|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|
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.