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The role of the United Nations

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The role of the United Nations

Peace, security and human rights are among the fundamental, or most important, concerns of the United Nations (UN) (Article 1, para. 1 of the UN-Charter).518 However, during the first twenty years of its existence, the United Nations had a fairly distant relationship with humanitarian law. This was deliberate and the reasons for it were philosophical: the UN was established after the end of World War II and its main objectives at the time were to secure world peace and international security, not to regulate war519. Such ideas were enormously appealing in the formative years of the UN; its representatives felt that if the laws of war were included in the agenda, “public opinion might interpret its action as showing a lack of confidence in the efficiency of the means at the disposal of the UN for maintaining peace.”520 By the end of the 1960s, this policy had begun to change. In 1968, the General Assembly adopted Resolution 2444 on respecting human rights during armed conflict521. But it was only when the Cold War ended that the UN began to assume a considerable role in the development of international humanitarian law. This body of law is still not the main focus of the UN, but the organization now considers it to be an important means to achieve international peace and security. That is why UN bodies now contribute to the development of humanitarian law in various ways522. With regard to humanitarian law, the UN describes its three main functions as elaboration, enforcement and involvement523. Organs and agencies within the United Nations contribute to preserving the pertinence of international humanitarian law in a number of different ways: by reminding warring parties of the applicability of the law, by calling for compliance with its rules, by referring to humanitarian law in resolutions and by establishing fact-finding missions that are entrusted with the task of inquiring into alleged violations of international humanitarian law524. Let us now turn our attention to the Security Council, the General Assembly and the Human Rights Council, and to the International Court of Justice.

A. The Security Council

A) General remarks

The primary responsibility for preserving international peace and security lies with the Security Council525. Since the UN has started to regard respect for international humanitarian law vital for the preservation and restoration of world peace, the Security Council’s involvement with this branche of international law has grown over the years526, especially after the end of the Cold War527. Since then, it has produced an impressive series of resolutions regarding international humanitarian law. The Security Council, as long as it acts in accordance with the purposes and principles of the Charter, can take a wide range of decisions relating to international humanitarian law.528

Since the early 1990s, in the context of the armed conflicts in Iraq, Bosnia and Herzegowina, Rwanda and Kosovo, the Security Council had repeatedly recognized “that massiv and systematic breaches of human rights law and international humanitarian law constitute threats to international peace and security and therefore demand its attention and action”529. In 1999 and 2000, it adopted two ground-breaking resolutions, in particular with respect to its determination to protect civilians. In Resolution 1265, the Council expressed “its willingness to respond to situations of armed conflict where civilians are being targeted or humanitarian assistance to civilians is being deliberately obstructed, including through the consideration of appropriate measures at the Council’s disposal in accordance with the Charter of the United Nations”530. According to the Report preceding this Resolution, such measures include a wide range of activities and may go as far as measures of enforcement listed under Chapter VII of the Charter.531 More recently, the Security Council has called upon the belligerents to respect humanitarian law in international conflicts (such as the ones in Iraq and Georgia532) as well as in non-international armed conflicts (such as the ones in Somalia and Sudan533) which are also considered to constitute a threat to international peace and security. The Security Council invokes humanitarian law in various other ways534: for instance, it reminds the parties to the conflict of specific rules and takes measures to implement humanitarian law. It therefore regularly refers to the Geneva Conventions and the Hague Conventions, and reiterates that the latter must be applied by all parties, regardless of the circumstances. The Security Council also gives its backing to the important role played by the UN with regard to humanitarian issues in areas of conflict and ensures the provision of assistance with regard to the humanitarian needs of civilians, the protection of the natural environment and the cultural assets of conflict zones.
In most of the resolutions in which the Security Council has referred to international humanitarian law, its main focus has been the protection of civilians in areas of conflict535. It has also called on warring parties not to undertake targeted killings of civilian and reaffirmed its commitment to implementing adequate instruments for the protection of civilians, especially peace-keeping operations536. The Security Council has expressed especial concern about the many gaps in the implementation of humanitarian law and called for a concerted effort to develop measures to urge all States to comply with the law537.
The Security Council has also taken a number of other steps to enforce humanitarian law. For instance, it has sent groups of experts to gather information about a particular situation, as in East Timor, or to investigate war crimes, which it did during the Iran-Iraq war of 1980-1988. F. Kalshoven has pointed out a particularly noteworthy example: “[The Security Council established a group of experts] to collect and analyse all the available information about war crimes in the former Yugoslavia (...) In 1993, (...) it followed this up with the establishment of the International Criminal Tribunal for the Former Yugoslavia – a step followed in 1994 with the International Criminal Tribunal for Rwanda.”538 These actions by the Security Council were efforts to serve justice - years before the International Criminal Court was established539. The tribunals had jurisdiction over crimes against humanity, genocide and war crimes and are generally acknowledged to be a turning point in the development of humanitarian law, “both as a body of law and in the political and legal culture of nations”540.
b) Peacekeeping Operations541

