The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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Peacekeeping

Origins

The UN Charter establishes that maintaining international peace and security is the primary goal of the UN (Art. 1.1 of UN Charter). It entrusts the UN Security Council with the main responsibility for achieving this goal (Art. 24).

If an attempt to settle a dispute using pacific methods fails (Chapter VI of UN Charter, “Pacific Settlement of Disputes”), the Charter foresees a mechanism to defend the collective security, which authorizes the use of coercive actions (Chapter VII, “Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression”). If need be, under Chapter VII, the Security Council can undertake military actions (Art. 42). Originally, it was meant to have a permanent army at its disposal (Art. 43), the strategic command of which was to be run by a Military Staff Committee (Arts. 46, 47). Nonetheless, during the Cold War, this system was paralyzed by the rationale of confrontation of ideological blocks linked to the great powers of the Security Council members.

Early on, the procedures to settle disputes pacifically, foreseen by Chapter VI, proved to be insufficient in open situations of conflict. Today, the use of international force provided for under Chapter VII in situations that threaten international peace and security remains subject to blockages caused by the use of the veto power by the Security Council permanent members. In order to circumvent these obstacles, the UN invented peacekeeping operations in 1956, during the Suez Canal crisis. This was an ad hoc response to a situation not foreseen by the Charter, and a palliative measure to replace the use of force. Since there is no judicial basis for such measures, the justification for such operations is often referred to as the mythical “Chapter VI and a half.”

Recently, the Security Council enhanced its cooperation with regional organizations to settle crises, notably with ECOWAS (in Liberia and Sierra Leone in 2003) and the African Union (in Sudan with the UN/AU hybrid mission in Darfur since 2007), in accordance with Articles 52 and 53 of the UN Charter. In the history of peacekeeping, the Security Council also authorized and delegated the use of force to coalitions of States (INTERFET led by Australia in East Timor in 1999), or to other organizations such as NATO (ISAF in Afghanistan since 2001) or the African Union (AMISOM in Somalia since 2007).

Some of these missions have encountered serious failures, such as the massacres of people protected by the UN in former Yugoslavia and Rwanda, which led to the questioning of the functioning of these missions and the development of new doctrines on the content and conditions of the use of force to protect the civilian population (infra, II.4). It also led to the clarification of the applicability of humanitarian law to UN peacekeeping operations, both as fighting forces engaged in a conflict, but also as security and stabilization forces involved in tasks linked with law enforcement and the reestablishment of public order (infra, IV).

The UN Charter confides the primary responsibility for the maintenance of international peace and security to the Security Council. Nevertheless, when it fails to take a decision because of a lack of unanimity of the permanent members, the General Assembly can act (Resolution 377 [V] adopted by the General Assembly in November 1950 and entitled “Uniting for Peace”). In cases of threat to the peace and international security, breach of the peace, or act of aggression, the General Assembly cannot decide to resort to force but can consider the matter immediately and make recommendations to Members for collective measures to be taken to maintain or restore peace and international security. Moreover, it can refer the case to the International Court of Justice, as it did several times, notably in 2004 concerning the legal consequences of the construction of a wall by Israel in the occupied Palestinian territory.

International Court of JusticeSecurity Council of the UN

Structure and Organization

Security Council resolutions create peacekeeping operations (PKOs) and establish their mandate. The PKOs are therefore under the authority of the Council. The UN Secretary-General is responsible for the organization and implementation of these operations. Several members and departments in the Secretariat support his efforts in this respect—in particular, the Department of Peace-Keeping Operations (DPKO). The Secretary-General is in charge of setting up the force: he solicits Member States to get them to mobilize troops and selects the nationality of the contingents. An agreement is then signed between the UN and each country that contributes troops.

The Secretary General has reached an agreement with Member States to set up a system with troops on standby (UNSAS, United Nations Standby Arrangement System), which facilitates the rapid deployment of PKOs. As of December 1999, eighty-eight Member States have accepted to put 147,900 troops at the UN’s disposal. As of May 2011, sixty-three of these States have formalized their participation in this arrangement by signing a memorandum of understanding with the UN, the latest one being Sri Lanka.

In most cases, PKOs can only be carried out with the consent of the government in the country where the operation is deployed and with the agreement of any other party involved. This consent is formalized through a written agreement covering all issues (administrative, legal, logistical, etc.) relating to the operation.

However, using its mandate under Chapter VII of the UN Charter, the Security Council can decide to proceed without this consent.

The Structure of Peacekeeping Forces

The Secretary-General nominates the Force Commander (or Chief Military Observer). In the case of large-scale operations with an important civilian component, a Special Representative (or Chief of Mission) is also appointed. They are in charge of the operational command (military and political) on the ground. Their international status is meant to guarantee their independence from the States contributing personnel. The Force Commander selects the members of his military staff from the officers of the national contingents placed at his or her disposal.

The forces that are deployed are international and placed under the direct authority of the UN. The Commanders of the national contingents must hence exercise their authority in conformity with the orders given by the Force Commander of the entire force. However, they also remain subject to their national laws.

