Applying Additional Protocol Ii of the Geneva Conventions to the United Nations Forces Legal Insights on a Growing Responsibility

journal of international humanitarian legal studies 8 (2017) 234-254 brill.com/ihls

Applying Additional Protocol ii of the Geneva Conventions to the United Nations Forces Legal Insights on a Growing Responsibility

Artem Sergeev University of Hong Kong [email protected]

Abstract

Following the widespread participation of United Nations (un) forces in hostile en- vironments, this article aims to expand the obligations of the un under International Humanitarian Law. The article argues that Additional Protocol ii (ap ii) to the Geneva Conventions can bind un forces, even though the un is not formally a party there- to. The argument is built on three distinct legal issues: the first issue is whether the un’s involvement in a conflict internationalizes a non-international armed conflict; the second issue is the legal nature of the un’s obligations under ap ii, which will be explained through two legal theories of indirect consent; and the third issue is the conformity of un forces to the criteria of an armed group outlined in ap ii. The article concludes that if un forces meet certain conditions, as will be outlined herein, they should be bound by the provisions contained in ap ii.

Keywords un Forces – responsibility – Additional Protocol ii – armed group – non-International Armed Conflict

Introduction

International Humanitarian Law (ihl) is the primary guardian of humane and limited warfare. As forces deployed by the United Nations (un) more frequent- ly engage in hostilities, whether in self-defense during peacekeeping missions

Applying Additional Protocol ii of the Geneva Conventions 235 or through peace enforcement actions, questions as to the applicability of ihl to its personnel have become increasingly compelling.1 At the first glance, the un – as an International Organization (io) – is not a party to any of the Geneva Conventions or its Additional Protocols. Going further, the un Convention on the Privileges and Immunities minimizes, if not nullifies, the chances of successful international prosecution of un personnel.2 On the other hand, many of the rules contained under ihl also form part of customary international law (cil) and, in principle, could be applicable to the un.3 Additionally, several documents, including the un Secretary-General Bulletin and the Draft Model Memorandum of Understanding were issued within the un to expand the application of ihl to the various un peacekeeping operations.4 The latter documents are internal un guidelines governing the conduct of un forces during their field operations. This article will argue that the un is under broader obligations under ihl than currently perceived by certain scholars and the International Committee of the Red Cross (icrc).5 The main hypothesis of the research is that in certain

1 For the purposes of this paper, discussions surrounding un peace enforcement is relevant as it does not rely on the consent of a State and may be conducted through offensive action. The un’s peace enforcement is implemented through the United Nations Security Council autho- rizing the use of force. For more on the recent history on peace enforcement, see J. Boulden, Peace Enforcement: The United Nations Experience in Congo, Somalia, and Bosnia (2001); G.F. Oliver, ‘The Other Side of Peacekeeping: Peace Enforcement and Who Should Do It?’, 8 International Peacekeeping: The Yearbook of International Peace Operations (2002), at 99–117; J. Karlsruda, ‘The un at war: examining the consequences of peace-enforcement mandates for the un peacekeeping operations in the car, the drc and Mali’, 36(1) Third World Quar- terly (2015), at 40–54. 2 Convention on the Privileges and Immunities of the United Nations (1946) 1 unts 15 (entered into force 17 September 1946); see also, Judgment, Mothers of Srebrenica v. the State of the Netherlands, 10/04437, ev/as, Supreme Court of the Netherlands, 13 April 2012. 3 It is not clear whether or not the un is bound by customary international law, Marten Zwanenburg provides “Although the un is not a party to any international humanitarian law treaties, there is wide support in literature for the view that it is bound by customary international law, including customary international humanitarian law.” See M. Zwanenburg, ‘United Nations and International Humanitarian Law’, Max Planck Encyclopedia of Public In- ternational Law, 1675 (2013). The issue further discussed in Section 2.2. of the present article. 4 See un Secretary-General (unsg), Secretary-General’s Bulletin: Observance by United Na- tions Forces of International Humanitarian Law, un Doc. st/sgb/1999/13, 6 August 1999; Re- port of the Special Committee on Peacekeeping Operations and Its Working Group on the 2007 Resumed Session, un Doc. A/61/19 (Pt. iii), 12 June 2007, Annex (Revised Draft Model Memorandum of Understanding) (‘Revised Draft Model mou’). 5 See for example U. Palwankar, ‘Applicability of international humanitarian law to United Na- tions peace-keeping forces’, 294 International Review of the Red Cross (1993).

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236 Sergeev circumstances, Additional Protocol ii to the Geneva Conventions (ap ii), which seeks to protect victims of non-international armed conflicts, binds un forces as a non-State armed group even though, the un is not a party to the aforementioned protocol per se. For the purposes of the article, un forces include both peace enforcement personnel and peacekeeping personnel engaged in military confrontations. The application of ap ii to un forces can have several practical benefits. For example, it could outline clearer rules of conduct during the hostilities in which the un participates. As will be discovered below, at its current state, ihl leaves several substantive legal gaps for un forces. With the clear guidelines, it may be argued that the un will move towards more ihl-friendly operations and will increase its compliance with the standard of the Geneva Conventions. In putting forward the main hypothesis, the article will be divided into three interlinked sections. The first section introduces the current state of ihl applicable to un forces. It will provide a brief overview of the un’s legal personality and its ability to be bound by ihl. Furthermore, and in reference to relevant documents, it will discuss the position of the un and the icrc on the obligations of the un under ihl. Remarks on the application of customary international humanitarian law (cihl) to the un will also be made. The second section will start to explore the applicability of ap ii towards un forces in assessment of the aforementioned hypothesis. The applicability of ap ii is conditioned under three key elements, two of which will be discussed in the second section. The first element is whether or not the un’s involvement internationalizes a non-international armed conflict (niac). The second element is the legal nature of the un’s obligations under ap ii. As the un is not a party to the protocol, the nature of obligations will be argued through two distinct legal theories of indirect consent. The final section will explore the third element of ap ii’s applicability to un forces, namely, the criteria of a non-State armed group. It will contend that ap ii raises legal obligations for un forces if they fulfill all the criteria of a non-State armed group, their conduct reaches the threshold of an armed conflict, and conduct of hostilities takes place on the territory of a State party to ap ii.

