|By Roy Gutman
In November 1994, as hundreds of Bosnian and Krajina Serb troops advanced on the UN-declared “safe area” of Bihac, disaster loomed for the municipal hospital, which stood directly in the path of the offensive and for the nine hundred immobile patients inside—as well as for the town of Bihac, which lay immediately beyond the institution grounds. The Canadian commander of UN forces in Bihac was reluctant to intervene, but the UN force’s civil affairs representative, an American, argued that hospitals have a “sacred” status under the 1949 Geneva Conventions, and the UN Protection Force (UNPROFOR) had to provide protection.
He sent a memo to this effect to his superior in Sarajevo, a Russian, who in turn issued a formal request. “The Geneva conventions stipulate that hospitals shall not be attacked . . . the support and concurrence of UNPROFOR military will also be needed. Please immediately pursue the plan with the Bihac commanding officer,” it said. The UN commander thereupon instructed Bangladeshi troops to drive their armored personnel carriers onto the hospital grounds. The Serbs refrained from attacking the hospital and halted the ground invasion. Bihac, with a population of seventy thousand, was saved.
Two weeks later, the UN’s Office of Legal Affairs (OLA) weighed in to ensure that the rescue of Bihac would not become a precedent. UN forces, an OLA representative said, were bound only by their Security Council mandate and were not legally obliged to uphold the conventions. “From a strictly legal point of view, obligations (such as the Geneva Conventions) are binding on States. The role of the UN is to carry out the will of the international community as expressed by it in the Security Council,” OLA official Stephen Katz said.
The incident was an illustration of the UN’s ambivalent relation to the Geneva Conventions at the time. Nearly every member-State is a legal party to the conventions, and each has undertaken “to respect and to ensure respect” of the provisions. But donning the blue helmets effectively provided States a way to escape their legal obligations.
When States assign troops to peacekeeping duties, the forces answer formally and solely to the Security Council, says the UN. (This is something of a fiction, because in operational terms they are officered, equipped, deployed, moved about, and directed through a national chain of command – at the insistence of the United States and many other countries.) But the United Nations as an intergovernmental institution is not a party to the conventions. Sometimes, on the eve of deployments, the Security Council would issue a statement reminding States of the applicability of the pertinent Geneva rules and the obligation to punish violations. Other times, the council would “forget” to mention the point.
When Iraq invaded Kuwait in 1990, the Security Council neglected for six weeks to mention the protections the Geneva Conventions guaranteed for civilians in Kuwait. When the council authorized the use of force to liberate Kuwait, the resolution failed to remind States in the coalition of their obligations as combatants under the Geneva Conventions or humanitarian law. In fact, one of the early sanctions resolutions violated the rule that requires free passage for many sorts of humanitarian aid intended for civilians, even civilians of an adversary. Concerning its operation in Bosnia-Herzegovina, as well as that of its peacekeeping operation in Cambodia in the early 1990s, the Security Council issued no statement on the relevance of humanitarian law to the UN peacekeeping deployment.
Tension over the conventions also reflected the different institutional cultures of the UN and the International Committee of the Red Cross (ICRC). The UN’s founding charter defined it as a body that would establish world peace—a lofty aim that seemingly precluded it from becoming a combatant or occupying power. The UN opted out of a role in the codification of the laws of war in 1949 with a condescending dismissal of the enterprise. “War having been outlawed, the regulation of its conduct has ceased to be relevant,” the UN International Law Commission explained. For this reason, the drafting was undertaken under ICRC auspices in Geneva.
The arms-length attitude of the UN headquarters had its counterpart in the field. In the absence of a controlling international legal regime, and with ambiguous mandates that often drifted from passive peacekeeping to active peace-enforcing, the military on the ground would take charge. Field commanders, bearing in mind the often-clearer priorities of their own governments, would answer formally to a Security Council that was incapable of managing from long distance. Often the commanders would pick and choose what they did, based on their reading of the mandate. War crimes got short shrift. In Bosnia, UN personnel in mid-1992 visited Sonja’s Kon-Tiki, a restaurant-pension outside Sarajevo, on whose grounds, according to the Bosnian government, was a Serb-run concentration camp. UN forces never asked questions, investigated, or protested, explaining that neither the UN command nor their governments had provided them any lists of concentration camps. In Somalia, when Canadian soldiers killed a Somali intruder in cold blood in March 1993, the Canadian commander did not punish the crime but covered it up. (Following an official inquiry, the Airborne Regiment involved was later disbanded.) Later that year, UN forces detained hundreds of Somalis, then denied the ICRC access to them and persisted until the ICRC suspended all operations in protest.
The anomaly troubled many thoughtful UN officials. The Serb-run camp was “so blatant” a violation of international law, said Kofi Annan, who served as UN Secretary-General from 1997 to 2006. “They should have seen it and reported. And in fact if they had reported, it is the sort of thing that would have gone public much earlier than it did.” As for the UN legal office’s view of the conventions, “We have asked them to respect the Geneva Conventions whether we signed it or not.” But he also expressed understanding for troops in the absence of explicit Security Council mandates. “Soldiers like to have a clear mandate,” he said. “They will not go out of their way” to look for war crimes.
After six years of discussion between ICRC and UN experts, Annan issued a bulletin in August 1999 on the observance by UN forces of International Humanitarian Law. It stated that the rules and principles of IHL are binding on military personnel and set out many of the basic rules of the Geneva Conventions. But the statement stipulated that violations are subject to prosecution in national courts, thus thus avoiding an endorsement of the principle of universal jurisdiction. “We fought and lost that battle,” commented an ICRC legal expert. Annan’s statement did not result from a negotiation and is not legally binding. A number of States including some permanent members of the Security Council later voiced reservations but did not formally challenge it. Still, in the seven years after Annan promulgated the statement, it may have had a positive impact. Blatant disregard for the conventions by UN peacekeepers seems to have given way to a greater respect.