**United Nations Peace Operations:**

**Applicable Norms and the Application of**

**the Law of Armed Conflict**

[Major Joseph P. "Dutch" Bialke]{.smallcaps}[^1]

# 

# I. INTRODUCTION

With this new millennium comes a New World. Because of unprecedented
advances in travel and communication over the previous century, it is a
decisively smaller world. This smaller world emphasizes nation-state
differences in ideologies, political economies, and cultures. Although
the world is in constant turmoil and military conflict, this turmoil is
currently manageable.

The United Nations (UN), with all its flaws, appears to be the foremost
global structure capable of ensuring, maintaining, and making world
peace in the new millennium. In 1945, the "Peoples of the United
Nations" declared they were determined "to save succeeding generations
from the scourge of war . . . to unite our strength to maintain
international peace and security, and . . . to ensure . . . that armed
force shall not be used, save in the common interest."[^2] The hope was
that nations, acting in concert and pursuing a common goal of peace,
would produce a stable world.

In the Preamble to its Charter, the UN placed the maintenance of peace
among nations as its primary reason for existence.[^3] Similarly,
Article 1 of the Charter states that the maintenance of "international
peace and security" is one of the UN's purposes.[^4] Indeed, the fact
that it is listed first suggests it is the overriding purpose. However,
if the UN Member States wish to preserve their moral authority to
maintain peace, they must not sit idle during times of conflict.[^5]
Rather, they, through the UN, must be both reactive and proactive in
maintaining peace and security.

The UN Charter obligates Member States to settle their disputes
peacefully and to "refrain from the threat or use of force against the
territorial integrity or political independence of any state."[^6]
Members may not use force against one another, unless either exercising
the "inherent right of individual or collective self-defence if an armed
attack occurs,"[^7] or giving assistance to the UN when it is "taking
preventive or enforcement action."[^8] Further, Member States are
obligated to "accept and carry out the decisions of the Security Council
in accordance with the present Charter."[^9]

As the world enters this new millennium, conflicts will inevitably occur
between nation-states and civil wars will arise. Armed conflict, both
international and internal, will continue.[^10] However, the opportunity
exists to make these conflicts less frequent and destructive as UN
peacekeeping operations enter into a new era. The UN Charter provides
the mechanisms, if they are properly applied, to manage conflicts
throughout the globe. The UN Charter is a living political document,
flexible enough to deal adequately with crises as they occur as long as
the Member States have the collective political will to continue to
effectively participate in peace operations.

These peace operations range from initial UN Charter classical
peacekeeping operations under Chapter VI,[^11] to the current trend of
"active and robust" Chapters VI[^12] and VII peace-enforcement
operations.[^13] The number, diversity and spectrum of current peace
operations present cogent issues regarding the application of the
international law of armed conflict.[^14]

The international law of armed conflict does not apply to classic "blue
helmet" UN peacekeepers because they are not combatants,[^15] that is,
they are not engaging in military offensive operations. Blue helmet
peacekeepers are authorized to use force only in self-defense.
Conversely, it is well settled that the law of armed conflict does apply
when forces authorized by the UN are "engaged in hostilities as a
belligerent," such as in the Korean or the Persian Gulf Conflicts.[^16]
In such cases, the UN forces are "treated in exactly the same way as the
armed forces of a state."[^17] However, how the international law of
armed conflict applies to post-Cold war UN peacekeeping operations when
these operations become more active and robust, approaching combat, is
not clear. Such robust operations include, for example, Somalia and
Bosnia-Herzegovina, as well as the continuing mission to enforce the
no-fly zone in Iraq.[^18] The central issue is whether, and in what
manner, the law of armed conflict applies to UN peacekeeping operations
that arguably cross the threshold into armed conflict.

This article begins by detailing the history and applicable norms of UN
peacekeeping and peace-enforcement operations, to include the use of
force in self-defense as applicable to "classical" peacekeeping
operations. The article then illustrates how the "principles and spirit"
of the international law of armed conflict have been followed in
traditional peacekeeping operations, as well as during robust
peacekeeping operations. The article explains how, through practice, the
international law of armed conflict has been followed in UN
peace-enforcement operations, and argues the importance of keeping clear
distinctions between UN peacekeeping and peace-enforcement operations.
Additionally, the article briefly examines the recent Convention on the
Safety of UN and Associated Personnel.

Following this, the article delves into the current uncertainty as to
how and when the international law of armed conflict, the *ius in
bello*,[^19] applies to UN military forces. The article illustrates the
past practice and position of the UN to not apply the law of armed
conflict to peacekeeping operations, instead applying only the
"principles and spirit" of the law. The article explains the importance
of, in certain circumstances, UN military forces following the law of
armed conflict so that the forces they oppose will reciprocate. The
article then discusses the application of the law of armed conflict to
UN peace-enforcement operations.

The article addresses whether the UN is bound by the international law
of armed conflict, regardless of whether the UN is a signatory to the
applicable Conventions. The article concludes that the law of armed
conflict applies to peacekeeping forces if and when the forces cross the
Geneva Conventions Common Article 2 threshold. However, the article
posits that the armed conflict threshold for forces acting under the
authority of the UN Security Council is somewhat higher than it is for
conflicts between nation-states. Finally, the article asserts that the
UN has the responsibility and duty to make clear the applicability or
non-applicability of the international law of armed conflict to its
peacekeeping forces, and recommends that if it is to be credible and
effective in securing and maintaining global peace in this new
millennium, the UN must do so.

**II. VARIATIONS AND NORMS OF UNITED NATIONS**

**PEACE OPERATIONS**

**A. Background and History of United Nations Chapter VI Peacekeeping**

In 1945, the Security Council was conferred the "primary responsibility
for the maintenance of international peace and security."[^20] The five
permanent Members of the Council[^21] were each given veto power,[^22]
pragmatically reflecting that, in order to maintain peace, there must be
a consensus among the major powers. Following World War II, the drafters
of the UN Charter presumed the victors, acting perhaps out of
enlightened self-interest, would continue to cooperate with each other,
in light of their recent successful joint effort. Instead, the opposite
occurred. The world immediately became bi-polar with conflicting Western
democratic and Eastern communistic political ideologies undermining the
new UN security mechanism.[^23] This was the start of the "Cold War."

During the Cold War, instead of greater cooperation among world powers,
the powers continued to grow apart.[^24] The East-West rivalry rendered
the security enforcement mechanism envisaged by the UN Charter utterly
ineffectual. The veto power of the Security Council's permanent Members
frustrated any attempt to exercise its Chapter VII security and
peace-enforcement responsibility. Initiative after initiative failed as
one or more of the permanent Members vetoed them. Yet, conflicts
continued throughout the globe---some related to the end of the era of
European colonialism and some growing out of local conflicts. Both types
of conflicts were frequently "affected and aggravated" by the ongoing
Cold War between the great world powers.[^25]

Indeed, the veto authority became a real impediment to peace. During the
Cold War from 1945-1990, Security Council permanent Members vetoed 279
resolutions, effectively preventing the UN from taking constructive and
determined action in over one hundred major conflicts. Those conflicts
resulted in approximately twenty million deaths.[^26] In response, and
to facilitate the "adjustment or settlement of international disputes or
situations which might lead to a breach of the peace,"[^27] the UN
generated a compromise---peacekeeping.[^28]

# *1. Classical United Nations Peacekeeping: United Nations*

# *Chapter VI---Pacific Settlement of Disputes*[^29]

The UN Charter does not explicitly mention, nor authorize, peacekeeping.
In actuality, the UN invented the concept. Peacekeeping operations
loosely developed out of the UN Charter, specifically, Chapter VI,
entitled "Pacific Settlement of Disputes." Chapter VI directs that the
Security Council may investigate situations that might lead to potential
conflict. The Security Council, after considering any dispute
settlement-procedures previously adopted by the parties to the conflict,
may make recommendations to resolve the conflict.[^30] Yet, peacekeeping
is not expressly addressed within Chapter VI. Rather, it is inferred
from Article 33 of the Charter.[^31] A peacekeeping mission, in
accordance with Article 33, is a "peaceful means" chosen and consented
to by the parties to pursue a peaceful settlement of a conflict.[^32]

The Charter originally did not anticipate military forces, deployed
under UN authority, interposing themselves between parties to an armed
conflict. However, the Charter is a flexible political document
containing many possibilities and interpretations, depending upon the
international situation. The creation of peacekeeping is the pragmatic
realization of one of these possibilities.[^33] In the words of a former
UN Under Secretary-General for Political Affairs, "\[t\]he technique of
peace-keeping is a distinctive innovation by the United Nations. The
Charter does not mention it. It was discovered, like penicillin. We came
across it, while looking for something else, during an investigation of
the guerrilla fighting in northern Greece in 1947."[^34]

Although not specifically mentioned in the UN Charter, peacekeeping is
implied from the UN's primary purpose. Article 1, as stated earlier,
denotes that the primary purpose of the UN is to maintain international
peace and security. It follows that the UN should be empowered with the
means to fulfill its purpose.[^35] The powers of the UN can not be
ascertained by construing the Charter strictly. To do so would severely
constrain the UN and could prevent it from ever acting. The UN must have
implied powers to allow it to act to achieve its chartered mandate.
Through its implied powers, the UN has created peace observer and
peacekeeping units as an approved method of fulfilling its primary
purpose.[^36] Although peacekeeping operations are not specifically
mentioned in the UN Charter, the International Court of Justice
established that the Charter was sufficiently broad enough to allow the
Security Council to monitor a conflict without having to resort to a
Chapter VII peace-enforcement action.[^37]

Essentially, peacekeeping operations are a "stop-gap" measure that
suspends a conflict in order to allow the peace process to occur.[^38]
In 1948, the UN mounted its first peacekeeping operation under Chapter
VI. The United Nations Truce Supervision Organization (UNTSO) went to
the Middle East to monitor the truce in the 1948 Arab-Israeli War. The
unarmed observers of UNTSO continue their mission in the Middle East
today. They work alongside the two armed Middle East peacekeeping
organizations: the United Nations Disengagement Observer Force (UNDOF)
in the Golan Heights and the United Nations Interim Force in Lebanon
(UNIFIL).[^39]

To be effective, a peacekeeping mission must be constructed according to
the nature of the conflict, the parties involved, and the stability or
fragility of the negotiated stay of the hostilities. Consequently,
peacekeeping missions are as diverse as are the conflicts that generate
them. For example, the UNTSO was deployed to monitor a cease-fire, while
the United Nations Force in Cyprus (UNFICYP) and the United Nations
Interim Force in Lebanon (UNIFIL) placed themselves between the parties
to the conflicts preventing one side from crossing into the territory of
the other. The Suez Canal/Sinai Peninsula Middle East United Nations
Emergency Force II (UNEF II) also occupied a "buffer zone," assisting
the parties to the conflict to disengage and withdraw their forces. The
Golan Heights United Nations Disengagement Observer Force (UNDOF)
mandate included inspecting and verifying that the sides were complying
with their accepted force sizes and weapons limits. Further exemplifying
the diversity of peacekeeping operations, peacekeepers in both the
Operations des Nations Unies au Congo (ONUC) and the UNFICYP directly
assisted the parties to resolve their numerous ongoing
controversies[^40] by acting as on-the-spot mediators, directly
participating in negotiations between the parties.

# *2. Chapter VI ½: Classical/Traditional Peacekeeping---The* 

# *Applicable Norms*

Classical, or what is also referred to as traditional, peacekeeping
necessarily grew out of East-West Cold War antagonism in order to "fill
a void created by the Cold War."[^41] Something needed to be done to
help resolve regional conflicts, but permanent Members of the Security
Council on one side of the bi-polar Cold War world simply vetoed
resolutions that appeared beneficial to the other side and vice-versa.
The UN created an end-run around this persistent use of the Security
Council veto. This development is now known as "classical" peacekeeping,
and its source---Chapter VI ½. As a result, the UN was able to do
something to bring about the "adjustment or settlement of international
disputes or situations that may lead to the breach of the peace."[^42]

Though classical peacekeeping is not explicitly authorized in either
Chapter VI or VII, it has an ever-increasing scope. Peacekeeping is more
than just investigating and making recommendations to the parties on how
to resolve a conflict as envisioned within the context of UN Charter
Chapter VI. As a result, Secretary-General Dag Hammarskjold quaintly,
but poignantly, expressed that classical peacekeeping is authorized by
"United Nations Chapter VI and ½."[^43] This characterization by the
former Secretary-General deftly acknowledged that classical peacekeeping
is truly a creative endeavor. Yet, the Secretary-General's jocose
description also anticipated the great difficulty in determining
precisely where classical peacekeeping lies on the international
diplomacy spectrums between "consent and coercion" and "passivity and
force."[^44]

Ultimately, Chapter VI and ½ peacekeeping is much more restrained than a
Chapter VII peace-enforcement action. Classical peacekeeping is a sort
of hybrid action of the United Nations---more vigorous than what Chapter
VI authorizes, but much less robust than a Chapter VII peace-enforcement
action. The classical peacekeeping mission is but one of many peace
maintenance instruments available. The UN may resort to any of several
types of peace operations that exist along a spectrum denoting different
levels of host nation consent and military force. Nevertheless,
understandably, "\[m\]ost U.N. operations are taken with full local
consent."[^45]

Essentially, peacekeeping is the use of military forces to secure and
maintain peace, rather than using them to engage in war. Military
personnel were frequently used in the Cold War as peacekeepers out of
the necessity to limit and resolve conflicts without formally, but
futilely, presenting a proposal to the UN Security Council to face an
almost certain permanent Member veto. The role of a UN peacekeeper is in
many ways symbolic, an instrument that shows international resolve for
restoring and enforcing peace. Peacekeepers, although usually armed, are
"to remain above the battle and only to use their weapons in the last
resort for self defence."[^46]

Peacekeepers are not combat forces---they merely monitor previously
agreed-upon cease-fires and truces. This is not to say that traditional
peacekeepers never use force, but it is the exception and not the
rule.[^47] In practice, UN field commanders have rarely used force,
except in self-defense. To operate otherwise would run counter to the
need for continued consent of the parties and impartiality to them.[^48]
In the words of one author, "\[t\]he weapons used by a peacekeeper in
achieving his objectives are those of negotiation, mediation, quiet
diplomacy, tact and the patience of Job -- not the self-loading
rifle."[^49]

Peacekeepers are usually posted between rival factions. The
peacekeeper's role is not typical military duty, but to provide an
international presence, one that hopefully discourages the parties to
the conflict from resuming hostilities.[^50] The real value of
peacekeeping is its expression of international resolve. The
peacekeepers wear blue helmets, display the UN\'s blue flag, and above
all, seek to remain impartial and neutral. Generally, the object of
peacekeeping is not to resolve the conflict, but rather to encourage a
passive environment that allows the parties to constructively
negotiate.[^51] In short, "peace-keeping is not a soldier\'s job, but
only a soldier can do it."[^52]

The innovation of peacekeeping allowed the UN to gain relevance in
dealing with armed conflicts throughout the globe. From the 1950's
onward, it began to involve itself, albeit superficially, in mitigating
and containing small regional conflicts.[^53] With the consent of the
belligerent parties to a local conflict, the UN intervened with lightly
armed military forces.[^54] Not surprisingly, even though the Security
Council Members had the "primary responsibility for the maintenance of
international peace and security,"[^55] armed forces of its permanent
Members rarely, if ever, participated in the peacekeeping
operations.[^56] The permanent Members of the Security Council reached a
"basic understanding" that their military presence in such an operation
could easily be counter-productive and possibly escalate a conflict
rather than defuse it. Therefore, the permanent Members informally
agreed that they should rarely, if ever, contribute forces to classical
peacekeeping operations.[^57]

As a result of the Security Council permanent Members' political
pragmatism, in not operationally participating in these largely symbolic
United Nation peacekeeping missions, peacekeeping forces consisted of
military personnel culled from small neutral countries, such as Austria,
Fiji, Canada, and the countries of Scandinavia. This arrangement was
first realized in 1956, during the Suez Canal Crisis, when Israel,
France, and Great Britain invaded and occupied Egyptian territory. This
military invasion by Israel and two permanent Security Council Members
could have easily provoked the Soviet Union, another Security Council
permanent Member State, to enter the conflict on behalf of Egypt. This
would not have been desirable.[^58]

To solve the dilemma, when Secretary-General Dag Hammarskjold created
the United Nations Emergency Force (UNEF I) in response, he expressly
denied the participation of all Security Council permanent Members. The
UNEF I, composed of small-state forces, deployed to the Egypt-Israeli
border. The UNEF I acted as a buffer while the French and British forces
withdrew. This astute political solution acted as precedent in future UN
peacekeeping operations. It facilitated the acquiring of consent from
the parties involved in the conflict, ensured that the UN remained
impartial, and ultimately, prevented the potential escalation of
conflicts by eschewing direct super-power involvement.[^59]

UNEF I set numerous precedents for future UN peacekeeping operations.
The consent of the host nation was now required for Chapter VI
peacekeeping operations. Deployed peacekeeping forces would be impartial
neutral observers and operate under UN command and control. Forces would
be multi-national, but permanent Members of the Security Council would
not contribute to them. Finally, the UN peacekeeping forces would
operate under defensive rules of engagement.[^60] These limitations
became the norms for classical UN peacekeeping operations.

#  *a. Host Nation Consent*

Without host nation consent, the UN is without authority to deploy armed
forces on otherwise sovereign territory. The UN Charter states that
"\[t\]he organization is based upon the principle of the sovereign
equality of all its Members"[^61] and that the United Nations shall not
"intervene in matters which are essentially within the domestic
jurisdiction of any state."[^62] Absent a Chapter VII peace-enforcement
resolution, the Security Council may only make recommendations to a
Member State. Chapter VI does not contain any express provision that
allows the Security Council to create a multi-national armed force
composed of military members from UN Member States and unilaterally
deploy that force to another sovereign nation-state. If the UN were to
do so, it would be intervening in a sovereign state's domestic
jurisdiction. However, if a nation consents to the deployment of UN
peacekeeping forces on its soil, there is no violation of national
sovereignty.[^63]

Consent from the host nation remains the keystone of classical
peacekeeping. As such, regardless of the consequences, if a nation or
party to the conflict withdraws its consent, UN peacekeepers must
withdraw. In 1967, for example, the United Arab Republic (Egypt)
withdrew the consent it previously granted that allowed the stationing
of the UNEF I. Egypt called for the complete withdrawal of UN
peacekeeping forces from its territory. UN Secretary-General Dag
Hammarskjold, fully understanding that UN forces could legally remain in
Egypt only as long as its government allowed them to, ordered all UN
forces to withdraw. Unfortunately, almost immediately after the UN
forces withdrew from Egypt, the 1967 Middle East War began.[^64]

After a country withdraws consent, peacekeeper force protection
immediately becomes much more problematic. The country withdrawing
consent might no longer recognize the UN personnel as having privileges
and immunities while in the territory.[^65] Additionally, a Member State
that has contributed forces to the peacekeeping force may begin the
immediate unilateral withdrawal of its troops ahead of the rest of the
UN force. These factors work toward the UN removing UN personnel as soon
as possible following withdrawal of consent.[^66]

Finally, the UN and the host nation usually formalize the host-nation
consent with a Status of Forces Agreement (SOFA). The host-nation agrees
to afford UN military forces full respect and allow the forces
freedom-of-movement throughout the area of operations. An additional
provision of any such SOFA is that UN personnel have absolute
jurisdictional immunity from the host nation regarding criminal matters.
Jurisdictional immunity of peacekeepers has long been a prerequisite
before UN Member States will contribute soldiers to a peacekeeping
force.[^67]

#  *b. Impartiality of the United Nations and United Nations Peacekeepers*

In a classical UN peacekeeping operation, the UN and UN peacekeeping
military forces must remain impartial. The UN Charter treats all Member
States of the UN as equal sovereigns.[^68] In order to mediate a
conflict effectively, the UN must maintain its status as a neutral and
objective third party.[^69] This neutrality distinguishes peacekeeping
from peace-enforcement. In peace-enforcement, the Security Council
determines an aggressor-state and then usually sides with the state that
the aggressor-state unlawfully attacked.[^70]

In classical peacekeeping, however, the UN must treat parties to a
conflict equally and not support one over the other. Equal treatment is
the norm unless, of course, one party is in clear violation of
international law. This impartiality applies equally in international
and civil conflicts. If the UN were to support a rebel movement over a
nation-state government, this support would imply that the UN does not
believe the government is equal to other nation-state governments.
Conversely, if the UN supported a nation-state government over a rebel
organization and the organization subsequently came into power, the UN
and individual nation-states might be reluctant to then recognize the
new government. Most importantly, however, impartiality is essential in
order to ensure the safety of peacekeepers and obtain the consent,
trust, and continued cooperation of the parties to the conflict.[^71]

#  *c. Operational Control and the Chain-of-Command of United Nations Peacekeepers*

The UN is responsible for the direction and control of its peacekeeping
forces. UN peacekeeping forces are required to follow its operational
orders. The authority of the Security Council flows to the UN
Secretary-General. The Secretary-General then appoints the Task Force
Commander, who reports directly to, and takes orders from, the
Secretary-General. In this way, the UN maintains operational control
over a peacekeeping unit. However, direction and control of individual
peacekeepers is often the responsibility of the individual soldier's
country. As a result, the individual contributing nations still wield
significant political influence as they may withdraw their individual
forces at any time. However, the UN, as a matter of practice, alleviates
the problem of one country prematurely withdrawing its forces from an
operation by making the total force politically and geographically
diverse. Therefore, even if one country withdraws its individual forces,
the entire peacekeeping force does not become operationally
compromised.[^72]

Thus, a UN peacekeeping force is, by its very nature, multi-national. An
individual soldier in this multi-national force is subject to both the
UN and the soldier's respective national chain-of-command. The soldier's
country trains, arms, and equips the soldier. Further, soldiers may be
disciplined only by their respective national contingents. Yet, the UN
exercises operational control over, feeds, and houses the soldier. Both
the UN and the contributing nation exercise some control over the
soldier, but neither has complete control. This dual command
arrangement, with its inherent divided loyalties, is oftentimes
problematic.[^73] Presently, however, there is no politically viable
alternative.

