Law in Humanitarian Crises Volume I : How Can International Humanitarian Law Be Made Effective in Armed Conflicts? (European Commission Humanitarian Office): The Laws of War: Problems of Implementation in Contemporary Conflicts: II. Implementation Provisions and Mechanisms: 7. The Involvement of the United Nations

Law in Humanitarian Crises Volume I : How Can International Humanitarian Law Be Made Effective in Armed Conflicts? (European Commission Humanitarian Office)

(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

7. The Involvement of the United Nations

Since about 1980, crises over implementation have focused to an unprecedented extent on the United Nations, and more particularly on the Security Council. The UN's involvement in issues relating to the international law of armed conflict goes back a long way. The wartime allies established the United Nations War Crimes Commission on 20 October 1943, at the same time as they were working towards the creation of the United Nations Organization. The 1948 Genocide Convention, Article VIII of which made significant reference to the UN, was negotiated at the UN General Assembly. A further major landmark was General Assembly Resolution 2444 of 19 December 1968 on "Respect for Human Rights in Armed Conflicts". Literally hundreds of UN General Assembly resolutions have used the laws of war as a basis for criticizing the actions of particular states; Israel's conduct in the occupied territories has been condemned with particular frequency.

In 1977, two treaties made explicit provision for a major UN role in implementing the laws of war. The Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (the ENMOD Convention) envisaged that the UN, especially the Security Council, would handle investigations of suspected violations. The Geneva Protocol I foreshadowed the further involvement of the UN in matters relating to the laws of war when it stated: "In situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter".

Since at least the mid-1980s, the UN's involvements in matters relating to the laws of war have focused more on the Security Council than the General Assembly, and more on implementation than on development of the law. The Security Council's involvement in this area illustrates the wide range of issues in which the Council can become engaged once it is seen as capable of reaching agreement. It also illustrates the difficulties of attempts to ensure implementation.

If the assumption is that the UN is becoming the centre of a system of collective security, then its concurrent rule as a supervisor and arbiter of the implementation of the laws of war may well seem a logical corollary. In the post-Cold War era, many have hoped, and some still hope, that the UN has the possibility of establishing some kind of general system of collective security. However, for those who are sceptical as to whether the traditional difficulties of proposals for collective security have even been addressed, let alone overcome, the Security Council's role in laws of war issues looks especially problematic. If the Security Council is not capable of tackling effectively even a modest proportion of threats to the peace, will it be any more effective in the lesser task of securing implementation of the laws of war?

One obvious problem with the UN's role in respect of the laws of war is that the Security Council is necessarily selective as to which issues it tackles. Due principally to the existence of the veto, the Security Council did nothing about alleged violations of the laws of war during the Vietnam war in the 1960s and 1970s, nor during the Afghan war in the 1980s. It was the General Assembly, not the Security Council, that passed most of the resolutions critical of Israeli conduct in the occupied territories.

In some conflicts since the mid-1980s, as briefly summarized in the following sections of this study, the UN Security Council has dealt with laws of war issues. It has addressed two fundamentally distinct aspects: first, the investigation and punishment of major violations by belligerents; and second, the management of UN-authorized forces, whether in peace-keeping or enforcement actions, in a manner consistent with the laws of war. An opinion on the effectiveness of these roles will be offered in the conclusions of this study.