The Force Commander is responsible for the overall order and discipline of the troops. He or she sets up, nominates the members of, and runs, a military police office. The military police have the mandate to arrest any members of the force, and the Commander can impose transfers or assignments as sanctions. He or she can also request that a State recall all its military personnel. However, the real disciplinary power remains under the jurisdiction of the State providing the troops. To this effect, the State must name an officer within its contingent who acts as the national chief of the military police. The Force Commander is informed of any disciplinary measures, and may consult the commander of the national contingent and even the authorities of the contributing State, if he or she considers that these measures were insufficient.

Scope and Cost of the Operations

Since the end of the Cold War, the UN has been increasingly solicited for this kind of operations. The Security Council has deployed three times as many PKOs since 1988 as in the preceding forty years. As of June 2015, there were sixteen peacekeeping operations deployed, involving 94,000 uniformed personnel (including troops, observers, and police) from 120 nations. The increase of such operations has had financial repercussions: the special budget for PKOs took off. In 1975, the PKO budget was $153 million, reached a height of $3.6 billion in 1995, at the time of the operation in former Yugoslavia, then dropped to $1 billion in 1998, to finally reach $7.6 billion for the period 2011–2012. The budget is based on a specially scaled formula that establishes four categories of contributors, a modified version of the scale used for the regular UN budget, going from the permanent members of the Security Council to the poorest States. In reality, PKOs are funded almost exclusively by the most industrialized States, although many of these pay their contributions more than a year behind schedule; as of June 2012, the unpaid peacekeeping dues are approximately $1.26 billion.

Because of these arrears, the UN has delayed its repayments to States that contribute troops by three or four years. The UN General Assembly created a Peacekeeping Reserve Fund, worth $150 million, in 1992, but this was not enough to cover the budget shortages, which are now beginning to affect the contingents’ ability to accomplish their mission on the ground. Besides, as of June 2012, the balance of the Fund has decreased to $139 million.

Different Kinds of Operations

The increase in the number of peacekeeping operations was paralleled by an evolution of the kind of the interventions carried out. In An Agenda for Peace (A/47/277-S/24111, 17 June 1992), then Secretary-General Boutros Boutros-Ghali made an attempt to rationalize the different kinds of PKOs, setting forth precise definitions for peacekeeping, peacemaking, and preventive diplomacy. In his 1995 Supplement to An Agenda for Peace (A/50/60-S/1995/1, 3 January 1995), he noted that the UN’s “range of instruments for controlling and resolving conflicts between and within States [includes] preventive diplomacy and peacemaking; peace-keeping; peace-building; disarmament; sanctions; and peace enforcement,” thereby demonstrating the different kinds of PKOs. Nonetheless, peacekeeping has remained a generic term that designates most different kinds of operations.

“Traditional” or FirstGeneration Peacekeeping Operations

Thirteen PKOs were set up from 1949 to 1988. They were established following strict limits both in their mandates and in their actions. Three main principles governed these interventions:

  1. Consent of the parties to the conflict: a force could only be deployed with the agreement of the State on the territory of which it was going to operate.
  2. Impartiality: the PKOs made no judgment on the rights, claims, or positions of the parties to the conflict. Their aim was not to determine who was the aggressor or the victim.
  3. Non-use of force: the peacekeepers were not authorized to use force, except in self-defense.

These operations played two main kinds of roles: acting as a buffer between the parties to the conflict and monitoring cease-fires. These straightforward military monitoring missions were carried out in the context of interstate conflicts and reflected the weak maneuvering margin within which the UN operated during the Cold War.

SecondGeneration Operations

At the end of the 1980s, peacekeeping operations acquired more ambitious goals. They were no longer meant only to stabilize a situation but also to actively participate in the implementation of international political rules. The PKOs thus included very diverse tasks, such as election monitoring (sometimes including organizing and supervising them), national reconciliation activities (including demobilization and reintegration of former combatants, human rights monitoring, and training), and mine clearance. The UN Transition Assistance Group in Namibia (UNTAG, 1989–90), the UN Advance and then Transitional Authority missions in Cambodia (UNAMIC and UNTAC, 1991–93), and the UN Observer Mission in El Salvador (ONUSAL, 1991–95) are examples of this kind of multifunctional operation, which takes place directly within States.

The three operational principles listed previously continue to be respected.

ThirdGeneration Operations

During the 1990s, in the wake of UN resolutions and debates on the “right of intervention,” the entire approach to peacekeeping was transformed. Three changes took place:

  1. The UN’s humanitarian mandate was broadened, because the qualification of a “threat to international peace and security” was extended to include “humanitarian crises.” The result was that Chapter VII mechanisms resorting to the use of force were used increasingly to enforce humanitarian decisions.
  2. The operations undertaken under Chapter VII began to have a more coercive and enforcing mandate. The contingents’ authority to use force was extended beyond the prior restriction to cases of self-defense, particularly, in theory, to protect humanitarian operations or civilian population is “safe areas.”
  3. The UN increasingly delegated the use of force to national contingents under ad hoc international coalitions or in the context of regional organizations. These are not under the UN’s direct command, although it is theoretically accountable for their actions.