#  *d. The Composition of United Nations Classical Peacekeeping Forces*

Peacekeepers within a UN force generally speak different languages and
have different cultures, political ideologies, and religions. Although
these differences obviously make peacekeeping operations more difficult,
this extensive diversity in peacekeeping units gives legitimacy to the
concept of neutrality and, hence, fosters better cooperation from the
parties to the conflict. Further, a multi-national peacekeeping unit
tends to be more compliant to the will of the UN Secretary-General than
if the peacekeeping organization were composed of military personal from
only a single Member State. If all soldiers of a peacekeeping force came
from a single Member State, that State could potentially wield
considerably more influence in the peacekeeping operation than either
the UN or the Secretary-General.[^74]

As mentioned earlier, the UN generally excluded permanent Security
Council Members from direct participation in peacekeeping operations.
The Secretary-General, possibly at the implicit behest of the permanent
Members, excluded them from peacekeeping duties to prevent peacekeeping
operations from being embroiled in Cold War politics. Nevertheless,
permanent Members did participate in a few peacekeeping operations. For
example, Great Britain contributed to the peacekeeping force in Cyprus
and the United States contributed to the peacekeeping force in Egypt
following the Egyptian-Israeli peace-treaty. These two operations were
the exceptions and not the rule. During the Cold War, the permanent
Members of the Security Council generally did not participate in UN
peacekeeping operations.[^75]

UN peacekeeping missions during the Cold War usually took place in
generally civil operational environments.[^76] The missions were often
very successful. For example, the United Nations Disengagement Observer
Force (UNDOF), deployed as observers to Syria in 1974 after the Yom
Kippur War, masterfully facilitated the peaceful disengagement and
withdrawal of both sides' armed forces from the disputed area.[^77]
After the successful withdrawal of forces, Egypt's President Nasser
simply requested that UNDOF dissolve and it did.[^78] Peacekeeping is,
at present, internationally accepted as an appropriate vehicle for
managing conflicts by acting as a buffer and giving parties to the
conflict the ability to look for a long-term peaceful solution.[^79]

The end of the Cold War raised legitimate expectations that the number
of international conflicts throughout the globe would significantly
decrease. However, due to an epidemic of post-Cold War intra-national
conflicts, the UN increased its peacekeeping operations, both in number
and mission complexity. From 1948 to 1988, the UN authorized only 13
peace operations. From 1988 to 1998, a period of just ten years, the UN
authorized thirty-six peace operations---over a 1000% increase from the
preceding forty-year period. Such operations included the robust Article
VI ½-Article VII hybrid peacekeeping actions in Somalia, Haiti, and the
Balkans.[^80] However, classical peacekeeping missions, the type of
peace operations that occurred during and immediately after the Cold
War, are becoming less frequent. Classical peacekeeping operations are
being replaced by UN-authorized action performed by regional military
organizations.[^81]

To illustrate, in mid-1993, UN peacekeepers numbered approximately
80,000 personnel. Four years later, at the end of 1997, the number of
blue helmet peacekeepers dropped to 13,000.[^82] This reduction is
attributable to regional military alliances and organizations such as
the North Atlantic Treaty Organization (NATO), under the authority of
the UN, assuming most of the responsibility of peacekeeping. When these
UN-authorized multi-national and regional peacekeeping missions
throughout the globe are taken into account, the number of peacekeepers
has remained constant.[^83] This change in composition, from UN *ad hoc*
classical peacekeeping forces to UN-authorized regional organization
peacekeeping forces, has resulted in typically more robust, still
dangerous, but more effective peacekeeping.[^84]

Currently, the UN, if it wishes to engage in a peace operation, must
rely upon the good will of a limited number of its Member States able to
conduct such an operation. Often, such Member States may want to control
and demand to know exactly where and how their forces are to be
used---understandably so. Additionally, Member States might only agree
to participate if the peacekeeping force is organized under a regional
alliance, authorized by the UN to perform a peacekeeping operation, but
not under the UN command structure. As a result, the UN might not be
able to remain directly involved in many future peacekeeping missions.
This lack of UN direct involvement could lead to it losing legitimacy
and credibility. Countries could perceive the UN as weak as it contracts
out to regional military alliances its peacekeeping responsibilities and
obligations rather than performing them itself.[^85]

> *e. Self-Defensive Rules of Engagement and the Use of Force by United
> Nations Peacekeepers in Classical Peacekeeping Operations*

The final customary norm of UN classical peacekeeping is that the use of
force is restricted to self-defense. UN Charter Article 2(1) recognizes
"the sovereign equality of all of its Members"[^86] and Article
2(7)[^87] restricts the UN from intervening in state domestic matters,
except during Chapter VII enforcement actions.[^88] Although the UN
Charter does not explicitly address the use of armed force in a
classical peacekeeping operation, nor provide any rules or
guidelines,[^89] authorized use of force in a classical peacekeeping
operation is generally limited to self-defense. Further, the use of
force must be proportional to the situation.[^90]

Although peacekeeping operations use professional military personnel,
they generally do not envisage combat as the means to mission
accomplishment. In this regard, Chapter VI peacekeeping is clearly
distinguished from Chapter VII peace-enforcement combat operations.
Classical peacekeeping is founded on consent of the parties to the
conflict. Since the parties have consented to the presence of the
peacekeepers, the need to resort to force is greatly diminished. As a
result, classical peacekeepers are generally only equipped with weapons
for use in self-defense.[^91] As explained by William Durch,
"\[p\]eacekeepers may be armed, but only for self-defense; what
constitutes appropriate self-defense will vary by mission, but because
they are almost by definition outgunned by the disputants they are sent
to monitor, any recourse to force must be calibrated to localize and
diffuse, rather than escalate, violence."[^92]

When a UN peacekeeping unit resorts to force, its neutrality and its
obligations under international law might be legitimately
questioned.[^93] Restricting the use of force to self-defense attempts
to ensure that the UN peacekeepers remain impartial to the conflict and
do not take sides. Peacekeepers can maintain a presence in a country
only if the country gives its consent. If a peacekeeping unit took sides
in the conflict, it would, in essence, become a hostile force. The
actions, and even the mere presence of such a force, could greatly
damage relations with the host-country and easily lead the host-country
to withdraw its consent. For this reason, it is imperative that UN
peacekeeping units remain impartial and only use force in
self-defense.[^94]

A classical Chapter VI ½ peacekeeping force has no authority or mandate
for offensive operations. To use force offensively against a party to
the conflict would violate the sovereignty of a state and constitute
unauthorized intervention in violation of UN Charter Articles 2(1) and
2(7) which assume that all Member States are equal sovereigns.[^95]
However, UN Charter Article 104 grants the UN, operating within the
borders of its Member States, whatever legal rights are "necessary for
the exercise of its functions and the fulfillment of its purposes."[^96]
In this regard, it is imperative that a peacekeeping unit has the legal
right to defend itself if attacked.[^97] Equally necessary, a
peacekeeping unit must be able to use force when aiding another
peacekeeping force being attacked. Peacekeeping forces, of course, may
also collectively defend themselves.[^98]

Initially, the use of force in self-defense was generally limited to the
most dire of circumstances. Such circumstances included the "imminent
danger of death, bodily harm, arrest, or abduction."[^99] However, these
restrictive rules of engagement proved unworkable. Out of operational
necessity, the UN began to considerably broaden its definition of the
use of force in self-defense. During the early 1960s, the UN authorized
a 20,000-member force to establish law and order in the Congo. The UN
peacekeeper rules of engagement initially authorized force only in
self-defense. However, as the nature of the operation became more
complicated, the UN resorted to an expansive definition of
"self-defense"---to include even the authorization of pre-emptive
strikes against parties to the conflict who were likely to attack the
peacekeepers.[^100] In subsequent classical peacekeeping operations,
however, this expanded definition of self-defense has rarely been
necessary or realistic.

To constitute the legitimate use of force in self-defense in a classical
peacekeeping operation, the force must be both necessary and
proportional. In other words, there must be a potential or real threat
that justifies the use of force and the soldier may not use any greater
force than is necessary to deal with the threat. If attacked with deadly
force, a peacekeeper may respond with deadly force. After the threat is
neutralized, the soldier must stop using force.[^101] When a peacekeeper
uses proportionate force in self-defense, the peacekeeper does not then
lose noncombatant[^102] protection. However, a peacekeeper, if engaged
in sustained conflict and no longer acting strictly in self-defense,
could lose noncombatant status, become a combatant[^103] and then be
*lawfully* engaged as a target.[^104] As a practical matter, however,
peacekeeping operations generally do not involve peacekeeping forces
entering into a state of armed conflict with the actual parties to the
conflict. Because peacekeepers in classical "blue helmet" peacekeeping
operations have limited the use of force to self-defense, the
application of the law of armed conflict to such operations has not been
questioned.[^105]

# B. United Nations Charter Chapter VI ¾ Peacekeeping

# Operations---Robust Operations

During post-Cold war active and robust Chapter VI ½ peacekeeping
operations, the UN military forces tend to operate under more vigorous
rules of engagement. Such robust operations are sometimes referred to as
Chapter VI ¾ peacekeeping operations. In such cases, the definition of
self-defense is expanded. For example, in 1992, the United Nations
Protection Force (UNPROFOR) was given the mission in Bosnia-Herzegovina
to protect convoys and supplies designated for humanitarian purposes.
The Secretary-General, while not authorizing the UN peacekeepers to
engage in offensive operations, again used an expanded definition of
"self-defense."[^106] The Secretary-General declared that peacekeepers
in Bosnia-Herzegovina "would follow normal peace-keeping rules of
engagement \[and\] would thus be authorized to use force in self-defence
. . . It is noted that in this context self-defence is deemed to include
situations in which armed persons attempt by force to prevent UN troops
from carrying out their mandate."[^107] He also said that UN
peacekeepers would protect convoys, if requested to do so by the UN High
Commissioner for Refugees. UN peacekeepers would also accompany
repatriated prisoners of war to safe areas, if requested to do so by the
International Committee of the Red Cross (ICRC).[^108]

This expanded (arguably loose) definition of self-defense is likely to
become the applicable norm for UN peacekeeping forces in future robust
peacekeeping operations. A UN force may protect itself in self-defense,
and it may prevent another armed force from interfering with it, while
it is carrying out a UN mandate. However, any response must be
proportionate to the attack in that it is directed at subduing the
attackers and it makes every reasonable effort to prevent the fight from
escalating. Additionally, the use of armed force, taken in response to
actions that prevent the accomplishment of the UN mandate, must be tied
to humanitarian concerns. By limiting coercive use of force to
humanitarian circumstances, the peacekeepers can maintain the moral
authority necessary to ensure their safety and continue their
mission.[^109]

Because of the very recent development of robust Chapter VI ½
peacekeeping operations, as well as their inherent complexities, the UN
has yet to create consistent and workable rules regarding the use of
force in such operations. Although it has formulated workable guidelines
as to the use of force in self-defense in classical Chapter VI ½
peacekeeping operations, there is little agreement as to how the laws of
armed conflict apply during robust Chapter VI ½ operations.[^110]

# C. United Nations Charter Chapter VII Peace-Enforcement Operations

Chapter VII of the UN Charter is entitled "Action with Respect to
Threats to the Peace, Breaches of the Peace, and Acts of
Aggression."[^111] A Chapter VII peace-enforcement action is not a
peacekeeping mission. Yet, just as the UN Charter does not mention
peacekeeping, neither does it mention the term "peace-enforcement." Even
so, essentially any Chapter VII operation is one of creating and then
maintaining peace. As the UN cannot be expected to mount a peacekeeping
operation when there is no peace to be kept, Chapter VII envisages that
the UN will, in certain circumstances, affirmatively enforce and make
peace.

Peace-enforcement is distinct from peacekeeping as it usually involves
the use of force against a nation-state, whereas classical peacekeeping
limits the use of force to self-defense.[^112] Yet, to date, the UN has
never conducted, nor authorized, a "pure" peace-enforcement action.
Rather, in the form of "neopeace-enforcement,"[^113] the UN has only
"invited" or "requested" its Member States to take offensive military
action on its behalf. Further, it has only authorized four such
"neopeace-enforcement" operations.[^114] It is Article 43 of the UN
Charter[^115] that was envisaged to be the primary instrument of the UN
Security Council in peace-enforcement. The goal was creation of a
standing UN military force to be used to secure and maintain
international peace. Due to Member State political differences, this
force has yet to come into being.[^116]

As there are no military forces at the Security Council's direct
disposal, its Military Staff Committee has no forces to direct in a
"pure" peace-enforcement action. Instead, the Security Council
occasionally has authorized Member States to conduct Chapter VII
"neopeace-enforcement actions"[^117] on behalf of the UN. The two most
notable of these include the 1950 Korea neopeace-enforcement action and
the 1991 neopeace-enforcement action against Iraq. In both cases,
although it was the UN that authorized offensive military action, the
operations were not under the command of the UN.[^118] Further, in both
cases, the forces authorized by the UN were "belligerent forces in an
international armed conflict," and therefore, under existing
international law, the personnel who served in these armed forces were
lawful targets.[^119] For the purposes of this article, however,
peace-enforcement actions refer to both "pure" peace-enforcement and
"neopeace-enforcement" actions.

UN Charter Chapter VII provides the authority to enforce peace in the
spirit of international collective defense. UN Member States, when
authorized by the Security Council under Chapter VII, may take military
action against an unlawfully expansionist military state or power.[^120]
Chapter VII of the Charter envisages that the UN Security Council would
enforce the peace initially through provisional measures such as
"complete or partial interruption of economic relations and of rail,
sea, air, postal, telegraphic, radio, and other means of communication,
and the severance of diplomatic relations."[^121] If these measures
should prove to be inadequate, UN Charter Article 42[^122] authorizes
the Member States to pursue collective military offensive operations
against the offending state or states.[^123] The Security Council may
"take such action by air, sea, or land forces as may be necessary to
maintain or restore international peace and security."[^124]

# *1. The Cold War--The Korean War*

During the Cold War, the UN Security Council authorized a Chapter VII
peace-enforcement action to repel North Korea\'s invasion of South
Korea. A unique set of circumstances led to this authorization. In 1950,
to protest the UN decision to seat the Chinese Nationalist Formosa
government instead of the Chinese Communists at the Security Council,
the Soviet Union recalled its permanent representative from the
Council.[^125] On June 24th of that year, the North Koreans, supported
by the Soviet Union, invaded South Korea. The United States called an
emergency meeting of the Security Council. As a result of the fortuitous
absence of the Soviet Union's representative and, concomitantly, the
absence of the Soviet Union\'s permanent Member veto authority, the
Council was able to denounce the invasion, order North Korea to withdraw
its forces from South Korea,[^126] and recommend that Member States
provide military forces to counter North Korea's invasion of South
Korea.[^127]

If the Soviet Union had been present at the Security Council, there is
little doubt that they would have vetoed the UN peace-enforcement
operation. Countries, if they acted at all, would have had to take
action in their sovereign national capacity instead of under the
authority of the UN.[^128] The absence of the Soviet Union permanent
representative was an anomaly that never happened again.[^129] The
Soviet Union permanent representative did not miss future meetings of
the Security Council.[^130] The Security Council was again at an
impasse.[^131] As a result, the United States turned to the UN General
Assembly, which passed the famous "Uniting for Peace Resolution."[^132]
This resolution authorized continuing military action against North
Korea until the conflict concluded. With the Uniting for Peace
Resolution, the General Assembly assumed a cooperative, but unequal,
role with the Security Council in international peace and security.

The Korean conflict was the only time that the UN has undertaken a
peace-enforcement action in the name of the UN. It condemned North
Korea, a non-Member, for its aggression against South Korea. Because the
Members of the UN had not created any military force as envisaged by UN
Charter Article 43, the Security Council requested Member States to
contribute military forces to be used in opposing North Korea's
aggression. These forces were then organized and placed under the
command of the UN. However, the United States provided the most forces
and, most importantly, the command and control for the unified UN
Command.[^133] Ultimately, the UN Command and the United States Command
were, for all practical purposes, the same. As a result, the UN had a
very limited role in military operations throughout the Korean
conflict.[^134]

On July 27, 1953, the parties to the conflict signed an armistice at
Panmunjom.[^135] The borders were reestablished to substantially what
they were prior to North Korea\'s invasion, and a demilitarized zone
(DMZ) roughly along the 38^th^ parallel still separates the two
countries. Although the parties agreed to end active hostilities, it was
merely the beginning of an unsettled peace. North Korea and South Korea
are still technically in a state of war. The UN accepted victory in the
form of a stalemate, a stalemate that still exists.[^136] Today, the UN
Command---with the United States continuing to act as the United
Nations' named executive agent---remains vigilant, effectively deterring
North Korea from resuming hostilities.

*2. Post-Cold War---The Persian Gulf War*

The Persian Gulf War is the second notable Security Council
peace-enforcement action. The underpinnings of the conflict trace back
to when Kuwait provided millions of barrels of oil on credit to Iraq
during its 1980-88 armed conflict with Iran.[^137] When Kuwait would not
forgive Iraq\'s extensive debt, Iraq became belligerent. Iraq accused
Kuwait of \"slant drilling\" and taking disproportionate shares of a
common oil field along the Iraq-Kuwait border. It further made
accusations that Kuwait was exceeding oil quotas agreed to by the
members of the Organization of Petroleum Exporting Countries (OPEC) and
thereby was responsible for Iraq\'s lagging economy. Finally, Iraq
demanded that Kuwait relinquish its sovereignty of certain islands in
the Persian Gulf. Even though Iraq had previously assured its Arabian
neighbors that it would not resort to military force, on August 2^nd^,
1990, Iraq attacked Kuwait. Iraq crossed its southern border and invaded
Kuwait with over 100,000 troops. Kuwait\'s military was quickly routed.
The Security Council, at the request and urging of the United States,
convened an emergency meeting, condemned the invasion and demanded that
Iraq immediately withdraw from Kuwait. This was the first of numerous
Security Council actions leading up to the Persian Gulf War.

Military forces "invited" by the Security Council conducted the UN
peace-enforcement action in Korea from 1950-53. In contrast, forces
"authorized" by the Security Council conducted the UN peace-enforcement
action in the Persian Gulf War in 1991.[^138] Yet, the military action
taken against Iraq also was not a true UN peace-enforcement
action.[^139] It was an action in collective self-defense. The Security
Council first officially affirmed that Kuwait had "the inherent right of
individual or collective self-defense, in response to an armed attack by
Iraq against Kuwait, in accordance with Article 51 of the
Charter."[^140] The Amir of Kuwait then requested the United States to
assist Kuwait in collective self-defense to restore the legitimate
Kuwaiti government.[^141] After this request, the Security Council
authorized "Member States co-operating with Kuwait . . . to use all
necessary means to uphold and implement" the resolutions.[^142] The
Security Council gave Iraq an ultimatum to withdraw from Kuwait by
January 15, 1991. After Iraq failed to do so, the Persian Gulf War
Coalition began massive air strikes and, approximately a month later,
conducted a ground assault that overwhelmed Iraqi forces in only three
days. The Coalition fully liberated Kuwait, ejecting all Iraqi forces,
by the end of February 1991.[^143]

The action against Iraq was, ultimately, a UN authorized military action
in "collective self-defense" in accordance with Article 51, and not a
pure peace-enforcement action.[^144] Coalition military forces remained
under their own national contingents. The national contingents were
organized and placed under the strategic command of United States
General H. Norman Schwarzkopf. The Coalition forces did not wear UN
insignia and were not bound to follow UN tactical instructions.[^145]

**D. Peacekeeping Versus Peace-Enforcement**

Distinctions between peacekeeping missions authorized under UN Charter
Chapter VI and peace-enforcement operations authorized under Chapter VII
need to be clearly defined. Any use of force by a Chapter VI peacekeeper
must be strictly construed, as Chapter VI peacekeepers may only use
armed force in self-defense. UN peace-enforcement operations, on the
other hand, routinely involve the use of force, oftentimes actual
combat, as a means of securing peace. Accordingly, the two operations,
peacekeeping and peace-enforcement, are fundamentally different.

Chapter VI peacekeeping operations should be specifically tailored to
the situation or crisis and, generally, preclude offensive military
operations. The rules of engagement regarding the use of force must be
clear and peacekeeping soldiers must apply them equally to all parties
to the conflict. In order to avoid losing credibility and to prevent
escalating the conflict, Chapter VI peacekeeping soldiers must exercise
great discretion in the use of force. If Chapter VI peacekeepers
regularly use force, the mission becomes expanded to a *de facto*
peace-enforcement mission for which the peacekeepers are not likely
adequately prepared or equipped.[^146]

The distinction between peacekeeping and peace-enforcement is,
currently, not nearly as clear as many believe or would wish. The
Security Council can change a peacekeeping mission or mandate so that it
begins to take on the character of a peace-enforcement action. Secondly,
peacekeeping operations frequently are animated and fluid, subject to
rapid changes in intensity. As one highly experienced UN peacekeeper
explains:

> Once violence erupts the peacekeeper must often wait until the smoke
> of battle clears and the parties have agreed to take their first steps
> toward conflict resolution. In cases where the fighting does not stop
> and a decision is taken to intervene regardless, we are no longer
> talking about peacekeeping, but rather enforcement, intervention, or
> plain old war. Whatever we call it, we are in a totally different
> province from peacekeeping.[^147]

The UN commander on the ground, duty-bound to protect his force, must
then ascertain what laws apply. The commander is given a mission and is
duty-bound to carry it out. Yet, as the commander\'s responsibilities
and mission implicitly change from peacekeeping toward
peace-enforcement, so do the applicability or non-applicability of the
law of armed conflict. Unfortunately, the commander will not usually
have a military lawyer immediately available to sort out whether or not
the UN military force has become a party to the conflict resulting in
the attendant application of the law of armed conflict.[^148]

This is why there should continue to be a clear distinction between
peacekeeping and peace-enforcement operations. UN "\[f\]orces must not
cross the impartiality divide from peacekeeping to peace enforcement. If
perceived to be taking sides, the force loses its legitimacy and
credibility as a trustworthy third party, thereby prejudicing its
security."[^149] Nevertheless, the distinction has of late been blurred
as UN peacekeeping forces are given more robust operational
contingencies causing peacekeeping missions to creep toward active
peace-enforcement. This has the highly undesirable effects of eroding
the credibility of the mission and endangering peacekeepers.[^150] In
the words of former Secretary-General Boutros Boutros-Ghali:

> The logic of peace-keeping flows from political and military premises
> that are quite distinct from those of enforcement; and the dynamics of
> the latter are incompatible with the political process that
> peace-keeping is intended to facilitate. To blur the distinction
> between the two can undermine the viability of the peace-keeping
> operation and endanger its personnel.[^151]

Unfortunately, the UN and its Member States do not have a clear and
consistent policy regarding the use of force, except in the case of a
classical peacekeeping operation in which peacekeepers are limited to
the use of force in self-defense. Absent a cogent policy on the use of
force in situations outside classical peacekeeping, a peacekeeping
mission should not be allowed to become something it is not---a
peace-enforcement mission. In other words, peacekeeping and
peace-enforcement, in accord with their different mandates, must remain
distinctly different missions. Peacekeeping should only be authorized
under Chapter VI and peace-enforcement operations should only be
authorized under Chapter VII. If a classical peacekeeping mission begins
to change and take on the character of a peace-enforcement operation,
the UN should formally change the mission. It should withdraw its
noncombatant peacekeepers, modify its previous mandate to a Chapter VII
operation, and deploy a more appropriately trained and equipped combat
force to accomplish the mission.[^152]

The decision to mount a Chapter VI peacekeeping mission results from
political and military considerations that are quite different from
those that would dictate a Chapter VII peace-enforcement action.
Peacekeeping is intended to suspend a conflict and allow the parties to
pursue a long-term peaceful solution. A peace-enforcement action, on the
other hand, is the use of military force to compel the desired result.
The dynamics of the peacekeeping and peace-enforcement are entirely
distinct from each other. If the clear distinction between these two
separate UN security mechanisms becomes blurred, other ongoing
peacekeeping missions can lose credibility and peacekeepers could be
endangered. Peacekeeping, in which force may only be used in
self-defense, and peace-enforcement, in which force is used to obtain a
desired result, must be kept as separate and distinct alternatives. They
should not be looked upon as points on a continuum in which a
peacekeeping mission would, if the military or political situation
should change, simply change with it and expand into a peace-enforcement
action.[^153]

If such a significant change in political or military circumstances
occurs within a peacekeeping mission, the UN must re-evaluate its
collective position. Should it wish to continue its mission as one of
peace-enforcement, the UN should then withdraw its peacekeeping forces.
It should exclusively and expressly undertake peace-enforcement missions
only under Chapter VII. Then, Member States could contribute
appropriately trained and equipped peace-enforcement military forces. As
a practical matter, however, these forces, authorized under Chapter VII,
might have both peacekeeping and peace-enforcement duties. The forces
should be given the appropriate resources to adequately perform the
enforcement operation and, if necessary, to escalate it. The
peacekeeping forces should be given clear rules of engagement, tailored
to the specific mission, as to when and in what circumstances armed
force is to be used in order to avoid inappropriately escalating the
conflict and undermining the UN intended end-state to the
conflict.[^154]

# 

# E. Protection of Peace-Keepers

Over the past decade, the size and complexity of peacekeeping operations
have greatly increased.[^155] Concomitantly, the danger to peacekeeping
personnel has also dramatically increased. Many countries have become
reluctant to contribute troops to peacekeeping operations due to the
dramatic increase in risks. In order to be able to better protect UN
peacekeepers, the UN General Assembly has entertained several proposals
by Member States. Ukraine, for example, proposed that the UN create an
international mobile peacekeeping force, specifically trained and
equipped to be used to provide back-up assistance to peacekeepers should
they come under prolonged attack. New Zealand advocated that UN
peacekeepers should be designated internationally protected persons. As
such, anyone who harmed them would be criminally prosecuted.[^156]

Some within the UN Secretariat believed the problem of protecting
peacekeepers was so serious that it was imperative that the UN
immediately act with a resolute response and policy. Others argued
against the UN providing additional protections to its peacekeepers.
These people were concerned that the UN would eventually have to
negotiate with the same people who have been attacking the peacekeepers.
In other words, if the UN were to criminalize these attackers, these
people argued that it would then be impossible for the UN to work with
them after hostilities had ceased.[^157] Still others were concerned
that if the UN enforced the protection of its peacekeepers through
additional and possibly more destructive military action, the parties to
the conflict might blame and then attack the peacekeepers for causing
the additional action.[^158]

This is not to say that peacekeepers were not afforded any protection.
For example, the 1980 UN Convention on the Prohibition or Restriction on
the Use of Conventional Weapons expressly provided that peacekeepers
receive information regarding the location of mines within an area of
operations. Specifically, Article 8 of the Convention\'s second Protocol
requires that each party to the conflict must provide all available
information regarding the number, types, and locations of mines and
booby traps in the area to the UN peacekeeping force.[^159] However, it
was clear that much more had to be done.

