IHL & multinational forces part III: unexplored issues

James Ross (copyright: Human Rights Watch)

James Ross is Legal and Policy Director at Human Rights Watch, where he has worked since 2001.  He previously worked in the Humanitarian Affairs office of Médecins sans Frontières in the Netherlands, in Bosnia for the Organization for Security and Cooperation in Europe, in Cambodia for the International Human Rights Law Group, and in the Philippines for the Lawyers Committee for Human Rights.  He was among the student founders of the Harvard Law School Human Rights Program and later was a Visiting Fellow at the Program. He has written on the laws of war, human rights in Asia, and US national security issues.

The International Committee of the Red Cross (ICRC) sets out a range of international humanitarian law (IHL) issues concerning the increasing role played by multinational forces in peacekeeping and armed conflict situations. I think the issues raised are the right ones, a number of which cross my desk at Human Rights Watch in our own monitoring and reporting on the involvement of United Nations, NATO, and other multinational forces in potential and actual armed conflict situations.

Human Rights Watch has a similar mandate to that of the ICRC with respect to neutrality in armed conflicts and a civilian protection focus. We differ from the ICRC in that we don’t provide direct assistance or protection, and regularly speak out regarding our concerns and press for action.

It is important to note the chameleon-like role of United Nations “blue helmets” and other multinational forces, whose role may change with the circumstances.  During peacekeeping operations, peacekeepers not only get treated as civilians, but international law provides them special protections.  The Convention on the Safety of United Nations and Associated Personnel protects them from attack except when they are taking part in enforcement actions under Chapter VII of the UN Charter. The Rome Statute of the International Criminal Court makes it a war crime to “[i]ntentionally direct[] attacks against personnel, installations, material, units or vehicles involved in a … peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects” under IHL. 

Yet even short of a Chapter VII peace-enforcement mandate, “blue helmets” have engaged in operations, such as against the rebel Lord’s Resistance Army in central Africa, that makes them, for all intents and purposes, parties to an armed conflict.  One could try to treat them simply as civilians “directly participating in hostilities,” but their actual role has been more involved than that.  And at what point does an international peacekeeping force providing “civilian protection” cross the line and become an active participant in an armed conflict?  Engaging in counter-battery fire in Mogadishu to curtail shelling by al-Shabaab militants is very different from providing a safe haven for internally displaced civilians.

I agree with the ICRC’s view that “multinational forces are bound by IHL when conditions for its applicability have been met.” And that “[w]hen multinational forces with the consent of a host government are opposed to an organized non-state armed group (or groups),” the legal framework will be a non-international armed conflict – it will not transform that situation into an international armed conflict.  As the ICRC notes, the rules for the methods and means of warfare are pretty much the same for both types of conflict.  The trickier issues arise with respect to detainee treatment, where prisoner-of-war status only applies in international armed conflicts – those between states. 

Unlike in international armed conflicts, people detained in the context of a non-international armed conflict should be charged and tried in accordance with international human rights law, not detained indefinitely with just the protections of the Geneva Conventions.  In a situation such as Afghanistan, multinational forces cannot deprive persons of those protections that the government is obligated to meet under human rights law (even if turning them over to Afghan custody is precluded because of concerns about torture).  Human rights law does permit administrative detention, but as the UN Human Rights Committee has made clear, it does so with extensive protections that have often gone unmet by international forces in Afghanistan, such as the right to be brought before a judge or to have access to a lawyer.

The ICRC notes without criticism and even with some optimism the multiyear Copenhagen Process, which involved two-dozen states without civil society participation drawing up guidelines for detention in international military operations. As Amnesty International correctly noted at the time of the announcement of the principles in October 2012, “the Copenhagen Principles can be read as allowing for a lowering of standards to a kind of muddled compromise, in several respects falling well below even the ‘lowest common denominator’ among participating states.” The principles neither recognize nor affirm the applicability of international human rights law in situations of peace operations and non-international armed conflict.

Finally, determining who is a party to an armed conflict when a multinational force is involved is a difficult and largely unexplored matter, as the ICRC notes. 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.  In Human Rights Watch’s work, we have looked to make the specific national armed force involved responsible, but that is not always known nor a useful approach.  If AMISOM troops from various African Union countries are responsible for laws-of-war violations in Somalia, who is to be held accountable and how?  In such situations we have called for the multinational force, in this case AMISOM, to ensure that all credible allegations of abuses are promptly and impartially investigated by the force or force contributors and appropriate action is taken.

Accountability of multinational forces arose in Libya as well. NATO forces carried out a careful air campaign against Qaddafi forces in which there were relatively few civilian casualties. However, Human Rights Watch field research during and after the armed conflict uncovered several cases in which there were civilian casualties but no apparent military objective, raising possible laws-of-war violations.  As we said in our report “Unacknowledged Deaths,” Human Rights Watch submitted questions to NATO about civilian casualties on four occasions and later the same questions to the eight countries whose forces dropped ordnance in the air campaign. Seven of these countries replied with the identical response referring Human Rights Watch to NATO.

But assuming a NATO airstrike unlawfully caused civilian casualties, which individuals would be responsible? The Italian fighter pilot who dropped the bomb, the US intelligence personnel who provided the target information, the UK officer who ordered the strike, or someone else in the chain of command?

These issues have gone unresolved for too long as the role of multinational forces for a variety of purposes has increased. Hopefully, Human Rights Watch and other nongovernmental organizations involved in these issues can be part of that discussion.

Mr. Ross' views do not necessarily represent those of the ICRC.