1 The un and ihl: Exploring Applicable Law

1.1 The un’s Legal Personality As this article aims to expand the content of legal obligations of the un under ihl, it is necessary to start with an overview of the current state of a legal connection between the un and ihl. The first factor to consider is the legal

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Applying Additional Protocol ii of the Geneva Conventions 237

personality of the un as a pre-condition to hold obligations under international law. This International Court of Justice (icj) addressed this issue in its Repara- tion Advisory Opinion.6 The court examined the question of whether or not the un is, in fact, an international legal person that is entitled to bring an international legal claim.7 The court concluded that the un “was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality”.8 Therefore, it can be prima facie concluded that the un is a subject of international law. Nevertheless, not all subjects of international law are equal in their nature; as such, as the un is an international organization, its legal personality is not equal to the that of a State.9 As was further argued in the icj’s Nuclear Weapons Advisory Opinion, ios do not possess the general competence in international law, and, they are governed by the “principle of specialty”.10 Therefore, it can be asserted that ios have a limited capacity to hold rights and obligations under international law. As was argued by the International Law Commission (ilc), ios are significantly diverse in terms of their powers, functions, and, more importantly, the “primary rules including treaty obligations by which they are bound”.11 The importance of the special legal personality will be elaborated further in Section two, below. Does the special legal personality limit the un’s capacity to hold obligations under ihl? As will be introduced below, throughout the un’s participation in hostilities, the Security Council Mandate, the Rules of Engagement, and a status of force agreements are often considered to be the primary sources of authority.12 However, the latter documents do not fall under the category of

6 See Advisory Opinion, International Court of Justice, Reparation for Injuries Suffered in the Service of the Nations, icj, 11 April 1949. 7 Ibid., para. 52. 8 Ibid., para. 16. 9 Ibid., para. 17. 10 Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, 226 (1996), icj, 8 July 1996, para. 24. 11 ilc Draft articles on the responsibility of international organizations, with commentar- ies, (2015), un Doc. A/66/10, 2015 (Adopted by the International Law Commission at its sixty-third session), para. 7. 12 The primary concern with the rules of engagement is its administrative character. On the contrary to ihl, the rules of engagement are an internal document that does not enjoys international supervision. Hence, the application of the rules can have evident limitation. See M. Faix, ‘Rules of Engagement – Some Basic Questions and Current Issues’, 1 Czech Yearbook of International Law (2010), at 135–136.

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238 Sergeev the primary sources of general international law. It can be asserted that their legal status is similar to internal administrative decrees.13 Hence, they have an inherent limitation of an exclusively internal application that is not attributable to ihl. Accordingly, ihl still plays an essential role in the general conduct of hostilities with the un’s involvement. It can be argued that due to the nature of its goals and duties, the un holds sufficient legal capacity to give rise to obligations under ihl.14 In consider- ation of the authority of the un Security Council to authorize the use of force to maintain the international peace and security, and taking into account the subsequent resolutions exercising the latter, it may be concluded that ihl lies within the un’s legal capacity.15 Furthermore, as will be explored below, the un and the international community have recognized the application of ihl to un forces. The un can thus be described as an international legal person with a special legal personality that is limited in its scope. Considering the nature of the un’s duties and the practice of its operations, it further appears that the organization can be bound by ihl. Accordingly, it is now necessary to explore to what extent the un is bound by ihl. The current legal position of the icrc and the un on what rules of ihl are applicable to un forces will be discussed in the following section.

1.2 The Applicability of ihl: The Position of the icrc and the un The icrc on many occasions has insisted that the un is bound by ihl through various sources.16 Its earliest position was introduced back in 1961, when it argued that since the un is not a party to the Geneva Conventions, its Member States remain primarily responsible for ensuring that contributed forces will obey ihl.17 The argument is based on Article 1 common to the Geneva Common,

13 See Erik Koppe, The Use of Nuclear Weapons and the Protection of the Environment during International Armed Conflict, Bloomsbury Publishing, (2008), p. 238. 14 The maintenance of the international peace and security is one of the main purposes of the un that can be implemented through the use of force. The use of force, in principle, cannot be unlimited and should be conducted with at least certain respect for the ihl norms. See United Nations, Charter of the United Nations, 24 October 1945, 1 unts xvi [hereinafter un Charter], articles 1, 39, and 42. Missions like unosom and monusco were involved in severe hostilities with multiple casualties and lies within ihl concerns. 15 See un Charter, art. 42; sc Res. 84, 7 July 1950, and others, including sc Res. 770, 13 August 1992, sc Res. 787, 16 November 1992, and sc Res. 940, 31 July 1994. 16 Palwankar, Applicability of International Humanitarian Law To United Nations Peace- Keeping Forces, supra note 5. 17 Ibid.

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Applying Additional Protocol ii of the Geneva Conventions 239 which provides that “The High Contracting Parties undertake to r espect and to ensure respect for the present Convention in all circumstances”.18 Additionally, as was argued by the International Law Commission, a State incurs the responsibility for wrongful acts even if such acts conducted through an international organization in order avoid performance of its own obligations.19 Neverthe- less, both arguments do not address the question of the un’s responsibility under ihl as States and ios are two distinct legal persons. Therefore, even if a State is bound by ihl, the un is still coming up short on the applicable ihl obligations. Furthermore, there have been several occasions where States have not been found responsible for the conduct of their forces under the un’s command. The responsibility of an international legal person for the conduct of various forces is linked to the attribution of conduct. Meanwhile, the attribution of conduct is linked to the effective control over military forces. In this respect, it was argued that States that contributed troops to the un did not fulfill the criteria of ‘effective control’ to be found responsible under ihl and international human rights law.20 In its subsequent statements, the icrc has become more demanding in its position. In 1965, in resolution xxv of 20th International Conference of the Red Cross, the icrc recommended adopting arrangements for the forces under the un’s disposal to comply with the Geneva Conventions and to ensure their implementation21 Moreover, in the last couple of decades, the icrc has held the opinion that the un is bound by the fundamental principles of the Geneva Conventions and by cihl.22

