1. Peace Support Operations Which Rules Apply ? JUR5730 International Humanitarian Law (The Law of Armed Conflict) 21 September 2009 Cecilie Hellestveit

2. Overview of lecture 1) Introduction : context and legal framework 2) Legal basis for POs : mandates and implementing instruments 3) Which rules of IHL apply 4) Which rules of IHRL apply 5) Obligations under the UN Charter

3. Introductory remarks  applicable law, not accountability for violations of the law. – The two issues are connected, but the latter raises different questions.  applicability of a norm as a matter of law, not of policy. – What is the difference?  focus on operations with a UN Security Council mandate. – Operations without UNSC mandate: National obligations of IHL apply in an ordinary manner.

4. CONTEXT of POs

5. Some introductory stories.. 1994, Bihac, a UN ”Safe Area”: Serb troops advanced, and a hospital was in their line of advance. The Canadian UN Commander was reluctant to intervene, but Bangladeshi personnel took up positions after pressure from civilian UN staff. Response by the UN Office of Legal Affairs: The ’Bihac Incident’ should not set any precedent. UN Forces are bound only by the Security Council mandate, and are not legally obliged to uphold the Geneva Conventions.

6. And…. 1995, the massacre in Srebrenica, a UN Safe Area. 8 000 men were killed. Dutchbat were deployed to the area, but failed to prevent the massacre. Eye witnesses even claim that Dutch UN soldiers assisted in separating men from the women. 2006, Haiti and Liberia: 179 UN soldiers are dismissed or repatriated because of sexual abuse, including abuse of children. 2008, Afghanistan: civilians killed in by different NATO bombings are counted in the hundreds.  THUS THE QUESTION : which rights and obligations apply to members of POs?

7. Rights and obligations The ’active’ element: The legal framework governing the duties of peacekeepers. – The actions of peacekeepers towards others – Competence: What are the forces allowed to do? – Obligations: What are the forces obligated to do? In the negative sense In the positive sense The ’passive’ element: The legal framework governing the protection of peacekeepers. – The actions of others towards peacekeepers – Rights: What are the forces’ rights?

8. The legal framework The UN Charter PO specific arrangements – Mandates / Security Council Resolutions – Status of Forces (Missions) Agreements (SOFA / SOMA) – Participating States Agreements (PSA) / Memorandum of Understanding (MOU) – Force Regulations, Rules of Engagement (ROE), etc. National law – Host State – Sending State International law – International humanitarian law (IHL) – International human rights law (IHRL) – International criminal law (ICL) – The Immunity Convention 1946 – The Personnel Safety Convention 1994 – Other international law regimes

9. LEGAL BASIS & MANDATES OF POs UN Charter – No mentioning of peace keeping in the Charter – Invitation / consent Chapter VI or Enforcement Chapter VII  ”Chapter VI ½”, ”Chapter VI ¾”, Chapter VII Operations with and without UN mandates – POs as ’subsidiary organs’ of the UN – POs with a UN mandate, but an independent operational structure Or combinations of the two – ’POs’ without a UN mandate ECOMOG in Liberia and Sierra Leone – subsequent UN mandate Humanitarian intervention – Unlawful but morally right ? Ex. Kosovo  R2P (Responsibility to Protect) - An independent basis ? NO :must happen within the confines of the UN Charter

10. MANDATE legal base under public international law for the presence of military forces on the territory of another state and their purposes  authorization and tasks under public international law CURRENT TRENDS: consolidate peace & rebuild State  multidimensional  integrated missions  may take on transitional administrations (remniscent of occupation)  Mandate is the framework for implementing instruments SOFA / SOMA : Status of Forces (Missions) Agreements PSA/MOU : Participating States Agreements / Memorandum of Understanding ROE : Rules of Engagement :Operational tool for military commanders (Mandate  caveats : restrictions by troop-contributing States on their troops based on national policy, legislation or operational limits : part of implementing instruments (ROEs )

11. Applicability of IHL to the UN ? Against UN not party to ‘conflict’, would jeopardize its neutrality UN focus on peace : should not prepare for/operate within ius in bello and ‘legitimize’ use of deadly force. UN SC has a level of legitimacy in issues of war & peace that other actors lack Easier to get already reluctant States to contribute troops In favour  In fighting the UN represents political interests too (is not impartial). Integrated missions a case in point. Is the neutrality-argument valid ?  The type of operations currently subject to PSOs do involve hostilites  Modern version of ‘just war’-thinking, a moral asymmetry that threatens to undermine IHL ?  Some contributing States have hidden agendas. Ex. Ethiopia in Sudan UN not Party to Geneva Conventions or other treaties under IHL Many rules can only be enforced by States

