Belligerents in blue helmets: Applying international humanitarian law to United Nations peace operations

Stanford Journal of International Law

Volumn 33, Issue 1, 1997, Pages 61-117

  Tittemore, Brian D ^a,b,c,d  

^a UNIVERSITY OF SASKATCHEWAN   (Canada)

^b AMERICAN UNIVERSITY   (United States)

^c Department of Justice   (Canada)

^d Government of Canada   (Canada)

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[No Author keywords available]

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EID: 0031483479     PISSN: 07315082     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (314)

1. U.N. Secretary-General Javier Ferez de Cuéllar in a report to the General Assembly. Report of the Secretary-General on the Work of the Organization, U.N. GAOR, 46th Sess., Supp. No. 1, at 3, U.N. Doc. A/46/1 (1991).
2. See U.N. CHARTER arts. 39,42 (providing the Security Council with the power to authorize, inter alia, the use of military force to respond to threats to international peace and security).
3. See S.C. Res. 678, U.N. SCOR, 2963d mtg., para. 2, U.N. Doc. S/RES/678 (1990) (authorizing Member states "to use all necessary means . . . to restore international peace and security in the area").
4. See S.C. Res. 794, U.N. SCOR, 3145th mtg., para. 10, U.N. Doc. S/RES/794 (1992) (providing Security Council authorization "to use all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia"); see also S.C. Res. 837, U.N. SCOR, 3229th mtg., para. 5, U.N. Doc. S/RES/837 (1993) (indicating that in response to attacks by rebel forces in Somalia against U.N. forces in 1992, the Security Council "[r]eaffirms that the Secretary-General is authorized under resolution 814 (1993) to take all measures necessary against all those responsible for the armed attacks . . . including to secure the investigation of their actions and their arrest and detention for prosecution, trial and punishment").
5. See S.C. Res. 770, U.N. SCOR, 3106th mtg., para. 2, U.N. Doc. S/RES/770 (1992) (calling upon states to take "all measures necessary to facilitate in coordination with the United Nations the delivery by relevant United Nations humanitarian organizations and others of humanitarian assistance to Sarajevo and wherever needed in other parts of Bosnia and Herzegovina").
6. The author uses the term "peace operation" to refer to any force comprised in whole or in part of military personnel, and sanctioned by the United Nations to fulfill one or more of the purposes of the United Nations, most often the peaceful settlement of international disputes or the maintenance or restoration of international peace and security. Such operations include conventional observer missions, peacekeeping operations which are traditionally authorized to use military force only for defensive purposes, and large-scale enforcement operations such as those authorized by the United Nations in the Korean and Persian Gulf Wars. See, e.g., FREDERIC L. KIRGIS, JR., INTERNATIONAL ORGANIZATIONS IN THEIR LEGAL SETTING 716 (2d ed. 1993) (providing a description of the main types of U.N. operations: peacekeeping, peacemaking, and peace enforcement); see also discussion infra part IILA-B (describing the traditional characteristics of peacekeeping forces and the development of a novel category of U.N. operations termed "peace enforcement"); Convention on the Safety of United Nations and Associated Personnel, G.A. Res. 49/59, U.N. GAOR, 49th Sess., Supp. No. 49, at 299, U.N. Doc. A/RES/49/59 (1995) [hereinafter U.N. Personnel Safety Convention].
7. The author uses the term "peace operation" to refer to any force comprised in whole or in part of military personnel, and sanctioned by the United Nations to fulfill one or more of the purposes of the United Nations, most often the peaceful settlement of international disputes or the maintenance or restoration of international peace and security. Such operations include conventional observer missions, peacekeeping operations which are traditionally authorized to use military force only for defensive purposes, and large-scale enforcement operations such as those authorized by the United Nations in the Korean and Persian Gulf Wars. See, e.g., FREDERIC L. KIRGIS, JR., INTERNATIONAL ORGANIZATIONS IN THEIR LEGAL SETTING 716 (2d ed. 1993) (providing a description of the main types of U.N. operations: peacekeeping, peacemaking, and peace enforcement); see also discussion infra part IILA-B (describing the traditional characteristics of peacekeeping forces and the development of a novel category of U.N. operations termed "peace enforcement"); Convention on the Safety of United Nations and Associated Personnel, G.A. Res. 49/59, U.N. GAOR, 49th Sess., Supp. No. 49, at 299, U.N. Doc. A/RES/49/59 (1995) [hereinafter U.N. Personnel Safety Convention].
8. See, e.g., Howard J. Taubenfeld, International Armed Forces and the Rules of War, 45 AM. J. INT'L L. 671, 678-79 (1951); 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. PROG. 216 (1952); Richard R. Baxter, The Rôle of Law in Modern War, 47 AM. SOC'Y INT'L L. PROC. 90, 96-98 (1953); D.W. BOWETT, UNITED NATIONS FORCES 53-57, 219-24 (1964); FINN SEYERSTED, UNITED NATIONS FORCES IN THE LAW OF PEACE AND WAR 178-426 (1966); R. SIMMONDS, LEGAL PROBLEMS ARISING FROM THE UNITED NATIONS MILITARY OPERATIONS IN THE CONGO 168-96 (1968).
9. See, e.g., Howard J. Taubenfeld, International Armed Forces and the Rules of War, 45 AM. J. INT'L L. 671, 678-79 (1951); 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. PROG. 216 (1952); Richard R. Baxter, The Rôle of Law in Modern War, 47 AM. SOC'Y INT'L L. PROC. 90, 96-98 (1953); D.W. BOWETT, UNITED NATIONS FORCES 53-57, 219-24 (1964); FINN SEYERSTED, UNITED NATIONS FORCES IN THE LAW OF PEACE AND WAR 178-426 (1966); R. SIMMONDS, LEGAL PROBLEMS ARISING FROM THE UNITED NATIONS MILITARY OPERATIONS IN THE CONGO 168-96 (1968).
10. See, e.g., Howard J. Taubenfeld, International Armed Forces and the Rules of War, 45 AM. J. INT'L L. 671, 678-79 (1951); 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. PROG. 216 (1952); Richard R. Baxter, The Rôle of Law in Modern War, 47 AM. SOC'Y INT'L L. PROC. 90, 96-98 (1953); D.W. BOWETT, UNITED NATIONS FORCES 53-57, 219-24 (1964); FINN SEYERSTED, UNITED NATIONS FORCES IN THE LAW OF PEACE AND WAR 178-426 (1966); R. SIMMONDS, LEGAL PROBLEMS ARISING FROM THE UNITED NATIONS MILITARY OPERATIONS IN THE CONGO 168-96 (1968).
11. See, e.g., Howard J. Taubenfeld, International Armed Forces and the Rules of War, 45 AM. J. INT'L L. 671, 678-79 (1951); 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. PROG. 216 (1952); Richard R. Baxter, The Rôle of Law in Modern War, 47 AM. SOC'Y INT'L L. PROC. 90, 96-98 (1953); D.W. BOWETT, UNITED NATIONS FORCES 53-57, 219-24 (1964); FINN SEYERSTED, UNITED NATIONS FORCES IN THE LAW OF PEACE AND WAR 178-426 (1966); R. SIMMONDS, LEGAL PROBLEMS ARISING FROM THE UNITED NATIONS MILITARY OPERATIONS IN THE CONGO 168-96 (1968).
12. See, e.g., Howard J. Taubenfeld, International Armed Forces and the Rules of War, 45 AM. J. INT'L L. 671, 678-79 (1951); 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. PROG. 216 (1952); Richard R. Baxter, The Rôle of Law in Modern War, 47 AM. SOC'Y INT'L L. PROC. 90, 96-98 (1953); D.W. BOWETT, UNITED NATIONS FORCES 53-57, 219-24 (1964); FINN SEYERSTED, UNITED NATIONS FORCES IN THE LAW OF PEACE AND WAR 178-426 (1966); R. SIMMONDS, LEGAL PROBLEMS ARISING FROM THE UNITED NATIONS MILITARY OPERATIONS IN THE CONGO 168-96 (1968).
13. See, e.g., Howard J. Taubenfeld, International Armed Forces and the Rules of War, 45 AM. J. INT'L L. 671, 678-79 (1951); 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. PROG. 216 (1952); Richard R. Baxter, The Rôle of Law in Modern War, 47 AM. SOC'Y INT'L L. PROC. 90, 96-98 (1953); D.W. BOWETT, UNITED NATIONS FORCES 53-57, 219-24 (1964); FINN SEYERSTED, UNITED NATIONS FORCES IN THE LAW OF PEACE AND WAR 178-426 (1966); R. SIMMONDS, LEGAL PROBLEMS ARISING FROM THE UNITED NATIONS MILITARY OPERATIONS IN THE CONGO 168-96 (1968).
14. See, e.g., Michael R. Sklaire, The Security Council Blockade of Iraq: Conflicting Obligations Under the United Nations Charter and the Fourth Geneva Convention, 6 AM. U. J. INT'L L. & POL'Y 609 (1991) (addressing the potential application of the provisions of the Geneva Conventions governing siege warfare to U.N. collective economic measures under Article 41 of the Charter).
15. See Oscar Schachter, Authorized Uses of Force by the United Nations and Regional Organizations, in LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 65, 66 (Lori F. Damrosch & David J. Scheffer eds., 1991) (indicating that between 1947 and 1992, the Security Council authorized only two enforcement actions, North Korea and Iraq). Since 1992, the Security Council has authorized the use of force on a greater number of occasions. See, e.g., S.C. Res. 794, supra note 4.
16. See. e.g., KIRGIS, supra note 6, at 665 (citing numerous examples of possible violations of the law of armed conflict by coalition forces during the Gulf War, including bombing attacks in populated areas and the destruction of a shelter containing hundreds of civilians); Peter Chemey, Death and Dishonor, THE GAZETTE (Montreal), July 16,1994, at B2 (documenting the beating death of a 16-year old Somali youth on March 16,1994 while detained in the Belet Huen camp of the Canadian division of the United Nations Operation in Somalia); Paul Lewis, U.S.-Led Raids on Iraq Strain Unity of Gulf War Coalition, N.Y. TIMES, Jan. 20, 1993, at Al (reporting allegations made by some members of the Gulf War coalition that attacks by coalition forces in northern and southern Iraq in January 1993 were disproportionate and inconsistent with international law).
17. See. e.g., KIRGIS, supra note 6, at 665 (citing numerous examples of possible violations of the law of armed conflict by coalition forces during the Gulf War, including bombing attacks in populated areas and the destruction of a shelter containing hundreds of civilians); Peter Chemey, Death and Dishonor, THE GAZETTE (Montreal), July 16,1994, at B2 (documenting the beating death of a 16-year old Somali youth on March 16,1994 while detained in the Belet Huen camp of the Canadian division of the United Nations Operation in Somalia); Paul Lewis, U.S.-Led Raids on Iraq Strain Unity of Gulf War Coalition, N.Y. TIMES, Jan. 20, 1993, at Al (reporting allegations made by some members of the Gulf War coalition that attacks by coalition forces in northern and southern Iraq in January 1993 were disproportionate and inconsistent with international law).
18. See, e.g., James W. Houck, The Command and Control of United Nations Forces in the Era of "Peace Enforcement," 4 DUKE J. COMP. & INT'L L. 1 (1993) (indicating that there has been confusion over command and control issues with respect to past U.N. peace enforcement operations); Caroline Mallan, Soldiers' Rules Were Lacking Captain Testifies, TORONTO STAR, Sept. 14, 1994, at A15 (indicating that Canadian soldiers in Somalia operated under Canadian rather than U.N. rules of engagement, and suggesting that the rules may not have been adequate); David Pugliese, Somalia Affairs: Confusing Orders Plagued Airborne Unit, OTTAWA CITIZEN, Oct. 2, 1995, at Al (reporting that defense files relating to the Canadian Airborne Regiment in Somalia indicated that members of the regiment had different interpretations of orders on how to deal with civilians).
19. See, e.g., James W. Houck, The Command and Control of United Nations Forces in the Era of "Peace Enforcement," 4 DUKE J. COMP. & INT'L L. 1 (1993) (indicating that there has been confusion over command and control issues with respect to past U.N. peace enforcement operations); Caroline Mallan, Soldiers' Rules Were Lacking Captain Testifies, TORONTO STAR, Sept. 14, 1994, at A15 (indicating that Canadian soldiers in Somalia operated under Canadian rather than U.N. rules of engagement, and suggesting that the rules may not have been adequate); David Pugliese, Somalia Affairs: Confusing Orders Plagued Airborne Unit, OTTAWA CITIZEN, Oct. 2, 1995, at Al (reporting that defense files relating to the Canadian Airborne Regiment in Somalia indicated that members of the regiment had different interpretations of orders on how to deal with civilians).
20. See, e.g., James W. Houck, The Command and Control of United Nations Forces in the Era of "Peace Enforcement," 4 DUKE J. COMP. & INT'L L. 1 (1993) (indicating that there has been confusion over command and control issues with respect to past U.N. peace enforcement operations); Caroline Mallan, Soldiers' Rules Were Lacking Captain Testifies, TORONTO STAR, Sept. 14, 1994, at A15 (indicating that Canadian soldiers in Somalia operated under Canadian rather than U.N. rules of engagement, and suggesting that the rules may not have been adequate); David Pugliese, Somalia Affairs: Confusing Orders Plagued Airborne Unit, OTTAWA CITIZEN, Oct. 2, 1995, at Al (reporting that defense files relating to the Canadian Airborne Regiment in Somalia indicated that members of the regiment had different interpretations of orders on how to deal with civilians).
21. See, e.g.. Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, U.N. SCOR, 48th Sess., U.N. Doc. S/25704 (1993) [hereinafter Secretary-General ICTY Report] (providing a statute for the International Criminal Tribunal for the former Yugoslavia to prosecute violations of the laws or customs of war, genocide, crimes against humanity, and grave breaches of the Geneva Conventions).
22. See David D. Caron, The Legitimacy of the Collective Authority of the Security Council, 87 AM. J. INT'L L. 552, 558-62 (1993) (noting that a "perception of illegitimacy" can be said to affect adversely an institution like the Security Council by undercutting the legitimacy of its rules, and by threatening its future effectiveness).
23. See United States v. Ambrose Light, 25 F. Supp. 408, 440 (S.D.N.Y. 1885) (defining "belligerency" as "not so much a principle as a fact. A certain degree of force and consistency acquired by any mass of population engaged in war entitles that population to be treated as a belligerent, through the action of the political department"). The term "belligerent" is often used synonymously with the term "party" in Article 2 common to the four Geneva Conventions in defining those who are bound by the Conventions, or in referring to individual combatants. See, e.g., 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 [hereinafter First Geneva Convention]; Instructions for the Government of Armies of the United States in the Field, Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, Apr. 24, 1863, art. 57, reprinted in THE LAWS OF ARMED CONFLICT 3 (Dietrich Schindler & Jiri Toman eds., 1988) (providing in part, "[s]o soon as a man is armed by a sovereign government and takes the soldier's oath of fidelity, he is a belligerent; his killing, wounding, or other warlike acts are not individual crimes or offenses"); see also THE UNITED NATIONS, THE BLUE HELMETS: A REVIEW OF UNITED NATIONS PEACE-KEEPING 58 (2d ed. 1990) [hereinafter THE BLUE HELMETS] (indicating that the blue berets and blue helmets that have come to represent U.N. peacekeeping were created by U.N. Secretary-General Dag Hammarskjold when the first U.N. peacekeeping force, the United Nations Emergency Force, or UNEF I, was created).
24. See United States v. Ambrose Light, 25 F. Supp. 408, 440 (S.D.N.Y. 1885) (defining "belligerency" as "not so much a principle as a fact. A certain degree of force and consistency acquired by any mass of population engaged in war entitles that population to be treated as a belligerent, through the action of the political department"). The term "belligerent" is often used synonymously with the term "party" in Article 2 common to the four Geneva Conventions in defining those who are bound by the Conventions, or in referring to individual combatants. See, e.g., 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 [hereinafter First Geneva Convention]; Instructions for the Government of Armies of the United States in the Field, Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, Apr. 24, 1863, art. 57, reprinted in THE LAWS OF ARMED CONFLICT 3 (Dietrich Schindler & Jiri Toman eds., 1988) (providing in part, "[s]o soon as a man is armed by a sovereign government and takes the soldier's oath of fidelity, he is a belligerent; his killing, wounding, or other warlike acts are not individual crimes or offenses"); see also THE UNITED NATIONS, THE BLUE HELMETS: A REVIEW OF UNITED NATIONS PEACE-KEEPING 58 (2d ed. 1990) [hereinafter THE BLUE HELMETS] (indicating that the blue berets and blue helmets that have come to represent U.N. peacekeeping were created by U.N. Secretary-General Dag Hammarskjold when the first U.N. peacekeeping force, the United Nations Emergency Force, or UNEF I, was created).
25. See United States v. Ambrose Light, 25 F. Supp. 408, 440 (S.D.N.Y. 1885) (defining "belligerency" as "not so much a principle as a fact. A certain degree of force and consistency acquired by any mass of population engaged in war entitles that population to be treated as a belligerent, through the action of the political department"). The term "belligerent" is often used synonymously with the term "party" in Article 2 common to the four Geneva Conventions in defining those who are bound by the Conventions, or in referring to individual combatants. See, e.g., 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 [hereinafter First Geneva Convention]; Instructions for the Government of Armies of the United States in the Field, Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, Apr. 24, 1863, art. 57, reprinted in THE LAWS OF ARMED CONFLICT 3 (Dietrich Schindler & Jiri Toman eds., 1988) (providing in part, "[s]o soon as a man is armed by a sovereign government and takes the soldier's oath of fidelity, he is a belligerent; his killing, wounding, or other warlike acts are not individual crimes or offenses"); see also THE UNITED NATIONS, THE BLUE HELMETS: A REVIEW OF UNITED NATIONS PEACE-KEEPING 58 (2d ed. 1990) [hereinafter THE BLUE HELMETS] (indicating that the blue berets and blue helmets that have come to represent U.N. peacekeeping were created by U.N. Secretary-General Dag Hammarskjold when the first U.N. peacekeeping force, the United Nations Emergency Force, or UNEF I, was created).
26. See United States v. Ambrose Light, 25 F. Supp. 408, 440 (S.D.N.Y. 1885) (defining "belligerency" as "not so much a principle as a fact. A certain degree of force and consistency acquired by any mass of population engaged in war entitles that population to be treated as a belligerent, through the action of the political department"). The term "belligerent" is often used synonymously with the term "party" in Article 2 common to the four Geneva Conventions in defining those who are bound by the Conventions, or in referring to individual combatants. See, e.g., 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 [hereinafter First Geneva Convention]; Instructions for the Government of Armies of the United States in the Field, Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, Apr. 24, 1863, art. 57, reprinted in THE LAWS OF ARMED CONFLICT 3 (Dietrich Schindler & Jiri Toman eds., 1988) (providing in part, "[s]o soon as a man is armed by a sovereign government and takes the soldier's oath of fidelity, he is a belligerent; his killing, wounding, or other warlike acts are not individual crimes or offenses"); see also THE UNITED NATIONS, THE BLUE HELMETS: A REVIEW OF UNITED NATIONS PEACE-KEEPING 58 (2d ed. 1990) [hereinafter THE BLUE HELMETS] (indicating that the blue berets and blue helmets that have come to represent U.N. peacekeeping were created by U.N. Secretary-General Dag Hammarskjold when the first U.N. peacekeeping force, the United Nations Emergency Force, or UNEF I, was created).
27. For a general discussion of the privileges and immunities which may apply to members of U.N. peace operations, see Steven J. Lepper, The Legal Status of Military Personnel in United Nations Peace Operations: One Delegate's Analysis, 18 HOUS. J. INT'LL. 359 (1996). See also U.N. Personnel Safety Convention, supra note 6.
28. See Supplement to an Agenda for Peace: Position Paper of the Secretary-General on the Occasion of the Fiftieth Anniversary of the United Nations, Report of the Secretary-General on the Work of the Organization, U.N. GAOR, 50th Sess., para. 35, U.N. Doc. A/50/60, S/1995/1 (1995) [hereinafter Supplement to an Agenda for Peace] (recognizing that the political and military premises underlying peacekeeping and peace enforcement are distinct, and that "[t]o blur the distinction between the two can undermine the viability of the peace-keeping operation and endanger its personnel").
29. See L.C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 3-10 (1993) (providing a concise overview of the history of humanitarian law); JEAN PICTET, HUMANITARIAN LAW AND THE PROTECTION OF WAR VICTIMS 11-18 (1975) (providing an overview of the branches of humanitarian law).
30. See L.C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 3-10 (1993) (providing a concise overview of the history of humanitarian law); JEAN PICTET, HUMANITARIAN LAW AND THE PROTECTION OF WAR VICTIMS 11-18 (1975) (providing an overview of the branches of humanitarian law).
31. See, e.g., Annex to the Convention Regulations Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631 [hereinafter Hague Regulations], art. 25 (prohibiting the attack or bombardment of undefended towns, villages, habitations, or buildings).
32. [The Hague] Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat 2277, 1 Bevans 631 [hereinafter Hague Convention IV]; Hague Regulations, supra note 18.