18 Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) (1949) 75 unts 287 (entered into force 21 October 1950), art. 1. 19 ilc Draft Articles on the Responsibility of International Organizations, Yearbook of the International Law Commission (2011), vol. ii, Part Two, art. 61. 20 Decision on Admissibility, Behrami and Behrami v. France, Application No. 71412/01 and Saramati v. France, Germany and Norway, Application No. 78166/01, ECtHR, Grand Chamber, 31 May 2007; See also Mothers of Srebrenica case, supra note 2. A new decision by Dutch Courts held that a part of Dutchbat forces was not under the effective control of the un and, hence, the Netherlands was found responsible for their conduct, see Stichting Mothers Of Srebrenica vs the Netherlands, the United Nations, Case Number/C/09/295247/ha za 07–2973, The Hague District Court, July 2016, para. 4. 160. 21 icrc, ‘Application of the Geneva Conventions by the United Nations Emergency Forces’, 20th International Conference of the Red Cross, Resolution xxv, 1965, paras. 1 and 3. 22 Palwankar, supra note 5; D. Schindler, ‘United Nations forces and international humanitarian law’ in J. Pictet and C. Swinarski (eds.). Studies and essays in international humanitarian law and Red Cross principles in honour of Jean Pictet, (1984), at 526.

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As to the position of the un itself, in short, it has never tried to directly re- fute or disobey ihl. However, a certain lacuna in the application of ihl to the un still exists, as the un documents that aim to address the issue are neither clear and precise, nor comprehensive.23 One of the most notable documents is the un Secretary-General’s Bulletin, entitled “Observance by United Nations forces of international humanitarian law”.24 The Bulletin is an administrative document that appears to have legally binding power within the internal un system.25 The prospects of its external application outside of the un system are unclear under international law. Herein, it provides that in relation to peace enforcement operations, “The fundamental principles and rules of international humanitarian law 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”.26 The fundamental rules and principles are developed further throughout the bulletin and include: the prohibition of indiscriminate attack, weapons that can cause superfluous injury, among others.27 Nevertheless, the list of rules that was secured in the bulletin was criticized for being rather limited and somewhat not reflective towards the international ihl standard.28 For example, the bulletin itself includes only 10 sections that correspond to the very few ihl concepts.29 Out of 10 sections, only five contain substantive rules of ihl.30 As for the application, the bulletin applies to cases of an armed conflict, with no explicit distinctions between international and non-international armed conflicts.31 Moreover, the bulletin applies only when the forces are “actively engaged therein as combatants” and “for the duration of their engagement.”32 It is necessary to stress certain limitation of the bulletin, as, in the case of peace enforcement operations, for example, it does not apply throughout an

23 P.F. Chapman, ‘Ensuring Respect: United Nations Compliance with International Hu- manitarian Law’, 17(1) Human Rights Brief (2009), at 3, https://www.wcl.american.edu/ hrbrief/17/1chapman.pdf (last accessed 29 September 2015). 24 unsg Bulletin, supra note 4. 25 See Koppe, the use of nuclear weapons, supra note 13. 26 Ibid. 27 Ibid., paras. 5.1–6.9. 28 Zwanenburg, supra note 3, para. 11; D. Shraga, ‘The applicability of the law of armed conflict to peacekeeping operations’, in R. Liivoja and T. McCormack (eds.), Routledge Hand- book of the Law of Armed Conflict (2016), at 422–423. 29 unsg Bulletin, supra note 4. 30 Ibid., paras. 5–9. 31 Ibid., para. 1.1. 32 Ibid.

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Applying Additional Protocol ii of the Geneva Conventions 241 entire conflict, but rather in individual firefights that reach a certain threshold of engagement.33 Due to those limitations, it is possible to argue that certain guarantees afforded under ihl, such as humane treatment of prisoners, are not applicable to peace enforcers under the bulletin as its applies only during an active combat. In the case of peacekeeping operations on the other hand, the application of ihl is limited to the duration of such engagement alone. After such engagement, peacekeepers should be treated as civilians under ihl.34 However, in this case, ihl will apply externally without a reference to the bulletin as the bulletin have the mentioned limitation of an engagement in a combat. Following this, it is important to clarify that un forces engaged in peace enforcement operations are still generally considered as combatants and thus bound by cihl and the relevant Rules of Engagement.35 This opens up another rudimental point of the section. It can be argued that cihl applies to un forces. The icrc’s study provided an extensive list of cihl that consists of 161 rules.36 The list of rules widely reflects the major parts of the Geneva Conventions. Accordingly, it is necessary to clarify its application to the un. The icrc has often stressed that the un is bound by cihl.37 Going forward, among academics, it was widely proposed that the un is bound by general cil, especially in relation to human rights law.38 As was argued by Dannenbaum, “it surely is a consequence of the un’s legal personality at international law that it is bound by customary international law”.39 Nevertheless, this position can be questioned in light of several arguments. First, the un is not a State, and, as such, it does not participate per se in the process of the formation of cil.40 International law is a product of explicit

33 Ibid. 34 J.-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law (Vol. i), (2005), rule 33. 35 See missions like unosom and monusco. See Mohamad Ghazi Janaby, The Legal Regime Applicable to Private Military and Security Company Personnel in Armed Conflicts, Springer, (2016), p. 116. Moreover, sg Bulletin outlined that un forces can be engaged in a conflict as combatants. See sg Bulletin, para. 1.1., supra note 4. 36 Henckaerts, Doswald-Beck, Customary International Humanitarian Law, supra note 34. 37 Palwankar, supra note 5. 38 See for example, T. Dannenbaum, ‘Translating the Standard of Effective Control into a System of Effective Accountability’, 51 Harvard International Law Journal 301 (2010), at 323–327. 39 Ibid., at 323. 40 On the contrary, State activities within the un can contribute to the formation of evi- dence of customary international law. However, it is still State activities within ios and