In 1992, the UN General Assembly set up a committee to draft a
Convention to protect UN peacekeepers. Three years later, the General
Assembly adopted the Convention on the Safety of UN and Associated
Personnel.[^160] This Convention criminalizes attacks on UN personnel
engaged in peacekeeping operations. In no way does the Convention limit
the right of UN personnel to defend themselves.[^161]

The Geneva Conventions do not address circumstances where the parties to
a conflict attack UN peacekeepers and the peacekeepers respond in
self-defense, but do not become "parties to the conflict."[^162]
However, should an attack on a classical peacekeeper escalate into an
armed conflict, the peacekeeper will not lose protection under the
Safety Convention. If a classical peacekeeper engages an attacker
strictly in self-defense, regardless of whether combat has taken place,
the peacekeeper is still a noncombatant and not a party to the conflict,
and, therefore, not a lawful target. The attacker, on the other hand, is
a war criminal engaging in an unlawful attack on a noncombatant.[^163]

**III. THE APPLICATION OF THE INTERNATIONAL LAWS OF ARMED CONFLICT TO
UNITED NATIONS FORCES: HOW AND WHEN DOES THE LAW OF ARMED CONFLICT
APPLY?**

# A. United Nations Classical Peacekeepers as Noncombatants

The law of armed conflict generally does not apply to peacekeepers
because they are not in a state of armed conflict with anyone.[^164] As
noncombatants, UN peacekeepers are protected as such under Geneva
Convention Common Article 3[^165] and Additional Protocol I, Articles
37(1)(d)[^166] and 38.[^167] To designate themselves clearly as
noncombatants, peacekeepers wear blue helmets and armbands. Only the UN
may authorize the wearing of its emblems and symbols. It is unlawful for
a non-peacekeeper to wear UN insignia to avoid being targeted. A party
to the conflict that does so is guilty of perfidy[^168] and may be
punished accordingly.[^169] It follows that Protocol I assumes that UN
peacekeeper personnel have protected standing. However, the Protocol
does not define or explain the extent or attributes of this "protected
status."[^170] It is clear, however, that Protocol I is meant to apply
to classical peacekeeping missions and not to apply during
peace-enforcement actions where UN forces are engaged as
combatants.[^171]

However, the law of armed conflict will apply if the UN peacekeepers
become a party to an armed conflict through the use of force for reasons
other than self-defense. Should this happen, there are many resulting
consequences. When the law of armed conflict applies, "captured force
members would be entitled to prisoner of war status, forces actively
engaged in hostilities would be lawful military targets, and enemies
would be entitled to combatants\' privilege."[^172] Of primary
importance, however, if UN peacekeepers are parties to the conflict and
the law of armed conflict applies, is that the peacekeepers are no
longer protected as noncombatants. As a result, the "participants in a
conflict will target U.N. forces as enemies."[^173]

**B. The Law of Armed Conflict as Applicable to Classical Peacekeeping
Operations---The "Principles and Spirit" of the Law**

Classical peacekeeping forces are part of and act under the authority of
the UN. The UN as an organization is not bound by the Conventions
relating to the law of armed conflict, except in cases where the
Conventions represent international customary law.[^174] The
international law of armed conflict, historically, has always been
directed toward obligating parties to a conflict to conduct themselves
in a manner that prevents unnecessary suffering. The law of armed
conflict refers to belligerent parties, parties to the conflict, states,
enemy forces, powers, High Contracting Parties, and signatories. A UN
peacekeeping force, however, does not nicely fit into any of these
categories.[^175] The UN is not a signatory to the Geneva Conventions
and therefore, arguably, the UN forces are not obligated to follow the
terms of the Conventions. Regardless of this view, the Geneva
Conventions capsulate a great deal of customary international law that
would then apply to all parties to an international armed
conflict.[^176] As noted by Daphna Shraga and Ralph Zacklin of the ICRC:

> \[T\]he argument that the United Nations cannot become a party to the
> Geneva Conventions because their final clauses preclude participation
> by the Organization, although still valid, is largely irrelevant to
> the question of applicability of these conventions to UN operations.
> The Geneva Conventions which have now been widely recognized as part
> of customary international law are binding upon all States, and
> therefore, also upon the United Nations, irrespective of any formal
> accession.[^177]

Although the ICRC had long maintained that all international
humanitarian law applies to UN peacekeepers whenever they use force, the
UN had officially taken the position that peacekeepers are obligated to
follow only the \"principles\" and \"spirit\" of the international law
of armed conflict.[^178] For example, the instructions given to the 1957
United Nations Emergency Force (UNEF) in the Sinai stopped well short of
naming the UN as a party to the international law of armed conflict
conventions. Instead of requiring UN forces to follow the Conventions,
the Secretary-General directed that "\[t\]he force shall observe the
*principles and spirit* of the general international conventions
applicable to the conduct of military personnel."[^179]

Similarly, the United Nations Force in Cyprus (UNFICYP) guidelines
instructed the peacekeeping forces to respect the "principles and
spirit" of international law regarding the conduct of military forces.
Generally speaking, this meant that peacekeepers were not bound by all
international law, such as the technical rules regarding the creation
and operation of a prisoner of war camp. However, the peacekeeping
forces, in keeping with the principles and spirit of the law of armed
conflict were to conduct themselves in accordance with general
principles of proportionality, military necessity, martial honor,
chivalry, humanity, and the prevention of unnecessary suffering.
Additionally, they were to avoid military action that could potentially
discredit the UN or negatively affect the legitimacy of the mission. For
example, in keeping with these principles, the peacekeepers were to
distinguish between civilian and military forces and between civilian
and military objectives. The UN forces could only use authorized
weapons, prohibiting the use of weapons designed to cause unnecessary
suffering.[^180]

In writing the general operational guidelines for UNFICYP, the
Secretary-General explicitly authorized the use of force when protecting
UN posts. Further, the Secretary-General allowed UNFICYP to use armed
force if a party attempted to gain unauthorized entrance to their posts,
if peacekeeping forces were compelled to leave their posts, and if a
party attempted to disarm them. Finally, the Secretary-General
authorized peacekeepers to use force when required to stop a party from
forcibly attempting to impede peacekeeping operations or attempting to
prevent peacekeepers from fulfilling their responsibilities.[^181]

The UN, as a "non-party" to the Geneva Conventions, sought to ensure the
peacekeeping operations, both in theory and in practice, were entirely
distinct from peace-enforcement combat operations. Applying the law of
armed conflict to peacekeeping operations could ultimately lead to
tragic consequences. For example, one fundamental law of armed conflict,
specifically the combatant\'s privilege,[^182] allows a military member
of one force to shoot and kill an enemy combatant virtually at any
time.[^183] If peacekeepers shoot and kill hostile local inhabitants
because of a misconception as to the application of the law of armed
conflict to the peacekeeping operation, in addition to the actual
tragedy, the entire operational mission would deteriorate. In short, it
is unnecessary, dangerous and counterproductive to apply the law of
armed conflict to most peacekeeping operations.[^184] For this reason,
and others, the UN has been very reluctant to endorse the application of
the law of armed conflict to classical peacekeeping operations.

Even though it repeatedly declined to become a party to the Geneva
Conventions, many called upon the UN to respect the Conventions and
ensure UN forces complied with them.[^185] In 1969, one commentator
proposed that the UN enact a resolution binding itself and its military
forces to follow the Geneva Conventions.[^186] In 1971, the Institute of
International Law adopted a resolution entitled "The Conditions of
Application of Humanitarian Rules of Armed Conflict to Hostilities in
which UN Forces may be Engaged." Article 2 of the resolution states:

> The humanitarian rules of the law of armed conflict apply to the
> United Nations as of right, and they must be complied with in all
> circumstances by United Nations Forces, which are engaged in
> hostilities.
>
> The rules referred to in the preceding paragraph include in
> particular:
>
> \(a\) the rules pertaining to hostilities in general and especially
> those prohibiting the use or some uses of certain weapons, those
> concerning the means of injuring the other party, and those relating
> to the distinction between military and non-military objectives;
>
> \(b\) the rules contained in the Geneva Conventions of August 12 1949;
>
> \(c\) the rules which aim at protecting civilian persons and
> property.[^187]

The resolution never attracted a following. However, in 1991, the UN
formulated its Model Participation Agreement to be used in peacekeeping
operations. Before commencing a peacekeeping operation, the UN and the
Member States that contribute forces agree to the following:

> \[The United Nations peacekeeping operation\] shall observe and
> respect *the principles and the spirit* of the general international
> conventions applicable to the conduct of military personnel. The
> international conventions referred to above include the four Geneva
> Conventions of 12 August 1949 and their Additional Protocols of 8 June
> 1977 and the UNESCO Convention of 14 May 1954 on the Protection of
> Cultural Property in the event of Armed Conflict. \[The Participating
> State\] shall therefore ensure that the members of its national
> contingent serving with \[the United Nations peacekeeping operation\]
> be fully acquainted with the *principles and spirit* of these
> Conventions. [^188]

The principles and spirit of international humanitarian law can be an
illusive concept. Yet, the concept has, for the most part, protected the
noncombatant status of UN peacekeepers and has provided a framework for
appropriate conduct in peacekeeping operations.

> Military personnel participating in peace-keeping operations may use
> armed force for self-defense and in accordance with their mandate to
> accomplish their mission. Under existing international law they are
> not lawful targets as long as they remain non-belligerents, even
> though they may be deployed in areas of ongoing hostilities.[^189]

**C. Equal Application of the Laws of Armed Conflict**

Since 1928, international law has outlawed war.[^190] As a result, some
have argued that an aggressor-state should not be entitled to equal
application of the law.[^191] In other words, an aggressor-state and the
state it unlawfully attacked should no more be on an equal legal footing
than should a criminal be equal to the victim of a crime.[^192] This
theory of "unequal application," however, presumes the existence of a
legitimate means to determine the aggressor. The UN, for one, has not
traditionally made decisions that name the aggressor and the subject of
aggression to an armed conflict.[^193] Further, neither the Hague nor
the Geneva Conventions provide any basis for providing one party to the
conflict more or less protection than another party.[^194] Even more
specifically, Article 1 of all four Geneva Conventions clearly states
the Conventions are applicable in "all circumstances."[^195]

Yet, regarding peacekeeping operations, it has been suggested that UN
forces "are soldiers without enemies and therefore fundamentally
different from belligerent forces."[^196] If UN personnel were to be
subject to the international law of armed conflict, this would place the
UN, the global organization charged with maintaining international peace
and security, on a plane equal to that of an aggressor nation-state
whose use of force presumably violated international law.[^197] However,
the equality of the UN versus the nation-state waging an armed conflict
of aggression is not at issue.

At issue is the equality of *military conduct* as between UN military
personnel and the armed forces of the opposing nation-state in a
robust-peacekeeping or peace-enforcement action. The UN should be at the
forefront of respecting, and promoting respect among its Member States
for the international law of armed conflict. The way to show such
respect to the law, as well as to foster respect by its Member States,
is to lead by example and adhere to the Conventions.[^198] One might
then expect that the principles of the law of armed conflict, as
followed by UN forces, would also be followed by the belligerent parties
taking action against the peacekeepers. For example, should a
belligerent party detain UN military forces, rules regarding
prisoners-of-war could be applicable.[^199]

As Sharp notes, "\[u\]nder existing international law, non-belligerent
forces acting under the authority of the Security Council remain
unlawful targets until their use of force meets the de facto test of
common Article 2 of the four Geneva Conventions of 1949, at which time
they become belligerents and lawful targets."[^200] However, in light of
more frequent and robust UN peace operations, one possible solution is
to change the law of armed conflict to give absolute protected status to
all "persons who serve the international community under the authority
of the United Nations"[^201] and make them "unlawful targets under all
circumstances."[^202] This argument loosely analogizes UN military
forces to police officers in a global domestic society. However,
"\[i\]nternational society does not replicate the features of a national
community and the United Nations does not at this stage command the
degree of support and respect for its authority which is accorded to the
organs of government within most national societies."[^203]

UN military forces are not global police officers and any push to
develop them into some kind of global police force is, although not
utterly utopian, most certainly approaching a utopian view. In reality,
the protection discussed above, if granted to UN military forces, would
ultimately serve to endanger them. If the *same* penalty would
inevitably attach to both the killing of noncombatant UN peacekeepers
and the killing of combatant UN peace-enforcers, a party to a conflict
might believe it prudent to peremptorily engage and eliminate
lightly-armed noncombatant UN peacekeepers to forego any possibility of
having to later oppose them as aggressive and more lethal combatant UN
peace-enforcers. In other words, it would "encourage an approach that
one might as well be hanged for a sheep as a lamb."[^204]

Additionally, and perhaps more importantly, if UN forces were privileged
with *superior* rights as to the use of force in a peace-enforcement
operation, the law of armed conflict could become much more difficult to
enforce in other conflicts against other parties. If UN personnel were
not accountable under the law of armed conflict, the other parties to
the conflict could very well believe they also should not be held
accountable.[^205]

The law of armed conflict is based on the principle of equality of
application. A state or party to a conflict follows the law because it
anticipates the other party will reciprocate, *non facio ne facias*. No
examples exist where one state has bound itself to the law of armed
conflict without asserting and expecting reciprocity. Without equal
application and reciprocity among both parties to a conflict, the law of
armed conflict could become meaningless.[^206] As Sir Hersch Lauterpacht
succinctly explained, "it is impossible to visualize the conduct of
hostilities in which one side would be bound by rules of warfare without
benefiting from them and the other side would benefit from rules of
warfare without being bound by them."[^207]

Nevertheless, during the Korean Conflict, some believed that the UN
needed only to comply with those *ad hoc* international laws of armed
conflict it chose. In 1952, the Committee on the Study of Legal Problems
of the UN argued that the law of armed conflict was not designed to
apply to UN operations. It explained:

> The Committee agrees that the use of force by the United Nations to
> restrain aggression is of a different nature from war-making of a
> state. The purposes for which the laws of war were instituted are not
> entirely the same as the purposes of regulating the use of force by
> the United Nations. This we may say without deciding whether United
> Nations enforcement action is war, police enforcement of criminal law,
> or *sui generis*. In the present circumstances then, the proper answer
> would seem to be, for the time being, that the United Nations should
> not feel bound by the laws of war, but should select such of the laws
> of war as may seem to fit its purposes (e.g., prisoners of war,
> belligerent occupation), adding such others as may be needed, and
> rejecting those which seem incompatible with its purposes. We think it
> beyond doubt that the United Nations, representing practically all the
> nations of the earth, has the right to make such decisions.[^208]

As a matter of practice, however, during both the Korean and the Persian
Gulf conflicts, the peace-enforcement military forces authorized by the
UN made every attempt to comply with the law of armed conflict. The
peace-enforcement forces scrupulously complied with the applicable
Conventions, despite continued blatant violations by both North Korea
and Iraq.[^209] Even though the Security Council determined that Iraq\'s
invasion of Kuwait violated UN Charter Article 2(4),[^210] the Security
Council never maintained that Iraq\'s illegal act relieved Coalition
military forces from their obligation to follow the law of armed
conflict.[^211] The Security Council did, however, rightly declare on
numerous occasions that Iraq was legally bound to follow the
international law of armed conflict.[^212]

To foster reciprocal adherence to the international law of armed
conflict, the UN, when obligated to do so, must also follow it. As the
Air Force stated in one of its handbooks on the law of armed conflict:

> The law of armed conflict applies equally to both sides in all
> international wars or armed conflicts. This is true even if one side
> is guilty of waging an illegal or aggressive war. The side that is
> acting in self-defense against illegal aggression does not, because of
> that fact, gain any right to violate the law of armed conflict. Even
> forces under the sanction of the United Nations as were United States
> forces in the Korean Conflict (1950-1953), are required to follow the
> law of armed conflict in dealing with the enemy. The military
> personnel of a nation may not be punished simply for fighting in an
> armed conflict. This is so even if the side they serve is clearly the
> aggressor and has been condemned for this by the United Nations. . .
> Because, as a practical matter, all nations claim that their wars are
> wars of self-defense, the courts . . .\[are\] unwilling to punish
> officials for waging aggressive war if they are not at the
> policy-making level of government. . . . 'a private citizen \[or
> soldier must not\] be placed in the position of being compelled to
> determine in the heat of war whether his government is right or wrong,
> or if it starts right, when it turns wrong.'[^213]

The recent Convention on the Safety of UN and Associated
Personnel,[^214] in light of the principle of equal application,
recognized that there must be a clear distinction between the Safety
Convention and the Geneva Conventions so UN personnel would be covered
either by the Safety Convention or the Geneva Convention. However, a
member of a UN military force would not be covered by both Conventions.
The Safety Convention drafters likely made this clear distinction in
order to prevent eroding the Geneva Convention principle of equal
application. The overriding concern was that, if the Safety Convention
criminalized the use of force against UN forces engaged in a
peace-enforcement action, the principle of equal application would no
longer exist. The attacking forces would no longer feel bound to follow
the law of armed conflict.[^215] The principle of equal application is
indispensable if the UN wishes similar treatment from the
aggressor-state.[^216]

**D. The Law of Armed Conflict as it applies to Chapter VII**

**Peace-Enforcement Operations**

Traditionally, the Security Council will specifically state, within a
resolution itself, whether the action it authorizes is being taken under
Chapter VII. However, determining whether a Security Council-authorized
action involves "peace-enforcement" can be problematic. Further, the
Security Council does not consistently use the term "enforcement" in its
resolutions which authorize enforcement actions. As a result, one must
look to the "object and purposes of the resolution."[^217]

In both the Korean and Persian Gulf peace-enforcement actions, the law
of armed conflict applied. In both conflicts, forces authorized by the
UN adhered to the international law of armed conflict. In Korea, the UN
Command, after an initial reluctance, agreed that it would follow and
enforce the law of armed conflict. This included the Geneva Conventions,
even though they had not yet entered into force for any of the nations
contributing military forces to the UN Command. Similarly, when the
Security Council authorized its Member States to take military action
against Iraq in 1990, the law of armed conflict unquestionably applied.
In fact, the Coalition frequently informed the world of its meticulous
compliance with the law of armed conflict.[^218]

It is well settled that UN military personnel who participate in
peace-enforcement operations that breach the Common Article 2 threshold
are combatants. Accordingly, the 1994 Convention of the Safety of United
Nations and Associated Personnel clearly envisages that UN personnel
engaging in a Chapter VII peace-enforcement action are *combatants* and
may be lawfully targeted by the opposing force.[^219] Additionally, in
his Bulletin regarding UN forces and international humanitarian law,
Secretary-General Kofi A. Annan, recently implied that UN forces, at
times, may be actively be engaged as combatants.[^220] Conversely, the
Secretary-General expressly recognized the *noncombatant* status of UN
classical peacekeepers, as long as the peacekeepers do not become
parties to the conflict.[^221] The Secretary-General also envisaged that
certain circumstances and peacekeeper actions could cause the loss of
noncombatant status making the peacekeeping forces parties to the
conflict. In such a case, the international law of armed conflict would
apply, in accordance with the Secretary-General's Bulletin.[^222]

A UN peace-enforcement mission can and should be mandated only by
Chapter VII. All Chapter VII operations, however, do not necessarily
equate to directives to engage an opposing force in an all-out war.
Rather, UN forces carrying out a Security Council Chapter VII
peace-enforcement mandate may very well find it desirable and
appropriate to operate under some Chapter VI peacekeeping principles
tailored to the specific mission. Yet, these UN peace-enforcement
military personnel are combat troops given a combat mission. They must
be in sufficient numbers and have proper armaments and clear rules of
engagement. They must be given precise instructions as to what
circumstances that they are authorized to use force. If force is ever
used indiscriminately, a coercive but restrained peace-enforcement
action could become full-scale combat. Such a development would
escalate, rather than contain, the conflict and unfortunately defeat the
purpose of the mission.[^223] UN peace-enforcement military forces will
further their mission, depending upon the intensity of the operation, by
using sound discretion in the use of force and by making every attempt
to foster the cooperation of the parties to the conflict, as do their
classical peacekeeping counterparts.

**E. Can the United Nations be a Signatory to the Geneva Conventions?**

The Geneva Conventions do not technically apply to UN peacekeeping
forces that perform classical peacekeeping missions. First, the UN is
not a nation-state. At present, only nation-states may be parties to the
Geneva Conventions.[^224] The UN is not a signatory, as Article 2 (3) of
the Geneva Conventions explicitly allows only nation-states to be
parties.[^225] Further, the context of the Geneva Conventions' reference
to "Powers" suggests the phrase means nation-states, and does not extend
to insurgent groups or international organizations.

However, a number of commentators have postulated that since the UN has
international personality[^226] to enter into treaties and
multi-national conventions, the UN has the capacity to enter into the
Geneva Conventions, provided the Conventions allowed it.[^227] If the UN
wished to accede to the Conventions, the parties to Conventions could
simply consent to the accession by amending the accession clauses to the
Conventions and allow it.[^228] Even this consent and amendment may not
be necessary, however, as the UN could potentially accede to all the
Conventions under article 96 of Protocol I to the Geneva
Conventions.[^229] This article allows a party other than a nation-state
to affirmatively declare it will abide by the Geneva Conventions. Such a
declaration then obligates the other parties to the conflict to
reciprocate and follow the Conventions.

Even so, it may not be desirable to have the UN become a party to the
Conventions. In peacekeeping operations, the UN forces are
noncombatants, not combat forces. If it became a party to the
Conventions, the parties to a conflict may look at peacekeepers
differently, that is, as they might more aggressively view fellow combat
troops.[^230] In short, UN peacekeeping "forces might appear as
'combatants.'"[^231] This possibility is not attractive.

