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United Nations and International Humanitarian Law

Marten Zwanenburg

Subject(s):
Geneva Conventions 1949 — Armed conflict — Combatants, unlawful — Belligerence — Occupation — Other UN Bodies, Agencies, and Committees — Peace keeping — Armed forces — Self-defence — Weapons, nuclear

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Introduction

The United Nations (UN) initially did not concern itself with international humanitarian law (Humanitarian Law, International). Given that the United Nations Charter (‘UN Charter’) outlawed war, it was considered unnecessary or at least defeatist to consider the law regulating war. It soon became clear, however, that this position was untenable. The relationship between the UN and international humanitarian law came under scrutiny during the Korean War (1950–53) and the United Nations Operation in the Congo (1960–64), when the question was raised whether United Nations forces and forces authorized by the UN, such as in the Korean conflict, were bound by international humanitarian law. The role of the United Nations in ensuring compliance with, or even enforcing, that field of law was then not yet topical but started gaining attention shortly thereafter.

B.  Military Forces Acting under the Authority of the United Nations Bound by International Humanitarian Law

1.  Forces under United Nations Command and Control

UN forces taking part in peace operations are placed under the organization’s command and control (International Military Forces). According to the UN they form a subsidiary organ of the principal organ establishing them, usually the UN Security Council (United Nations, Security Council, ‘UNSC’). As such, they are part of the UN and part of the legal personality of the UN, and that organization’s international rights and obligations are applicable. Although the members of national contingents remain in their national service, their attachment to the UN takes precedence.

The UN is, however, not a party to any treaty of international humanitarian law, in particular the Geneva Conventions I–IV (1949). The possibility of it becoming a party to these Conventions was not considered during the drafting process. The accession clause of the Conventions provides that accession is open to any ‘Power’. In practice, this term has been interpreted as excluding international organizations.

The question of accession by the UN was explicitly discussed during the negotiations on the 1954 Convention on the Protection of Cultural Property in the Event of Armed Conflict (‘1954 Convention’; Cultural Property, Protection in Armed Conflict). The Secretariat of the Diplomatic Conference that adopted the 1954 Convention envisaged the drafting of a text by which the UN would accept some of the provisions of the 1954 Convention. This proposal was not adopted, however. Instead, the Conference adopted a resolution (Final Act of the Intergovernmental Conference on the Protection of Cultural Property in the Event of Armed Conflict [with attached resolutions]: Resolution I [14 May 1954] 249 UNTS 236) recommending that the UN ensure application of the principles of the 1954 Convention by the armed forces taking part in military action being taken in implementation of the UN Charter.

During the drafting of Additional Protocol I (1977) and Additional Protocol II (1977) to the Geneva Conventions, the possibility of accession by the UN, its specialized agencies (United Nations, Specialized Agencies), and regional intergovernmental organizations was proposed. The UN representative advised against such a provision on the basis that it would pose problems as to the general competence of the organization to become party to a multilateral treaty as well as with respect to the ratification procedure. The main obstacle was the impossibility of the organization to fulfil many of the obligations, he submitted. The representative suggested that there was no need to bind the UN, because the agreements between the organization and troop-contributing States included an undertaking by those States to furnish instructed troops and to ensure that their contingents respect the international humanitarian norms. The proposal was not adopted.

Although the UN is not a party to any international humanitarian law treaties, there is broad support in literature for the view that it is bound by customary international law, including customary international humanitarian law. The UN itself for a long time did not take a clear position on the applicability of international humanitarian law to forces under its command and control. After the establishment of the first armed UN peace operation, the United Nations Emergency Force, in 1956, the International Committee of the Red Cross (ICRC), and the UN corresponded on this issue. The UN wrote that the force had been instructed to observe the ‘principles and spirit of the general international conventions concerning the behaviour of military personnel’. These instructions were included in the Regulations for the United Nations Emergency Force issued by the UN Secretary-General. Similar instructions were issued to the United Nations Operation in the Congo (‘ONUC’) in 1963 (Regulations for the United Nations Force in the Congo) and to the United Nations Force in Cyprus (‘UNFICYP’) in 1964 (Regulations for the United Nations Force in Cyprus). In the latter case it was specified that the conventions referred to included, inter alia, the Geneva Conventions and the Convention on the Protection of Cultural Property in the Event of Armed Conflict. The organization did not specify what was meant by the ‘principles and spirit’, and in particular how this related to the specific obligations in the conventions concerned.

The undertaking by troop-contributing States to ensure that their contingents respect international humanitarian norms was included in the Model Agreement between the United Nations and Member States Contributing Personnel and Equipment to United Nations Peace-keeping Operations (‘Model Agreement’) submitted by the UN Secretary-General, to the UN General Assembly (United Nations, General Assembly; ‘UNGA’) in 1991. The Model Agreement states in its Art. 28 that the peace operation ‘shall observe and respect the principles and spirit of the general international conventions applicable to the conduct of military personnel’ and that the troop-contributing State ‘shall therefore ensure that the members of its national contingent serving with the [United Nations peacekeeping operation] be fully acquainted with the principles and spirit of these Conventions’. The Model Agreement was designed to be used as a blueprint for individual agreements with troop contributing States, although formal agreements along the lines of the Model Agreement were not always concluded with these States.

In contrast to the Model Agreement, for a long time it was not envisaged for status of armed forces on foreign territory agreements (SOFA) between the UN and host States of a peace operation to include a provision on international humanitarian law. This happened for the first time in the Agreement on the Status of the United Nations Assistance Mission for Rwanda (‘UNAMIR’) concluded in 1993. Other SOFAs concluded since 1993 include a similar clause. It must be noted that the reference in these agreements was originally to the ‘principles and spirit’ of international humanitarian law conventions, but since the promulgation of the UN Secretary-General’s Bulletin on Observance by United Nations Forces of International Humanitarian Law (‘Bulletin’) this has been changed to ‘principles and rules’.