33. See, e.g. 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 [hereinafter Fourth Geneva Convention].
34. First Geneva Convention, supra note 14; 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 [hereinafter Second Geneva Convention]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Third Geneva Convention]; Fourth Geneva Convention, supra note 20. Articles One through Three of all four Geneva Conventions are identical, and are typically referred to as Common Article 1 or Article 1 common to the Geneva Conventions, and so forth.
35. First Geneva Convention, supra note 14; 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 [hereinafter Second Geneva Convention]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Third Geneva Convention]; Fourth Geneva Convention, supra note 20. Articles One through Three of all four Geneva Conventions are identical, and are typically referred to as Common Article 1 or Article 1 common to the Geneva Conventions, and so forth.
36. See 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, Preamble, 1125 U.N.T.S. 3 [hereinafter Protocol I] ("believing it necessary nevertheless to reaffirm and develop the provisions protecting the victims of armed conflicts and to supplement measures intended to reinforce their application," and providing for rules governing both the means and methods of warfare and the protection of victims of international armed conflicts); see also MICHAEL BOTHE ET AL., NEW RULES FOR VICTIMS OF ARMED CONFLICTS 184 ( 1982) (indicating that Part II of Protocol I "merge[d] the law of the Hague Regulations with the law of the Geneva Conventions [and thereby brought] the conduct of hostilities and the protection of war victims under the same system of treaty obligations"); Theodor Meron, The rime Has Come for the United States to Ratify Geneva Protocol I, 88 AM. J. INT'L L. 678, 679 (1994) (indicating that the main objective of Protocol I was to bring the Fourth Geneva Convention and the Hague Convention into a single treaty).
37. See 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, Preamble, 1125 U.N.T.S. 3 [hereinafter Protocol I] ("believing it necessary nevertheless to reaffirm and develop the provisions protecting the victims of armed conflicts and to supplement measures intended to reinforce their application," and providing for rules governing both the means and methods of warfare and the protection of victims of international armed conflicts); see also MICHAEL BOTHE ET AL., NEW RULES FOR VICTIMS OF ARMED CONFLICTS 184 ( 1982) (indicating that Part II of Protocol I "merge[d] the law of the Hague Regulations with the law of the Geneva Conventions [and thereby brought] the conduct of hostilities and the protection of war victims under the same system of treaty obligations"); Theodor Meron, The rime Has Come for the United States to Ratify Geneva Protocol I, 88 AM. J. INT'L L. 678, 679 (1994) (indicating that the main objective of Protocol I was to bring the Fourth Geneva Convention and the Hague Convention into a single treaty).
38. See 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, Preamble, 1125 U.N.T.S. 3 [hereinafter Protocol I] ("believing it necessary nevertheless to reaffirm and develop the provisions protecting the victims of armed conflicts and to supplement measures intended to reinforce their application," and providing for rules governing both the means and methods of warfare and the protection of victims of international armed conflicts); see also MICHAEL BOTHE ET AL., NEW RULES FOR VICTIMS OF ARMED CONFLICTS 184 ( 1982) (indicating that Part II of Protocol I "merge[d] the law of the Hague Regulations with the law of the Geneva Conventions [and thereby brought] the conduct of hostilities and the protection of war victims under the same system of treaty obligations"); Theodor Meron, The rime Has Come for the United States to Ratify Geneva Protocol I, 88 AM. J. INT'L L. 678, 679 (1994) (indicating that the main objective of Protocol I was to bring the Fourth Geneva Convention and the Hague Convention into a single treaty).
39. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature Dec. 12, 1977, art. 1, 1125 U.N.T.S. 609 [hereinafter Protocol II] (providing that Protocol II "develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application").
40. See infra notes 175-189 and accompanying text (analyzing the elements of conventional international humanitarian law now considered to be part of customary international law).
41. See, e.g., Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 LCJ. 14, paras. 218-19 (June 27) (Judgment) (finding that the rules under Article 3 common to the Geneva Conventions constitute a "minimum yardstick" applicable to both internal and international armed conflicts); G.A. Res. 2444, U.M. GAOR, 3d Comm., 23d Sess., 1748th mtg., Supp. No. 18, para. 1, U.N. Doc. A/7218 (1968) (providing for certain principles of international humanitarian law to be observed by all governmental and other authorities in all armed conflicts).
42. See, e.g., Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 LCJ. 14, paras. 218-19 (June 27) (Judgment) (finding that the rules under Article 3 common to the Geneva Conventions constitute a "minimum yardstick" applicable to both internal and international armed conflicts); G.A. Res. 2444, U.M. GAOR, 3d Comm., 23d Sess., 1748th mtg., Supp. No. 18, para. 1, U.N. Doc. A/7218 (1968) (providing for certain principles of international humanitarian law to be observed by all governmental and other authorities in all armed conflicts).
43. See, e.g., FRITS KALSHOVEN, THE LAW OF WARFARE 10-11 (1973) (defining "armed conflict" as a "conflict involving hostilities of a certain intensity between armed forces of opposing Parties").
44. See, e.g., Hague Regulations, supra note 18, art. 42 (providing that "[t]erritory is considered occupied when it is actually placed under the authority of the hostile army").
45. See ISAAC PAENSON, MANUAL OF THE TERMINOLOGY OF THE LAW OF ARMED CONFLICTS AND OF INTERNATIONAL HUMANITARIAN ORGANIZATIONS 86 (1989) (equating "jus in bello" with the law of war and the law of armed conflict).
46. See KALSHOVEN, supra note 26; SEYERSTED, supra note 7, at 201 ("[T]he laws of war . . . apply . . . to any armed conflict between subjects of international law which has the factual characteristics of war, even if it does not constitute 'war' in a . . . traditional sense.").
47. The preconditions for a military force to be considered an "armed force" for the purposes of the Conventions include the existence of a responsible command, a fixed and distinct emblem recognizable at a distance, and the obligations to carry arms openly and conduct operations in accordance with the laws and customs of war. See, e.g., Protocol I, supra note 22, art. 43; First Geneva Convention, supra note 14, art. 13; Second Geneva Convention, supra note 21, art. 13; Hague Regulations, supra note 18, art. 1; see also L. OPPENHEIM, INTERNATIONAL LAW, §56, at 175 (5th ed. 1935) (defining "war" as a "contention of States through their armed forces").
48. Protocol II, supra note 23, art. 1 (applying Protocol II to those armed forces under responsible command who "exercise such control over a part of [the] territory [of the state] as to enable them to cany out sustained and concerted military operations and to implement [Protocol II]"); First Geneva Convention, supra note 21, art. 3 (common to all four Geneva Conventions) [hereinafter Common Article 3] (failing to provide the criteria to define a group that engages in a domestic armed conflict with a state).
49. See Protocol II, supra note 23, art. 1, para. 2 (providing that Protocol II does not apply to situations of "internal disturbances and tensions, such as riots [and] isolated and sporadic acts of violence"); First Geneva Convention, supra note 14, art. 2 (common to all four Geneva Conventions) [hereinafter Common Article 2] (providing that "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," but not defining "armed conflict"); Common Article 3, supra note 31 (applying to an "armed conflict not of an international character" but defining neither "not of an international character" nor "armed conflict"); Prosecutor v. Tadić, Case No. IT-94-AR72, 37 (App., Oct. 2, 1995) (determining that an "armed conflict" exists when "there is a resort to armed force between states or protracted armed violence between government authorities and organized armed groups or between such groups within a State"); 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, 57 (1993) (indicating that Article 3 common to the Geneva Conventions would "not apply to a mere act of banditry or an unorganized and short-lived rebellion").
50. See, e.g., Common Article 2, supra note 32 (the conventions "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," as well as "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"); Fourth Geneva Convention, supra note 21, pt. III, sec. III (setting out detailed rules for the protection of civilians in occupied territories); Hague Regulations, supra note 18, art. 42 (defining "occupation"); GREEN, supra note 17, at 246-57 (discussing the rights and duties of occupying powers and suggesting that a territory is "occupied" only to the extent that it is under the control and administration of an occupier who is "actually able to exer-cise such control").
51. See PAENSON, supra note 28, at 8 (equating jus and bellum with the right to go to war, to resort to war, and to wage war); see also GREEN, supra note 17, at 14 (defining jus and bellum as the decision to wage war).
52. See, e.g., Protocol I, supra note 22, Preamble ("Reaffirming . . . that the provisions of the Geneva Conventions . . . and of this Protocol must be fully applied in all circumstances to all persons who are protected [thereunder], without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict."); United States v. List, XI Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, 759, 1296-97 (1948), reprinted in Armed Conflict, 10 DIG. INT'L L. §16, at 544 ("[I]nternational law makes no distinction between a lawful and an unlawful occupant in dealing with the respective duties of occupant and population in occupied territory."); GREEN, supra note 17, at 14 (noting that the law of war, jus in bello, has the purpose of reducing the horrors of war once it has begun and thus does not relate to the decision to wage war, jus ad bellum).
53. See Protocol I, supra note 22, art. 1, para. 4 (rendering the Protocol and the four Geneva Conventions, which are otherwise not applicable to domestic armed conflicts, applicable to "armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist ré gimes in the exercise of their right of self-determination").
54. The terms "international" and "non-international" are not defined in the four Geneva Conventions or in the two Additional Protocols. However, Common Article 2 states that the Conventions apply to armed conflicts between "two or more of the High Contracting Parties." Common Article 2, supra note 32. This suggests that an international armed conflict involves two or more states, whereas a domestic armed conflict involves only one state in conflict with an insurgent group in that state's territory. Common Article 3 does not describe the nature of armed groups fighting within a state necessary to trigger its provisions. Common Article 3, supra note 31. Article 1 of Protocol II, however, sets forth three requirements for being a non-state party for the purposes of the Protocol: the armed force must be organized, capable of a certain level of military operations, and capable of fulfilling the requirements of the Conventions. Protocol II, supra note 23, art.1; see also INTERNATIONAL COMMITTEE OF THE RED CROSS, COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, at 25, para. 14 (Yves Sandoz et al. eds., 1987) (indicating that the expression "High Contracting Parties" in the four Geneva Conventions and Protocol I "unquestionably refers to the States for which these treaties are [properly] in force").
55. See David Weissbrodt, The Role of International Organizations in the Implementation of Human Rights and Humanitarian Law in Situations of Armed Conflict, 21 VAND. J. TRANSNAT'L L. 313, 337-38 (1988) (defining an "internationalized" armed conflict as one where "foreign assistance [is] provided to one side or the other" in an internal armed conflict and suggesting, inter alia, that, "as between the insurgents and a state assisting [an] established government," it would have to be determined whether the conditions for a domestic armed conflict are fulfilled since "the insurgents would lack the requisite status" for the law applicable to international armed conflict); see also Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.CJ. 14, paras. 219 (June 27) (Judgment) (finding that, in the context of U.S. assistance to the contra rebels in the internal Nicaraguan conflict, the laws governing domestic armed conflict would apply as between the Nicaraguan government and the contra rebels, but that the laws governing international armed conflicts would apply as between Nicaragua and the United States); Prosecutor v. Tadic, Case No. IT-94-AR72,37 (App., Oct. 2, 1995), paras. 77, 94 (finding that although the conflicts in the former Yugoslavia have both internal and international aspects, Article 3 of the Tribunal's Statute endowed the Tribunal with the jurisdiction to prosecute serious violations of international humanitarian law in internal or international armed conflicts); KALSHOVEN, supra note 26, at 15 (concluding that although opinions vary widely regarding the legal effect of the participation of foreign forces in a domestic armed conflict, "direct and significant participation of foreign armed forces" will "deprive the armed conflict of its original character as a purely [intrastate] affair"); HANS KELSEN, THE LAW OF THE UNITED NATIONS 183 (1950) (suggesting that the participation of states' armed forces on the side of insurgents in a civil war within another state constitutes international war between the two states concerned). But see Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, U.N. SCOR, 49th Sess., Annex, para. 44, U.N. Doc. S/1994/674 (1992) [hereinafter Final Report of the Commission of Experts] ("[T]he character and complexity of the armed conflicts concerned, combined with the web of agreements on humanitarian law that the parties have concluded among themselves, justifies the Commission's approach in applying the law applicable in international armed conflicts to the entirety of the armed conflicts in the territory of the former Yugoslavia.").
56. See David Weissbrodt, The Role of International Organizations in the Implementation of Human Rights and Humanitarian Law in Situations of Armed Conflict, 21 VAND. J. TRANSNAT'L L. 313, 337-38 (1988) (defining an "internationalized" armed conflict as one where "foreign assistance [is] provided to one side or the other" in an internal armed conflict and suggesting, inter alia, that, "as between the insurgents and a state assisting [an] established government," it would have to be determined whether the conditions for a domestic armed conflict are fulfilled since "the insurgents would lack the requisite status" for the law applicable to international armed conflict); see also Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.CJ. 14, paras. 219 (June 27) (Judgment) (finding that, in the context of U.S. assistance to the contra rebels in the internal Nicaraguan conflict, the laws governing domestic armed conflict would apply as between the Nicaraguan government and the contra rebels, but that the laws governing international armed conflicts would apply as between Nicaragua and the United States); Prosecutor v. Tadic, Case No. IT-94-AR72,37 (App., Oct. 2, 1995), paras. 77, 94 (finding that although the conflicts in the former Yugoslavia have both internal and international aspects, Article 3 of the Tribunal's Statute endowed the Tribunal with the jurisdiction to prosecute serious violations of international humanitarian law in internal or international armed conflicts); KALSHOVEN, supra note 26, at 15 (concluding that although opinions vary widely regarding the legal effect of the participation of foreign forces in a domestic armed conflict, "direct and significant participation of foreign armed forces" will "deprive the armed conflict of its original character as a purely [intrastate] affair"); HANS KELSEN, THE LAW OF THE UNITED NATIONS 183 (1950) (suggesting that the participation of states' armed forces on the side of insurgents in a civil war within another state constitutes international war between the two states concerned). But see Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, U.N. SCOR, 49th Sess., Annex, para. 44, U.N. Doc. S/1994/674 (1992) [hereinafter Final Report of the Commission of Experts] ("[T]he character and complexity of the armed conflicts concerned, combined with the web of agreements on humanitarian law that the parties have concluded among themselves, justifies the Commission's approach in applying the law applicable in international armed conflicts to the entirety of the armed conflicts in the territory of the former Yugoslavia.").
57. See David Weissbrodt, The Role of International Organizations in the Implementation of Human Rights and Humanitarian Law in Situations of Armed Conflict, 21 VAND. J. TRANSNAT'L L. 313, 337-38 (1988) (defining an "internationalized" armed conflict as one where "foreign assistance [is] provided to one side or the other" in an internal armed conflict and suggesting, inter alia, that, "as between the insurgents and a state assisting [an] established government," it would have to be determined whether the conditions for a domestic armed conflict are fulfilled since "the insurgents would lack the requisite status" for the law applicable to international armed conflict); see also Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.CJ. 14, paras. 219 (June 27) (Judgment) (finding that, in the context of U.S. assistance to the contra rebels in the internal Nicaraguan conflict, the laws governing domestic armed conflict would apply as between the Nicaraguan government and the contra rebels, but that the laws governing international armed conflicts would apply as between Nicaragua and the United States); Prosecutor v. Tadic, Case No. IT-94-AR72,37 (App., Oct. 2, 1995), paras. 77, 94 (finding that although the conflicts in the former Yugoslavia have both internal and international aspects, Article 3 of the Tribunal's Statute endowed the Tribunal with the jurisdiction to prosecute serious violations of international humanitarian law in internal or international armed conflicts); KALSHOVEN, supra note 26, at 15 (concluding that although opinions vary widely regarding the legal effect of the participation of foreign forces in a domestic armed conflict, "direct and significant participation of foreign armed forces" will "deprive the armed conflict of its original character as a purely [intrastate] affair"); HANS KELSEN, THE LAW OF THE UNITED NATIONS 183 (1950) (suggesting that the participation of states' armed forces on the side of insurgents in a civil war within another state constitutes international war between the two states concerned). But see Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, U.N. SCOR, 49th Sess., Annex, para. 44, U.N. Doc. S/1994/674 (1992) [hereinafter Final Report of the Commission of Experts] ("[T]he character and complexity of the armed conflicts concerned, combined with the web of agreements on humanitarian law that the parties have concluded among themselves, justifies the Commission's approach in applying the law applicable in international armed conflicts to the entirety of the armed conflicts in the territory of the former Yugoslavia.").
58. See. e.g., United States v. List, XI Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, 759, 1296-97 (1948), reprinted in Armed Conflict, 10 DIG. INT'L L. §16, at 544 (finding that "military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life and money").
59. See DOCUMENTS ON THE LAWS OF WAR 5 (Adam Roberts & Richard Guelff eds., 2d ed. 1982) [hereinafter DOCUMENTS]; see also Hague Convention IV, supra note 19, Preamble (providing that where the Convention's rules are lacking or inappropriate, populations in armed conflicts should be protected by the rules "established among civilized peoples, from the laws of humanity, and the dictates of the public conscience").
60. In THE LAW OF WARFARE, Fritz Kalshoven outlines four main principles of the law of warfare pertaining to civilian and military persons and objects: (1) distinction shall be made at all times between belligerents and the civilian population; (2) the civilian population, as well as objects of civilian character, shall not be made the object of deliberate attacks; (3) in attacking military objectives, any unreasonable damage to the civilian population and objects of civilian character shall be avoided; (4) no weapons or other means and methods of warfare shall be used which are calculated to cause unnecessary or otherwise excessive suffering. KALSHOVEN, supra note 26, at 28. See also 1 WALDEMAR A. SOLF ET AL., INTERNATIONAL HUMANITARIAN LAW: MATERIALS AND PROBLEMS 48-59 (1992) (describing the concept of the "minimum destruction of shared values" as encompassing the notion of limitations on the means and methods of warfare and the need to discriminate between military and non-military targets).
61. See, e.g., Protocol I, supra, note 22, art. 35 (providing that "the right of the Parties to the conflict to choose methods or means of warfare is not unlimited"); Hague Regulations, supra note 18, art. 22.
62. See, e.g.. Protocol I, supra note 22, art. 4_8 (requiring the parties to an international armed conflict to "distinguish between the civilian population and combatants and between civilian objects and military objectives and [to] accordingly . . . direct their operations only against military objectives").
63. See, e.g., Protocol II, supra note 23, art. 13 (providing that "[t]he civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations," and that "[t]he civilian population as such, as well as individual civilians, shall not be the object of attack"); see also Protocol I, supra note 22, art. 50 (defining "civilians" for the purposes of an international armed conflict); MICHAEL BOTHE ET AL., NEW RULES FOR VICTIMS OF ARMED CONFLICTS: COMMENTARY ON THE Two 1977 PROTOCOLS ADDITIONAL TO THE GENEVA CONVENTIONS OF 1949 293-94 (1982); G.A. Res. 2444, supra note 25 (expressly recognizing and affirming the prohibition of attacks against civilian populations and requiring that governmental and all other authorities involved in both international and internal armed conflicts distinguish between civilians and those taking part in hostilities).
64. The provisions governing international armed conflicts apply only to persons under the control of foreign parties, whereas the provisions governing domestic armed conflicts provide protection even if persons are under the control of their own state. See, e.g., Fourth Geneva Convention, supra note 20, art. 4 (defining "protected persons" as "those who . . . find themselves, in [the] case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals"); Common Article 3, supra note 31 (providing that "[p]ersons taking no active part in the hostilities . . . be treated humanely"); see also J. PICTET, THE PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW 32-33, 39, 42 (1966), reprinted in 1 SOLF ET AL., supra note 41, at 73-74.
65. See I SOLF ET AL., supra note 41, at 73-74.
66. See, e.g., Protocol I, supra note 22, art. 43, para. 2 (defining members of the aimed forces of a party, other than medical personnel and chaplains covered by Article 33 of the Third Geneva Convention, as "combatants" who correspondingly have the right to participate directly in hostitilies.)
67. See id.
68. See, e.g., First Geneva Convention, supra note 14 (applicable to wounded and sick armed forces in the field); Second Geneva Convention, supra note 21 (applicable to the wounded, sick, and shipwrecked members of armed forces at sea); Third Geneva Convention, supra note 21 (applicable to prisoners of war).
69. See, e.g., First Geneva Convention, supra note 14, art. 13; Second Geneva Convention, supra note 21, art. 13 (defining the requirements for an "armed force" for the purposes of the Conventions); Third Geneva Convention, supra note 21, arts. 4, 82 (defining the requirements for a person to be considered a "prisoner of war" for the purposes of the Convention, and providing that a lawful combatant under the Convention is permitted to fight in an armed conflict without being prosecuted for their ac-tions which otherwise comply with the laws of war); THE LAWS OF WAR 41-45 (W. Michael Reisman & Chris T. Antoniou eds., 1994) (outlining the manner in which conventional law has sought to make a clear distinction between combatants and noncombatants); PAENSON, supra note 28, at 116-19 (defining "combatant" in a "narrow" sense as "those members of the armed forces who participate directly in hostilities," as opposed to civilians, non-combatants in organized armed forces like medical and religious personnel, and members of non-organized armed forces who do not satisfy the criteria of Article 43 of Protocol I); Goldman, supra note 32, at 58-59 (indicating that the combatants' privilege is limited under customary and conventional international law to situations of interstate armed conflict, and that "lawful combatant[s] possessing [the] privilege must be given prisoner of war status upo_n capture and immunity from criminal prosecution under the domestic laws of [their] captorfs] for [their] hostile acts which do not violate the laws and customs of war").