These changes resulted in a new kind of operation, combining military and humanitarian components, which were deployed mostly in internal conflicts or other crisis situations. Some refer to these as third-generation peacekeeping operations, while others make a distinction between the more traditional PKOs and a new form of peace enforcement or peacemaking operations. Chapter VII of the UN Charter still does not foresee any of these kinds of operations, although it is invoked as the basis for the use of force by the UN resolutions authorizing such operations. ▸ Intervention

Operations under UN Command

Such operations are meant to be non-coercive, but their mandate is sometimes extended to include the use of force (other than for self-defense) under certain circumstances—to protect humanitarian convoys or civilian populations, for instance. In some cases, the troops deployed may consist only of UN peacekeepers (sometimes known as “blue helmets”), as was the case with the UN Protection Force in the former Yugoslavia (UNPROFOR) and the UN Operation in Somalia II (UNOSOM II). In other cases, the UN peacekeepers may be backed—either on the ground or by air—by national contingents (as was the case for the rapid reaction force in Bosnia) or regional military organizations (the NATO intervention in Bosnia). It was in this context that Boutros-Ghali suggested replacing “peacekeeping” forces with “peacemaking” ones, in An Agenda for Peace , when the mandate was different. The evolution of the mandate of MONUC (now MONUSCO) in the Democratic Republic of Congo illustrates this new direction. Since 2007, the UN peacekeeping forces have been participating in the military operations led by the Congolese army (FARDC), in particular to restore the authority of the Congolese State in the zones liberated from armed groups. On behalf of restoring peace and security, MONUSCO has therefore waived the impartiality of its function vis-à-vis the parties to the armed conflict.

Operations “Subcontracted” or Mandated by the UN

Such operations are not under the direct command of the UN, but their mandate was delegated by the UN Security Council, which thus confers on them the right to use force. Such operations are therefore always of a coercive nature, and the troops deployed contain no UN peacekeepers. They consist of national contingents, under an ad hoc international coalition—Operation Restore Hope in Somalia in 1993 under U.S. command, Operation Turquoise in Rwanda in 1994 under French command, and INTERFET led by Australia in 1999, for instance—or under an international coalition supervised by a regional organization—such as the Implementation Force (IFOR) in 1995 and the Stabilization Force (SFOR) in 1996 under NATO control in Bosnia and the Multilateral Protection Force in Albania in 1997 under OSCE command, or the International Security and Assistance Force (ISAF) in Afghanistan since 2001 under NATO command, and the AMISOM in Somalia in 2007 under African Union control.

The Authorization to Use Force on Behalf of the Protection of Civilians

The withdrawal of UN forces in Rwanda during the genocide in 1994 and their inaction during the attacks and massacres of the people in the UN protected zone of Srebrenica in the former Yugoslavia in 1995 caused a significant questioning of the functioning and doctrines of UN peacekeeping operations. In 2000, the report of the Panel on United Nations Peace Operations requested by the Secretary-General and headed by Lakhdar Brahimi (also called the “Brahimi Report”) completed an analysis of the structural causes of these failures. Its recommendations formed the basis for subsequent changes in the legal quality of PKO mandates and the adequacy of military equipment with the declared ambitions.

In legal terms, it was necessary to extend the possibility of using military force beyond situations of self-defense, but without transforming UN forces into fighting forces parties to the conflict.

Materially speaking, it was necessary to abandon the doctrine of symbolic deterrence, characterized by contingents of vulnerable and outnumbered peacekeepers unable to use force effectively in cases of threats without endangering their own safety.

In terms of doctrine, finally, one had to arbitrate between the sometimes-conflicting components of PKO mandates. The danger consisting in demagogically or naively abutting incompatible missions has been implicitly recognized by the UN High Representative for the Former Yugoslavia, who justified the non-use of force by the UN at the time of the attack of Srebrenica by the fact that it would have endangered the Dutch battalion, but it also would have jeopardized the peace negotiations under way at the time with the various parties to the conflict in Bosnia.

The recommendations of the Brahimi report have been addressed by the UN Secretary-General in the following years, concerning the improvement of the drafting of mandates as well as the reopening of a global reflection on the civilian protection doctrine.

  • Thus, since the early 2000s most of the mandates of the UN forces have been modified to avoid their legal powerlessness in front of massacres of populations. These mandates no longer limit the authorization to use force by the UN contingents to situations of self-defense, but extend it to cases where people are facing “imminent threat of physical violence” in the areas of deployment of UN forces and if the means available do not risk putting UN personnel at risk. Nonetheless, this authorization to use force to protect civilians is not an obligation, because it remains subject to the assessment of the circumstances by contingent commanders, who must act depending on the military means available without putting at risk their own troops or the entire mission.
  • The publication in December 2001 of the report of the International Commission on Intervention and State Sovereignty (ICISS) titled “Responsibility to Protect,” laid the foundations for a new doctrine justifying the right to use armed force on behalf of the protection of endangered populations. The challenge of this commission was to determine, in the light of the Rwandan genocide and other UN failures, the circumstances in which to reconcile the principle of State sovereignty and non-interference with that of international military intervention in the name of protecting civilians. The concept of “responsibility to protect” (“R2P”) achieves this compromise by saying that sovereignty is not an absolute right but a responsibility of the State vis-à-vis its own population. While recalling that the primary responsibility of ensuring the protection of the civilian population rests on States, this doctrine invokes a duty of solidarity between States, but it also opens the door to the right of intervention by the international community or States individually in case of serious violations of IHL or human rights, such as ethnic cleansing, war crimes, crimes against humanity, or genocide, when a State is unable or unwilling to protect its population.