The Convention on the Safety of United Nations and Associated Personnel (‘Safety Convention’) of 1994 indirectly addresses the applicability of international humanitarian law to UN operations. The Safety Convention obliges States Parties to criminalize attacks on UN and associated personnel and to prosecute or extradite persons suspected of such attacks. Given that under international humanitarian law it is perfectly lawful to attack combatants (see also Combatants, Unlawful), it was necessary to separate the scope of application of the Safety Convention and that of international humanitarian law. The Safety Convention should thus cease to apply at the point where international humanitarian law starts to apply to members of UN operations as combatants. This amounted to the acceptance of the applicability of the latter regime to UN operations. This is also reflected in Art. 20 (a) Safety Convention, which is a so-called savings clause. This article provides, inter alia, that nothing in the convention shall affect the responsibility of UN personnel to respect international humanitarian law. As discussed below, however, elaboration of this principle in the Safety Convention is ambiguous.

10  In 1999 the UN Secretary-General issued the Bulletin on Observance by United Nations Forces of International Humanitarian Law. This followed a request by the United Nations Special Committee on Peacekeeping Operations to elaborate a code of conduct for UN personnel taking part in peace operations (Codes of Conduct), consistent with applicable international humanitarian law. The ICRC played an important part in the drafting of the Bulletin, organizing two meetings of experts on the topic and participating in the subsequent review of a draft. Member States on the other hand were given limited opportunity to influence the document. The Bulletin entered into force on 12 August 1999, exactly 50 years after the adoption of the Geneva Conventions of 1949. The document is divided into 10 sections comprising 34 articles. Its preamble states that it was promulgated ‘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’. The use of the term ‘rules’ instead of ‘principles’ is particularly noteworthy. It suggests, as was confirmed by the UN Secretary-General in 2001, that the Bulletin signals formal recognition of the applicability of international humanitarian law to United Nations peace operations.

11  The rationale for the choice to include certain rules of international humanitarian law and not others is unclear. The Bulletin has been criticized by commentators and some Member States because of rules it includes or does not include. A number of those included are without any doubt customary law. At the time of adoption of the Bulletin this was more doubtful for others, however, such as the prohibition on employing a method of combat intended or expected to cause long-term, widespread, and severe damage to the natural environment, on destroying objects indispensable to the survival of the civilian population, and the prohibition on using incendiary weapons (Civilian Population in Armed Conflict). These were nevertheless included in the Bulletin for policy reasons and as a statement of the UN undertaking to abide by the highest standards of international humanitarian law.

12  The choice of rules is related to the legal status of the Bulletin. It can be argued that it is a unilateral act of the United Nations comparable to unilateral acts of States in international law. In any event it is an administrative issuance of the UN Secretary-General, a subsidiary instrument elaborating the staff rules issued by the UN Secretary-General as the highest administrative authority of the organization. The Bulletin is first and foremost a teaching tool, which serves to acquaint members of UN peace operations with the principles and rules of international humanitarian law. Indeed, it appears that the UN cannot enforce respect by individuals for the Bulletin. Military personnel forming part of national contingents are not in the service of the UN, and the organization does not have disciplinary or criminal jurisdiction over them. For this reason Sec. 4 Bulletin states that 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.

13  The fact that the Bulletin refers to enforcement by the domestic courts of the troop-contributing States raises the question of which standards those courts apply (International Law and Domestic [Municipal] Law). It appears to be generally accepted that these courts will apply domestic law, including the domestic law incorporating the international humanitarian law treaties to which the State is a party. Indeed, it appears to be accepted that in this way the obligations of the troop-contributing State continue to apply to members of a UN operation.

14  International humanitarian law by its own terms applies in situations of armed conflict (Armed Conflict, International). There is no treaty-based definition of what constitutes an armed conflict. There is agreement that a determination whether there is an armed conflict or not must be made on the basis of factual criteria. The actual situation on the ground is decisive and the reasons for the parties to take part in the conflict and the causes espoused by them are not relevant. This is reflected in the wording of the preamble to Protocol I. In literature there is widespread support for the view that the same factual criteria that apply to States and armed groups also apply to UN forces. Sec. 1 Bulletin, which sets out its field of application, states: ‘the fundamental rules and principles 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’. Although this wording leaves room for other interpretations, the better view is that it applies in case of armed conflict in which the UN becomes involved as a party. This situation is to be distinguished from that where a UN force is present in a situation of armed conflict between third parties but does not itself become a party to that conflict. The mere presence of such a force in a situation of armed conflict does not make international humanitarian law applicable to it. For that to happen, the force must actually become involved in that conflict.

15  The manner in which a UN operation has been established is not determinative. An operation that is established for enforcement purposes under Chapter VII UN Charter is more likely to become involved in an armed conflict than a peace operation which is only entitled to use force in self-defence. If the latter becomes involved in hostilities of a certain intensity with State armed forces or an organized armed group, however, international humanitarian law also becomes applicable.

16  It has also been suggested that in case a peace operation supports one of the parties to a pre-existing non-international conflict, it can become a party without itself directly resorting to lethal force. Rather, it would be sufficient that it provides military support to one of the parties that is closely connected to the collective conduct of hostilities, in particular a support that has a direct impact on the opposing party’s ability to conduct its military operations. This so-called ‘support-based approach’ would complement but not replace the determination of IHL applicability on the basis of the IHL classic criteria for armed conflict. It would be used only when peace forces are closely involved in a pre-existing non-international armed conflict, but do not themselves meet the criterion of intensity derived from common Art. 3 of the Geneva Conventions.

17  In practice it appears that a high threshold must be crossed before the UN and States consider a UN force as a party to an armed conflict. Such forces have become involved in large-scale hostilities on a number of occasions. The United Nations Operation in Somalia (‘UNOSOM’), for example, became involved in fighting with an armed group which involved the use of attack helicopters and tanks, leading to considerable casualties on both sides. During the operation 157 United Nations personnel died, and considerable numbers of their opponents were also killed. Nevertheless, the UN does not appear to have considered that UNOSOM became a party to an armed conflict, and a Belgian court explicitly came to the same conclusion (Ministère Public et Centre Pour l’Égalité des Chances et la Lutte Contre le Racisme c C et B). The Mission de l’Organisation des Nations Unies au Congo (‘MONUC’) and its successor the Mission de l’Organisation des Nations Unies pour la Stabilisation en République Démocratique du Congo (‘MONUSCO’) have at times been involved in fierce clashes with rebel groups in the Congo. It has suffered dozens of casualties. In one incident eight Uruguayan peacekeepers were killed. In May 2013, the Under-Secretary-General for Legal Affairs and United Nations Legal Counsel, Patricia O’Brien, opined that MONUSCO may become party to the conflict.