70. See, e.g., Fourth Geneva Convention, supra note 20, pt. Ill (regulating the status and treatment of "protected persons" as defined under Article 4); PAENSON, supra note 28, at 112; Common Article 3, supra note 31 (applying to "[p]ersons taking no active part in the hostilities").
71. Common Article 3, supra note 31. See also Protocol D, supra note 23, art. 4. (applying to persons who do not "take part in hostilities").
72. See, e.g., Common Article 3, supra note 31 (not expressly defining "armed forces" or "combatants" but applying to "persons taking no active part in the hostilities" in a domestic armed con-flict); BOTHE ET AL., supra note 44, at 671-72 ("There is no concept in Protocol II of privileged combatants, immunity from legitimate acts of combat or prisoner of war status.").
73. See First Geneva Convention, supra note 14, art. 12; Second Geneva Convention, supra note 21, art. 12; Third Geneva Convention, supra note 21, arts. 13, 14; Fourth Geneva Convention, supra note 20, arts. 13, 15, 27.
74. See First Geneva Convention, supra note 14, art. 12; Second Geneva Convention, supra note 21, art. 12; Third Geneva Convention, supra note 21, arts. 13, 14; Fourth Geneva Convention, supra note 20, arts. 13, 15, 27.
75. See First Geneva Convention, supra note 14, art. 12; Second Geneva Convention, supra note 21, art. 12; Third Geneva Convention, supra note 21, arts. 13, 14; Fourth Geneva Convention, supra note 20, arts. 13, 15, 27; Common Article 3, supra note 31 (providing that persons taking no active part in the hostilities of a domestic armed conflict shall "in all circumstances be treated humanely").
76. See First Geneva Convention, supra note 21, art. 12; Second Geneva Convention, supra note 21, art. 12; Third Geneva Convention, supra note 21, arts. 13, 14; Fourth Geneva Convention, supra note 20, arts. 13, 15; Common Article 3, supra note 31 (providing that persons taking no active part in hostilities in a domestic armed conflict shall be treated "without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria").
77. The absence of specific due process requirements in Common Article 3 has given rise to dis-putes over whether the full panoply of procedural protections under the Geneva Conventions apply to prosecutions in armed conflicts covered by that Article. It can be argued, however, that because Protocol II is an elaboration on Common Article 3, and because the due process requirements under Article 6 of Protocol II closely reflect Articles 14 and 15 of the International Covenant on Civil and Political Rights, an accused in a domestic armed conflict enjoys the full measure of protections. See Antonio Cassese, The Geneva Protocols of J 977 on the Humanitarian Law of Armed Conflict and Customary International Law, 3 U.C.L.A. PAC. BASIN L. REV. 55, 98 (1984) (arguing that Article 75 of Protocol I lays out a '"Bill of Rights' for detained persons, reproducing international standards on the basic rights devolving on any human being, as they are embodied in such international instruments as the Universal Declaration on Human Rights and the 1966 U. N. Convenant on Civil and Political Rights").
78. See, e.g., Protocol I, supra note 22, art. 75 (providing due process protections for the criminal prosecution of persons lacking more favorable protection under any other provisions of the four Geneva Conventions or Protocol I); Protocol II, supra note 23, art. 6; Third Geneva Convention, supra note 21, arts. 99-108 (providing due process protections for the criminal prosecution of prisoners of war); Fourth Geneva Convention, supra note 20,- arts. 64-78 (providing due process protections for the criminal prosecution of persons in occupied territories).
79. See Third Geneva Convention, supra note 20, art. 21 ("The Detaining Power may subject prisoners of war to internment.").
80. See Fourth Geneva Convention, supra note 21, art. 42 ("The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary."); id. art. 43 ("Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose.").
81. See Protocol II, supra note 23, art. 5 (providing minimum protections to persons who are "deprived of their liberty for reasons related to the armed
82. See, e.g., INTERNATIONAL COMMISSION OF JURISTS, STATES OF EMERGENCY: THEIR IMPACT ON HUMAN RIGHTS 429 (1983), which concludes with respect to the rights of due process and the rights of detained or imprisoned persons that, [d]epriving an individual of his freedom without evidence of criminal conduct and without the prospect of a trial in which his guilt or innocence will eventually be established, is in itself a serious denial of human rights, justifiable only in extreme circumstances. When it cannot be avoided, care must be taken to avoid all unnecessary prejudice to the other rights of the detained person, including, [inter alia], the right of access to a lawyer, the right to visits by members of one's family, the right to medical care and adequate nutrition, the right to physical integrity and the right to be treated "with humanity and with respect for the inherent dignity of the human person".
83. See, e.g., Protocol I, supra note 22, art. 99; Protocol II, supra note 23, art. 25; First Geneva Convention, supra note 14, art. 63 (indicating that High Contracting Parties may denounce the Convention, but that a denunciation by a Power involved in an armed conflict shall not take effect until "peace has been concluded," and that despite any such denunciation a state shall remain bound by obligations which arise out of the "principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience."); Second Geneva Convention, supra note 21, art. 62; Third Geneva Convention, supra note 21, art. 142; Fourth Geneva Convention, supra note 20, art. 158.
84. See Robert K. Goldman, International Humanitarian Law and the Armed Conflicts in El Salvador and Nicaragua, 2 AM. U. J. INT'L L. & POL'Y 539, 551 (1993).
85. See First Geneva Convention, supra note 14, art. 1 (common to all four Geneva Conventions) [hereinafter Common Article ].
86. See First Geneva Convention, supra note 14, art. 45 ("Each Party to the conflict, acting through its Commander-in-Chief, shall ensure detailed execution of the preceding Articles, and provide for unforeseen cases, in conformity with the general principles of the present Convention."); see also Protocol I, supra note 22, art. 87; Second Geneva Convention, supra note 21, art. 46.
87. See Protocol I, supra note 22, art. 83; Protocol II, supra note 23, art. 19; First Geneva Convention, supra note 14, art. 47; Second Geneva Convention, supra note 21, art. 48; Third Geneva Convention, supra note 21, art. 127; Fourth Geneva Convention, supra note 20, art. 144.
88. See, e.g., Protocol I, supra note 22, arts. 86, 87 (providing for the responsibilities and potential personal liability of commanders for the enforcement and violations of humanitarian law); Cassese, supra note 58, at 102 (stating that there should be "no doubt that Article 86 [of Protocol I], concerning the responsibility of superiors for criminal offenses committed by their subordinates, is declaratory of cus-tomary law").
89. See, e.g., First Geneva Convention, supra note 14, arts. 49, 50 (requiring the High Contracting Parties_ to "undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches," and defining "grave breaches" as including, inter alia, willful killing, torture, and inhumane treatment); Second Geneva Convention, supra note 21, arts. 50, 51; Third Geneva Convention, supra note 21, arts. 129, 130; Fourth Geneva Convention, supra note 20, arts. 146, 147; Protocol I, supra note 22, art. 85, para. 3 (expanding the categories of "grave breaches"); see also Third Geneva Convention, supra note 21, art. 131; Fourth Geneva Convention, supra note 20, art. 148 (providing that states party to the Conventions cannot absolve themselves or other High Contracting Parties of grave breaches under the Conventions); GREEN, supra note 17, at 269 (indicating that many states have enacted war crimes legislation which, in turn, may invoke universal jurisdiction over crimes prohibited as a matter of customary international law or jus cogens).
90. See, e.g., First Geneva Convention, supra note 14, art. 49 (requiring High Contracting Parties to "take measures necessary for the suppression of all acts contrary to the provisions" of the Convention other than grave breaches); Second Geneva Convention, supra note 21, art. 50; Third Geneva Convention, supra note 21, art. 129; Fourth Geneva Convention, supra note 20, art. 146).
91. See Final Report of the Commission of Experts, supra note 38, para. 52 (concluding that Common Article 3 can probably be viewed as a statement of customary international law, but that the customary international law applicable to internal armed conflicts does not appear to include the concept of war crimes). But see S.C. Res. 955, U.M. SCOR,-3453d mtg., Annex, art. 4, U.N. Doc. S/RES/955 (1994) (providing the War Crimes Tribunal for Rwanda with the jurisdiction to "prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the protection of victims of war and of Additional Protocol II thereto," and thereby suggesting that violations of Common Article 3 and Protocol II constitute violations of customary international law for which there is universal criminal jurisdiction and individual criminal responsibility); Prosecutor v. Tadic, Case No. IT-94-AR72, 37 (App., Oct. 2, 1995), at para. 91 (concluding that Article 3 of the ICTY Statute provides the Tribunal with the jurisdiction to prosecute violations of Common Article 3 and other customary rules on internal armed conflicts).
92. See, e.g.. Protocol I, supra note 22, art. 91 (requiring Parties to pay compensation for any violations of the Conventions and Protocol I committed by their armed forces); Hague Convention IV, supra note 19, art. 3 ("A belligerent parry which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces."); SEYERSTED, supra note 7, at 227-31; but see Cassese, supra note 58, at 102 (suggesting that the duty of states to pay compensation under Article 91 of Protocol I makes "no improvement on the general rules laid out in the Hague Conventions").
93. See Protocol I, supra note 22, art. 99; Protocol II, supra note 23, art. 25; First Geneva Convention, supra note 14, art. 63; Second Geneva Convention, supra note 21, art. 62; Third Geneva Convention, supra note 21, art. 142; Fourth Geneva Convention, supra note 20, art. 158.
94. See Protocol I, supra note 22, art. 185; First Geneva Convention, supra note 14, art. 50; Second Geneva Convention, supra note 21, art. 51; Third Geneva Convention, supra note 21, art. 130; Fourth Geneva Convention, supra note 20, art. 147.
95. See, e.g.. First Geneva Convention, supra note 14, art 8; Second Geneva Convention, supra note 21, art. 10, Third Geneva Convention, supra note 21, art. 11; Fourth Geneva Convention, supra note 20, arts. 9, 11, 12 (providing for the appointment of "Protecting Powers" by the parties to an armed conflict, the application of the Conventions "with the cooperation and under the scrutiny of the Protecting Powers," and mediation by Protecting Powers of disputes between parties to a conflict, particularly in cases of disagreements as to the application or interpretation of the Conventions); 1 SOLF ET AL., supra note 41, at 240 (suggesting that the "Protecting Power" provisions have grown over the years to become a part of customary international law).
96. See, e.g.. Protocol I, supra note 22, art. 90 (providing for the establishment of an international fact-finding commission to investigate violations of the Geneva Conventions and Protocol I, upon the agreement of at least twenty High Contracting Parties); First Geneva Convention, supra note 14, art. 52 (providing for an inquiry procedure into violations of the Convention in a manner to be decided upon by the interested parties).
97. See, e.g., Secretary-General ICTY Report, supra note 12, paras. 6-9. Prosecutions for similar "international" or "universal" crimes giving rise to individual criminal responsibility before domestic or international tribunals are also provided for under the provisions of other international agreements. See, e.g., Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, art. 6, 78 U.N.T.S. 277, at 280 (entered into force Jan. 12, 1951) [hereinafter Genocide Convention], which reads, Persons charged with genocide or any of the other acts enumerated in Article III [of the Genocide Convention] shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction. See also Convention Against Torture and Other Cruel, Unusual, Inhumane or Degrading Treatment or Punishment, G.A. Res. 46, U.M. GAOR, 39th Sess., Supp. No. 51, arts. 4-9, U.N. Doc. A/39/51 (1985) [hereinafter Torture Convention].
98. See, e.g., Prosecutor v. Tadic, Case No. IT-94-AR72, 37 (App., Oct. 2, 1995), at para. 91; S.C. Res. 955, supra note 72, Annex, art. 4 (providing the War Crimes Tribunal for Rwanda with the jurisdiction to "prosecute persons committing or ordering to be committed serious violations of Article 3 Common to the Geneva Conventions . . . and of Additional Protocol II thereto"). But see Final Report of the Commission of Experts, supra note 38, para. 42 (concluding that "the only offenses committed in internal armed conflict for which universal jurisdiction exists are 'crimes against humanity' and geno-cide," but that the customary international law applicable to internal armed conflicts does not appear to include the concept of war crimes).
99. See, e.g., Protocol I, supra note 22, art. 5; First Geneva Convention, supra note 14, art. 9 (providing that "[t]he provisions of the present Convention constitute no obstacle to the humanitarian activities which the International Committee of the Red Cross or any other impartial humanitarian organization may, subject to the consent of the Parties to the conflict concerned, undertake for the protection of wounded and sick, medical personnel and chaplains, and for their relief); 1 Sou ET AL., supra note 41, at 73-99 (setting out a history of the International Committee of the Red Cross and its involvement in international and domestic armed conflicts); Cassese, supra note 58, at 99-100 (suggesting that the "Substitutes for the Protecting Powers" system provided for in the Geneva Conventions was a significant advance in humanitarian law, whereby "the detaining Power was duty-bound to accept . . . 'the offer of the services of a humanitarian organization such as . . . the ICRC to assume the humanitarian functions performed by Protecting Powers under the present Conventions,'" and suggesting that Protocol I, art. 5 appears to have done away with any automatic obligation on the part of states to accept any such offers by humanitarian organizations).
100. See NATIONAL IMPLEMENTATION OF INTERNATIONAL HUMANITARIAN LAW (Michael Bothe et al. eds., 1990) (providing an extensive analysis of the issues involved in attempting to secure the performance of obligations under international humanitarian law through national law).
101. See THE BLUE HELMETS, supra note 14, at 4, 8 (defining "peacekeeping" as "an operation involving military personnel, but without enforcement powers, undertaken by the United Nations to help maintain or restore international peace and security in areas of conflict," and describing the two main subtypes of peacekeeping operations: (1) observer missions, normally comprised of unarmed officers; and (2) peacekeeping forces, normally comprised of lightly armed forces); see also Anthony Clark Arend, The United Nations and the New World Order, 81 GEO. L.J. 491, 506 (1993) (describing peacekeeping as "the imposition of a neutral force in an area of conflict once the fighting has stopped").
102. See THE BLUE HELMETS, supra note 14, at 4, 8 (defining "peacekeeping" as "an operation involving military personnel, but without enforcement powers, undertaken by the United Nations to help maintain or restore international peace and security in areas of conflict," and describing the two main subtypes of peacekeeping operations: (1) observer missions, normally comprised of unarmed officers; and (2) peacekeeping forces, normally comprised of lightly armed forces); see also Anthony Clark Arend, The United Nations and the New World Order, 81 GEO. L.J. 491, 506 (1993) (describing peacekeeping as "the imposition of a neutral force in an area of conflict once the fighting has stopped").
103. See U.N. CHARTER art. 1 para. 1, art. 14 (defining one of the primary purposes of the United Nations as the maintenance of international peace and security, and mandating the General Assembly to "recommend measures for the peaceful adjustment of any situation . . . which it deems likely to impair the general welfare or friendly relations among nations").
104. See THE BLUE HELMETS, supra note 14, at 4 (indicating that peacekeeping operations were "largely improvised" as a way to control conflicts in the face of "differences which existed among . . . the five permanent members of the Security Council"); see also Rajendra Ramlogan, Towards a New Vision of World Security: The United Nations Security Council and the Lessons of Somalia, 16 HOUS. J. INT'L L. 213, 245 (1993); John Q. Blodgett, The Future of United Nations Peacekeeping, WASH. Q., Winter 1991, at 207-08 (suggesting that "peacekeeping . . . started with the monitoring by unarmed UN military observers of truce and cease fire agreements in Kashmir and the Middle East").
105. See THE BLUE HELMETS, supra note 14, at 4 (indicating that peacekeeping operations were "largely improvised" as a way to control conflicts in the face of "differences which existed among . . . the five permanent members of the Security Council"); see also Rajendra Ramlogan, Towards a New Vision of World Security: The United Nations Security Council and the Lessons of Somalia, 16 HOUS. J. INT'L L. 213, 245 (1993); John Q. Blodgett, The Future of United Nations Peacekeeping, WASH. Q., Winter 1991, at 207-08 (suggesting that "peacekeeping . . . started with the monitoring by unarmed UN military observers of truce and cease fire agreements in Kashmir and the Middle East").
106. See THE BLUE HELMETS, supra note 14, at 4 (indicating that peacekeeping operations were "largely improvised" as a way to control conflicts in the face of "differences which existed among . . . the five permanent members of the Security Council"); see also Rajendra Ramlogan, Towards a New Vision of World Security: The United Nations Security Council and the Lessons of Somalia, 16 HOUS. J. INT'L L. 213, 245 (1993); John Q. Blodgett, The Future of United Nations Peacekeeping, WASH. Q., Winter 1991, at 207-08 (suggesting that "peacekeeping . . . started with the monitoring by unarmed UN military observers of truce and cease fire agreements in Kashmir and the Middle East").
107. See THE BLUE HELMETS, supra note 14, at 4 (suggesting that there is no "particular theory or doctrine" behind peacekeeping operations); Houck, supra note 11, at 21 (noting that the Charter does not provide for peacekeeping operations and that related doctrines have not been codified in any convention).
108. See THE BLUE HELMETS, supra note 14, at 4, 6; see also Arend, supra note 82, at 506 (describing peacekeeping forces as "buffer force[s]" that separate parties to an armed conflict, supervise cease-fires and possibly facilitate troop withdrawal); John Mackinlay & Jarat Chopra, Second Generation Multilateral Operations, WASH. Q., Summer 1992, at 113-14 (indicating that peacekeeping became a "narrowly constrained activity" under the conditions characterizing its development).
109. See THE BLUE HELMETS, supra note 14, at 4, 6; see also Arend, supra note 82, at 506 (describing peacekeeping forces as "buffer force[s]" that separate parties to an armed conflict, supervise cease-fires and possibly facilitate troop withdrawal); John Mackinlay & Jarat Chopra, Second Generation Multilateral Operations, WASH. Q., Summer 1992, at 113-14 (indicating that peacekeeping became a "narrowly constrained activity" under the conditions characterizing its development).
110. See, e.g., U.N. CHARTER arts. 22,29 (mandating the General Assembly and Security Council to establish subsidiary organs "as [they deem] necessary for the performance of [their] functions"); U.N. Personnel Safety Convention, supra note 6 (defining "United Nations operation" and the members thereof); 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, 46th Sess., Annex, para. 4, U.N. Doc. A/46/185 (1991) [hereinafter Model Participation Agreement] ("The status agreement affirms the international nature of [the United Nations peacekeeping operation] as a subsidiary organ of the United Nations and defines the privileges and immunities, rights and facilities as well as the duties of [the United Nations peacekeeping operation] and its members."); id., para. 9 ("The functions of [the United Nations peacekeeping operation] are exclusively international and the personnel made available by [the Participating State] shall regulate their conduct with the interests of the United Nations only in view.").
111. See THE BLUE HELMETS, supra note 14, at 5-6; Brian Urquhart, Beyond the Sheriffs Posse, 32 SURVIVAL 196, 198 (1992) (setting out the requirements of peacekeeping operations to include "the consent of the parties involved in the conflict to the establishment of the operation, to its mandate, to its composition, and to its appointed commanding officer").
112. See THE BLUE HELMETS, supra note 14, at 5-6; Brian Urquhart, Beyond the Sheriffs Posse, 32 SURVIVAL 196, 198 (1992) (setting out the requirements of peacekeeping operations to include "the consent of the parties involved in the conflict to the establishment of the operation, to its mandate, to its composition, and to its appointed commanding officer").
113. See THE BLUE HELMETS, supra note 14, at 6 ("peacekeepers have no rights of enforcement and their use of force is limited to self-defense, as a last resort"); see also First Report of the Secretary-General on the Implementation of Security Council Resolution S/4387 of 14 July 1960, U.N. SCOR, 15th Sess., Supp. for July-Sept. 1960, para. 15, U.N. Doc. S/4389 (1960) [hereinafter Secretary-General Congo Report] (providing, with respect to the U.N. Force Operation in the Congo, that "[t]he basic element involved is clearly the prohibition against any initiative in the use of armed force," but also providing that U.N. peacekeeping forces could respond with force to "attempts to use force to make them withdraw from positions which they occupy under orders from the Commander" (emphasis in original)).
114. See THE BLUE HELMETS, supra note 14, at 6 ("peacekeepers have no rights of enforcement and their use of force is limited to self-defense, as a last resort"); see also First Report of the Secretary-General on the Implementation of Security Council Resolution S/4387 of 14 July 1960, U.N. SCOR, 15th Sess., Supp. for July-Sept. 1960, para. 15, U.N. Doc. S/4389 (1960) [hereinafter Secretary-General Congo Report] (providing, with respect to the U.N. Force Operation in the Congo, that "[t]he basic element involved is clearly the prohibition against any initiative in the use of armed force," but also providing that U.N. peacekeeping forces could respond with force to "attempts to use force to make them withdraw from positions which they occupy under orders from the Commander" (emphasis in original)).
115. See Houck, supra note 11; at 26 (indicating that, since peacekeeping operations act as a buffer, they must be neutral and be seen as neutral); see also THE BLUE HELMETS, supra note 14, at 6 (suggesting that a peacekeeping force will become a party to the conflict it has been set up to control or resolve if it takes sides in that conflict).
