Document Type : Original Article from Result of Thesis
Authors
1 Ph.D. Student in International Law, Faculty of Humanities, Qaemshahr Branch, Islamic Azad University, Qaemshahr, Iran.
2 Assistant Professor, Department of Law, Faculty of Humanities, Qaemshahr Branch, Islamic Azad University, Qaemshahr, Iran
Abstract
Highlights
Introduction
The number of military, civilian, and police personnel appointed to UN peacekeeping operations worldwide has unprecedentedly increased since 2000. Since the UN lacks an army of its own, it relies on the voluntary cooperation of the armed forces of its member states. Moreover, peacekeeping efforts typically need to be approved by a Security Council resolution.
The UN has not only increased the number of its peacekeepers but also run more complex peacekeeping operations in recent years. The main UN peacekeeping operations include monitoring ceasefires, facilitating political processes, safeguarding civilians, promoting freedom of choice, conducting free elections in countries, running the domestic governments, and supporting and advancing human rights and humanitarian laws.
Peacekeepers may face numerous risks and tensions during their operations. As highlighted in a recent report by the International Peace Institute, although ongoing efforts are being made to enhance accountability for crimes against peacekeepers, there are still major obstacles, especially to justice for peacekeepers. Therefore, the main question of this study is as follows: What are the measures and mechanisms of the international legal system to protect UN peacekeepers?
Methodology
The authors employed a descriptive-analytical method to answer the foregoing question.
Findings
The legal framework of a UN peacekeeping mission usually includes a Security Council or General Assembly resolution authorizing the mobilization of forces, a SOFA or mission status agreement, agreements between the UN and the troop and police contributors, and relevant regulations issued by the Secretary-General.
The Security Council fulfills its mandate to maintain international peace and security under the sixth, seventh, eighth, and twelfth chapters of the Charter. In this sense, peacekeeping missions are conducted in compliance with the UN objectives and principles. The member states are obliged to accept and implement the Security Council’s decisions and also assist the UN in any actions taken under the Charter. They are also expected not to obstruct the Security Council’s decisions or jeopardize the peace and security that the Council seeks to maintain.
Theoretically, the UN has the right to file a lawsuit against a state that harms or destroys its property or personnel including peacekeepers. “Compensation for damage caused to the UN personnel while on duty” is a consultative theory published by the International Court of Justice. It states that the UN is an international personality with rights and obligations under international law as well as the capacity to sue internationally to defend those rights.
A SOFA is a bilateral agreement concluded between the UN and the countries hosting UN peacekeepers. A SOFA is the primary component of a peacekeeping operation, as it legitimizes the presence of UN peacekeepers in the territory of the host country. The terms of a SOFA are negotiated with the host country to outline the rights and duties of peacekeepers and also ensure that they can complete their mission in the operational area without unwarranted interference.
The humanitarian laws contained in the Geneva Conventions of 1949 and its annexed protocols aim to protect non-combatant parties. The UN forces are treated like combatants under the laws of armed conflict when they engage in hostilities. Therefore, they will be subject to the Geneva Conventions in the same way as the armed forces of member states. Nevertheless, the legal status of the UN forces that abstain from hostilities is unclear because the primary focus of humanitarian laws is combatants, not peacekeepers.
The Convention on the Safety of United Nations and Associated Personnel (1994) criminalizes attacks on peacekeepers under two conditions: firstly, when peacekeepers engage in an operation that aims to maintain or restore international peace and security, and, secondly, when the Security Council or the General Assembly declares that there is an “exceptional risk to the safety of personnel participating in an operation”. The Convention protects “the UN personnel”, i.e., persons appointed by the UN Secretary-General as members of the armed forces, police, or civilian units to UN operations, as well as associated personnel who are not under UN authority.
The UN Charter mandates that member states abide by the Security Council's decisions. In other words, if the Security Council adopts a resolution directing a particular course of action, the member states are required by law to accept and conduct that decision. By contrast, when the Security Council resolutions contain words such as "inviting" or "requesting", member states are not legally obliged to obey them.
Results
The UN Charter provides no clear guidance for UN peacekeeping operations. There are even numerous debates and uncertainties about their legal foundation. Accordingly, the UN Charter does not stipulate the legal status of the protection of peacekeepers. Under such circumstances, other legal documents, e.g., the Security Council resolutions, SOFA, the Convention on the Safety of United Nations and Associated Personnel (1994), the Geneva Conventions of 1949, and the Rome Statute of the International Criminal Court (1998), will govern the legal status of peacekeepers.
The Security Council resolutions are very important in this regard because the UN member states are obliged to obey them. Accordingly, the Council can take advantage of these resolutions to oblige countries to protect UN peacekeepers. Nevertheless, the wording and tone of some of these resolutions leave the member states with no new duties in this area and impose no particular obligations on them.
SOFAs outline the issues related to the rights, privileges, immunity, and protection of UN peacekeepers; however, the problem with SOFAs is that most of them are bilateral agreements with a limited scope of action. As a result, the international community decided to approve the Convention on the Safety of United Nations and Associated Personnel in 1994 as a multilateral agreement in this field. Since the member states have not well embraced this convention and less than half of them have ratified it, other member states do not find it mandatory to abide by this convention.
Moreover, it seems that the provisions of the Geneva Conventions of 1949 and their annexed protocols, which have received great attention from member states, consider the protection of UN peacekeepers in some cases. In addition, if broadly interpreted, the provisions of some parts of Article 8 of the Rome Statute of the International Criminal Court (1998) can be generalized to UN peacekeepers.
Keywords
Main Subjects
', './data/isjq/coversheet/41712757836.jpg'))