IHL and Multinational Forces V: diverse views reflect need for clarity

By Andrew J. Carswell, Armed Forces Delegate for the ICRC in Washington DC

On the surface, the notion that multinational forces are governed by international humanitarian law (IHL) when engaged in armed conflict is straightforward, and we need only look to the general conditions of applicability for that body of law. By definition, a resort to armed force between two or more States, regardless of the way in which those States organize themselves, is covered by the relatively large body of treaty and customary law governing international armed conflict (IAC). Belligerent occupation, even if it meets no armed resistance, is governed by the same body of law. In contrast, an armed confrontation between a State and a non-State armed group will only trigger the application of the IHL governing non-international armed conflict (NIAC) if the armed group demonstrates a sufficient degree of organization, and if its hostilities with the State reach the level of intensity described in the case law of the international criminal tribunals.

Situations qualified as armed conflicts, whether international or non-international, trigger the application of IHL for the very reason that this body of law is objectively needed:  the protection afforded to wounded soldiers and civilians, detainees, and civilians caught up in the fighting is dictated by the specific context of armed conflict. Accordingly, from a strictly humanitarian perspective, there is no reason to distinguish between armed conflicts involving States acting of their own accord, and those involving States forming part of multinational forces or international organizations involved in peace operations. Regardless of the organization of a party to an armed conflict, the exercise of its military function is likely to give rise to the very situations that IHL is intended to mitigate. It has been asserted that, for humanitarian reasons, even NIACs involving multinational forces should be governed by the IAC legal framework. However, the IAC framework, including its acceptance of combatant privilege and Prisoner of War status, does not reflect the reality of conflicts involving non-State armed groups. In addition, past practice demonstrates that States and international organizations involved in armed conflict do not accept the de jure application of the law governing IAC when opposed to non-State armed groups.

Likewise, the mandate given to a multinational force is of no consequence to the applicability of IHL: even an otherwise innocuous blue-helmeted observer force acting under a UN Charter chapter VI mandate can cause the humanitarian consequences that IHL is designed to address, and can benefit from that law's protection, in cases where it is forced to return fire against armed actors in self-defence. Regardless of the special protection given to peacekeepers by the Convention on the Safety of United Nations and Associated Personnel, and by the Rome Statute of the International Criminal Court, once they engage in armed conflict, under IHL they may detain or become detainees, they may wound or become wounded, and the civilian population requires protection that is specific to the realities of armed conflict.

Nevertheless, there are several practical difficulties arising from the assertion that multinational forces, or their respective troop contributing nations (TCNs), are bound by IHL. These have been highlighted by four experts with diverse institutional perspectives contributing to this series: Dr. Tristan Ferraro, the ICRC's legal expert on multinational forces, Colonel (Ret'd) Richard Jackson, Special Assistant to the U.S. Army Judge Advocate General for Law of War Matters, Mr. James Ross, Legal and Policy Director for Human Rights Watch, and Professor Frédéric Mégret of the McGill University Faculty of Law.

What emerges from their contributions is a general agreement on the applicability of IHL to NATO, UN, and other multinational forces in appropriate circumstances. However, there is a wide discrepancy of views between the authors on the precise legal qualification of violence involving multinational forces, and the interaction of IHL and international human rights law (IHRL) during multinational operations.

Dr. Ferraro began the discussion with an unsettling fact: both states and international organizations are reticent to accept that they are party to an armed conflict, even when the facts on the ground objectively substantiate that qualification. Mr. Ross noted that, "making all member States of a multi-State organization a party to the conflict would create more questions than answers, as would simply making the organization itself the party."

What are the practical implications of this uncertainty? Worldwide, the ICRC engages in confidential dialogue with the respective parties to armed conflict regarding their IHL obligations – particularly those relating to detention and the conduct of hostilities. In the case of a multinational force, the ICRC must choose whether to speak to individual TCNs, to the international organization under whose umbrella they are fighting, or to both. The advantage of speaking to TCNs is that they are generally responsible for discipline within their respective forces, and can quickly carry out an internal investigation into alleged misconduct. Nevertheless, the international organization itself, notably because of the command and control it might exercise over the troops put at its disposal, is an important stakeholder from an operational, legal, and humanitarian perspective. It may also be the only entity that sees the "big picture" –  how the various TCNs work together in order to carry out a given operation – and it, too, can exert pressure on member States to ensure that individual soldiers remain accountable for their actions.