116. See THE BLUE HELMETS, supra note 14, at 6 (stating that the Security Council is normally responsible for establishing peacekeeping forces and for ensuring that "the operation is given a mandate which is clear, accepted by the parties concerned and practicable in the situation existing on the ground"); see also Mackinlay & Chopra, supra note 86, at 114 (indicating that the "confidence and full support" of the Security Council are "essential prerequisites" to the success of peacekeeping operations); Urquhart, supra note 88, at 198.
117. See THE BLUE HELMETS, supra note 14, at 7; see also Supplement to an Agenda for Peace, supra note 16, para. 35 (suggesting that it is very dangerous to ask a peacekeeping force to use offensive force when it lacks the necessary "composition, armament, logistical support and deployment" to do so effectively); Urquhart, supra note 88, at 198.
118. See THE BLUE HELMETS, supra note 14, at 7; see also Supplement to an Agenda for Peace, supra note 16, para. 35 (suggesting that it is very dangerous to ask a peacekeeping force to use offensive force when it lacks the necessary "composition, armament, logistical support and deployment" to do so effectively); Urquhart, supra note 88, at 198.
119. See Robert C.R. Siekmann, National Contingents in United Nations Peacekeeping Forces 120-26 (1984) (indicating that there are normally, but not always, three documents that outline relations between parties in a peacekeeping operation: a "status of forces" agreement between the United Nations and the host state or states; a "participation agreement" between contributing states and the United Nations; and "force regulations" promulgated by the contributing states and the United Nations that regulate the rules for the force in more detail, and which may be annexed to one or both of the other agreements).
120. See, e.g., Agreement Under Article IV of the Mutual Defense Treaty Between the United States of America and the Republic of Korea, Regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea, July 9, 1966, U.S.-Korea, 17 U.S.T. 1677, 674 U.N.T.S. 163 [hereinafter Korea Status of Forces Agreement]; Agreement Relating to the Legal Status, Facilities, Privileges and Immunities of the United Nations Organization in the Congo, Nov. 27, 1961, U.N.-Congo, 414 U.N.T.S. 231 [hereinafter Congo Status of Forces Agreement]; THE BLUE HELMETS, supra note 14, at 408 (explaining that in peacekeeping operations the Secretary-General "endeavours to conclude a status [of forces] agreement with the host Govemment(s) concerning the work of the operation").
121. THE BLUE HELMETS, supra note 14, at 6; see also, Secretary-General Congo Report, supra note 89.
122. THE BLUE HELMETS, supra note 14, at 6; see also, Secretary-General Congo Report, supra note 89.
123. See; U.N. CHARTER art. 105, para. 1 ("The organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the_ fulfillment of its purposes."); Congo Status of Forces Agreement, supra note 94; Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, 21 U.S.T. 1418, 1 U.N.T.S. 15 (providing officials of the United Nations with immunify from civil process in relation to words or conduct of officials in their official capacity); see also THE BLUE HELMETS, supra note 14, at 408 (stating that a peacekeeping operation, "as a subsidiary organ of the United Nations, enjoys the status, privileges and immunities of the Organization provided in Article 105 of the Charter of the United Nations and the Convention on the Privileges and Immunities of the United Nations"); C. WILFRED JENKS, INTERNATIONAL IMMUNITES 167 (1961) (stating that the "proper measure of international immunities is what is necessary for the impartial, efficient and economical discharge of the functions of the organization concerned").
124. See; U.N. CHARTER art. 105, para. 1 ("The organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the_ fulfillment of its purposes."); Congo Status of Forces Agreement, supra note 94; Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, 21 U.S.T. 1418, 1 U.N.T.S. 15 (providing officials of the United Nations with immunify from civil process in relation to words or conduct of officials in their official capacity); see also THE BLUE HELMETS, supra note 14, at 408 (stating that a peacekeeping operation, "as a subsidiary organ of the United Nations, enjoys the status, privileges and immunities of the Organization provided in Article 105 of the Charter of the United Nations and the Convention on the Privileges and Immunities of the United Nations"); C. WILFRED JENKS, INTERNATIONAL IMMUNITES 167 (1961) (stating that the "proper measure of international immunities is what is necessary for the impartial, efficient and economical discharge of the functions of the organization concerned").
125. See U.N. Personnel Safety Convention, supra note 6, arts. 1, 2, 4 (providing, inter alia, that its provisions apply to U.N. operations as defined under Article 1, including those operations undertaken for the purposes of maintaining or restoring international peace and security, but not to a U.N. 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," and requiring the host states and the United Nations to enter into agreements providing for privileges and immunities for the military and police components of the operations, but failing to address the status and obligations of members of U.N. peace operations wvhen they become directly involved in hostilities in internal armed conflicts) (emphasis added). For an overview of the drafting history and final provisions of the Convention, see Evan T. Bloom, Protecting Peacekeepers: The Convention on the Safety of United Nations and Associated Personnel, 89 AM. J. INT'L L. 621 (1995); Lepper, supra note 15.
126. U.N. Personnel Safety Convention, supra note 6, art. 7.
127. See, e.g., Model Participation Agreement, supra note 87; Siekmann, supra note 93, at 111 (indicating that the participation agreement is "the starting-point for any investigation into the legal position of the troop-contributing countries, national contingents and their members" which may be supplemented by "Force Regulations").
128. The notion of "control" in a multinational military context is generally subdivided into "operational control" and "political control." Operational control includes the regulation of such matters as the organization and direction of military forces. For the purposes of peacekeeping, this power is vested in the Secretary-General and Force Commander. Political control includes the right to authorize military force and approve any fundamental changes in its mandate. This authority is vested in the Security Council for peacekeeping missions. "Command," however, normally entails matters of more immediate control and direction over military force members, including discipline, pay and assignment of staff. This authority resides with the Force Commander and the national contingent commanders. See generally THE BLUE HELMETS, supra note 14, at 406-07; Houck, supra note 11, at 25-26 (indicating that the dual command system in U.N. operations, where the Force Commander shares command with a "Chief Administrative Officer" who handles financial and other administrative aspects of the operation, gives command "a somewhat different meaning in the peacekeeping context than in conventional military operations"); Bruce Russett & James S. Sutterlin, The U.N. in a New World Order, FOREIGN AFF., Spring 1991, at 69, 81 (suggesting that "command" in U.S. military terminology "applies to such matters as discipline, pay, morale and logistics," whereas "operational control" requires an overall commander to determine broader matters such as what ground sections different forces are confined to).
129. The notion of "control" in a multinational military context is generally subdivided into "operational control" and "political control." Operational control includes the regulation of such matters as the organization and direction of military forces. For the purposes of peacekeeping, this power is vested in the Secretary-General and Force Commander. Political control includes the right to authorize military force and approve any fundamental changes in its mandate. This authority is vested in the Security Council for peacekeeping missions. "Command," however, normally entails matters of more immediate control and direction over military force members, including discipline, pay and assignment of staff. This authority resides with the Force Commander and the national contingent commanders. See generally THE BLUE HELMETS, supra note 14, at 406-07; Houck, supra note 11, at 25-26 (indicating that the dual command system in U.N. operations, where the Force Commander shares command with a "Chief Administrative Officer" who handles financial and other administrative aspects of the operation, gives command "a somewhat different meaning in the peacekeeping context than in conventional military operations"); Bruce Russett & James S. Sutterlin, The U.N. in a New World Order, FOREIGN AFF., Spring 1991, at 69, 81 (suggesting that "command" in U.S. military terminology "applies to such matters as discipline, pay, morale and logistics," whereas "operational control" requires an overall commander to determine broader matters such as what ground sections different forces are confined to).
130. THE BLUE HELMETS, supra note 14, at 405.
131. See THE BLUE HELMETS, supra note 14, at 409 (describing the composition and chain of command in peacekeeping operations by a flowchart); see also Supplement to an Agenda for Peace, supra note 16, para. 38 (stressing the distinction between three levels of command and control in peacekeeping operations, "overall political direction" in the Security Council, "[e]xecutive direction and command" in the Secretary-General, and "[c]ommand in the field," "entrusted by the Secretary-General to the chief of mission (special representative or force commander/chief military observer")); Houck, supra note 11, at 22-23 (indicating that since the establishment of the United Nations Emergency Force, peacekeeping operations have been under the ultimate control of the Security Council, with the Secretary-General having day-to-day control over the forces with the assistance of a force commander and military advisor).
132. See THE BLUE HELMETS, supra note 14, at 409 (describing the composition and chain of command in peacekeeping operations by a flowchart); see also Supplement to an Agenda for Peace, supra note 16, para. 38 (stressing the distinction between three levels of command and control in peacekeeping operations, "overall political direction" in the Security Council, "[e]xecutive direction and command" in the Secretary-General, and "[c]ommand in the field," "entrusted by the Secretary-General to the chief of mission (special representative or force commander/chief military observer")); Houck, supra note 11, at 22-23 (indicating that since the establishment of the United Nations Emergency Force, peacekeeping operations have been under the ultimate control of the Security Council, with the Secretary-General having day-to-day control over the forces with the assistance of a force commander and military advisor).
133. See THE BLUE HELMETS, supra note 14, at 406.
134. See Siekmann, supra note 93, at 133-34 (describing the disciplinary provisions for various peacekeeping operations, including the United Nations Emergency Force I and the United Nations Operation in the Congo); see also THE BLUE HELMETS, supra note 14, at 407.
135. See infra note 133.
136. See Supplement to an Agenda for Peace, supra note 16, para. 35 (suggesting that the dynamics of enforcement are incompatible with the political process that peacekeeping is intended to facilitate, and that blurring the distinction between peacekeeping and peace enforcement "can undermine the viability of the peace-keeping operation and endanger its personnel").
137. Some authorities have narrowly defined "peace enforcement" as the use of force by specially-constituted and authorized U.N. forces. See, e.g., Supplement to an Agenda for Peace, Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security Council on 31 January 1992, U.N. Doc. S/23500, January 31, 1992, reprinted in 31 I.L.M. 953, 966 (1992) ("Peace enforcement units" are "more heavily armed than peace-keeping forces [and] undergo extensive prepara-tory training within their national forces," and are available in the absence of forces under Article 43 of the Charter to restore and maintain ceasefires and "on occasion exceed the mission of peace-keeping forces and the expectations of peacekeeping force contributors."); Houck, supra note 11, at 5 (noting that since 1945 the United Nations' system of command and control evolved outside of structures under the Charter to "meet the needs of two quite distinct U.N. missions: large-scale enforcement and peacekeeping," and that the post-Cold War mission of the United Nations has required forces with characteristics of both peacekeeping and large-scale enforcement); Ramlogan, supra note 84, at 249-50. Other authorities have defined peace enforcement more broadly to entail any authorized use of force by the United Nations. See, e.g., Gene M. Lyons, A New Collective Security: The United Nations and International Peace, 17 WASH. Q. 173,184-85 (1994); Mackinlay & Chopra, supra note 86, at 116-17 (describing a "continuum" of categories of U.N. military operations ranging from conventional observer missions to large-scale enforcement, based upon, inter alia, the intensity of force, the amount of assets employed in a given operation, the level of risk of conflict to U.N. contingents, and the mandate of the operation, such as maintaining law and order or the delivery of humanitarian assistance); Andrew S. Miller, Universal Soldiers: U.N. Standing Armies and the Legal Alternatives, 81 GEO. LJ. 773, 789-90 (1993) (suggesting that peace enforcement has traditionally referred to any case in which the United Nations exercises authority under Chapter VII of the Charter to use active military force to restore international peace and security).
138. Some authorities have narrowly defined "peace enforcement" as the use of force by specially-constituted and authorized U.N. forces. See, e.g., Supplement to an Agenda for Peace, Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security Council on 31 January 1992, U.N. Doc. S/23500, January 31, 1992, reprinted in 31 I.L.M. 953, 966 (1992) ("Peace enforcement units" are "more heavily armed than peace-keeping forces [and] undergo extensive prepara-tory training within their national forces," and are available in the absence of forces under Article 43 of the Charter to restore and maintain ceasefires and "on occasion exceed the mission of peace-keeping forces and the expectations of peacekeeping force contributors."); Houck, supra note 11, at 5 (noting that since 1945 the United Nations' system of command and control evolved outside of structures under the Charter to "meet the needs of two quite distinct U.N. missions: large-scale enforcement and peacekeeping," and that the post-Cold War mission of the United Nations has required forces with characteristics of both peacekeeping and large-scale enforcement); Ramlogan, supra note 84, at 249-50. Other authorities have defined peace enforcement more broadly to entail any authorized use of force by the United Nations. See, e.g., Gene M. Lyons, A New Collective Security: The United Nations and International Peace, 17 WASH. Q. 173,184-85 (1994); Mackinlay & Chopra, supra note 86, at 116-17 (describing a "continuum" of categories of U.N. military operations ranging from conventional observer missions to large-scale enforcement, based upon, inter alia, the intensity of force, the amount of assets employed in a given operation, the level of risk of conflict to U.N. contingents, and the mandate of the operation, such as maintaining law and order or the delivery of humanitarian assistance); Andrew S. Miller, Universal Soldiers: U.N. Standing Armies and the Legal Alternatives, 81 GEO. LJ. 773, 789-90 (1993) (suggesting that peace enforcement has traditionally referred to any case in which the United Nations exercises authority under Chapter VII of the Charter to use active military force to restore international peace and security).
139. Some authorities have narrowly defined "peace enforcement" as the use of force by specially-constituted and authorized U.N. forces. See, e.g., Supplement to an Agenda for Peace, Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security Council on 31 January 1992, U.N. Doc. S/23500, January 31, 1992, reprinted in 31 I.L.M. 953, 966 (1992) ("Peace enforcement units" are "more heavily armed than peace-keeping forces [and] undergo extensive prepara-tory training within their national forces," and are available in the absence of forces under Article 43 of the Charter to restore and maintain ceasefires and "on occasion exceed the mission of peace-keeping forces and the expectations of peacekeeping force contributors."); Houck, supra note 11, at 5 (noting that since 1945 the United Nations' system of command and control evolved outside of structures under the Charter to "meet the needs of two quite distinct U.N. missions: large-scale enforcement and peacekeeping," and that the post-Cold War mission of the United Nations has required forces with characteristics of both peacekeeping and large-scale enforcement); Ramlogan, supra note 84, at 249-50. Other authorities have defined peace enforcement more broadly to entail any authorized use of force by the United Nations. See, e.g., Gene M. Lyons, A New Collective Security: The United Nations and International Peace, 17 WASH. Q. 173,184-85 (1994); Mackinlay & Chopra, supra note 86, at 116-17 (describing a "continuum" of categories of U.N. military operations ranging from conventional observer missions to large-scale enforcement, based upon, inter alia, the intensity of force, the amount of assets employed in a given operation, the level of risk of conflict to U.N. contingents, and the mandate of the operation, such as maintaining law and order or the delivery of humanitarian assistance); Andrew S. Miller, Universal Soldiers: U.N. Standing Armies and the Legal Alternatives, 81 GEO. LJ. 773, 789-90 (1993) (suggesting that peace enforcement has traditionally referred to any case in which the United Nations exercises authority under Chapter VII of the Charter to use active military force to restore international peace and security).
140. See KIRGIS, supra note 6, at 880.
141. See, e.g., Louis Henkin, Humanitarian Intervention, in HUMAN RIGHTS: AN AGENDA FOR THE NEXT CENTURY 383 (Louis Henkin & John Lawrence Hargrove eds., 1994) (defining humanitarian intervention as "coercive intervention by states, singly or collectively, through economic sanctions or by use of military force, in response to gross violations of human rights," and indicating that the concept has also been applied to intervention by states to maintain order when a government has broken down, or to make it possible to deliver food and other humanitarian assistance in the absence of a government, the refusal of government assistance, or active resistance on the part of a government); KIRGIS, supra note 6, at 852.
142. See Report of the Secretary-General on the Work of the Organization, supra note 1; see also S.C. Res. 678 (1990), supra note 3.
143. See Supplement to an Agenda for Peace, supra note 16, para. 34 (noting that the requirement of parties' consent to conflicts has been forfeited by the United Nations in recent operations).
144. See, e.g., George Bush, Toward a New World Order, 1 U.S. Dep't St. Dispatch 91 (1990) (describing the "New World Order" as "an new era - freer from the threat of terror, stronger in the pursuit of justice, and more secure in the quest for peace" and as presenting a "rare opportunity to move toward a historic period of cooperation" between East and West, North and South); Arend, supra note 82, at 492 (noting that following the Cold War in which the United Nations played a "relatively minor" role in "high politics," the United Nations was "suddenly at the center of global affairs"); Mackinlay & Chopra, supra note 86, at 113 (indicating that the end of the Cold War marks the "rebirth" of the United Nations, as it has led to fewer political constraints on the Security Council and has enabled the United Nations to address a much wider range of tasks); Russett & Sutterlin, supra note 100, at 69 (indicating that the New World Order envisioned by Presidents Bush and Gorbachev would be founded on the rule of law, as well as on the principle of collective security, which "necessarily entails the possibility of military enforcement measures by the United Nations").
145. See, e.g., S.C. Res. 794, supra note 4 ("Determining that the magnitude of the human tragedy caused by the conflict in Somalia, further exacerbated by the obstacles being created to the distribution of humanitarian assistance, constitutes a threat to international peace and security.").
146. See, e.g., S.C. Res. 688, U.N. SCOR, 2982d mtg., U.N. Doc. S/RES/688 (1991) ("Gravely concerned by the repression of the Iraqi civilian population in many parts of Iraq, including most recently in Kurdish-populated areas, which led to a massive flow of refugees towards and across international frontiers and to cross-border incursions which threaten international peace and security."). "5 See, e.g., S.C. Res. 955, supra note 72 ("Expressing once again its grave concern at reports indicating that genocide and other systematic, widespread and flagrant violations of international humanitarian law have been committed in Rwanda" and "[d]etermining that this situation continues to constitute a threat to international peace and security.").
147. See Matthias J. Hergeden, ne "Constitutionalization " of the United Nations Security System, 27 VAND. J. TRANS'L L. 135, 137, 141 (1994) (describing concerns on the part of some members of the international community that some method of reviewing or controlling the manner in which the Security Council exercises its powers may be required).
148. This Article will not address the complex issues surrounding the legality or constitutionality of the authorization of the use of force by the Security Council, except to the extent that such use of force might potentially be found to contravene international humanitarian law. For discussions of the broader legal and practical concerns regarding the authorization of the use efforce by the Security Council, see, for example, Hergeden, supra note 116, at 137 (discussing the potential need for judicial review of Security Council decisions); Miller, supra note 107, at 778-82 (discussing the debates over the legal authority for the creation of a U.N. "standing army"); Oscar Schachter, United Nations Law, 88 AM. J. INT'L L. 1, 7-8 (1994) (discussing concerns by less powerful states "that the 'integrity' of the Charter may be impaired by political interpretations" of the Security Council); Burns H. Weston, Security Council Resolution 678 and Persian Gulf Decision-Making: Precarious Legitimacy, 85 AM. J. INT'L L. 516,518 (1991) (criticizing the decision-making process underlying Security Council Resolution 678 on Iraq). See generally Caron, supra note 13 (providing an extensive analysis of the legitimacy for the collective authority of the Security Council, focusing primarily upon the domination of the Security Council by a few states and the perceived unfairness of the veto process).
149. This Article will not address the complex issues surrounding the legality or constitutionality of the authorization of the use of force by the Security Council, except to the extent that such use of force might potentially be found to contravene international humanitarian law. For discussions of the broader legal and practical concerns regarding the authorization of the use efforce by the Security Council, see, for example, Hergeden, supra note 116, at 137 (discussing the potential need for judicial review of Security Council decisions); Miller, supra note 107, at 778-82 (discussing the debates over the legal authority for the creation of a U.N. "standing army"); Oscar Schachter, United Nations Law, 88 AM. J. INT'L L. 1, 7-8 (1994) (discussing concerns by less powerful states "that the 'integrity' of the Charter may be impaired by political interpretations" of the Security Council); Burns H. Weston, Security Council Resolution 678 and Persian Gulf Decision-Making: Precarious Legitimacy, 85 AM. J. INT'L L. 516,518 (1991) (criticizing the decision-making process underlying Security Council Resolution 678 on Iraq). See generally Caron, supra note 13 (providing an extensive analysis of the legitimacy for the collective authority of the Security Council, focusing primarily upon the domination of the Security Council by a few states and the perceived unfairness of the veto process).
150. See U.N. CHARTER arts. 2,25 (obligating member states to accept and carry out the decisions of the United Nations in general, and of the Security Council in particular, in accordance with the Charter); see also Caron, supra note 13, at 562 (suggesting that the Security Council legislates when it makes its decisions); Schachter, supra note 117, at 1 n. 2 ("measures [under chapter VII of the Charter] may take the form of mandatory decisions imposing obligations on all states or large groups of states").
151. See infra note 176 and accompanying text discussing the implications of Article 103 of the Charter on U.N. member state compliance with humanitarian law.
152. See generally SEYERSTED, supra note 7, at 32-41, 182-89; 1951 U.N.Y.B. 247-48, U.N. Sales No. 1952.1.30; 1952 U.N.Y.B. 184, 185, U.N. Sales No. 1953.1.30; Samuel Pollack, Self Doubts on Approaching Forty: The United Nations' Oldest and Only Collective Security Enforcement Army, the United Nations Command in Korea, 6 DICK. J. INT'L L. 1, 5-9 (1987).