The Security Council has another instrument at its disposal for the fulfilment of its task: it may establish peacekeeping operations, an instrument that has become particularly important for the prevention of violent conflict and the preservation of international peace. Although not explicitly mentioned in the UN Charter and defying a simple definition, peacekeeping missions have been referred to by Dag Hammarskjöld, the second UN Secretary-General, as belonging to "Chapter Six and a Half" of the Charter. He therewith placed them between traditional methods of resolving disputes peacefully, such as negotiation and mediation under Chapter VI, and more forceful action as authorized under Chapter VII. Since it has been contested by certain UN Member States that the expenses for peacekeeping operations are expenses within the meaning of Art. 17 para. 2 UN Charter, the International Court of Justice gave an Advisory Opinion (“certain expenses”) in 1962 stating that these operations fulfil a prime purpose of the United Nations in promoting and maintaining a peaceful settlement of a dispute.542

Due to the dynamic development this instrument has undergone since its beginning, there is no consistent definition of what a peacekeeping operation precisely is. In its original form, peacekeeping missions are described as actions to keep or rebuild world peace and international security, using armed forces in an international armed conflict on the grounds of consent of all parties but without use of force (except in cases of self-defense)543. The traditional functions of peacekeeping are prevention of conflicts, securing and consolidating peace.

The first armed UN-peacekeeping mission has taken place in 1956 to secure peace between Egypt and Israel (UNEF)544. All following missions until the end of the Cold War are considered to be missions of the so called “first generation” of peacekeeping and can be described by three criteria: by the consent of all parties, the impartiality of the mission and by the use of force only in cases of self-defence545. Those missions were sent out particularly to monitor ceasefires or for the easing of situations of crisis, for example through the formation of buffer areas (so called observer missions).

With the end of the Cold War, the character of armed conflicts changed; international conflicts diminished, internal conflicts with complex reasons grew. Therefore, also peacekeeping missions changed. In the “agenda for peace” in 1992, the Secretary-General Boutros Boutros-Ghali tried to define the conditions for the new generation of peacekeeping missions546. The scope of duties has been amplified; humanitarian help, the build-up of civil administration, the preparation of elections, police duties and the monitoring of the human rights situation were added to the functions of traditional peacekeeping547.

In the middle of the 1990s, a third generation of peacekeeping emerged, the so called robust peacekeeping or peace-enforcement. On the grounds of Chapter VII UN-Charter and the threat or breach of the peace, the Security Council dispatched robust peacekeeping missions, for example in Somalia in 1992548 or in Sarajevo in 1992549. These missions, which took place in a very instable environment, brought a change of peacekeeping. The principles of consent, impartiality and non-use of force were interpreted in a new way. Hence, the consent of all parties is still desirable, but not necessarily a requirement. Furthermore, the criterion of impartiality does not detain UN-troops any more from interfering in cases of serious violations of human rights550. Finally, the principle of non-use of force has been further weakened. To secure peace, the troops now are allowed to use all necessary means551.

Several questions of humanitarian law arise with the dispatch of peacekeeping missions, first and foremost, whether the missions are bound by the rules of humanitarian law. As an international organisation, the United Nations are not a contracting party of the Geneva Conventions; however, in the light of the aims to secure world peace and international security, the UN are considered to be bound by the basic principles of humanitarian law552. Most experts share the opinion of the ICRC that the applicable law should be determined case by case and not on the basis of a formal mandate handed down by the Security Council. According to this view, international humanitarian law applies as soon as multinational troops are involved in armed conflicts; hence, humanitarian law has to be respected also by peacekeeping missions553.

