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International humanitarian law training for multinational peace support operations

Published online by Cambridge University Press:  27 April 2010

Ray Murphy
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International Review of the Red Cross , Volume 82 , Issue 840 , December 2000 , pp. 953 - 968
Copyright
Copyright © International Committee of the Red Cross 2000

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References

1 See, for example, Symposium on Humanitarian Action and Peacekeeping Operations, Report, ICRC, Geneva, 1994Google Scholar (here-inafter Symposium); Meijer, Martin, “Notes on the conference on ‘The UN and International Humanitarian Law’ (Geneva, 19–20 October 1995)”. International Peacekeeping, Vol. 2, No. 6, 1995, p. 137Google Scholar; and “Report on the international workshop ‘Towards a Future for Peacekeeping: Perspectives of a New Italian/German Co-operation’ (Pisa, 17–18 November 1995)”, ibid., p. 138.

2 International humanitarian law denotes the whole body of law applicable during armed conflict, often referred to as the law of armed conflict (jus in bello). See Greenwood, C., “Historical development and legal basis”, in Fleck, D. (ed.), Handbook of Humanitarian Law in Armed Conflicts, Oxford University Press, 1995, pp. 8–12.Google Scholar

3 See Meron, T., “The protection of the human person under human rights and humanitarian law”, UN Bulletin of Human Rights 91/1, UN, 1992, pp. 33–45Google Scholar; Meron, T. and Rosas, A., “A declaration of minimum humanitarian standards”, AJIL, Vol. 85, 1991, pp. 375–381CrossRefGoogle Scholar. See also Doswald-Beck, L. and Vite, S., “International humanitarian law and human rights law”, IRRC, No. 293, 03–04 1993. pp. 94–119.Google Scholar

4 Garcia-Sayan, Diego, “Human rights and peace-keeping operations”, University of Richmond Law Review, Vol. 29, 1995, p. 45Google Scholar. This article deals primarily with the UN mission to El Salvador (ONUSAL). See also Forsythe, D., “Human rights and international security: United Nations field operations redux”, in Castermans, , van Hoof, and Smith, (eds), The Role of the Nation State in the 21st Century, Kluwer, 1998, pp. 265–276.Google Scholar

5 The Blue Helmets — A Review of United Nations Peacekeeping, 3rd ed., United Nations, New York, 1996, p. 5.Google Scholar

6 The United Nations in Somalia, 1992–1996, United Nations, New York, 1996.Google Scholar

7 For an overview of peacekeeping see Simma, B. (ed.), The Charter of the United Nations, Oxford University Press, 1995, pp. 566–603.Google Scholar

8 Greenwood, C., “Scope of application of humanitarian law”, in op. cit. (note 2), p. 46Google Scholar. This is not just a practical necessity, but may arise from obligations of States “to respect and ensure respect” for the Geneva Conventions and Protocols “in all circumstances”. The essence of the ICRC's position is that humanitarian law principles, recognized as part of customary international law, are binding upon all States and upon all armed forces present in situations of conflict. See Shagra, and Zacklin, , Symposium, op. cit. (note 1), p. 43.Google Scholar

9 Op. cit. (note 5), p. 4.

10 Peck, J., “The U.N. and the laws of war: How can the world's peacekeepers be held accountable”, Syracuse Journal of International Law, Vol. 21, p. 288.Google Scholar

11 Op. cit. (note 5), p. 5.

12 Section 3, Secretary-General's Bulletin: Observance by United Nations Forces of International Humanitarian Law, ST/SGB/1999/13, 6 08 1999Google Scholar. See Zwanenburg, M., “The Secretary-General's Bulletin on Observance by United Nations Forces of International Humanitarian Law: Some preliminary observations”, International Peacekeeping, Vol. 5, No. 4–5, 1999, pp. 133–139Google Scholar. Text also published in IRRC, No. 836, 12 1999, pp. 812–817.Google Scholar