153. See generally THE BLUE HELMETS, supra note 14, at 215-59; SEYERSTED, supra note 7, at 60-76, 189-97; SIMMONDS, supra note 7, at 25-33, 34-57 (analyzing the historical background of the Congo crisis and the context in which the United Nations' decisions were made).
154. See generally KIRGIS, supra note 6, at 642-89, 852-67 (discus 'ng the use of sanctions as an enforcement action and humanitarian intervention by the United Nation in the context of the invasion of Kuwait by Iraq); THE PERSIAN GULF WAR (Christopher C. Joyner ed., 1990).
155. See generally KIRGIS, supra note 6, at 802-03, 875-81 (discussing the peacekeeping operation and humanitarian intervention by the United Nations in Somalia); Ruth Gordon, United Nations Intervention in Internal Conflicts: Iraq, Somalia and Beyond, 15 MICH. J. INT'L L. 519, 550-57 (1994); Ramlogan, supra note 84, at 216-32; Susan M. Crawford, Note, U.N. Humanitarian Intervention in Somalia, 3 TRANSN'L L. & CONTEMP. PROB. 273, 274-80 (1993) (reviewing the history of the dispute in Somalia and the background to the United Nations' involvement).
156. See generally KIRGIS, supra note 6, at 802-03, 875-81 (discussing the peacekeeping operation and humanitarian intervention by the United Nations in Somalia); Ruth Gordon, United Nations Intervention in Internal Conflicts: Iraq, Somalia and Beyond, 15 MICH. J. INT'L L. 519, 550-57 (1994); Ramlogan, supra note 84, at 216-32; Susan M. Crawford, Note, U.N. Humanitarian Intervention in Somalia, 3 TRANSN'L L. & CONTEMP. PROB. 273, 274-80 (1993) (reviewing the history of the dispute in Somalia and the background to the United Nations' involvement).
157. See, e.g., S.C. Res. 83, U.N. SCOR, 474th mtg., U.N. Doc. S/i511 (1950) (stating that the Council "[r]ecommends that Members of the United Nations furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area"); S.C. Res. 161, U.N. SCOR, 942d mtg., U.N. Doc. S/4741 (1961) (providing that the Council urges "that the United Nations take immediately all appropriate measures to prevent the occurrence of civil war in the Congo, including arrangements for cease-fires, the halting of all military operations, the prevention of clashes, and the use of force, if necessary, in the last resort"); S.C. Res. 169, U.N. SCOR, 982d mtg., para. 4, U.N. Doc. S/5002 (1961) (stating that the Council "[authorizes the Secretary-General to take vigorous action, including the use of the requisite measure efforce, if necessary, for the immediate apprehension, detention pending legal action and/or deportation of all foreign military and paramilitary personnel and political advisers not under the United Nations Command, and mercenaries"); S.C. Res. 678, supra note 3, para. 2; Houck, supra note 11, at 15 (concluding that in Resolution 678 the Security Council "established a broad objective and authorized member states wide latitude in achieving it"); Weston, supra note 117, at 516-17, 532 (suggesting that the Security Council in Resolution 678 "made light of fundamental UN Charter precepts" in authorizing the use of force, and that the resolution and its implementation "were shaped more by a desire to go to war than by a desire to prevent one"); S.C. Res. 767, U.N. SCOR, 3101st mtg., U.N. Doc. S/RES/767 (1992) (affirming "that all officials of the United Nations and all experts on mission for the United Nations in Somalia enjoy the privileges and immunities provided for in the Convention on the Privileges and Immunities of the United Nations); S.C. Res. 794, supra note 4, para. 10 (providing that the Council, "[a]cting under Chapter VII of the Charter of the United Nations, authorizes the Secretary General and Member States cooperating to implement the offer . . . to use all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia"); S.C. Res. 837, supra note 4, para. 5.
158. S.C. Res. 83, supra note 124, at 5.
159. See, e.g., United States: Department of Defense Report to Congress on the Conduct of the Persian Gulf War-Appendix on the Role of the Law of War (1992), reprinted in 31 I.L.M. 612, 638-39 [hereinafter Defense Department Report] (suggesting that neutral states in the Persian Gulf War, such as Iran, would have been required to release any coalition military persons or equipment that entered their territory, rather than intern them as required under the traditional law of war principles regarding neutrals, in part because the Charter and Security Council resolutions "took precedence over" or "modified" traditional principles of neutrality); Mark Huband, MV Forces Deny Somali Detainees Legal Rights, THE GUARDIAN, Sept. 25,1993, at 14 (quoting the legal advisor to the U.N. Special Representative in Somalia as saying that one individual suspected of being an advisor to General Aideed was being held under the authority of Chapter VII and "no other legal code"); Keith B. Richburg, Somalis' Imprisonment Poses Questions about U.N. Role, WASH. POST, Nov. 7, 1993, at A45 (indicating that United Nations officials used Security Council Resolution 837 to justify the detention of Somali nationals during the search for General Aideed and the deprivation of access to counsel for those detainees or their families).
160. See, e.g., United States: Department of Defense Report to Congress on the Conduct of the Persian Gulf War-Appendix on the Role of the Law of War (1992), reprinted in 31 I.L.M. 612, 638-39 [hereinafter Defense Department Report] (suggesting that neutral states in the Persian Gulf War, such as Iran, would have been required to release any coalition military persons or equipment that entered their territory, rather than intern them as required under the traditional law of war principles regarding neutrals, in part because the Charter and Security Council resolutions "took precedence over" or "modified" traditional principles of neutrality); Mark Huband, MV Forces Deny Somali Detainees Legal Rights, THE GUARDIAN, Sept. 25,1993, at 14 (quoting the legal advisor to the U.N. Special Representative in Somalia as saying that one individual suspected of being an advisor to General Aideed was being held under the authority of Chapter VII and "no other legal code"); Keith B. Richburg, Somalis' Imprisonment Poses Questions about U.N. Role, WASH. POST, Nov. 7, 1993, at A45 (indicating that United Nations officials used Security Council Resolution 837 to justify the detention of Somali nationals during the search for General Aideed and the deprivation of access to counsel for those detainees or their families).
161. See, e.g., United States: Department of Defense Report to Congress on the Conduct of the Persian Gulf War-Appendix on the Role of the Law of War (1992), reprinted in 31 I.L.M. 612, 638-39 [hereinafter Defense Department Report] (suggesting that neutral states in the Persian Gulf War, such as Iran, would have been required to release any coalition military persons or equipment that entered their territory, rather than intern them as required under the traditional law of war principles regarding neutrals, in part because the Charter and Security Council resolutions "took precedence over" or "modified" traditional principles of neutrality); Mark Huband, MV Forces Deny Somali Detainees Legal Rights, THE GUARDIAN, Sept. 25,1993, at 14 (quoting the legal advisor to the U.N. Special Representative in Somalia as saying that one individual suspected of being an advisor to General Aideed was being held under the authority of Chapter VII and "no other legal code"); Keith B. Richburg, Somalis' Imprisonment Poses Questions about U.N. Role, WASH. POST, Nov. 7, 1993, at A45 (indicating that United Nations officials used Security Council Resolution 837 to justify the detention of Somali nationals during the search for General Aideed and the deprivation of access to counsel for those detainees or their families).
162. See infra note 133.
163. See, e.g., S.C. Res. 84, U.N. SCOR, 473d mtg, paras. 3-6, U.N. Doc. S/1588 (1950): 3. Recommends that all Members providing military forces and other assistance pursuant to [Security Council resolutions 82 and 83] make such forces and other assistance available to a unified command under the United States of America; 4. Requests the United States to designate the commander of such forces; 5. Authorizes the unified command at its discretion to use the United Nations flag in the course of operations against North Korean forces concurrently with the flags of the various nations participating; 6. Requests the United States to provide the Security Council with reports as appropriate on the course of action taken under the unified command. S.C. Res. 678, supra, note 3; see also Houck, supra note 11, at 19 (describing the U.N. operation in Iraq as a "managed coalition" model of command and control, where "the United Nations, after authorizing the operation, allows a dominant state, such as the United States, to manage - but not to dictate - political, strategic, and command decisions through an ad hoc and truly multinational coalition"); Mackinlay & Chopra, supra note 86, at 116 (suggesting that the Security Council did not have the capacity to take on the military responsibility necessary to respond to the Iraq crisis).
164. See SEYERSTED, supra note 7, at 41 (indicating that although the U.N. Command had "full operational direction and control over the national contingents, [it] took its orders from the U.S. government and not the United Nations); Houck, supra note 11, at 19 (classifying the Korean operation as a "single-state model" of U.N. command and control in which the United Nations allows a dominant state to exercise political control, strategic direction, and operational command over forces which are provided by a single state acting alone or the head of a multinational coalition); see also Eugene V. Rostow, Until What? Enforcement Action or Collective Self-Defense?, 85 AM. J. INTL L. 506, 508 (1991) (concluding that the U.N. forces in Korea were national forces carrying out a mission of collective self-defense under American direction, not a Security Council enforcement action); Russett & Sutterlin, supra note 100, at 73-74 (noting that the U.S. Commander of the U.N. Force in Korea never reported directly to the Security Council and that the Military Staff Committee and the Security Council did not have any role in directing the military operations of the unified command"). But see Military Situation in the Far East, Hearings before the Senate Subcommittee on Armed Services and Foreign Relations, 82nd Congress, 1st Sess., (1951), pt. 3, at 1937 (indicating that the United States took the position that the operation in Korea was a United Nations effort and not a "series of nations acting independently"); David J. Schefier, The Use of Force After the Cold War, in RIGHT V. MIGHT 109, 129-32, 149 (Louis Henkin et al., eds., 1991) (indicating that the Security Council did not directly command the force in the Gulf War at any time but that it passed resolutions authorizing individual states to take necessary action to achieve the mandate); Arend, supra note 82, at 508-09; Weston, supra note 117, at 516-17, 521 (suggesting that the Security Council avoided U.N. responsibility and accountability for the military force used in
165. See SEYERSTED, supra note 7, at 41 (indicating that although the U.N. Command had "full operational direction and control over the national contingents, [it] took its orders from the U.S. government and not the United Nations); Houck, supra note 11, at 19 (classifying the Korean operation as a "single-state model" of U.N. command and control in which the United Nations allows a dominant state to exercise political control, strategic direction, and operational command over forces which are provided by a single state acting alone or the head of a multinational coalition); see also Eugene V. Rostow, Until What? Enforcement Action or Collective Self-Defense?, 85 AM. J. INTL L. 506, 508 (1991) (concluding that the U.N. forces in Korea were national forces carrying out a mission of collective self-defense under American direction, not a Security Council enforcement action); Russett & Sutterlin, supra note 100, at 73-74 (noting that the U.S. Commander of the U.N. Force in Korea never reported directly to the Security Council and that the Military Staff Committee and the Security Council did not have any role in directing the military operations of the unified command"). But see Military Situation in the Far East, Hearings before the Senate Subcommittee on Armed Services and Foreign Relations, 82nd Congress, 1st Sess., (1951), pt. 3, at 1937 (indicating that the United States took the position that the operation in Korea was a United Nations effort and not a "series of nations acting independently"); David J. Schefier, The Use of Force After the Cold War, in RIGHT V. MIGHT 109, 129-32, 149 (Louis Henkin et al., eds., 1991) (indicating that the Security Council did not directly command the force in the Gulf War at any time but that it passed resolutions authorizing individual states to take necessary action to achieve the mandate); Arend, supra note 82, at 508-09; Weston, supra note 117, at 516-17, 521 (suggesting that the Security Council avoided U.N. responsibility and accountability for the military force used in Iraq, and noting that Resolution 678 did not confine the coalition's means of warfare); Houck, supra note 11, at 18-19 (indicating that there was more collaboration between the United States and the other coalition members in Iraq than there was during the Korean War).
166. See, e.g, S.C. Res. 814, U.K. SCOR, 3188th mtg., U.N. Doc. S/RES/814 (1993) (establishing UNOSOM II and providing it with a broad mandate that included nation building and the authority to take appropriate action against any factions that violated or threatened to violate the cession of hostilities); S.C. Res. 751, U.N. SCOR, 3069th mtg, paras. 2,3, U.N. Doc. S/RES/751 (1992) (establishing the United Nations Operation in Somalia (UNOSOM I) and authorizing immediate deployment of 50 observers to monitor the cease-fire in the capital); S.C. Res. 746, U.N. SCOR, 3060th mtg., paras. 6, 7, U.N. Doc. S/RES/746 (1992) (supporting "the Secretary-General's decision urgently to dispatch a technical team to Somalia" that would "establish mechanisms to ensure the unimpeded delivery of humanitarian assistance"); Report of the Secretary-General on the Situation in Somalia, U.N. SCOR, 47th Sess., Annex I, U.N. Doc. S/23829, Annex I (1992) (attaching agreements of March 1992 between the United Nations and faction leaders in Somalia to the initial deployment of the United Nations observer mission); Secretary-General Congo Report, supra note 89, para. 15 (stipulating that ONUC forces would be under the exclusive command of the Security Council and that the members could never take the initiative in the use of force, but were entitled to '"respond with force to an attack with arms, including attempts to use force to make them withdraw from positions which they occupy under orders from the Commander,' under the authority of the Security Council"); THE BLUE HELMETS, supra note 14, at 215 (indicating that ONUC was established as a peacekeeping force with most of the traditional characteristics of such a force).
167. See, e.g, S.C. Res. 814, U.K. SCOR, 3188th mtg., U.N. Doc. S/RES/814 (1993) (establishing UNOSOM II and providing it with a broad mandate that included nation building and the authority to take appropriate action against any factions that violated or threatened to violate the cession of hostilities); S.C. Res. 751, U.N. SCOR, 3069th mtg, paras. 2,3, U.N. Doc. S/RES/751 (1992) (establishing the United Nations Operation in Somalia (UNOSOM I) and authorizing immediate deployment of 50 observers to monitor the cease-fire in the capital); S.C. Res. 746, U.N. SCOR, 3060th mtg., paras. 6, 7, U.N. Doc. S/RES/746 (1992) (supporting "the Secretary-General's decision urgently to dispatch a technical team to Somalia" that would "establish mechanisms to ensure the unimpeded delivery of humanitarian assistance"); Report of the Secretary-General on the Situation in Somalia, U.N. SCOR, 47th Sess., Annex I, U.N. Doc. S/23829, Annex I (1992) (attaching agreements of March 1992 between the United Nations and faction leaders in Somalia to the initial deployment of the United Nations observer mission); Secretary-General Congo Report, supra note 89, para. 15 (stipulating that ONUC forces would be under the exclusive command of the Security Council and that the members could never take the initiative in the use of force, but were entitled to '"respond with force to an attack with arms, including attempts to use force to make them withdraw from positions which they occupy under orders from the Commander,' under the authority of the Security Council"); THE BLUE HELMETS, supra note 14, at 215 (indicating that ONUC was established as a peacekeeping force with most of the traditional characteristics of such a force).
168. See, e.g., S.C. Res. 814, supra note 130; Letter Dated 29 November 1992 from the Secretary-General Addressed to the President of the Security Council, U.N. SCOR, 47th Sess., U.N. Doc. S/24868 (1992) (indicating that food and other supplies were looted and aid agencies had to pay protection money in order to get supplies through, and suggesting the use of force as a possible U.N. response); S.C. Res. 169, supra note 124; THE BLUE HELMETS, supra note 14, at 240-48 (indicating that ONUC assumed responsibilities, such as detaining and removing mercenaries, that went beyond normal peacekeeping duties).
169. See, e.g, S.C. Res. 794, supra note 4, paras. 12-14,18 (providing that the force authorized under the resolution was to be exercised by forces under "unified command and control" of one member state, the United States, but providing the United Nations with some supervisory capabilities, such as requiring the establishment of "appropriate mechanisms for coordination between the United Nations and their military forces[] . . . an ad hoc commission composed of members of the Security Council to report to the Council on the implementation of the present resolution," and regular reports from the Secretary-General); Secretary-General Congo Report, supra note 89, para. 7 (indicating that ONUC was "necessarily under the exclusive command of the United Nations, vested in the Secretary-General under the control of the Security Council"); THE BLUE HELMETS, supra note 14, at 225 (noting that the Secretary-General established an "Advisory Committee, composed of Member States which had contributed forces to [ONUC], to advise him on future policy on the Congo"). But 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, U.N. SCOR, paras. 192-93, U.N. Doc. S/1994/653 (1994) [hereinafter Report of the Commission of Inquiry in Somalia] (suggesting that the United Nations' problems in Somalia were rendered more complex because some U.S. forces had an effect on the operation but were outside of U.N. control); Houck, supra note 11, at 36 (noting that the United States continued to retain command over its forces participating in UNOSOM II, but delegated some control to the U.N. command as necessary).
170. See, e.g, S.C. Res. 794, supra note 4, paras. 12-14,18 (providing that the force authorized under the resolution was to be exercised by forces under "unified command and control" of one member state, the United States, but providing the United Nations with some supervisory capabilities, such as requiring the establishment of "appropriate mechanisms for coordination between the United Nations and their military forces[] . . . an ad hoc commission composed of members of the Security Council to report to the Council on the implementation of the present resolution," and regular reports from the Secretary-General); Secretary-General Congo Report, supra note 89, para. 7 (indicating that ONUC was "necessarily under the exclusive command of the United Nations, vested in the Secretary-General under the control of the Security Council"); THE BLUE HELMETS, supra note 14, at 225 (noting that the Secretary-General established an "Advisory Committee, composed of Member States which had contributed forces to [ONUC], to advise him on future policy on the Congo"). But 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, U.N. SCOR, paras. 192-93, U.N. Doc. S/1994/653 (1994) [hereinafter Report of the Commission of Inquiry in Somalia] (suggesting that the United Nations' problems in Somalia were rendered more complex because some U.S. forces had an effect on the operation but were outside of U.N. control); Houck, supra note 11, at 36 (noting that the United States continued to retain command over its forces participating in UNOSOM II, but delegated some control to the U.N. command as necessary).
171. See, e.g., Report of the Commission of Inquiry in Somalia, supra note 132, paras. 243-47 (concluding that several national contingents in Somalia still followed home authority orders rather than those of the U.N. force commander, and that "[t]he principle of unified command applicable to United Nations peace-keeping operations is even more essential in peace enforcement operations" due to the need for quick responses); Supplement to an Agenda for Peace, supra note 16, para. 41 (warning that permitting "troop contributing Governments to provide guidance, let alone give orders, to their contingents on operational matters [in peacekeeping operations] creates division within the force . . . increases the risk of casualties . . . [and] undermine[s] the operation's legitimacy and effectiveness" by creating "the impression amongst the parties that the operation is serving the policy objectives of the contributing Governments rather than the collective will of the United Nations"); SIMMONDS, supra note 7, at 156, 194-95 (suggesting that the division of responsibilities between the United Nations and national contingent commanders over the discipline of ONUC forces confused the chain of responsibility that is required to apply the laws of war effectively).
172. See, e.g., Report of the Commission of Inquiry in Somalia, supra note 132, paras. 243-47 (concluding that several national contingents in Somalia still followed home authority orders rather than those of the U.N. force commander, and that "[t]he principle of unified command applicable to United Nations peace-keeping operations is even more essential in peace enforcement operations" due to the need for quick responses); Supplement to an Agenda for Peace, supra note 16, para. 41 (warning that permitting "troop contributing Governments to provide guidance, let alone give orders, to their contingents on operational matters [in peacekeeping operations] creates division within the force . . . increases the risk of casualties . . . [and] undermine[s] the operation's legitimacy and effectiveness" by creating "the impression amongst the parties that the operation is serving the policy objectives of the contributing Governments rather than the collective will of the United Nations"); SIMMONDS, supra note 7, at 156, 194-95 (suggesting that the division of responsibilities between the United Nations and national contingent commanders over the discipline of ONUC forces confused the chain of responsibility that is required to apply the laws of war effectively).
173. See, e.g., Report of the Commission of Inquiry in Somalia, supra note 132, paras. 220-21, 241 (expressing concern over the lack of U.N. expertise, coordination and resources during its involvement in Somalia); SIMMONDS, supra note 7, at 161 (indicating that some member states participating in ONUC were not satisfied with the policy and strategic direction provided by the Secretary-General and threatened to disobey U.N. Command orders); Gordon, supra note 123, at 586 (suggesting that the U.N. troops in Somalia lacked proper training for their tasks); Richburg, supra note 126 (indicating that at the time that the U.N. forces in Somalia were detaining people in the search for Aideed, the rules under which the United Nations held them had not yet been clarified).
174. See, e.g., Pollack, supra note 120, at 13 (suggesting that there was "no doubt" that the hostilities in Korea constituted "war" in the de facto sense).
175. See, e.g., SIMMONDS, supra note 7, at 184 (indicating that through an ad hoc agreement both the participating states of the U.N. Command as well as of China and North Korea accepted as binding upon themselves the Third Geneva Convention); see also GREEN, supra note 17, at 320 n. 6 (stating that "when the Korean conflict began none of the parties involved had yet become bound by the [Geneva] Conventions," but that "[s]tatements were . . . made on behalf of the UN Command and the Korean and Chinese authorities that they would abide by the terms of those Conventions").
