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: II. The failure of the UN in Constituting Enforcement Instruments and the Practice of the Security Council of Authorizing Enforcement Action by States

Law in Humanitarian Crises, Volume I : How Can International Humanitarian Law be made Effective in Armed Conflicts? (ECHO)

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Introduction

The Laws of War: Problems of Implementation in Contemporary Conflicts

I. Introduction

II. Implementation Provisions and Mechanisms

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1. From 1899 to the Second World War

2. The Post-Second World War Trials

3. The Post-1945 Conventions: General

4. The Post-1945 Conventions: Humanitarian, Monitoring and Fact-Pinding Tasks

5. The Post-1945 Conventions: Punishment and Compensation

6. Other Mechanisms of Implementation

7. The Involvement of the United Nations

8. The International Court of Justice

III. Problems of Implementation in Wars since 1980

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1. Iran-Iraq War 1980-88

2. The 1990-91 Gulf Conflict

3. The Wars in the Former Yugoslavia since 1991

4. Civil War and Humanitarian Intervention in Somalia 1992-95

5. International Conference, Geneva, August-September 1993

6. Rwanda 1994

IV. General Issues

1. Woodrow Wilson's Dilemma in 1914

2. Successors' Responses to illegal Acts of Previous Regimes

3. One Alternative Vision

V. Summary and Conclusions

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1. Realist and Idealist Images of the Laws of War

2. Still a World of States

3. Humanitarianism as a Substitute for Policy

4. Application to Non-International Conflicts

5. Mines

6. Limits of Compliance Provisions

7. Trials

8. International Criminal Court

9. Reparations

10. The United Nations

11. Barbarians?

12. A Set of Professional Military Standards?

13. Need to Keep Our Own Houses in Order

14. The Relation between Ius in Bello and Ius ad Bellum

15. Taking Implementation Seriously

The Implementation of International Humanitarian Law in the Framework of United Nations Peace-keeping Operations

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I. The United Nations and Humanitarian Law

II. The failure of the UN in Constituting Enforcement Instruments and the Practice of the Security Council of Authorizing Enforcement Action by States

III. The Law of International Armed Conflicts and UN Enforcement Operations Under Chapter VII

IV. The Alternative Experience of Peace-keeping Operations

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

VI. The Applicability of International Humanitarian Law to Peace-keeping Operations in the Light of General Instruments of International Law

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

VIII. A Conclusion in the Light of the 1994 Convention on the Safety of United Nations Personnel

International Humanitarian Law and the Law of Refugees and Internally Displaced Persons

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I. Introduction

II. The Inadequacy of International Refugee Law in Situations of Armed Conflict

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1. The Need for Reconsidering the Refugee Definitions in International Law

2. The Need for Improving the Substantive Rights of Refugees in Situations of Armed Conflict

3. The Need for Improving International Co-operation with Regard to Refugees from Situations of Armed Conflict

4. The Need for Further Consideration of International Action in Favour of Refugees from Situations of Armed Conflict

III. The Inadequacy of International Law in Respect of Internally Displaced Persons

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1. Existing Norms of International Law Applying to Internally Displaced Persons

2. The Lacunae of International Law in Respect of Internally Displaced Persons

3. Possible Ways of Improving the Legal Situation of Internally Displaced Persons

4. The Need for Further Consideration of International Action in Favour of Internally Displaced Persons

IV. The Need for Comprehensive Approaches

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1. Overcoming the Differentiation Between Externally Displaced Persons (Refugees) and Internally Displaced Persons

2. Overcoming the Still Existing Differentiation in International Law as Regards Norms Applicable Before, During and After Situations of Armed Conflicts Resulting in Forced Movements of Persons

V. Conclusions and Recommendations

Notes on the Contributors

Abbreviations

II. The failure of the UN in Constituting Enforcement Instruments and the Practice of the Security Council of Authorizing Enforcement Action by States

The management by the United Nations of situations of crisis involving the maintenance of international peace, has been characterized - as already mentioned - by the fact that the enforcement device considered in Art. 42 ff. of the Charter remained unachieved as a consequence of the Cold War era confrontation. The great powers, in mistrust of each other, were unable to conclude the special agreements which, according to Art. 43 of the Charter, were to make armed forces permanently available to the Security Council. And now too, notwithstanding the changing reality in the world's political balance, the fulfilment of the conditions permitting the United Nations, with forces under its command and control, to take prominent enforcement action against those responsible for threats to the peace, breaches of the peace or acts of aggression is not foreseeable. As the Secretary-General has recognized in the Supplement to the Agenda for Peace "neither the Security Council nor the Secretary-General at present has the capacity to deploy, direct, command and control operations for this purpose (enforcement action), except perhaps on a very limited scale it 8

The consequence of this set of circumstances consists in the fact that the United Nations, not being in the condition to intervene effectively in many international and internal conflicts flaring throughout the world, have in fact left the management of these crisis to the individual enforcement action of States operating extra organization, in the framework - you may say - of their traditional and reciprocal interpower relations to which international humanitarian law of armed conflicts naturally applies.