Ultimately, the UN is unlikely to become a party to the Conventions.
Acceding to the Conventions could fatally wound classical peacekeeping
operations. "\[A\] *United Nations action*, even if governed by the same
laws as war in its traditional sense, *must be clearly distinguished
from war* . . . . \[A\]ccession by the United Nations to the conventions
on warfare might blur the distinction."[^232]

The UN has consistently maintained that it is not, nor shall it become,
a party to the Conventions.[^233] However, this is not to say that the
international law of armed conflict is not applicable to UN forces.
Individual Member States that contribute forces to UN operations are
bound. Further, the majority of Geneva Convention provisions are now
universally recognized as customary international law.[^234] The law of
armed conflict is therefore pertinent to UN peacekeeping operations. As
Roberts and Guelff note:

> The United Nations itself is not a party to any international
> agreements on the laws of war. Moreover, these agreements do not
> expressly provide for the application of the laws of war to UN forces.
> However, it is widely held that the laws of war remain directly
> relevant to such forces.[^235]

Even though a party to a conflict is not a signatory or party to the
Geneva or Hague Conventions, it is still bound to follow any customary
international law of armed conflict. Moreover, such parties to the
conflict, in order to secure and maintain international credibility,
usually will announce they will follow the principles of the
Conventions. In the Korean War, neither the UN nor North Korea were
parties to the Conventions. Nevertheless, both the Supreme Commander of
the UN Forces and the North Korean Minister of Foreign Affairs stated
their military forces would abide by the Conventions.[^236]

The law of armed conflict does not expressly refer to the UN, nor do the
Conventions deal with the applicability of the law of armed conflict to
UN forces. However, when a UN force abandons its neutral peacekeeping
role and becomes a party to the conflict, or engages in a
peace-enforcement action as a party to the conflict, the UN should be
treated as a state. Concomitantly, the law of armed conflict would apply
both to the UN forces, and the forces they oppose. In such cases, both
the UN and the opposing forces are parties to the conflict required to
treat each other as lawful combatants. Consequently, for example,
captured forces of either side would be afforded all protections and
rights provided under the third Geneva Convention.[^237]

**F. Common Article 2 of the Geneva Conventions:**

**The Armed Conflict Threshold**

Common Article 2 of the Geneva Conventions[^238] contemplates that the
Conventions apply only during an international armed conflict. It is the
threshold test for whether an international armed conflict exists
causing the concomitant application of the international law of armed
conflict.[^239] A UN force that limits its use of force strictly to
self-defense will not cross the Common Article 2 threshold. However, a
military force attacking a UN peacekeeping force, combined with the
force used by the peace-keepers in self-defense and subsequent offensive
counter-attack, might reach the threshold of international armed
conflict that invokes Common Article 2. Once the parties reach this
level of conflict, the rights and obligations of the law of armed
conflict apply.[^240]

However, what constitutes an "armed conflict" is difficult to
define.[^241] The ICRC, interpreting the Geneva Convention, provided the
following definition:

> \[a\]ny difference arising between two States and leading to the
> intervention of members of the armed forces is an armed conflict
> within the meaning of Article 2, even if one of the Parties denies the
> existence of a state of war. It makes no difference how long the
> conflict lasts, or how much slaughter takes place. The respect due to
> the human person as such is not measured by the number of
> victims.[^242]

The ICRC definition is purposely worded very broadly in order to include
an entire spectrum of conflicts and bring them under the
Conventions.[^243] Still, according to the ICRC, there is a prerequisite
to the application of the international law of armed conflict---there
must be "the presence of an armed conflict."[^244] One very practical
definition is that an armed conflict exists when the Common Article 2
threshold is crossed. "That threshold is crossed when there is an
identified enemy. There is an identified enemy when there are members of
the enemy military or para-military forces belonging to another state
committing acts of war in the apparent furtherance of that state\'s
policy."[^245] The question of whether the threshold has been crossed is
a question of fact, not of politics.[^246]

Yet, the Common Article 2 *de facto* threshold is not a bright line
test. Although the UN accepts that its traditional peacekeeping forces
may theoretically become combatants, and hence lawful targets, when its
peace operation reaches "*some undefined level of intensity*,"[^247] the
UN has so far declined to specify any potential circumstances that would
result in its peacekeepers crossing the threshold. As a result, UN
military forces currently do not have clear guidance as to what level of
intensity crosses the Common Article 2 threshold amounting to armed
conflict. Further complicating the problem, in some recent peacekeeping
operations, peacekeepers in pursuing their mandated missions have more
frequently and robustly used military force. This increase in the use of
force has raised a great deal of concern about whether such force is in
accordance with the law of armed conflict.[^248]

The United Nations Operation in Somalia (UNOSOM), for example,
illustrates the difficulties and controversies inherent when attempting
to determine whether a peacekeeping force has crossed the threshold into
armed conflict and has therefore become a party to it. On October 3,
1993, the Unified Task Force (UNITAF) abandoned its previously impartial
role and took military action against a specific Somali warlord, General
Aideed. When attempting to arrest him, intense fighting ensued. Eighteen
U.S. soldiers and one Malaysian soldier were killed. Another
seventy-eight U.S. soldiers, nine Malaysian soldiers, and three
Pakistani soldiers were wounded. The UN Commission established to
investigate the attack concluded that once UNITAF began taking action
against General Aideed, they, arguably, crossed the threshold and were
no longer "persons taking no active part in the hostilities" and hence
became "parties to the conflict." As a result of this change of status,
UNITAF arguably was no longer guaranteed the minimal humane treatment
protection accorded noncombatants under Common Article 3 of the Geneva
Conventions.[^249] However, the UN Secretary-General and the United
States concluded the opposite: "It \[is\] the U.S. \[and\] UN . . .
opinion that their forces \[did\] not become combatants, despite
carrying out some offensive-type operations (e.g. Task Force Ranger in
Somalia)."[^250]

In order to avoid dealing with the knotty factual uncertainty of whether
a given military operation has crossed the armed conflict threshold, the
United States Chairman of the Joint Chiefs of Staff (CJCS) directs that
United States military forces "will comply with the law of war during
all armed conflicts; however, such conflicts are characterized and,
unless otherwise directed by competent authorities, will comply with the
principles and spirit of the law of war during all other
operations."[^251] Similarly, the U.S. Army Operational Law Handbook
supports that view:

> The \[law of war\] (LOW) applies to all cases of declared war or any
> other armed conflict which may arise between the U.S. and other
> nations, even if the state of war is not recognized by one of them. FM
> 27-10, para. 8. It also applies to cases of partial or total
> occupation. The threshold is codified in common article 2 of the
> Geneva Conventions. Armed conflicts such as the Falklands War, the
> Iran-Iraq War, and Desert Storm were clearly international armed
> conflicts to which the law applied. . . .In peace operations, such as
> those in Somalia, Haiti, and Bosnia, the question frequently arises
> whether the LOW [legally]{.underline} applies to those operations. The
> issue hinges on whether the peace operations undertake a combatant
> role. . . . Despite the legal inapplicability of the LOW to
> \[operations such as Somalia and Bosnia\], it is nonetheless, the
> position of the US, UN and NATO that their forces will apply the
> \"principles and spirit\" of the LOW in these operations. . . . In
> applying the \[Department of Defense\] policy, however, allowance must
> be made for the fact that during these operations U.S. Forces often do
> not have the resources to comply with the LOW to the letter. It has
> been U.S. practice to comply with the LOW to the extent "practicable
> and feasible."[^252]

In essence, the United States applies the principles and spirit of law
of armed conflict to all military operations, yet reserves that its
forces will be bound by the law of armed conflict only in cases when it
is clear that the Common Article 2 threshold has been crossed. This
pragmatic resolution to an issue of international law that is far from
settled serves United States interests well. Yet, it does not address
the larger question, that is, "what level of combat intensity is
required before UN peacekeepers cross the Common Article 2 threshold,
lose their noncombatant status, and become parties to the conflict,
rendering them lawful military targets?"

The answer as to peacekeeping operations and UN-authorized
peace-enforcement operations may very well be that, "the threshold for
determining whether a force has become a party to an armed conflict
\[is\] somewhat higher in the case of UN and associated forces engaged
in a mission which has a primarily peace-keeping or humanitarian
character than \[is\] the normal case of conflicts between
states."[^253] This theoretical "higher threshold," specific to UN peace
operations, would bring international law in line with the UN's past
practice and official policy regarding the peace operations in Haiti,
Somalia and Bosnia. A formalized higher Common Article 2 threshold would
allow the UN more flexibility and options during robust peacekeeping
operations. Further, it would ensure UN personnel do not routinely lose
their noncombatant status, and therefore become lawful targets, when
engaged in robust peacekeeping operations. Yet, even if the Common
Article 2 threshold existed at a somewhat higher level than that
applicable to nation-states, peacekeepers would still have ample
incentives to restrain their peace operations in such a way to stay
beneath it. Such incentives include, for example, peacekeeper
protection, mission legitimacy, and the obvious desire to avoid
unnecessarily escalating the conflict.

**G. The United Nations' Code of Conduct for**

**Peacekeepers---Half a Solution**

There have been numerous and resounding demands that the UN should
promulgate clear directives regarding the applicability of the
international law of armed conflict to UN personnel.[^254] In 1997,
after decades of apparent apathy from the UN, the ICRC announced it had
been recently working with the UN to prepare a Code of Conduct for UN
peacekeepers. Previously, in May 1996, the ICRC and the UN had jointly
prepared a proposed set of Directives for UN Forces Regarding Respect
for International Humanitarian Law.[^255] The ICRC explained that its
directives would clarify the principles and spirit of international
humanitarian law to which the UN has implicitly bound its forces for the
past fifty years.[^256]

Finally, the UN had provided its long-awaited official response, albeit
a somewhat disappointing one. Secretary-General Kofi A. Annan, in his
August 6, 1999 Bulletin, attempted to take a significant step towards
clarification of the applicability of the international law of armed
conflict in UN peace-keeping and peace-enforcement operations.[^257]
Instead, he merely provided half a solution with a one-size-fits-all
code of conduct regarding all peace operations. He promulgated a
directive that specified the very minimum standards of behavior expected
of UN peace operations personnel. The Secretary-General's Bulletin
entered into force on August 12, 1999, to coincide with the 50^th^
anniversary of the adoption of the four Geneva Conventions.[^258] The
Bulletin declared the "fundamental principles and rules of international
humanitarian law" pertaining to UN peacekeepers.[^259]

The Bulletin is "applicable to United Nations forces conducting
operations under United Nations command and control."[^260]
Unfortunately, the Bulletin does not clarify how the law of armed
conflict applies during the different types of UN peacekeeping
operations. It simplistically states that the principles apply "to UN
forces when in situations of armed conflict they are actively engaged as
combatants, to the extent and for the duration of their engagement.
\[The principles of the Bulletin\] are accordingly applicable in
enforcement actions, or in peace-keeping operations when the use of
force is permitted in self-defense."[^261]

In its desire to provide simple guidance, the Bulletin treats the use of
force during a peace-enforcement action the same as the use of force in
self-defense during a peacekeeping operation. Such reductionism fails to
recognize that totally separate and different legal foundations
authorize, as well as limit, the two forms of the uses of force, one
being the law of armed conflict and the other being an inherent right to
defend oneself.[^262] A better solution would have been to clearly
define the three predominant peace operations---classical peacekeeping
operations, robust peacekeeping operations, and peace-enforcement
operations---and then promulgate different directives with separate
rules for each. This would have helped keep the different operations
distinct and reduced potential confusion.

Further, the Bulletin tends to concentrate on the use of force in
accordance with the international law of armed conflict and does not
clearly acknowledge that peacekeepers rarely use force in order to
accomplish their mission. The use of force during classical peacekeeping
operations is the exception, not the rule, and then only in
self-defense. The use of force in peace-enforcement operations, on the
other hand, is authorized if permitted under the rules of engagement and
the specific UN mandate. By implicitly merging the concepts of
peacekeeping and peace-enforcement and concentrating on the principles
of the international customary law of armed conflict, the Bulletin risks
that peacekeepers may view the two types of peace operations as the
same. This could result in some peacekeepers believing, albeit
erroneously and regardless of their rules of engagement, that the
authorization for the use of force in both circumstances, is similar and
possibly even the same.[^263]

Moreover, the Bulletin is potentially under-inclusive because it only
applies to "United Nations forces." For example, the guidelines do not
appear to apply to UN "Associated Personnel."[^264] Nor do the
guidelines appear to apply to military forces authorized by the UN, but
under the control of regional military alliances. The guidelines would
not apply, for example, to the NATO-led Stabilization Force (SFOR) in
Bosnia-Herzegovina, forces in West Africa led by Nigeria, or the
NATO-led Kosovo Force (KFOR). These forces are authorized by the UN, but
are not under its command and control.[^265] Such forces, of course, are
still bound by customary international law, as well as their own
respective national laws.

Yet, the Secretary-General's Bulletin represents the first time the UN
has officially recognized that UN forces are bound by the same
principles that bind national troops. The guidelines were formulated
over the past several years, the principles underlying the guidelines
having been drawn from the Geneva Conventions *mutatis mutandis*.[^266]
The Secretary-General promulgated the Bulletin, despite numerous
objections from Member States. Upon release of the document he stated
that "\[t\]he guidelines are not cast in stone, they will be revised in
a few years time."[^267]

The three-page Bulletin succinctly restates what amount to
uncontroversial and near-universal principles of customary international
humanitarian law. UN military personnel may not attack "civilians or
civilian objects."[^268] The UN personnel "shall respect the rules
prohibiting or restricting weapons and methods of combat."[^269]
Civilians will be "treated humanely,"[^270] and women and children are
afforded special protections from attack.[^271] If the UN forces detain
military personnel or civilians, the detained persons must be "treated
in accordance with the relevant provisions of the Third Geneva
Convention of 1949."[^272] Additionally, "\[m\]embers of the armed
forces and other persons in the power of the UN who are wounded or sick
shall be treated humanely and protected in all circumstances."[^273]

According to the Bulletin, if a UN military member violates these
guidelines or other binding international humanitarian law, the member
is "subject to prosecution in \[the member\'s own\] national
courts."[^274] However, this is voluntary on the part of the Member
State. As one UN official explained, "'there is nothing in this bulletin
that will compel a member state to try its peacekeepers,' although he
noted that all signatories to the Geneva Conventions are obliged to do
so.'"[^275]

Although overly simplistic, the Secretary-General\'s Bulletin is a
notable and positive step. It is, for the most part, uncontroversial in
that it simply restates customary international humanitarian law. It is
equally applicable in both peacekeeping and peace-enforcement
operations.[^276] It does not "affect the protected status of members of
peacekeeping operations under the 1994 Convention on the Safety of
United Nations and Associated Personnel or their status as
noncombatants."[^277] Finally, the Bulletin expressly does not supersede
the respective national laws of UN personnel, nor is it an "exhaustive
list of principles and rules of international law binding upon military
personnel."[^278] At present, it is little more than a minimum legal
standard for the military conduct of UN forces.

This set of minimum standards of behavior is only half a solution
however. Unfortunately, while the Bulletin expressly recognizes that UN
forces, under UN Command, may effectively be engaged as combatants, it
does not specifically address the circumstances in which this may occur.
The Secretary-General does not provide any guidelines as to when and how
a noncombatant UN peacekeeper may become a combatant. The
Secretary-General implies that a noncombatant peacekeeper may lose the
protection of the 1994 Safety Convention,[^279] but does provide the
circumstances under which this may occur.

If UN peacekeepers are to be protected and maintain their protected
noncombatant status, they must be provided clear guidelines as to
appropriate conduct and rules of engagement that are specific to each
form of peace operation. To achieve this, the UN must first articulate a
cogent definition of "armed conflict." With this definition, there must
be an unambiguous threshold of when a UN military operation becomes an
armed conflict in which UN personnel become combatants and lose
protection of the 1994 Safety Convention. In such a case, the
international law of armed conflict would apply and the UN personnel
would become lawful targets. Due to the obvious gravity of such a
scenario, it is imperative the UN clarify this gap in the international
law of armed conflict.

**IV. CONCLUSION**

Classical peacekeeping customs and norms have developed over fifty years
of operations. The characteristics of impartiality, consent of the
parties, command and control of the UN force by the Secretary-General,
and most importantly, the use of force limited to circumstances
involving self-defense have led to successful missions and the
protection of peacekeepers.

However, as peacekeeping missions become more robust, missions have
become ambiguous and peacekeepers endangered. To better the chances of
mission success, ensure the mission is performed in accordance with
international law, and to provide more protection to the peacekeepers
themselves, the UN must clearly define the different forms of peace
operations. The UN must lead a coherent and determined effort to keep
peacekeeping missions distinct from peace-enforcement missions.
Additionally, the UN must collectively strive to fill the recognized
gaps in the international law of armed conflict regarding its
application to UN peace operations.

However, ultimately, the lack of clarity in the international law of
armed conflict regarding UN peace operations is a failing on the part of
the Member States. To successfully fill this void, the Member States
must seek consensus to clearly define the legal status of UN military
personnel for each specific form of peace operation.[^280] The UN, at
the behest of its Member States, should convene an international
convention to delineate the level and intensity of armed conflict that
changes the status of a noncombatant peacekeeper to that of a combatant
peace-enforcer. If UN peace operations are subject to a higher Common
Article 2 armed conflict threshold, the UN should affirmatively and
formally say so. A peacekeeper has a fundamental right to know what
circumstances change the peacekeeper from a noncombatant to a combatant,
result in the loss of protection of the 1994 Safety Convention and,
ultimately, make the peacekeeper a target that can be lawfully engaged.

These are momentous times. The UN may now come of age. Its envisaged
role in 1945 can come to fruition if its Member States continue to
collectively agree to practical and realistic methods of peacekeeping
and peace-enforcement and, more importantly, the Security Council
continues to garner the collective political will to cooperate and act
for the common good.

The international community, and specifically the UN, still struggles
with the vision of international peace and security. It does not often
act with one voice and, as a result, oftentimes fails to act at all.
Yet, despite the UN's many flaws and failings, it is indispensable. It
remains the best hope for world security and the maintenance of peace.

The post-Cold War world is one of uncertainty, but also one of promise
and optimism. It will remain so only as long as the Member States of the
UN effectively endeavor to "save succeeding generations from the scourge
of war" and "unite our strength to maintain international peace and
security."[^281]

[^1]: ^\*^ *Major Bialke (B.S.C.J.S., M.A., J.D., University of North
    Dakota, LL.M., University of Iowa) is assigned as Chief of
    International Agreements, International Affairs Division, United
    Nations Command and Headquarters, United States Forces in Korea,
    Yongsan Army Garrison, Seoul, Republic of Korea.*

[^2]: [U.N. Charter]{.smallcaps} preamble.

[^3]: G.C. Berkhof[,]{.smallcaps} *Maintaining International Peace and
    Security: The Military Dimension*, 35 [Neth. Int'l L.R. 297
    (1988).]{.smallcaps}

[^4]: [U.N. Charter]{.smallcaps} art. 1, para. 1.

[^5]: Vladimir V. Grachev[,]{.smallcaps} *Legal Considerations for
    Military and Peacekeeping Operations---United Nations Peacekeeping
    in Transition,* 45 N[aval L. Rev. 273, 280 (1998).]{.smallcaps}

[^6]: [U.N. Charter]{.smallcaps} art. 2, para. 4.

[^7]: [U.N. Charter]{.smallcaps} art. 51.

[^8]: [U.N. Charter]{.smallcaps} art. 2, para. 5.

[^9]: [U.N. Charter]{.smallcaps} art. 25.

[^10]: Although armed conflict continues, the aspiration of every
    nation-state should be the end to conflict. In Geneva, on Aug. 12,
    1999, United Nations Secretary General Kofi Annan "signed a solemn
    appeal calling on all peoples and governments to reject the idea
    that war is inevitable and to eradicate its underlying causes."
    United Nations Press Release, Calls for Renewed Efforts to Protect
    Civilians in War (Aug. 13, 1999), *available at*
    http://allafrica.com/stories/199908130003.html (copy on file with
    the *Air Force Law Review*). *Accord* 22 USC § 2551:

    > An ultimate goal of the United States is a world which is free
    > from the scourge of war and the dangers and burdens of armaments;
    > in which the use of force has been subordinated to the rule of
    > law; and in which adjustments to a changing world are achieved
    > peacefully.

[^11]: Traditionally defined as \"blue helmet\" operations, in 1992,
    Secretary-General Boutros Boutros-Ghali defined peacekeeping as

    > the deployment of a United Nations presence in the field, hitherto
    > with the consent of all parties concerned, normally involving
    > United Nations military and/or police personnel and frequently
    > civilians as well. Peace-keeping is a technique that expands the
    > possibilities for both the prevention of conflict and the making
    > of peace.

    [Boutros Boutros-Ghali, An Agenda for Peace,]{.smallcaps} 45 (2d ed.
    1995). Additionally,

    > \[p\]eace keeping has been described as the deployment of a United
    > Nations presence in an area of conflict with the consent of the
    > States, or where relevant, other entities concerned, and as an
    > interim arrangement to contain fighting, prevent the resumption of
    > hostilities and restore international peace and security. The
    > functions of peace keeping, which have traditionally ranged from
    > observance of cease-fire, demarcation lines, or withdrawal of
    > forces agreements, have in recent years widened to include
    > monitoring of election process, delivery of humanitarian supplies,
    > assisting in the national reconciliation process and rebuilding of
    > a State's social, economic and administrative infrastructure.
    > Peace-keeping forces have no military mandate of enforcement
    > powers, and although equipped with light defensive weapons, they
    > may use them only in self-defence.

    Daphna Shraga & Ralph Zacklin, *The Applicability of International
    Humanitarian Law to United Nations Peace-keeping Operations:
    Conceptual, Legal and Practical issues,* *in* [International
    Committee of the Red Cross Symposium on Humanitarian Action and
    Peace-Keeping Operations 40 (]{.smallcaps}Umesh Palwankar ed., 1994)
    \[hereinafter Shraga & Zacklin\].

    > \[P\]eacekeeping describes the inherently peaceful action of an
    > internationally directed force of military, police and sometimes
    > civilian personnel to assist with the implementation of agreements
    > between governments or parties which have been engaged in
    > conflict. It presumes cooperation, and the use of military force
    > (other than in self-defense) is incompatible with the concept.

    J.C. Waddell, *Legal Aspects of UN Peacekeeping, in* [The Force of
    Law: International Law and the Land Commander 47, 47
    (]{.smallcaps}Hugh Smith ed., 1994) \[hereinafter Waddell\].

