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The creation and control of places of protection during United Nations peace operations

Published online by Cambridge University Press:  27 April 2010

Bruce M. Oswald
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Résumé

La création de zones protégées est un moyen de mettre la population civile à l'abri des hostilités. Cet article examine le régime juridique de la création et du contrôle de zones protégées lors des opérations de paix des Nations Unies. L'auteur se penche sur le droit international et la pratique des États dans les cas où les forces des Nations Unies ont, en application du Chapitre VII de la Charte, établi et contrôlé des zones protégées, sans le consentement de certaines ou de l'ensemble des parties au conflit. Il étudie en outre les éléments juridiques, sur lesquels se fondent les forces des Nations Unies pour créer et contrôler des zones protégées, alors qu'aucun mandat ne leur a été explicitement donné. L'auteur conclut que les casques bleus peuvent, dans certaines circonstances, être juridiquement fondés à agir de la sorte même s'ils n'ont pas un mandat explicite du Conseil de sécurité.

Type
Research Article
Information
International Review of the Red Cross , Volume 83 , Issue 844 , December 2001 , pp. 1013 - 1035
Copyright
Copyright © International Committee of the Red Cross 2001

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References

1 An armed conflict exists “wherever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State”. The Prosecutor v. Dusko Tadic, Decision of the Appeals Chamber, 2 October 1999, 105 International Law Reports, p. 488, para. 70.

2 In the context of this paper a “place of protection” is any area that affords protection to civilians who are being deliberately targeted during armed conflict.

3 This paper will not consider places of protection created and controlled with consent and pursuant to international humanitarian law. See e.g. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Conflicts in the Field, 12 August 1949, Art. 23; Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, Arts 14 and 15; and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 (Protocol I), Arts 59 and 60, which provide for, inter alia, hospital zones and localities, neutralized zones and the immunity from attack of non-defended localities. For further discussion of these places see ICRC, Hospital Localities and Safety Zones, ICRC, Geneva, 1952; ICRC, Report concerning Hospital and Safety Localities and Zones, ICRC, Geneva, 1946, Series IV, No. 1; J. Pictet (ed.), The Geneva Conventions of 12 August 1949: Commentary, vol. I, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, ICRC, Geneva, 1952, pp. 206–216 (dealing with Art. 23) and vol. IV, Geneva Convention relative to the Protection of Civilian Persons in Time of War, ICRC, Geneva, 1958, pp. 118–132 (dealing with Arts 14 and 15); Sandoz, Y., Swinarski, C., Zimmermann, B. (eds), Commentary on the Additional Protocols of 8 June igyy to the Geneva Conventions of 12 August 1949, ICRC/Martinus Nijhoff Publishers, Geneva, 1987, pp. 699–713Google Scholar (dealing with Arts 59 and 60 of Protocol I). Nor will this paper address the creation of “open towns”, “undefended places” and “demilitarized zones”, as these are discussed in Jennings, R. Y., “Open Towns”, British Yearbook of International Law, vol. 22, Oxford, 1945, pp 258–263Google Scholar; H. W. Elliott, “Open Cities and (Un)defended Places”, The Army Lawyer, April 1995, pp. 39–45; and Bailey, S. D., “Non-military areas in UN Practice”, AJIL, vol. 74, 1980, pp. 499–524.Google Scholar

4 Safe areas were created in the former Yugoslavia pursuant to S/RES/819(1993), 16 April 1993; S/RES/824(1993-), 6 May 1993; and S/RES/836(1993), 4 June 1993.

5 A humanitarian protected zone was created in the south-east of Rwanda pursuant to S/RES/929(1994), 22 June 1994.

6 “UN peace operations” refers to military operations that are authorized by the United Nations. These operations are a means by which the UN fulfils its stated purposes, inter alia, maintaining international peace and security, strengthening universal peace, the peaceful settlement of disputes and the promotion of social, economic and humanitarian welfare. See UN Charter, preamble and Art. 1.

7 On 7 March 2000, the Secretary-General convened a high-level Panel, chaired by Lakhdar Brahimi, to undertake a review of UN peace and security activities. The Panel's report to the Secretary-General is attached to “The identical letters dated 21 August 2000 from the Secretary-General to the President of the General Assembly and the President of the Security Council”, UN Doc. A/55/305–S/2000/809, 21 August 2000.