Protection

Theoretically speaking, this concept calls into question the very basis of international law, namely, the principle of non-interference in the internal affairs of a State, insofar as it suggests the existence of situations in which the sovereignty of a State can be ignored. Specifically, the responsibility to protect is a broad concept that can be used to dress the existing powers of the UN Security Council, allowing it to use force against a State and to impose decisions against its will, such as sanctions or the jurisdiction of the International Criminal Court. Nonetheless, this concept loses all principle of law or legal obligation and is dependent on the political arbitration of the veto power of the five permanent UN Security Council members. Nothing prevents some States from invoking this doctrine for military intervention in situations outside of a UN authorization. The armed intervention in Iraq launched in March 2003 by the United States and a coalition of allies without authorization of the Security Council has illustrated this possibility.

The UN General Assembly has nevertheless adopted and incorporated the principles of the responsibility to protect in paragraphs 138 and 139 of the Final Document of the 2005 World Summit. In 2006, Resolution 1674 of the Security Council endorsed these provisions in the same terms. In January 2009, the UN Secretary-General Ban Ki-moon released a report entitled “Implementing the Responsibility to Protect,” which presents the three pillars of the responsibility to protect: prevention, response, and reconstruction. This report aimed to clarify the concept, arguing that “R2P” is primarily the responsibility of the sovereign State and only after that of the international community if the State is unable or unwilling to protect its population against the most serious crimes: “the responsibility to protect is an ally of sovereignty, not an adversary. It grows from the positive and affirmative notion of sovereignty as responsibility, rather than from the narrower idea of humanitarian intervention.”

The international use of force against Libya, authorized by Resolution 1973 of the Security Council of 17 March 2011, highlighted the difficulty of limiting military intervention solely to the protection of populations. Whatever the humanitarian objective of military intervention, it cannot claim to ensure real political or military neutrality. The military actions undertaken in the name of protecting the population inevitably result in a military weakening of one of the parties to the conflict for the direct benefit of the opposing one.

Despite an apparent formalization, this doctrine does not have a legal framework in international law capable of giving substance and limits to the rights and obligations it refers to, neither to arbitrate between ethical intentions and the military and political actions resulting. This doctrine appears as a new form of the concept of just war of the right of interference developed in the early 1990s by French diplomacy. It suffers the same weaknesses consisting of juxtaposing ethical intentions and political and military actions.

To the extent that it authorizes the use of armed intervention, this concept must be considered in terms not of intentions but actions. Whatever the nobility of the intentions, this doctrine fundamentally stems from jus ad bellum , that is to say, the reasons giving the right to make war and to justify it. Jus ad bellum , which is the right to declare war, has for centuries been the object of philosophical and legal development. Depending on periods, the theory of just war has provided all the justifications that can make legal and acceptable the use of war outside the normally accepted cases where it is conducted in response to external aggression.

Since 1945, the UN Charter recognizes only one legitimate reason to resort to war between States and defines it as self-defense against aggression (Art. 51 of the UN Charter), until the UN itself undertakes collective military action to protect the State attacked. Any resort to war by a State outside legitimate reasons recognized by the UN constitutes a crime under international criminal law: crimes against peace in the definition of the Nuremberg International Military Tribunal and a crime of aggression under the Statute of the International Criminal Court.

Hence, it is necessary not to underestimate the danger posed by the reintroduction of the concept of just war in international relations and its potential for liberalization of the use of force by States, and not only for the benefit of the UN. Indeed, if the principle of just war on behalf of the protection of populations is recognized as such, it cannot be entirely subject to Security Council vetoes. There is no reason why this principle would not be implemented outside the authorization of the Security Council in case the functioning of this body is hampered by the use of veto power. Indeed, the existence of a right cannot be reduced in theory to rules of procedure.

Despite fluctuations in the concept of just war over time, it is acquired from St. Thomas Aquinas that a war cannot be just only with regard to its intentions. Regarding the responsibility to protect, it is essential to go beyond the intent of protection in order to formalize the conditions and obligations relating to the measures implemented and the outcome of the military actions undertaken in this context.

The answer to the dilemma of killing or letting die is not in the authorization to use armed force in the name of protection ( jus ad bellum ). It requires clarifying the obligations imposed on international military forces when they use force as well as the obligations related to the treatment of civilian populations when they act in situations of stabilization or occupation of foreign territory ( jus in bello ).

The wide variety of international military interventions that have been conducted for twenty years cover the whole spectrum ranging from classical peacekeeping to direct participation in hostilities and reestablishment of the rule of law.

On the occasion of these various forms of intervention, the issue of the law applicable to UN forces arose and began receiving a differentiated response depending on whether international forces are engaged in combat operations, occupation, stabilization, or defense of public order, and whether they operate alongside national authorities or not.

Peacekeeping Operations, Security Council, United Nations

Peacekeeping operations were not foreseen as such by the UN Charter. They began as an ad hoc mechanism created by the Security Council to respond to situations in which pacific methods for the settlement of disputes had failed but that did not call for full Chapter VII use of force. In theory, PKOs follow three main principles:

  • they must have the consent of the parties to the conflict;
  • they must be impartial;
  • they must not use force except in self-defense.