18  The reluctance to accept that a United Nations operation has become a party to armed conflict is rooted at least in part in the concept of impartiality. Impartiality is one of the fundamental characteristics of peace operations. For political reasons and for reasons of legitimacy, the UN and troop-contributing States like to maintain as long as possible that an operation is impartial. This is much more difficult to maintain when it is also a party to an armed conflict. In addition, at least in an international armed conflict, it becomes legal for combatants opposing UN forces to attack them. This is the so-called ‘combatant’s privilege’. However, maintaining that the personnel of UN operations are not involved in an armed conflict might have a negative effect on the protection of personnel taking part in peace operations, as applicability of the principle of equality might provide an incentive for their opponents to comply with IHL.

19  This appears to be reflected in the Convention on the Safety of United Nations and Associated Personnel adopted by the UN General Assembly in 1994. As the Safety Convention criminalizes attacks on UN peacekeepers and such attacks are legal when carried out by combatants during an international armed conflict, the drafters of the Safety Convention recognized that the two regimes should be mutually exclusive. In view of this, they provided that the Safety Convention does not apply ‘to a United Nations operation authorized by the Security Council as an enforcement action under Chapter VII 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 conflict applies’, Art. 2 (2) Safety Convention. This provision has been widely criticized because it does not recognize that even an operation not established under Chapter VII may become engaged in hostilities of such intensity that international humanitarian law becomes applicable.

20  Unless and until a UN operation becomes a party to an armed conflict, the members of the operation enjoy the protections afforded by IHL to civilians. Individual members of an operation may also lose these protections without the force itself becoming party to an armed conflict. This is the case when they take a direct part in hostilities against a party to an armed conflict. This possibility is reflected in the wording of the UN Secretary-General’s Bulletin, which states that its rules are applicable to UN forces when they are actively engaged in an armed conflict as combatants, to the extent and for the duration of their engagement. This means that when in this situation members of an operation cease to be engaged in hostilities, they are no longer considered to be directly participating in hostilities and go back to being protected from attack (Protected Persons).

21  If a UN operation becomes involved in an armed conflict with State armed forces, the international humanitarian law regime of international armed conflict clearly applies. There is some debate on the regime that applies when there is an armed conflict with an armed group, particularly if the UN supports the government forces. Opinions are divided between those who consider that an armed conflict between a UN force and an armed group is a non-international armed conflict (Armed Conflict, Non-International), and those who consider that a UN operation by definition ‘internationalizes’ the conflict. The former view appears nowadays to enjoy more support than the latter. The Bulletin does not distinguish between the two types of conflicts, but provides for one set of rules that applies to UN forces in every type of armed conflict. This is a reflection of the increasing convergence between the legal regimes which apply to international and non-international armed conflicts. Such convergence results at least in part from the increasing acceptance that rules from the international armed conflict regime have achieved customary law status also in relation to non-international armed conflicts.

22  There is debate over the application of the law of belligerent occupation to UN operations (Occupation, Belligerent), in particular in case of territorial administration by the organization. Such transitional administrations exercise de facto control over territory and its inhabitants, making them appear very much like occupying powers. In doctrine one element that is put forward is that the law of occupation nevertheless does not apply, because unlike an occupying power, a UN force does not represent the source of authority in its area of operation, as it acts pursuant to the mandate conferred upon it by the UN Security Council. A stronger current in doctrine rejects this view, because it is in contradiction with the fundamental distinction between ius ad bellum and ius in bello. A view that does find widespread support is that in most cases the law of occupation does not apply to UN forces because they act with the consent of the government or the parties concerned. On this basis it can be argued that the law of occupation has not applied to any operation yet, although there is some doubt whether the consent of the Federal Republic of Yugoslavia for the United Nations Mission in Kosovo (‘UNMIK’) was genuine. Even in case the law of occupation does not apply formally, it may provide useful guidelines for an operation. It appears that in practice that field of law is regularly used as inspiration by legal advisers in transitional administrations.

23  Enforcement of international humanitarian law in UN operations is mainly left to the authorities of the troop-contributing countries. The UN does not have disciplinary or criminal jurisdiction over members of military contingents in its operations. Status of forces agreements concluded between the United Nations and the host State of an operation normally provide that the troop-contributing States retain exclusive criminal jurisdiction over members of military contingents (see, eg, para. 48 (b) Model Status-of-Forces Agreement for Peace-keeping Operations).

24  The revised Memorandum of Understanding between the United Nations and [Participating State] Contributing Resources to [the United Nations Peacekeeping Operation] (‘Model MOU’) provides that military members of the national contingent are subject to the exclusive jurisdiction of the troop-contributing State in respect of any crimes or offences that might be committed by them while they are assigned to the military component of a UN operation. The Model MOU also provides for investigation by the UN of cases of serious misconduct, but this cannot lead to disciplinary or criminal sanctions by the organization.

25  The Bulletin also provides that in case of violations of international humanitarian law, members of the military personnel of a UN force are subject to prosecution in their national courts. This statement does not appear complete, because in case of war crimes other States than the State of nationality will also have jurisdiction (Jurisdiction of States), which cannot be set aside by the Bulletin. In particular, it is generally recognized that every State may exercise universal jurisdiction over persons suspected of war crimes. There are no known cases of prosecution in national courts of members of a UN operation for violation of international humanitarian law.

26  Enforcement may also take place at the international level. The jurisdiction ratione personae of the ICTY and the International Criminal Tribunal for Rwanda (ICTR) also covered UN peacekeepers who were present in the States concerned in a particular period. The jurisdiction of the International Criminal Court (ICC) also extends to peacekeepers. During the drafting of the Rome Statute of the International Criminal Court (‘Rome Statute’) several proposals were put forward to limit or exclude such jurisdiction. France, for example, proposed the inclusion of a provision that would have excluded persons who have carried out acts ordered by the UN Security Council or in accordance with a mandate issued by it from the ICC’s jurisdiction. Such proposals were rejected by the drafters.