8 Ibid., para. 50.

9 “UN Forces” are military forces authorized by the UN to conduct peace operations. These Forces, depending on the type of operation, may be under UN, coalition or national command and control.

10 “Administer” refers to the functions that would normally be conducted by the local authorities of a State, such as the maintenance of law and order; maintenance of the local infrastructure, and the provision of health care and humanitarian assistance.

11 These reasons may include denial to humanitarian access, mass displacements of population and gross violations of human rights.

12 S/RES/1296(2000), 19 April 2000, para. 15.

13 Art. 33, UN Charter.

14 Art. 37(1), UN Charter.

15 Art. 37(2), UN Charter.

16 See Armistice Agreement signed between Israel and Syria and Armistice Agreement signed between Israel and Egypt, reprinted in R. Higgins United Nations Peacekeeping 1946–1967: Documents and Commentary, The Middle East, vol. 1, Oxford University Press, London, 1969, pp. 38–42 and 43–48 respectively.

17 The Security Council's responsibility for the maintenance of international peace and security also stems from Art. 24(1) of the UN Charter which states: “In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.”

18 In practice the Security Council often “acts under Chapter VII without discussing the question of jurisdiction under Article 39”. Harris, D. J., Cases and Materials on International Law, 5th ed., Sweet and Maxwell, London, 1998, p. 942.Google Scholar

19 Oppenheim, L., International Law - A Treatise: Disputes, War and Neutrality, Vol. II, 7th ed., Longmans, Green and Co, London, 1952, p. 163Google Scholar. See also Akeburst, M., A Modern Introduction to International Law, 6th ed., Harper Collins, London, 1991, p. 219Google Scholar: “a threat to the peace is whatever the Security Council says is a threat to the peace”; and Y. Dinstein, War, Aggression and Self-Defence, Grotius Publications, Cambridge, 1988, pp. 257–258.

20 Goodrich, L., Hambro, E. and Simons, A., Charter of the United Nations: Commentary and Documents, 3rd ed., Columbia University Press, New York, 1969, p. 297.Google Scholar

21 Higgins, R., Problems and Processes: International Law and How We Use It, Clarendon Press, Oxford, 1994, p. 255.Google Scholar

22 Ibid., pp. 256–257.

23 The principles and purposes of the UN are found mainly in the preamble and Arts 1 and 2 of the UN Charter, and include maintenance of international peace and security, international cooperation and human rights. See Goodrich et al., op. cit. (note 21), pp. 23–72. Brierly has argued that except for the Security Council's general obligation to “act in accordance with ‘the Purposes and Principles of the United Nations’, there is nothing to ensure that the measures which it decides shall be taken shall either respect the legal rights of states affected or be just in themselves”. Brierly, J. L., The Law of Nations: An Introduction to the International Law of Peace, 5th ed., Oxford University Press, Oxford, 1956, p. 302Google Scholar. Alston adds: “it is up to the Council itself to determine what matters it will treat as falling within its competence. In doing so, the Council must act in good faith and in conformity with the overall objectives of the Charter (…) [O]nce the Council has agreed to concern itself with a particular situation, it will not exclude human rights concerns from the purview of United Nations action taken in that regard.” Alston, P., “The Security Council and human rights: Lessons to be learned from the Iraq-Kuwait crisis and its aftermath”, Australian Year Book of International Law, vol. 13, 1982, pp. 107–176, 139.Google Scholar

24 Art. 2(7) of the UN Charter states: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.”

25 S/RES/819(1993), 16 April 1993, preamble.

26 S/RES/929(1994), 22 June 1994, recogpreamble.

27 Article 25 of the UN Charter states: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”

28 Oppenheim, op. cit. (note 19), p. 166.

29 S/RES/819(1993), 16 April 1993, para. 1. Note that S/RES/770(1992) formally recognized, pursuant to Article 39 of the UN Charter, that “the situation in the Bosnia and Herzegovina constitutes a threat to international peace and security…”.

30 S/RES/824(1993), 6 May 1993, para. 3. Fora detailed account of the developments in relation to the safe areas in Bosnia and Herzegovina see M. Weller, “Peace-keeping and peace-enforcement in the Republic of Bosnia and Herzegovina”, Heidelberg Journal of International Law, 1996, pp. 69–177, and Y. Akashi, “The use of force in a United Nations peace-keeping operation: Lessons learnt for the safe areas mandate”, Fordham International Law Journal, vol. 19, 1995, pp. 312–323.