176. See, e.g., Defense Department Report, supra note 126, at 615-17 (outlining the portions of humanitarian law that the United States considered as applicable to it and Iraq during the Persian Gulf War, including, inter alia, the Hague Convention IV, the Genocide Convention, the four Geneva Conventions, and possibly parts of Protocol I that may bind states as a matter of customary international law); Theodor Meron, Agora: The Gulf Crisis in International and Foreign Relations Law, Prisoners of War, Civilians and Diplomats in the Gulf Crisis, 85 AM J. INT'L L. 104 (1994) (concluding that the four Geneva Conventions were activated during the Persian Gulf War by the armed conflict between Iraq and Kuwait and the occupation of Kuwait).
177. See, e.g., SEYERSTED, supra note 7, at 187 (concluding that the U.N. Command in Korea did not consider itself bound by all of the provisions of the four Geneva Conventions, in part because Korea was not yet a party to those instruments, but noting that "no State providing contingents maintained that the United Nations collective action was not governed by the general laws of war"); SIMMONDS, supra note 7, at 181-84 (indicating that the United Nations was not a party to the agreements between the participating states of the U.N. Command and the parties to the conflict to be bound by the Third Geneva Convention, but noting that the representatives of the Soviet Union and North Korea communicated their allegations of atrocities and other violations of the laws of war directly to the United Nations); Taubenfeld, supra note 7, at 678.
178. Third Geneva Convention, supra note 21, art. 12 ("Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them. Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them."); DOCUMENTS ON PRISONERS OF WAR 564 (Naval War College Int'l L. Studies Vol. 60) (Howard S. Levine ed., 1979) (indicating that the U.N. Command in Korea "made the decision to consider itself to be the Detaining Power for all prisoners of war captured by the troops of the various national elements which had been made available to the [United Nations Command]," contrary to the "normal" arrangement in a military alliance where the capturing country is the detaining power and the prisoners are subject to that country's laws).
179. See Defense Department Report, supra note 126, at 627-30 (indicating that prisoners captured during the Persian Gulf War by the U.S., the U.K., and France were maintained in a U.S. prisoner of war camp, that prisoners captured by the remaining Coalition partners were maintained at a Saudi Arabian camp, and that a U.S. National Prisoner of War Information system was put into operation); Weston, supra note 117, at 533 (citing Secretary-General Pérez de Cellar's concerns over the absence of U.N. control over or input in the military activities in Iraq).
180. See SIMMONDS, supra note 7, at 176, 183, 185 (indicating that the ONUC Regulations provided that "[t]he Force shall observe the general principles and spirit of the general international Conventions applicable to the conduct of military personnel," but also indicating that the United Nations refused requests "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"); see also THE BLUE HELMETS, supra note 14, at 248; SEYERSTED, supra note 7, at 190-91.
181. See Further Report of the Secretary-General Submitted in Pursuance of Paragraphs 18 and 19 of Resolution 794 (1992), U.N. SCOR, 48th Sess., para. 88, U.N. Doc. S/25354 (1993) (providing that "[t]he rules of engagement [will] be defined by the UNOSOM II Force Commander. They [will] authorize and direct commanders to take certain specific actions if they [are] judged necessary to fulfill the mandate."); Mallan, supra note 11 (suggesting that Canada, rather than the United Nations, prepared the rules of engagement under which its forces operated in Somalia).
182. See, e.g., Report of the Commission of Inquiry in Somalia, supra note 132, paras. 104-25 (concluding that the fighting between UNOSOM II and General Aideed's forces following the June 5, 1993 attack on Pakistani peacekeepers amounted to a 'Virtual war situation"); THE BLUE HELMETS, supra note 14, at 233-35, 247-48 (outlining numerous incidents in which ONUC forces were engaged in military combat with Katangese forces and mercenaries, where ONUC gained control over territory, and where ONUC force members were killed); SIMMONDS, supra note 7, at 176-77 (concluding that the ONUC engaged in numerous instances of "warfare," but noting that the military encounters were local-ized and did not involve all of the U.N. and Congolese forces); Marianne von Grünigen, Neutrality and Peacekeeping, in UNITED NATIONS PEACEKEEPING - LEGAL ISSUES 139 (A. Cassese ed., 1978); John Lancaster, U.S. Raid Was Based on a Tip: Troops Miss Warlord, Detain U.N. Workers, WASH. POST, Aug. 31, 1993, at A1 (describing an attempt by U.S. rangers to capture Aideed by storming buildings and detaining the occupants); David C. Morrison, Make Peace - or Else, 40 THE NAT'L J. 2250, 2252 (1992) (indicating that at the time that the United Nations pulled out of the Congo in 1964, 234 U.N. soldiers were dead, including 44 Ghanaians massacred by Congolese forces); Paul Watson, Aideed Seeks Hostages, American Office Warns, TORONTO STAR, Sept. 24, 1993, at A16 [hereinafter Watson, Hostages] (detailing the extent to which U.N. forces were battling with Somali militiamen, using weapons including mortar bombs and cannons); Paul Watson, Somali Boss's Detention Puts U.N. on Spot, TORONTO STAR, Sept. 23, 1993, at A16 [hereinafter Watson, Detention] (describing an attack by U.S. forces in Somalia in which helicopters destroyed a Somali house and killed the Somali occupants).
183. See, e.g., Report of the Commission of Inquiry in Somalia, supra note 132, paras. 104-25 (concluding that the fighting between UNOSOM II and General Aideed's forces following the June 5, 1993 attack on Pakistani peacekeepers amounted to a 'Virtual war situation"); THE BLUE HELMETS, supra note 14, at 233-35, 247-48 (outlining numerous incidents in which ONUC forces were engaged in military combat with Katangese forces and mercenaries, where ONUC gained control over territory, and where ONUC force members were killed); SIMMONDS, supra note 7, at 176-77 (concluding that the ONUC engaged in numerous instances of "warfare," but noting that the military encounters were local-ized and did not involve all of the U.N. and Congolese forces); Marianne von Grünigen, Neutrality and Peacekeeping, in UNITED NATIONS PEACEKEEPING - LEGAL ISSUES 139 (A. Cassese ed., 1978); John Lancaster, U.S. Raid Was Based on a Tip: Troops Miss Warlord, Detain U.N. Workers, WASH. POST, Aug. 31, 1993, at A1 (describing an attempt by U.S. rangers to capture Aideed by storming buildings and detaining the occupants); David C. Morrison, Make Peace - or Else, 40 THE NAT'L J. 2250, 2252 (1992) (indicating that at the time that the United Nations pulled out of the Congo in 1964, 234 U.N. soldiers were dead, including 44 Ghanaians massacred by Congolese forces); Paul Watson, Aideed Seeks Hostages, American Office Warns, TORONTO STAR, Sept. 24, 1993, at A16 [hereinafter Watson, Hostages] (detailing the extent to which U.N. forces were battling with Somali militiamen, using weapons including mortar bombs and cannons); Paul Watson, Somali Boss's Detention Puts U.N. on Spot, TORONTO STAR, Sept. 23, 1993, at A16 [hereinafter Watson, Detention] (describing an attack by U.S. forces in Somalia in which helicopters destroyed a Somali house and killed the Somali occupants).
184. See, e.g., Report of the Commission of Inquiry in Somalia, supra note 132, paras. 104-25 (concluding that the fighting between UNOSOM II and General Aideed's forces following the June 5, 1993 attack on Pakistani peacekeepers amounted to a 'Virtual war situation"); THE BLUE HELMETS, supra note 14, at 233-35, 247-48 (outlining numerous incidents in which ONUC forces were engaged in military combat with Katangese forces and mercenaries, where ONUC gained control over territory, and where ONUC force members were killed); SIMMONDS, supra note 7, at 176-77 (concluding that the ONUC engaged in numerous instances of "warfare," but noting that the military encounters were local-ized and did not involve all of the U.N. and Congolese forces); Marianne von Grünigen, Neutrality and Peacekeeping, in UNITED NATIONS PEACEKEEPING - LEGAL ISSUES 139 (A. Cassese ed., 1978); John Lancaster, U.S. Raid Was Based on a Tip: Troops Miss Warlord, Detain U.N. Workers, WASH. POST, Aug. 31, 1993, at A1 (describing an attempt by U.S. rangers to capture Aideed by storming buildings and detaining the occupants); David C. Morrison, Make Peace - or Else, 40 THE NAT'L J. 2250, 2252 (1992) (indicating that at the time that the United Nations pulled out of the Congo in 1964, 234 U.N. soldiers were dead, including 44 Ghanaians massacred by Congolese forces); Paul Watson, Aideed Seeks Hostages, American Office Warns, TORONTO STAR, Sept. 24, 1993, at A16 [hereinafter Watson, Hostages] (detailing the extent to which U.N. forces were battling with Somali militiamen, using weapons including mortar bombs and cannons); Paul Watson, Somali Boss's Detention Puts U.N. on Spot, TORONTO STAR, Sept. 23, 1993, at A16 [hereinafter Watson, Detention] (describing an attack by U.S. forces in Somalia in which helicopters destroyed a Somali house and killed the Somali occupants).
185. See, e.g., Report of the Commission of Inquiry in Somalia, supra note 132, paras. 104-25 (concluding that the fighting between UNOSOM II and General Aideed's forces following the June 5, 1993 attack on Pakistani peacekeepers amounted to a 'Virtual war situation"); THE BLUE HELMETS, supra note 14, at 233-35, 247-48 (outlining numerous incidents in which ONUC forces were engaged in military combat with Katangese forces and mercenaries, where ONUC gained control over territory, and where ONUC force members were killed); SIMMONDS, supra note 7, at 176-77 (concluding that the ONUC engaged in numerous instances of "warfare," but noting that the military encounters were local-ized and did not involve all of the U.N. and Congolese forces); Marianne von Grünigen, Neutrality and Peacekeeping, in UNITED NATIONS PEACEKEEPING - LEGAL ISSUES 139 (A. Cassese ed., 1978); John Lancaster, U.S. Raid Was Based on a Tip: Troops Miss Warlord, Detain U.N. Workers, WASH. POST, Aug. 31, 1993, at A1 (describing an attempt by U.S. rangers to capture Aideed by storming buildings and detaining the occupants); David C. Morrison, Make Peace - or Else, 40 THE NAT'L J. 2250, 2252 (1992) (indicating that at the time that the United Nations pulled out of the Congo in 1964, 234 U.N. soldiers were dead, including 44 Ghanaians massacred by Congolese forces); Paul Watson, Aideed Seeks Hostages, American Office Warns, TORONTO STAR, Sept. 24, 1993, at A16 [hereinafter Watson, Hostages] (detailing the extent to which U.N. forces were battling with Somali militiamen, using weapons including mortar bombs and cannons); Paul Watson, Somali Boss's Detention Puts U.N. on Spot, TORONTO STAR, Sept. 23, 1993, at A16 [hereinafter Watson, Detention] (describing an attack by U.S. forces in Somalia in which helicopters destroyed a Somali house and killed the Somali occupants).
186. See, e.g., Report of the Commission of Inquiry in Somalia, supra note 132, paras. 104-25 (concluding that the fighting between UNOSOM II and General Aideed's forces following the June 5, 1993 attack on Pakistani peacekeepers amounted to a 'Virtual war situation"); THE BLUE HELMETS, supra note 14, at 233-35, 247-48 (outlining numerous incidents in which ONUC forces were engaged in military combat with Katangese forces and mercenaries, where ONUC gained control over territory, and where ONUC force members were killed); SIMMONDS, supra note 7, at 176-77 (concluding that the ONUC engaged in numerous instances of "warfare," but noting that the military encounters were local-ized and did not involve all of the U.N. and Congolese forces); Marianne von Grünigen, Neutrality and Peacekeeping, in UNITED NATIONS PEACEKEEPING - LEGAL ISSUES 139 (A. Cassese ed., 1978); John Lancaster, U.S. Raid Was Based on a Tip: Troops Miss Warlord, Detain U.N. Workers, WASH. POST, Aug. 31, 1993, at A1 (describing an attempt by U.S. rangers to capture Aideed by storming buildings and detaining the occupants); David C. Morrison, Make Peace - or Else, 40 THE NAT'L J. 2250, 2252 (1992) (indicating that at the time that the United Nations pulled out of the Congo in 1964, 234 U.N. soldiers were dead, including 44 Ghanaians massacred by Congolese forces); Paul Watson, Aideed Seeks Hostages, American Office Warns, TORONTO STAR, Sept. 24, 1993, at A16 [hereinafter Watson, Hostages] (detailing the extent to which U.N. forces were battling with Somali militiamen, using weapons including mortar bombs and cannons); Paul Watson, Somali Boss's Detention Puts U.N. on Spot, TORONTO STAR, Sept. 23, 1993, at A16 [hereinafter Watson, Detention] (describing an attack by U.S. forces in Somalia in which helicopters destroyed a Somali house and killed the Somali occupants).
187. See, e.g., Report of the Commission of Inquiry in Somalia, supra note 132, paras. 104-25 (concluding that the fighting between UNOSOM II and General Aideed's forces following the June 5, 1993 attack on Pakistani peacekeepers amounted to a 'Virtual war situation"); THE BLUE HELMETS, supra note 14, at 233-35, 247-48 (outlining numerous incidents in which ONUC forces were engaged in military combat with Katangese forces and mercenaries, where ONUC gained control over territory, and where ONUC force members were killed); SIMMONDS, supra note 7, at 176-77 (concluding that the ONUC engaged in numerous instances of "warfare," but noting that the military encounters were local-ized and did not involve all of the U.N. and Congolese forces); Marianne von Grünigen, Neutrality and Peacekeeping, in UNITED NATIONS PEACEKEEPING - LEGAL ISSUES 139 (A. Cassese ed., 1978); John Lancaster, U.S. Raid Was Based on a Tip: Troops Miss Warlord, Detain U.N. Workers, WASH. POST, Aug. 31, 1993, at A1 (describing an attempt by U.S. rangers to capture Aideed by storming buildings and detaining the occupants); David C. Morrison, Make Peace - or Else, 40 THE NAT'L J. 2250, 2252 (1992) (indicating that at the time that the United Nations pulled out of the Congo in 1964, 234 U.N. soldiers were dead, including 44 Ghanaians massacred by Congolese forces); Paul Watson, Aideed Seeks Hostages, American Office Warns, TORONTO STAR, Sept. 24, 1993, at A16 [hereinafter Watson, Hostages] (detailing the extent to which U.N. forces were battling with Somali militiamen, using weapons including mortar bombs and cannons); Paul Watson, Somali Boss's Detention Puts U.N. on Spot, TORONTO STAR, Sept. 23, 1993, at A16 [hereinafter Watson, Detention] (describing an attack by U.S. forces in Somalia in which helicopters destroyed a Somali house and killed the Somali occupants).
188. See Model Participation Agreement, supra note 87, para. 28, which provides: [The United Nations peacekeeping operation] shall observe and respect the principles and 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.
189. See, e.g., SIMMONDS, supra note 7, at 190 (suggesting that the U.N. forces in the Congo were responsible for some infractions of the Geneva Conventions).
190. See Cherney, supra note 10 (documenting the beating death of a 16-year-old Somali who was a suspected looter in Ae Belet Huen camp of the Canadian contingent for UNOSOM, pursuant to orders that intruders in the camp could be abused); see also Phinjo Gombu, Soldier Says He Feared for Somali Prisoners, TORONTO STAR, Oct. 19, 1994, at A12 (reporting on Canadian court martial testimony by a Sergeant who feared for the safety of prisoners at the Belet Huen camp, because of orders by superiors that prisoners could be abused).
191. For a general overview of events leading up to the search by the United Nations for General Aideed, see Report Pursuant to Paragraph 5 of Security Council Resolution 837 (1993) on the Investigation into the 5 June 1993 Attack on United Nations Forces in Somalia Conducted on Behalf of the Secretary-General, U.N. SCOR, 48th Sess., Annex, U.K. Doc. S/26351 (1993) (concluding that the attack against U.N. peacekeepers by General Aideed's forces constituted an international crime and a violation of provisions of the 1962 Somali code, and finding, on the basis of the evidence available, that Aideed authorized the attack, which constituted a wounding or killing of non-combatants under international humanitarian law); see also Report of the Commission of Inquiry in Somalia, supra note 132 (concluding that the Somali National Alliance (SNA) orchestrated the attacks on the U.N. peacekeepers on 5 June 1993, but not concluding that they were necessarily preplanned and premeditated).
192. For a general overview of events leading up to the search by the United Nations for General Aideed, see Report Pursuant to Paragraph 5 of Security Council Resolution 837 (1993) on the Investigation into the 5 June 1993 Attack on United Nations Forces in Somalia Conducted on Behalf of the Secretary-General, U.N. SCOR, 48th Sess., Annex, U.K. Doc. S/26351 (1993) (concluding that the attack against U.N. peacekeepers by General Aideed's forces constituted an international crime and a violation of provisions of the 1962 Somali code, and finding, on the basis of the evidence available, that Aideed authorized the attack, which constituted a wounding or killing of non-combatants under international humanitarian law); see also Report of the Commission of Inquiry in Somalia, supra note 132 (concluding that the Somali National Alliance (SNA) orchestrated the attacks on the U.N. peacekeepers on 5 June 1993, but not concluding that they were necessarily preplanned and premeditated).
193. See Huband, supra note 126; see also Richburg, supra note 126 (indicating that Somalis detained in the search for Aideed were not allowed to see lawyers, were not charged with any offenses, had no right to appeal their imprisonment, and that the United Nations had not yet clarified the rules under which it held the prisoners); Watson, Detention, supra note 143; Watson, Hostages, supra note 143; John Lancaster & Ruth Mareng, U.S. Pulls Rangers Out of Somalia; Officials Send Conciliatory Signals to Aideed, WASH. POST, Oct. 20, 1993 (reporting that the U.N. command in Somalia indicated that their continued detention of top Aideed lieutenants was justified under "Somalia's 1962 Penal Code").
194. See, e.g., Caroline Mallan, Rules of War Didn't Exist in Somalia, Trial Told, TORONTO STAR, Oct. 12,1994, at A11 (indicating that Canadian Airborne Regiment Captain Michael Rainville allegedly broke Canadian rules of engagement when, in response to problems with looters infiltrating the Canadian camp, he gave his soldiers permission to use gun fire to capture any Somalis seen crossing, or trying to cross, the barbed wire in the Canadian compound, as a consequence of which a Somali was shot). But see Caroline Mallan, Top Soldier Backs Force in Somali Shooting Correct, MacKenzie Says, TORONTO STAR, Sept. 24,1994, at A14 (indicating that Major General MacKenzie, a former U.N. force commander, testified during Captain Rainville's court martial that he did not think that Rainville broke the rules of engagement when he gave the command to shoot fleeing Somali looters). For the international rules governing the use of firearms by law enforcement officials, see General Assembly Resolution on the Code of Conduct for Law Enforcement Officials, G.A. Res. 34/169, U.N. GAOR, 34th Sess., Supp. No. 46, U.N. Doc. A/34/169 (1980).
195. See, e.g., Caroline Mallan, Rules of War Didn't Exist in Somalia, Trial Told, TORONTO STAR, Oct. 12,1994, at A11 (indicating that Canadian Airborne Regiment Captain Michael Rainville allegedly broke Canadian rules of engagement when, in response to problems with looters infiltrating the Canadian camp, he gave his soldiers permission to use gun fire to capture any Somalis seen crossing, or trying to cross, the barbed wire in the Canadian compound, as a consequence of which a Somali was shot). But see Caroline Mallan, Top Soldier Backs Force in Somali Shooting Correct, MacKenzie Says, TORONTO STAR, Sept. 24,1994, at A14 (indicating that Major General MacKenzie, a former U.N. force commander, testified during Captain Rainville's court martial that he did not think that Rainville broke the rules of engagement when he gave the command to shoot fleeing Somali looters). For the international rules governing the use of firearms by law enforcement officials, see General Assembly Resolution on the Code of Conduct for Law Enforcement Officials, G.A. Res. 34/169, U.N. GAOR, 34th Sess., Supp. No. 46, U.N. Doc. A/34/169 (1980).
196. See, e.g., Caroline Mallan, Rules of War Didn't Exist in Somalia, Trial Told, TORONTO STAR, Oct. 12,1994, at A11 (indicating that Canadian Airborne Regiment Captain Michael Rainville allegedly broke Canadian rules of engagement when, in response to problems with looters infiltrating the Canadian camp, he gave his soldiers permission to use gun fire to capture any Somalis seen crossing, or trying to cross, the barbed wire in the Canadian compound, as a consequence of which a Somali was shot). But see Caroline Mallan, Top Soldier Backs Force in Somali Shooting Correct, MacKenzie Says, TORONTO STAR, Sept. 24,1994, at A14 (indicating that Major General MacKenzie, a former U.N. force commander, testified during Captain Rainville's court martial that he did not think that Rainville broke the rules of engagement when he gave the command to shoot fleeing Somali looters). For the international rules governing the use of firearms by law enforcement officials, see General Assembly Resolution on the Code of Conduct for Law Enforcement Officials, G.A. Res. 34/169, U.N. GAOR, 34th Sess., Supp. No. 46, U.N. Doc. A/34/169 (1980).
