IHL and multinational forces part II: Dick Jackson weighs in

Colonel (Retired) Richard B. "Dick" Jackson is the Special Assistant to the U.S. Army Judge Advocate General for Law of War Matters. He has served in that position since 2005, when he retired from the U.S. Army after over 30 years in uniform. Dick Jackson has extensive experience in the law of war and international and operational law, in general. He served in Infantry, Special Forces, Joint and Coalition commands during his military career.

Colonel Jackson has written extensively in professional publications and lectured around the world on law of war matters. Notably, he contributed to the Aspen casebook, “LOAC: An Operational Approach”, which was published to wide acclaim last year.

This article presents Colonel Jackson’s personal opinions. The views expressed as part of this academic discussion do not represent those of the US government, the Department of Defense, the US Army, or the ICRC.  The article reflects Colonel Jackson’s contacts with the ICRC, civil society groups like theLieber Society Interest Group of the American Society of International Lawhis experience teaching peacekeeping operations at San Remo (the International Institute of Humanitarian Law), and his experiences in multinational operations, including Haiti in 1994, the Balkans from 1994 to 2004, and Iraq in 2004.

He writes....

The short piece and interview with the ICRC’s chief legal advisor on multinational forces, Tristan Ferraro – published as the first installment in this series – provides a great introduction to the subject.  All of the topics he presented – definition of parties to the conflict, how and what version of IHL applies, characterization of the conflict, and what role other legal frameworks would play – are the key questions in this continuing dialogue between practitioners and academics, between States and international organizations, and between government representatives and civil society.

The best place to start in this discussion, I believe, is to trumpet a recent success in this endeavor.  The “Copenhagen Principles” on the handling of detainees in international military operations is clear evidence that states are engaged and working hard to define common standards in the conduct of coalition military operations in non-international armed conflict (NIAC).  In October last year, 24 States and representatives of several regional organizations, the UN, and the ICRC concluded a discussion on the appropriate process for handling detainees.  Although the Copenhagen Process created “principles and guidelines,” rather than a binding treaty on the subject, it demonstrates a desire of States and international organizations to develop principles to guide the implementation of existing obligations with respect to detention in international operations.  The preamble notes, that “Participants were motivated by the will to reinforce the principle of humane treatment of all persons who are detained or whose liberty is being restricted, to ensure respect for applicable international humanitarian law and human rights law by the detaining, transferring, and receiving States and organizations.”  A careful examination of the black-letter principles and guidelines agreed upon will reveal that the majority of its provisions can be derived from the law of armed conflict, or international humanitarian law, as well as concomitant provisions of customary international human rights law; it demonstrates much of the “complementarity” of the two regimes.

The Copenhagen Principles include: a recitation of the humane treatment provisions derived from Common Article 3 of the Geneva Conventions and Additional Protocol II (AP II), Articles 4 and 5; treatment standards which refer to adequate conditions of detention and the need to contact relatives, also from AP II; registration and access to the ICRC, a provision which is voluntary for states in NIAC, but mandatory in international armed conflict (IAC); notice and an opportunity to respond or appeal to an impartial authority, processing (administrative review) standards that are close to those required by IAC standards in Articles 42, 43, and 78 of the Civilians Convention; transfer provisions that are true to the non-refoulement provisions of human rights law and IHL; rights to complain about their treatment or conditions of confinement, which also are well grounded in the law of armed conflict for IAC; and a limitation on the use of force against detainees, beyond what is necessary and proportionate, a provision that is consistent with standard rules of engagement in international military operations.

Another trend that is apparent in recent multinational operations is an authorization for the use of force for mission accomplishment, to include protection of civilians or establishment of a safe and secure environment.  The use of force continuum in recent multinational conflicts has spanned from forces or individuals declared hostile [a clear armed conflict targeting standard] to the robust use of force to defend the multinational force, designated individuals (like aid workers), or civilians.  The recent authorization by the UN’s Stabilization Mission in the Democratic Republic of Congo (MONUSCO) to use force to expel elements of M23 (UNSCR 2098) is an example of the more bellicose, armed conflict standards being applied to UN peacekeepers.  And the forthcoming ICRC Expert Consultations on the Use of Force may also provide some evidence of the range of force many States employ in multinational operations, and their context.

In my experience, multinational organizations like NATO do not admit to being a party to a conflict, as they have no legal personality and States have subscribed to the IHL treaties.  But all troop-contributing nations (TCNs) to multinational operations sign up to IHL compliance in their operations [although many TCNs shy away from the war-fighting or detention functions]; and in UN operations, all TCNs are responsible for applying IHL to their operations, even if the characterization of the conflict (as an IAC, NIAC or lesser peacekeeping operation not involving armed conflict) has not been resolved.)  The Secretary General’s 1999 guidelines on the application of IHL in UN operations requires TCNs to comply with IHL in the conduct of their peacekeeping operations, no matter how characterized.  This approach, which is echoed in many States’ application of IHL by policy, or by analogy, in multinational operations, provides the protective cocoon of IHL over the victims of conflict and regulates the conduct of hostilities in an internationally accepted manner.

The debate will continue about what portions of human rights law - customary law, treaty law, host-nation domestic law, or the domestic law of the TCNs - will apply in multinational operations.  But the protective principles of the law of armed conflict, or IHL, for international armed conflict will continue to be prominent in multinational military activities.  That is the standard that coalition militaries train to and can apply across the spectrum of conflict [see NATO STANAG on IHL training]. It provides the “gold standard” of protection from the ravages of conflict.