|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|
The maintenance of international peace and security is a primary purpose committed by the Charter to the Organization of the United Nations.
In pursuing this main purpose, the competent bodies of the United Nations, according to Chapter VI of the Charter, are entitled to take some course of action in disputes or situations the continuance of which is likely to endanger the maintenance of international peace and security: the United Nations does not take sides against a party as such, but acts mainly by way of conciliatory instruments with the aim of inducing the adversaries to agree on a peaceful solution of their problems.
Moreover, according to Chapter VII of the Charter, the United Nations Security Council is also called upon to decide on coercive measures or to undertake enforcement actions against (some of) the hostile Parties if it ascertains the existence of situations of a much more serious nature, that is to say in cases of threats to the peace, breaches of the peace or acts of aggression. Such action may even assume the form of warlike measures.
If one considers the United Nations system, such as envisaged in the Charter, it is clear that, notwithstanding the solemn prohibition of the threat or the use of force in international relations, the event of a breach of the peace is considered very likely to occur. The drafters of the United Nations Charter appear conscious of the fact that it was unrealistic To eliminate the danger per se of armed conflicts by a mere normative statement (Art. 2, par. 4) and that they had to think up various means in order to avert that danger (Chapters VI and VII). In other words, the Charter, with great sense of reality, does not regard peace as a goal achieved once and for all, but as a result to be gained, day by day, in the engagement of the organization's concrete activity on the ground.
The very real risk of armed conflicts breaking out, notwithstanding efforts by the United Nations, was perceived clearly by the post Second World War international community. While the contra bellum system embodied in the Charter of the United Nations was being drafted, at a different diplomatic table, following an initiative of the International Committee of the Red Cross, the elaboration of the four Geneva Conventions for the protection of the victims of armed conflicts in bello was in progress. These Conventions, which are the core of the international humanitarian law now in force, were adopted on 8th august 1949, when the Organization of the United Nations was already on the scene. These Conventions, through a very detailed and ambitious normative system relating to the protection of the wounded, sick, shipwrecked, of prisoners of war and civilians, demand respect for international humanitarian law values in armed conflicts in all circumstances, while accepting at the same time, a broad concept of armed conflict and going as far as laying down - for the first time in an international convention - fundamental rules applying to armed conflicts not of an international character.
The choice, made in the forties, of producing efforts aimed at strengthening ius contra bellum and ius in bello simultaneously soon appeared to be of great shrewdness: it is a fact that a growing number of armed conflicts (both of an international and a non-international character) continued to plague the world after the United Nations began its work - indeed a self-restrained work, insofar as the Cold War confrontation prevented the United Nations from creating under Chapter VII of the Charter its own armed forces fit to undertake significant coercive and enforcement actions. United Nations policy was then characterized by the first practice of peace-keeping operations. Moreover, the bitter experience of post Second World War conflicts assumed such characteristics that the necessity of further developments of the Geneva Conventions were put to the fore. These new developments resulted in the two additional Protocols adopted in 1977 the first relating to the protection of victims of international armed conflicts, the second relating to the protection of victims of non-international armed conflicts.
In more recent years, after the end of the Cold War, old and new conflicts have continued to ravage different parts of the world with great violence, and with their heavy burden of victims, most of whom are civilians and persons belonging to the most vulnerable groups: elders, women, children, refugees and internally displaced persons. Moreover, in many other areas the risk of armed conflicts is present. Therefore the United Nations - no longer paralysed by the East-West confrontation has been compelled to commit its Blue Helmets to a level of action unprecedented both in quantity and in quality.
It is obvious that the presence of situations of the kind envisaged in Chapters VI and VII of the Charter calls (or is very likely to call) for the application of international humanitarian law under various profiles In other words, United Nations action contra bellum operates in situations in which international humanitarian law calls for the application of its in bello rules. It is commonly accepted that situations endangering peace or constituting a threat to the peace also call for current application of international humanitarian law at least insofar as it concerns the accomplishment of the duty to adopt, at different levels, preventive measures for ensuring its observance if, unfortunately, hostilities should break out.
In conclusion, there is every reason to believe that international humanitarian law has to play an important role from the point of view of the United Nations in situations falling within the organization's competence and envisaged in Chapters VI and VII of the Charter. Moreover, the growing relevance of international humanitarian law for United Nations bodies is underlined by the fact that the International Committee of the Red Cross in recent years has been granted consultative status with the organization,3 conducive to a closer network of relations between the two institutions.
The said relevance of international humanitarian law may result from various points of view which include the following:
a) In the first place, from the point of view of the United Nations Organization itself which is used to carrying out a concrete action, with its forces, in situations characterized by the presence or a high risk of armed conflict. It is rational to think - in general terms which need to be discussed and further specified - that the United Nations Forces as a whole, operating on the ground, in a theatre in which international humanitarian law is relevant, cannot escape international humanitarian law itself. These forces, in all of their elements, have to abide by international humanitarian law rules, insofar as their action falls materially within the field of application of such rules, if they are to take advantage, in turn, of humanitarian law's protective status in case a conflict should, as a matter of fact, break out.
b) In the second place, from the point of view of the reciprocal obligations of conduct with which the opposite Parties must comply during the conflict. It is an old and commonly accepted idea that the respect of the rule of law in armed conflicts helps to restore the status of peace, when the time for peace comes. One might therefore be lead to believe that ensuring observance of international humanitarian law by the parties in conflict could appear to the United Nations not only as a value per se - insofar as its purpose is to alleviate the sufferings of all human beings affected (or possibly affected) by situations of armed conflict - but also as an appropriate device aimed at keeping the ground prepared for regaining peace, in due time, through the organization's appropriate political efforts.
The following pages are mainly devoted to some remarks about the first of these two issues. In this context I wish to stress from now that the subject I am going to discuss has been enriched by a recent normative instrument: the Convention on the Safety of United Nations and Associated Personnel, adopted without a vote by the General Assembly with Resolution 49/59 of 9 December 1994. This Convention will inevitably attract my attention insofar as the field of application of international humanitarian law with regard to United Nations Forces may be remarkably influenced today by the current and delicate debate on the solutions adopted in this new instrument.