Secretary-General’s Bulletin on The Observance by United Nations forces of International Humanitarian Law, 6th August 1999 (UN Doc ST/SGB/1999/13), OXIO 130
United Nations [UN]
- Conduct of hostilities — Peace keeping
1. Whether the United Nations was bound by international humanitarian law during peacekeeping missions.
The Secretary-General’s Bulletin on The Observance by United Nations forces of International Humanitarian Law (‘Bulletin’) was the first document that elucidated the fundamental rules and principles of international humanitarian law that apply to peacekeeping operations. The Bulletin constitutes an act of an international organization and is relevant for general international law, in particular the application of international humanitarian law to United Nations (UN) forces in armed conflicts.
On 22 June 1995 the United Nations Special Committee on Peacekeeping Operations (‘Special Committee’) requested the Secretary-General to elucidate a code of conduct to cover those personnel who interacted with international humanitarian law through their taking part in peacekeeping operations. This followed the Special Committee’s reports into the situation in Somalia and Yugoslavia, where incidents linked to peacekeeping operations allegedly constituted breaches of international humanitarian law. On the 22 December 1995, the General Assembly welcomed the report, endorsed the proposals, recommendations, and conclusions, and urged the Secretariat, along with Member States, to take all necessary steps to implement the findings.
Experts, including the International Committee of the Red Cross (ICRC), met to review the applicability of rules of international humanitarian law to UN personnel. Through this participation, they fed into the development of the Bulletin. A document titled ‘Guidelines for UN forces regarding respect for International Humanitarian Law’ (10 May 1996) was presented with the term ‘Guidelines’ later replaced by ‘Directives’, and was sent out to Member States for comment and revision in June 1999. From the comments upon adoption it is possible to identify disputes concerning the threshold for applicability of international humanitarian law to UN forces and the purpose of the document, with parties split between developing a teaching tool and a document extending legal protections.
On 6 August 1999 the Secretary-General issued the Bulletin. This mechanism was chosen as the rules were intended for general application, following the newly issued guidance on Bulletins that may be promulgated in connection with any other important decisions of policy as decided by the Secretary-General (see United Nations Secretary-General’s Bulletin of 28 May 1997).
The Secretary-General’s power to issue rules concerning staff regulations is not limited so as to prevent the Bulletin indicating the acceptance that international humanitarian rules apply to UN peacekeeping operations. [ref 1]
UN peacekeeping operations are bound by fundamental international humanitarian rules and principles when they are actively engaged in armed conflict as combatants. When no longer actively engaged in armed conflict as combatants, UN peacekeeping operations remain privileged by their special protection as entailed in the Convention on the Safety of United Nations and Associated Personnel (‘1994 Convention’). [Section 1]
The Bulletin does not displace national law, status-of-forces agreements, nor does it permit the UN to prosecute violations of international humanitarian law. [Sections 2-4]
Substantively, the fundamental rules and principles applicable mirror the requirements in the Geneva conventions to protect the civilian population, not use indiscriminate methods of combat, and distinguish persons hors de combat. [Sections 5-7]
The Bulletin also sets standards for the treatment of detained persons, the wounded, sick, and medical and relief personnel. [Sections 8-9]
The Bulletin marked the first time that the UN has issued specific rules binding its forces to humanitarian law, and this formal recognition of its application to UN peacekeeping operations was a big stride forward in the development of accountability mechanisms for individuals taking part in peacekeeping operations.
‘Rules’ is the term used by the document, suggesting that a normative value can be attached, in contrast to the previous requirement for personnel to respect only the principles of humanitarian law. The Bulletin does not however purport to be a codification of customary law. Further it is not intended to constitute an exhaustive list of obligations but rather reads like a concise reminder document that highlights the legal protections most relevant for UN forces. [Section 2]
The Bulletin has also been described as a training tool. Indeed, certain rules such as the specific protection of women against any attack, in particular sexual abuse, may have been included due to policy considerations following specifically reported incidents in Somalia and Yugoslavia that led to the development of the Rules in the first place. In this way, the Bulletin mimics the Codes of Conduct found in every military belonging to a Member State.
