V. The 1994 Convention on the Safety of United Nations Personnel as an Instrument Proscribing Attacks Against United Nations Missions in the Framework of Ius ad Bellum and the Contextual Recognition of the Applicability of Ius in Bello

The view according to which United Nations Forces acting in peacekeeping are not intended to be - in principle - parties to a conflict is well envisaged in the Convention I have previously quoted on the Safety of United Nations and Associated Personnel.

In a rough summary, I may observe that Art. 7 - which constitutes the central substantive norm of the Convention - rules, in par. 1, that United Nations personnel, their equipment and premises shall not be made object of an attack or of any action that prevents them from discharging their mandate. One may well assume that, following the breach of this obligation, the Party from whom the attack comes is to be considered responsible, according to a general and basic principle of international law.

But, furthermore, the Convention explicitly provides for the individual penal responsibility of those persons who have organized, ordered, committed an attack or attempted to commit an attack. In fact, according to Art. 9, attacks against United Nations personnel shall be made crimes under the national law of States parties to the Convention: a crime which each State shall make punishable by appropriate penalties taking into account its serious nature. State Parties are also under the duty to take all measures necessary in order to establish a wide jurisdictional fan, so that each State will prosecute the alleged offender present on its territory, unless it prefers to extradite him to another State accepting criminal jurisdiction according to the jurisdictional links provided for by the Convention itself.

It is a solution in which one may perhaps hear the echo of historical precedents such as the Security Council resolutions on Somalia, especially Res. 837 (1993), which followed the premeditated armed attacks launched by forces apparently belonging to the United Somali Congress against the personnel of UNOSOM II on 5 June 1993.

From the normative system the lines of which I have very briefly described, one may observe that the basic ratio of the Convention does not appear to be that of an instrument appertaining to ius in bello. Insofar as one is faced with a prohibition to launch attacks against United Nations peace-keeping forces as such - I would say against the United Nations as such -, its raison d'etre resembles rather that of an instrument which one may define as appertaining to ius ad bellum. The aggression to United Nations Forces as a whole is formally forbidden: such an attack resembles a crime relating to the illegal use of armed force in international relations, i.e. the aggression against a State as such or, even more, against a State having an internationally protected neutralized status (crime against peace), rather than an attack in the framework of an armed conflict against the civilian population and individual civilians, which is considered to be a war crime by international humanitarian law instruments (Protocol I, Art. 85).

In connection with the previous remarks one may note that the Convention in referring to attacks against United Nations personnel does not qualify them as war crimes, according to the terminology used in Protocol I Additional to the Geneva Conventions of 1949 (Art. 85, par. 5), but rather, simply, as "crimes". However, one could observe that the use of the latter term may relate also to the fact that an attack may take place in situations which you cannot qualify as an armed conflict; and, moreover, if attacks against United Nations Forces usually come from "organized armed forces", it may also happen that attacks come from individuals or groups of individuals not constituting "organized armed forces" and are therefore again outside the framework of an armed conflict in a strict sense.

Having concluded that the Convention of 1994 is devoted to prevent attacks against the United Nations in the logic of ius ad bellum, the problem of the status of United Nations Forces in the framework of ins in bello, especially in cases in which, notwithstanding the prohibition of carrying out attacks against them, United Nations Forces become involved to a greater or lesser extent - albeit illicitly - in an armed conflict, remains open.

In fact, the Convention of 1994 itself suggests on first reading that international humanitarian law has to play a role. Its articles 8 and 20 are significant in verbin this respect. Art. 8, while affirming the duty to release and promptly return captured or detained United Nations personnel, specifies that 'pending their release such personnel shall be treated in accordance with universally recognized standards of human rights and the principle and spirit of the Geneva Conventions of 1949". Art. 20 contains a "saving clause" by which nothing in the Convention shall affect "the applicability of international humanitarian law and universally recognized standards of human rights as contained in international instruments in relation to the protection of United Nations operations and United Nations and associated personnel or the responsibility of such personnel to respect such law and standards ".

I will dwell upon the proper significance of these rules after recalling the row of "precedents" and the related conceptual evolution concerning the applicability of international humanitarian law in the framework of peace-keeping operations.

I now simply wish to stress - in the light of the articles in question the general conclusion according to which international humanitarian law is applicable to peace-keeping operations - at least to the extent which will be clarified more specifically in par. 8 - while, in the meantime, observing that international humanitarian law is set on a conceptual plane which according to the Convention is parallel to the conceptual plane on which the prohibition to carry out attacks against peace-keeping forces is set.

I also want to draw attention to the joint reference to international humanitarian law and human rights instruments. Insofar as this aspect is concerned I wish to point out that - as I wrote at the beginning of this study - the deployment of United Nations peace-keeping forces may take place both in situations endangering peace or constituting a threat to peace, in view of avoiding armed conflicts and maintaining peace, or in situations of armed conflict, in view of restoring a status of peace. In other words, United Nations peace-keeping forces usually act in areas in which human rights law and humanitarian law border upon each other and may even overlap, as is the case concerning those fundamental rules relating to the protection of human beings which apply equally in war and peace time (such as the prohibition of torture), or in the case of those rules of international humanitarian law which create preventive duties of implementation which must be honoured even in peace time, when the law of human rights is properly applicable. Depending upon the material situations involved, human rights rules or humanitarian law rules apply to United Nations missions imposing active and passive juridical subjective situations - rights, obligations, powers, faculties, burdens etc. - upon them.