|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|
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 ".