The situation is further complicated by the unfortunate politicization of legal qualification. For example, a State contributing troops to a traditional peacekeeping mission might be reticent to acknowledge that its troops have unwillingly engaged the State in an armed conflict, whereas it may be more palatable for it to accept that the international organization itself is a party. By the same token, as Mr. Jackson points out, multinational organizations may not admit to being party to a conflict since it is the States themselves that have subscribed to IHL treaties – although this is an arguably irrelevant consideration. One of the central practical problems of legal qualification is that the term "armed conflict" tends to be associated with the political notion of being at war; whereas, from a purely humanitarian perspective, it is merely a trigger for protection of the law.

Another crucial aspect of multinational forces raised by Prof. Mégret, Mr. Jackson, and Mr. Ross is the correlation between international human rights law and IHL during armed conflict. Mr. Jackson takes the view that IHL provides the "gold standard" of protection from the ravages of conflict, inclusive of the full spectrum of peacekeeping operations. Prof. Mégret takes an opposing view: from his perspective, the resort to force by peacekeepers should, in appropriate cases, adopt "the stricter standards of human rights law in terms of collateral casualties, or seek to arrest combatants rather than systematically destroy them". Taking issue with the Copenhagen Process on the Handling of Detainees in International Military Operations, Mr. Ross also endorses the application of IHRL in armed conflict, arguing that persons detained in the context of a non-international armed conflict should be prosecuted in accordance with human rights law, and not detained indefinitely under the framework of IHL.

Without delving deeply into ongoing debates on the interaction between IHL and IHRL, it is worth reiterating the ICRC's position that IHL is only applicable where the conditions for its applicability have been met. Accordingly, where peacekeepers are confronted with violence objectively falling short of the definition of armed conflict, the situation is governed by the use of force and detention standards of IHRL – bearing in mind that they may, as a function of their mandate, be simultaneous observers of an ongoing armed conflict between other parties (and civilians within that context).

However, where multinational forces do indeed become party to an armed conflict (which happens in a small minority of cases, e.g. in the execution of a robust chapter VII mandate), it is difficult to imagine how they could successfully neutralize the military threat posed by opposing forces while bound by the use of force standards of law enforcement. The fact that the situation is objectively qualified as an armed conflict reflects the reality that means and methods of warfare are generally required for the accomplishment of a military purpose – regardless of the label given to such forces. For similar reasons of military necessity, the ICRC takes the position that deprivation of liberty for reasons of security is an exceptional  measure of control that may be taken by the parties to a non-international armed conflict, subject to the procedural principles and safeguards provided by IHL, IHRL, and good policy. This of course does not preclude the possibility of prosecuting members of a non-State armed group who have participated in hostilities or otherwise breached domestic law, subject to relevant IHL and IHRL standards of humane treatment and fair trial.

In summary, it is essential to keep considerations of jus ad bellum and jus in bello separate in the qualification of violence to which peacekeepers become a party, lest the intended beneficiaries of IHL – and indeed IHRL – be denied appropriate protection for reasons unrelated to the prevailing conditions on the ground. Equally, it is important to ensure that the soldier on the ground is not sent mixed signals, whether he or she be deployed on behalf of NATO, the UN, or a regional organization. Military operational orders, rules of engagement, and rules on the use of force must clearly reflect the objective legal qualification, which may quickly shift depending on the role the multinational force and the tactical situation.

In view of the very legitimate concerns raised by the authors of this series, it is hoped that the ICRC's current consultation with States to clarify the applicability and application of IHL to multinational forces will result in a greater degree of legal certainty for the intended beneficiaries of that body of law.