Many of the peacekeeping operations carried out in the past twenty years (three times more than during the entire Cold War) have changed the notion of “peacekeeping.” They now more closely resemble “peacemaking” or peace enforcement operations. Some of the main elements that changed stand in contradiction with the three principles listed earlier:

  • in broadening the operations’ mandate to include the enforcement of humanitarian operations, the operations sometimes bypassed, or seemed to forfeit, the consent of States or other parties to the conflict;
  • the authorization to use force in situations other than self-defense—in particular, to protect civilian populations or humanitarian convoys—has sometimes defied attempts to remain impartial and, of course, goes against the principle of the non-use of force.

However, there is no clear authorization to use force. This, combined with the fact that peacekeeping troops are generally not deployed in sufficient strength, has resulted in the UN missions’ helplessness in the face of the massacres of civilians in former Yugoslavia or of the genocide in Rwanda.

A report on UN peacekeeping operations published in August 2000 (also known as the “Brahimi Report”) has not changed the situation; while insisting that the Security Council ensure that peacekeeping operations be given the resources necessary to carry out their mandate and arguing that ambiguous mandates can have disastrous consequences, it establishes quite clearly that “use of force only in self-defence should remain the bedrock principles of peacekeeping” (para. 48 of the report) and affirms that it is impossible for UN peacekeepers to protect the civilians in all the areas where they are deployed.

Nonetheless, the mandates of peacekeeping operations increasingly entail elements of civilian protection, which is notably due to the emergence of the concept of Responsibility to Protect (R2P) in 2001 within the United Nations, which argues that the international community has the duty to intervene in case of gross human rights violations, namely ethnic cleansing, war crimes, crimes against humanity, and genocide, when the concerned State is unable or unwilling to protect its vulnerable population.

The Rome Statute of the ICC and customary international humanitarian law prescribe that it is prohibited to direct an attack against personnel and objects involved in a peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians and civilian objects under international humanitarian law (Rule 33 of the ICRC rules of customary law and Rome Statute, Art. 8.2.b.iii IAC and Art. 8.2.c.iii NIAC).

Collective securityInterventionProtectionSelf-defenseUnited Nations

Applicability of Humanitarian Law and Available Recourses in Case of Violations

Issues Regarding the Responsibility of UN Forces

The expanded use of armed force in the new peacekeeping operations raised the issue of the application of international humanitarian law to United Nations forces and the responsibility of the members of such forces in case of bad behavior on the field. Since 1956, the International Committee of the Red Cross found that humanitarian law applies to the UN emergency forces. This statement has met resistance from the UN itself and its Member States, and remains controversial for both political and legal reasons. Indeed, it is not the UN as such but its Member States that are signatories to the Geneva Conventions and their Additional Protocols. Similarly, these conventions have not anticipated the specific cases of peacekeeping operations. For years, the compromise has been to include clauses relative to the respect of the spirit and the principles of international humanitarian law in the mandates of these operations. This reference includes the 1949 Geneva Conventions, their 1977 Additional Protocols, and the 1954 Convention on the Protection of Cultural Property in the Event of Armed Conflict. Since 1992, this clause has been included in most agreements signed between the UN forces and the government of the country in which they were deployed. Some of the recent agreements provide that the UN must ensure that the mission is conducted in order to meet not only the “principles and spirit” but also the “principles and rules” of international conventions relating to the conduct of military personnel. Following the attacks and violence against peacekeepers on the field, the Convention on the Safety of United Nations and Its Associated Personnel, adopted by the UN General Assembly on 9 December 1994 (A/rés./49 / 59) and entered into force on 15 January 1999, eventually confirmed indirectly that humanitarian law does apply to these operations. Even if Article 2.2 of the text states that the Convention does not apply to UN forces deployed in peacekeeping operations mandated by the Security Council under Chapter VII of the Charter, Article 20 recalls, however, that this Convention shall not affect the applicability of humanitarian law to the actions perpetrated by UN personnel.

This issue was finally settled by a bulletin of the UN Secretary-General on 6 August 1999 titled “Observance by United Nations Forces of International Humanitarian Law.” The text states that the rules and principles of humanitarian law apply to UN forces when they directly participate in the hostilities during an international or non-international armed conflict. The bulletin also recalls that peacekeepers are required to comply with humanitarian law instruments to which they countries are party.

The issue of liability for breaches of humanitarian law by these international forces arises in terms of disciplinary or criminal sanctions but also in terms of potential compensation for victims.

This bulletin finally states that violations of humanitarian law committed by UN personnel will be punished by the national courts of their country of origin.

Regarding potential claims for compensation, the peacekeeping forces conducting operations under UN mandate are subsidiary organs of the UN and therefore engage the responsibility of the organization in terms of compensation, in case of violations or damage caused by personnel under its control.

Hence, the responsibilities of troops belonging to national or regional contingents, to whom the UN has delegated peacekeeping or peacemaking operations, are relatively clear. These are forces that already have coercive mandates, and the UN Security Council simply gives them authorization to act.

Thus, they remain under the national authority of the contributing States. As a result, these forces become parties to the conflict in which they intervene, and they are therefore under the obligation to respect the international law of armed conflict. The States concerned are accountable for the actions of their armed forces and, in case of grave breaches of humanitarian law, not only the States but the individual authors of such crimes must be and can be held criminally responsible.