[^12]: In the early and mid-90\'s, in Somalia and Bosnia-Herzegovina,
    classical peace-keeping principles and norms developed during the
    Cold War were "strained to the breaking point." "\[T\]he Security
    Council proclaimed 'no-fly zones' and 'safe areas,' declared
    punitive actions against warlords, and acquiesced in NATO-declared
    'exclusion zones'; ... Member States established command
    arrangements that did not in all cases terminate in New York; . . .
    peace-keepers mounted anti-sniping patrols and called in air
    strikes." Shashi Tharoor*,* *The Changing Face of Peace-keeping and
    Peace-Enforcement,* 19 [Fordham Int\'l L.J. 408, 414
    (1995).]{.smallcaps} Such "robust" peacekeeping operations have also
    been called "coercive peace-keeping." Walter Gary Sharp, Sr.,
    *Protecting the Avatars of International Peace and Security,* 7
    [Duke J. Comp. Int'l L. 93, 105 (1996).]{.smallcaps}

[^13]: Peace-enforcement operations generally refer to nonconsensual
    operations conducted by United Nations military personnel or United
    Nations Member State forces. Secretary General Boutros Boutros-Ghali
    succinctly defined such operations as "peace-keeping activities
    which do not necessarily involve the consent of the parties
    concerned. Peace enforcement is foreseen in Chapter VII of the
    Charter." [Boutros-Ghali,]{.smallcaps} *supra* note Error: Reference
    source not found[,]{.smallcaps} at 12. Put another way,

    > \[p\]eace enforcement is a Chapter VII mandated operation carried
    > out by United Nations forces or by States, groups of States or
    > regional arrangements on the basis of an invitation of the State
    > concerned (Korea 1950), or an authorization by the Security
    > Council (Gulf, 1990). They have a clear combat mission and are
    > empowered to use coercive measures to carry out their mandate.

    Shraga & Zacklin, *supra* note Error: Reference source not found, at
    40. "'Peace enforcement' . . . may be defined as a military
    operation in support of diplomatic efforts to restore peace between
    belligerents who may not be consenting to intervention and who may
    be engaged in combat activities." Waddell, *supra* note Error:
    Reference source not found, at [47-48]{.smallcaps}.

[^14]: Air Force Pamphlet 110-31, International Law---The Conduct of
    Armed Conflict and Air Operations, para. 1-2 (d)(1) (Nov. 19, 1976)
    (reissue pending as AFPAM 51-710) \[hereinafter AFPAM 110-31\],
    defines the international law of armed conflict as,

    > a part of the international law primarily governing relationships
    > between states. The term refers to principles and rules regulating
    > the conduct of armed hostilities between states. Traditionally
    > known as the law of war, the term 'law of armed conflict' is
    > preferred. Since World War II, states have avoided formal
    > declarations of war. Recent multi-lateral conventions, notably the
    > 1949 Geneva Conventions, refer to armed conflict rather than war.
    > International law regulating armed conflict applies if there is in
    > fact an international armed conflict. It may also apply to armed
    > conflicts that traditionally have not been viewed as
    > 'international' but which clearly involve the peace and security
    > of the international community.

    *See also* Julianne Peck, Note, *The U.N. and the Laws of War: How
    Can the World\'s Peacekeepers be Held Accountable?,* [21 Syracuse J.
    Int\'l L. & Com. 283, 296 (1995):]{.smallcaps}

    > [T]{.smallcaps}he Hague and Geneva Conventions embody the laws of
    > war, referred to as the *jus in bello.* The Hague Conventions are
    > a series of treaties concluded at the Hague in 1907, which
    > primarily regulate the behavior of belligerents in war and
    > neutrality, whereas the Geneva Conventions are a series of
    > treaties concluded in Geneva between 1864 and 1949, which concern
    > the protection of the victims of armed conflict. In 1977 two
    > Protocols to the 1949 Geneva Conventions, which further developed
    > the protection of victims in international armed conflicts and
    > expanded protection to victims of non-international armed
    > conflict, were opened for signature, but were not as universally
    > accepted.

    *Id.* (footnotes omitted).

[^15]: Garth J. Cartledge, *International Humanitarian Law, in*
    [International Law and Australian Security]{.smallcaps} 147, 150
    (Shirley V. Scott & Anthony Bergin eds., 1997) \[hereinafter
    Cartledge, *International Humanitarian Law*\].

[^16]: Christopher Greenwood[,]{.smallcaps} *Protection of Peacekeepers:
    The Legal Regime,* 7 [Duke J. Comp & Int\'l L. 185, 188
    (1996).]{.smallcaps}

[^17]: *Id*[.]{.smallcaps}

[^18]: *See generally*, Roberto Suro, *U.S. Air Raids on Iraq Become an
    Almost Daily Ritual,* [Wash. Post,]{.smallcaps} Aug. 30, 1999, at
    A3. After Iraq continued to fire anti-aircraft weapons against
    United Nations authorized aircraft enforcing the no-fly zone, it
    became clear that the previous policy of simply returning fire in
    self-defense against only the offending radar and surface-to-air
    missile sites was not effective. In order to deter future attacks
    against coalition aircraft, the definition of aircraft self-defense
    was expanded authorizing follow-on attacks against secondary targets
    that had not previously engaged the aircraft. Pilots carried
    previously approved lists containing targets that could be engaged
    whenever Iraq threatened their aircraft. Additionally, the targets
    did not have to be engaged immediately, rather the retaliation could
    occur a day or two later. Such secondary targets included "a
    military installation 28 miles away" and "a military depot deep in
    the desert." *Id.* Whether or how the laws of armed conflict apply
    in such circumstances is not clear. What is clear, however, is that
    the expanded definition of self-defense and its resulting
    implementation worked, at least in the short term. Iraq temporarily
    stopped engaging coalition aircraft that were enforcing the no-fly
    zone.

[^19]: The *ius in bello* means the law of armed conflict, international
    humanitarian law, or what was initially called the law of war.
    Judith G. Gardam[,]{.smallcaps} *Legal Restraints on Security
    Council Military Enforcement Action,* 17 [Mich. J. Int'l L. 285,
    287]{.smallcaps} n.5 [(1996).]{.smallcaps} In contrast, the *ius ad
    bellum* are the laws regarding the permissibility of employing the
    use of force in international law. *[I]{.smallcaps}d.* at 287 n[.6.
    "]{.smallcaps}*Ius*" is Latin meaning "law" or "right". [Black's Law
    Dictionary 837 (7]{.smallcaps}^th^ ed. 1999). In slight contrast,
    "*jus*" is Latin meaning "\[l\]aw in the abstract." *Id.* at 863.

[^20]: [U.N. Charter]{.smallcaps} art. 24, para. 1.

[^21]: The five permanent members are the Republic of China (originally
    occupied by Taiwan; now occupied by the People's Republic of China),
    France, the Union of Soviet Socialist Republics (now occupied by
    Russia), the United Kingdom of Great Britain and Northern Ireland,
    and the United States of America. [U.N. Charter]{.smallcaps} art.
    23, para. 1.

[^22]: [U.N. Charter]{.smallcaps} art. 27, para. 3.

[^23]: Mats R. Berdal[,]{.smallcaps} *The Security Council, Peacekeeping
    and Internal Conflict after the Cold War*, 7 [Duke J. Comp. & Int'l
    L. 71, 73 (1996);]{.smallcaps} *See generally* G.C.
    Berkhof[,]{.smallcaps} *Maintaining International Peace and
    Security: The Military Dimension*, 35 [Neth. Int'l L.R. 297
    (1988).]{.smallcaps}

[^24]: Alan K. Henrikson[,]{.smallcaps} *The United Nations and Regional
    Organizations: "King-Links" of a "Global Chain*,*"* 7 [Duke J. Comp.
    & Int'l L. 35, 44 (1996).]{.smallcaps}

[^25]: Edward J. Perkins[,]{.smallcaps} Comment, *United Nations
    Peace-Keeping*, 18 [Yale J. Int'l L. 435 (1993).]{.smallcaps}

[^26]: *An Agenda for Peace: Preventative Diplomacy, Peacemaking and
    Peace-keeping: Report of the Secretary-General*, para. 14, U.N. Doc.
    A/47/277/S/2411 (1992), *at* http://www.un.org/Docs/SG/agpeace.html
    (copy on file with the *Air Force Law Review*).

[^27]: [U.N. Charter]{.smallcaps} art. 1, para. 1.

[^28]: Perkins[,]{.smallcaps} *supra* note Error: Reference source not
    found[.]{.smallcaps}

[^29]: [U.N. Charter]{.smallcaps} arts. 33-38.

[^30]: [U.N. Charter]{.smallcaps} art. 36, para. 1. *See also,* W.
    Michael Reisman[,]{.smallcaps} *Peacemaking*, 18 [Yale J. Int'l L.
    415, 416]{.smallcaps} n.9 [(1993).]{.smallcaps}

[^31]: [U.N. Charter]{.smallcaps} art. 33, para. 1 states: "The parties
    to any dispute, the continuance of which is likely to endanger the
    maintenance of international peace and security, shall, first of
    all, seek a solution by negotiation, enquiry, mediation,
    conciliation, arbitration, judicial settlement, resort to regional
    agencies or arrangements, *or other peaceful means of their own
    choice*." (emphasis added).

[^32]: J.M. Sanderson, *Dabbling in War: The Dilemma of the Use of Force
    in United Nations Intervention, in* [Peacemaking and Peacekeeper for
    the New Century]{.smallcaps} 145, 148 (Olara A. Otunno et al. eds.,
    1998).

[^33]: Berdal[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [74.]{.smallcaps}

[^34]: Brian Urquhart, *The United Nations, Collective Security, and
    International Peacekeeping,* in [Negotiating World Order: The
    Artisanship and Architecture of Global Diplomacy 59,]{.smallcaps} 62
    [(A]{.smallcaps}lan K. Henrikson ed., 1986[).]{.smallcaps}

[^35]: *See* Reparation for Injuries Suffered in the Service of the
    United Nations, 1949 I.C.J. 174 (Apr. 11) \[hereinafter Reparations
    Case\] (\"\[T\]he Organization must be deemed to have those powers
    which, though not expressly provided in the Charter, are conferred
    upon it by necessary implication as being essential to it in the
    course of its duties.\") *Id.* at 182.

[^36]: Tyge Lehmann[,]{.smallcaps} *Some Legal Aspects of the United
    Nations of Peace-Keeping Operations,* 54 [Nordisk Tidsskrift for
    Int\'l Ret og Jus Gentium 11, 12 (1985).]{.smallcaps}

[^37]: Certain Expenses of the United Nations, 1962 I.C.J. 151, 164-67
    (Jul. 20). The I.C.J. agreed that the United Nations Charter
    authorized peacekeeping operations, to include peacekeeping
    operations authorized by the General Assembly. The I.C.J. cautioned,
    however, that "the Assembly should not recommend measures while the
    Security Council is dealing with the same matter unless the Council
    requests it to do so." *Id.* at 163.

[^38]: Reisman[,]{.smallcaps} *supra* note 29, at [415.]{.smallcaps}

[^39]: [Boutros Boutros-Ghali, The Blue Helmets: A Review of United
    Nations Peace-keeping]{.smallcaps} 17 (3d ed. 1996).

[^40]: Lehmann[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [15-16.]{.smallcaps}

[^41]: Michael Stopford[,]{.smallcaps} *Peace-Keeping or
    Peace-Enforcement: Stark Choices for Grey Areas*, 73 [U. Det. Mercy
    L. Rev. 499, 502 (1996) (]{.smallcaps}quoting Dag
    Hammarskjold)[.]{.smallcaps}

[^42]: [U.N. Charter]{.smallcaps} art. 1, para. 1.

[^43]: *See* Thomas G. Weiss[,]{.smallcaps} *New Challenges for UN
    Military Operations: Implementing an Agenda for Peace,* [Wash. Q.
    51, 52 (]{.smallcaps}Winter [1993).]{.smallcaps}

[^44]: Stopford[,]{.smallcaps} *supra* note Error: Reference source not
    found.

[^45]: [William J. Durch, The Evolution of U.N. Peacekeeping: Case
    Studies and Comparative Analysis 5 (]{.smallcaps}1993).

[^46]: Brian Urquhart[,]{.smallcaps} *The Future of Peace-Keeping*, 36
    [Neth. J. Int'l L. 50, 52 (1989).]{.smallcaps}

[^47]: From 1960-64, the United Nations authorized a peacekeeping force
    to restore law and order to the Congo. The United Nations Operation
    in the Congo (Operations des Nations Unies au Congo - ONUC)
    redefined and expanded the use of force in self defense to prevent
    local factions from preventing the peacekeepers from carrying out
    their mandate and responsibilities. "The concept of self defense, as
    well as the principles of non-intervention and sovereignty, were
    loosely defined and greatly modified in the Congo Operation." Jon E.
    Fink, *From Peacekeeping to Peace-Enforcement: The Blurring of the
    Mandate for the Use of Force in Maintaining International Peace and
    Security,* 19 [Md. J. Int\'l L. & Trade 1, 15 (1995).]{.smallcaps}

[^48]: Katherine E. Cox, *Beyond Self-Defense: United Nations
    Peacekeeping Operations & the Use of Force,* 27 [Denv. J. Int\'l L.
    & Pol\'y 239, 255-56 (1999).]{.smallcaps}

[^49]: [Indar Jit Rikhye, Peacekeeping: Appraisals & Proposals 6
    (1983).]{.smallcaps}

[^50]: [L.C. Green, The Contemporary Law of Armed Conflict 324
    (]{.smallcaps}1993).

[^51]: Stopford[,]{.smallcaps} *supra* note Error: Reference source not
    found[.]{.smallcaps}

[^52]: [C.C. Moskos, Jr., Peace Soldiers: The Sociology of a United
    Nations Military Force, 139 (1976).]{.smallcaps}

[^53]: Berdal[,]{.smallcaps} *supra* note Error: Reference source not
    found[.]{.smallcaps}

[^54]: Berdal, *supra* note Error: Reference source not
    found[,]{.smallcaps} at [73-74.]{.smallcaps}

[^55]: *See* [U.N. Charter]{.smallcaps} art. 24, para. 1.

[^56]: Berdal[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [73]{.smallcaps} n.11. The Soviet Union usually was
    extremely skeptical of United Nations peacekeeping operations, even
    actively opposing specific missions. Then, in 1987, the Soviet Union
    conceded the value of such operations. As a result, there was
    finally unanimity among the major powers that the United Nations had
    international authority to conduct peacekeeping operations. *See*
    Urquhart[,]{.smallcaps} *supra* note Error: Reference source not
    found[,]{.smallcaps} at [52.]{.smallcaps}

[^57]: Richard Connaughton, *Military Intervention and UN Peacekeeping,*
    *in* [To Loose the Bands of Wickedness 171 (]{.smallcaps}Nigel
    Rodley ed., 1992).

[^58]: Lori F. Damrosch[,]{.smallcaps} *The Role of the Great Powers in
    United Nations Peace-Keeping*, 18 [Yale J. Int'l L. 429
    (1993).]{.smallcaps}

[^59]: *Id.*

[^60]: Davis Brown[,]{.smallcaps} *The Role of the United Nations in
    Peacekeeping and Truce-Monitoring: What Are the Applicable Norms*, 2
    [Revue Belge De Droit Int\'l 559, 561 (1994).]{.smallcaps} In
    summary,

    > \[A\] consistent body of \[classical peacekeeping\] practice and
    > doctrine evolved over the years: peace-keepers functioned under
    > the command and control of the Secretary-General; they represented
    > moral authority rather than the force of arms; they reflected the
    > universality of the United Nations in their composition; they were
    > deployed with the consent and co-operation of the parties; they
    > were impartial and functioned without prejudice to the rights and
    > aspirations of any side; they did not use force or the threat of
    > force except in self-defence; they took few risks and suffered a
    > minimal number of casualties; and they did not seek to impose
    > their will on any of the parties.

    Tharoor*,* *supra* note Error: Reference source not found.

[^61]: [U.N. Charter]{.smallcaps} art. 2 para. 1.

[^62]: [U.N. Charter]{.smallcaps} art. 2 para. 7.

[^63]: Brown[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [561-62.]{.smallcaps}

[^64]: Lehmann[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [15.]{.smallcaps} Secretary-General Dag Hammarskjold said
    the United Nations "could not request the Force to be stationed or
    operate on the territory of a given country without the consent of
    the Government of that country." *Report of the Secretary General*,
    UN Doc. A/3302 (1956). [A]{.smallcaps}fter Egypt withdrew its
    consent, the United Nations Security Council could have changed the
    Chapter VI peacekeeping force into a Chapter VII coercive
    peacekeeping force. The Security Council did not seriously entertain
    this alternative. Yoel Arnon Tsur, *The United Nations Peace-Keeping
    Operations in the Middle East From 1965 to 1976*, *in* [United
    Nations Peace-Keeping: Legal Essays 183, 207-08 (]{.smallcaps}A.
    Cassese ed., [1995).]{.smallcaps}

[^65]: *See generally* Convention on Privileges and Immunities of the
    United Nations, Feb. 13, 1946, 21 U.S.T. 1418, 1 U.N.T.S. 16.

[^66]: Antonietta Di Blase, *The Role of the Host-Nation\'s Consent with
    Regard to Non-Coercive Actions by the United Nations,* *in* [United
    Nations Peace-Keeping: Legal Essays 55, 78 (]{.smallcaps}A. Cassese
    ed., [1995).]{.smallcaps}

[^67]: R.C.R. Siekmann[,]{.smallcaps} *The Codification of General
    Principles for United Nations Peace-Keeping Operations,* 35 [Neth.
    Int'l L. Rev. 328, 331 (1988).]{.smallcaps}

[^68]: [U.N. Charter]{.smallcaps} art. 2, para. 1.

[^69]: *See* Brown[,]{.smallcaps} *supra* note Error: Reference source
    not found, at [561-66. I]{.smallcaps}n the words of one observer,

    > Impartiality is the oxygen of peace-keeping: the only way
    > peace-keepers can work is by being trusted by both sides, being
    > clear and transparent in their dealings, and by keeping lines of
    > communication open. The moment they lose this trust, the moment
    > they are seen by one side as the "enemy," they become part of the
    > problem they were sent to solve.

    Tharoor*,* *supra* note Error: Reference source not found, at
    [417-18.]{.smallcaps}

[^70]: [U.N. Charter]{.smallcaps} art. 39 states:

    > The Security Council shall determine the existence of any threat
    > to the peace, breach of the peace, or act of aggression and shall
    > make recommendations, or decide what measures shall be taken in
    > accordance with Articles 41 \[measures not involving force\] and
    > 42 \[demonstrations, blockade, and other operations by air, sea,
    > or land forces\], to maintain or restore international peace and
    > security.

[^71]: *See* Brown[,]{.smallcaps} *supra* note Error: Reference source
    not found, at [574-77.]{.smallcaps} Classical peacekeeping\'s
    "fundamental principles are those of objectivity and nonalignment
    with the parties to the dispute, ideally to the extent of total
    detachment from the controversial issues at stake." [Indar Jit
    Rikhye et al., The Thin Blue Line 11 (1974).]{.smallcaps}

[^72]: *See* Brown[,]{.smallcaps} *supra* note Error: Reference source
    not found, at [574-77.]{.smallcaps}

[^73]: *See* Brown[,]{.smallcaps} *supra* note Error: Reference source
    not found, at [574-77.]{.smallcaps} Most countries are reluctant to
    release complete control of the forces they provide to United
    Nations peacekeeping operations. The United States, for example,
    when providing forces to the United Nations, prohibits its personnel
    from taking an oath of loyalty to the United Nations. Specifically,
    22 USC § 2387 states:

    > Whenever the President determines it to be in furtherance of the
    > purposes of this chapter, the head of any agency of the United
    > States Government is authorized to detail or assign any officer or
    > employee of his agency to any office or position with any foreign
    > government or foreign government agency, where acceptance of such
    > office or position does not involve the taking of an oath of
    > allegiance to another government or the acceptance of compensation
    > or other benefits from any foreign country by such officer or
    > employee.

    *[S]{.smallcaps}ee also* [Glenn Bowens, Legal Guide to Peace
    Operations 365 (1998):]{.smallcaps}

    > No President has ever relinquished command over U.S. forces.
    > Command constitutes the authority to issue orders covering [every
    > aspect]{.underline} of military operations and administration. The
    > sole source of legitimacy for U.S. commanders originates from the
    > U.S. Constitution, federal law and the Uniform Code of Military
    > Justice and flows from the President to the lowest U.S. commander
    > in the field. The chain of command from the President to the
    > lowest U.S. commander remains inviolate.

    *See also* U.S. v. New, 50 M.J. 729 (ACCA 1999), *pet. granted*, 52
    M.J. 465 (1999) (lawful for U.S. commander to order U.S. soldier to
    wear United Nations insignia and beret during United Nations
    peacekeeping deployment).

[^74]: *See* Brown[,]{.smallcaps} *supra* note Error: Reference source
    not found[,]{.smallcaps} at [577-78.]{.smallcaps}

[^75]: *See* Brown[,]{.smallcaps} *supra* note Error: Reference source
    not found, at [578-79.]{.smallcaps}

[^76]: The operative word is "generally." The conflict is usually held
    in abeyance. However, in most cases, the parties to the previous
    conflict remain armed, the land-area still heavily mined, and the
    underlying political problems far from resolved. Peacekeeping duty
    is never entirely safe.

[^77]: Berdal[,]{.smallcaps} *supra* note Error: Reference source not
    found[,]{.smallcaps} at [74.]{.smallcaps}

[^78]: Marianne von Grunigen, *Neutrality and Peace-Keeping*, *in*
    [United Nations Peace-Keeping: Legal Essays 125, 134
    (]{.smallcaps}A. Cassese ed., [1995).]{.smallcaps}

[^79]: Unfortunately, parties to a conflict may sometimes illegitimately
    use the buffer created by the United Nations peacekeeping force as
    simply cover to avoid constructive negotiating toward a settlement.
    For this reason, United Nations peacekeeping missions should look to
    restoring and maintaining peace, and, simultaneously, pursue a
    negotiated settlement to the conflict. Lehmann[,]{.smallcaps}
    *supra* note Error: Reference source not found, at [17.]{.smallcaps}

[^80]: *See* United Nations, *UN Peacekeeping: Some Questions and
    Answers*, http://www.un.org/Depts/dpko/dpko/ques.htm (copy on file
    with the *Air Force Law Review*); *and* Willy Lubin[,]{.smallcaps}
    *Towards the International Responsibility of the United Nations in
    Human Rights Violations During \"Peace-Keeping\" Operations: The
    Case of Somalia*, 52 [Int'l Comm\'n Jurists 47]{.smallcaps} n.1
    [(1994).]{.smallcaps}

[^81]: Grachev[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [277.]{.smallcaps}

[^82]: Examples of such missions include Bosnia-Herzegovina under the
    North Atlantic Treaty Organization (NATO), Liberia and Sierra Leone
    under the Economic Community of West African States (ECOMOG),
    multinational forces in Haiti led by the United States, forces in
    Rwanda led by France, and forces in Albania led by Italy. *See*
    Grachev[,]{.smallcaps} *supra* note Error: Reference source not
    found, at 2[76.]{.smallcaps}

[^83]: Grachev, *supra* note Error: Reference source not found, at 277.

[^84]: *See generally* Henrikson[,]{.smallcaps} *supra* note Error:
    Reference source not found[.]{.smallcaps}

[^85]: *See* Yasushi Akashi[,]{.smallcaps} *The Use of Force in a United
    Nations Peace-Keeping Operation: Lessons Learnt from the Safe Areas
    Mandate*, 19 [Fordham Int'l L.J. 312, 320 (1995).]{.smallcaps}

[^86]: [U.N. Charter]{.smallcaps} art. 2, para. 1.

[^87]: [U.N. Charter]{.smallcaps} art. 2, para. 7 states:

    > Nothing contained in the present Charter shall authorize the
    > United Nations to intervene in matters which are essentially
    > within the domestic jurisdiction of any state or shall require the
    > Members to submit such matters to settlement under the present
    > Charter; but this principle shall not prejudice the application of
    > enforcement measures under Chapter VII.

