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

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.