13 See Dishonoured Legacy, Report of the Commission of Enquiry into the Deployment of Canadian Forces to Somalia, Canadian Government Publishing, Ottawa, 1997, also available at http://www.dnd.ca.somaliae.htm; and “Somalia: Human rights abuses by the UN Forces”, Africa Rights Report, London, 1993Google Scholar; and Huband, Mark, Guardian, 31 12 1993. p. 6Google Scholar. – The Africa Rights report documents a number of grave breaches of the Geneva Conventions by several contingents in Somalia. Most disturbing is the conclusion that these were “not cases of undisciplined actions by individual soldiers, but stem from the highest echelons of the command structure” (p. i). Italy and Belgium also instituted inquiries into the conduct of their respective armed forces in Somalia: Amnesty International, “Al concerns in Europe: January–June 1997”, Al Index EUR 01/06/07, p. 1Google Scholar, and “Italy: A briefing for the UN Committee Against Torture”, Al Index EUR 30/02/99, p. 10.Google Scholar

14 Aldrich, George H., “The laws of war on land”, AJIL. Vol. 94, 2000, p. 54.CrossRefGoogle Scholar

15 See generally Mullins, C., The Leipzig Trials: An Account of the War Criminals Trials and a Study of the German Mentality, H. F. & G. Witherby, London, 1921.Google Scholar

16 R. v. Brocklebank, Court Martial Appeal Court of Canada, (1996)Google Scholar 134 DIR (4th) 377.

17 See generally Triffterer, Otto (ed.), Commentary on the Rome Statute of the International Criminal Court, Nomos, 1999, pp. 180–288Google Scholar; Bassiouni, M. C., The Statute of the International Criminal Court: A Documentary History, New York, 1998Google Scholar; Lee, Roy (ed), The International Criminal Court: The Making of the Rome Statute, Kluwer, 1999, pp. 79–126Google Scholar; Roberts, A., Humanitarian Action in War, Adelphi Paper 305, Oxford, 1996, p. 50Google Scholar; Caflisch, L., “Toward the establishment of a permanent international criminal jurisdiction”, International Peacekeeping, Vol. 4, No. 5, Kluwer, 1998, pp. 110–115Google Scholar. See also online at http://www.igc.org/icc/.

18 Zwanenburg, M., “The Statute for an International Criminal Court and the United States: Peacekeepers under fire?”, European Journal of International Law, Vol. 10, 1999, p. 126.CrossRefGoogle Scholar

19 Green, L C., “Humanitarian law and the man in the field”, Canadian Yearbook of International Law, Vol. XIV, 1976, p. 97.Google Scholar

20 Green, L C., “Superior orders and the reasonable man”, Canadian Yearbook of International Law, Vol. VIII, 1970, p. 96Google Scholar and passim. See also by the same author, “Peacekeeping and war crimes”, Military Law and Law of War Review, Vol. XXXIV, 1995, pp. 247–255.Google Scholar

21 “Ignorance of the law does not excuse.” Every person is presumed to know the law. See O' Loughlin v. O'Callaghan (1874)Google Scholar IR 8 CL 116. However, Articles 32 and 33 of the ICC Statute recognize that a mistake of law may, in certain circumstances, be a ground for excluding criminal responsibility: Triffterer, op. cit., (note 17), pp. 555–588.

22 The first recognition of the need to inform the armed forces of the rules of war is found in the Oxford Manual prepared by the Institute of International Law in 1880, reproduced in Schindler, D. and Toman, J., The Laws of Armed Conflicts, Martinus Nijhoff/Henry Dunant Institute, 3rd ed., 1988, p. 35.Google Scholar

23 Simpson, James, Law applicable to Canadian Forces in Somalia 1992/93: A study prepared for the Commission of Inquiry into the Deployment of Canadian Forces to Somalia, Minister of Public Works and Government Services, Ottawa, 1997, p. 13.Google Scholar

24 Universal Declaration of Human Rights, Art. 26, para. 2.

25 Jean Pictet (general editor), Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Commentary, ICRC, Geneva, 1952, p. 348.Google Scholar

26 Protocol I, Arts 81 and 82, and Protocol II, Art. 19.

27 See Campbell, Colm and Murphy, Ray, “Geneva Conventions (Amendment) Act, 1998”, Irish Current Law 1998, DublinGoogle Scholar, pp. 35.01–35.58.

