Art. 1 and 55). In addition, all members have pledged themselves to take joint and separate action in co-operation with the organization for the achievement of such purposes (Art. 56, the wording of which is after all drawn upon by Art. 89 of Protocol I). Substantial conventional rules adopted at a universal level may be seen to be simply the historical specification of that general and, at the same time, binding commitment undertaken through the Charter. Undoubtedly United Nations Forces must carry a very strong political and juridical responsibility if the credibility of the general and solemn aims enunciated in the Charter is to be upheld.
The immediate corollary of such a principle is that enforcement action conducted by the military forces appertaining to an international organization which is not in compliance with international humanitarian law leads to the international responsibility not only of the organization - insofar as it is considered to be a juridical person distinct from Member States -, but even of the Member States of the organization, at least insofar as they have not done all that is reasonable in order to ensure that the organization's forces abide by international humanitarian law.
I believe it is also appropriate to observe that the importance of the quoted Art. 2, par. 2 goes beyond the general affirmation of the applicability of international humanitarian law of armed conflicts in the situations envisaged above. It deserves to be further underlined insofar as it recognizes that in case of an enforcement action conducted by third States or by United Nations Forces on behalf of States, "the law of international armed conflict applies". It extensively envisages all situations, including situations of conflict between insurrectionist movements and governmental forces, provided that the nongovernmental Party acts through "organized armed forces". The latter is the case in various concrete situations I have mentioned before (from Yugoslavia, to Somalia and Rwanda), in which the Security Council explicitly stated that it was acting under Chapter VII of the United Nations Charter and drew the attention of States to the obligation to respect and ensure respect for international humanitarian law (broadly indicated by reference to the Geneva Conventions) as well as to the principle of individual criminal responsibility of perpetrators of grave breaches.
I also wish to recall, in this context, that the presence of "dissident armed forces or other organized armed groups" determines the material field of application of Protocol II additional to the Geneva Conventions relating to the protection of victims of non-international armed conflicts (Art. 1, par. 1). According to Art. 2, par. 2 of the 1994 Convention, a third State Party or a United Nations Forces intervention in a conflict between governmental forces and dissident armed forces or other organized groups excludes the mere reciprocal applicability of the low level rules of Protocol II. On the contrary, it requires all Parties, on account of the given factual situation, to apply the law of international armed conflict to its largest and most developed extent, internationalizing, you may say, what was initially an internal conflict. Moreover, there is a further element displayed by the rule contained in Art. 2, par. 2 of the 1994 Convention: it does not require nor asks for the fulfilment of the condition, relevant from the point of view of the material field of application of Protocol II, that such organised armed forces "exercise such control over a part of the territory as to enable them to carry out sustained and concerted military 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.
The view according to which United Nations Forces acting in peacekeeping are not intended to be - in principle - parties to a conflict is well envisaged in the Convention I have previously quoted on the Safety of United Nations and Associated Personnel.
In a rough summary, I may observe that Art. 7 - which constitutes the central substantive norm of the Convention - rules, in par. 1, that United Nations personnel, their equipment and premises shall not be made object of an attack or of any action that prevents them from discharging their mandate. One may well assume that, following the breach of this obligation, the Party from whom the attack comes is to be considered responsible, according to a general and basic principle of international law.
But, furthermore, the Convention explicitly provides for the individual penal responsibility of those persons who have organized, ordered, committed an attack or attempted to commit an attack. In fact, according to Art. 9, attacks against United Nations personnel shall be made crimes under the national law of States parties to the Convention: a crime which each State shall make punishable by appropriate penalties taking into account its serious nature. State Parties are also under the duty to take all measures necessary in order to establish a wide jurisdictional fan, so that each State will prosecute the alleged offender present on its territory, unless it prefers to extradite him to another State accepting criminal jurisdiction according to the jurisdictional links provided for by the Convention itself.
It is a solution in which one may perhaps hear the echo of historical precedents such as the Security Council resolutions on Somalia, especially Res. 837 (1993), which followed the premeditated armed attacks launched by forces apparently belonging to the United Somali Congress against the personnel of UNOSOM II on 5 June 1993.