This approach has been supported by Secretary General Kofi Annan in his Bulletin “Observance by United Nations forces of international humanitarian law”554 in 1999. It is of great programmatic value. Traditionally, the UN has never confirmed that humanitarian law as such does apply to UN peacekeeping; rather, it has held that the “principles and spirit” of the general international Conventions apply to the conduct of military personnel. The Bulletin now claims “the fundamental principles and rules of international humanitarian law were applicable to United Nations forces conducting operations under United Nations command and control”. In general, the UN has increasingly concerned itself with the promotion and safeguarding of international humanitarian law. An important reason for this development is the understanding that the World Organization cannot promote respect for humanitarian law without observing this body of law itself. A similar perspective is taken by Andrew Clapham who is in favour of obligations going beyond the traditional state-focused approach of international law and applying to both state and non-state actors.555 According to this perspective, it is not the participation of those actors in the law-making process but their actual involvement in an armed conflict that obliges them to respect humanitarian law. In this sense, obligations exist for all entities - State or non-State - taking part in hostilities, regardless of whether they are “subjects” under international law, the main criterion being the ability of an actor to participate in an armed conflict. For this reason, non-State actors such as UN peacekeeping forces are should necessarily be bound by humanitarian law, despite their not having taken part in the law-making process.556 Furthermore, it has been discussed lately, if specific agreement should be concluded concerning the applicability of international humanitarian law by peacekeeping missions of the United Nations557.

Even more difficult is the problem whether the law of international or non-international armed conflicts applies to actions of peacekeeping missions. Again, there exist controversial answers and theories to this question in doctrine and practice. In his above mentioned bulletin, the Secretary General discussed this question. In his above mentioned bulletin, the Secretary General discussed this question. He referred particularly to customary international humanitarian law, as for example the protection of wounded and sick persons, the sanitary and support personnel, the treatment of prisoners of war, means and methods of warfare, protection of cultural goods and the protection of the natural environment558. These rules of humanitarian law should be applied by peacekeeping missions in any case.

A second issue concerns the question whether and how far peacekeeping missions themselves can contribute to the development and implementation of international humanitarian law and the compliance by other actors. Whereas under traditional international law peacekeeping were not authorized or even envisaged to monitor compliance with humanitarian law, practice seems to have changed in recent times. For example, certain peacekeeping resolutions of the Security Council lay down a duty of UN peacekeeping missions to contribute, in particular, to the promotion and protection of human rights as well as “to help investigate human rights violations with a view to help ending impunity.”559 are kept to provide humanitarian assistance and humanitarian assistance and “to establish the necessary security conditions.”560

Since the above mentioned establishment of “wider” peace keeping missions after the end of the Cold War (Bosnia, Rwanda, Sierra Leone) their nature has continuously changed: missions with narrowly defined functions have been followed by veritable humanitarian actors whose responsibilities have become more and more complex and have been extended to the civil sector. Such additional tasks, going beyond those of traditional peacekeeping, include, but are not limited to, humanitarian relief, separation of forces, disarmament of belligerent, the organization and supervision of elections, the protection of civilian and personnel and agencies, guarantee and denial of movement, capacity building, monitoring of ceasefires and enforcement of no-fly zones.561

Engaging in humanitarian support and protection of human rights, a field nowadays closely connected to (with) humanitarian law, peace keeping missions play an increasingly important role in strengthening humanitarian law in conflict areas. Since, peacekeeping missions have become a new relevant actor amongst others building a civilian “humanitarian community”. However, this seems to be a janus-faced phenomenon: On the one hand, such a network can lead to new synergies and creates additional capacities in order to enforce humanitarian principles. On the other hand, it involves problems of coherence and coordination (e.g. in the case of Rwanda where over 200 NGOs were at work).

We should also be aware of shortcomings of the system. As former ICRC-President Cornelio Sommaruga has observed: “Au fond, j’ai souvent eu l’impression que les politiques, lorsqu’ils se trouvaient dans l’incapacité de résoudre une crise et étaient sous la pression de l’opinion des medias, ont poussé en avant l’humanitaire. Plutôt que de s’attacquer aux racines du mal, ils ont joué la carte humanitaire, notamment en lui versant beaucoup d’argent. Ce faisant, l’humanitaire est devenue un alibi pour ceux qui ne parviennent pas à résoudre des problèmes politiques. “ And he continues concerning Ex-Yugoslavia: “On doit se demander si, dans ce conflit, plutôt que d’escorter les humanitaires, la tâche de l’ONU et de ses troupes sur place n’aurait pas dû être de faire respecter le droit international et le droit international humanitaire. Les Nations unies n’auraient-elles pas absolument du empêcher cette chose terrible que fut la purification ethnique …? Or qu’a fait la communauté des nations, l’ONU? Elle a laissé la purification ethnique se poursuivre pratiquement jusqu’au bout … Il y eu certes des mots, de grandes déclarations, mais il fallait beaucoup plus: il fallait intervenir. “562

B. The General Assembly

a) General remarks

The Security Council is not the only body of the UN that promotes respect for international humanitarian law. Like the Security Council, the General Assembly’s involvement with humanitarian law is based on Article 89 of Protocol I of 8 June 1977 additional to the Geneva Conventions. And Articles 10 and 11 of the UN Charter allow the General Assembly to debate issues concerning world peace and international security and to transfer resolutions and recommendations to the Security Council and to the members of the UN.