A criticism has been advanced by some Member States, and the ICRC, of the rushed consultation phase the process resulted in an ambiguous document with identifiable arbitrary gaps in protection. That position however fails to understand the intention of the document. It was never intended that the Bulletin set out a ‘Geneva Convention for the UN’. Nor does the Bulletin alleviate the responsibility of UN forces to comply with the general conventions at all relevant times, as is made clear in Section 3. [Section 3]
Interestingly, the Rules do not distinguish between non-international and international armed conflict, rather, they provide for a unified framework that applies to UN forces in every type of armed conflict. Whilst this may be a reflection of the increasing convergence between the legal regimes, it also leads towards the intended aim of the Rules, to be easily understandable and translatable in the midst of conflict. Another trend is the tendency to apply a higher threshold of armed conflict when UN forces are involved. This is an interpretation in the wording ‘actively engaged in armed conflicts as combatants’, but not an interpretation that is supported as a matter of customary international law.
Finally, the Bulletin explicitly covers the means by which its own provisions cease to apply to peacekeeping operations, a concept not often seen in such documents. When hostilities cease, UN forces stop being participants and return to an irrefutable status of protection. Nothing in the Bulletin purports to amend the protected status of members of peacekeeping operations under the 1994 Convention.
Whether conceptualised as a unilateral act by the UN or a purely administrative issuance concerning rules governing staff, the Bulletin—having been issued by the highest administrative authority following consultation—was clearly promulgated with the intention of raising standards of behaviour, meeting criticism of prior conduct, and informing personnel about their obligations in an accessible and understandable manner.
Undoubtedly the major impact of the Bulletin was to crystallise the increasing recognition that, in certain situations, UN peacekeeping operations were bound by obligations under international humanitarian law. There was no special exceptionalism. Practical questions of implementation remain, especially the delineation of when peacekeeping operations become participants as ‘active combatants’ and step out from their protected status. Given a lack of consistent determination, both the UN and states seem reluctant to recognise when the UN has become a party to the conflict.
The Bulletin did not deal with one of the most systemic failings, the lack of an accountability mechanism. As set out in Section 4 of the Bulletin, military personnel on peacekeeping missions are not in a position to be disciplined by the UN for violations of international humanitarian law. [Section 4] This means a clear accountability mechanism was, and remains, an aspiration and there is little emphasis on holding perpetrators to account in an appropriate forum. Subsequent scandals centring on sexual abuse led to repeated criticism and further reports finding failure, not with the lack of applicable standards but the lack of sufficiently robust reaction by the UN and their partners.
In October 2014, the Secretary-General appointed the High-Level Independent Panel on Peace Operations to review the current state of UN peace operations, with a focus on protecting civilians in managing conflict. This panel has also urged peacekeeping operations to avoid being dragged into actively engaging in conflict, even if their mandate makes such action possible. Remarkably, the Office for Internal Oversight has yet to conduct an in-depth review into the fulfilment of international humanitarian law by the UN.
Further Analysis and Relevant Materials
- A Ryniker ‘Respect du droit international humanitaire par les forces des United Nations’ (1999) 81 IRRC 836 795–805
- M Zwanenburg ‘The Secretary-General’s Bulletin on Observance by the United Nations of International Humanitarian Law: A Pyrrhic Victory?(2000) 39 RevDrMilDrGuerre 13-43
- S Vité ‘L’applicabilité du droit international de l’occupation militaire aux activités des organisations internationales’ (2004) 86 IRRC 9–35
- G Nolte ‘The Different Functions of the Security Council with Respect to Humanitarian Law’ in V Lowe and others (eds), The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 (Oxford University Press 2008) 519–34
- D Shraga ‘The Secretary-General’s Bulletin on the Observance on International Humanitarian Law: A Decade Later’ (2009) 39 IsraelYBHumRts 357-377
- T Ferraro ‘The applicability and application of international humanitarian law to multinational forces’ (2013) 95 IRRC 561-612
United Nations (UN)
- United Nations Secretary General ‘Safety and Security of Humanitarian Personnel and Protection of United Nations personnel: Report of the Secretary-General’ (18 August 2008) UN Doc A/63/305
- Geneva Convention Relative to the Treatment of Prisoners of War (signed 12 August 1949, entered into force 21 October 1950) 75 UNTS 135
The Secretary-General, for the purpose of setting out fundamental principles and rules of international humanitarian law applicable to United Nations forces conducting operations under United Nations command and control, promulgates the following:
Section 1 Field of application
1.1 The fundamental principles and rules of international humanitarian law set out in the present bulletin are applicable to United Nations forces when in situations of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement. They are accordingly applicable in enforcement actions, or in peacekeeping operations when the use of force is permitted in self-defence.