The applicability of humanitarian law to UN troops using armed force outside strict self-defense has been established and concerns all actions involving the use of force in situations of armed conflict. However, the recognition of a situation of armed conflict is a controversial issue, in both legal and political terms. If the conflict is not recognized, the UN forces must comply with the national laws governing the protection of public order as well as with international human rights law. This has an impact on the law applicable and the conditions of the use of force, the conditions of arrest and detention, and the obligation to ensure the public order as an occupation force, in accordance with humanitarian law or in cooperation with a government, in accordance with national law and international human rights law.

Duty of commandersRespect for international humanitarian law

Humanitarian law does apply to peacekeeping operations when they use armed forces, despite a certain ambiguity to that effect.

  • When a national force is mandated by the UN but remains under national command, it becomes a party to the conflict and must therefore respect international humanitarian law. In case of a violation thereof, both the government itself and individual members of the armed forces can be held accountable.
  • When contingents come under UN command, as is meant to be the case for PKOs, the applicability of humanitarian law is more complex. Members of the UN do have an obligation to respect the duties derived from humanitarian law. The different agreements signed when PKOs are established (among the UN, the States’ contributing forces, and the host State) reaffirm this by declaring that such forces must observe and respect the principles and spirit of humanitarian law conventions.
  • However, in case of violations of humanitarian law, the available recourses are rare. It is difficult to hold the UN itself accountable, because of the overall immunity it enjoys. By extension, the individual peacekeepers also benefit from immunity, but there are some possibilities, depending on the agreement signed at the time the force was created, and depending on the gravity of the alleged crimes.

ImmunityPenal sanctions in humanitarian lawSanctions(diplomatic, economic, or military)Universal jurisdictionWar crimes/Crimes against humanity

Available Recourses in Case of Violations of Humanitarian Law

It is important to note that the possibility of recourse against the UN itself, or against the members of its forces, is rare and haphazard—rare because the UN does not favor procedures that might compel it to reveal information concerning the evolution of its operations, and haphazard because the instruments are used and applied differently in each case. The controversy following tragic events such as the genocide in Rwanda or the fall of Srebrenica (when most boys and men were massacred at the time the Bosnian Serb army took the city in July 1995) highlights the fact that the troop-contributing States do not easily tolerate having their actions questioned. Hence, the ability to hold these forces accountable stumbles against the immunities granted to the UN and peacekeeping forces.

Recourses against the UN Itself

The UN is directly responsible for all acts undertaken by its forces’ commanders—in other words, the Force Commander and his or her military staff. If an action is carried out by other members of these forces, the UN is only responsible if it was performed in the course of the individuals’ official functions. In such cases, the UN is held responsible whether or not the individual acted pursuant to an order, since the individual was under the UN’s authority. Conversely, if the individual acted outside his or her official functions, the UN is technically not responsible, since the acts were beyond its authority.

However, in cases where the person acted outside of official UN functions, the State of which the individual is a national is accountable. To this effect, the agreements signed between the UN and the contributing States set forth that the Sates concerned must ensure that the members of their national contingents know and understand the principles and spirit of humanitarian law. The UN has in fact been held responsible for violations of humanitarian law committed by members of peacekeeping forces who acted outside their official functions.

In all cases, the UN’s accountability does not exclude the State responsibility since members of national contingents remain subject to their national laws, whether or not they are under UN command. This means that UN troops are responsible for respecting humanitarian law under a double mandate: under the regulations of the force to which they belong and under their national laws (since almost all States are party to the Geneva Conventions, if not the Additional Protocols as well).

In practice, however, it is difficult to hold the UN accountable, whether before international or national entities. At an international level, the available recourses only work if the victims are States or international organizations. Hence, individuals or other legal entities (e.g., NGOs) have no recourse before any international organ in case of injury caused by an international organization, unless the institutional system of the organization itself foresees such a possibility.

Normally, individual victims can have recourse to national courts, either those in the State where the injury was suffered or in their own. This does not apply with regard to the UN, which enjoys immunity from jurisdiction—that is, from legal process (Art. 104 of UN Charter and Art. 2 of the 1946 Convention on the Privileges and Immunities of the United Nations). Thus, domestic courts are deprived of their jurisdictional powers.

The mechanisms for recourse against the UN are the following:

The UN Administrative Tribunal, for Individuals or NGOs under Contract with the UN. The UN does have an Administrative Tribunal (UNAT), but it is reserved for UN staff and any other person who is under contract with the UN (Art. 2.2 of UNAT Statute). On this basis, NGOs under contract with the UN can theoretically refer cases to UNAT. In some cases, NGOs may qualify as “international agents,” as defined in the 1949 International Court of Justice (ICJ) advisory opinion on Reparation for Injuries Suffered in the Service of the UN. This decision found that an agent is “any person who, whether a paid official or not, and whether permanently employed or not, has been charged by an organ of the Organization with carrying out, or helping to carry out, one of its functions—in short, any person through whom it acts.”

Claims Commission. As for individuals, they have no judicial recourse before the UN and therefore none against it. Nonetheless, the organization is under the obligation to make provisions for “appropriate modes of settlement” of legal disputes “of a private law character” in which it is involved and for “disputes involving any official of the United Nations who by reason of his official position enjoys immunity, if immunity has not been waived by the Secretary-General” (Section 29 of the 1946 Convention on the Privileges and Immunities of the UN).

