Lt Col Ben Klappe, Asser Institute, The Hague, 7 November 2006

Fighting peacekeepers – applicability of IHL during UN Peace Operations

Surge of UN led PKOs

2 26

3 5

43

0

5

10

15

20

25

30

35

40

45

50

1940s 1950s 1960s 1970s 1980s 1990s to date

Contributions 1993 – 2006 (total)

0

20000

40000

60000

80000

100000

120000

1400001993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2006 (2)

SPECTRUM OF OPERATIONS

Level of Military Effort / Use of Force

OperationalEnviron-ment

Benign

Belligerent

Observation missions

Traditional PK

PeaceEnforcing

(Law of Armed Conflict applies)

MONUC CHAPTER VII

…….Use all means necessary within its capacity .Use all means necessary within its capacity and in the areas where its armed forces are and in the areas where its armed forces are deployed…deployed…

MONUC mandate SC Res 1565 ( 2004) excerpt

(1)(1) to deploy and maintain a presenceto deploy and maintain a presence in key areas of in key areas of potential volatility in order to promote the re-establishment potential volatility in order to promote the re-establishment of confidence, to discourage violenceof confidence, to discourage violence,, in particular by in particular by deterring the use deterring the use or attempted use or attempted use of force to threaten the of force to threaten the political process, and political process, and to allow UN personnel to operate to allow UN personnel to operate freelyfreely, particularly in the Eastern part of the DRC, particularly in the Eastern part of the DRC, , including by the use of cordon and search tactics to including by the use of cordon and search tactics to disrupt the military capability of illegal armed groups disrupt the military capability of illegal armed groups that continue to use violence in those areasthat continue to use violence in those areas;;

(2)(2) to to ensure the protection of civiliansensure the protection of civilians, including , including humanitarian personnel, under imminent threat of physical humanitarian personnel, under imminent threat of physical violenceviolence, , including by the use of cordon and search including by the use of cordon and search tactics against illegal armed groups that continue to use tactics against illegal armed groups that continue to use violence in the Eastern part of the DRCviolence in the Eastern part of the DRC;;

MONUC mandate SC Res 1565 ( 2004) excerpt

(3)(3) to ensure the protection of UN personnel, to ensure the protection of UN personnel, facilities, installations and equipment;facilities, installations and equipment;

(4)(4) to ensure the security and freedom of to ensure the security and freedom of movement of its personnel;movement of its personnel;

MONUC mandate SC Res 1565 ( 2004) excerpt

(6) to monitor the implementation of the measures (6) to monitor the implementation of the measures imposed by […] SC res 1493 (2003) imposed by […] SC res 1493 (2003) including by including by inspecting, as it deems necessary and without notice, inspecting, as it deems necessary and without notice, the cargo of aircraft and of any transport vehicle using the cargo of aircraft and of any transport vehicle using the ports, airfields, military bases and border crossings the ports, airfields, military bases and border crossings in North and South Kivu and in Ituri;in North and South Kivu and in Ituri;

(7) (7) to seize or collectto seize or collect, as appropriate, arms and any related , as appropriate, arms and any related materiel materiel whose whose presence in the territory of the DRC presence in the territory of the DRC violates the measures imposed by violates the measures imposed by SC rSC resolution 1493 esolution 1493 and and dispose of such arms and related materiel as appropriate;dispose of such arms and related materiel as appropriate;

MONUC mandate SC Res 1565 ( 2004) excerpt

11. in support for the Government of National Unity and Transition, to support operations to disarm foreign combatants led by the FARDC, including through measures such as:

• cordon and search operations; • positioning itself, in close cooperation with the

FARDC, to deter or prevent reprisal attacks by foreign elements against the Congolese civilian population;

UN Rules of Engagement

Directives issued by DPKODirectives issued by DPKO

Contain Contain authorisationauthorisation for as well as for as well as limitationslimitations on use of force during on use of force during operationsoperations

EXECUTION OF ROE The conduct of peacekeeping operations is guided by the The conduct of peacekeeping operations is guided by the

Purposes of the UN Charter and relevant principles of Purposes of the UN Charter and relevant principles of international law.international law.

ROE provide direction to commanders at all levels ROE provide direction to commanders at all levels governing the use of force within the Mission Area. They governing the use of force within the Mission Area. They define the degree and the manner in which force may be define the degree and the manner in which force may be applied and are designed to ensure that the application of applied and are designed to ensure that the application of force is controlled and legal. force is controlled and legal.

Military personnel must comply with the international Military personnel must comply with the international legal principles of proportionality, the minimum use of legal principles of proportionality, the minimum use of force and the requirement to minimise the potential for force and the requirement to minimise the potential for collateral damage.collateral damage.

Principles

Use of Minimum ForceUse of Minimum Force Self defenseSelf defense Protect civilians under imminent threat of Protect civilians under imminent threat of

physical violencephysical violence

Protection of civilians

Use of force, up to and including Use of force, up to and including deadly forcedeadly force,,to to protect civiliansprotect civilians,, including including humanitarianhumanitarianworkersworkers,, under under imminent threat of physicalimminent threat of physicalviolenceviolence is authorized. is authorized.