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242 Sergeev or implicit consent.41 Tacit consent to abide by cil is derived from the contributing actions of international actors, namely, States. It would follow that if the un does not participate in the creation of cil, then arguably it does not express its tacit consent to be bound by cil.42 Without the consent, the question of the application of cil to the un becomes less apparent. Additionally, as discussed above, as an io, the un is limited by the principle of specialty. It can be asserted that the limited legal personality can affect the set of rules that could be binding on a legal person.43 If so, this effect can go contrary to the application of cihl to the un. An analogy can be made to ultra vires acts. As the rights of an organization are limited by the nature of its personality, so the scope of obligations of an organization can be limited by the nature of its personality. Therefore, if cil or cihl go beyond the limits of the un’s legal personality, they can be inapplicable due to the principle of specialty. This argument can be supported by the International Law Commission (ilc) and its statement that the nature of ios’ rights and obligations can vary significantly.44 The factual effects of this assertion are less clear as there is very little practice that can be found around this argument. Lastly, in the Asylum case, the icj ruled that if a State is not a party to a treaty, the latter can be considered as an objection to a crystallizing customary rule, and a State in question will not be bound by such emerging rule.45 Even though the un is not a party to the Geneva conventions, it is not sensible to argue that the un is a persistent objector to certain cihl rules. Nevertheless, considering the arguments above, in conjunction, it can be concluded that the un has a wide leeway to argue that certain fundamental ihl standards are not applicable to its forces. First, the documents produced by the un Secretary General addressed the issue in a limited manner with a narrowed scope of application. Second, there

not ios contribution per se. See Legality of the Threat or Use of Nuclear Weapons Advi- sory Opinion, supra note 11, para. 70. 41 S.S. Lotus (France v. Turkey) (1927), pcij (ser. A), 7 September 1927, para. 44. 42 This article will not go into this question in depth, as it is not the main research question. Nevertheless, it is widely supported that newly emerged States are bound by cil even without their tacit consent. It is perhaps can be the un’s case, but cihl crystallized during the un’s existence. See generally S. Estreicher, ‘A Post-Formation Right of Withdrawal from Customary International Law?: Some Cautionary Notes’, New York University Public Law and Legal Theory Working Papers, Paper 173, (2010). 43 See Legality of the Threat or Use of Nuclear Weapons Advisory Opinion, supra note 10; ilc Draft Articles, para. 7, supra note 11. 44 ilc Draft articles, para. 7, see supra note 11. 45 Judgment, Asylum Case (Colombia v. Peru) (1950), icj, 20 November 1950, at 278.

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Applying Additional Protocol ii of the Geneva Conventions 243 is no guiding standard of the applicable cihl to the un. Lastly, the un is not a party to any of the Geneva Conventions. Hence, the current state of the applicable ihl in regards to the un forces remains ambiguous and somewhat unsatisfying. Following this, it can be argued that the application of ap ii to the un can help address the above-mentioned gaps. The next chapter will provide an analysis of ap ii and elaborate on whether or not the un can be bound by the second protocol.

2 The Geneva Conventions Additional Protocol ii: The Scope and the Requirements of Application

2.1 un Forces: International or Non-International Armed Conflict Applies? ap ii provides a framework for the application of ihl in non-international armed conflicts, where no State vs. State hostilities are involved.46 As many un operations are conducted within a territory of a single State, with no direct attributable involvement of foreign State forces, ap ii appears to be the most relevant and convenient framework for the possible application to the un. Article 1 ap ii provides its material scope of application:

This Protocol, […] shall apply to all armed conflicts which are not covered by Article 1 of the […] (Protocol i) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.47

From this definition, a list of criteria for the application of ap ii can be derived: (1) the type of a conflict is a non-international armed conflict (State vs. non-State force; non-State force vs. non-State force, States vs. non-State force) (2) Confined to a territory of a high contracting party of ap ii; and (3) Armed groups that are conducting hostilities are: (a) under responsible command;

46 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Pro- tection of Victims of Non-International Armed Conflicts (Protocol ii) (1977) 1125 unts 609 (entered into force 7 December 1978) [hereinafter ap ii]. 47 ap ii, art. 1.

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(b) exercise control over a part of territory; (c) carry out sustained and concerted military operations; and (d) implement this protocol. The first two elements of the definition will be addressed in this section and the third requirement in Section three of the present article. As articulated above, ap ii applies exclusively in the course of non- international armed conflicts (niacs).48 Therefore, using the criteria outlined in ap ii, it is necessary to determine whether there is a niac or an international armed conflict (iac), and whether the presence of the un can turn a niac to an iac in order to determine what rules are applicable. The icrc considers that an “International armed conflicts exist whenever there is resort to armed force between two or more States”.49 The proposed definition was generally supported by the case law of international tribunals and in the academic literature. For example, the icty held that “an armed conflict exists whenever there is a resort to armed force between States”.50 The essential point was highlighted by Gasser and referred to by the icrc, “any use of armed force by one State against the territory of another, triggers the applicability of the Geneva Conventions between the two States”.51 Accord- ingly, it can be concluded that an iac concerned with a conflict of one State using the force against another State. What about the un, however? It has been argued that the un is an international force and its involvement in a conflict would automatically make it international.52 Nevertheless, a contrary position appears to be more defendable considering a different meaning of the internationalization in terms of ihl.53