For this reason, the UN has established a non-judicial, ad hoc claims commission system for peacekeeping operations. This is the only recourse against the UN that is available to individuals. It is also available to juridical persons, therefore to NGOs. Hence, any agreement signed between the UN and a host State establishes that any dispute or complaint in the area of private law involving the UN must be submitted to this commission.

The commission has three members: two are designated by the UN Secretary-General and the government of the host State, respectively, and the third is nominated by common agreement between them or, failing that, by the president of the ICJ. The commission defines its own rules of procedure. Its decisions cannot be appealed and are binding. The procedures are not public, and the plaintiff cannot have access to UN files since its archives enjoy immunity. At the end of the process, the victims receive compensation.

Diplomatic Protection. One other recourse is available to individuals and NGOs, if their State of origin agrees to implement the procedure known as diplomatic protection. In such situations, the State endorses and takes on the victim’s cause. The case must then be settled between the UN and the State in question through negotiation or arbitration. However, there are few entities before which this arbitration can take place since the ICJ cannot, under its Statute, rule on cases between the UN and individuals or NGOs, even via diplomatic protection: since its jurisdiction over contentious cases only extends to States, international organizations can neither submit nor be subject to cases before the ICJ.

Finally, the diplomatic protection procedure remains a rare option, to be implemented by the victim’s State on a discretionary basis. When this procedure does reach a conclusion, the UN and the State negotiate the amount of the compensation to be paid. The amount is then given to the State, which also distributes it on a discretionary basis.

Recourses against Members of Peacekeeping Forces

Recourses Taken by Troop Contributing Countries. If a peacekeeper commits a criminal offense (whether a felony or a misdemeanor), the individual is under the exclusive jurisdiction of his or her State. This is part of the agreements signed between the UN and host States or between the UN and troop contributing States. In the case in which the crime constitutes a grave breach of humanitarian law, this provision is problematic because it is in contradiction with the principle of universal jurisdiction, which governs the punishment of such crimes.

The principle of universal jurisdiction, codified by the 1949 Geneva Conventions, establishes that all States have an obligation to search for and prosecute individuals accused of such crimes. By virtue of the hierarchy of norms, this obligation prevails over the different agreements signed at the time the forces were deployed. In practice, however, it is unlikely that a State would agree to see a member of its armed forced judged by any foreign jurisdiction.

The agreements signed between the UN and each host State also foresee that the government of the host State can inform the Force Commander and give him or her any evidence in its possession, if it considers that a member of a PKO committed a criminal offense. This is an important part of the agreement since the Secretary-General must be able to obtain the assurance from contributing States that they are willing to exercise their jurisdiction over any crimes that may be committed by members of their contingent.

However, once again, the ability to hold individual peacekeepers accountable collides with the immunity from jurisdiction that peacekeeping forces enjoy, under their status as subsidiary organs of the UN (according to the 1946 Convention on the Privileges and Immunities of the UN). This immunity is cited in the different agreements signed when the force is created—an important part of the agreement for the contributing States. Members of PKOs thus enjoy immunity from jurisdiction for acts committed in the conduct of their duties. And they continue to benefit from this immunity even after they are no longer members of the operation.

The immunity granted by the 1946 Convention is not absolute, of course. The Convention establishes that the UN Secretary-General can waive an individual’s immunity “in any case where, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the UN” (Sections 20 and 23 of the 1946 Convention). It is therefore left to the Secretary-General’s discretion whether to lift immunity.

The Belgian and French parliaments initiated investigations into their governments’ responsibility during the PKO in Rwanda in 1994. Following these national investigations and based on their recommendations, the UN Secretary-General set up an independent panel of investigation into the UN’s response to the genocide.

Investigations and Disciplinary Sanctions Implemented by the UN. After a number of scandals concerning individual behavior of peacekeepers, the UN developed an internal policy that allows the organization to intervene indirectly in the disciplinary management of the individual behavior of the UN contingents, including sexual abuse and exploitation. In 1998, the UN adopted a Code of Personal Conduct applicable to UN peacekeepers. Meanwhile, the organization has implemented training and awareness campaigns in host countries concerning conduct clearly prohibited.

Through the Conduct and Discipline Unit of the Department of Field Support, Conduct and Discipline Teams provide information to UN personnel and the host country population for reporting allegations of misconduct. Record keeping and data tracking of allegations of misconduct was initiated in 2006. In July 2008, the UN Department of Field Support launched the Misconduct Tracking System (MTS), a global database and confidential tracking system for all allegations of misconduct.

When allegations of serious misconduct involving military and police personnel occur, the UN may repatriate the individuals concerned and ban them from future peacekeeping operations. Nonetheless, disciplinary sanctions and any other judicial actions remain the responsibility of the national jurisdiction of the individual involved. Indeed, members of military contingents deployed on peacekeeping missions remain under the exclusive jurisdiction of their national government. The responsibility for investigating an allegation of misconduct and taking subsequent disciplinary action rests with the troop-contributing country, in accordance with the revised model memorandum of understanding endorsed by the General Assembly in 2007. The troop-contributing country involved must then report back to the UN on the outcome of misconduct investigations and actions taken.