12. History and background The historical development until 1992 – Korea 1950-1953: Humanitarian principles, GC Art. 3, GC III – UNEF I 1956-1957: Principles and spirit – ONUC 1960-1964: Lump sum agreements – Model PSA 1991: Principles and spirit of the general international conventions – Rwanda SOFA 1992: Identical expression The events in the mid-1990s – Rwanda, Somalia, Bosnia – ”Principles and spirit” proved insufficient – A contributing factor to many processes in the UN The Secretary-General’s Bulletin 1999 Protection of civilians an explicit item on the SC agenda since 1999 ”Comprehensive review of the whole question of peacekeeping in all their aspects”, 2000 (The Brahimi Report) ”The Responsibility to Protect”, 2001 Mainstreaming of human rights in the UN system

13. The obligations of Troop Contributing States Obligations of Troop Contributing States – ICRC position since UNEF I: The obligations of Troop Contributing States (TCS) apply in full – Reluctance among member states – Appears to be the prevailing view Is it sufficient to rely on TCS obligations? – The TCS does not have authority over operational matters – UN efforts to protect peace and security may be jeopardized if the UN is perceived as ignoring IHL violations – No consistency in the accountability mechanisms – Interoperability – Eventually a question of enforcement and accountability

14. The official solution The Secretary-General’s Bulletin on Observance by United Nations Forces of International Humanitarian Law (6 August 1999 – ST/SGB/1999/13). – ’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.’ (Sec 1.1) – ’The present provisions do not constitute an exhaustive list of principles and rules of international humanitarian law binding upon military personnel...’ (Sec. 2)

15. SG Bulletin (1998) – Not exhaustive – In addition to national laws – Violations of IHL prosecuted in troop-contributing State sec. 4  Respect for the fundamental principles and rules of the general conventions applicable to the conduct of military personnel sec.3

16. « fundamental principles and rules of IHL » in the General Secretary’s Bulletin Protection of civilian population section 5 : – Principle of distinction (5.1 & 5.2) – Precaution in attack and in defence (5.3 &5.4) – Prohibition of indiscriminate attack (5.5) – Principle of proportionality in attack (5.5) – No reprisals against civilians (5.6) Means and methods of combat section 6 No unlimited right to chose methods and means of combat (6.1) No use of gas, biological weapons, bullets that explode, expand or flatten easily in the human body, anti-personnel mines, booby traps or incendiary weapons (6.2) No use of means or methods that cause unnecessary suffering or cause widespread, long- term and severe damage to the environment ((6.3 & 6.4) Prohibition to order no quarter (6.5) Duty to protect cultural property (6.6) No attack on objects indispensable to the survival of the civilian population (6.7) No attacks on installations that may release dangerous forces and cause severe losses among the civilian population (6.8) No reprisals against such objects (6.9)

17. Protection of persons hors de combat section 7 Humane treatement without adverse distinction (7.1) Prohibition of violence to life or physical integrity (7.2) Special protection of women and children (7.3 & 7. 4) Treatment of detained persons section 8 Without prejudice to their legal status, GCIII provisions with necessary changes apply to members of armed forces and other persons who no longer take part in combat Protection of wounded and sick, medical and relief personnel section 9 Humane and medical treatment (9.1) Medical evacuation on the battlefield (9.2) Immunity from attack for medical units, personnel or equipment (9.3 & 9.4 & 9.5) No reprisals against such persons (9.6) Facitiltate the work of relief operations (9.9)

18. The effect of the SG Bulletin The legal effect of the Bulletin – Binding as UN Law – Otherwise a political document – Not a military order Not an exhaustive document Does not settle the question of the de jure applicability of IHL

19. The Capstone Doctrine UN Peacekeeping Operations: Principles and Guidelines ”International humanitarian law … is relevant to United Nations peacekeeping operations because these missions are often deployed into post-conflict environments where violence may be ongoing or conflict could reignite.” ”United Nations peacekeepers must have a clear understanding of the principles and rules of international humanitarian law and observe them in situations where they apply.” Reference to the SG Bulletin.

20. Which rules apply de jure? Treaty law or customary law? – The UN not party to the Geneva or Hague Conventions, and can not become so. – Treaty law not applicable for the UN. – ICRC position: Forces remain bound by the treaty obligations of the sending states. – Customary law is applicable, also to the UN. What is customary IHL? Problems: GC AP I and II, certain area specific conventions ICRC Customary Law Study Is IHL relevant below the threshold of armed conflict?