As mentioned above, the UN, whether it was the Security Council or the General Assembly, was very reluctant early on to have any involvement with humanitarian law. This began to change with General Assembly Resolution 2444 of 19 December 1968563, Respect for Human Rights in Armed Conflicts, in which the General Assembly affirmed Resolution XXVIII of the International Conference of the Red Cross in Vienna in 1965, on protection for civilians against the dangers of indiscriminate warfare. In Resolution 2444, the General Assembly set out three principles for shaping the development of international humanitarian law: limits on the means that can lawfully be chosen by the parties to a conflict, the prohibition of attacks against the civilian population and the distinction between combatants and non-combatants564. This was the starting point of what has since been described as the General Assembly’s role in international humanitarian law: assisting in the development of humanitarian law by confirming and reaffirming its principles565.
Another important step in the development of this aspect of the General Assembly was the adoption of Resolution 2675 of 9 December 1970, Basic Principles for the Protection of Civilian Populations in Armed Conflicts. This resolution states that combatants must take all precautions to prevent harming civilians; that housing and other civilian installations should not be the object of military operations; and that civilian populations, or individual members thereof, should not be the object of assaults566.
Since the 1970s, the General Assembly has focused on three areas of international humanitarian law: the implementation of the law in terms of individual criminal responsibility, respect for human rights during armed conflicts, and prohibitions on the methods and means of warfare567. The elaborations of the General Assembly on the problem of criminal responsibility contributed in no small part to the establishment of the International Criminal Court in 2002. After the end of the Nuremberg trials, the General Assembly recognized the need for a permanent international tribunal to deal with war crimes. It was at the request of the General Assembly that, in 1950, a process was set in motion to create such a tribunal. Eventually, in 1998, the General Assembly convened a conference in Rome with the aim of finalizing a treaty for this purpose. Four years later, the Rome Statute of the International Criminal Court came into force. The importance of the Court is such that it is now considered to be part of a process of global constitutionalization, in which it dispenses universal criminal justice568.
Restricting the means and methods of warfare was yet another contribution made by the General Assembly to the development of international humanitarian law. Numerous conventions to this end were adopted between 1972 and 1993, such as the Convention on the Prohibition of Chemical Weapons, adopted by the UN General Assembly on 30 November 1992. This convention clearly influenced the development of the Convention on the Prohibition of Anti-Personnel Mines, which was adopted in 1997569.
Though the UN, in general, had no direct involvement with humanitarian law in its early days, the General Assembly’s very first resolution was crucial for the purposes of that body of law. This resolution, adopted on 24 January 1946, established a “commission to deal with the problems raised by the discovery of atomic energy.”570 The nuclear threat has preoccupied humanitarian experts and non-experts alike ever since it first appeared. The Commission was charged, inter alia, to make specific proposals “for the elimination from national armaments of atomic weapons and of all other major weapons adaptable to mass destruction”571. The resolution may have been adopted mainly for reasons of international security and not out of humanitarian concern. But, from a humanitarian perspective, one can rejoice in the rightness of the resolution even though its motives may not have been especially lofty. Needless to say, that General Assembly’s intention has not yet been realized. National interests have seen to that. The General Assembly, however, followed up on its concern over the nuclear threat and in 1957 created the International Atomic Energy Agency, whose purpose was to control the spread of nuclear weapons. In addition, a series of international treaties, such as the 1968 Treaty on the Non-Proliferation of Nuclear Weapons572 and the 1996 Comprehensive Test Ban Treaty, helped to bring proliferation of nuclear weapons and the threat of nuclear war under control – at least to some degree573.
In addition to these vital contributions, the General Assembly has also reiterated the importance of complying with humanitarian law in numerous resolutions and recommendations. It has emphatically labelled certain situations as armed conflicts and called upon the parties involved to comply with the rules of humanitarian law574. For example, in contradiction to the States involved, the General Assembly has characterized the Iraq-Kuwait war, the war in Afghanistan and the occupation of the Golan Heights by Israel as internal armed conflicts or military occupation575.
In sum, the General Assembly has focused on protecting the civilian population. A prominent example is the long series of resolutions on the Palestinian territories occupied by Israel576. It has regularly called upon all States to become parties to treaties of humanitarian law, particularly the two Additional Protocols of 1977577. The General Assembly has also had a prominent role in establishing some of the cornerstones of current international humanitarian law, such as the International Criminal Court and the Ottawa Treaty. Mainly, the General Assembly promotes humanitarian law and helps to further its development by reaffirming its most important principles.

