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The Applicability and Application of International Humanitarian Law To International Review of the Red Cross (2013), 95 (891/892), 561–612. Multinational operations and the law doi:10.1017/S181638311400023X The applicability and application of international humanitarian law to multinational forces Dr Tristan Ferraro* Dr Tristan Ferraro is Legal Adviser in the Legal Division of the International Committee of the Red Cross, based in Geneva. Abstract The multifaceted nature of peace operations today and the increasingly violent environments in which their personnel operate increase the likelihood of their being called upon to use force. It thus becomes all the more important to understand when and how international humanitarian law (IHL) applies to their action. This article attempts to clarify the conditions for IHL applicability to multinational forces, the extent to which this body of law applies to peace operations, the determination of the parties to a conflict involving a multinational peace operation and the classification of such conflict. Finally, it tackles the important question of the personal, temporal and geographical scope of IHL in peace operations. Keywords: multinational operations, multinational forces, international humanitarian law, IHL, applicability of IHL. Over the years, the responsibilities and tasks assigned to multinational forces have transcended their traditional duties of monitoring ceasefires and observation of fragile peace settlements. Indeed, the spectrum of operations in which multinational * This article was written in a personal capacity and does not necessarily reflect the views of the ICRC. © icrc 2014 561 T. Ferraro forces participate (hereinafter ‘peace operations’ or ‘multinational operations’)1, be they conducted under United Nations (UN) auspices or under UN command and control, has steadily widened to embrace such diverse aspects as conflict prevention, peacekeeping, peacemaking, peace enforcement and peacebuilding. The mission of the multinational forces in Afghanistan, the Democratic Republic of the Congo (DRC), Somalia, Libya or Mali are no longer confined to ensuring ceasefires or monitoring buffer zones but are characterised by their involvement in military operations aimed at eradicating threats from various quarters, especially from non- state armed groups engaged in a non-international armed conflict (NIAC). Today, the multifaceted nature of these peace missions and the increasingly difficult and violent environments in which their personnel operate make it all the more necessary to develop a coherent framework, including a legal dimension, that takes account of their complexity. Since these new aspects of multinational forces’ operations increase the likelihood of their being called upon to use force, the question of when and how international humanitarian law (IHL) applies to their action becomes all the more relevant. Although, at first sight, it might seem that everything that could be said on this issue has been said, a number of unresolved legal questions pertaining to peace operations warrant close examination owing to their significance and potential consequences. After drawing attention to the essential distinction between jus ad bellum and jus in bello, this article attempts to clarify the conditions under which IHL becomes applicable to multinational forces and to identify the extent to which this body of law will apply to peace operations. It then addresses the thorny issue of determining which of the international organisations and/or states participating in a peace operation should be regarded as parties to an armed conflict. It also discusses the classification of conflicts involving multinational forces and identifies the pertinent parts of IHL that apply in such situations. Lastly, it tackles the important question of the personal, temporal and geographical scope of IHL in peace operations. 1 There is no clear-cut definition of peace operations in public international law. The terms ‘peace operations’, ‘peace-support operations’, ‘peacekeeping operations’ or ‘peace-enforcement operations’ do not appear in the UN Charter. They may be interpreted in various ways (see, for example, United Nations Peacekeeping Operations: Principles and Guidelines, United Nations, New York, 2008) and are sometimes used interchangeably. For a comprehensive analysis of the definition of peace operations, see Marten Zwanenburg, Accountability of Peace Support Operations, Martinus Nijhoff Publishers, 2005, pp. 11–50. For the purposes of this article, the term ‘peace operations’ covers both peacekeeping and peace- enforcement operations conducted by international organisations, regional organisations or coalitions of states acting on behalf of the international community in pursuance of a UN Security Council resolution adopted under Chapters VI, VII or VIII of the UN Charter. Although the majority of multinational peace operations take place under the command and control of either the UN or the North Atlantic Treaty Organisation (NATO), this article also bears in mind the growing role played by other international organisations such as the African Union (AU) or the European Union (EU). The expression ‘peace forces’ and ‘multinational forces’ will be used interchangeably in this document. 