28 See note 26 and McCoubrey, H., International Humanitarian Law, Dartmouth, 1990, pp. 205–210.Google Scholar

29 Green, L. C., op. cit. (note 19), p. 110.Google Scholar

30 Karlshoven, Frits, Constraints on the Waging of War, ICRC, Geneva, 1987, p. 61.Google Scholar

31 Protocol II, Art. 19.

32 Geiger, Louis, “Armed forces and respect for international humanitarian law: Major issues”, Symposium (note 1), p. 60.Google Scholar

33 See generally Roberts, David Lloyd, “Training the armed forces to respect international humanitarian law: The perspective of the ICRC Delegate to the Armed and Security Forces of South Asia”, IRRC, No. 319, 07–08 1997, pp. 433–446Google Scholar; Frédéric de Mulinen, The Law of War and the Armed Forces, Series lus in Bello, No. 1, Henry Dunant Institute, Geneva, 1992Google Scholar, and Sandoz, Y., “Respect for the law of armed conflict: the ICRC's observations and experiences”, Report, International Seminar on International Humanitarian Law in a New Strategic Environment, Swedish War College, Stockholm, 1996, pp. 17–30.Google Scholar

34 LaRose-Edwards, Paul, Dangerfield, Jack and Weeks, Randy, Non-Traditional Military Training for Canadian PeacekeepersGoogle Scholar, study prepared for the Commission of Enquiry into the Deployment of Canadian Forces to Somalia, Ottawa, 1997.

35 Though this need was recognized much earlier by some. See Green, L. C., “Humanitarian law and the man in the field”, Military Law and Law of War Review, Vol. XIV, 1976, pp. 96–115Google Scholar. See also Lt. Col. Vogt, “Experiences of a German legal adviser to the UNOSOM II mission”, Military Law and Law of War Review, Vol. XXXV, 1996, pp. 226–227.Google Scholar

36 de Mulinen, , op. cit. (note 33).Google Scholar

37 Blechman, and Vaccaro, , Training for Peacekeeping: The United Nations Role, Report No. 12, The Henry L. Stimson Centre, 07 1994, p. 4.Google Scholar

38 Op. cit. (note 34), p. 5

39 In addition, many of the operational-level personnel interviewed for the report remarked that dry legal lectures by military lawyers were not particularly helpful. It was considered that training by their own warrant and other officers would have been preferable. Ibid., p. 58.

40 Op. cit. (note 37). The recommendations were adopted by the Report of the Commission of Enquiry, op. cit. (note 13). See Recommendations, Chapter 21, para. 21.8, and Chapter 40, paras. 40.41 – 40.45. Since then Canada has implemented a comprehensive programme on education in and dissemination of international humanitarian law among its armed forces.

41 Murphy, R. and Campbell, C., Correspondents' Reports – Ireland, Yearbook of International Humanitarian Law 1998, TMC Asser Instituut, The Hague, 1998, p. 466.Google Scholar

42 Op. cit. (note 34), p. 43.

43 See Appendix. These findings are based on the answers to a questionnaire distributed among an Irish battalion serving with UNIFIL in Lebanon during 1998. The survey was completed by a cross-section of all ranks, and this meant that the majority of replies were from privates, and then from non-commissioned officers.

44 Op. cit. (note 34), p. 83.

45 This conclusion is based on interviews with military personnel from other countries contributing troops to UNFIIL in Lebanon during 1998.

46 Department of Defence, Dublin, 2000.