48 ap ii, art. 1. 49 icrc, ‘How is the Term “Armed Conflict” Defined in International Humanitarian Law?’, Opinion Paper (March 2008), at 5, https://www.icrc.org/eng/assets/files/other/opinion -paper-armed-conflict.pdf (last accessed 25 September 2015). 50 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction The Prosecutor v. Dusko Tadić, icty, Appeals Chamber, 2 October 1995, para. 70. 51 H.P. Gasser, ‘International Humanitarian Law: an Introduction’, in H. Haug (ed.), Human- ity for All: the International Red Cross and Red Crescent Movement (1993), at 510–511; See concurring definitions in Y. Dinstein, The Conduct of Hostilities Under the Law of Interna- tional Armed Conflict (2004), at 2–3. 52 Chapman, supra note 23, at 5.; See also, M. Odello and R. Piotrowicz, International Mili- tary Missions and International Law (2011), at 64; An international armed conflict will not trigger the application of ap ii and must be conducted in terms of the Geneva Conven- tions and the Additional Protocol i, if applicable. 53 See generally G. Porretto, G. and S. Vité, ‘The Application of International Humanitarian Law and Human Rights Law To International Organizations’, Geneva University Centre for International Humanitarian Law, Research Paper Series (1) (2006), at 37; M.C. Zwanen- burg, Accountability Of Peace Support Operations (2005), at 184. The aforementioned

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Applying Additional Protocol ii of the Geneva Conventions 245

As such, this article posits that for several reasons, the un’s involvement in a conflict does not automatically make it an iac. The first reason is that an iac is generally understood as a conflict between two sovereign territories. Referring back to Gasser’s argument, a sense of internationalization comes from a fact that a conflict involves territories of two different States.54 One State can move into another State and then the latter State can strike back and/or occupy the territory of the original invader. The un per se does not have a sovereign territory.55 There is no possibility for a State to breach the territorial integrity of the un, as the un simply does not have one. A conflict between the un and a State can be held only within a territory of the latter with no actual international involvement of any other territories. Several additional remarks will be made in regards to the territory. The definition in ap ii provides that a niac is a conflict that takes place within a territory of a High Contracting Party.56 However, it does not mean that several States cannot be engaged in hostilities against a single armed group. For example, Iraq, Syria, and the us-led coalition are engaged in hostilities with isis.57 This conflict involves the participation of several States, but it is still a niac as there is no direct confrontation of a State against another State.58 Furthermore, it has been argued that a niac does not relate to governments’ involvement since a conflict between several armed groups within a State party can also be classified as a niac.59 Accordingly, as far as there is no confrontation between States and their sovereign territories, the un’s involvement will not turn a niac into an iac.

authors consider that a niac will apply in cases of the un vs. non-State rebel groups. Nevertheless, the below provided argument is more in favor of the general application of a niac even in cases of the un vs. State forces. 54 See Gasser, International Humanitarian Law, pp. 510–511, supra note 52. 55 The territory is an attribute of a State according to the Montevideo Convention. The un can have a territory that is temporary given by States to perform its functions, as for example the un headquarters agreement. However, it is not the un’s territory in the sense of international law. See Agreement Between the United Nations and the United States Regarding the Headquarters of the United Nations, signed on 26 June 1947, and approved by the General Assembly on 31 October 1947, http://avalon.law.yale.edu/20th_century/ decad036.asp (last accessed 29 September 2015). 56 ap ii, art. 1. 57 See bbc News, Islamic State And The Crisis In Iraq And Syria In Maps’, 21 September 2016, http://www.bbc.com/news/world-middle-east-27838034, (last accessed 06 October 2016). 58 See icrc Opinion Paper (2008), supra note 50; Terry D. Gill, ‘Classifying the Conflict in Syria’, 92 Int’l L. Stud. 353 (2016), pp. 379–380. 59 See Gasser, supra note 52, p. 555; See also icrc, The Law of Armed Conflict: Non- International Armed Conflict (2002), at 2, https://www.icrc.org/eng/assets/files/other/ law10_final.pdf (last accessed 1 July 2016).

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246 Sergeev

The second reason goes back to the international legal personality of the un. As was argued above, the un does not possess the general competence and yet it does have a separate legal personality. Furthermore, un forces consist of armed personnel given by contributing States. The forces under the un’s effective control are the un forces in the sense of international responsibility and the attribution of conduct.60 Accordingly, when the un deploys a mission, they send un forces and not the forces of a Member State per se.61 The un forces are not the same as State forces because the un is not a State and, as was mentioned, the un has a separate legal personality. Hence, when State forces are attributed to the un, they have a status of un forces. Therefore, the un’s involvement does not mean involvement of any other State in the sense of the Geneva Conventions. Consequently, the un’s involvement does not trigger an iac as there is no resort to force between sovereign States. In light of the aforementioned arguments, it can be argued that the participation of the un in a conflict can fall within the scope of a niac and, consequently, the application of ap ii. The reached conclusion will produce several legal consequences for un forces. The first is that it will be different to identify the set of rules under cihl applicable to the un. If the un’s presence is considered in terms of an niac, the norms of cihl for niacs will be applicable to un forces. There is a significant distinction between the cihl rules for niacs and iacs, and the coverage for iacs appears to be more comprehensive.62 Accordingly, the argued framework will limit the applicable law under cihl on the un.63 The second point goes to the attribution of conduct, and, the consequent status of a conflict. As mentioned above, un forces consist of the personnel contributed by Member States. A situation in which the un has lost its effective control over the contributed State forces, in principle, they are no longer considered as un forces but as State forces due to the attribution of conduct.64 Accordingly, since the effective control is a key element of the attribution of

60 ilc Draft Articles on Responsibility of ios, supra note 19, art. 7. 61 Ibid.; see also, Judgment, Al-Jedda v. United Kingdom, ECtHR, 7 July 2011; Behrami and Saramati cases, supra note 20. 62 See icrc, Customary International Humanitarian Law Study, supra note 34. 63 This is so, if we do not consider arguments provided above against the comprehensive application of cil to the un. 64 See Decision as to the Admissibility, Behrami and Behrami v. France and Saramati v. France, Germany and Norway, Application No. 78166/01, European Court of Human Rights, May 2007, para. 23; ilc, Draft Articles on responsibility of international organizations, article 7.

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Applying Additional Protocol ii of the Geneva Conventions 247 conduct, a State becomes responsible for the conduct of its forces.65 In such a case, a niac could turn into an iac as another State actor would become involved. Therefore, it is possible to conclude that the deployment of un forces will not automatically turn a niac into an iac. In most cases, as far as there is no other States involved, un forces will operate within the niac’s framework. Ac- cordingly, this raises the second question on the principal capacity of the un to be bound by ap ii.