2.  Forces not under United Nations Command and Control

27  The UN frequently authorizes operations under Chapter VII UN Charter that are not under its command and control. Such operations are carried out by individual Member States, a group of States or another international organization. When the UN Security Council authorized the use of armed force against the North Korean invasion in 1950 some argued that international humanitarian law did not apply to the authorized forces as they represented the good side in a battle between good and evil. Such views do not find much support anymore, however. It is widely accepted that UN authorization in itself does not affect the application of international humanitarian law.

28  This is illustrated by Operation Unified Protector, the NATO-led operation in Libya in 2011 and the coalition Operation Odyssey Dawn that preceded it. The operation was authorized by the UN Security Council under Resolutions 1970 and 1973 adopted on 26 February and 17 March 2011 respectively. As the report of the International Commission of Inquiry to investigate all alleged violations of human rights law in the Libyan Arab Jamahiriya stated, the airstrikes to enforce the no-fly zone imposed by the Security Council through Resolution 1973 brought into being an international armed conflict between the States participating in this military action and the Libyan state. There was no doubt that international humanitarian law applied to this operation, and this field of law in fact played an important role in its conduct.

C.  Promotion of and Ensuring Compliance with International Humanitarian Law by the United Nations

1.  Different Roles

29  The UN is not only an actor to which international humanitarian law may apply. The organization also plays an important role in the promotion of, and ensuring compliance with, the law by other actors. This role has gradually developed. Until the Six-Day War in 1967 the UN did not play any role at all. After 1967 it has become increasingly important. The role of the organization in the field of international humanitarian law takes on different forms, which can be described as reaffirmation, clarification, and development; determination of the applicability of the law, and determination and condemnation of violations; investigation; enforcement; and adjudication.

2.  Reaffirmation, Clarification, and Development

30  The UNGA has reaffirmed the importance of international humanitarian law in resolutions since 1968. UNGA Resolution 2444 (XXIII) (‘Respect for Human Rights in Armed Conflicts’ [19 December 1968] GAOR 23rd Session Supp 18, 50) affirmed Resolution XXVIII of the XXth International Conference of the Red Cross, which laid down certain basic principles of international humanitarian law. The Resolution also invited the UN Secretary-General to study steps which could be taken to secure the better application of international humanitarian law instruments, and the need for additional conventions. Whereas Resolution 2444 was relatively short, contemporary resolutions on this topic are lengthy documents, principally calling on States to become a party to a wide range of international humanitarian law instruments and to implement those which they have already ratified or acceded to. Since 1982 the UNGA has adopted biannual resolutions on the status of the Additional Protocols to the 1949 Geneva Conventions.

31  The UNSC has adopted several resolutions reaffirming or clarifying particular areas of existing international humanitarian law. It has adopted a series of resolutions on the protection of civilians in armed conflict, starting with Resolution 1269 ([1999] [19 October 1999] SCOR 54th Year 157) and followed by several other resolutions. Examples of recent resolutions are Resolutions 2222 ([2015] [27 May 2015]) addressing the protection of journalists, 2175 ([2014] [29 August 2014]) focussing on the violence and intimidation against humanitarian and United Nations personnel, and 2150 ([2014] [16 April 2014] SCOR [1 August 2013–31 July 2014]) dealing with the prevention of and combating genocide and other serious crimes. These resolutions were the result of a process of deliberation on this topic by the UN Security Council which started in February 1999. The resolutions address a number of concerns and recommendations concerning the protection of civilians. The resolutions on the protection of civilians also address the question of access of humanitarian personnel to civilians in armed conflict. In 2003 the UNSC adopted a resolution focusing specifically on the protection of humanitarian personnel, as well as United Nations personnel. In this resolution, Resolution 1502, the UN Security Council expressed its strong condemnation of all forms of violence against humanitarian personnel and urged States to ensure that such acts do not go unpunished. It also urged all those concerned, as set forth in international humanitarian law, to allow full unimpeded access by humanitarian personnel to all people in need of assistance, and to make available, as far as possible, all necessary facilities for their operations, and to promote the safety, security, and freedom of movement of humanitarian personnel and United Nations and its associated personnel and their assets. Other themes of, or closely connected to, international humanitarian law that the UNSC has taken up are the protection of children (Children and Armed Conflict; Children, International Protection) and the protection of women (Women, Rights of, International Protection). The Council has adopted the following resolutions on the protection of children in armed conflict: UNSC Resolutions 1261 ([1999] [25 August 1999] SCOR 54th Year 145), 1314 ([2000] [11 August 2000] SCOR 55th Year 161), 1379 ([2001] [20 November 2001] SCOR [1 January 2001–31 July 2002] 308), 1460 ([2003] [30 January 2003] SCOR [1 August 2002–31 July 2003] 183), 1539 ([2004] [22 April 2004] SCOR [1 August 2003–31 July 2004] 190), 1612 ([2005] [26 July 2005] SCOR [1 August 2004–31 July 2005] 227), 1882 ([2009] [4 August 2009] UN Doc S/RES/1882 [2009]), 1998 [2011] [12 July 2011] UN Doc S/RES/1998 [2011]), 2068 [2012] [19 September 2011] UN Doc S/RES/2068 [2012]), 2143 ([2014] [7 March 2014] UN Doc S/RES/2143 [2014]), and 2225 ([2015] [18 June 2015] UN Doc S/RES/2225 [2015]). Resolution 1612 established a monitoring and reporting mechanism under the responsibility of the UN Secretary-General, as well as a working group of the UN Security Council consisting of all members of the UNSC to review the reports of the mechanism.

32  In 2000 the UNSC adopted Resolution 1325 ([2000] [31 October 2000] SCOR 55th Year 177) on the protection of women in armed conflict. This resolution, inter alia, called upon all parties to armed conflict to fully respect international law, including international humanitarian law, applicable to the rights and protection of women and girls. It also called upon all parties to armed conflict to take special measures to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse, and all other forms of violence in situations of armed conflict (Gender-Based Crimes). In 2008 the UNSC adopted Resolution 1820 ([2008] [19 June 2008] SCOR [1 August 2007–31 July 2008] 154) as a follow-up to that resolution, in 2010 Resolution 1960 ([2010] [16 December 2010] SCOR [1 August 2010–31 July 2011]), and in 2013 Resolution 2106 ([2013] [24 June 2013] SCOR [1 August 2012–31 July 2013]) and Resolution 2122 ([2013] [18 October 2013] SCOR [1 August 2013–31 July 2014]).