1.2 The promulgation of this bulletin does not affect the protected status of members of peacekeeping operations under the 1994 Convention on the Safety of United Nations and Associated Personnel or their status as non-combatants, as long as they are entitled to the protection given to civilians under the international law of armed conflict.
Section 2 Application of national law
The present provisions do not constitute an exhaustive list of principles and rules of international humanitarian law binding upon military personnel, and do not prejudice the application thereof, nor do they replace the national laws by which military personnel remain bound throughout the operation.
Section 3 Status-of-forces agreement
In the status-of-forces agreement concluded between the United Nations and a State in whose territory a United Nations force is deployed, the United Nations undertakes to ensure that the force shall conduct its operations with full respect for the principles and rules of the general conventions applicable to the conduct of military personnel. The United Nations also undertakes to ensure that members of the military personnel of the force are fully acquainted with the principles and rules of those international instruments. The obligation to respect the said principles and rules is applicable to United Nations forces even in the absence of a status-of-forces agreement.
Section 4 Violations of international humanitarian law
In case of violations of international humanitarian law, members of the military personnel of a United Nations force are subject to prosecution in their national courts.
Section 5 Protection of the civilian population
5.1 The United Nations force shall make a clear distinction at all times between civilians and combatants and between civilian objects and military objectives. Military operations shall be directed only against combatants and military objectives. Attacks on civilians or civilian objects are prohibited.
5.2 Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities.
5.3 The United Nations force shall take all feasible precautions to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians or damage to civilian property.
5.4 In its area of operation, the United Nations force shall avoid, to the extent feasible, locating military objectives within or near densely populated areas, and take all necessary precautions to protect the civilian population, individual civilians and civilian objects against the dangers resulting from military operations. Military installations and equipment of peacekeeping operations, as such, shall not be considered military objectives.
5.5 The United Nations force is prohibited from launching operations of a nature likely to strike military objectives and civilians in an indiscriminate manner, as well as operations that may be expected to cause incidental loss of life among the civilian population or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated.
Section 6 Means and methods of combat
6.2 The United Nations force shall respect the rules prohibiting or restricting the use of certain weapons and methods of combat under the relevant instruments of international humanitarian law. These include, in particular, the prohibition on the use of asphyxiating, poisonous or other gases and biological methods of warfare; bullets which explode, expand or flatten easily in the human body; and certain explosive projectiles. The use of certain conventional weapons, such as non-detectable fragments, anti-personnel mines, booby traps and incendiary weapons, is prohibited.
6.3 The United Nations force is prohibited from employing methods of warfare which may cause superfluous injury or unnecessary suffering, or which are intended, or may be expected to cause, widespread, long-term and severe damage to the natural environment.
6.4 The United Nations force is prohibited from using weapons or methods of combat of a nature to cause unnecessary suffering.
6.6 The United Nations force is prohibited from attacking monuments of art, architecture or history, archaeological sites, works of art, places of worship and museums and libraries which constitute the cultural or spiritual heritage of peoples. In its area of operation, the United Nations force shall not use such cultural property or their immediate surroundings for purposes which might expose them to destruction or damage. Theft, pillage, misappropriation and any act of vandalism directed against cultural property is strictly prohibited.