b) The Human Rights Council

The United Nations Commission on Human Rights and its successor, the Human Rights Council, were set up to deal specifically with issues related to the protection of human rights. At the Human Rights Commission, humanitarian law gradually began to complement human rights law as an important object of attention; this trend has continued at the Human Rights Council. Because the two bodies of law often overlap, both the Human Rights Commission and the Human Rights Council have referred to humanitarian law on several occasions578, most prominently during the conflicts in Afghanistan, Iraq, Lebanon and Gaza. Let me briefly elaborate on the conflicts in Lebanon and Gaza.

In August 2006, prompted by the human rights crisis in Lebanon caused by Israeli military operations579, the Human Rights Council resolved to “establish urgently and immediately dispatch a high-level Commission of Inquiry.” Paragraph 7 of the resolution stated that the Commission was mandated: “(a) to investigate the systematic targeting and killings of civilians by Israel in Lebanon; (b) to examine the types of weapons used by Israel and their conformity with international law; and (c) to assess the extent and deadly impact of Israeli attacks on human life, property, critical infrastructure and the environment.” The Commission met with the president and the prime minister of Lebanon, members of the Government and other senior officials, members of parliament, local authorities, representatives from the private sector and from hospitals, victims and witnesses, as well as representatives from NGOs and various UN agencies, among them the UN Interim Force in Lebanon and the UN Truce Supervision Organization. In its report580, the Commission provided an overview of the conflict and the historical background; it also dealt with issues of classification (the legal character of the conflict and the law applicable to it).581
The Commission emphasized the uniqueness of the conflict - active hostilities took place only between Israeli forces and Hezbollah fighters - and defined it as international armed conflict: in the Commission’s opinion, the absence of the Lebanese armed forces from an active participation had no bearing on how the conflict should be classified. But in fact, the armed conflict was of a double character. First, there was an international armed conflict between Israel and Lebanon. Israel Defense Forces attacked the Lebanese Armed Forces and its assets. The State of Lebanon in several aspects was the subject of direct hostilities conducted by Israel. Though the Lebanese Armed Forces did not actively participate in the hostilities and offered no resistance to the Israeli attacks, the Commission found that this does not deny “the character of the conflict as a legally cognizable international armed conflict”. Second, the conflict was mainly of a transnational character. Active hostilities took place only between Hezbollah, a militia based in Southern Lebanon, and the Israel Defense Forces. The Government of Lebanon took the position that it was not responsible for and had not even prior knowledge of the operations that initiated the conflict and were carried out by Hezbollah. The Government of Israel, on the other hand, was of the view “that responsibility [lay] with the Government of Lebanon, from whose territory these acts were launched into Israel, and that the belligerent act was the act of a sovereign State, Lebanon.” From an international humanitarian law standpoint, the dispute is irrelevant to the point that international humanitarian law applies as soon as an armed conflict arises and it binds all the parties to the conflict to fully comply with it.582
The report made repeated reference to the fact that the principle of humanity and humanitarian considerations (in the terms of the Martens clause) were disregarded during the conflict583. It condemned the violations of humanitarian law by the Israeli forces and called upon Israel to abide by its obligations under international humanitarian law. In particular, the experts concluded that though none of the weapons used by Israel was illegal per se the way in which the weapons were used in some cases was contradictory to international law. The Commission found that the use of cluster munitions “was excessive and not justified by any reason of military necessity”. Furthermore, it considered that the “excessive, indiscriminate and disproportionate use of force” was contrary to the principles of military necessity, proportionality and distinction and thus constituted “a flagrant violation of international humanitarian law”584. It also called upon the Council to promote and monitor the obligation to “respect and ensure respect” by all parties in a conflict, including non-State actors585.
Notwithstanding the importance that violations of human rights law and humanitarian law are investigated, condemned and that action is taken by the international community in order to rectify the situation, the Commission’s mandate was rightly critisized for its bias. The Commission of Inquiry was only asked to inquire into misconduct by the Israeli armed forces. The formulation of the mandate resembled a prejudgement of Israel and did not even include an inquiry into possible misconduct of the Hezbollah fighters. There was no justification for such a one-sided mandate.
The Human Rights Council learned its lesson. During the winter of 2008-2009, another short war in the Middle East was conducted between Israel and the Hamas. In April 2009, the Human Rights Council established the United Nations Fact-Finding Mission on the Gaza Conflict. This time, the Mission was entrusted with the mandate “to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after.”586 Unlike the one-sided mandate given to the Commission established to inquire into the 2006 war in Lebanon, the mandate of the Gaza Mission was balanced. The Mission considered “any actions by all parties that might have constituted violations of international human rights law or international humanitarian law”587. The Mission’s efforts were not politically motivated but guided by a commitment to the rule of law, in particular humanitarian law and human rights law. The inquiry was undertaken in an effort to pursue justice and prevent those who had committed serious violations of the law from escaping punishment. Despite the balanced mandate, the Mission had to face some major challenges, among them the non-cooperation of the Government of Israel and its refusal to allow the experts to enter Gaza588, the West Bank and southern Israel. The Mission criticized both parties to the conflict for their disrespect of international humanitarian law. It found that Palestinian armed forces failed to distinguish between military targets and the civilian population and civilian objects in southern Israel. The main findings of the final report were that Israeli armed forces clearly violated international humanitarian law. For example, in a number of specific cases they launched direct attacks against civilians with lethal consequences without any military justification for doing so. Further violations included the use of human shields and the destruction of civilian infrastructure not to be justified on military grounds589. The experts concluded that these attacks “amounted to reprisals and collective punishment and constitute war crimes”590.
Besides the establishment of fact finding missions, the Council occasionally appoints a special rapporteur to examine the situation of human rights in certain countries or regions: compliance with humanitarian law is often one of the most pressing issues591. Such rapporteurs have been named (appointed) for several countries: among them, Afghanistan, El Salvador, Kuwait, Rwanda and the territories occupied by Israel. These inquiries conducted by special rapporteurs take the form of “fact-finding” missions when violations of international humanitarian law are alleged592. These fact-finding activities are yet another way of promoting compliance with humanitarian law.