33  The UN, notably the UN Security Council, has also concerned itself with the protection of UN personnel in armed conflicts. This concern is justified by the increasing deterioration of the security of such personnel. UN personnel may become caught in the crossfire between parties to a conflict. But the organization is also attacked directly, as illustrated by the bombing of the UN headquarters in Baghdad on 19 August 2003, which killed 22 people. In that same year the UN Security Council adopted UNSC Resolution 1502, which is concerned with the protection of United Nations personnel. In the preamble to this resolution the UN Security Council declares that deliberate attacks against United Nations personnel are in violation of international humanitarian law. Recent examples that underline the importance of this Resolution are the attacks against and/or damage of UN premises and facilities, for instance the shelling of UNRWA schools during the Operations Cast Lead and Protective Edge. In 2013, UN personnel involved in the UN Disengagement Observer Force were taken hostage on the Golan Heights. The UN Secretary General and UN Security Council strongly condemned these acts.

34  Concern over the protection of UN personnel led to the adoption of the Safety Convention, referred to in para. 9 above. An Optional Protocol to the Convention was adopted by the UN General Assembly on 8 December 2005 (Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel; ‘Optional Protocol’). The Optional Protocol broadens the Safety Convention’s scope of application as between the parties to the Optional Protocol, and was adopted in response to a perceived lack of effectiveness of the Safety Convention. The Optional Protocol entered into force on 19 August 2010. The Safety Convention itself can be regarded to some extent as the start of a development of international humanitarian law. Attacks against UN personnel were included in the Rome Statute of the ICC as a war crime, evidently on the basis of their criminalization in the Safety Convention. The international community apparently considers an attack on such personnel as so odious that it deserves special mention. It remains to be seen how the case-law of the ICC will develop on this issue. There is already case-law by the Special Court for Sierra Leone on this question. In its judgment in the case of the Prosecutor v Sesay, the Trial Chamber convicted the accused of committing, committing and ordering, and aiding and abetting attacks against peacekeepers of the UN Mission in Sierra Leone (‘UNAMSIL’). The Trial Chamber considered this a crime under customary law which is a peculiarization of the war crime of attacking civilians.

35  The above concerns the clarification or development of discrete topics within the field of international humanitarian law. Clarification across a much broader range of topics has taken place through the case-law of the ICTY and ICTR established by the UN Security Council. Although some of the case-law has been criticized for allegedly developing the law rather than clarifying it, governments, as well as national and international courts, frequently refer to it.

3.  Determination of the Applicability of the Law and Determination and Condemnation of Violations

36  The first step towards enforcement of the law is the recognition that it is applicable. The UN General Assembly and the UN Security Council on a number of occasions have explicitly or implicitly stated that international humanitarian law was applicable to a particular conflict. The most prominent example is the Middle East conflict, in particular the military occupation by Israel of territories in Palestine (Israel, Occupied Territories). In 1967 the UN Security Council considered in Resolution 237 ([1967] [14 June 1967] SCOR 22nd Year 5) that Geneva Convention III should be complied with by the parties involved in the Six-Day War. UNSC Resolution 271 ([1969] [5 September 1969] SCOR 23rd Year 5), adopted in response to arson that partly destroyed the Al-Aqsa Mosque in Jerusalem, recognized the application of the Geneva Conventions to the occupied part of Jerusalem. This was an important statement, because Israel denied and continues to deny the formal application of the Geneva Conventions to the Occupied Palestinian Territories. UNSC Resolution 446 reaffirmed the application of Geneva Convention IV to Occupied Territories, including Jerusalem. This reaffirmation was repeated in several subsequent UNSC resolutions.

37  The UN General Assembly has also concerned itself with the Occupied Territories. In particular, it has devoted two special sessions to the question of Palestine during which it has adopted a number of resolutions recognizing the applicability of Geneva Convention IV to those territories. The seventh emergency special session took place from 1980 until 1982. The 10th emergency special session was convened in 1997 and has been resumed a number of times, lastly on 15–16 January 2009. The principal reason for the convening of these sessions was the wish of some States for a more critical assessment of Israeli conduct, which was not possible in the UNSC because of the threat of the United States veto. This difference is reflected in the language of resolutions of the UNSC and the UNGA, the latter often being more sharply worded.

38  The UNSC and UNGA have also recognized the application of international humanitarian law to other conflicts. For example, in UNSC Resolution 1483 ([2003] [22 May 2003] SCOR [1 August 2002–31 July 2003] 139) the UN Security Council recognized the specific authorities, responsibilities, and obligations under applicable international law of the States that had become occupying powers in Iraq after the invasion in 2003 (Iraq, Invasion of [2003]). Recent examples of UNSC Resolutions that recognized the application of international humanitarian law are: 2206 ([2015] [3 March 2015]) concerning Sudan and South Sudan and 2227 ([2015] [29 June 2015]) pertaining to Mali.