From the normative system the lines of which I have very briefly described, one may observe that the basic ratio of the Convention does not appear to be that of an instrument appertaining to ius in bello. Insofar as one is faced with a prohibition to launch attacks against United Nations peace-keeping forces as such - I would say against the United Nations as such -, its raison d'etre resembles rather that of an instrument which one may define as appertaining to ius ad bellum. The aggression to United Nations Forces as a whole is formally forbidden: such an attack resembles a crime relating to the illegal use of armed force in international relations, i.e. the aggression against a State as such or, even more, against a State having an internationally protected neutralized status (crime against peace), rather than an attack in the framework of an armed conflict against the civilian population and individual civilians, which is considered to be a war crime by international humanitarian law instruments (Protocol I, Art. 85).
In connection with the previous remarks one may note that the Convention in referring to attacks against United Nations personnel does not qualify them as war crimes, according to the terminology used in Protocol I Additional to the Geneva Conventions of 1949 (Art. 85, par. 5), but rather, simply, as "crimes". However, one could observe that the use of the latter term may relate also to the fact that an attack may take place in situations which you cannot qualify as an armed conflict; and, moreover, if attacks against United Nations Forces usually come from "organized armed forces", it may also happen that attacks come from individuals or groups of individuals not constituting "organized armed forces" and are therefore again outside the framework of an armed conflict in a strict sense.
Having concluded that the Convention of 1994 is devoted to prevent attacks against the United Nations in the logic of ius ad bellum, the problem of the status of United Nations Forces in the framework of ins in bello, especially in cases in which, notwithstanding the prohibition of carrying out attacks against them, United Nations Forces become involved to a greater or lesser extent - albeit illicitly - in an armed conflict, remains open.
In fact, the Convention of 1994 itself suggests on first reading that international humanitarian law has to play a role. Its articles 8 and 20 are significant in verbin this respect. Art. 8, while affirming the duty to release and promptly return captured or detained United Nations personnel, specifies that 'pending their release such personnel shall be treated in accordance with universally recognized standards of human rights and the principle and spirit of the Geneva Conventions of 1949". Art. 20 contains a "saving clause" by which nothing in the Convention shall affect "the applicability of international humanitarian law and universally recognized standards of human rights as contained in international instruments in relation to the protection of United Nations operations and United Nations and associated personnel or the responsibility of such personnel to respect such law and standards ".
I will dwell upon the proper significance of these rules after recalling the row of "precedents" and the related conceptual evolution concerning the applicability of international humanitarian law in the framework of peace-keeping operations.
I now simply wish to stress - in the light of the articles in question the general conclusion according to which international humanitarian law is applicable to peace-keeping operations - at least to the extent which will be clarified more specifically in par. 8 - while, in the meantime, observing that international humanitarian law is set on a conceptual plane which according to the Convention is parallel to the conceptual plane on which the prohibition to carry out attacks against peace-keeping forces is set.
I also want to draw attention to the joint reference to international humanitarian law and human rights instruments. Insofar as this aspect is concerned I wish to point out that - as I wrote at the beginning of this study - the deployment of United Nations peace-keeping forces may take place both in situations endangering peace or constituting a threat to peace, in view of avoiding armed conflicts and maintaining peace, or in situations of armed conflict, in view of restoring a status of peace. In other words, United Nations peace-keeping forces usually act in areas in which human rights law and humanitarian law border upon each other and may even overlap, as is the case concerning those fundamental rules relating to the protection of human beings which apply equally in war and peace time (such as the prohibition of torture), or in the case of those rules of international humanitarian law which create preventive duties of implementation which must be honoured even in peace time, when the law of human rights is properly applicable. Depending upon the material situations involved, human rights rules or humanitarian law rules apply to United Nations missions imposing active and passive juridical subjective situations - rights, obligations, powers, faculties, burdens etc. - upon them.
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.
Setting aside these normative references which, while denoting the possible relevance of international humanitarian law in peace-keeping operations, are at the same time unsuitable for the purpose of demonstrating the applicability of general instruments of international humanitarian law as such, I now wish to observe that the establishment and deployment of United Nations peace-keeping operations has emphasized the issue of the applicability of international humanitarian law in concrete circumstances.