[^88]: Brown[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [570.]{.smallcaps}

[^89]: *See* Siekmann[,]{.smallcaps} *supra* note Error: Reference
    source not found, at [328.]{.smallcaps}

[^90]: *See generally* Judith G. Gardam[,]{.smallcaps} *Proportionality
    and Force in International Law*, 87 A[m]{.smallcaps}. J. [Int'l L.
    391 (1993).]{.smallcaps}

[^91]: Lehmann[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [15-16.]{.smallcaps}

[^92]: [Durch,]{.smallcaps} *supra* note 44, at 4. In 1958, United
    Nations Secretary-General Dag Hammarskjold warned against
    interpreting "self-defence" too broadly. He said that "a wide
    interpretation of the right of self-defence might well blur the
    distinction between \[peacekeeping\] operations and combat
    operations, which would require a decision under Chapter VII of the
    Charter and an explicit, more far-reaching delegation to the
    Secretary-General than would be required for \[peacekeeping\]
    operations." *Summary Study of the Experience Derived from the
    Establishment and Operation of the Force,* UN Doc. A/3943 of Oct. 9,
    1958, paras. 178-79.

[^93]: *See* Lubin[,]{.smallcaps} *supra* note Error: Reference source
    not found, at [48.]{.smallcaps}

[^94]: *See* Brown[,]{.smallcaps} *supra* note Error: Reference source
    not found, at [573. S]{.smallcaps}ir Brian Urquhart explains:
    "Experience shows that a peace-keeping force which uses its weapons
    for purposes other than self-defence quickly becomes part of the
    conflict and therefore part of the problem. It loses its essential
    status as being above the conflict and acceptable to all sides."
    Urquhart, *supra* note Error: Reference source not found, at
    [54.]{.smallcaps}

[^95]: *See* Brown[,]{.smallcaps} *supra* note Error: Reference source
    not found, at [570.]{.smallcaps}

[^96]: [U.N. Charter]{.smallcaps} art. 104.

[^97]: *See* Brown[,]{.smallcaps} *supra* note Error: Reference source
    not found, at [570.]{.smallcaps}

[^98]: *See* Brown[,]{.smallcaps} *supra* note Error: Reference source
    not found, at [571.]{.smallcaps}

[^99]: *See* Brown[,]{.smallcaps} *supra* note Error: Reference source
    not found, at [571.]{.smallcaps} Indeed, the Secretary-General first
    stated that members of a peacekeeping unit "could not use force on
    their own initiative." A peacekeeping unit could legitimately use
    force in self-defense only if the force was taken in direct response
    to being attacked by a party using deadly force. *First Report of
    the Secretary-General,* para. 15, U.N. SCOR, 15^th^ Sess., Supp.,
    Jul.-Sep. 1960, at 19, U.N. Doc. S/4389 (1960), *cited in*
    Brown[,]{.smallcaps} *supra* note Error: Reference source not found,
    at [571]{.smallcaps} n.90. This extremely restrictive authorization
    of the use of force in self-defense by a peacekeeping unit would
    only be viable when all parties to the conflict are entirely
    committed to resolving the conflict and, as a result, fully welcome
    and cooperate with the peacekeepers. Brown[,]{.smallcaps} *supra*
    note Error: Reference source not found, at [571]{.smallcaps}.

[^100]: [D.W. Bowett, United Nations Forces: A Legal Study 202-203
    (]{.smallcaps}1964).

[^101]: *See* Brown[,]{.smallcaps} *supra* note Error: Reference source
    not found, at [573.]{.smallcaps}

[^102]: The term noncombatant is used to describe individuals who may
    not be lawfully targeted. Such individuals include civilians,
    medical personnel, chaplains, and combat personnel who "have been
    placed out of combat by sickness, wounds, or other causes including
    confinement as prisoners of war." AFPAM 110-31, *supra* note Error:
    Reference source not found, at para. 3-4(a-d)(1976). The term also
    includes United Nations peace-keeping forces. *See
    Secretary-General\'s Bulletin: Observance by United Nations Forces
    of International Humanitarian Law,* § 1.2, ST/SGB/1999/13 (1999),
    *available at* http://www.un.org/peace/st_sgb_1999_13.pdf (copy on
    file with the *Air Force Law Review*) \[hereinafter
    *Secretary-General's Bulletin*\] (explaining that the "bulletin does
    not affect \[United Nations peacekeepers'\] status as
    non-combatants, as long as they are entitled to protection given to
    civilians under the international law of armed conflict.").

[^103]: One source defines "combatant" as follows:

    > A combatant is a person who engages in hostile acts in an armed
    > conflict on behalf of a Party to the conflict. A lawful combatant
    > is one authorized by competent authority of a Party to engage
    > directly in armed conflict. He must conform to the standards
    > established under international law for combatants . . . The
    > combatant, thus invested with authority, must be recognizable as
    > such.

    AFPAM 110-31, *supra* note Error: Reference source not found, at
    para. 3-2(a-d). Combatants are lawful targets and may be engaged at
    any time during an armed conflict. *See* U.S. Dept. of the Air
    Force, Air Force Pamphlet 110-34, Commander's Handbook on the Law of
    Armed Conflict, paras. 2-6 to 2-7 (1980) (reissue pending at AFI
    51-709) \[hereinafter AFPAM 110-34\]..

[^104]: *See* Evan T. Bloom[,]{.smallcaps} *Protecting Peacekeepers: The
    Convention on the Safety of United Nations and Associated
    Personnel,* 89 [Am. J. Int\'l L. 621, 625]{.smallcaps} n.12
    [(1995).]{.smallcaps}

[^105]: *See* Gardam[,]{.smallcaps} *supra* note Error: Reference source
    not found, at [291.]{.smallcaps}

[^106]: [Green,]{.smallcaps} *supra* note 49, at [324]{.smallcaps}.

[^107]: *Id.*

[^108]: *Id.*

[^109]: *Id.*

[^110]: Akashi[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [320.]{.smallcaps} Some say it is simply too difficult to
    apply the international law of armed conflict to United Nations
    peacekeeping operations. Instead, international humanitarian law
    should remain merely "relevant" to peacekeeping operations. Lehmann
    opines:

    > It is probably too complicated and not even necessary to try to
    > incorporate the UN peace-keeping system into the negeral framework
    > of international humanitarian law applicable in armed conflicts,
    > but on a case by case basis special considerations might be given
    > to the effect of that body of law on the proper functioning of the
    > UN peace-keeping operations.

    Lehmann[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [17.]{.smallcaps}

[^111]: [U.N. Charter]{.smallcaps} arts. 39-51.

[^112]: *See* Gardam[,]{.smallcaps} *supra* note Error: Reference source
    not found, at [290-92.]{.smallcaps}

[^113]: Neopeace-enforcement refers to "the practice of the Security
    Council to contract out enforcement actions to Member States."
    Sharp, *supra* note Error: Reference source not found, at
    [103.]{.smallcaps}

[^114]: Sharp, *supra* note Error: Reference source not found, at
    [100-01. T]{.smallcaps}he four "neopeace-enforcement" actions were
    the authorization of Member States to repel North Korea\'s invasion
    of South Korea in 1950, the authorization to intercept oil tankers
    bound for Southern Rhodesia in 1966, and two authorizations for
    Member States to eject Iraq from Kuwait in 1990-91. Sharp, *supra*
    note Error: Reference source not found, at [10]{.smallcaps}2, n.41.

[^115]: [U.N. Charter]{.smallcaps} art. 43 states:

    > 1\. All Members of the United Nations, in order to contribute to
    > the maintenance of international peace and security, undertake to
    > make available to the Security Council, on its call and in
    > accordance with a special agreement or agreements, armed forces,
    > assistance, and facilities, including rights of passage, necessary
    > for the purpose of maintaining international peace and security.
    >
    > 2\. Such agreement or agreements shall govern the numbers and
    > types of forces, their degree of readiness and general location,
    > and the nature of the facilities and assistance to be provided.
    >
    > 3\. The agreement or agreements shall be negotiated as soon as
    > possible on the initiative of the Security Council. They shall be
    > concluded between the Security Council and Members or between the
    > Security Council and groups of members and shall be subject to
    > ratification by the signatory states in accordance with their
    > respective constitutional processes.

[^116]: Sharp, *supra* note Error: Reference source not found, at
    [101.]{.smallcaps} One international law authority has proffered an
    idealistic, albeit presently politically impossible, approach to
    achieve more effective peacekeeping and increase United Nations
    credibility. Burns H. Weston has recommended that Member States
    specially train military forces for peacekeeping duties and agree to
    place them on permanent standby in accordance with United Nations
    Charter Article 43. *See* [Richard A. Falk, Robert C. Johansen, &
    Samuel S. Kim, The Constitutional Foundations of World Peace 362
    (]{.smallcaps}1993). Military equipment and supplies would be
    stockpiled and available for immediate use by peacekeeping forces
    activated on short notice. The United Nations would have much more
    flexibility to respond immediately with peacekeeping forces to
    crises as they arise. They would be available to be deployed into
    immediate action. If a regional crisis reached a certain established
    threshold, the United Nations would begin peacekeeping operations
    automatically, without consulting the Security Council. The
    peacekeeping forces could enter the territory of a country without
    first gaining that country\'s consent. United Nations peacekeeping
    operations would be directed toward securing an expeditious end to
    the conflict. However, more importantly, peacekeeping efforts would
    be directed toward the long-term stability of the region.
    *[I]{.smallcaps}d.* Such an arrangement would put the United Nations
    in the forefront of international peace and security.

[^117]: *See* Sharp, *supra* note Error: Reference source not found, at
    [102-03.]{.smallcaps}

[^118]: [Boutros-Ghali,]{.smallcaps} *supra* note Error: Reference
    source not found, at 6.

[^119]: Sharp, *supra* note Error: Reference source not found, at
    [102.]{.smallcaps}

[^120]: Sanderson, *supra* note Error: Reference source not found, at
    148.

[^121]: [U.N. Charter]{.smallcaps} art. 41.

[^122]: [U.N. Charter]{.smallcaps} art. 42 states:

    > Should the Security Council consider that measures provided for in
    > Article 41 would be inadequate or have proved to be inadequate, it
    > may take such action by air, sea, or land forces as may be
    > necessary to maintain or restore international peace and security.
    > Such action may include demonstrations, blockade, *or other
    > operations by air, sea, or land forces of Members of the United
    > Nations*.

    (emphasis added).

[^123]: Sanderson, *supra* note Error: Reference source not found, at
    148.

[^124]: [U.N. Charter]{.smallcaps} art. 42.

[^125]: [Brian Crozier et al., This War Called Peace]{.smallcaps} 92, 93
    (1984). The Soviet Union recalled its Security Council permanent
    representative from Jan. 10, 1950 to Aug. 1, 1950.
    Berkhof[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [300]{.smallcaps} n.6[.]{.smallcaps}

[^126]: J.D. Godwin[,]{.smallcaps} *NATO's Role in Peace Operations:
    Reexamining the Treaty After Bosnia and Kosovo,* 160 [Mil. L. Rev.
    1, 15 (1999). T]{.smallcaps}he Soviet Union was fully informed that
    the Security Council was going to vote to condemn the invasion of
    North Korea. The Soviet Union responded, taking the position that
    any vote without their presence would be illegal. The Soviet Union
    miscalculated in believing their absence was, in effect, a veto of
    any Security Council action. Instead, the Security Council voted
    without them, condemning North Korea\'s invasion of the South and
    authorizing a United Nations force to repel it. *See* Byard Q.
    Clemmons & Gary D. Brown[,]{.smallcaps} *Rethinking International
    Self-Defense: The United Nations' Emerging Role,* 45 [Naval L. Rev.
    217, 238 (1998).]{.smallcaps}

[^127]: Henrikson[,]{.smallcaps} *supra* note Error: Reference source
    not found, at [44.]{.smallcaps}

[^128]: Lehmann[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [14.]{.smallcaps}

[^129]: Berkhof[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [301.]{.smallcaps}

[^130]: Godwin[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [15. T]{.smallcaps}he Soviet Union permanent
    representative returned to the Security Council on July 27, 1950.
    The representative then made numerous unsuccessful attempts to
    unseat the Formosa Nationalist Chinese representative from the
    Security Council. The Soviet Union permanent representative attended
    every subsequent Security Council meeting regarding Korea, vetoing
    every subsequent resolution pertaining to the Korean conflict.
    [Anthony Clark Arend & Robert J. Beck, International Law and the Use
    of Force: Beyond the UN Charter Paradigm 67 (1993).]{.smallcaps}

[^131]: [A. B. Fetherston, Towards a Theory of United Nations
    Peacekeeping 27 (1994).]{.smallcaps}

[^132]: U.N. GAOR 5^th^ Sess., Supp. No. 20, at 10 (UN Doc. A/1775)
    (1950). The General Assembly made the following resolution:

    > If the Security Council, because of lack of unanimity of the
    > permanent members, fails to exercise its primary responsibility
    > for the maintenance of international peace and security \[the
    > General Assembly\] may make appropriate recommendations for
    > collective measures, including in the case of a breach of the
    > peace or act of aggression the use of armed forces when necessary,
    > to maintain or restore international peace and security.

    *Id.*

[^133]: [Green,]{.smallcaps} *supra* note [Error: Reference source not
    found]{.smallcaps}, at [321-22]{.smallcaps}. The United States
    contributed approximately 250,000 troops to Korean operations.
    Fifteen Member States contributed an additional 36,000 troops.
    Lehmann[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [14.]{.smallcaps} United States personnel killed-in-action
    numbered 33,629. Other contributing countries' personnel losses
    numbered 3195. The high losses to the contributing nations made the
    United Nations Member States very reluctant to again choose this
    method of peace-enforcement. [Berkhof,]{.smallcaps} *supra* note
    Error: Reference source not found, at [301.]{.smallcaps}

[^134]: Lehmann[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [14. *S*]{.smallcaps}*ee also* Bruce Russett & James S.
    Sutterlin, *The U.N. in a New World Order,* [Foreign
    Aff.,]{.smallcaps} Spring 1991, at [69, 73-74]{.smallcaps} (\"The
    U.S. Commander of the U.N. Force in Korea never reported directly to
    the Security Council and the Military Staff Committee and the
    Security Council did not have any role in directing the military
    operations of the unified command.\")

[^135]: [Berkhof,]{.smallcaps} *supra* note Error: Reference source not
    found, at [301.]{.smallcaps} An armistice is merely a "*temporary*
    suspension of hostilities by agreement between the opponents."
    (emphasis added). [Webster's Ninth New Collegiate
    Dictionary]{.smallcaps} 103 (9^th^ ed. 1984).

[^136]: Byard Q. Clemmons & Gary D. Brown[,]{.smallcaps} *Rethinking
    International Self-Defense: The United Nations' Emerging Role,* 45
    [Naval L. Rev. 217, 238 (1998).]{.smallcaps}

[^137]: For a discussion of the events leading up to armed conflict, see
    L.C. Green[,]{.smallcaps} *The Gulf 'War,' the UN and the Law of
    Armed Conflict*, 28 [Archiv des Volkerrechts 369, 373-74
    (1991).]{.smallcaps}

[^138]: Lubin[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [49]{.smallcaps} nn.4-5[.]{.smallcaps}

[^139]: [Green,]{.smallcaps} *supra* note Error: Reference source not
    found, at [322]{.smallcaps}.

[^140]: S.C. Res. 661, U.N. SCOR, U.N. Doc. S/RES/661 (1990), *reprinted
    in* 29 I.L.M. 1325 (1990).

[^141]: The full text of the Aug. 12, 1990 letter from the Kuwaiti Amir
    to the President of the United States reads as follows:

    > Dear Mr. President,
    >
    > I am writing to express the gratification of my government with
    > the determined actions which the Government of the United States
    > and other nations have taken and are undertaking at the request of
    > the Government of Kuwait. It is essential that these efforts be
    > carried forward and that the decisions of the United Nations
    > Security Council be fully and promptly enforced. *I therefore
    > request on behalf of my government and in the exercise of the
    > inherent right of individual and collective self-defense as
    > recognized in Article 51 of the UN Charter that the United States
    > Government take such military or other steps as are necessary to
    > ensure that economic measures designed to fully restore our rights
    > are effectively implemented.* Further, as we have discussed, I
    > request that the United States of America assume the role of
    > coordinator of the international force that will carry out such
    > steps.
    >
    > With warmest regards,
    >
    > Amir of the State of Kuwait

    (emphasis added) (copy on file with the *Air Force Law Review*).

[^142]: S.C. Res. 678, U.N. SCOR, 45^th^ Sess., 2963 mtg., U.N. Doc.
    S/RES/678 (1990), *reprinted in* 29 I.L.M. 1565 (1990). This
    resolution was in sharp contrast to the Security Council's 1950
    Korea conflict resolution in which the Soviet Union "abstained" (was
    not present to vote) and the Republic of China voted affirmatively.
    In the Security Council's resolution authorizing Member States to
    use all necessary means to eject Iraq from Kuwait, the People's
    Republic of China abstained and Russia voted affirmatively.

[^143]: [Hilaire McCoubrey & Nigel D. White, The Blue Helmets: Legal
    Regulations of United Nations Military Operations 17-18
    (1996).]{.smallcaps}

[^144]: Article 51 of the United Nations Charter states in pertinent
    part: "Nothing in the present Charter shall impair the inherent
    right or collective self-defence if an armed attack occurs against a
    Member of the United Nations . . ." [U.N. Charter]{.smallcaps} art.
    51.

[^145]: [Green,]{.smallcaps} *supra* note [Error: Reference source not
    found,]{.smallcaps} at [322-23]{.smallcaps}.

[^146]: Akashi[,]{.smallcaps} *supra* note Error: Reference source not
    found[,]{.smallcaps} at [320-21.]{.smallcaps}

[^147]: [James H. Allen, Peacekeeping: Outspoken Observations by a Field
    Officer 39 (1996).]{.smallcaps}

[^148]: Thomas B. Baines[,]{.smallcaps} The Laws of War and the Rules of
    Peacekeeping 3-4, Paper Presented to the Joint Services Conference
    on Professional Ethics (Jan. 31, 1997), *at*
    http://www.usafa.af.mil/jscope/JSCOPE97/Baines97.htm (copy on file
    with the *Air Force Law Review*)[.]{.smallcaps}

[^149]: Max R. Berdal[,]{.smallcaps} *Fateful Encounter: The United
    States and UN Peacekeeping,* 36 [Survival 1, 5-6
    (1994).]{.smallcaps}

[^150]: *See Supplement to an Agenda for Peace: Position Paper of the
    Secretary-General on the Occasion of the Fifteenth Anniversary of
    the United Nations, Report of the Secretary-General on the Work of
    the Organization,* U.N. GAOR, 50^th^ Sess., para. 35, U.N. Doc.
    A/50/60, S/1995/1 (1995).

[^151]: *Supplement to an Agenda for Peace: Report of the Secretary
    General,* 9 para. 35, U.N. Doc. S/1995/1A/50/60 (1995).

[^152]: Akashi[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [320-21.]{.smallcaps}

[^153]: [Boutros-Ghali,]{.smallcaps} *supra* note Error: Reference
    source not found, at 1[5-16]{.smallcaps}; *see also* Marrack
    Goulding, *The Evolution of United Nations Peace-Keeping,* 69
    [Int\'l Aff.]{.smallcaps} 451 (1993). Goulding notes:

    > Creating this kind of grey area between peace-keeping and
    > peace-enforcement can give rise to considerable dangers. In
    > political, legal and military terms, and in terms of survival of
    > one\'s own troops, there is all the difference in the world
    > between being deployed with the consent and cooperation of the
    > parties to help them carry out an agreement they have reached and,
    > on the other hand, being deployed without their consent and with
    > powers to use force to compel them to accept the decisions of the
    > Security Council.

    *Id.* at 461.

[^154]: Akashi[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [322.]{.smallcaps}

[^155]: *See generally* Garth J. Cartledge, *Legal Constraints on
    Military Personnel Deployed on Peacekeeping Operations, in* [The
    Changing Face of Conflict and the Efficacy of International
    Humanitarian Law, 121 (]{.smallcaps}Helen Durham & Timothy L.H.
    McCormack eds., 1999) \[hereinafter Cartledge, *Legal
    Constraints*\].

    > Peacekeeping operations in the 1990s have seen the following
    > activities being undertaken: military, including cease-fire
    > monitoring, cantonment and demobilisation of troops, and ensuring
    > security for elections; policing; human rights monitoring and
    > enforcement; information dissemination; observation, organisation
    > and conduct of elections; rehabilitation and reconstruction of
    > State structures; repatriation and resettlement of large numbers
    > of people; administration during transition of one regime to
    > another; \[and\] working with or overseeing the operations of
    > regional or non-UN peacekeeping operations.

    *Id.* at 124, n.7 (citing Ramesh Thakur, *Introduction: Past
    Imperfect, Future Uncertain*, *in* [The United Nations at Fifty:
    Retrospect and Prospect 7]{.smallcaps} (Ramesh Thakur, ed., 1996)).

[^156]: Connie Peck, *Summary of Colloquium on New Dimensions of
    Peacekeeping, in* [New Dimensions of Peacekeeping]{.smallcaps} 181,
    190 (Daniel Warner ed., 1995); *see also* Bloom, *supra* note Error:
    Reference source not found, at [622.]{.smallcaps} When finalized,
    the Safety Convention had drawn upon both the approaches of New
    Zealand and the Ukraine. *Id*.

[^157]: Peck, *supra* note 155, at 190.

[^158]: *See generally id.*

[^159]: Lehmann[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [16-17.]{.smallcaps} Article 8 reads as follows:

    > Protection of United Nations forces and missions from the effects
    > of minefields, mines and boobytraps.
    >
    > 1\. When the United Nations force or mission performs functions of
    > peacekeeping, observation or similar functions in any area, each
    > party to the conflict shall, if requested by the head of the
    > United Nations force or mission in the area, as far as it is able:
    > a) remove or render harmless all mines or booby-traps in that
    > area; b) take such measures as may be necessary to protect the
    > force or mission from the effects of minefields, mines and
    > booby-traps while carrying out its duties; and c) make available
    > to the head of the United Nations force or mission in that area,
    > all information in the party\'s possession concerning the location
    > of minefields, mines and booby-traps in that area.
    >
    > 2\. When a United Nations fact-finding mission performs functions
    > in any area, any party to the conflict concerned shall provide
    > protection to that mission, except where, because of the size of
    > such mission, it cannot adequately provide such protection. In
    > that case it shall make available to the head of the mission the
    > information in its possession concerning the location of
    > minefields, mines and booby-traps in that area.

    Convention on Prohibitions or Restrictions on the Use of Certain
    Conventional Weapons which may be deemed to be Excessively Injurious
    or Have Indiscriminate Effects, art. 8, 1342 U.N.T.S. 137, 171,
    *reprinted in* 19 I.L.M. 1523, 1533 (1980).

[^160]: Convention on the Safety of United Nations Personnel, G.A. Res.
    49/59, U.N. GAOR, 49^th^ Sess., Agenda Item 141, U.N. Doc.
    A/RES/49/59 (1994) \[hereinafter Safety Convention\], *reprinted in*
    34 I.L.M. 482, 492 (1995); *see generally* Gardam[,]{.smallcaps}
    *supra* note Error: Reference source not found, at [287]{.smallcaps}
    n.4[;]{.smallcaps} and Steven J. Lepper[,]{.smallcaps} *The Legal
    Status of Military Personnel in United Nations Peace Operations: One
    Delegate's Analysis,* 18 [Hous. J. Int'l L. 359, 370-464
    (1996).]{.smallcaps}

[^161]: Bloom[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [630. A]{.smallcaps}rticle 21 of the Convention states
    that "Nothing in this Convention shall be construed so as to
    derogate from the right to act in self-defense." Safety Convention,
    *supra* note Error: Reference source not found.