31 The Blue Helmets: A Review of United Nations Peace-keeping, 3rd ed., UN Department of Public Information, New York, 1996, p. 352.Google Scholar

32 Report of the Secretary-General pursuant to Security Council Resolution 819 (1993), para. 24, S/25700(1993), reprinted in D. Bethlehem and M. Weller (eds), The 'Yugoslav Crisis in International Law: General Issues, Part I, Cambridge University Press, Cambridge, 1997, pp. 612–619.

33 Report of the Secretary-General on the situation in Rwanda, S/1994/924 (1994), reprinted in The United Nations and Rwanda 1993–1996, UN Department of Public Information, New York, 1996, p. 326.

34 The right of UN Forces to use force in individual and collective self-defence has been recognized since early peace-keeping operations. See for example Report of the United Nations Secretary-General, United Nations Emergency Force: Summary Study of the Experience Derived from the Establishment and Operation of the Force, UN Doc. A/3943, 9 October 1958, paras 178 and 179. It has been argued that the right of UN forces to use force in self-defence is similar to the defence of self-defence in municipal law. See Rowe, P., “The United Nations rules of engagement and the British soldier in Bosnia”, International Comparative Law Quarterly, vol. 43, October 1994, p. 954Google Scholar. See also Bowett, D. W., United Nations Forces: A Legal Study of United Nations Practice, Stevens and Sons, London, 1964, pp. 486–487.Google Scholar

35 Art. 2 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide states: “…genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or metal harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.”

36 Art. 1 of the Genocide Convention states: “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” Contra: Dinstein, Y., “The Thirteenth Waldemar A. Solf Lecture in International Law”, Military Law Review, vol. 166, 2000, pp. 100–101Google Scholar. Dinstein argues that it is not sufficient to read Art. 1 in isolation. He maintains that the Genocide Convention does not permit States to use force unilaterally to prevent genocide. Prevention or termination of genocide by States must occur either through the Security Council (Art. 8, Genocide Convention) or the International Court of Justice (Art. 9).

37 Rogers, A.P.V., Law on the Battlefield, Manchester University Press, Manchester, 1996, p. 14Google Scholar. See Arts 51(6), 52(1), 53(c), 54(4), and 56(4) of Protocol I.

38 Sandoz et al., op. cit. (note 3), para. 3596.

39 S/RES/688(1991), 5 April 1991, para. 3.

40 Weller, M. (ed.), Iraq and Kuwait: The Hostilities and their Aftermath, Grotius Publications, Cambridge, 1993, pp. 714–715.Google Scholar

41 Art. 42, UN Charter.

42 C. Greenwood, International Humanitarian Law (Laws of War): Revised Report for the Centennial Commemoration of the First Hague Peace Conference 1899, pursuant to A/RES/52/154 and A/RES/53/99, p. 19. Judith Gardam also argues that the limitations of necessity and proportionality apply to unauthorized Chapter VII operations as well. Gardam, J., “Proportionality and force in international law”, AJIL, vol. 87, p. 392.Google Scholar

43 S/RES/836(1993), 4 June 1993, para. 5.

44 Ibid., para. 9.

45 Weller, op. cit. (note 30), pp. 108–109.

46 S/1994/555, 9 May 1994, Report of the Secretary-General pursuant to Resolution 844 (1993), para. 4.

47 Weller, op. cit. (note 30), pp. 108–109.

48 Ibid., pp. 172–173.

49 S/RES/836(1993), 4 June 1993, para. 10.

50 S/1994/498, 22 April 1994, para. 9(a), reprinted in Bethlehem/Weller, op. cit. (note 32), p. 697.

51 Paras. 4(a) and (b) of S/RES/925(1994), 8 June 1994, stated:

“Reaffirms that UNAMIR [United Nations Assistance Mission in Rwanda], in addition to continuing to act as an intermediary between the parties in an attempt to secure their agreement to a cease-fire, will:

Contribute to the security and protection of displaced persons, refugees and civilians at risk in Rwanda, including through the establishment and maintenance, where feasible, of secure humanitarian areas; and provide security and support for the distribution of relief supplies and humanitarian relief operations.”