2.2 Whether or Not the un Can Hold Obligations under the Geneva ap ii? The main scope of ap ii lies in its application towards non-State armed groups. Generally, the obligations towards armed non-State actors raise an array of issues in different aspects of international law. Such issues can vary from the general expression of consent to be bound, leading to the difficulties in the enforcement of international obligations. The first issue is that a pre-condition of an international obligation is ex- pressed or implied consent.66 It can be argued that armed groups in niacs rarely express their consent to be bound by ihl or by ap ii, specifically.67 Fur- thermore, their international legal personality and the capacity to express consent are far from obvious. Nevertheless, their obligations under ap ii were mainly explained by the fact that their activities are held within the territory of State party to a ap ii.68 Ryngaert further explains the argument of the so-called “principle of legislativ e

65 ilc Draft Articles on Responsibility of ios, supra note 19, art. 7; See also ilc commentary, supra note 11, paras. 6–16. 66 See J.I. Charney, ‘Universal International Law’, 87 American Journal of International Law (1993), at 541. 67 The armed groups such as, for instance, isis violates International Humanitarian Law on various occasions. However, in theory, groups that are seeking recognition can consent to ihl to increase their legitimacy. 68 C. Ryngaert, ‘Non-State Actors and International Humanitarian Law’, ku Leuven, Institute for International Law, Working Paper (2008), https://www.law.kuleuven.be/iir/nl/onder- zoek/wp/WP146e.pdf (last accessed 25 September 2015); ‘Empowered Groups, Tested Laws, and Policy Options: The Challenges of Transnational and Non-State Armed Groups’, Report on an Interdisciplinary Seminar on Transitional and Non-State Armed Groups, Program on Humanitarian Policy and Conflict Research of Harvard University and Gradu- ate Institute of International Studies, Geneva (2007), at. 32, http://www.hpcrresearch.org/ sites/default/files/publications/Report_Empowered_Groups_Nov2007.pdf (last accessed 12 September 2016).

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248 Sergeev jurisdiction” as “the agreements which a State enters into are automatically binding on all (non-State) actors within its jurisdiction”.69 Accordingly, this theory waives the need for a further debate over the legal personality of non-State actors in the context of ap ii. Following this principle, non-State entities will be bound by international law as far as they are under a State’s jurisdiction. A qualification of a non-State entity as an armed group can further strengthen the argument as armed groups have a special legal status under international law. The icrc and several States further supported the proposed theory during the Diplomatic Conference of 1949, as well as in their subsequent practice.70 As the icrc explained, the agreements of States not only bind their governments, but also other established bodies and private individuals within a State.71 A parallel can be drawn with the international human rights treaties that are en- forced by governments and, in principle, are binding on individuals as well.72 Accordingly, the theory is to be applied to all entities within a State’s jurisdiction. Moreover, the same logic can be applied to the un as it can also fall within the States’ jurisdiction. The un Convention on Privileges and Im- munities of the United Nations provides immunity from “every form of legal process”.73 This means that the un is immune from any form of a legal prosecution or an administrative process within a State territory.74 However, this does not mean that State laws do not apply to the un. On the contrary, the un is still bound by domestic laws and operates within the State jurisdiction. One example is the un Headquarters Agreement with the u.s. Government.75 Ac- cording to the article iii of the agreement, the federal and local laws of the u.s.

69 Ryngaert, supra note 69, at 5; See also, S. Sivakumaran, ‘Binding Armed Opposition Groups’, 55(2) International and Comparative Law Quarterly (2006), at 369–394. The principle has been assailed by A. Cassese, ‘The Status of Rebels under the 1977 Geneva Protocol on Non-International Armed Conflicts’, 30 International and Comparative Law Quarterly (1981), at 416–429. 70 D. Murray, ‘How International Humanitarian Law Treaties Bind Non-State Armed Groups’, Journal of Conflict Security Law (2014), at 122–123. 71 Ibid. 72 See A. Clapham, Human Rights Obligations of Non-State Actors (2006); P. Alston, Non-state Actors and Human Rights (2005). 73 Convention on the Privileges and Immunities of the United Nations, 13 February 1946, art. ii. 74 See P.C. Szasz and T. Ingadottir, ‘The un and the icc: The Immunity of the un and Its Of- ficials’, 14 Leiden Journal of International Law (2001), at 867–885.; See also, Behrami and Saramati cases, supra note 20; and Mothers of Srebrenica case, supra note 2. 75 un Headquarters Agreement, article iii, supra note 56.

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Applying Additional Protocol ii of the Geneva Conventions 249 apply to the un headquarters.76 Therefore, it is possible to conclude that un forces acting in a State fall within the jurisdiction of the latter. Consequently, they must observe the obligations imposed by ap ii in a virtue of the “principle of legislative jurisdiction” as a State in question has accepted ap ii obligations within its territory.77 Another possible explanation was proposed by Cassese, who argued that ap ii can bind armed groups because treaties can establish obligations to third parties through article 35 of the 1969 Vienna Convention on the Law of Treaties (vclt).78 A similar provision can be found in 1986 Vienna Convention on the Law of Treaties for International Organizations (vcltio). Article 35 vcltio provides that:

An obligation arises for […] a third organization from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State or the third organization expressly accepts that obligation in writing.79

Accordingly, ap ii can be binding on the un if the organization accepts the obligations under it in a written form. The un did not expressly accept the obligations under ap ii. However, it is relatively easy to trace down the un’s written commitment to observe “the principles and spirit” of the Geneva Con- ventions.80 Accordingly, the content of the principles and spirit can include acceptance of the fundamental standards under ap ii. Furthermore, one of the un’s purposes is to “promote and encourage respect for Human Rights”.81 ihl and international human rights law are not the same branches of law. Nevertheless, it is possible to argue that breaches of ihl as lex specialis to international human rights law, means breaches of the