39  Both the UNSC and the UNGA have, in addition to declaring international humanitarian law applicable, condemned specific States or armed groups for violations of that law. Again the Middle East conflict provides numerous examples, including UNSC Resolutions 446 ([1979] [22 March 1979]) and 471 ([1980] [5 June 1980] SCOR 35th Year 10) and UNGA Resolutions 63/97 (‘Israeli Settlements in the Occupied Palestinian Territory, including East Jerusalem, and the Occupied Syrian Golan’ [5 December 2000] GAOR 63rd Session Supp 49 vol 1, 230) and ES 7-4 (‘Question of Palestine’ [28 April 1982] UN Doc A/RES/ES-7/4). In recent decades the UN Security Council has frequently condemned violations of international humanitarian law in other conflicts as well. Examples are, concerning former Yugoslavia: UNSC Resolutions 771 ([1992] [13 August 1992] SCOR 47th Year 25), 780 ([1992] [6 October 1992] SCOR 47th Year 36), 787 ([1992] [16 November 1992] SCOR 47th Year 29), 819 ([1993] [16 April 1993] SCOR 48th Year 7), 820 ([1993] [17 April 1993] SCOR 48th Year 6), 824 ([1993] [6 May 1993] SCOR 48th Year 11), 827 ([1993] [25 May 1993] SCOR 48th Year 29), 836 ([1993] [4 June 1993] SCOR 48th Year 13), 844 ([1993] [18 June 1993] SCOR 48th Year 15), 859 ([1993] [24 August 1993] SCOR 48th Year 16), 913 ([1994] [22 April 1994] SCOR 49th Year 26), 941 ([1994] [23 September 1994] SCOR 49th Year 30), 1009 ([1995] [10 August 1995] SCOR 50th Year 34), 1034 ([1995] [21 December 1995] SCOR 50th Year 21); concerning Rwanda: UNSC Resolution 912 ([1994] [21 April 1994] SCOR 49th Year 4); concerning Sudan and South Sudan: UNSC Resolutions 1547 ([2004] [11 June 2004] SCOR [1 August 2003–31 July 2004] 148), 1556 ([2004] [30 July 2004] SCOR [1 August 2003–31 July 2004] 150), 1574 ([2004] [19 November 2004] SCOR [1 August 2004–31 July 2005] 115), 1590 ([2005] [24 March 2005] SCOR [1 August 2004–31 July 2005] 121), 1591 ([2005] [29 March 2005) SCOR [1 August 2004–31 July 2005] 127), 1828 ([2008] [31 July 2008] SCOR [1 August 2007–31 July 2008] 2008), 1935 [2010] [30 July 2010] SCOR [1 August 2010–31 July 2011]), 1990 ([2011] [27 June 2011] SCOR [1 August 2011–31 July 2012]), 2046 ([2012] [2 May 2012] SCOR [1 August 2012–31 July 2013]), 2047 ([2012] [17 May 2012] SCOR [1 August 2012–31 July 2013]), and 2063 ([2012] [31 July 2012] SCOR [1 August 2012–31 July 2013]), 2109 ([2013] [11 July 2013] SCOR [1 August 2012–31 July 2013]), 2113 ([2013] [30 July 2013] SCOR [1 August 2012–31 July 2013]), 2148 ([2014] [3 April 2014] SCOR [1 August 2013–31 July 2014]), 2155 ([2014] [27 May 2014] SCOR [1 August 2013–31 July 2014]), 2173 ([2014] [27 August 2014]), 2187 ([2014] [25 November 2014]), 2200 ([2015] [12 February 2015]), 2205 ([2015] [26 February 2015]), 2206 ([2015] [3 March 2015]), 2223 ([2015] [28 May 2015]), 2228 ([2015] [29 June 2015]), 2230 ([2015] [14 July 2015]), 2241 ([2015] [9 October 2015]); concerning the Democratic Republic of the Congo: UNSC Resolutions 1843 ([2008] [20 November 2008] SCOR [1 August 2008–31 July 2009] 131) and 1856 ([2008] [22 December 2008] SCOR [1 August 2008–31 July 2009] 132), 1952 ([2010] [29 November 2010] SCOR [1 August 2010–31 July 2011]), 2053 ([2012] [27 June 2012] SCOR [1 August 2011–31 July 2012]), 2076 ([2012] [20 November 2012] SCOR [1 August 2012–31 July 2013]), 2078 ([2012] [28 November 2012] SCOR [1 August 2012–31 July 2013]), 2098 ([2013] [28 March 2013] SCOR [1 August 2012–31 July 2013]), 2136 ([2014] [19 June 2014] SCOR [1 August 2013–31 July 2014]), 2147 ([2014] [30 June 2014] SCOR [1 August 2013–31 July 2014]), 2198 ([2015] [29 January 2015]), 2211 ([2015] [26 March 2015]); concerning Chad: UNSC Resolution 1861 ([2009] [14 January 2009] SCOR [1 August 2008–31 July 2009] 276); concerning Afghanistan: UNSC Resolution 1868 ([2009] [23 March 2009] SCOR [1 August 2008–31 July 2009] 114), 2096 [2013] [19 March 2013] SCOR [1 August 2012–31 July 2013]), 2120 ([2013] [10 October 2013] SCOR [1 August 2013–31 July 2014]), 2145 ([2014] [17 March 2014] SCOR [1 August 2013–31 July 2014]), 2210 ([2015] 16 March 2015]); concerning the Middle East: 2118 ([2013] [27 September 2013] SCOR [1 August 2013–31 July 2014]), 2131 ([2013] [18 December 2013] SCOR [1 August 2013–31 July 2014]), 2139 ([2014] [22 February 2014] SCOR [1 August 2013–31 July 2014]), 2140 ([2014] [26 February 2014] SCOR [1 August 2013–31 July 2014]), 2163 ([2014] [25 June 2014] SCOR [1 August 2013–31 July 2014]), 2165 ([2014] [14 July 2014] SCOR [1 August 2013–31 July 2014]), 2191 ([2014] [17 December 2014]), 2192 ([2014] [18 December 2014]), 2209 ([2015] [6 March 2015]), 2235 ([2015] [7 August 2015]); concerning the Central African Republic: 2121 ([2013] [10 October 2013] SCOR [1 August 2013–31 July 2014]), 2127 ([2013] [5 December 2013] SCOR [1 August 2013–31 July 2014]), 2149 ([2014] [10 April 2014] SCOR [1 August 2013–31 July 2014]), 2196 ([2015] [22 January 2015]), 2217 ([2015] [28 April 2015]); concerning Côte d’Ivoire: 2112 ([2013] [30 July 2013] SCOR [1 August 2012–31 July 2013]), 2153 ([2014] [29 April 2014] SCOR [1 August 2012–31 July 2013]), 2219 ([2015] [28 April 2015]); concerning Somalia: 2102 ([2013] [2 May 2013] SCOR [1 August 2012–31 July 2013]), 2158 ([2014] [29 May 2014] SCOR [1 August 2013–31 July 2014]), 2182 ([2014] [24 October 2014]), 2232 ([2015] [28 July 2015]); concerning Mali: 2164 ([2014] [25 June 2014] SCOR [1 August 2013–31 July 2014]), 2227 ([2015] [29 June 2015]); concerning Iraq: 2169 ([2014] [30 July 2014] SCOR [1 August 2013–31 July 2014]), 2233 ([2015] [29 July 2015]); and concerning Libya: 2174 ([2014] [27 August 2014]), 2213 ([2015] [27 March 2015]), 2238 ([2015] [10 September 2015]).