The International Committee of the Red Cross has, in such specific cases, in addressing the United Nations, affirmed the binding character of international humanitarian law, of customary law at least, for all those involved in situations of armed conflicts, even if the entity in question is a non-State entity such as an international organization. It is the traditional policy of the ICRC to affirm - in promoting universal application of international humanitarian law - that international humanitarian law applies "in all circumstances" according to the wording of Art. 1 common to the Geneva Conventions and to Protocol I, irrespective of the possible legal basis of the use of force and the status of the entities involved.
The ICRC, however, accepts the fact that the applicability of international humanitarian law to United Nations Forces is conditioned by the factual characteristics of the organization itself and that therefore the rules of armed conflict - insofar as they are construed to as basically taking into account the material characteristics of States - should apply mutatis mutandis, safeguarding - however - their fundamental ratio.
Also, in the follow-up to such requests by the ICRC, the United Nations were led to introduce a reference to international humanitarian law in the regulations enacted for specific United Nations missions as they were set up 42 The first step was the inclusion in Regulations for UNEF I (of 20 February 1957) of Art. 44, according to which "The Force shall observe the principles and spirit of the general international Conventions applicable to the conduct of military personnel". The same wording, which includes, as a minimum, rules of customary international law restated by those conventions, was then repeated in Art. 43 of the Regulations for ONUC of 15 July 1963 and in Art. 40 of the Regulations for UNFICYP of 25 April 1964.
A further step is constituted by the agreements concluded by the United Nations with States providing contingents. In these agreements with contributing States - such as the one with Sweden of 1966 - in order to give a more concrete meaning to the formula quoted above it is furthermore stated, for the first time, that "the international Conventions referred to in the regulation include - inter alia - the Geneva Conventions of 12 August 1949 and the UNESCO Convention on the Protection of Cultural Property in the event of armed conflict, signed at the Hague in 1954". It is also indicated in this connection - in a typical sharing of responsibilities between the organization and member States - that the Governments of the States providing contingents will "ensure that the members of their contingents serving with the Force shall be fully acquainted with the obligations arising under these Conventions and that appropriate steps be taken to ensure their enforcement".43
This was undoubtedly a significant step forward aimed at reinforcing concretely, by means of an appropriate specification, the applicability of international humanitarian law to peace-keeping forces and at strengthening the procedure for its implementation by the States contributing contingents.
One may consider it to be a precedent, in the terminology used, of the general clause later introduced in the 1991 Model Agreement between the United Nations and Member States contributing personnel and equipment to United Nations peace-keeping operations. This clause, in laying down the obligations of the troops and of their contributing Governments, rules that the United Nations peace-keeping operations "shall observe and respect the principles and spirit of the general international conventions applicable to the conduct of military personnel. The international conventions referred to above include the four Geneva Conventions of 12 August 1949 and their Additional Protocols of 8 June 1977 and the UNESCO Convention of 14 May 1954 on the Protection of Cultural Property in the Event of Armed Conflict". Moreover, the States contributing personnel - in the typical sharing of responsibilities already mentioned - must ensure that the members of their national contingents "shall be fully acquainted with the principles and spirit of the conventions ".
To-date the United Nations, following a request by the ICRC, has amended, in 1992, the Model Status of Forces Agreement (SOFA) between the United Nations and the State on whose territory United Nations Forces are deployed, introducing a similar provision on the mutual observance of the principles of international humanitarian law: the so called "Red Cross clause".
The United Nations, according to the clause in question, undertakes to fully respect, in the context of peace-keeping operations, the principles and spirit of the general international Conventions applicable to the conduct of military personnel. The host State, on the other hand, undertakes the mutual obligation to treat the forces of the organization with full respect for the principles and spirit of the general international conventions applicable to the treatment of military personnel. This clause has since been included, together with specific references in the agreement between the United Nations and Haiti on the status of UNMIH, of 9 October 1993 as well as in the agreement between the United Nations and Rwanda on the status of UNAMIR, of 5 November 1993.