76 Ibid., art. iii, Section 7(b). 77 It is essential to remember that if a State in question did not ratify ap ii, the non-State actors and un forces are not be bound by the protocol. They will fall within the “principle of legislative jurisdiction” but ap ii would have no affect on them in the absence of a State’s consent to be bound by the protocol. See on consent supra note 37. 78 Ryngaert, supra note 69, at 7; Cassese, supra note 70, at 423–429. 79 Vienna Convention on the Law of Treaties between States and International Organiza- tions or between International Organizations (1986), art. 35. 80 See unga, Model Agreement between the United Nations and Member States Contrib- uting Personnel and Equipment to United Nations Peace-keeping Operations (‘Model Agreement’), A/46/185, 1991; See also Regulations for the un forces in the Democratic Re- public of Congo (Reference code: S-0875-0004-06-00001), Cyprus and others. 81 un Charter, art. 1.

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250 Sergeev lex generalis human rights obligations as well.82 Hence, if the un’s actions are not in compliance with ihl, they are also not in compliance with international human rights law. Therefore, if the un breaches ihl, arguably, it breaches its own written purpose of promoting human rights under article 1 of the un Charter. In the light of the above mentioned, it is possible to imagine at least a partial commitment of the un to comply with ap ii. Furthermore, a lenient interpre- tation of the un’s ihl commitments and the un Charter, in principle, can also support Cassese’s argument. Accordingly, there are several ways to explain how the un can be bound by ap ii. The principle of legislative jurisdiction provides a more concrete explanation of the un’s obligations under ap ii as a result of the un’s presence under the territorial jurisdiction of a State. Additionally, an argument under article 35 vclt io can be made to explain the application of ap ii as a matter of a written consent. Therefore, the un can participate in a niac and can hold obligations under ap ii. As such, it is necessary to discuss the last ingredient of the applicability of ap ii, the capacity of un forces to fulfill the criteria of an armed group.

3 The un Forces as an Armed Group under International Humanitarian Law

This section will explore the criteria of an armed group under ap ii and see whether they could apply to un forces. The main requirements for a group to be considered as an armed group can be derived from article 1 of ap ii and further illustrated through the icrc’s definition of a niac.83 This article will consider the above-mentioned question using the definition of the icrc as it provides a broader framework for the assessment. According to the icrc:

Non-international armed conflicts are protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State [party to the Geneva Conventions]. The armed confrontation must

82 ihl is not always lex specialis to international human rights law, a case-by-case assessment is generally required. Moreover, international refugee law can also apply as both lex specialis or lex generalis. See, however, Advisory Opinion, Advisory Opinion Concern- ing Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004), icj, 9 July 2004, para. 106. 83 ap ii, art. 1; icrc Opinion Paper (2008), supra note 50.

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Applying Additional Protocol ii of the Geneva Conventions 251

reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organization.84

Accordingly, two main requirements for the application of ap ii can be derived: the intensity of a conflict and a minimum of organization. The level of intensity is a threshold of the military confrontations that should be met by opposing forces in order to constitute an niac. If this threshold is not met, ap ii will not apply and the confrontation will instead likely be classified within the concept of “internal disturbances” and hence not covered by ihl.85 The intensity criterion was addressed in detail in the jurisprudence of the icty. As such, indicators of intensity can include, among others, “increase in armed clashes”, “the spread of clashes over the territory”, “mobilization of armed forces”, “attention from the Security Council”, “types of weapons were used”, “quan- tity of participants”, and “occupation of territory”.86 These indicators should be assessed in conjunction with each other in order to reach a conclusion on a case-by-case basis of whether the threshold of a niac has been met. Generally, it can be concluded that it is within the un’s capacity to fulfill the requirement of intensity based on the amount of forces at the un’s disposal and their military capacity.87 Furthermore, there are several examples of missions such as monusco or unosom where the un was engaged in intense military activities.88 Accordingly, the un possesses the principal capacity to engage in a conflict with sufficient intensity. Two types of situations involving the un can be foreseen. The first is the un’s intervention in a situation of an already ongoing niac, such as the relatively recent monusco Intervention Brigade, with a mandate to neutralize armed groups in the Democratic Repub- lic of Congo (drc).89 Interestingly, the situation in the drc was considered as the first actual warfare conducted by the un due to the significant intensity

84 icrc Opinion Paper (2008), ibid., at 5; See also, S. Sivakumaran, The Law of Non- International Armed Conflict (2012). 85 ap ii, art. 1(2). 86 Judgment, Prosecutor v. Boškoski and Tarčulovski, icty, Trial Chamber, 10 July 2008, para. 177. 87 More that 90,000 troops are currently at the un disposal, see http://www.un.org/en/ peacekeeping/resources/statistics/factsheet.shtml (last accessed 29 September 2015). 88 See F.E. Morgan et al. (eds.), Dangerous Thresholds: Managing Escalation in the 21st Cen- tury, Rand Corporation (2008); sc Res. 2180, 14 October 2014; sc Res. 1244, 10 June 1999. 89 D. Whittle, ‘Peacekeeping In Conflict: The Intervention Brigade, Monusco, and the Ap- plication of International Humanitarian Law to United Nations Forces’, 46 Georgetown Journal of International Law (2015), at 837.