562 The applicability and application of international humanitarian law to multinational forces The relevance of the distinction between jus in bello and jus ad bellum to peace operations Rationale and legal basis of the distinction Whether multinational forces can be engaged in armed conflict is a matter of much debate. In the past, states and international organisations engaged in peace operations have often been reluctant to consider IHL applicable to their action. In many peace operations (past and present), it has been argued that multinational forces cannot be a party to an armed conflict and consequently cannot be bound by IHL. This position is based on the premise that peace forces generally operate on behalf of the international community as a whole, thus precluding them from being qualified as either a ‘party’ to an armed conflict or a ‘power’ within the meaning of the Geneva Conventions of 1949 and, hence, from being termed a belligerent under IHL. It has been claimed that, for the sake of their international legitimacy, multinational forces have to be impartial, objective, neutral and concerned only with the restoration and preservation of international peace and security.2 This position was adopted for instance by some troop-contributing countries (TCCs) participating in NATO operations in Afghanistan3 and Libya.4 The UN Secretary-General seemed to have expressed a similar view with regard to the UN forces’ action in Côte d’Ivoire in 2011.5 2 Daphna Shraga and Ralph Zacklin, ‘The Applicability of International Humanitarian Law to United Nations Peacekeeping Operations: Conceptual, Legal and Practical Issues’, Report to the Symposium on Humanitarian Action and Peacekeeping Operations, 22–24 June 1994, ICRC, Geneva, 2004, pp. 39–48; Daphna Shraga, ‘The Applicability of International Humanitarian Law to Peace Operations, from Rejection to Acceptance’, paper submitted to the 31st Round Table on Current Problems of International Humanitarian Law, International Humanitarian Law, Human Rights and Peace Operations, 4–6 September 2008, International Institute of Humanitarian Law, San Remo, 2009, pp. 82–89. 3 See, for example, the position expressed in 2008 by French Minister of Foreign Affairs Bernard Kouchner before a parliamentary commission. In his opinion, France was not engaged in armed conflict in Afghanistan, because its troops were operating under a UN Security Council resolution with a view to restoring international peace and security in accordance with the UN Charter. See Assemblée Nationale, XIIIe Législature, Compte rendu n°46, Commission de la Défense Nationale et des Forces Armées, mardi 28 août 2008, p. 16. 4 Ola Engdahl, ‘Multinational Peace Operations Forces Involved in Armed Conflict: Who are the Parties?’, in Kjetil Mujezinovic´ Larsen Camilla Gundahl Cooper and Gro Nystuen (eds), Searching for a ‘Principle of Humanity’ in International Humanitarian Law, Cambridge, 2012, p. 259. The author refers to a statement by the Norwegian prime minister to the effect that Norwegian soldiers could not be considered legitimate targets while participating in NATO operations in Libya, because they were on a UN mission. 5 On 4 April 2011, Reuters quoted UN Secretary-General Ban Ki-moon as saying ‘let me emphasise that the ONUCI is not party to the conflict. In line with its Security Council mandate, the mission has taken this action in self-defence and to protect civilians’. A military court in Canada also adopted this position in 1996: see Court Martial Appeal Court of Canada, Her Majesty the Queen v. Private DJ Brocklebank, Court File No. CMAC-383, 2 April 1996, 106, Canadian Criminal Cases, 134 DLR (4th) 377. In this case, the Court did not consider a UN peacekeeping mission to be a party to an armed conflict. However, the Court used a very abstract, old-fashioned interpretation of the term ‘peacekeeping mission’ in order to find that Chapter VI missions can never become a party to an armed conflict. The Court disregarded the fact that the blurring of the distinction between peacekeeping and peace enforcement in contemporary missions means that in some circumstances forces deployed under a Chapter VI mandate can perfectly well be drawn into hostilities. 563 T. Ferraro Recent peace operations have also been accompanied by the development of legal constructs suggesting that the conditions
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