[^162]: Greenwood[,]{.smallcaps} *supra* note Error: Reference source
    not found, at [189.]{.smallcaps}

[^163]: *See* Bloom*[,]{.smallcaps} supra* note Error: Reference source
    not found, at 6[25-26]{.smallcaps} n.12.

[^164]: Cartledge, *International Humanitarian Law*, *supra* note Error:
    Reference source not found, at 150 ("\[Traditional\] UN
    peace-keeping operations by their very nature do not normally
    involve armed conflict.").

[^165]: The four Geneva Conventions of 1949 provide identical language
    at Common Article 3, protecting "\[p\]ersons taking no active part
    in the hostilities." *See, e.g.,* Geneva Convention for the
    Amelioration of the Condition of Wounded and Sick in Armed Forces in
    the Field, Aug. 12, 1949, art. 19, 6 U.S.T. 3114 (entered into force
    Oct. 21, 1950)*.*

[^166]: Protocol Additional to the Geneva Conventions of 12 August 1949,
    and Relating to the Protection of Victims of International Armed
    Conflicts, Dec. 12, 1977, art. 37, 1125 U.N.T.S. 7. The Protocol
    prohibits "the feigning of protected status by the use of signs,
    emblems, or uniforms of the United Nations or of neutral or other
    states not parties to the conflict." Art. 37(1)(d), 1125 U.N.T.S. at
    21, *reprinted in* 16 I.L.M. at 1409.

[^167]: Article 38 of Protocol I makes it unlawful to misuse the United
    Nations flag or emblem. Article 38 states: "\[I\]t is prohibited to
    make use of the distinctive emblem of the United Nations, except as
    authorized by that Organization." Protocol Additional to the Geneva
    Conventions of 12 August 1949, and Relating to the Protection of
    Victims of International Armed Conflicts, Dec. 12, 1977, art. 38,
    1125 U.N.T.S. 3, 22, *reprinted in* 16 I.L.M. 1391, 1409.

[^168]: Perfidy is a violation of the international law of armed
    conflict. Perfidy involves a party to the conflict \"inviting the
    confidence of an adversary to lead him to believe that he is
    entitled to, or is obliged to accord, protection under the rules of
    international law applicable in armed conflict, with intent to
    betray that confidence.\" Protocol Additional to the Geneva
    Conventions of 12 August 1949, and Relating to the Protection of
    Victims of International Armed Conflicts, *opened for signature,*
    Dec. 12, 1977, art. 37(1), 1125 U.N.T.S. 3, 22, *reprinted in* 16
    I.L.M. 1391, 1409.

[^169]: *See* [Green,]{.smallcaps} *supra* note [Error: Reference source
    not found,]{.smallcaps} at [323-24]{.smallcaps}. Although the United
    States has not ratified Protocol I, the United States views the art.
    37 & 38 perfidy provisions as customary international law. [United
    States Army Operational Law handbook, 5-2 & 5-3 (]{.smallcaps}Manuel
    E. F. Supervielle et al. eds., 2000) \[hereinafter [Ops Law
    Handbook\].]{.smallcaps}

[^170]: Greenwood[,]{.smallcaps} *supra* note Error: Reference source
    not found, at [190.]{.smallcaps}

[^171]: Greenwood[,]{.smallcaps} *supra* note Error: Reference source
    not found, at [190]{.smallcaps} n.26[.]{.smallcaps}

[^172]: Robert K. Goldman, *International Humanitarian Law: Americas
    Watch's Experience in Monitoring Internal Armed Conflicts,* 9 [Am.
    U. J. Int'l L. & Pol'y 49,]{.smallcaps} 58-59 (1993). The
    combatant's privilege entitles a combatant to kill or wound an enemy
    combatant without criminal penalty. In addition, Goldman writes that
    "\[a\] lawful combatant possessing \[the\] privilege must be given
    prisoner of war status upon capture and immunity from criminal
    prosecution under the domestic laws of his captor for his hostile
    acts which do not violate the laws and customs of war." *Id*. *See
    also* Brian D. Tittemore, *Belligerents in Blue Helmets: Applying
    International Humanitarian Law to United Nations Peace Operations,*
    33 [Stan. J. Int\'l L. 61, 110 (1997).]{.smallcaps} Telfrod Taylor
    explains the combatant\'s privilege as follows:

    > War consists largely of acts that would be criminal if performed
    > in time of peace - killing, wounding, kidnapping, and destroying
    > or carrying off other people\'s property. Such conduct is not
    > regarded as criminal if it takes place in the course of war,
    > because the state of war lays a blanket of immunity over its
    > warriors.

    cited in [National Security Law 359 (]{.smallcaps}John Norton Moore
    et al. eds., 1990)

[^173]: Brian D. Tittemore, *Belligerents in Blue Helmets: Applying
    International Humanitarian Law to United Nations Peace Operations,*
    33 [Stan. J. Int\'l L. 61, 111 (1997).]{.smallcaps}

[^174]: [Report of the Conference on Contemporary Problems of the Law of
    Armed Conflicts]{.smallcaps} 115 (Patricia S. Rambach et al eds.,
    1971) \[hereinafter [Report of the Conference\]]{.smallcaps}.
    However, individual states that are signatories to the respective
    conventions are bound.

[^175]: Lehmann[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [16.]{.smallcaps} However, individual participating states
    do fit into the categories.

[^176]: Bloom*[,]{.smallcaps} supra* note Error: Reference source not
    found, at [624]{.smallcaps} n.11[.]{.smallcaps}

[^177]: Shraga & Zacklin[,]{.smallcaps} *supra* note Error: Reference
    source not found, at [47]{.smallcaps}.

[^178]: Cartledge, *Legal Constraints*, *supra* note Error: Reference
    source not found, at [127]{.smallcaps}.

[^179]: [Regulations for the United Nations Emergency Force of 20
    February 1957: Applicability International Conventions, Observance
    of Conventions,]{.smallcaps} para. 44, *reprinted in* [R.C.R.
    Siekmann, Basic Documents on United Nations and Related
    Peace-Keeping Forces 168 (2]{.smallcaps}d ed. 1989) (emphasis
    added).

[^180]: Lehmann[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [16.]{.smallcaps}

[^181]: Brown[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [571,]{.smallcaps} *citing Aide-Memoire,* in *N.
    concerning the function and operation of UNFICYP,* U.N. SCOR, 19
    Sess., Supp. For Apr.-Jun. 1964, at 13, U.N. Doc. S/5653
    (1964)[.]{.smallcaps} *See also*, discussion at *supra* note [Error:
    Reference source not found]{.smallcaps}.

[^182]: *See generally,* discussion at *supra* note Error: Reference
    source not found.

[^183]: Cartledge, *International Humanitarian Law*, *supra* note Error:
    Reference source not found, at 153. Of course, there are exceptions
    to the combatant\'s privilege. Combatants who are *hors de combat*,
    such as a soldier in the act of surrendering, a prisoner of war, or
    one who is wounded or sick, may not lawfully be engaged. *See,
    e.g.,* AFPAM 110-31, *supra* note Error: Reference source not found,
    at para. 3-3(a).

[^184]: Cartledge, *International Humanitarian Law, supra* note Error:
    Reference source not found, at 153.

[^185]: For example, the 1954 Intergovernmental Conference on the
    Protection of Cultural Property in the Event of Armed Conflict, made
    this resolution: "The Conference expresses the hope that the
    competent organs of the United Nations should decide, in the event
    of military action being taken in implementation of the Charter, to
    ensure application of the Convention by the armed forces taking part
    in such action." *Reprinted in* [R.C.R. Siekmann, Basic Documents on
    United Nations and Related Peace-Keeping Forces 78 (2]{.smallcaps}d
    ed. 1989).

[^186]: [Report of the Conference,]{.smallcaps} *supra* note Error:
    Reference source not found, at 111. Finn Seyersted of the Embassy of
    Norway proposed the following United Nations resolution:

    > \[The . . . United Nations . . .\]
    >
    > 1\. *Declares* that, should any force of the United Nations become
    > involved in any armed conflict, it will apply the provisions of
    > the Geneva Conventions of August 12, 1949, and the Hague
    > Convention of May 14, 1954.
    >
    > 2\. *Declares* that the United Nations will require the States
    > providing personnel to any United Nations force to take, in
    > respect for such personnel, such penal and other action as is
    > necessary for the enforcement of the said Conventions.
    >
    > 3\. *Declares* that, when the Conventions refer to the law or the
    > courts of the Detaining or the Occupying Power or to the
    > conditions of treatment of its nationals, the law courts and
    > conditions of one or more of the States providing personnel will
    > be applied, if the Organisation has no applicable law, competent
    > courts or relevant conditions of its own.
    >
    > 4\. *Requests* the Secretary-General to transmit this resolution
    > to the International Committee of the Red Cross and to
    > U.N.E.S.C.O.

    [Report of the Conference,]{.smallcaps} *supra* note Error:
    Reference source not found, at 111 n.23.

[^187]: Institute of International Law, *Resolutions Adopted and
    Recommendations Made by the Institute at its Wiesbaden Session,
    August 6-15, 1975, Conditions of Application of Rules, Other Than
    Humanitarian Rules of Armed Conflict to Hostilities in Which United
    Nations Forces May Be Engaged, 56-II* [Annuaire De L\'Institut De
    Droit Int\'l 540 (1975),]{.smallcaps} *reprinted in* [The Laws of
    Armed Conflicts: A Collection of Conventions, Resolutions and Other
    Documents 903]{.smallcaps} (Dietrich Schindler & Jiri Toman, eds.,
    1988)[.]{.smallcaps}

[^188]: *Comprehensive Review of the Whole Question of Peacekeeping
    Operations in All Their Aspects, Model Agreement Between the United
    Nations and Member States Contributing Personnel and Equipment to
    United Nations Operations, Report of the Secretary-General,* U.N.
    GAOR, 46^th^ Sess., Annex, para. 28, U.N. Doc. A/46/185 (1991)
    (emphasis added). Once a Member State contributes forces to a
    peacekeeping operation, the forces come under the Secretary-General
    who directs the forces through the United Nations Force Commander.
    The forces are under operational control of the United Nations, but
    concurrently serve under officers of their respective national
    contingents. Tittemore, *supra* note Error: Reference source not
    found, at [79-80.]{.smallcaps}

[^189]: Sharp, *supra* note Error: Reference source not found, at
    [134-35.]{.smallcaps}

[^190]: [General Treaty for Renunciation of War as an Instrument of
    national Policy]{.smallcaps} 2 Bevans 732; 46 Stat. 2343; Treaty
    Series 796; 94 L.N.T.S. 57 [(1928).]{.smallcaps} Since 1928, "war"
    between nations has been prohibited. According to the 1928 Paris
    Treaty, the use of force is only authorized in self-defense or to
    punish unlawful aggression. The treaty essentially made war an
    international crime. [Report of the Conference,]{.smallcaps} *supra*
    note Error: Reference source not found, at 94.

[^191]: *See, e.g.,* [Ian Brownlie, International Law and the Use of
    Force by States 112, 154 (1963); National Security Law,]{.smallcaps}
    *supra* note 171[,]{.smallcaps} at [369-70]{.smallcaps}. A
    fundamental principle of the international law of armed conflict is
    that it applies equally to all parties to a conflict. The principle
    of "equal application" operates independently from the issue of the
    legality of the use of force, the *ius ad bellum*. *See generally*
    Gardam, *supra* note 18.

[^192]: *See* [Report of the Conference,]{.smallcaps} *supra* note
    Error: Reference source not found, at 98.

[^193]: The exception, of course, would be UN peace-enforcement actions.

[^194]: *See* [Report of the Conference,]{.smallcaps} *supra* note
    Error: Reference source not found, at 99.

[^195]: *See* [Report of the Conference,]{.smallcaps} *supra* note
    Error: Reference source not found, at 98.

[^196]: [The Charter of the United nations: A commentary,]{.smallcaps}
    598 (Bruno Simma ed., 1994).

[^197]: Christopher Greenwood, *International Humanitarian Law and
    United Nations Military Operations, in* I [Yearbook of International
    Humanitarian Law 14 (]{.smallcaps}Horst Fischer et al. eds, 1998).

[^198]: Toni Pfanner, *Application of International Humanitarian Law and
    military operations undertaken under the United Nations Charter,*
    *in* [Symposium on Humanitarian Action and Peace-Keeping Operations
    49-58 (]{.smallcaps}Umesh Palwankar ed., 1994); *See also*
    Tittemore, *supra* note Error: Reference source not found, at 105
    [("\[L]{.smallcaps}\]ess than strict adherence to the law of armed
    conflict by U.N.-authorized forces engaged in hostilities may
    actually encourage other parties to armed conflicts to disregard
    humanitarian law vis-à-vis U.N. forces.")[.]{.smallcaps}

[^199]: Lehmann[,]{.smallcaps} *supra* note Error: Reference source not
    found, at [16.]{.smallcaps} Additionally, Bowens notes:

    > The U.S. believes that individuals captured while performing UN
    > peacekeeping or UN peace enforcement activities, whether as
    > members of a UN force or a U.S. force executing a UN Security
    > Council mandate, should, as a matter of policy, be immediately
    > released to UN officials; until released, at a minimum they should
    > be accorded protections identical to those afforded prisoners of
    > war under the 1949 Geneva Convention III (GPW) . . . . In
    > appropriate cases, the U.S. would seek assurances that U.S. forces
    > assisting the UN are treated as experts on mission for the United
    > Nations, and thus entitled to appropriate privileges and
    > immunities and are subject to immediate release when captured.

    [Glenn Bowens, Legal Guide to Peace Operations 366
    (1998).]{.smallcaps} According to the Convention on the Privileges
    and Immunities of the United Nations, UN "experts on mission" are
    accorded "\[i\]mmunity from personal arrest or detention . . .
    \[i\]nviolability for all papers and documents . . . \[and\] \[t\]he
    same immunities and facilities in respect to their personal baggage
    as are accorded to diplomatic envoys." Convention on the Privileges
    and Immunities of the United Nations, Feb. 12, 1946, 1 U.N.T.S. 15,
    art. VI, sec. 22. *See also* Lepper[,]{.smallcaps} *supra* note 159,
    at [365-69.]{.smallcaps}

[^200]: Sharp, *supra* note 11, at [137-38.]{.smallcaps}

[^201]: *Id.* at 164.

[^202]: *Id*[.]{.smallcaps}

[^203]: Greenwood[,]{.smallcaps} *supra* note Error: Reference source
    not found, at [204.]{.smallcaps}

[^204]: Greenwood[,]{.smallcaps} *supra* note Error: Reference source
    not found, at 206[.]{.smallcaps}

[^205]: Peck, *supra* note 155, at 190. McCoubrey & White note the
    following:

    > It could hardly be appropriate for forces acting under UN
    > authority to be seen as licensed to practice barbarities greater
    > than anything permissible for the parties already engaged in the
    > situation which they are emplaced to terminate. In short, those
    > who seek to act in the cause of lawfulness and humanity must
    > surely themselves, in principle, be willing to be bound, at the
    > minimum, by the basic humanitarian norms of the *jus in bello.*

    [Hilaire McCoubrey & Nigel D. White, The Blue Helmets: Legal
    Regulations of United Nations Military Operations 155-56
    (1996).]{.smallcaps}

[^206]: *See* [Report of the Conference,]{.smallcaps} *supra* note
    Error: Reference source not found, at 98.

[^207]: Hersch Lauterpacht, *The Limits of the Operation of the Law of
    War,* 30 [Brit. Y.B. Int\'l L. 206, 212 (1953).]{.smallcaps}

[^208]: William J. Bivens et al., *Report of Committee on the Study of
    the Legal Problems of the United Nations, Should the Laws of War
    Apply to United Nations Enforcement Action?,* [46 Am. Soc\'y Int\'l
    L. Proc. 216,]{.smallcaps} 220 (1952); *see also* [Gerhard Von
    Glahn, Law Among Nations]{.smallcaps} 699-700 (1992). Many have
    criticized the proposal that the United Nations should be able to
    unilaterally select the international laws of armed conflict with
    which it wishes to comply. *See, e.g.,* [Lorhar Kotzsch, The Concept
    of War in Contemporary History and International Law 292-96
    (1956);]{.smallcaps} Roda Mushkat, *Jus in Bello, Revisited*, 21
    [Comp. & Int\'l L. J. S. Afr. 1, 17 (1988); AFPAM]{.smallcaps}
    110-31, *supra* note Error: Reference source not found, at 1-17 n.47
    ("If the United Nations picked and chose among the laws of war this
    would seem to be an invitation for the opposing belligerents to do
    the same. During the Korean War, as a matter of fact, the United
    Nations carefully observed the laws of war. This seems a more
    practical way of manifesting a superior legal and moral position.").

[^209]: *See* [Green,]{.smallcaps} *supra* note [Error: Reference source
    not found,]{.smallcaps} at [320-23.]{.smallcaps}

[^210]: Article 2(4) provides in pertinent part: "All Members shall
    refrain . . . from the . . . use of force against the territorial
    integrity or political independence of any state." [United Nations
    Charter]{.smallcaps} art. 2(4).

[^211]: Gardam[,]{.smallcaps} *supra* note 89, at[411.]{.smallcaps}

[^212]: *See* Christiane Bourloyannis[,]{.smallcaps} *The Security
    Council of the United Nations and the Implementation of
    International Humanitarian Law*, 20 [Denv. J. Int\'l L. & Pol\'y.
    335, 341-42 (1993).]{.smallcaps}

[^213]: AFPAM 110-34, *supra* note Error: Reference source not found, at
    para. 1-4(b)(1-3).

[^214]: Safety Convention, *supra* note Error: Reference source not
    found.

[^215]: Bloom*[,]{.smallcaps} supra* note Error: Reference source not
    found, at 625[.]{.smallcaps} The Safety Convention clearly
    delineated peacekeeping from peace-enforcement actions:

    > This Convention shall not apply to a United Nations operation
    > authorized by the Security Council as an enforcement action under
    > Chapter VII of the Charter of the United Nations in which any of
    > the personnel are engaged as *combatants against organized armed
    > forces and to which the law of international armed conflict
    > applies*.

    Safety Convention, *supra* note Error: Reference source not found,
    at art. 2(2) (emphasis added).

[^216]: "During the American Revolution, for example, the United States
    was able to obtain prisoner of war status for its troops in enemy
    hands only after threatening to deny such status to captured British
    personnel." AFPAM 110-34, *supra* note Error: Reference source not
    found, at para. 8-4(a)(1).

[^217]: Bloom*[,]{.smallcaps} supra* note Error: Reference source not
    found, at 6[25.]{.smallcaps}

[^218]: Greenwood[,]{.smallcaps} *supra* note Error: Reference source
    not found, at [187-88.]{.smallcaps}

[^219]: Article 2 states:

    > This Convention shall *not* apply to a United Nations operation
    > authorized by the Security Council as an enforcement Action under
    > Chapter VII of the Charter of the United Nations in which any of
    > the personnel are engaged as *combatants* against organized armed
    > forces *and to which the law of international armed conflict
    > applies*.

    Safety Convention, *supra* note Error: Reference source not found,
    at art. 2 (emphasis added).

[^220]: *See Secretary-General\'s Bulletin*, *supra* note Error:
    Reference source not found, at § 1.1.

[^221]: The Secretary-General said the "\[B\]ulletin does not affect the
    protected status of members of peacekeeping operations under the
    1994 Convention on the Safety of United Nations and Associated
    Personnel *or their status as noncombatants as long as they are
    entitled to the protection given to civilians under the
    international law of armed conflict*." *Secretary-General\'s
    Bulletin*, *supra* note Error: Reference source not found, § 1.2
    (emphasis added).

[^222]: *See Secretary-General\'s Bulletin*, *supra* note Error:
    Reference source not found, § 1.2.

[^223]: Akashi, *supra* note Error: Reference source not found, at
    [322.]{.smallcaps}

[^224]: [Green,]{.smallcaps} *supra* note [Error: Reference source not
    found,]{.smallcaps} at [323]{.smallcaps}.

[^225]: Article 2, para. 3 is common to all four Geneva Conventions. It
    states:

    > Although one of the Powers in conflict may not be a party to the
    > present Convention, the Powers who are parties thereto shall
    > remain bound by it in their mutual relations. They shall
    > furthermore be bound by the Convention in relation to the said
    > Power, if the latter accepts and applies the provisions thereof.

    Geneva Convention for the Amelioration of the Condition of the
    Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6
    U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration
    of the Condition of Wounded, Sick and Shipwrecked Members of Armed
    Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva
    Convention Relative to the Treatment of Prisoners of War, Aug. 12,
    1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; and Geneva Convention Relative
    to the Protection of Civilian Persons in Time of War, Aug. 12, 1949,
    6 U.S.T. 3516, 75 U.N.T.S. 287. The UN Charter entered into force on
    June 25, 1945, four years before the adoption of the Geneva
    Conventions. Yet, the Geneva Conventions and subsequent protocols,
    even to this day, do not reference United Nations peacekeeping or
    peace-enforcement actions.

[^226]: Reparations Case, *supra* note Error: Reference source not
    found. With respect to whether the United Nations had authority to
    enter into treaties, the Court held,

    > \[T\]he attribution of international personality is indispensable.
    > . . . the Organization was intended to exercise and enjoy, and is
    > in fact exercising and enjoying, functions and rights which can
    > only be explained on the basis of the possession of a large
    > measure of international personality and the capacity to operate
    > on an international plane. It is at present the supreme type of
    > international organization, and it could not carry out the
    > intentions of its founders if it was devoid of international
    > personality. It must be acknowledged that its members, but
    > entrusting certain functions to it, with the attendant duties and
    > responsibilities, have clothed it with the competence required to
    > enable those functions to be effectively discharged. . . \[The
    > United Nations\] is a subject of international law and capable of
    > possessing international rights and duties . . . .

    Reparations Case, *supra* note Error: Reference source not found, at
    178-79.

[^227]: *See, e.g.,* [F. Seyersted, United Nations Forces in the Law of
    Peace and War, 344 (1961). "\[T\]]{.smallcaps}here can be no doubt
    that the United Nations has the inherent capacity to become a party
    to the conventions on warfare if their terms permit it to accede."
    *Id*.

[^228]: *See* [Report of the Conference,]{.smallcaps} *supra* note
    Error: Reference source not found, at 106.

[^229]: Article 96 states:

    > 1\. When the Parties to the Conventions are also Parties to this
    > Protocol, the Conventions shall apply as supplemented by this
    > Protocol.
    >
    > 2\. When one of the Parties to the conflict is not bound by this
    > Protocol, the Parties to the Protocol shall remain bound by it in
    > their mutual relations. They shall furthermore be bound by this
    > Protocol in relation to each of the Parties which are not bound by
    > it, if the latter accepts and applies the provisions thereof.
    >
    > 3\. The authority representing a people engaged against a High
    > Contracting Party in an armed conflict of the type referred to in
    > Article 1, paragraph 4, may undertake to apply the Conventions and
    > this Protocol in relation to that conflict by means of a
    > unilateral declaration addressed to the depositary. Such
    > declaration shall, upon its receipt by the depositary, have in
    > relation to that conflict the following effects: (a) the
    > Conventions and this Protocol are brought into force for the said
    > authority as a Party to the conflict with immediate effect; (b)
    > the said authority assumes the same rights and obligations as
    > those which have been assumed by a High Contracting Party to the
    > Conventions and this Protocol; and (c) the Conventions and this
    > Protocol are equally binding upon all Parties to the conflict.