40  The question whether the UN Security Council could derogate from international humanitarian law in a resolution under Chapter VII UN Charter has aroused much debate, although there seem to be few instances in which such derogation has actually been claimed. One such instance is the occupation of Iraq after the invasion in 2003, during which some States relied on UN Security Council resolutions to go beyond what was allowed by the law of occupation and others to argue that they were not occupying powers in the first place.

41  There are some who maintain that there are no limits to the powers of the UN Security Council, that it is unbound by law. In order to be able to effectively carry out its primary responsibility for the maintenance of international peace and security, it is argued, the UNSC must be able to take any measure it deems necessary even if this violates existing law. As evidence that this was the intention of its founders, Art. 103 UN Charter is put forward, which provides that if the obligations of Member States under the UN Charter conflict with their obligations under another international agreement, those under the UN Charter prevail. It is widely accepted that obligations ‘under the Charter’ include obligations arising directly from provisions of the UN Charter as well as those arising from binding decisions of the UN Security Council. This was confirmed by the International Court of Justice (ICJ) in its order on provisional measures in the case Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom) (Provisional Measures) ([1992] ICJ Rep 3; Lockerbie Cases [Libyan Arab Jamahiriya v United Kingdom and United States of America]). Article 103 UN Charter refers only to treaty obligations. This is not the case for Art. 25 UN Charter, whereby Member States agree to accept and carry out the decisions of the UN Security Council in accordance with the UN Charter. This acceptance is not limited to decisions which are in conformity with international law.

42  Both Arts 25 and 103 UN Charter refer to the relationship between a decision of the UNSC and obligations of Member States, and thus can only be used by analogy to argue that the UNSC may derogate from its own obligations under international law (Analogy in International Law). An argument used in support of this theory which does relate directly to the UN’s own obligations, is based on Art. 24 and Art. 1 (1) UN Charter. Article 24 (2) UN Charter provides that the UNSC, in discharging its primary responsibility for the maintenance of international peace and security, ‘shall act in accordance with the Purposes and Principles of the United Nations’. The purposes of the organization are set out in Art. 1 UN Charter. Article 1 (1) UN Charter provides that one of the purposes of the organization is the maintenance of international peace and security. This article states that the UN Security Council must act in conformity with the principles of justice and international law in the adjustment or settlement of international disputes. However, there is no similar obligation when the UNSC is acting under Chapter VII UN Charter. Some maintain that the travaux préparatoires support the interpretation that this means that the UNSC decisions under Chapter VII can derogate from applicable international law.

43  Others however maintain that there are limits to the powers of the UN Security Council. Such limits might be found in the principles and purposes of the UN Charter. As stated in para. 42 above, the UNSC must act in accordance with these at all times. First, some commentators hold the view that the negotiating history of Art. 1 (1) UN Charter suggests that it must not be read as absolving the UNSC from an obligation to respect international law in general and international humanitarian law in particular.

44  Article. 1 (3) UN Charter provides that one of the purposes of the organization is to achieve international co-operation in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion. In this line of reasoning, the reference to human rights is taken as meaning that the UNSC cannot take decisions that would violate human rights. The term ‘human rights’ in a UN context is often used in a broad sense which also includes international humanitarian law.

45  A third limitation that is suggested is also based on the principles and purposes of the organization, specifically the principle set out in Art. 2 (2) UN Charter, to fulfil in good faith (bona fide) the principles assumed in accordance with the UN Charter. Based on the interaction between this principle and the purpose set out in Art. 1 (3) UN Charter of solving international problems of a humanitarian character through international co-operation, the argument goes that this results in an inability to derogate from international humanitarian law. If the UN did not respect international humanitarian law, it is difficult to see how it could realize this purpose.

46  Another category of legal limits to the powers of the UN Security Council that is suggested is that of peremptory norms (Ius cogens). The proponents of this theory contend that the character of such norms as being hierarchically superior to all other norms of international law leads to the conclusion that the UNSC must respect them. This argument was also made by ad hoc Judge Lauterpacht in his separate opinion in the case Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia). He stated that:

the concept of ius cogens operates as a concept superior to both customary international law and treaty. The relief which Article 103 may give the Security Council in case of conflict between one of its decisions and an operative treaty obligation cannot–as a matter of simple hierarchy of norms–extend to a conflict between a Security Council resolution and ius cogens (ibid para. 100).

Although there can be debate about precisely which norms of international humanitarian law are of a peremptory character, it is widely accepted that at least the principal norms meet this test.

47  Finally, certain commentators hold that the Member States of the UN, in transferring the primary responsibility for the maintenance of international peace and security to the UN Security Council, thereby also transferred certain obligations of their own. In this view, the Member States could not confer an unlimited power on UNSC which they themselves did not possess.

4.  Investigation

48  The UN has played an important role in investigating alleged large-scale violations of international humanitarian law. Human rights monitoring bodies in particular have been active (International Monitoring and Surveillance). Special rapporteurs appointed by the United Nations Human Rights Council, formerly the Commission on Human Rights (United Nations Commission on Human Rights/United Nations Human Rights Council), frequently refer to violations of international humanitarian law in their reports. The Council/Commission has also established a number of commissions of inquiry, in particular in connection with the Middle East conflict. It has created a commission to gather and compile information on breaches of human rights and international humanitarian law by Israel following the beginning of the ‘Second Intifada’, and another to investigate, inter alia, alleged violations of international humanitarian law during the Israeli invasion of Lebanon in 2006. In January 2009 the UN Human Rights Council established an international fact-finding mission to investigate all violations of international human rights law and international humanitarian law by Israel in the Occupied Palestinian Territories, particularly the Gaza Strip. In August 2011 the Human Rights Council created an Independent International Commission of Inquiry to investigate alleged violations of human rights and international humanitarian law in Syria. In March 2014, the Human Rights Council requested the UN High Commissioner for Human Rights to conduct an investigation into the alleged violations of international humanitarian and human rights law in Sri Lanka. In July 2014, the Human Rights Council decided to dispatch a United Nations Independent Commission of Inquiry on the 2014 Gaza Conflict in order to investigate alleged violations of international humanitarian law in the Occupied Palestinian Territory, particularly in the occupied Gaza Strip.