197. See, e.g., KIRGE, supra note 6, at 665 (describing numerous incidents involving coalition forces during the Gulf War that may have constituted violations of humanitarian law, including bombing attacks against military targets in populated areas and the destruction of a shelter containing hundreds of civilians); Oscar Schachter, United Nations Law, supra note 117 (suggesting that there was evidence of violations of the law of war by the Coalition members, including the dispropostionate use of force and the infliction of unnecessary suffering on noncombatants); John Quigley, The New World Order and the Rule of Law, 18 SYRACUSE J. INT'L & COMP. L. 75, 93 (1992) (indicating that in attacking Iraq, the U.S. did not adhere to the law of war, particularly in its aerial bombardments of objects such as government office buildings whose primary use was civilian, not military); Paul Lewis, Tension with Iraq: U.S.-Led Raids on Iraq Strain Unity of Gulf War Coalition, N. Y. TIMES, Jan. 20, 1993, at Al (reporting on complaints by Russia and other countries that attacks by the U.S., Britain, and France in the air-exclusion zones over northern and southern Iraq in January 1993 were inconsistent with international law and may have caused disproportionate civilian casualties); Meron, supra note 137, at 108 (suggesting that the embargo imposed against Iraq may initially have been below the standards under the Geneva Conventions regarding the free passage of medical supplies).
198. See, e.g., KIRGE, supra note 6, at 665 (describing numerous incidents involving coalition forces during the Gulf War that may have constituted violations of humanitarian law, including bombing attacks against military targets in populated areas and the destruction of a shelter containing hundreds of civilians); Oscar Schachter, United Nations Law, supra note 117 (suggesting that there was evidence of violations of the law of war by the Coalition members, including the dispropostionate use of force and the infliction of unnecessary suffering on noncombatants); John Quigley, The New World Order and the Rule of Law, 18 SYRACUSE J. INT'L & COMP. L. 75, 93 (1992) (indicating that in attacking Iraq, the U.S. did not adhere to the law of war, particularly in its aerial bombardments of objects such as government office buildings whose primary use was civilian, not military); Paul Lewis, Tension with Iraq: U.S.-Led Raids on Iraq Strain Unity of Gulf War Coalition, N. Y. TIMES, Jan. 20, 1993, at Al (reporting on complaints by Russia and other countries that attacks by the U.S., Britain, and France in the air-exclusion zones over northern and southern Iraq in January 1993 were inconsistent with international law and may have caused disproportionate civilian casualties); Meron, supra note 137, at 108 (suggesting that the embargo imposed against Iraq may initially have been below the standards under the Geneva Conventions regarding the free passage of medical supplies).
199. See, e.g., KIRGE, supra note 6, at 665 (describing numerous incidents involving coalition forces during the Gulf War that may have constituted violations of humanitarian law, including bombing attacks against military targets in populated areas and the destruction of a shelter containing hundreds of civilians); Oscar Schachter, United Nations Law, supra note 117 (suggesting that there was evidence of violations of the law of war by the Coalition members, including the dispropostionate use of force and the infliction of unnecessary suffering on noncombatants); John Quigley, The New World Order and the Rule of Law, 18 SYRACUSE J. INT'L & COMP. L. 75, 93 (1992) (indicating that in attacking Iraq, the U.S. did not adhere to the law of war, particularly in its aerial bombardments of objects such as government office buildings whose primary use was civilian, not military); Paul Lewis, Tension with Iraq: U.S.-Led Raids on Iraq Strain Unity of Gulf War Coalition, N. Y. TIMES, Jan. 20, 1993, at Al (reporting on complaints by Russia and other countries that attacks by the U.S., Britain, and France in the air-exclusion zones over northern and southern Iraq in January 1993 were inconsistent with international law and may have caused disproportionate civilian casualties); Meron, supra note 137, at 108 (suggesting that the embargo imposed against Iraq may initially have been below the standards under the Geneva Conventions regarding the free passage of medical supplies).
200. One possible exception is the creation of a commission by the United Nations and the ICRC during the Congo crisis to investigate the deaths of three ICRC officers in an incident for which ONUC forces may have been responsible. While the Commission never made a conclusive finding of liability, the United Nations made a lump sum payment to the ICRC without accepting any legal or financial responsibility. See SEYERSTED, supra note 7, at 195-96.
201. See, e.g., S.C. Res. 674, U.N. SCOR, 2951st mtg., U.N. Doc. S/RES/674 (1990) (reaffirming that the Fourth Geneva Convention "applies to Kuwait and that, as a High Contracting Party to the Convention, Iraq is bound to comply fully with all its terms and in particular is liable under the Convention in respect of the grave breaches committed by it, as are individuals who commit or order the commission of grave breaches"); Defense Department Report, supra note 126, at 632 (indicating that during the Persian Gulf War, the U.S. Army Advocate General was given responsibility for investigating, collecting, collating, evaluating, and reporting evidence of war crimes alleged to have been committed against Army personnel).
202. See, e.g., Captain Faces Trial in Death of Somali Teen, OTTAWA CITIZEN, Nov. 30, 1994, at A3 (reporting that Captain Michael Sox, Platoon commander with the Canadian Airborne Regiment during the operation in Somalia, was the ninth soldier to go on trial in connection with the beating death of a 16-year-old Somali, that one of these soldiers had been sentenced to five years in prison for manslaughter and torture, and that the Canadian government had decided to conduct a public inquiry into the role of Canadian troops in Somalia once the final court martial was completed); Mallan, supra note 149, at A14 (indicating that Lt. Col. Carol Matthieu, the officer who gave orders to shoot any Somali infiltrating the Canadian camp at Belet Huen, was acquitted of two counts of negligent performance of duty); Chemey, supra note 10 (reporting that the Canadian government bartered with the family of the beaten Somali youth for compensation for his death, settling on an amount of U.S. $15,000, and that the youth's family was not satisfied with this compensation).
203. See S.C. Res. 885, U.N. SCOR, 3315th mtg, U.N. Doc. S/RES/885 (1993); Rick Atkinson, Wide Look at Somalia Incident Vowed: Jurist Says U.N. Probe Will Go Beyond Ambush of Pakistanis, WASH. POST, Dec. 1, 1993, at A20 (reporting that the Chairman of the Commission established by the Security Council to investigate the deaths of Pakistani peacekeepers in Somalia would look at the other incidents in the six-month undeclared war between Aideed's SNA and the U.N. operation).
204. See, e.g., GREEN, supra note 17, at 323 (concluding that since states sending forces for U.N. purposes are parties to the Geneva Conventions, the forces remain protected under the conventions and customary international law, and are entitled to prisoner of war status, for example).
205. See infra notes 163-165 and accompanying text (discussing the international personality of the United Nations).
206. U.N. CHARTER art. 100.
207. for example, in the Advisory Opinion, Reparations for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 174, 183-84 (Apr. 11) [hereinafter Reparations Case], the International Court of Justice determined that the United Nations has jurisdiction to bring international claims for injuries to its members, based in part upon the need to keep U.N. agents independent of member states: In order that the agent may perform his duties satisfactorily, he must feel that this protection is assured to him by the Organization and that he may count on it. To ensure the independence of the agent, and, consequently, the independent action of the Organization itself, it is essential that in performing his duties he need not have to rely on any other protection than that of the Organization (save of course for the more direct and immediate protection due from the State in whose territory he may be). In particular, he should not have to rely on the protection of his own State. If he had to rely on that State, his independence might well be compromised, contrary to the principle applied by Article 100 of the Charter. And lastly, it is essential that - whether the agent belongs to a powerful or to a weak State; to one more affected or less affected by the complications of international life; to one in sympathy or not in sympathy with the mission of the agent - he should know that in the performance of his duties he is under the protection of the Organization. See also Application of Article VI, Section 22 of the Convention on the Privileges and Immunities of the United Nations (The Mazilu Case) 1989 I.C.J. 177, para. 50, reprinted in 29 I.L.M. 100 (1990), (discussing the privileges and immunities of experts on missions).
208. See Siekmann, supra note 93, at 133-34 (noting that in the U.N. Operation in the Congo the commanders of national contingents had authority to try violations of both their states' military rules and the Force Regulations, and suggesting that the various national contingents may not have punished violations of the same crimes consistently).
209. See, e.g., Supplement to an Agenda for Peace, supra note 16, para. 41.
210. See, e.g., MESSAGE FROM THE PRESIDENT OF THE UNITED STATES TRANSMITTING THE PROTOCOL II ADDITIONAL TO THE GENEVA CONVENTIONS, AND RELATING TO THE PROTECTION OF VICTIMS OF NON-INTERNATIONAL ARMED CONFLICTS, TREATY DOC. No. 100-2 (1987), reprinted in 6 I.L.M. 561 (1987) [hereinafter MESSAGE FROM THE PRESIDENT ON PROTOCOL II] (recommending that Protocol I not be forwarded to the Senate based in part on disagreements with Articles 1(4) and 44(3) of the Protocol, and suggesting that these provisions do not codify customary international law); Defense Department Report, supra note 126, at 624-25 (suggesting that arts. 51 (8) and 52(3) of Protocol I are not a codification of the "customary practice of nations"); Cassese, supra note 58, at 68-71 (concluding that Article 1(4), Article 44, and Article 52(3) of Protocol I should be held to enunciate customary interna-tional law); see also Mackinlay & Chopra, supra note 86 (indicating that there are known disagreements on the use of force, intelligence, the maintenance of law and order, powers of arrest, and the principles of logistical support between and among member states and the United Nations).
211. See supra notes 81-104 and accompanying text.
212. See Reparations Case, 1949 I.C.J. at 179, in which the International Court of Justice determined that, 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. . . . [I]t is a subject of international law capable of possessing international rights and duties. See generally, IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 657-58 (1973) (suggesting that the primary test for determining who are persons in the international legal system is "functional," and offering three criteria for determining that an organization possesses an international personality); BOWETT, supra note 7, at 134 (suggesting that the concept of international personality is variable but has some basic attributes common to international organizations.).
213. See Reparations Case, 1949 I.C.J. at 179 (indicating that the United Nations as an international person is not the same as a state or a "super-state"); see also BROWNLIE, supra note 163, at 656-60 (suggesting that while the most 'Viable" type of international organization will have a number of legal powers similar to those of states, "the individuality of each organization must be emphasized in the first instance through its constituent instrument"); ROBERT C. HILDEBRAND, DUMBARTON OAKS 140-41 (1990) (indicating that the United States opposed the creation of an internationalized United Nations army to avoid the risk that the Organization might declare itself an independent, sovereign power or might be transformed into a world government).
214. See Reparations Case, 1949 I.C.J. at 180, 182; see also BOWETT, supra note 7, at 307-08 (suggesting that the test to determine whether an organization has_ power such as the ability to conclude treaties is whether such power is an express function of the organization or is required for the Organization to discharge its functions effectively).
215. See U.N. CHARTER art. 105; Convention on the Privileges and Immunities of the United Nations, supra note 96 (providing the United Nations, its property and assets, representatives of its members, and official experts on missions with, inter alia, total or functional immunity from personal arrest or detention and civil or administrative process in the territories of its member states); BROWNLIE, supra note 163, at 664 (indicating that there is no evidence of a legal presumption that the United Nations is exclusively or primarily responsible for the torts of its peacekeeping forces, but that in practice, it has accepted responsibility for the acts of its agents).
216. See Statute of the International Court of Justice, art. 34, para. 1, 59 Stat. 1055, 1059 (1945) (providing that only states may be parties in cases before the Court); U.N. CHARTER art. 96 (permitting organs and agencies of the United Nations to request nonbinding advisory opinions from the Court in specified situations); see also U.N. Convention on Privileges and Immunities, supra note 96, art. VIII (requiring the United Nations to make provisions for "appropriate modes of settlement" of "disputes involving any official of the United Nations who by reason of his or her official position enjoys immunity, if immunity has not been waived by the Secretary-General").
217. Some scholars disagree with the "implied power" test for determining the rights and duties of the United Nations, arguing instead that the Organization has an "inherent" capacity to conclude treaties that does not depend upon expressed or implied powers in the Charter. See, e.g., SEYERSTED, supra note 7, at 343-45.
218. See, e.g., U.N. CHARTER art. 43 (providing for agreements between the Security Council and members states or groups of member states to make available to the Council, inter alia, armed forces, assistance, and facilities necessary for the maintenance of international peace and security).
219. See, e.g., BOWETT, supra note 7, at 308-09 (citing U.N. agreements which rest on no specific grant of power, but where the power must "necessarily be implied"). But see KELSEN, supra note 38, at 330 (arguing that treaty-making powers by an international organization must be given expressly); BROWNLIE, supra note 163, at 661 (citing the United Nations Headquarters Agreement as an example of international organizations readily employing treaty-making powers).
220. United Nations Convention on the Law of Treaties Between States and International Organi-zations or Between States and Between International Organizations, opened for signature Mar. 21,1986, U.N. Doc. A/CONF.129/15, 25 I.L.M. 543 (1986).
221. See, e.g.. Advisory Opinion, Interpretation of the Agreement of 25 March 1951 Between The World Health Organization and Egypt, 1980 I.C.J. 73, 94-96 (Dec. 20), reprinted in 20 I.L.M. 88, 99-100 (1981) [hereinafter Interpretation of the Agreement Between the WHO and Egypt] (relying in part on the International Law Commission's draft articles on treaties between states and international organizations or between international organizations to determine what length of time may be appropriate in observing the duty to consult and negotiate changes to an existing agreement between WHO and Egypt).
222. Vienna Convention of the Law of Treaties, opened for signature May 23, 1969, U.N. Doc. A/Conf. 39/27, 1155 U.N.T.S. 3331, 8 I.L.M. 679; see also JOSEPH MODESTE SWEENEY ET AL., CASES AND MATERIALS ON THE INTERNATIONAL LEGAL SYSTEM 993-94 (3d ed. 1988) (indicating that most of the provisions of the Vienna Convention on the Law of Treaties represent the best evidence of current customary international law on international agreements); RESTATEMENT (THIRD) ON FOREIGN RELATIONS pL III, introductory note (noting that the United States considers substantial portions of the Vienna Convention to state international law on the interpretation of treaties).
223. See, e.g., Vienna Convention on the Laws of Treaties Between States and International Organizations, supra note 171, art. 1, art. 7, para. 3, art. 11, para. 2 (providing that the consent of an international organization to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, act of formal confirmation, acceptance, approval or accession, or by any other means if so specified).
224. See SIMMONDS, supra note 7, at 181 (suggesting that participation of the United Nations in a particular convention can only be possible where access is open to an international organization by the terms of that convention); see also LORD MCNAIR, THE LAW OF TREATIES 151 (1961).
225. See U.N. CHARTER art. 103 (providing that "[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and the obligations under any other international agreement, their obligations under the present Charter shall prevail"); see also id., art. 25; Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising From the Aerial Incident at Lockerbie (Libya v. U.S.), 1992 I.C.J. 114 (Apr. 14), reprinted in 31 I.L.M. 665 (1992) (finding that the obligations of member states to accept and carry out decisions of the Security Council in accordance with Article 25 of the Charter prevail over their obligations under any other international agreement, including the Montreal Convention).
226. See, e.g., Common Article 2, supra note 32, which provides: In addition to the provisions which shall be implemented in peacetime, 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. . . . 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. The Conventions expressly refer to the International Committee of the Red Cross and other "humanitarian organizations," but only in respect to the manner in which such organizations may provide assistance to the parties in a conflict, not as parties to the Conventions per se. See, e.g., Protocol I, supra note 22, art. 5, para. 4 (providing that "[i]f, despite the foregoing, there is no Protecting Power, the Parties to the conflict shall accept without delay an offer which may be made by the International Committee of the Red Cross or by any other organization which offers all guarantees of impartiality and efficacy").
227. See, e.g., GREEN, supra note 17, at 323 (indicating that the United Nations cannot become a party to the Geneva Conventions because it is not a state); SIMMONDS, supra note 7, at 182-83 (arguing that international organizations are not "Powers" within the meaning and intention of the Geneva Conventions, and that absent any special provisions, the United Nations probably could not accede to these agreements); but see SEYERSTED, supra note 7, at 350 (concluding that the United Nations can be considered a "Power" for purposes of the Geneva Convention, in part because the use of the term "state" by the High Contracting Powers did not necessarily exclude other subjects of international law that might become parties to an armed conflict from being parties to the Conventions).
228. See, e.g. SIMMONDS, supra note 7, at 185 (indicating that during the Congo crisis 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"); Model Participation Agreement, supra note 87, para. 28.
229. See, e.g., DOCUMENTS ON PRISONERS OF WAR, supra note 139, at 564 (noting that during the Korean War, the United Nations made the decision to consider itself the "Detaining Power" for purposes of the Fourth Geneva Convention, and promulgated rules for disciplinary and penal treatment of prison-ers of war); 1951 U.N.Y.B., supra note 120, at 247.
230. Suggestions have been made as to how the United Nations might bind itself to the provisions of the Geneva Conventions as a matter of treaty law, for
231. See North Sea Continental Shelf Case (F.R.G. v. Den.; F.R.G. v. Neth.), 1969 LCJ. 3, para. 74 (Feb. 20) (indicating that for new customary international law to emerge based upon a conventional rule, state practice, including the practice of states whose interests are specially affected, is required to have been extensive and virtually uniform and undertaken in such a way as to show a general recognition that a rule of law or a legal obligation is involved); Cassese, supra note 58, at 58-59; CHRISTOPHER GREENWOOD, CUSTOMARY LAW STATUS OF THE 1977 GENEVA PROTOCOLS IN HUMANITARIAN LAW OF ARMED CONFLICT: CHALLENGES AHEAD 96, 113 (Astrid J.M. Delissen et al. eds., 1991) (suggesting that the provisions of a multilateral treaty are to be treated as authoritative statements of customary international law when they codify principles which already form a part of customary international law prior to the conclusion of the treaty or, although they go beyond the existing customary law, the principles which they lay down come to be accepted as generally applicable and therefore become a part of customary international law).
232. See G.A. Res. 488, U.N. GAOR, 5th Sess., Supp. Np. 20, at 77, U.N. Doc. A/1775 (1950) (recognizing the Nuremberg principles as customary international law); see also Secretary-General ICTY Report, supra note 12 (referring to the Geneva Conventions, the Hague Convention, and the Charter of the International Military Tribunal of 8 August 1945 as "part of conventional international law which has beyond doubt become part of international customary law"); Cassese, supra note 58, at 67 (suggesting that the main provisions of the four Geneva Conventions have gradually been transformed into customary international law, and that, at the 1967 Diplomatic Conference on the Law of Treaties, some states went so far as to say that a majority of the provisions had become jus cogens); Theodor Meron, The Geneva Conventions as Customary International Law, 81 AM. J. INT'L L. 348 (1987) (arguing that certain provisions of the Geneva Conventions reflect customary international law).
233. See SEYERSTED, supra note 7, at 180 (noting that the laws of war have been developed between states over hundreds of years).
234. See DOCUMENTS, supra note 40, at 326-37, 387-446, 459-68 (listing 147 parties to each of the four Geneva Conventions, 17 parties to Protocol I, and 16 parties to Protocol II).
235. See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, paras. 218, 220 (June 27) (Judgment), reprinted in 25 I.L.M. 1023, 1073-74 (1986) (finding that Common Article 3 is a "specific expression" of general principles of humanitarian law, and that it reflects the "minimum yardstick" in internal and international conflicts); Prosecutor v. Tadić, Case No. IT-94-AR72, 37 (App., Oct. 2, 1995), para. 102 (adopting the International Court of Justice's finding that Common Article 3 reflects "elementary considerations of humanity" applicable under customary international law to any armed conflict); see also Cassese, supra note 58, at 68 (concluding that common Article 3 has passed into customary international law); Weissbrodt, supra note 38, at 339 (indicating that according to the ICRC, "Common Article 3 was intended to reflect the 'few essential rules' that governments should follow in peacetime and in war as well as in dealing with common criminals or rebels"). These minimum humanitarian rules incorporate, in turn, agreements prohibiting inhumane conduct such as torture. See, e.g., Torture Convention, supra note 78; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Nov. 26, 1987, Europ.T.S. No. 126, 27 I.L.M. 1152; American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123, 9 I.L.M. 673 (entered into force July 18, 1978); Organization of American States, Basic Documents Pertaining to Human Rights in the Inter-American System art. 5, at 25, OEA/ser.L.V/II.71, doc. 6 rev.1 (1988); UNITED NATIONS WORLD CONFERENCE ON HUMAN RIGKTS, VIENNA DECLARATION AND PROGRAMME OF ACTION, at para. 56, U.N. Doc. A/CONF/157/24 (pt 1) (1993), reprinted in 32 I.L.M. 1661, 1681 [hereinafter U.N. VIENNA DECLARATION] (reaffirming that "under human rights law and international humanitarian law, freedom from torture is a right which must be protected under all circumstances, including in times of internal or international disturbance or armed conflicts"); Jonathan I. Chamey, Universal International Law, 87 AM. J. INT'L L. 541 (1993) (arguing that provisions of international law prohibiting slavery, genocide, war crimes, and crimes against humanity are binding upon all states as jus cogens regardless of their timely objections).