C. The Secretary-General

Under the UN Charter, the Secretariat is principally conceived as the organization’s administrative body. Art 97 defines the Secretary Genearl as “the chief administrative officer of the Organization”.593 However, the influence of the Secretary-General is not at all limited to administrative or organizational tasks, his actual political power reaching far beyond them.594 Unifying several functions within one person (diplomat, advocate, civil servant and CEO), the Secretary-General has become a political player at the world stage whose role has increased according to the growing responsibilites of the World Organization. He is supposed to be a symbol of United Nations values and to represent the interests of the world's peoples, in particular the most among them. Inevitably, he plays an important role in the promotion and implementation of international humanitarian law.

Art 98 and Art 99 of the Charter paved the way for an active role of the Secretary-General in almost every aspect of the UN's activities. Art 98 provides that the Secretary-General also shall perform “other functions as are entrusted to him” implying additional non-administrative and political duties. According to Art 99, he “may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security”. Even if the Secretary-General has not made extensive use of this right in the past, a competence of investigation of armed conflicts is implicitely included in the meaning of this article providing him with additional power in the humanitarian field. Of course, the Secretary-General would never be successful in his actions, if he did not take careful account of the interests and concerns of Member States, but at the same time he has to uphold the values and moral authority of the United Nations. Thus, all previous Secretaries-General have understood their political responsibilities in a broad sense. Considering themselves as speakers for and actors and guardiens of peace and the values of the Charter, they all developed means and methods of conflict prevention and resolution595. Indeed, they became involved in the major disputes during their respective tenures, often being at the risk of challenging or disagreeing with some powerful Member States.

Thus, many important developments in the humanitarian field have been initiated, promoted or further strengthened by Secretaries-General in the past, as they undertook wide-ranging and successful diplomatic initiatives to settle down disputes throughout the world. Their independency and impartiality, sometimes combined with a special charisma of the incumbent, allow them to act as real peacemakers and to embody the humanitarian conscience of mankind.

Nowadays, a major pillar of the UN’s efforts to assure international peace and security are peace-keeping missions in conflict areas all over the world. Mainly conceived by the second Secretary General Dag Hammarskjöld on the occasion of the 1956 Suez crises, this means of peace activity had not been foreseen by the drafters of the Charter. As shown above, the mission’s tasks and responsibilites have been subsequently specified and expanded in the following decades596. They may thus serve as an example of the dynamic development of UN law and practice by the institution’s “administrative” body.