    Protocol Additional to the Geneva Conventions of 12 August 1949, and
    Relating to the Protection of Victims of International Armed
    Conflict, Dec. 12 1977, 1125 U.N.T.S. 3, 6, *reprinted in* 16 I.L.M.
    1391, 1399 (1977).

    Regardless of the wording of Article 96, there is no consensus as to
    whether the United Nations could become a party to the Conventions.
    As the International Committee for the Red Cross (ICRC) explains,
    "\[n\]or is it out of the question that the United Nations could be
    \'a party to the conflict\' in the material sense, although the
    problem of accession of the United Nations to the Geneva Conventions
    and the Protocols remains a delicate question which has not yet been
    resolved." [Commentary on the Additional Protocols of 8 June 1977 to
    the Geneva Conventions of 12 August 1949 507 (]{.smallcaps}Y. Sandoz
    et al. eds., 1987). Further, the UN, precisely because it is not a
    state, does not possess the adequate administrative and juridical
    authority to carry out the obligations inherent to the Conventions.

[^230]: [Report of the Conference,]{.smallcaps} *supra* note Error:
    Reference source not found, at 111.

[^231]: Umesh Palwankar[,]{.smallcaps} *Applicability of International
    Humanitarian Law to United Nations Peace-Keeping Forces,* 294
    [Int\'l Rev. Red Cross 227, 232 (1993).]{.smallcaps}

[^232]: [Seyersted,]{.smallcaps} *supra* note Error: Reference source
    not found, at [387.]{.smallcaps}

[^233]: *See generally* [R. Simmonds, Legal Problems Arising From the
    United Nations Military Operations in the Congo 185 (1968).
    S]{.smallcaps}immonds notes that during peacekeeping operations in
    the Congo, the United Nations "refused to undertake the duty of
    compliance with the detailed provisions of the Conventions or to
    make any kind of official declaration by which it would engage
    itself to apply them in all circumstances." *Id*. Nevertheless, even
    though the United Nations was not a party to the Conventions,
    customary law applied and was "equally binding without the necessity
    for any accession to them by the United Nations." *Id.* at 180. In
    1993, the United Nations in Somalia (UNISOM) peacekeeping force
    initially denied the International Committee of the Red Cross access
    to detained supporters of General Aidid. A United Nations military
    officer allegedly told the media: "The United Nations is not a
    signatory to the Geneva Convention and its Protocols.
    Consequentially, the United Nations has no duty to respect
    international human rights law." Willy Lubin[,]{.smallcaps} *Towards
    the International Responsibility of the United Nations in Human
    Rights Violations During \"Peace-Keeping\" Operations: The Case of
    Somalia*, 52 [Int'l Comm\'n Jurists 47, 54-55 (1994).]{.smallcaps}

[^234]: *See, e.g.,* Gardam, *supra* note 18, at [319]{.smallcaps} n.117
    (1996). "Although much of the law of armed conflict is codified, the
    majority of its provisions would now be reflected in custom." *Id*.

[^235]: Adam Roberts & Richard Guelff, *Prefatory Note*, *in* [Documents
    on the Laws of War 371 (]{.smallcaps}A. Roberts & R. Guelff eds.,
    2d. 1989).

[^236]: [Green,]{.smallcaps} *supra* note [Error: Reference source not
    found,]{.smallcaps} at [55]{.smallcaps}. General Douglas MacArthur,
    Commander of United Nations Command, said his forces would comply
    with principles of the international law of armed conflict,
    specifically dealing with prisoners of war:

    > My present instructions are to abide by the humanitarian
    > principles of the 1949 Geneva Conventions, particularly the common
    > Article three. In addition, I have directed the forces under my
    > command to abide by the detailed provisions of the prisoner-of-war
    > convention, since I have the means at my disposal to assure
    > compliance with this convention by all concerned and have fully
    > accredited the ICRC delegates accordingly. I do not have the
    > authority to accept, nor the means to assure the accomplishment of
    > responsibilities incumbent on sovereign nations as contained in
    > the detailed provisions of the other Geneva Conventions and hence
    > I am unable to accredit the delegations to the UNC (United Nations
    > Command) for the purposes outlined in those conventions. All
    > categories of non-combatants in custody or under the control of
    > military forces under my command, however, will continue to be
    > accorded treatment prescribed by the humanitarian principles of
    > the Geneva Conventions.

    *Cited in* [Seyersted,]{.smallcaps} *supra* note Error: Reference
    source not found, at [184-85.]{.smallcaps} Although the United
    Nations Command did not believe it was obligated to follow the
    Geneva Conventions because neither the United Nations nor North
    Korea were parties to them, the United Nations Command adhered to
    most terms of the Conventions. Further, "no state providing
    contingents maintained that the United Nations collective action was
    not governed by the general laws of war." [Seyersted,]{.smallcaps}
    *supra* note Error: Reference source not found, at
    [187.]{.smallcaps}

    On July 13, 1950, both South and North Korea said they were
    following the Geneva Conventions regarding prisoners of war and
    cooperating with the International Red Cross. [N.Y.
    Times]{.smallcaps}, July 5, 1950, at 2.

[^237]: Greenwood[,]{.smallcaps} *supra* note Error: Reference source
    not found, at [189.]{.smallcaps}

[^238]: Article 2, common to all 4 Geneva Conventions, states:

    > In addition to the provisions which shall be implemented in
    > peace-time, the present Convention shall apply to all cases of
    > declared war or of any other armed conflict which may arise
    > between two or more of the High Contracting Parties, even if the
    > state of war is not recognized by one of them.
    >
    > The Convention shall also apply to all cases of partial or total
    > occupation of the territory of a High Contracting Party, even if
    > the said occupation meets with no armed resistance.
    >
    > Although one of the Powers in conflict may not be a party to the
    > present Convention, the Powers who are parties thereto shall
    > remain bound by it in their mutual relations. They shall
    > furthermore be bound by the Convention in relation to the said
    > Power, if the latter accepts and applies the provisions thereof.

    Geneva Convention for the Amelioration of the Condition of the
    Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6
    U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration
    of the Condition of Wounded, Sick and Shipwrecked Members of Armed
    Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva
    Convention Relative to the Treatment of Prisoners of War, Aug. 12,
    1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; and Geneva Convention Relative
    to the Protection of Civilian Persons in Time of War, Aug. 12, 1949,
    6 U.S.T. 3516, 75 U.N.T.S. 287.

[^239]: *See* Adam Roberts & Richard Guelff, *Prefatory Note*, *in*
    [Documents on the Laws of War 169-70 (]{.smallcaps}A. Roberts & R.
    Guelff eds., 2d ed. 1989); according to Sharp,

    > \[S\]hort of an actual declaration of war or a case of occupation,
    > military forces do not become a party to an international armed
    > conflict until such time they become engaged in a use of force of
    > a scope, duration, and intensity that would trigger the *jus in
    > bello* with respect to these forces. This threshold is a factual,
    > subjective determination that centers on the use of force between
    > the members of the armed forces of two states. These factors are
    > to be considered conjunctively, and in the context of the assigned
    > mission of the forces. For example, military forces conducting a
    > noncombatant evacuation operation do not become a party to an
    > armed conflict when they use limited force to rescue personnel.
    > Similarly, military forces do not become a party to an armed
    > conflict when they use limited force to accomplish an assigned
    > humanitarian relief or peace operation. In contrast, individual or
    > collective military action in response to outright aggression,
    > such as the coalition response to the Iraqi aggression that led to
    > the Persian Gulf war, does cross the Common Article 2 threshold
    > and then triggers the application of the *jus in bello.*

    Walter Gary Sharp, Sr., *Revoking an Aggressor\'s License to Kill
    Military Forces Serving the United Nations: Making Deterrence
    Personal,* 22-23 (1997) (unpublished manuscript on file with
    author).

[^240]: *See* Bloom*[,]{.smallcaps} supra* note Error: Reference source
    not found, at 6[25-26]{.smallcaps} n.12[. A]{.smallcaps}nother
    observer writes:

    > The Laws of Armed Conflict do not normally apply to UN or other
    > peacekeeping forces because neither they nor the UN are in armed
    > conflict with anyone. They are there, inter alia, to separate the
    > parties, provide protection for the delivery of humanitarian aid
    > and, hopefully, provide a more rational atmosphere or environment
    > in which the factions may come to a peaceful solution. However,
    > they do (and are legally entitled to) take self-protective actions
    > involving the use of force from time to time. *It goes without
    > saying that if they cross the armed conflict threshold and enter
    > into armed conflict then the Laws of Armed Conflict would apply.*

    Garth Cartledge, *International Military Law,*
    http://www.ozemail.com.au/\~garthc/Index.html \[hereinafter
    *International Military Law*\] (copy on file with the *Air Force Law
    Review*) (emphasis added).

[^241]: Armed Conflict has been defined as a

    > conflict involving hostilities of a certain intensity between
    > armed forces of opposing Parties . . .There are, of course,
    > obvious cases. Nobody will probably doubt for a moment that the
    > Second World War, or the Vietnam war, were armed conflicts, nor
    > that the Paris students' revolt of May 1968 did not qualify as
    > such. For the less obvious cases, however, one will have to admit
    > that thus far no exact, objective criterion has been found which
    > would permit us to determine with mathematical precision that this
    > or that situation does or does not amount to an armed conflict.

    [Frits Kalshoven, The Law of Warfare: A Summary of its Recent
    History and Trends in Development 10-11 (1973). *S*]{.smallcaps}*ee
    also* Prosecutor v. Tadic, Case No. IT-94-AR72, 37 (App., Oct. 2,
    1995) ("Armed conflict" is when "there is resort to armed force
    between states or protracted armed violence between government
    authorities and organized armed groups or between such groups within
    a State."); AFPAM 110-31, *supra* note Error: Reference source not
    found, at para. 1-2(b) ("\[A\]rmed conflict---conflict between
    states in which at least one party has resorted to the use of armed
    force to achieve its aims. It may also embrace conflict between a
    state and organized, disciplined and uniformed groups within the
    state such as organized resistance movements."; Sylvie Junod,
    *Additional Protocol II: History & Scope,* [33 Am. U.L. Rev 29, 30
    (1983) (\"\[T\]]{.smallcaps}he concept of armed conflict is
    generally recognized as encompassing the idea of open, armed
    confrontation between relatively organized armed forces or armed
    groups.\"); and, 3 [Cumulative Digest of U.S. Practice in
    International Law: 1988-91 (]{.smallcaps}Marian Nash-Leich ed.,
    1989) ("Armed conflict includes any situation in which there is
    hostile action between the armed forces of two parties, regardless
    of the duration, intensity or scope of the fighting. . ."). *Id.* at
    3457.

[^242]: C[ommentary on the Geneva Convention Relative to the Protection
    of Civilian Persons in Time of War 20 (]{.smallcaps}Jean S. Pictet
    ed., 1958).

[^243]: *See* [Richard I. Miller, The Law of War 275 (1975);
    *S*]{.smallcaps}*ee also* AFPAM 110-31, *supra* note Error:
    Reference source not found, at para. 1-5(c) ("Generally, the
    international community has encouraged broad application of the law
    of armed conflict to as many situations as possible to protect
    victims of conflicts."); Greenwood, *supra* note 196, at
    [6]{.smallcaps}("While the term 'armed conflict' is not defined in
    any of the conventions, it has generally been given a very broad
    definition."); Sharp, *supra* note Error: Reference source not
    found, at [121 ("\[T]{.smallcaps}\]he threshold for the application
    of the Conventions was intended to afford maximum protection to
    belligerents and non-belligerents by ensuring the Conventions
    applied to as many interactions between the armed forces of states
    as possible.")[.]{.smallcaps}

[^244]: Pfanner, *supra* note Error: Reference source not found, at
    [56]{.smallcaps}.

[^245]: Cartledge, *International Humanitarian Law, supra* note Error:
    Reference source not found, at 154.

[^246]: *See* Cartledge, *International Humanitarian Law, supra* note
    Error: Reference source not found.

    > \[W\]hether or not there is armed conflict is a matter of fact,
    > not a matter for declaration by some government or governing body.
    > The application of laws of armed conflict is a matter which flows
    > (and must flow) automatically upon the crossing of the threshold
    > into armed conflict. The commencement of its application is not
    > and cannot be retarded or denied because some person, body, body
    > of persons or institution has decided or determined that laws of
    > armed conflict are not to be applied. If its application was
    > dependent upon the determination of such a body the question would
    > become a political one which it quite clearly should not be.

    Cartledge, *International Humanitarian Law, supra* note Error:
    Reference source not found, at 152.

[^247]: Sharp, *supra* note Error: Reference source not found, at
    [150.]{.smallcaps}

[^248]: Gardam[,]{.smallcaps} *supra* note Error: Reference source not
    found[,]{.smallcaps} at [288-89]{.smallcaps} n.10[.
    B]{.smallcaps}owens opines:

    > The majority view, consistent with the United States position, is
    > that international forces (composed of various national elements)
    > are bound to the same extent by the law of war as national forces.
    > We are to look beyond the guise of 'international force,' and to
    > the individual state forces that make up the international force.
    > If an individual state is involved in a (1) contention, (2) with
    > another state, (3) where at least one side employs military force,
    > (4) in an effort to overpower the other state, then despite the
    > label used by the state parties for the their actions or the
    > reason for the contention, the event is an article 2 conflict.

    [Bowens,]{.smallcaps} *supra* note 72, at[321]{.smallcaps}
    (footnotes omitted).

[^249]: *See Report of the Commission of Inquiry Established Pursuant to
    Security Council Resolution 885 (1993) to Investigate Armed Attacks
    on UNOSOM II Personnel Which Led to Casualties Among Them,* paras.
    117-73, U.N. SCOR, 49^th^ Sess., U.N. Doc S/1994/653 (1994).

[^250]: [Ops Law Handbook,]{.smallcaps} *supra* note Error: Reference
    source not found, at [5-2.]{.smallcaps} AFPAM 110-31, takes a
    similar position: "\[T\]he international community has not regarded
    a few sporadic acts of violence, even between states, as indicating
    a state of armed conflict as existing." AFPAM 110-31, *supra* note
    Error: Reference source not found, at para. 1-2(b).

[^251]: CJCSI 5810.01A, Implementation of the DOD Law of War Program,
    para. 5a, (Aug. 27, 1999). Further, the Chairman's standing rules of
    engagement provide:

    > U.S. forces will always comply with the Law of Armed Conflict.
    > However, not all situations involving the use of force are armed
    > conflicts under international law. Those approving operational
    > rules of engagement must determine if the internationally
    > recognized Law of Armed Conflict applies. In those circumstances
    > when armed conflict, under international law, does not exist, Law
    > of Armed Conflict principles may nevertheless be applied as a
    > matter of national policy. If armed conflict occurs, the actions
    > of U.S. forces will be governed by both the Law of Armed Conflict
    > and rules of engagement.

    CJCSI 3121.01, Enclosure A, Standing Rules of Engagement for U.S.
    Forces, para. 1.i (Oct. 1, 1994).

[^252]: [Ops Law Handbook,]{.smallcaps} *supra* note Error: Reference
    source not found, at [5-2.]{.smallcaps} *Accord* [Humanitares
    Volkerrecht In Bewaffneten Konflikten---Handbuch ¶ 211,]{.smallcaps}
    DSK AV207320065 (Aug. 1992): "Members of the German Army, like their
    Allies, shall comply with the rules of international humanitarian
    law in the conduct of military operations in all armed conflicts,
    whatever the nature of such conflicts."

[^253]: Greenwood, *supra* note 196, at[24]{.smallcaps}.

[^254]: *See, e.g.,* Timothy P. Bulman, *A Dangerous Guessing Game
    Disguised as Enlightened Policy: United States Law of War
    Obligations During Military Operations Other Than War,* [159 Mil. L.
    Rev. 152, 182 (1999);]{.smallcaps} Richard D. Glick, *Lip Service to
    the Laws of War: Humanitarian Law and the United Nations Armed
    Forces,* [17 Mich. J. Int\'l L. 53, 105-07 (1995);]{.smallcaps}
    Tittemore, *supra* note Error: Reference source not found, at
    115-17[; Howard S. Levie, When Battle Rages, How Can Law Protect?:
    Working Paper Proceedings of the Fourteenth Hammarskjold Forum 64-65
    (1971); *I*]{.smallcaps}*nternational Military Law*, *supra* note
    Error: Reference source not found.

[^255]: Cartledge, *Legal Constraints*[,]{.smallcaps} *supra* note 154,
    at [121]{.smallcaps}.

[^256]: Cartledge, *Legal Constraints*[,]{.smallcaps} *supra* note 154,
    at [121]{.smallcaps}*.*

[^257]: *Secretary-General\'s Bulletin*, *supra* note Error: Reference
    source not found.

[^258]: *Secretary-General\'s Bulletin*, *supra* note Error: Reference
    source not found, at para. 10; *see also United Nations Calls for
    Renewed Efforts to Protect Civilians in War*, [Afr. News
    Serv.,]{.smallcaps} Aug. 13, 1999.

[^259]: *Secretary-General\'s Bulletin, supra* note 101, at Purpose
    Stmt.

[^260]: *Id.*

[^261]: *Id.* at para. 1.1.

[^262]: *See* Cartledge, *Legal Constraints*, *supra* note Error:
    Reference source not found, at [121-22]{.smallcaps}.

[^263]: *See* Cartledge, *Legal Constraints*, *supra* note Error:
    Reference source not found, at [135-36]{.smallcaps}.

[^264]: United Nations Associated Personnel are defined as:

    > \(i\) Persons assigned by a Government or an intergovernmental
    > organization with the agreement of the competent organ of the
    > United Nations; (ii) Persons engaged by the Secretary-General of
    > the United Nations or by a specialized agency or by the
    > International Atomic Energy Agency; (iii) Persons deployed by a
    > humanitarian non-governmental organization or agency under an
    > agreement with the Secretary-General of the United Nations or with
    > a specialized agency or with the International Atomic Energy
    > Agency, to carry out activities in support of the fulfillment of
    > the mandate of a United Nations operation.

    Safety Convention, *supra* note Error: Reference source not found,
    at art. 1, para. b.

[^265]: *See generally* Godwin[,]{.smallcaps} *supra* note Error:
    Reference source not found, at [58-79.]{.smallcaps} The
    International Committee of the Red Cross makes the following
    statement:

    > \[T\]he Bulletin applies only to UN forces conducting operations
    > under the command and control of the United Nations. It does not
    > apply to organizations authorized by the Security Council which
    > are placed under the command of a state or regional organization.
    > In such cases the States, or the groups of States concerned, must
    > comply with the customary and treaty-based rules by which they are
    > bound.

    International Committee of the Red Cross, Comprehensive Review of
    the Whole Question of Peace-Keeping Operations in all its Aspects,
    Statement to the United Nations General Assembly (Oct. 20, 1999)*,
    available at* http://www.icrc.org/eng/search (copy on file with the
    *Air Force Law Review*).

[^266]: *See U.N. Issues Guidelines for Peace Forces\' Behaviour,*
    [Deutsche Press-Agentur]{.smallcaps}, Aug. 10, 1999. Consider also
    the following statement from the International Committee of the Red
    Cross:

    > \[T\]he \[International Committee for the Red Cross\] has
    > considered the question of the applicability of international
    > humanitarian law to peace-keeping and peace-enforcement forces. It
    > was felt essential to clarify this issue because troops of this
    > kind are intervening with increasing frequency to situations of
    > extreme violence in which they may have to resort to armed force.
    > . . . For its part, the \[United Nations\] maintains that only the
    > principles and spirit of \[International Humanitarian Law\] are
    > applicable to these forces. Experts have formulated draft
    > guidelines that spell out those 'principles' and the 'spirit' that
    > the \[United Nations\] has undertaken to respect, within the
    > framework of peace-keeping and peace-enforcement operations,
    > whenever the use of force is authorized for reasons of legitimate
    > defence or pursuant to a specific mandate issued by the Security
    > Council.

    International Committee of the Red Cross, *Is International
    Humanitarian Law Applicable to Peace-Keeping and Peace-Enforcement
    Operations Carried Out by or Under the Auspices of the United
    Nations?* (Dec. 1, 1999), *at* http://www.icrc.org/eng/search (copy
    on file with the *Air Force Law Review*)

[^267]: *See* [Deutsche Press-Agentur]{.smallcaps}, *supra* note 265.
    Several Member States have indicated that they may be less inclined
    to participate in peacekeeping operations as a result of the
    issuance of the guidelines. However, the UN does not believe that
    the guidelines will cause any Member State to either stop
    participating or reduce participation in United Nations peacekeeping
    operations. *See* Farhan Haq, *Rights: U.N. to Adhere to Geneva
    Conventions,* [Int\'l Press Serv.,]{.smallcaps} Aug. 10, 1999.

[^268]: *Secretary-General\'s Bulletin*, *supra* note Error: Reference
    source not found, at para. 5.1. Although the Bulletin is generally
    uncontroversial, encapsulating customary international humanitarian
    law, it does contain at least one provision to which the United
    States would object. Paragraph 6-2 of the Bulletin states: "The use
    of certain conventional weapons, such as . . . anti-personnel mines,
    . . . is prohibited." *Secretary-General\'s Bulletin*, *supra* note
    Error: Reference source not found, at para. 6.2. Approximately two
    million anti-personnel mines are deployed in the Republic of Korea
    (South Korea) along the Demilitarized Zone (DMZ) to deter an
    invasion from the North. Both the United States and South Korea take
    the position that if they were to remove the mines, it would
    effectively allow North Korea to invade South Korea. More
    importantly however, North Korea may misperceive the removal of the
    mines along the DMZ as a pre-cursor to South Korea preparing to
    invade the North.

[^269]: *Secretary-General\'s Bulletin: Observance by United Nations
    Forces of International Humanitarian Law,* para. 6.2, ST/SGB/1999/13
    (1999), *available at* http://www.un.org/peace/st_sgb_1999_13.pdf
    (copy on file with the *Air Force Law Review*).

[^270]: *Id.* at para. 7.1

[^271]: *Id.* at paras. 7.3 & 7.4.

[^272]: *Id.* at para. 8.

[^273]: *Id.* at para. 9.1.

[^274]: *Id.* at para. 5; s*ee also* [Bowett,]{.smallcaps} *supra* note
    99, at [504 ("]{.smallcaps}\[N\]ational contingents in the service
    of the United Nations are bound to the same extent and degree, to
    all those rules of warfare which would obtain if the same forces
    were engaged in international armed conflict for the State alone.").

[^275]: Haq, *supra* note 266.

[^276]: *Secretary-General\'s Bulletin: Observance by United Nations
    Forces of International Humanitarian Law,* para. 1.1, ST/SGB/1999/13
    (1999), *available at* http://www.un.org/peace/st_sgb_1999_13.pdf
    (copy on file with the *Air Force Law Review*).

[^277]: *Id.* at para. 1.2.

[^278]: *Id.* at para. 2.

[^279]: *Id.* at para. 1.2.

[^280]: *See* Ralph Zacklin, *Managing Peacekeeping from a Legal
    Perspective, in* [New Dimensions of Peacekeeping 159]{.smallcaps}
    (Daniel Warner ed., 1995) ("Insistence on clarifying the nature of
    peacekeeping is not merely a lawyer\'s obsession with clarity and
    legal definition; it is necessary because the legal character and
    nature of the operation has a direct bearing on the legal issues
    which arise and their resolution.")*.*

[^281]: [U.N. Charter]{.smallcaps} preamble.