Peace forces at war: implications under international humanitarian law.

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This panel was convened at 12:45 pm, Thursday, April 10, by its moderator, Bruce Oswald of Melbourne Law School, who introduced the panelists: Tristan Ferraro of the International Committee of the Red Cross; Johan Heyns of the Office of Military Affairs, Department of Peacekeeping Operations, United Nations; Mona Ali Khalil of the Office of the Legal Counsel, United Nations; and Marten Zwanenburg of the Ministry of Foreign Affairs, the Netherlands, and Leiden University.

INTRODUCTORY REMARKS BY BRUCE OSWALD *

Over the years, the responsibilities and tasks assigned to multinational forces have transcended the traditional monitoring of ceasefires and observation of fragile peace settlements. The spectrum of operations involving multinational forces has grown increasingly broad. The role of multinational forces has definitively changed. The missions of multinational forces in Afghanistan, the Democratic Republic of Congo, Somalia, Libya, and Mali are no longer limited to ensuring cease-fires or monitoring buffer zones, but are characterized by involvement in military operations (often of a kinetic nature) aimed at eradicating the threat emanating from various actors, in particular nonstate armed groups engaged in non-international armed conflict. Taking into account such new features, the panel proposes to discuss some of the most pressing issues related to the applicability and application of international humanitarian law (IHL) to multinational forces.

Two matters arise from the start. First, this panel's focus is on "peace forces" that are "at war" or in armed conflict, and the implications that arise for those engaged in such conflict under IHL or the laws of war. This panel therefore addresses two broad types of peace forces: those which are deployed and use force as the basis for the intervention or where the use of force is clearly anticipated (such as operations conducted in Afghanistan), and those where the use of force is a byproduct of a military operation (such as operations conducted as traditional forms of peace operations, e.g., the Force Intervention Brigade in the Democratic Republic of Congo). Players in such operations might include states, international organizations, and nonstate armed actors. There is, of course, the position that the categorization of the force is irrelevant because it is the facts on the ground that make the difference as to the application of IHL.

As the focus of the panel is on the implications under IHL or the laws of war, the issues that arise are quite broad and include such matters as the application of IHL to international organizations, application of IHL to nonstate armed actors, application of IHL in international armed conflicts (IACs) and non-international armed conflicts (NIACs), and whether intervention of military forces gives rise to one or another legal regime--IAC and NIAC. The purpose of this panel therefore is to tease out some of the nuances that arise for multinational forces under IHL when they engage in armed conflict.

* Associate Professor and Director of the Asia Pacific Centre for Military Law, Melbourne Law School, University of Melbourne. The author's remarks were made in his personal capacity.

REMARKS BY TRISTAN FERRARO *

International humanitarian law (IHL) and multinational forces is not a new issue. But over the past few years it has come back to the fore of legal discussions with the multiplication of peace support operations (PSOs) in very difficult, volatile, and violent environments and contexts, which increases the likelihood of multinational forces being called upon to use force. This definitively raises the question of IHL applicability and application to multinational forces.

Before going into more details, I would like first to dispel one important misconception: that everything has been already said and solved in relation to the topic gathering us today.

On this panel, we know that this is not the case. On the contrary, we, as operational legal advisers, are still confronted with legal and operational challenged raised by PSOs. When we are engaged in discussions with stakeholders involved in PSOs in Afghanistan, the Democratic Republic of Congo, Somalia, Mali, or the Central African Republic, I can tell you the question of IHL applicability and application is a central one.

In this regard, the basis of the ICRC's legal reading has never varied over time: we consider that IHL applies to PSOs when the conditions for IHL are met, i.e., when multinational forces are engaged in armed conflict and are therefore considered party to that conflict.

The determination of IHL applicability to multinational forces, as to any other actors, must be made on the basis of facts on the ground, irrespective of the international mandate assigned to these forces by the United Nations Security Council or of the designation given to those opposed to multinational forces. Determination of IHL applicability will also depend on the fulfilment of the classic criteria for armed conflict stemming from the relevant provisions of IHL, notably Common Articles 2 and 3 of the Geneva Conventions.

The mandate and legitimacy of the mission entrusted to multinational forces are issues which fall within the province of jus ad bellum and have no bearing on the applicability of IHL to multinational forces. From our perspective, it is particularly important in the context of PSOs to recall the strict separation existing between jus ad bellum and IHL and point out that there is no legal justification for applying IHL differently when multinational forces are engaged in armed conflict.

This position may appear to state the obvious for many of you. However, I can tell you that the reality of our legal dialogue with some stakeholders involved in PSOs shows that IHL applicability and application to multinational forces has been regularly challenged even when facts on the ground proved otherwise.

Besides overcoming shaky legal constructs aimed at denying IHL applicability or applying IHL differently or only as a matter of policy, the complexity of these PSOs has made the determination of IHL applicability to multinational forces more difficult.

For instance, we observe that multinational forces are increasingly intervening in support of governmental forces already involved in a pre-existing NIAC. This support is not necessarily made of kinetic operations, but takes the form of logistical support, intelligence activities for the benefit of the territorial state, or participation in the planning and coordination of military operations carried out by the supported state. These situations raise the question of IHL applicability to multinational forces providing such support--support which, by itself, does not meet the threshold of intensity required by IHL for a NIAC.

On this very issue the ICRC has developed a so-called "support-based approach" complementing the determination of IHL applicability on the basis of the classic criteria stemming from Common Article 3 of the Geneva Conventions. This approach focuses more on the nature of the activities performed by multinational forces within the framework of the preexisting NIAC. If the multinational forces' actions contribute to the collective conduct of hostilities, these forces must be considered party to the pre-existing NIAC.

Agreeing with stakeholders involved in PSOs on IHL applicability is not, however, the only obstacle to surmount. Once such agreement has been reached, the difficulties lie in determining to whom and how IHL will apply in the PSO context.

Identifying who is party to the armed conflict when multinational forces are engaged therein is not an easy task, but it is crucial from a legal and practical standpoint. The difficulty arises from the fact that, in general, multinational forces operate on behalf or under the auspices of international organizations (10). However, these IOs share one characteristic: they do not have armed forces of their own. To carry out peace operations, they must rely on their member states. When these states put their troops at the IOs' disposal, they never transfer full authority over them to the IOs. These states always retain some form of authority over the troops lent to the IOs so that it can be said that even when operating on behalf of the IOs, these troops were still acting as organs of their respective states. This complicates the determination of who should be considered as a party to the armed conflict in the context of PSOs. The ICRC has made its own determination based on the command and control (C2) relationships within the organization of the PSO, which may vary from one 10 to another and from one PSO to another. The bottom line for us is that determining the parties to an armed conflict ultimately comes down to the question of the level of control effectively exerted by the 10 over the troops put at its disposal.

Many other questions remain open on how IHL applies to multinational forces. Even if the characterization of the armed conflict in which multinational forces are involved is no longer a subject of much divergence, our experience shows that within the framework of our legal dialogue with key stakeholders involved in PSOs, attempts have been made in order to narrow--as far as possible--the scope of application of IHL. These attempts relate in particular to the personal, the temporal, and the geographical scopes of application of IHL in the context of peace operations.

* Legal Advisor, International Committee of the Red Cross.

REMARKS BY MARTEN ZWANENBURG *

By way of introduction to our discussion, I would like to put to you various pairs of concepts. These concepts are important in thinking about the application of IHL to peace operations. Depending on the view one has on the topic of this panel, these pairs may be seen as conflicting or not.

The first pair is jus ad bellum and jus in bello. Traditionally, a strict distinction is made between these...

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