21. The qualification of conflict International or non-international armed conflicts? – GC common Art. 2: ”armed conflict... between two or more of the High Contracting Parties” – Can an otherwise non-international armed conflict be ”internationalized” by the deployment of UN forces? – The answer is not clear. Technically speaking, the conflict is rendered international only if UN forces enter as a party to the conflict against the state. But is the UN bound by the rules of international armed conflict regardless of the qualification?

22. Status of peacekeepers :Civilians or combatants? The Personnel Safety Convention Rules for the protection of UN personnel – Art. 7.1: UN personnel shall not be made the object of attack or of any action that prevents them from discharging their mandate. – Art. 8: Duty to release captured or detained UN personnel – Art. 9: Obligation to make crimes against UN personnel a crime under national law Art. 2.2: The Convention does not apply to a UN operation authorized by the Security Council as an enforcement action under Chapter VII of the UN Charter in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies.

23. The UN as occupying force Does the law of occupation apply? – Hague Regulations Art. 42: Territory actually placed under the authority of a hostile army – Benvenisti’s definition of occupation: ”the effective control of a power (be it one or more states or an international organization, such as the United Nations) over a territory to which that power has no sovereign title, without the volition of the sovereign of that territory.” UN Transitional Authorities – UNSF, West Irian/West New Guinea, 1962–1963 – UNTAC, Cambodia, 1992–1993 – UNTAES, Eastern Slavonia, 1996–1998 – UNTAET, East Timor, 1999–2002 – UNMIK/KFOR, Kosovo, 1999–ongoing (EULEX)

24. The UN as occupying force (contd.) Challenges: – Hague Regulations Art. 43, GC IV Art. 64: The occupant shall respect the laws in force. – The responsibility to protect fundamental human rights. The UN as an occupying force – West Irian, Eastern Slavonia, Cambodia: The mandate to administer was limited. – East Timor, Kosovo: Less clear. The de jure application of the law of occupation not recognized by the UN. But the law of occupation forms guidelines

25. The applicability of IHRL Historical context – A relatively new issue. – Peacekeeping forces: Host State’s consent. – Peace enforcement: No jurisdiction. Developments in the post-Cold War period – UN as de facto government – Mainstreaming of human rights in the UN system – Increased focus on ”peace building” – Integration of military, civilian and police components – Cambodia, East Timor, Kosovo No Sec-Gen’s Bulletin

26. The applicability of IHRL Actions of POs ordinarily attributable to the UN – Is this more important for IHRL than for IHL? ECtHR: The Behrami/Saramati case – UNMIK and KFOR actions in Kosovo attributable to the UN – The ECtHR not competent ratione personae – The ECHR in effect inapplicable in UN mandated POs UN Human Rights Committee – The ICCPR remains binding when Contracting States operate abroad during peace operat ions

27. The applicability of IHRL Mainly an issue below the threshold of armed conflict – IHRL in principle applicable during armed conflict – The relationship between IHRL and IHL – But the jurisdictional requirement difficult to reach The jurisdictional requirement – The extraterritorial application of IHRL – ECHR: Effective control over a territory or over a person – ICCPR: Similar requirements

28. The applicability of IHRL Is the UN bound by IHRL? – Not treaty law – Probably customary law Technical problem of human rights obligations of non-state actors What is customary human rights law? Are TCS obligations sufficient? Interoperability – Regional arrangements – Greater variety between TCS In its essence a question of implementation and enforcement

29. The applicability of ICL ICC Statute: No specific mention of jurisdiction over peacekeepers Resolutions 1422 (2002), 1487 (2003), 1497 (2003). Current status: Peacekeepers fall (in principle) under the ICC’s jurisdiction unless specific exceptions are made ICC Statute Art. 8.2.b.iii (IAC), Art. 8.2.e.iii (NIAC): It is a war crime to intentionally direct attacks against personnel, installations etc. involved in a PO ”as long as they are entitled to the protection given to civilians”

30. The UN Charter Art. 103 “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” – Al Jedda – Behrami/Saramati Exceptions for jus cogens / erga omnes In principle relevant also for international humanitarian law

31. Summary The legal picture is complex – Application: Difficult for actors to know what the applicable law is – Enforcement: Difficult for injured parties to present claims – “If legal norms are to be effective in a military context, the norms must be clear and not so complex as to be incapable of practical application.” – This goal is not achieved in POs. REMEMBER : the presence of forces with a UNSC mandate will not preclude applicability of IHL to a conflict PO forces operating under a Chapter VII mandate and acting as combatants in a conflict to which IHL applies, do not benefit from target-immunity etc. otherwise bestowed upon UN personnel