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252 Sergeev of combat and the amount of troops involved.90 The second is the existence of a niac due to the un’s interference. For example, the un’s intervention in a State leads to hostilities between the un forces (Armed Group A) and non- State armed forces/government forces (Armed Group B). The second criterion is the level of organization of an armed group. This criterion directly corresponds to article 1 ap ii, which provides that for the purposes of the convention, armed group should “be under responsible command”, “exercise control over a part of territory”, “enable to carry out sustained and concerted military operations” and “implement this protocol”.91 Therefore, to be bound by ap ii as an armed group, un forces should fulfill all four of the above-mentioned criteria. The “responsible command” criterion was elaborated by the icrc as a requirement of at least a certain degree of organization to sustain armed groups activities and to enforce discipline.92 On the contrary to rebels groups or liberation movements, un forces consist of professionals that were contributed by States.93 Accordingly, the level of organization at least in general practice should be sufficient to meet the criterion of “responsible command”. The second criterion is a control over a part of a territory. A partial control over a territory does not require control over a substantial part of the territory as this proposal was rejected during the drafting of ap ii.94 The icrc connects the control with the capacity to sustain military operations and certain stability of such control at least in a limited area.95 un forces showed that they, in fact, could take effective control over a territory on a variety of occasions. For instance, un forces consistently present within the territory of several States such as Haiti, and have established a temporary administra- tion in Kosovo.96 In principle, the capacity of un forces to occupy a territory

90 D. Miller, ‘The un prepares to go to war for the first time, with a 3000-strong task force sent to fight rebels in Congo’, Daily Mail Online, 14 June 2013, http://www.dailymail.co.uk/ news/article-2341554/The-UN-prepares-to-war-time-3-000-strong-task-force-sent-fight -rebels-Congo.html (last accessed 29 September 2015). 91 ap ii, art. 1. 92 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol ii), 8 June 1977: Commentary, para. 4463; See also, Y. Dinstein, Non-International Armed Conflicts in Inter- national Law (2014), at 41. 93 United Nations Peacekeeping, Troop and Police Contributors Data, available at: http:// www.un.org/en/peacekeeping/resources/statistics/contributors.shtml (last accessed 29 September 2015). 94 ap ii Commentary, supra note 93, para. 4465. 95 Ibid., paras. 4466, 4467. 96 See sc Res. 2180 (2014); sc Res. 1244 (1999).

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Applying Additional Protocol ii of the Geneva Conventions 253 is evident as the current count of the military personnel at the un disposal is more than 90,000 troops.97 The third criterion can be divided into two elements: time (sustained) and organization (concerted).98 An armed group should be engaged in a conflict of at least certain continuity, and, conduct its operations with a certain level of organization.99 As was outlined above, in the case of the un, the criterion of the organization generally should be satisfied. On the other hand, the time criterion might not be fulfilled. For example, in the case of robust peacekeeping the force is used at the very tactical level and, therefore, it might not reach the required level of continuity. Consequently, this could block the application of ap ii.100 un peace enforcement operation presents a different scenario. They do not require the consent of parties, and, are conducted through an authorization of the use of force by the Security Council.101 Peace enforcement can easily fall under the time criterion as the force used in a broader manner.102 For example, the unosom forces were involved in a continuous conflict that involved the use of heavy weapons such as attack helicopters and tanks.103 Such degree of continuity and intensity fits within the scope of ap ii. The last requirement is the “ability to implement the Protocol”.104 The ability to implement the protocol flows from the fulfillment of the above-mentioned criteria. Hence, if the un forces are under responsible command, exercise control over a part of a territory, and are able to sustain military operation, they arguably have the capacity to implement the protocol. In principal, considering the Secretary General’s Bulletin, other un commitments to ihl, and military and financial capacities of the un, this requirement should not be a significant obstacle for the un. One can argue contrary referring to a number of international incidents such as Srebrenica, Rwanda, and Haiti.105 Nevertheless, the negative practices do not nullify the un’s principal capacity to implement the protocol and fulfill other criteria.

97 Statistic available at: http://www.un.org/en/peacekeeping/resources/statistics/factsheet .shtml (last accessed 29 September 2015). 98 According to the icrc position. See Protocol ii, Commentary, para. 4469, supra note 93, see also F. Bouchet-Saulnier, The Practical Guide to Humanitarian Law (2013), at 427. 99 See icrc, para. 4469, ap ii Commentary, supra note 100. 100 un dpko, United Nations Peacekeeping Operations: Principles and Guidelines (2008), at 34. 101 Ibid. 102 Ibid., at 34–35. 103 Zwanenburg, supra note 3. 104 ap ii, art. 1. 105 One can refer to the situations in Srebrenica, Rwanda and Haiti.

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254 Sergeev

Accordingly, it can be concluded that un forces during the course of their operations possess the capacity to fulfill the requirements of a non-State armed group. Accordingly, if un forces fulfill the requirements of a non-State armed group and engage in an niac within a territory of a State party to ap ii, they should be bound by the obligations under ap ii.

Conclusion: The un, ihl, and Growing Responsibility

Following more frequent accusations of un forces with regard to the perpetra- tion of various crimes, including torture, human trafficking, sexual misconduct, and targeting of civilians, this research aims to expand the legal obligations of the un under ihl.106 It was proposed that Additional Protocol ii to the Ge- neva Conventions should apply to un forces when the certain criteria are met. First, it was argued that the un’s involvement does not turn a niac into an iac simply due to the legal nature of the un and its forces. Second, two theories were posited to explain why ap ii is applicable to the un even though the organization is not a party to the protocol. The “principle of legislative jurisdiction” and Cassese’s theory based on the vclt were presented to argue that un forces are bound by ap ii in the course of their operations on the territories of State parties to ap ii. Third, the requirements of intensity and a minimum of organization were set out as the conditions for the application of ap ii. It was argued that un forces in the course of their operations could easily meet the presented conditions. Accordingly, if all of the above-mentioned criteria are met, un forces should be bound by ap ii. The proposed approach to the application of ap ii is important for several reasons. First, ap ii can help clarify the rules of conduct during the hostilities for un forces; second, it can increase the level of the un’s compliance with the “hard part” of ihl; and finally, the expan- sion of international obligations can move the un towards more ihl-friendly operations and practices.

106 Chapman, supra note 23, at. 3; See also, B.D. Tittemore, ‘Belligerents in Blue Helmets’, 33 Stanford. Journal of International Law 61 (1997), at 88–89; V. Kent, ‘Protecting Civilians from un peacekeepers and Humanitarian Workers: Sexual Exploitation and Abuse’, in C. Aoi, C. de Cooning, and R. Thakur (eds.) The Unintended Consequences of Peacekeeping Operations (2007), at 44–45.

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