In particular, Art. 7 of the SOFA with Rwanda provides that "without prejudice to the mandate of UNAMIR and its international status:
a) The United Nations shall assure that UNAMIR shall conduct its operations in Rwanda with full respect for principles and spirit of the general conventions applicable to conduct of military personnel. These international conventions include the four Geneva Conventions of 12 August 1949 and their Additional Protocols of 8 June 1977 and the UNESCO Convention of 14 May 1954 on the Protection of Cultural Property in the Event of Armed Conflict;
b) The Government undertakes to treat at all times the military personnel of UNAMIR with full respect for the principles and spirit of the general international conventions applicable to the treatment of military personnel. These international conventions include the four Geneva Conventions of 12 August 1949 and their Additional Protocols of 8 June 1977;
UNAMIR and Government shall therefore ensure that members of their respective military personnel are fully acquainted with the principles and spirit of the above-mentioned international instruments ".
The practice mentioned above shows that reference is constantly made, with some slight variance, to "the principles and spirit of the general international Conventions applicable to the conduct of military personnel", but never to the Conventions in their integrity. Such uniform reference to "the principles and spirit", and not to the Conventions as such, may be explained by the fact that the United Nations is not party to the international humanitarian law conventions. Moreover there are well grounded doubts over the fact that the United Nations may formally accede to humanitarian law conventions, if attention is paid to the subjective field of application as indicated in humanitarian law conventions themselves: the parties are intended to be only State entities.
This latter consideration puts a further - previously outlined element to the fore: that is to say, international humanitarian law conventions were tailored on a State dummy and it may happen that some of the single rules considered relevant cannot be applied as such to United Nations Forces. It is rather necessary - as already mentioned - to act mutatis mutandis in order for them to properly fit the organization's body.
But, all things considered, if one cannot draw the conclusion that the United Nations is bound by humanitarian law conventions as such, at the same time, one should not consider "the principles and spirit" as a commitment of a general character with a feeble normative content
In fact, the formula "principles and spirit of international humanitarian law" undoubtedly is to be provided with a proper normative content extending beyond strict customary law. Such normative content must operate in different concrete situations in which it is to find its specification according to each case: the real significance of those principles in the concrete situations involving United Nations Forces is inevitably the one provided for by international humanitarian law conventions for similar situations involving the conduct of States. Therefore United Nations Forces must abide by the concrete meaning of the "principles and spirit" such as specified in general conventions.
This solution is furthermore suggested by the usual reference to specific instruments of international humanitarian law next to the formula "the principle and spirit". The - not exclusive - list of such instruments includes the Geneva Conventions of 1949, the Protocols of 1977 and the UNESCO Convention of 1954.
I mean, therefore, that in practice United Nations Forces have to abide by and are protected in turn by all single rules of the Conventions adopted at a universal level, with the sole notice that some of these specific rules must be applied taking the factual features of the United Nations Organization into account and considering that some responsibilities which the United Nations is not in a material condition to carry out, are to be shared with the members States of the Organization. Furthermore, one may go as far as saying that the international organization is under the duty to request States to comply with those obligations which the organization itself is not materially in a condition to fulfil. I think this solution appears to be the most profitable for international humanitarian law and United Nations peace-keeping forces, as opposed to that of undertaking the very difficult task of rewriting and revisiting all international humanitarian law from the point of view of United Nations peace-keeping forces (with the extremely difficult problems of co-ordination among the numerous international humanitarian law instruments involved).
In other words, the best solution appears to consist in setting a legal presumption according to which all rules of international humanitarian law are applicable, leaving the burden of demonstrating that a specific rule cannot materially work in some cases and that "the principle and spirit" of that specific rule may be honoured by the Organization or by a State on behalf of the organization by way of a specific response which properly safeguards the raison d'etre of such rule.
If one is to envisage some sort of drafting of specific rules relating to United Nations Forces, it appears preferable to consider flexible instruments such as a code of conduct of international rules binding upon the Organization, having a merely internal value, which may be easily modified in the light of the concrete experience of situations on the ground.
This solution appears to be much more acceptable insofar as it is essential that United Nations personnel behave in the best possible way if international humanitarian law is, more generally, to be implemented.
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.