The Applicability of IHL to Peace Operations - the Perspective of the United Nations

Colonel Ben Klappe, Saturday 6th September, Plenary Session on the Applicability of International Humanitarian Law to Peace Operations.

The Perspective of the United Nations

Mr. Chair, Excellencies, Ladies and Gentlemen,

It is a great pleasure for me to be back in Sanremo. I had the pleasure of working with the military department organising the training in the law of armed conflict of officers from all over the world and it is a great pleasure to be back in Sanremo and contribute to this Round Table.

That reminds me of an example of the applicability of the principles of international humanitarian law to peacekeeping some fifteen years ago when UNPROFOR was deployed in the former Yugoslavia. At one point in time an armed patrol received sniper fire from a cottage up in the hills. There were UNPROFOR APCs and tanks there. The response to that sniper fire was a heavy response. The patrol fired 37 tank rounds into that small cottage, effectively destroying the cottage. So when the force Commander came to see the sergeant in control of that patrol the next day, he said, “Sergeant, you effectively destroyed that target there. You acted in self-defence, I’m sure, but why 37 rounds?” And she said, “sorry Sir, it’s all I had”.

So the issue of proportionality wasn’t made quite clear to the lady in charge of that tank patrol. Nevertheless, I will show a few pictures and try to explain the dilemmas and issues that come up when peacekeepers are deployed in the field. I also would like to tell a bit more about the training activities of the Department of Peacekeeping Operations and in particular the Integrated Training Service, as it is called.

So, we perhaps remember this picture (shows picture) from the early 90s where peacekeepers found, as they said, that the mandate “isn’t good enough and our hands are tied”; “the rules of engagement are not complying with the situation we find ourselves in.”

Well, times have changed and all United Nations Security Council resolutions these days maintain that typical phrase: “to protect civilians”; the authority of the peacekeeping force to protect civilians from the imminent threat of physical violence. Now, basically, that leaves it up to a commander – to a force commander, but also subordinate commanders – to determine when there is an imminent threat to civilians.

And how imminent is imminent? That is the next question a soldier on the ground should answer if he uses force other than self-defence. This was the situation in Haiti, in the streets of Port-au-Prince and Cité Soleil a few years ago. Peacekeepers do use force and are authorised to use force. But then the question is the Secretary-General’s Bulletin: is force in this situation for the soldier really relevant? If he qualifies it as an internal armed conflict, or he qualifies a situation as a situation of an armed conflict for the purposes of the bulletin, then the Bulletin says the principles of international humanitarian law as laid down in the Bulletin are applicable to the situation. So there is no question of whether it is an armed conflict or a non-armed conflict. The question here is whether these principles as laid down in the Bulletin – namely the distinction between civilians and combatants, the treatment of detainees, the treatment of civilians, the treatment of persons hors de combat (this is a limited sum-up in the bulletin) – as I would argue, apply at all times. So even if the threshold of an armed conflict is not met, the principles can be applied in any case. And these principles are also laid down in the standard operational procedures on the use of force. And in the rules of engagement you find a reflection of the international humanitarian law principles.

In a questionnaire filled out some time ago, UNIFIL soldiers were asked if they had ever heard of the Geneva Conventions or the laws of armed conflict. Fortunately 98% said “yes”. And even more fortunate, 86% said they would like to know more about it. But then, unfortunately: “did you receive adequate instruction from your national army on meaning and relevance of the Geneva Conventions?” 71% said “no”. The questionnaire continued and asked: “do you think the Geneva Conventions have any relevance in peacekeeping missions?”. 71% said “yes”. And then another good thing, I would say: “the last time you received military instruction on the Geneva Conventions?” 67% said “during my UNIFIL training” – the pre-deployment training. Then: “how would you rate your own understanding of the Geneva Conventions?” 65% said poor.

Now this is a questionnaire with soldiers who were deployed in a mission. But if you’d have asked “are you aware of your rules of engagement?”, 100% would’ve said yes, hopefully. If you’d have asked them “are you aware on the SOP on detention?”, 100% would’ve said “yes: detention, there is the SOP, I’ve been informed on the SOP.” So what I mean is, it’s not all the Geneva Conventions and law of armed conflict as it is called, it is the principles derived from the treaties and the conventions that are integrated in these instructions.