Another important means of promoting humanity, human rights and humanitarian law is the Secretary General’s reporting activity. He has the duty to report to the other UN main organs (General Assembly, Security Council and Ecosoc) either periodically or upon request. Some of these documents have become very significant for the development of humanitarian law, e.g. Boutros Boutros-Ghali’s report “An Agenda for Peace”597 that analysis and recommends ways of strengthening and making more efficient the capacity of the UN for conflict prevention, peacemaking and peace-keeping or Kofi Annan’s final report “In Larger Freedom”598 development to achieve development, security and human rights setting out a program to achieve development, security and human rights and to reform the UN system. As to the development of humanitarian law in particular, a number of documents are relevant. In 1968, the General Assembly recommended that the Secretary-General, after consulting with the ICRC, should bring to the attention of all members of the United Nations the existing rules of international humanitarian law.599 He should urge them to ensure that civilians and combatants are protected in accordance with "the principles of the law of nations derived from the usages established among civilized peoples, from the laws of humanity and from the dictates of public conscience". Moreover, at the General Assembly's request, the Secretary-General of the United Nations reports periodically on the state of acceptance of the Additional Protocols of 1977. In 1999, the Secretary-General issued his bulletin on the “Observance by United Nations forces of international humanitarian law”.600

In addition, the Secretary-General fulfils an important role as the the direct superior of the High Commissioner of Human Rights, the principle human rights official of the UN who is responsible for all the activities of the Office of the United Nations High Commissioner for Human Rights. His competences are closely connected to those of the Secretary-General. As the High Commisioner is directly accountable to the Secretary-General and advises him on the policies of the UN in the area of human rights, the two bodies have to cooperate closely. Mandated to “play an active role in removing the current obstacles and in meeting the challenges to the full realization of all human rights and in preventing the continuation of human rights violations throughout the world”601 the High Commisioner is implicitly mandated to take an active part in the prevention of violations against international humanitarian law.

D. The International Court of Justice

The International Court of Justice (ICJ) was established in 1945 to succeed the Permanent Court of International Justice. Although there had been international or regional courts before the ICJ, humanitarian law almost never played a part in judicial proceedings in the international sphere, with the significant exception of the Nuremberg and Tokyo International Military Tribunals. The Nuremberg Tribunal was assigned the task, inter alia, of punishing German war criminals who had committed breaches of the Hague Conventions during the Second World War. In 1945, the Nuremberg Tribunal had already found that the humanitarian rules included in the Regulations annexed to the Hague Convention IV of 1907 “were recognised by all civilised nations and were regarded as being declaratory of the laws and customs of war.”602

With the establishment of the Internatonal Court of Justice, the attitude to international humanitarian law on the international judiciary level began gradually to change: it was no longer disregarded to the same extent. In its early years, the ICJ did not refer to humanitarian law in its judgments or advisory opinions, but this began to change in the Eighties. The ICJ has significantly influenced the development of humanitarian law in a number of ways: by establishing the formula of “elementary considerations of humanity” and confirming the customary nature of humanitarian law treaties, and by treating the fundamental principles of humanitarian law as a sort of humanitarian jus cogens. These matters will be further examined in the pages that follow:

a) “Elementary considerations of humanity”: International humanitarian law as customary law

Fairly early in its existence - in the Corfu Channel case of 1949 - the Court introduced the notion of “elementary considerations of humanity”603, a reference to certain general and well-recognized principles of humanitarian law. This concept has been reiterated several times in later decisions, especially in the Nicaragua case of 1986, where the Court held that Article 3 common to the four Geneva Conventions (common Article 3) “reflect(s) what the Court in 1949 called ‘elementary considerations of humanity’”604. The influence of the Corfu Channel decision, on the development of humanitarian law, was not limited to the introduction of this concept. By acknowledging the declaratory character of some specific provisions of the Hague Convention of 1907, the Court implicitly affirmed the existence of a body of customary rules in humanitarian law.605
This jurisprudence was further developed in Case concerning Military and Paramilitary Activities in and against Nicaragua, the first judgment in which the ICJ paid especial attention to humanitarian law, especially to the four Geneva Conventions. As mentioned above, this judgment explicitly clarified that common article 3 reflects “elementary considerations of humanity.” The Court also stated that common Article 3 was applicable not only to internal conflicts, but that it also “constitutes a minimum yardstick” for international armed conflicts, one that had to be respected regardless of the circumstances606. And most importantly, even though the judgment focuses mainly on common Articles 1 and 3, it seems to postulate the customary nature of the greater part of their provisions by referring to the fundamental general principles of humanitarian law607.
In Legality of the Threat or Use of Nuclear Weapons, an advisory opinion, the Court again justified its jurisprudence with respect to the customary nature of humanitarian law. It did so by reaffirming the importance of humanitarian values, which the law of armed conflict is based on, and also by citing declarations of other international bodies (e.g. the Nuremberg International Military Tribunal and the Report of the Secretary-General of 1993 introducing the Statute of the International Criminal Tribunal for the former Yugoslavia) that provide evidence of the transformation of conventional into customary law. The Court concluded its advisory opinion with the finding that:

“The extensive codification of humanitarian law and the extent of the accession to the resultant treaties, as well as the fact that the denunciation clauses that existed in the codification instruments have never been used, have provided the international community with a corpus of treaty rules the great majority of which had already become customary and which reflected the most universally recognized humanitarian principles.”608

b) jus cogens and erga omnes norms

In addition, the jurisprudence of the ICJ, which defined some fundamental principles of humanitarian law as a sort of jus cogens, must be mentioned: Whilst the concept of jus cogens is an essential aspect of general international law, the term is not commonly used in humanitarian law. The ICJ has undertaken several steps to establish a similar, if not identical, concept:609 First, in “Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide”, an advisory opinion, the ICJ recognized the outlawing of genocide as a quasi-obligation erga omnes norm: “in such a convention the contracting States do not have any interest of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties. The high ideals which inspired the Convention provide, by virtue of the common will of the parties, the foundation and measure of all its provisions.”610

This reasoning, implying the existence of a set of core principles and provisions in humanitarian law from which States cannot derogate, has been reiterated more recently in Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide. Here, the Court refers explicitly to the concept of erga omnes norms: “… the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation.”611 This leads to the conclusion that “… the rights and obligations enshrined by the convention are rights and obligations erga omnes.”612 Likewise, in its Wall Opinion the Judges refered to certain erga omnes obligations under international humanitarian law that had been violated by the State of Israel.613 The Court recalled its statement in the Advisory Opinion on the LegaIity of the Threat or Use of Nucleur Weapons, according to which

" ‘a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and ‘elementary considerations of humanity' . . .’, that they are ‘to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law’.”614

The Court is of the view that “these rules incorporate obligations which are essentially of an erga omnes character”.615 It referred to Art 1 of the Fourth Geneva Convention, according to which all State parties “undertake to respect and to ensure respect” for the Convention in all circumstances and added: “It follows form that provision that every State party to that Convention, whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with”616. In this Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the Court very concretely reminded States that they are “under an obligation not to recognize the illegal situation resulting from the construction of the wall […] not to render aid or assistance in maintaining the situation created by such construction [… and] to ensure compliance by Israel with international humanitarian law as embodied in [the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War]”617.
The Court seemed to be more reluctant to declare jus cogens with respect to the conduct of hostilities and to protection for victims of armed conflicts. In the advisory opinion on the “Legality of the Threat or Use of Nuclear Weapons” the Court made no direct reference to the relevance of jus cogens in humanitarian law, missing an opportunity to build on previous decisions and strengthen the concept of jus cogens in humanitarian law. However, the Court recognized the existence of “intransgressible principles of international customary law”618, implying that no State may derogate from them. Thus, the Court introduced a new term in humanitarian law, one that seems to resemble jus cogens619.
It is the Court’s opinion that such principles are also applicable to various recently developed weapons. On the subject of nuclear weapons, the Court has stated that:

“… it cannot be concluded (…) that the established principles and rules of humanitarian law applicable in armed conflict did not apply to nuclear weapons. Such a conclusion would be incompatible with the intrinsically humanitarian character of the legal principles in question which permeates the entire law of armed conflict and applies to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future. In this respect it seems significant that the thesis that the rules of humanitarian law do not apply to the new weaponry, because of the newness of the latter, has not been advocated in the present proceedings. On the contrary, the newness of nuclear weapons has been expressly rejected as an argument against the application to them of international humanitarian law …”620

c) Assessment

Though it is often described as the most significant international court, the ICJ has dealt with only a few cases in the field of humanitarian law621. But this should not be misinterpreted: the ICJ’s judgments and advisory opinions have often broken new ground, as the examples given above demonstrate. States are finding it increasingly difficult to derogate from the ICJ’s practice; because of this, its jurisdiction and advisory opinions may have an even greater impact on the development and promotion of humanitarian law.

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