|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|
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.