Let me remind you that IHL training and dissemination is first and foremost the responsibility of the member states - the High Contracting parties, as laid down in the various articles of the conventions.

What are the human rights and international humanitarian law rules where elements of these treaties and rights can possibly be applied? That is, during the monitoring and reporting of violations. They have a deterrent effect through their presence and they have the authority and the capacity to stop the abuses of human rights. And in doing so they maintain the credibility of the organisation.

So, as I said on the rules of engagement, I will give you the example of distinction, military necessity and proportionality. It is in the rules of engagement and is explained in the instruction part that every soldier carries with him .The prohibitions under the rules of engagement as laid down in the various annexes in the Bulletin are derived from international humanitarian law treaties and provisions.

So now to the Integrated Training Service. There’s a team of very well-experienced trainers: national trainers seconded by their government; civilian trainers; specialists in training, military and police trainers working with the Department of Peacekeeping Operations for a number of years. Of thirty of them, a few are based in Brindisi as their forward operating base – their ‘executive branch’ of the Integrated Training Service. The rest is developing training materials, distributing training materials and peacekeeping materials to the various contributing countries. They conduct pre-deployment training; they send assessment companies to assess whether their troops are up to standard that includes also international humanitarian law standards and training. And this, of course, is a sensitive matter, because who is the UN to declare that a country is not up to speed with the training of their troops? Unfortunately with the re-hatting of operations of regional organisations that, according to the UN, were not up to standard they were not accepted with blue helmets. So the Peacekeeping Department and the Integrated Training Service have developed standard generic training modules and they are widely distributed and widely used for the dissemination and pre-deployment training of troops and they are also used for in-mission training. In all missions there’s a small skeleton staff of two to four that is assisting the troop contributing countries and the units to conduct in-mission training.

We spoke about the relevance of the Secretary-General’s Bulletin, and the Integrated Training Service is currently developing a generic training package that will be mandatory for all pre-deployment training to support Security Council Resolution 1296 on the Protection of Civilians in Armed Conflict. Of other partners in training, the Office of the High Commissioner for Human Rights has developed a series of human rights training packages also used partly in pre-deployment training, and in in-mission training which contains also a module on international humanitarian law. Of the ICRC, you’ve heard the activities in the various missions. Of course there is the on-line training and e-learning organisation UNITAR, which has changed names now.

Training should be practical and should be – and still is – a command responsibility. Here is an example: you heard Mrs. Telalian this morning speaking on the sexual exploitation and abuse issue as an example of training material. It’s a poster distributed in the mission in Côte d’Ivoire. It clearly tries in very simple pictures to illustrate that sexual exploitation and abuse will result in repatriation, dismissal and in jail time. We’ve seen the problems of proving beyond reasonable doubt that these acts have happened of coming to a conviction. But the efforts are there.

Let me conclude with examples of practical training that could be conducted in the field. A situation like this leaves the 18 or 19 year old soldier with just a split second to decide: is it a hostile act or hostile intent? He should have these definitions clear in mind. A hostile act: an action that will threaten life or result in the physical disability of a person. That is a hostile act. Is it a hostile act or intent? Is it a preparatory action leading to a hostile act? The Secretary-General’s Bulletin flashes through his mind in that split second as well. Is it a combatant or a non-combatant? Does it make a difference for the solider? It is a threat whether it is a child, a woman or an adult?

Children are, I suppose, even more unpredictable and are an even higher threat to the soldier. So the basic response here is: “am I to fire, am I not to fire?” Ideally, you would have the same response from Nigerian soldiers and French soldiers. Ideally. But we’ve seen cases in missions in Liberia in the streets of Monrovia where a Nigerian soldier will grab a child’s ear and say “give me that weapon”, and he will comply. But at the same time, some countries will have as their standard response: one shot aimed at he heart, and one at the head. It depends on how countries are trained, their perception of the situation and their individual response. You cannot show him the picture and tell him: “this is the way you should respond.” It all depends on the situation the soldier finds himself in on the ground.

I would like to conclude here because you’ve already seen an excellent sum up of General Dahinden on the red line in training and I think that that is precisely what the UN and the ITS is trying to achieve.

Thank you very much for your attention.