6.7 The United Nations force is prohibited from attacking, destroying, removing or rendering useless objects indispensable to the survival of the civilian population, such as foodstuff, crops, livestock and drinking-water installations and supplies.
6.8 The United Nations force shall not make installations containing dangerous forces, namely dams, dikes and nuclear electrical generating stations, the object of military operations if such operations may cause the release of dangerous forces and consequent severe losses among the civilian population.
Section 7 Treatment of civilians and persons hors de combat
7.1 Persons not, or no longer, taking part in military operations, including civilians, members of armed forces who have laid down their weapons and persons placed hors de combat by reason of sickness, wounds or detention, shall, in all circumstances, be treated humanely and without any adverse distinction based on race, sex, religious convictions or any other ground. They shall be accorded full respect for their person, honour and religious and other convictions.
7.2 The following acts against any of the persons mentioned in section 7.1 are prohibited at any time and in any place: violence to life or physical integrity; murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; collective punishment; reprisals; the taking of hostages; rape; enforced prostitution; any form of sexual assault and humiliation and degrading treatment; enslavement; and pillage.
7.3 Women shall be especially protected against any attack, in particular against rape, enforced prostitution or any other form of indecent assault.
Section 8 Treatment of detained persons
The United Nations force shall treat with humanity and respect for their dignity detained members of the armed forces and other persons who no longer take part in military operations by reason of detention. Without prejudice to their legal status, they shall be treated in accordance with the relevant provisions of the Third Geneva Convention of 1949, as may be applicable to them mutatis mutandis. In particular:
(a) Their capture and detention shall be notified without delay to the party on which they depend and to the Central Tracing Agency of the International Committee of the Red Cross (ICRC), in particular in order to inform their families;
(b) They shall be held in secure and safe premises which provide all possible safeguards of hygiene and health, and shall not be detained in areas exposed to the dangers of the combat zone;
(c) They shall be entitled to receive food and clothing, hygiene and medical attention;
(d) They shall under no circumstances be subjected to any form of torture or ill-treatment;
(e) Women whose liberty has been restricted shall be held in quarters separated from men’s quarters, and shall be under the immediate supervision of women;
(f) In cases where children who have not attained the age of sixteen years take a direct part in hostilities and are arrested, detained or interned by the United Nations force, they shall continue to benefit from special protection. In particular, they shall be held in quarters separate from the quarters of adults, except when accommodated with their families;
(g) ICRC’s right to visit prisoners and detained persons shall be respected and guaranteed.
Section 9 Protection of the wounded, the sick, and medical and relief personnel
9.1 Members of the armed forces and other persons in the power of the United Nations force who are wounded or sick shall be respected and protected in all circumstances. They shall be treated humanely and receive the medical care and attention required by their condition, without adverse distinction. Only urgent medical reasons will authorize priority in the order of treatment to be administered.
9.2 Whenever circumstances permit, a suspension of fire shall be arranged, or other local arrangements made, to permit the search for and identification of the wounded, the sick and the dead left on the battlefield and allow for their collection, removal, exchange and transport.
9.3 The United Nations force shall not attack medical establishments or mobile medical units. These shall at all times be respected and protected, unless they are used, outside their humanitarian functions, to attack or otherwise commit harmful acts against the United Nations force.
9.4 The United Nations force shall in all circumstances respect and protect medical personnel exclusively engaged in the search for, transport or treatment of the wounded or sick, as well as religious personnel.
9.5 The United Nations force shall respect and protect transports of wounded and sick or medical equipment in the same way as mobile medical units.
9.6 The United Nations force shall not engage in reprisals against the wounded, the sick or the personnel, establishments and equipment protected under this section.
9.7 The United Nations force shall in all circumstances respect the Red Cross and Red Crescent emblems. These emblems may not be employed except to indicate or to protect medical units and medical establishments, personnel and material. Any misuse of the Red Cross or Red Crescent emblems is prohibited.
9.8 The United Nations force shall respect the right of the families to know about the fate of their sick, wounded and deceased relatives. To this end, the force shall facilitate the work of the ICRC Central Tracing Agency.