International law establishes that individuals accused of war crimes or crimes against humanity cannot resort to immunity from jurisdiction or official status to avoid facing justice. This provision is codified in:

  • the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Art. 4);
  • the 1984 Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Art. 1);
  • the 1949 Geneva Conventions (GCI Art. 59, GCII Art. 50, GCIII Art. 29, and GCIV Art. 146);
  • the Statute of the International Military Tribunal of Nuremberg (Art. 7);
  • the Statutes of the two International Criminal Tribunals (Art. 7.2 of ICTY Statute and Art. 6.2 of ICTR Statute); and
  • the Statute of the International Criminal Court (Art. 27).

European Court of Human Rights. Several cases concerning the actions of British forces in Iraq as members of the multinational force led by the United States (authorized by UN Security Council Resolution 1511 of 16 October 2003) were brought before the European Court of Human Rights. In two rulings of 2011, the Court found the British government in violation of the European Convention of Human Rights in the context of its activities as occupying power in Iraq. The Court found that the UK’s human rights obligations apply to its acts in situations of conflict like Iraq, in addition to its obligations under international humanitarian law and under the UN mandate. The court held that a State was still bound by its human rights obligations concerning individuals and territories on which it exercised effective control.

AggressionCiviliansCollective securityCombatantsDuty of commandersEuropean Court of Human RightsGeneral Assembly of the UNHierarchy of normsImmunityInternational Court of JusticeInternational Criminal CourtInternational Criminal TribunalsInterventionNon-state armed groupsPenal sanctions in humanitarian lawPublic orderPrivate military companiesRespect for international humanitarian lawSanctions (diplomatic, economic, or military)Secretariat of the UNSecurity Council of the UNSelf-defenseUnited NationsUniversal jurisdiction

@ UN Conduct and Discipline Unit: http://cdu.unlb.org /

For Additional Information: Annan, Kofi. “Peacekeeping, Military Intervention, and National Sovereignty in Internal Armed Conflict.” In Hard Choices: Moral Dilemmas in Humanitarian Intervention , edited by Jonathan Moore, 55–71. Lanham, MD: Rowman & Littlefield, 1998.

Bothe, Michael. “Peacekeeping.” In The Charter of the United Nations: A Commentary , edited by Bruno Simma, 648. Oxford: Oxford University Press, 2002.

Burchill, Richard, Nigel D. White, and Justin Morris, eds. International Conflict and Security Law: Essays in the Memory of Hilaire McCoubery . Cambridge: Cambridge University Press, 2005.

Dallaire, Romeo. “The End of Innocence: Rwanda 1994.” In Hard Choices: Moral Dilemmas in Humanitarian Intervention , edited by Jonathan Moore, 71–86. Lanham, MD: Rowman & Littlefield, 1998.

Durch, William J., ed. The Evolution of UN Peacekeeping: Case Studies and Comparative Analysis . New York: St. Martin’s, 1993.

Faite, A., and J. L. Grenier, eds. “Expert Meeting on Multinational Peace Operations: Applicability of International Humanitarian Law and International Human Rights Law to UN Mandated Forces.” ICRC, Geneva, 11––12 December 2003. Available at http://www.icrc.org/eng/assets/files/other/icrc_002_0912.pdf .

Henckaerts, Jean-Marie, and Louise Doswald-Beck, eds. Customary International Law . Vol. 1, The Rules . Cambridge: Cambridge University Press, 2005, part 2, chap. 9.

International Commission on Intervention and State Sovereignty. The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty . Ottawa: IDRC, 2001. Available athttp://www.idrc.ca/EN/Resources/Publications/Pages/IDRCBookDetails.aspx?PublicationID=240. < http://www.idrc.ca/EN/Resources/Publications/Pages/IDRCBookDetails.aspx?PublicationID=240. >_

International Institute of Humanitarian Law. “International Humanitarian Law, Human Rights and Peace Operations: 31st Round Table on Current Problems of International Humanitarian Law.” San Remo, 4–6 September 2008. Available at http://www.icrc.org/eng/assets/files/other/sanremo-2008_peace_ops .pdf .

“International Organizations’ Involvement in Peace Operations: Applicable Legal Framework and the Issue of Responsibility; 12th Bruges Colloquium, 20–21 October 2011.” Collegium , no. 42 (Autumn 2012): 1–179. Available at http://www.coleurope.eu/sites/default/files/uploads/news/12th_bruges_colloquium_0.pdf .

Moore, Jonathan, ed. Hard Choices: Moral Dilemmas in Humanitarian Intervention . Lanham, MD: Rowman & Littlefield, 1998.

Murphy, Ray. “United Nations Military Operations and International Humanitarian Law: What Rules Apply to Peacekeepers?” Criminal Law Forum 14 (2003): 153–94.

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OCHA, Gender and Peace Support Operations. “Ten Rules: Code of Personal Conduct for Blue Helmets.” Available at http://procaponline.unocha.org/docs/library/UN%20Blue%20Helmets%20Codes%20of%20Conduct.pdf .

Palwankar, Umseh. “Applicability of International Humanitarian Law to UN Peacekeeping Forces.” International Review of the Red Cross 294 (May–June 1993): 227–40.

Ryniker, Anne. “Respect du droit international humanitaire par les forces des Nations Unies.” International Review of the Red Cross 836 (December 1999): 795–805.

Slim, Hugo. “The Stretcher and the Drum: Civil-Military Relations in Peace Support Operations.” International Peacekeeping 3, no. 2 (1996): 123–40.

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