When and where possible, permission to use When and where possible, permission to use force should be sought from the immediate force should be sought from the immediate superior commander.superior commander.

The following prohibitions are to be observed when authorized ROE are being used: (1)

Use of certain weapons and methods of combat under Use of certain weapons and methods of combat under the relevant instruments of international humanitarian the relevant instruments of international humanitarian law, including, in particular, the prohibition on the use law, including, in particular, the prohibition on the use of asphyxiating, poisonous or other gases and biological of asphyxiating, poisonous or other gases and biological methods of warfare; methods of warfare;

bullets which explode, expand or flatten easily in the bullets which explode, expand or flatten easily in the human body; and certain explosive projectiles. human body; and certain explosive projectiles.

The use of certain conventional weapons, such as non-The use of certain conventional weapons, such as non-detectable fragments, anti-personnel mines, booby traps detectable fragments, anti-personnel mines, booby traps and incendiary weapons.and incendiary weapons.

The following prohibitions are to be observed when

authorized ROE are being used: (2) Use of weapons or methods of warfare which may cause Use of weapons or methods of warfare which may cause

superfluous injury or unnecessary suffering, or which are superfluous injury or unnecessary suffering, or which are intended, or may be expected to cause, widespread, long-intended, or may be expected to cause, widespread, long-term and severe damage to the natural environment.term and severe damage to the natural environment.

Use of weapons or methods of combat of a nature to cause Use of weapons or methods of combat of a nature to cause unnecessary suffering.unnecessary suffering.

Attacks on monuments of art, architecture or history, Attacks on monuments of art, architecture or history, archaeological sites, works of art, places of worship and archaeological sites, works of art, places of worship and museums and libraries which constitute the cultural or museums and libraries which constitute the cultural or spiritual heritage of peoples. In its area of operation, the spiritual heritage of peoples. In its area of operation, the UNPKO shall not use such cultural property or their UNPKO shall not use such cultural property or their immediate surroundings for purposes which might expose immediate surroundings for purposes which might expose them to destruction or damage. them to destruction or damage.

The following prohibitions are to be observed when

authorized ROE are being used: (3) Theft, pillage, misappropriation and any act of vandalism Theft, pillage, misappropriation and any act of vandalism

directed against cultural property.directed against cultural property. Use of methods of warfare to attack, destroy, remove or Use of methods of warfare to attack, destroy, remove or

render useless objects indispensable to the survival of the render useless objects indispensable to the survival of the civilian population, such as foodstuff, crops, livestock and civilian population, such as foodstuff, crops, livestock and drinking water installations and supplies.drinking water installations and supplies.

Making installations containing dangerous forces, namely Making installations containing dangerous forces, namely dams, dikes and nuclear electrical generating stations, the dams, dikes and nuclear electrical generating stations, the object of military operations if such operations may cause object of military operations if such operations may cause the release of dangerous forces and consequent severe the release of dangerous forces and consequent severe losses among the civilian population.losses among the civilian population.

Hostile act

An action where the intent is:An action where the intent is:to cause death, bodily harm or to cause death, bodily harm or destruction of designated property.destruction of designated property.

Hostile intent

The threat of imminent use of force, The threat of imminent use of force, which is demonstrated through which is demonstrated through an actionan actionwhich appears to be preparatory to awhich appears to be preparatory to ahostile act.hostile act. Only a reasonable belief in the Only a reasonable belief in thehostile intent is required, before the usehostile intent is required, before the useof force is authorized. of force is authorized.

Detainment for security reasonsApprehend & Detain

Handover to local authorities

In custody of peacekeepers:- record key events and information- transfer to official place of custody- inform about reasons for detainment and rights- inform family - provide access to legal counsel

temporarily

1st choice

as soon as possible

SG Bulletin: Observance by UN Forces of international humanitarian law - August 1999

ApplicabilityApplicability

The fundamental principles and rules of IHL The fundamental principles and rules of IHL set out in the bulletin are applicable to UN set out in the bulletin are applicable to UN forces forces when in situations of armed conflictwhen in situations of armed conflict they are actively engaged therein as they are actively engaged therein as combatants, to the extent and for the combatants, to the extent and for the duration of their engagementduration of their engagement

SG Bulletin: Observance by UN Forces of international humanitarian law - August 1999

Protection of civilian populationProtection of civilian population Means and methods of combatMeans and methods of combat Treatment of civilians and persons ‘hors de Treatment of civilians and persons ‘hors de

combat’combat’ Treatment of detained personsTreatment of detained persons Protection of the wounded, the sick and Protection of the wounded, the sick and

medical and relief personnelmedical and relief personnel

Application of IHL to PSO UN usually not a party to the conflict; UN usually not a party to the conflict;

If UN engaged as a party UN bound by the rules If UN engaged as a party UN bound by the rules of customary international law;of customary international law;

UN not a party to IHL Conventions;UN not a party to IHL Conventions;

Participating states when engaged in armed Participating states when engaged in armed conflict are bound by IHL Conventions to which conflict are bound by IHL Conventions to which they are a party;they are a party;