That is why the United Nations has established a special system of extrajudicial commissions for peacekeeping operations. This is the only recourse available to individuals against the United Nations. It is also accessible to legal persons, i.e. NGOs. Therefore, any agreement signed between the United Nations and a host State stipulates that any dispute or complaint in the field of private law in which the United Nations is involved must be submitted to that commission. From a legal point of view, it was necessary to extend the possibility of using military force beyond situations of self-defence, without, however, transforming UN troops into combat troops involved in the conflict. The Rome Statute of the ICC and customary humanitarian law stipulate that it is prohibited to direct an attack against personnel and objects participating in a peacekeeping mission in accordance with the Charter of the United Nations as long as they are entitled to the protection accorded to civilians and civilian objects under international humanitarian law (Rule 33 of the ICRC Rules of Customary Law and the Statute of the Rome, 8.2.b.iii IAC and art. 8.2.c.iii NIAC). The starting point for any discussion of the legal framework for United Nations peacekeeping operations is that the authority to conduct or establish such operations is nowhere to be found in the Charter of the United Nations. On the contrary, the legal basis for peacekeeping is most often found in the implicit powers of the organization. Footnote 1 One researcher argues that this can be interpreted as an interim measure under section 40, footnote 2, while Christine Gray argues that „the debate does not appear to have any practical significance.“ Footnote 3 This means, however, that the rules specific to peace operations are not set out in the Charter; On the contrary, they have evolved over the past six decades thanks to the doctrine of peacekeeping. Footnote 4 Most UN peacekeeping operations are established by a Security Council resolution – sometimes under Chapter VII (or in part), but often no chapter or article is indicated.
The General Assembly can also set up peace operations using the „Uniting for Peace“ resolution, but it has rarely done so. Footnote 5 In contrast, the law enforcement activities that the UN was supposed to conduct with armed forces under Article 43 of the Charter were instead conducted by states, regional organizations or coalitions of states with the approval of the UN Security Council. Footnote 6 Since the end of the Cold War, the United Nations has been increasingly called upon for this type of operation. Since 1988, the Security Council has deployed three times as many PKO organizations as it did forty years ago. As of June 2015, sixteen peacekeeping operations were active, involving 94,000 uniformed personnel (including soldiers, observers and police) from 120 countries. The increase in peacekeeping operations had financial implications: the special budget for peacekeeping operations had been initiated. In 1975, the PKO`s budget was $153 million, peaked at $3.6 billion in 1995 at the time of the operation in the former Yugoslavia, then fell to $1 billion in 1998 and finally reached $7.6 billion for the period 2011-2012. The budget is based on a specially barbed wire formula that defines four categories of contributors, a modified version of the scale used for the United Nations regular budget, from the permanent members of the Security Council to the poorest States. In reality, UCIs are financed almost exclusively by the most industrialized States, even though many of them pay their contributions more than a year late; As at June 2012, unpaid assessed contributions for peacekeeping operations amounted to approximately $1.26 billion. These changes have led to a new type of operation combining military and humanitarian components, mainly used in internal conflicts or other crisis situations.
Some call them third-generation peacekeeping operations, while others distinguish between more traditional peacekeeping operations and a new form of peace enforcement or peacemaking. Chapter VII of the Charter of the United Nations does not yet provide for any of these types of operations, although it is used as a basis for the use of force by United Nations resolutions authorizing such operations. ▸ Intervention The Charter of the United Nations confers on the Security Council the primary responsibility for the maintenance of international peace and security. However, if the General Assembly does not act for lack of unanimity among the permanent members, it may act (resolution 377 [V], adopted by the General Assembly in November 1950, entitled „Association for Peace“). In the event of a threat to international peace and security, a breach of the peace or an act of aggression, the General Assembly may not decide to use force, but may immediately consider the matter and make recommendations to Members for collective action to maintain or restore international peace and security. It could also refer the matter to the International Court of Justice, as it had done on several occasions, including in 2004, on the legal consequences of Israel`s construction of a wall in the Occupied Palestinian Territory. Yet, once again, the ability to hold peacekeepers accountable is hampered by the jurisdictional immunity enjoyed by peacekeepers by virtue of their status as subsidiary organs of the United Nations (under the 1946 Convention on the Privileges and Immunities of the United Nations). This immunity is mentioned in the various agreements signed when the force was created – an important part of the agreement for contributing countries. Members of the PKO thus enjoy immunity from legal process for acts committed in the exercise of their functions.
And they continue to enjoy this immunity even if they are no longer members of the operation. The increased use of force in new peacekeeping operations raises the question of the application of international humanitarian law to United Nations armed forces and the liability of members of those forces for misconduct in the field. Since 1956, the International Committee of the Red Cross has established that humanitarian law applies to United Nations forces. This statement was opposed by the UN itself and its member states and remains controversial for political and legal reasons. Indeed, it is not the United Nations as such, but its member States that are signatories to the Geneva Conventions and their Additional Protocols. Similarly, these conventions did not anticipate the specific cases of peacekeeping operations. For years, the compromise has been to include clauses on respect for the spirit and principles of international humanitarian law in the mandates of these operations. This reference includes the Geneva Conventions of 1949, their Additional Protocols of 1977 and the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict. Since 1992, this clause has been included in most agreements signed between UN forces and the government of the country where they were stationed. Some of the recent agreements stipulate that the UN must ensure that the mission is carried out in order to respect not only the „principles and spirit“ but also the „principles and rules“ of international conventions on the conduct of military personnel. Following attacks and violence against peacekeepers in the field, the Convention on the Safety and Security of United Nations and Associated Personnel, adopted by the United Nations General Assembly on 9 December 1994 (A/res./49/59) and adopted on 15 December 1994, confirmed the adoption of the United Nations General Assembly. January 1999, and indirectly that humanitarian law applies to these operations.
Although Article 2.2 of the text states that the Convention shall not apply to United Nations forces deployed in peacekeeping operations mandated by the Security Council under Chapter VII of the Charter, Article 20 recalls that the Convention is without prejudice to the applicability of humanitarian law to the acts of United Nations personnel. In practice, however, it is difficult to hold the United Nations to account, whether before international or national bodies. At the international level, available remedies only work if the victims are States or international organizations. Consequently, natural persons or other legal entities (e.g. NGOs) do not bring proceedings before an international body for injury caused by an international organization, unless the institutional system of the organization itself provides for such a possibility. The increase in the number of peacekeeping operations has been accompanied by a change in the nature of the response. In the Agenda for Peace (A/47/277-S/24111, 17 June 1992), the then Secretary-General, Boutros Boutros-Ghali, attempted to rationalize the various types of peacekeeping operations by establishing precise definitions of peacekeeping, peacemaking and preventive diplomacy. In its Supplement to the 1995 Agenda for Peace (A/50/60-S/1995/1, 3.
January 1995), he noted that United Nations instruments for the control and resolution of conflicts between and within States included preventive diplomacy and peacemaking; Peacekeeping; peacebuilding; Disarmament; Sanctions; and peace enforcement“, demonstrating the different types of POM.
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