However, in some cases, the United Nations has divested itself explicitly of its competence in leading enforcement actions, and has instead "authorized" member States to undertake enforcement actions by use of force. Such was the case in Korea, in 1950, when the Security Council, by Resolution 82, recommended that Member States furnish assistance to the Republic of Korea as may have been necessary to repel the armed attack coming from North Korea and to restore international peace and security in the area. Such was again the case, in 1990, when the Security Council, by Resolution 678, acting under Chapter VII of the Charter, authorized a group of member States to undertake an enforcement action making use of "all necessary means" in response to the aggression perpetrated against Kuwait, in case Iraq should refuse implementation of Resolution 660 (1990) ordering its withdrawal from the Kuwaiti territory.

More recently, the Security Council, in situations characterized by some sort of current, but inadequate presence of United Nations Forces, has authorized groups of Member States to undertake enforcement action aimed at certain more specific goals. This is what happened in Somalia, when the Security Council, referring to Chapter VII, by Resolution 794 (1992) welcomed and authorized the offer by members States of an action to be taken, by use of all necessary means, in order to establish as soon as possible a secure environment for humanitarian relief operations.

Insofar as the case of Rwanda is concerned, the Security Council, by Resolution 929 (1994), welcomed the offer of member States to cooperate with the Secretary-General in order to achieve the humanitarian objectives of the United Nations in that devastated country through the establishment of a temporary operation under national command and control. Consequently the Council, acting under Chapter VII of the Charter, authorized member States to conduct such operation resorting to all necessary means until the United Nations Force (UNAMIR) was brought up to the necessary strength.

Again, in the case of Haiti, the Security Council acting under Chapter VII of the Charter, by Resolution 940 (1994), authorized member States to form a multinational force under unified command and control and to use all necessary means to facilitate the departure of the military leadership and the restoration of democracy in Haiti.

Insofar as the situation in former Yugoslavia and especially in Bosnia-Herzegovina is concerned, the Security Council, by various - you may say a burst of - Resolutions once again based on Chapter VII (I may recall numbers 770 (1992),781 (1992),787 (1992),816 (1993),824 (1993), 836 (1993), 844 (1993), 908 (1994) etc.), has authorized Member States, acting nationally or through regional agreements, to use force in order to ensure compliance with its measures of embargo and with its ban on military flights m that country's air space, to support the United Nations Forces in the performance of their mandate, including defence of personnel who may be under attack, and to deter attacks against the so called six "safe areas" created in order to guarantee protection to the civilian population endangered by the ethnic cleansing policy. The Member States concerned decided to take on those tasks acting under the cover of the North Atlantic Treaty Organization (NATO). Moreover, recently, the Security Council welcomed the deployment in Bosnia-Herzegovina of a British-Dutch-French rapid reaction force - which includes heavy artillery - fit to undertake an enforcement action of a military strength which it would have been impossible for UNPROFOR to express.

It seems obvious and it is generally acknowledged that the enforcement military actions carried out by States in the aforementioned cases, outside their national borders and in the territory of a foreign country, while being "authorized" by the United Nations (and therefore not qualifying as aggression or illegal use of force), do not differ in any way from traditional interpower intercourse involving use of armies, which naturally falls in the field of application - such as widely indicated in the Geneva Conventions and Protocols - of international humanitarian law and of international law of armed conflicts as a whole. Furthermore it is a most stable principle that international law of armed conflicts (ius in bello) applies in equal manner to all parties involved irrespective of any other consideration, including those considerations (even if coming from the United Nations) relating to the legality of the use of force and the objective of the use of force (ius ad bellum). The acting States are therefore under the duty to strictly implement international customary rules and those sets of conventional rules which are usually referred to as "Hague Law" and "Geneva Law" no additional problems seem to arise with regard to ordinary implementation of international humanitarian law.

I may stress that such a rational solution appears to be perfectly in tune with the provision now embodied in Art. 2, par. 2 of the recent 1994 Convention on the Safety of United Nations and Associated Personnel. This norm, in defining the Convention's scope of application, establishes that it "shall not apply to a United Nations operation authorized by Security Council as an enforcement action under Chapter VII of the Charter of the United Nations in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflicts applies".

There is no doubt about the fact that the rule in question - perhaps somewhat ambiguous in its wording if read in conjunction with the definitions contained in Art. 1 of the Convention - refers to the already mentioned enforcement operations conducted directly by third States, whose action, authorized by the Security Council under the coverage of Chapter VII, is intended to fill the gap left open by the failure to implement Art. 43. Such action is clearly carried out not by mutual consent, but against some of the Parties which have given rise to a situation qualified as a threat to the peace, a breach of the peace or an act of aggression, in order to force such Parties and subordinate their political will to the political will of intervening States and, after all, to the political will of the United Nations.