Lt Col Ben Klappe, Asser Institute, The Hague, 7 November 2006

1. Fighting peacekeepers – applicability of IHL during UN Peace Operations Lt Col Ben Klappe, Asser Institute, The Hague, 7 November 2006

3. Surge of UN led PKOs

4. Contributions 1993 – 2006 (total)

5. SPECTRUM OF OPERATIONS Belligerent (Law of Armed Conflict applies) PeaceEnforcing Operational Environ- ment Traditional PK Observation missions Benign Level of Military Effort / Use of Force

6. MONUC CHAPTER VII ….Use all means necessary within its capacity and in the areas where its armed forces are deployed…

7. MONUC mandate SC Res 1565 ( 2004) excerpt (1) to deploy and maintain a presence in key areas of potential volatility in order to promote the re-establishment of confidence, to discourage violence, in particular by deterring the use or attempted use of force to threaten the political process, and to allow UN personnel to operate freely, particularly in the Eastern part of the DRC, including by the use of cordon and search tactics to disrupt the military capability of illegal armed groups that continue to use violence in those areas; (2) to ensure the protection of civilians, including humanitarian personnel, under imminent threat of physical violence, including by the use of cordon and search tactics against illegal armed groups that continue to use violence in the Eastern part of the DRC;

8. MONUC mandate SC Res 1565 ( 2004) excerpt (3) to ensure the protection of UN personnel, facilities, installations and equipment; (4) to ensure the security and freedom of movement of its personnel;

9. MONUC mandate SC Res 1565 ( 2004) excerpt (6) to monitor the implementation of the measures imposed by […] SC res 1493 (2003) including by inspecting, as it deems necessary and without notice, the cargo of aircraft and of any transport vehicle using the ports, airfields, military bases and border crossings in North and South Kivu and in Ituri; (7) to seize or collect, as appropriate, arms and any related materiel whose presence in the territory of the DRC violates the measures imposed by SC resolution 1493 and dispose of such arms and related materiel as appropriate;

10. MONUC mandate SC Res 1565 ( 2004) excerpt • in support for the Government of National Unity and Transition, to support operations to disarm foreign combatants led by the FARDC, including through measures such as: • cordon and search operations; • positioning itself, in close cooperation with the FARDC, to deter or prevent reprisal attacks by foreign elements against the Congolese civilian population;

11. UN Rules of Engagement Directives issued by DPKO Contain authorisation for as well as limitations on use of force during operations

12. EXECUTION OF ROE • The conduct of peacekeeping operations is guided by the Purposes of the UN Charter and relevant principles of international law. • ROE provide direction to commanders at all levels governing the use of force within the Mission Area. They define the degree and the manner in which force may be applied and are designed to ensure that the application of force is controlled and legal. • Military personnel must comply with the international legal principles of proportionality, the minimum use of force and the requirement to minimise the potential for collateral damage.

13. Principles • Use of Minimum Force • Self defense • Protect civilians under imminent threat of physical violence

14. Protection of civilians Use of force, up to and including deadly force, to protect civilians,including humanitarian workers, under imminent threat of physical violence is authorized. When and where possible, permission to use force should be sought from the immediate superior commander.

15. The following prohibitions are to be observed when authorized ROE are being used: (1) • Use of certain weapons and methods of combat under the relevant instruments of international humanitarian law, including, in particular, the prohibition on the use of asphyxiating, poisonous or other gases and biological methods of warfare; • bullets which explode, expand or flatten easily in the human body; and certain explosive projectiles. • The use of certain conventional weapons, such as non-detectable fragments, anti-personnel mines, booby traps and incendiary weapons.

16. The following prohibitions are to be observed when authorized ROE are being used: (2) • Use of weapons or methods of warfare which may cause superfluous injury or unnecessary suffering, or which are intended, or may be expected to cause, widespread, long-term and severe damage to the natural environment. • Use of weapons or methods of combat of a nature to cause unnecessary suffering. • Attacks on monuments of art, architecture or history, archaeological sites, works of art, places of worship and museums and libraries which constitute the cultural or spiritual heritage of peoples. In its area of operation, the UNPKO shall not use such cultural property or their immediate surroundings for purposes which might expose them to destruction or damage.

17. The following prohibitions are to be observed when authorized ROE are being used: (3) • Theft, pillage, misappropriation and any act of vandalism directed against cultural property. • Use of methods of warfare to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuff, crops, livestock and drinking water installations and supplies. • Making installations containing dangerous forces, namely dams, dikes and nuclear electrical generating stations, the object of military operations if such operations may cause the release of dangerous forces and consequent severe losses among the civilian population.

18. Hostile act An action where the intent is: to cause death, bodily harm or destruction of designated property.

19. Hostile intent The threat of imminent use of force, which is demonstrated through an action which appears to be preparatory to a hostile act. Only a reasonable belief in the hostile intent is required, before the use of force is authorized.

20. Detainment for security reasons 1st choice Apprehend & Detain Handover to local authorities as soon as possible temporarily • In custody of peacekeepers: • record key events and information • transfer to official place of custody • inform about reasons for detainment and rights • inform family • provide access to legal counsel

21. SG Bulletin: Observance by UN Forces of international humanitarian law - August 1999 • ApplicabilityThe fundamental principles and rules of IHL set out in the bulletin are applicable to UN forces when in situations of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement

22. SG Bulletin: Observance by UN Forces of international humanitarian law - August 1999 • Protection of civilian population • Means and methods of combat • Treatment of civilians and persons ‘hors de combat’ • Treatment of detained persons • Protection of the wounded, the sick and medical and relief personnel

23. Application of IHL to PSO • UN usually not a party to the conflict; • If UN engaged as a party UN bound by the rules of customary international law; • UN not a party to IHL Conventions; • Participating states when engaged in armed conflict are bound by IHL Conventions to which they are a party;