52 S/RES/929(1994), 22 June 1994, para. 3.

53 Letter dated 2 July from the Secretary-General to the President of the Security Council, UN Doc. S/1994/798, 6 July 1994, reprinted in op. cit. (note 33), p. 311.

54 S/RES/836(1993), 4 June 1993, para. 5 stated that UNPROFOR's mandate was to “promote the withdrawal of military or paramilitary units other than those of the Government of the Republic of Bosnia and Herzegovina”.

55 The Secretary-General's Bulletin: Observance by United Nations Forces of International Humanitarian Law, UN Doc. ST/SGB/1999/13, 6 August 1999, supports this approach. For a detailed discussion of the application of international humanitarian law to UN Forces see Bowett, D., United Nations Forces: A Legal Study of United Nations Practice, Stevens and Sons, London, 1964Google Scholar; Greenwood, C., “International humanitarian law and the United Nations military operations”, Yearbook of International Humanitarian Law, vol. 1, T.M.C. Asser Press, The Hague, 1998, pp. 3–34Google Scholar; and Rowe, P., “Maintaining discipline in United Nations peace support operations: The legal quagmire for military contingents”, journal of Conflict and Security Law, No. 1, 2000, pp. 45–62.Google Scholar

56 Greenwood, op. cit. (note 55), p. 32.

57 UN Doc. S/1994/555, 9 May 1994, para. 15, reprinted in Bethlehem/Weller, op. cit., (note 32), p. 700.

58 Weller, op. cit. (note 30), p. 143.

59 The law in relation to belligerent occupation is found principally in sections III and IV of the Fourth Geneva Convention. The law of occupation covers the following issues with regard to administration in the area under occupation: inviolability of rights; deportations, transfers and evacuations; hygiene and public health; and penal legislapation tion and treatment of detainees.

60 Roberts, A., “What is military occupation”, British Yearbook of International Law, vol. 50, 1984, p. 291.Google Scholar

61 Greenwood, op. cit. (note 55), p. 28.

62 Sarooshi, D., The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers, Clarendon Press, Oxford, 1999, p. 63.Google Scholar

63 Ibid.

64 Op. cit. (note 60), p. 291.

65 Ibid., pp. 300–301.

66 Kelly, M., Restoring and Maintaining Order in Complex Peace Operations: The Search for a Legal Framework, Kluwer Law International, The Hague, 1999, p. 227.Google Scholar

67 The Convention may be used to provide military forces with a framework for dealing with such issues as restoring public order, general treatment of the population, minimum standards to be applied to any legal process taken by the Force, basic humanitarian standards to be applied to detainees, and preventative security measures that may be taken against the population in the place of protection.

68 S/RES/836(1993), 4 June 1993, para. 5.

69 UN Doc. S/1994/291, 11 March 1994, para. 17.

70 Honig, J. W. and Bothe, N., Srebrenica: Record of a War Crime, Penguin Books, London, 1996, p. 132.Google Scholar

71 S/RES/918(1994), 17 May 1994, para. 3.

72 Letter dated 2 July from the Secretary-General to the President of the Security Council, UN Doc. S/1994/798, 6 July 1994, reprinted in op. cit. (note 33), p. 311.

73 Letter dated 20 June from the Permanent Representative of France to the United Nations addressed to the Secretary-General, UN Doc. S/1994/734, 21 June 1994, Ibid., p. 307.

74 Op. cit., (note 66), pp. 155–156.

75 Letter in reply to the Special Representative of the Secretary-General in the former Yugoslavia from a UN Legal Counsel, 19 July 1993, quoted in de Rossanet, B., Peacemaking and Peacekeeping in Yugoslavia, Kluwer Law International, The Hague, 1996, p. 91Google Scholar. This opinion is consistent with the traditional UN approach to the use of force in self-defence. See e.g. United Nations Emergency Force: Summary study of the experience derived from the establishment of the operation of the Force, UN Doc. A/3943, 9 October 1958, para. 165.

76 UN Doc. S/24540, 10 September 1992, para. 9. This view is consistent with the traditional UN approach that force may be used to defend the mandate. See e.g. S/11052/Rev.1, 27 October 1973, para. 4(d) concerning the use of force by UN Emergency Force II to resist attempts to prevent it from discharging its mandate.

77 A/3943, 9 October 1958, para. 165.