49  The reference by these investigatory bodies and other human rights monitoring bodies to international humanitarian law is criticized by some States that maintain that international humanitarian law falls outside their mandate.

50  In Resolution ES-7/9 of 24 September 1982, the UN General Assembly urged the UN Security Council to investigate the massacre in the Shabra and Shatila camps in Beirut on 17 September 1982. The UNSC did not take action, however. In other cases the UNSC has established commissions of inquiry into alleged violations of international humanitarian law. In Resolution 446 the UNSC established a commission composed of three of its members to examine Israeli settlements in the Occupied Territories. The UNSC has also established commissions of independent experts to investigate violations of international humanitarian law committed in the territory of the former Yugoslavia, and in Rwanda. In Resolution 1564 ([2004] [18 September 2004] SCOR [1 August 2004–31 July 2005] 110), the UNSC requested the UN Secretary-General to establish an international commission of inquiry to investigate reports of violations of international humanitarian law and human rights law in Darfur by all parties.

5.  Enforcement

51  In recent decades the UN Security Council has increasingly become involved in the enforcement of international humanitarian law, as part of its increased activism more generally. This has primarily, but not exclusively, taken the form of measures in the field of international criminal law.

52  Prominent examples are the establishment of the ICTY and ICTR. Their creation under Chapter VII UN Charter was an innovative use of the UNSC’s powers. At the time some considered this as an act ultra vires, although it now appears more or less generally accepted that the UNSC may establish criminal tribunals. It is unlikely that the UNSC will establish new international tribunals in the near future. This is due in part to the establishment of the ICC, to the costs associated with this instrument, and criticism levelled at the existing tribunals that relates, inter alia, to the lack of ownership of the affected States and/or populations. The latter has led to the creation of mixed international/domestic tribunals with the assistance of the United Nations in, inter alia, Sierra Leone, East Timor, and Cambodia (Mixed Criminal Tribunals [Sierra Leone, East Timor, Kosovo, Cambodia]).

53  Another enforcement instrument at the disposal of the UNSC is sanctions. On a number of occasions it has imposed sanctions against individuals involved in violations of international humanitarian law. Examples are sanctions imposed against individuals in Somalia obstructing the delivery of humanitarian assistance in Somalia in UNSC Resolution 1844 ([2008] [20 November 2008] SCOR [1 August 2008–31 July 2009] 44), and against leaders in the Democratic Republic of the Congo recruiting or using child soldiers or targeting children or women in UNSC Resolution 1857 ([2008] [22 December 2008] SCOR [1 August 2008–31 July 2009] 139). Moreover, the Consolidated United Nations Security Council Sanctions List since 2006 has included the Chief Corporal New Force Commandant of the Korhogo Sector (Côte d’Ivoire), Martin Kouakou, as forces under his command recruited child soldiers and sexually abused women.

54  Another innovative measure used by the UNSC was its ‘affirmation’ in UNSC Resolution 687 ([1991] [3 April 1991] SCOR 46th Session 11) that Iraq was liable for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign governments, nationals, and corporations, as a result of Iraq’s invasion and occupation of Kuwait. The UNSC subsequently established the United Nations Compensation Commission (UNCC) to implement this responsibility.

55  The most far-reaching measure the UNSC may take to address violations of international humanitarian law is to authorize the use of force. As the UNSC in Chapter VII resolutions authorizing the use of force only makes general determinations that the situation in a particular territory constitutes a threat to peace and security (Peace, Threat to), a direct connection between such authorizations and violations of international humanitarian law cannot be established. It is, however, a fact that the preamble of many resolutions authorizing the use of force contain a reference to such violations, suggesting such a connection. The closest connection between violations of international humanitarian law and the authorization to use force was probably in UNSC Resolution 1973, which authorized the use of force to protect civilians and civilian populated areas under threat of attack.

6.  Adjudication

56  The role of the ICTY and ICTR in adjudicating alleged war crimes has already been mentioned. The International Court of Justice has also applied that field of law on a number of occasions. International humanitarian law played a particularly important role in the Nuclear Weapons Advisory Opinion, the Israeli Wall Advisory Opinion (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory) and the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) case. Especially in the case of the Wall Advisory Opinion, the ICJ has been criticized for treating international humanitarian law questions too superficially.

D.  Conclusions

57  The involvement of the UN in the field of international humanitarian law has developed strongly since the establishment of the organization, especially in the last few decades. One aspect is the increasing recognition that in certain situations forces under the command and control of the UN are bound by obligations under international humanitarian law. This recognition in principle has, however, not resolved a number of questions concerning the practical application of such obligations. As long as the UN and States remain reluctant in concrete situations to recognize that a UN force is a party to an armed conflict, this is unlikely to change.

58  Various organs of the UN, notably the UN Security Council, the UN General Assembly, and the Human Rights Council concern themselves with ensuring compliance by States and armed groups with international humanitarian law. This role is reflected, inter alia, in Art. 89 Protocol I, which provides that in situations of serious violations of the Geneva Conventions or of Protocol I, the High contracting parties undertake to act, jointly or individually, in cooperation with the UN and in conformity with the United Nations Charter. The UN Security Council notably has taken far-reaching measures in this field under Chapter VII UN Charter, in particular through the establishment of the ICTY and the ICTR. These tribunals in turn have given an important impetus to the further clarification and development of substantive international humanitarian law. The efforts by the UNSC in ensuring compliance with or punishment of breaches of international humanitarian law have in the past been uneven. Whereas it took strong measures concerning one conflict, widespread violations of international humanitarian law in other conflicts were neglected. While it appears that this situation has improved somewhat in recent years, this may be an inherent feature of a political organ like the Security Council of the UN.

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