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. The Canadian commander of UN forces in Bihac was reluctant to intervene. 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 an obligation to protect this one.
He drafted a memo to this effect, and his superior in Sarajevo, a Russian, 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. Acting on the memo, the commander instructed Bangladeshi troops to drive their armored personnel carriers onto the hospital grounds. The Serbs refrained from attacking the hospital, and the ground invasion was halted. Bihac, a town of seventy thousand, was saved.
Two weeks later, the UN's Office of Legal Affairs (OLA), weighed in to ensure that the saving of Bihac did not set a precedent. UN forces, an OLA representative said, are bound only by their Security Council mandate and are 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 illustrates the UN's ambivalent relation to the Geneva Conventions. Nearly every member-State is a legal party to the conventions, and each has undertaken by ratifying them "to respect and to ensure respect" of the provisions. But donning the blue helmets seems to provide 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 is not a party to the conventions. Sometimes, on the eve of deployments, the Security Council issues a statement reminding States of the applicability of the pertinent Geneva rules and the obligation to punish violations. Other times, the council "forgets" 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 recent peacekeeping operation in Cambodia, the Security Council issued no statement on the relevance of humanitarian law to the UN peacekeeping deployment.
Tension over the conventions reflects 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 precludes 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 has its counterpart in the field. In the absence of a controlling international legal regime, and with ambiguous mandates that often drift from passive peacekeeping to active peace-enforcing, the military on the ground takes charge. Field commanders, bearing in mind the often-clearer priorities of their own governments, formally answer to a Security Council that is incapable of managing from long distance. Often the commanders pick and choose what they do based on their reading of the mandate. War crimes get 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 ICRC access to prisoners of war and persisted until the ICRC suspended all operations in protest.
The anomaly troubles many thoughtful UN officials. The Serb-run camp was "so blatant" a violation of international law, said Kofi Annan, now the UN Secretary-General. "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.
The ICRC's ideal solution, according to a senior official, is to "declare openly that UN troops are bound by international humanitarian law and that everyone under the UN flag will be informed, trained, and monitored." Whether that will occur is unclear. ICRC and UN experts have discussed since 1993 a set of guidelines governing UN forces in combat, and it was still in the drafting stage at the time of writing. A draft in early 1998 required UN troops only to "respect the principles and spirit of international humanitarian law," without binding them legally; a later draft asserted the applicability of the Geneva Conventions by virtue of the fact that UN members are party to the treaties. But both drafts envisioned that a UN soldier who commits a prohibited act could be tried by his own government but not by another State or by a tribunal, thus averting universal jurisdiction. "We fought and lost that battle," commented an ICRC legal expert. ICRC officials, asserting that universal jurisdiction applies nevertheless, hope that the establishment of an International Criminal Court will set a new standard that UN peacekeepers will not be able to ignore.
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