UNPO

1. LAWFUL PEACEKEEPING: APPLICABILITY OF INTERNATIONAL
HUMANITARIAN LAW TO UNITED NATIONS PEACEKEEPING
OPERATIONS (UNPO)
JAUME SAURA
The Hastings Law Journal 58(3):479-531 (2007)

2. STRUCTURE & PURPOSE
1. General Overview – Legal Status of UNPO – Features of IHL
2. Scope & degree of UNPOs duty to observe:
• UN Bulletin
• IHL (POW, Occupation, NIACs, Duty to Ensure Respect)
3. Relationship between IHL & UN Safety Convention, 1994
4. International Responsibility –
• UN
• Member State
• Individual

3. GENERAL OVERVIEW - UNPO
• UNTSO and UNMOGIP are still active.
• The shift in the mandate of the UNPO mission: Passive (UNTAC) to
Active Participation (Kosovo/East Timor)
• Common Features –
1. Non – Enforcement Operation
2. Consent of States and NSAs
3. No use of force (Self Defence Exception)

4. LEGAL STATUS OF UNPO
UN Charter
1. Subsidiary Organ (Art. 7 + 22 + 29)
2. International Agents and Functional Immunity (Art. 105)
Two Model Approach–
1. Agreement of UN and Troops Contributing State(s) - MCA
2. Agreement of UN and Host State – SOFA
Role of UNSG

5. IHL – BASIC FEATURE
IHL Skeleton – Hague and Geneva Law
IHRL – IHL similarities and distinctions (Nuclear Weapons Case)
• IHRL continues to govern UNPO despite non-application of IHL
Martens Clause
• Normative Scope of IHL
• IHL as CIL
• NIAC via Common Article 3
• Duty to comply via Common Article 1

6. THE UNSG BULLETIN & IHL
UNPO are belligerents? (Consent and Victimisation)
UN-ICRC commitment towards principles and spirit of IHL; MCA
Abstract framework lead to the 1999 Bulletin affirming humanitarian norms
in UN operations (enforcement + peacekeeping)
Binding Instrument–
• Internal Regulation
• UNs Customary Obligation
Narrow Application –
• …actively engaged in armed conflict..
• Substantive obligations (Art. 5 – 7)
• IHL norms focuses on non-combatants and conduct of hostilities equally

7. The Duty to respect and ensure respect
for IHL in all circumstances
1. GCs are unilateral engagements and not based on reciprocity
2. Justification of dejure IHL application - Peacekeepers aren’t party to the conflict but are
stationed under a responsible military command in a territory where IHL is applicable and
circumstances may compel them to use force w.r.t their mandate.
3. Status as civilians – The passive and neutral role played by peacekeepers works with civilian
status but doesn’t provide room for their use of force which will invoke application of IHL i.e.
Peacekeepers special and protected status should not lessen their obligation
to comply with those rules.

8. POWs
1. Application of GC III involve a recognition of the status of the party and their right
to participate in the combat.
2. UN Bulletin Article 8 – ‘…Without prejudice to their legal status, they shall be
treated in accordance with the relevant provisions of the Third Geneva Convention
of 1949…’
3. No provision on prohibition of discrimination; duty to release wounded or sick
prisoners; right of prisoners only to disclose only their name, rank, date of birth
and serial number.
4. Bulletin is neither denying or asserting the UNs duty to comply with GC III
provisions.
Example – UN Forces in Somalia

9. OCCUPATION I
• Law of Occupation – Article 42, Hague Reg.
• Absence of Consent – UN Agreement with the Host State, thus Law of
Occupation doesn’t apply.
• However, presumption of consent being tainted and non-existent under
situations of conflict; Chapter VII operations
• Example – Cambodia, Kosovo and East Timor (UNs as dejure and
defacto supreme authority)
• Thus, such situation calls for recognition of ‘de-facto occupation’ and
IHRL should be used to fill the gaps.

10. OCCUPTATION II
• No application of Law of Occupation when UN forces are
administering the territory; UN Charter governs the situation; UNSC
may override treaty and customary law (Article 103 r/w 25).
• UN Obligations: Foreigners must be repatriated (Art. 48); Individual
or mass forcible transfers are prohibited (Art. 49); Measures creating
unemployment (Art. 52) etc
• UN administration resulting in change/repeal of domestic law
inconsistent with the UNs mandate wouldn’t necessarily be a breach of
GC IV

11. Duty to ensure respect
• Whether duty to ensure respect include duty to intervene to ensure
respect?
• Common Article 1 and its interpretation by ICJ answers the question
in affirmative.
• ICRC GC commentary - "in the event of a Power failing to fulfill its obligations, the
other Contracting Parties (neutral, allied or enemy) may, and should, endeavor to bring it back to
an attitude of respect of the Convention.”
• UN must respect customary humanitarian norms.
• Draw up reports on IHL violations.

12. NIACs
• Example – Burundi, Liberia, East Timor etc.
• IHL framework - Common Article 3 and AP II
• UN Bulletin is silent on its applicability w.r.t. nature of the conflict.
• Whether NIAC become IACs with the UNOPs presence? Bowett
argues that it does.
• However, UN practice in Congo shows us otherwise.
• Intervention of 3rd state makes the conflict internationalized.

13. Convention on the Safety of UN and
Associated Personnel, 1994
• Objective – “ To protect United Nations and associated personnel from
becoming the object of attack by purporting to criminalize attacks by other armed
forces on peacekeeping troops."
• Principle of universal jurisdiction; extradite or punish. (Art. 10)
• Rome Statute’s Article 8(b)(iii) - War Crime
• Exclusion Clause – Article 2(2) – Enforcement actions under Chapter VII
• Hague Reg. and GCs still govern the UN personnel involved in enforcement action.
• Article 6 provides duty to respect laws and regulations of the host state.
• The Convention shall not affect applicability of IHL and universally recognized
human rights (Article 20(a))

14. UNs Responsibility
• Acts/omission of the subsidiary organ and that of its agents are attributable to the
UN.
• Extends to not just field action but also policy/planning phase.
• 2004 UN Legal Counsel’s letter.
• Responsibility exist even if act done was an ultra-vires act.
• Restitution and compensation (DARIO); UNGA Res. 52/247 provides damages
upto $50, 000 for private claims and limitation period of six months after
wrongdoing and one year after the close of the operation.
• SOFA provides for arbitration tribunal for dispute between UNPO and the host
state.
• Satisfaction

15. Individual & State Responsibility
• Individual -
1. Act of peacekeeper as war crime would lead to prosecution within domestic
jurisdiction of the sending state.
2. Rome Statute provides for prosecution as a principle of complementarity.
• State –
1. Failure to take penal action against individuals violating GCs would attract
State Responsibility.
2. Duty to train peacekeepers w.r.t. IHL norms.
3. If the acts were in effective control of the State.
• UN and State Responsibility exist parallelly? Concept of Co-
responsibility has been proposed.