236. See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, paras. 218, 220 (June 27) (Judgment), reprinted in 25 I.L.M. 1023, 1073-74 (1986) (finding that Common Article 3 is a "specific expression" of general principles of humanitarian law, and that it reflects the "minimum yardstick" in internal and international conflicts); Prosecutor v. Tadić, Case No. IT-94-AR72, 37 (App., Oct. 2, 1995), para. 102 (adopting the International Court of Justice's finding that Common Article 3 reflects "elementary considerations of humanity" applicable under customary international law to any armed conflict); see also Cassese, supra note 58, at 68 (concluding that common Article 3 has passed into customary international law); Weissbrodt, supra note 38, at 339 (indicating that according to the ICRC, "Common Article 3 was intended to reflect the 'few essential rules' that governments should follow in peacetime and in war as well as in dealing with common criminals or rebels"). These minimum humanitarian rules incorporate, in turn, agreements prohibiting inhumane conduct such as torture. See, e.g., Torture Convention, supra note 78; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Nov. 26, 1987, Europ.T.S. No. 126, 27 I.L.M. 1152; American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123, 9 I.L.M. 673 (entered into force July 18, 1978); Organization of American States, Basic Documents Pertaining to Human Rights in the Inter-American System art. 5, at 25, OEA/ser.L.V/II.71, doc. 6 rev.1 (1988); UNITED NATIONS WORLD CONFERENCE ON HUMAN RIGKTS, VIENNA DECLARATION AND PROGRAMME OF ACTION, at para. 56, U.N. Doc. A/CONF/157/24 (pt 1) (1993), reprinted in 32 I.L.M. 1661, 1681 [hereinafter U.N. VIENNA DECLARATION] (reaffirming that "under human rights law and international humanitarian law, freedom from torture is a right which must be protected under all circumstances, including in times of internal or international disturbance or armed conflicts"); Jonathan I. Chamey, Universal International Law, 87 AM. J. INT'L L. 541 (1993) (arguing that provisions of international law prohibiting slavery, genocide, war crimes, and crimes against humanity are binding upon all states as jus cogens regardless of their timely objections).
237. See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, paras. 218, 220 (June 27) (Judgment), reprinted in 25 I.L.M. 1023, 1073-74 (1986) (finding that Common Article 3 is a "specific expression" of general principles of humanitarian law, and that it reflects the "minimum yardstick" in internal and international conflicts); Prosecutor v. Tadić, Case No. IT-94-AR72, 37 (App., Oct. 2, 1995), para. 102 (adopting the International Court of Justice's finding that Common Article 3 reflects "elementary considerations of humanity" applicable under customary international law to any armed conflict); see also Cassese, supra note 58, at 68 (concluding that common Article 3 has passed into customary international law); Weissbrodt, supra note 38, at 339 (indicating that according to the ICRC, "Common Article 3 was intended to reflect the 'few essential rules' that governments should follow in peacetime and in war as well as in dealing with common criminals or rebels"). These minimum humanitarian rules incorporate, in turn, agreements prohibiting inhumane conduct such as torture. See, e.g., Torture Convention, supra note 78; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Nov. 26, 1987, Europ.T.S. No. 126, 27 I.L.M. 1152; American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123, 9 I.L.M. 673 (entered into force July 18, 1978); Organization of American States, Basic Documents Pertaining to Human Rights in the Inter-American System art. 5, at 25, OEA/ser.L.V/II.71, doc. 6 rev.1 (1988); UNITED NATIONS WORLD CONFERENCE ON HUMAN RIGKTS, VIENNA DECLARATION AND PROGRAMME OF ACTION, at para. 56, U.N. Doc. A/CONF/157/24 (pt 1) (1993), reprinted in 32 I.L.M. 1661, 1681 [hereinafter U.N. VIENNA DECLARATION] (reaffirming that "under human rights law and international humanitarian law, freedom from torture is a right which must be protected under all circumstances, including in times of internal or international disturbance or armed conflicts"); Jonathan I. Chamey, Universal International Law, 87 AM. J. INT'L L. 541 (1993) (arguing that provisions of international law prohibiting slavery, genocide, war crimes, and crimes against humanity are binding upon all states as jus cogens regardless of their timely objections).
238. See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, paras. 218, 220 (June 27) (Judgment), reprinted in 25 I.L.M. 1023, 1073-74 (1986) (finding that Common Article 3 is a "specific expression" of general principles of humanitarian law, and that it reflects the "minimum yardstick" in internal and international conflicts); Prosecutor v. Tadić, Case No. IT-94-AR72, 37 (App., Oct. 2, 1995), para. 102 (adopting the International Court of Justice's finding that Common Article 3 reflects "elementary considerations of humanity" applicable under customary international law to any armed conflict); see also Cassese, supra note 58, at 68 (concluding that common Article 3 has passed into customary international law); Weissbrodt, supra note 38, at 339 (indicating that according to the ICRC, "Common Article 3 was intended to reflect the 'few essential rules' that governments should follow in peacetime and in war as well as in dealing with common criminals or rebels"). These minimum humanitarian rules incorporate, in turn, agreements prohibiting inhumane conduct such as torture. See, e.g., Torture Convention, supra note 78; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Nov. 26, 1987, Europ.T.S. No. 126, 27 I.L.M. 1152; American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123, 9 I.L.M. 673 (entered into force July 18, 1978); Organization of American States, Basic Documents Pertaining to Human Rights in the Inter-American System art. 5, at 25, OEA/ser.L.V/II.71, doc. 6 rev.1 (1988); UNITED NATIONS WORLD CONFERENCE ON HUMAN RIGKTS, VIENNA DECLARATION AND PROGRAMME OF ACTION, at para. 56, U.N. Doc. A/CONF/157/24 (pt 1) (1993), reprinted in 32 I.L.M. 1661, 1681 [hereinafter U.N. VIENNA DECLARATION] (reaffirming that "under human rights law and international humanitarian law, freedom from torture is a right which must be protected under all circumstances, including in times of internal or international disturbance or armed conflicts"); Jonathan I. Chamey, Universal International Law, 87 AM. J. INT'L L. 541 (1993) (arguing that provisions of international law prohibiting slavery, genocide, war crimes, and crimes against humanity are binding upon all states as jus cogens regardless of their timely objections).
239. See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, paras. 218, 220 (June 27) (Judgment), reprinted in 25 I.L.M. 1023, 1073-74 (1986) (finding that Common Article 3 is a "specific expression" of general principles of humanitarian law, and that it reflects the "minimum yardstick" in internal and international conflicts); Prosecutor v. Tadić, Case No. IT-94-AR72, 37 (App., Oct. 2, 1995), para. 102 (adopting the International Court of Justice's finding that Common Article 3 reflects "elementary considerations of humanity" applicable under customary international law to any armed conflict); see also Cassese, supra note 58, at 68 (concluding that common Article 3 has passed into customary international law); Weissbrodt, supra note 38, at 339 (indicating that according to the ICRC, "Common Article 3 was intended to reflect the 'few essential rules' that governments should follow in peacetime and in war as well as in dealing with common criminals or rebels"). These minimum humanitarian rules incorporate, in turn, agreements prohibiting inhumane conduct such as torture. See, e.g., Torture Convention, supra note 78; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Nov. 26, 1987, Europ.T.S. No. 126, 27 I.L.M. 1152; American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123, 9 I.L.M. 673 (entered into force July 18, 1978); Organization of American States, Basic Documents Pertaining to Human Rights in the Inter-American System art. 5, at 25, OEA/ser.L.V/II.71, doc. 6 rev.1 (1988); UNITED NATIONS WORLD CONFERENCE ON HUMAN RIGKTS, VIENNA DECLARATION AND PROGRAMME OF ACTION, at para. 56, U.N. Doc. A/CONF/157/24 (pt 1) (1993), reprinted in 32 I.L.M. 1661, 1681 [hereinafter U.N. VIENNA DECLARATION] (reaffirming that "under human rights law and international humanitarian law, freedom from torture is a right which must be protected under all circumstances, including in times of internal or international disturbance or armed conflicts"); Jonathan I. Chamey, Universal International Law, 87 AM. J. INT'L L. 541 (1993) (arguing that provisions of international law prohibiting slavery, genocide, war crimes, and crimes against humanity are binding upon all states as jus cogens regardless of their timely objections).
240. See Military and Paramilitary Activities in and Against Nicaragua, 1986 I.C.J. at 14, para. 220, reprinted in 25 I.L.M. 1073-74 (holding that Common Article 1 is part of the general principles of humanitarian law). But see Meron, supra note 183, at 352-53 (questioning whether states believed Common Article 1 to reflect customary international law at the time that the Geneva Conventions were drafted).
241. See supra note 185.
242. These arguments are based largely upon the views expressed by states at the conferences that led to the creation of Protocol I. See, e.g., Cassese, supra note 58, at 68-75, 89 (arguing based upon the travaux preparatoires for Protocol I that provisions reflecting or having attained the status of customary international law include Article 1(4), Article 43 (altering the traditional requirements of combatants status to encompass guerrilla warfare), Article 45 (establishing a presumption in favor of prisoner of war status for persons who have taken part in hostilities and are captured), and Article 54(1) (prohibiting siege warfare), and concluding that Article 52(1) (regarding reprisals against civilian objects) and Article 56 (dealing with works and installations containing dangerous forces) do not yet constitute customary international law, based on the absence of a broad consensus by member states at the 1977 General Conference); see also Sklaire, supra note 8, at 620-23 (concluding that Articles 54 and 70 of Protocol I constitute customary international law based upon state practice, opinion juris, U.N. resolutions, and I.C.J. decisions).
243. See e.g., Theodor Meron, War Crimes in Yugoslavia and the Development of International Law, 88 AM. J. INT'L L. 78, 80 (1994) (suggesting that some but not all of the provisions of Protocol I constitute customary international law).
244. See, e.g., Protocol I, supra note 22 , art. 35, para. 1 (providing that the means and methods of warfare are not unlimited).
245. See, e.g., Protocol J, supra note 22, arts. 48, 52 (requiring belligerents to distinguish between military and nonmilitary targets, and prohibiting the targeting of civilians as objects of attack); Cassese, supra note 58, at 82-87 (arguing that most of the provisions of Protocol I dealing with the protection of civilians are declaratory of customary international law since "[t]hey were regarded by States gathered at Geneva as no less binding than the preexisting rules").
246. See, e.g.,. Protocol I, supra note 22, art. 75; cf International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, U.N. GAOR 2200A (XXI), arts. 14, 15, 999 U.N.T.S. 171 (1967).
247. See, e.g., Protocol II, supra note 23, art. I, para. 1, art. 6; see also Cesar Sepulveda, Interrelationships in the Implementation and Enforcement of International Humanitarian Law and Human Rights Law, 33 AM. U. L. REV. 117, 118 (1983) (stating that Protocol II "amplifies" common Article 3); Prosecutor y. Tadic, Case No. IT-94-AR72, 37 (App., Oct. 2, 1995), paras. 117, 127 (observing that many provisions of Protocol II either declare existing rules, crystallized emerging rules, or were strongly instrumental in the evolution of rules of customary international law, including those protecting civilians from hostilities, especially indiscriminate attacks, protecting civilian objects, especially cultural property, and protecting all who do no - or no longer - take active part in hostilities, as well as those prohibiting certain types of warfare in international armed conflicts).
248. See Cassese, supra note 58, at 68-75 (concluding that Article 1(4) and Article 43 of Protocol I constitute customary international law). But see MESSAGE FROM THE PRESIDENT ON PROTOCOL II, supra note 161, at 564 (suggesting that the same provisions do not constitute customary international law and are not binding upon the United States).
249. See U.N. CHARTER art. 1, para. 3 (including as one of the purposes of the United Nations to "achieve international cooperation in solving international problems of [a]. . . humanitarian character").
250. U.N. CHARTER art. 1, para. 1.
251. See, e.g., Interpretation of the Agreement Between the WHO and Egypt 1980 I.C.J. at 96-97 para. 37, reprinted in 20 I.L.M. at 100 (1981) (stating that "[i]nternational organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties"); see also D.W. BOWETT, THE LAW OF INTERNATIONAL INSTITUTIONS 323 (3d. ed. 1975) (stating that "[l]egal personality implies not only the capacity to bring claims, as in the Reparations Case, but also the responsibility of the organisation for its own illegal acts"); BROWNLIE, supra note 163, at 663-64 (suggesting based upon the Reparations Case that "[if] an [international] organization has a legal personality distinct from that of the member states, and functions which in the hands of states may create responsibility, then it is in principle reasonable to impute responsibility to the organization").
252. See ALF Ross, THE UNITED NABONS: PEACE AND PROGRESS 80-81 (1966) (discussing the states' assertion at the San Francisco Conference that the Organization's actions for the purpose of maintaining peace need not conform to principles of justice and international law because it is the function of the United Nations to restore peace by effective means, and not to determine "who, as the aggressor, is the guilty party"); see also KELSEN, supra note 38, at 294-95 (noting that the purpose of enforcement action under Chapter VII is not "to maintain or restore the law, but to maintain, or restore peace," and suggesting that even if justice and international law applied to collective measures, the Security Council should not be bound to maintain or restore the existing law) (emphasis added).
253. U.N. CHARTER art. 42.
254. See, e.g., S.C. Res. 748, U.N. SCOR, 3063d mtg., para. 1, U.N. Doc. S/RES/748 (1992) (deciding that the Libyan government must comply with Security Council Resolution 731, which requested that Libya surrender for trial in the United Kingdom and the United States those charged with the explosion of a bomb on Pan Am Flight 103 on December 21, 1988); see also SWEENEY, supra note 173, at 142 (indicating that under international law, states are not bound to surrender nationals charged with offenses in another state in the absence of extradition agreements between those states); Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, 24 U.S.T. 564, 974 U.N.T.S. 177, reprinted in 10 I.L.M. 1151 (1971) (making extradition subject to the law of the state that receives an extradition request); Further Report by the Secretary General Pursuant to Paragraph 4 of Security Council Resolution 731 (1992), U.N. Doc. S/23672 (1992), Annex II, reprinted in 31 I.L.M. 739, 740 (1992) (indicating that Libyan law does not permit the extradition of Libyan nationals).
255. See, e.g., S.C. Res. 748, U.N. SCOR, 3063d mtg., para. 1, U.N. Doc. S/RES/748 (1992) (deciding that the Libyan government must comply with Security Council Resolution 731, which requested that Libya surrender for trial in the United Kingdom and the United States those charged with the explosion of a bomb on Pan Am Flight 103 on December 21, 1988); see also SWEENEY, supra note 173, at 142 (indicating that under international law, states are not bound to surrender nationals charged with offenses in another state in the absence of extradition agreements between those states); Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, 24 U.S.T. 564, 974 U.N.T.S. 177, reprinted in 10 I.L.M. 1151 (1971) (making extradition subject to the law of the state that receives an extradition request); Further Report by the Secretary General Pursuant to Paragraph 4 of Security Council Resolution 731 (1992), U.N. Doc. S/23672 (1992), Annex II, reprinted in 31 I.L.M. 739, 740 (1992) (indicating that Libyan law does not permit the extradition of Libyan nationals).
256. U.N. CHARTER art. 103.
257. See Hergeden, supra note 116, at 156-57 (arguing that because the Security Council's powers are based on a treaty, "the peremptory norms of international law provide insurmountable limitations upon both the conferment and the exercise of competence flowing from the Charter," and that there are some fundamental rules, such as humanitarian standards of customary law in armed conflicts, that cannot be modified by the Security Council even under Chapter VII); Sklaire, supra note 8, at 610, 624-33 (arguing that Article 103 of the Charter does not give the Security Council the power to supersede the Fourth Geneva Convention due to the generality and ambiguity of Article 103, the political nature of the Security Council, and the decision of the International Court of Justice in the Nicaragua case).
258. Statute of the International Court of Justice, supra note 167, art. 38. But see SIMMONDS, supra note 7, at 180 (suggesting that because "both the 1907 Hague and 1949 Geneva Conventions represent the minimum standards of 'the usages established among civilized people, the laws of humanity and the dictates of the public conscience,' it can scarcely ever be maintained that the United Nations Force in the Congo was not subject to the control of the laws of war pedente bello," and concluding that, "in so far as the customary laws of war are applicable to ONUC or to UN Forces generally, the provisions of those conventions are equally binding without the necessity for any accession to them by the United Nations").
259. See, e.g., U.N. CHARTER art. 13 (identifying the General Assembly's advisory role in "promoting international cooperation in the political field and encouraging the progressive development of international law and its codification"); id. art. 92 (making the International Court of Justice 'the principal judicial organ of the United Nations"); see also Statute of the International Court of Justice, supra note 167, art. 38, para. 1 (requiring the Court to apply, inter alia, international covenants and international custom in making its decisions).
260. See, e.g., U.N. CHARTER pmbl. (reaffirming faith in the "dignity and worth of the human person"); id, art. 1, para. 3 (providing that one of the purposes of the United Nations is to "achieve international cooperation in promoting and encouraging respect for human rights amd for fundamental freedoms for all"); id. art. 55 (requiring the United Nations to promote "universal respect for, and observance of, human rights and fundamental freedoms for all").
261. See U.N. CHARTER art 1, para. 3.
262. See, e.g., Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations, G.A. Res. 46/182, U.N. GAOR, 46th Sess., 78th mtg., Supp. No. 49, U.N. Doc. A/46/49 (1991); S.C. Res. 688, supra note 114 (insisting that Iraq "allow immediate access by international humanitarian organizations to all those in need of assistance in all parts of Iraq and make available all necessary facilities for their operations"); U.N. VIENNA DECLARATION, supra note 186, paras. 29, 96, 97 (calling "upon States and all parties to armed conflicts strictly to observe humanitarian law, as set forth in the Geneva Conventions of 1949 and other rules and principles of international humanitarian law, as well as minimum standards for protection of human rights, as laid down in international conventions," and recommending "that the United Nations assume a more active role . . . in ensuring full respect for international humanitarian law in all situations of armed conflict").
263. See supra note 112.
264. See Caron, supra note 13, at 558; see also Weston, supra note 117, at 516-17 (suggesting that by adopting Resolution 678 against Iraq the Security Council "made light of fundamental UN Charter precepts and thereby flirted precariously with 'generally accepted principles of right process'"); Thomas M. Franck, Legitimacy in the International System, 82 AM. J. INT'L L. 705, 706 (1989) (defining "legitimacy" as "that quality of a rule which derives from a perception on the part of those to whom it is addressed that it has come into being in accordance with right process" and providing a comprehensive review of the concept of legitimacy of rules in the community of states).
265. See, e.g., Model Participation Agreement, supra note 87, para. 28.
266. See, e.g. U.N. CHARTER arts. 100, 101, 105; Reparations Case, 1949 I.C.J. 174 (Apr. 11).
267. See THE OXFORD DICTIONARY OF CURRENT ENGLISH (8th ed. 1990) (defining "reciprocity" as "reciprocal condition, mutual action; practice of give and take, especially between States"); see also GREEN, supra note 17, at 115 (describing reciprocity as the basis for armed forces of a belligerent, when confronted with the forces of a government that they do not recognize, to grant those forces the protections of the Geneva Conventions); Thomas Meron, Of the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument, 77 AM. J. INT'L L. 589, 592 (1983) (indicating that the concept of reciprocity is both a reason behind the norms of the law of war and important to their effectiveness).
268. See THE OXFORD DICTIONARY OF CURRENT ENGLISH (8th ed. 1990) (defining "reciprocity" as "reciprocal condition, mutual action; practice of give and take, especially between States"); see also GREEN, supra note 17, at 115 (describing reciprocity as the basis for armed forces of a belligerent, when confronted with the forces of a government that they do not recognize, to grant those forces the protections of the Geneva Conventions); Thomas Meron, Of the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument, 77 AM. J. INT'L L. 589, 592 (1983) (indicating that the concept of reciprocity is both a reason behind the norms of the law of war and important to their effectiveness).
269. See Baxter, supra note 7, at 95-96, 98 (criticizing the 1951 report of the American Society of International Law on the application of humanitarian law to the United Nations in part on the ground that humanitarian law attempts to mitigate human suffering and should not be obscured by "abstract considerations about the changing nature of hostilities"); Meron, supra note 213, at 604 (advocating the creation of an international instrument that provides a minimum core of human rights protections in all situations of internal strife and violence); Taubenfeld, supra note 7, at 673, 676 (suggesting that the name applied to a military operation cannot determine whether legal regulation of the operation is required, and that the customs of war have become a "custom of the trade" of armed conflict by which the United Nations must be restrained and limited if it takes part in armed conflicts); see also Prosecutor v. Tadic, Case No. IT-94-AR72, 37 (App., Oct. 2, 1995), para. 93 (indicating that Common Article 1, found to be a general principle of humanitarian law by the International Court of Justice in the Nicaragua case, lays down an obligation "that is incumbent, not only on States, but also on other international entitites including the United Nations," and citing Article 89 of Protocol I in support: "[i]n situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter").
270. See, e.g., U.N. CHARTER art. 1, para. 1, art. 2, para. 7, art. 5, art. 24 para. 1, art. 49, art. 103 (providing, inter alia, that protection against non-interference by the United Nations in matters essentially within the domestic jurisdiction of states does not apply to peace enforcement action under Chapter VII, and conferring primary responsibility for the maintenance of international peace and security on the Security Council to ensure "prompt and effective action" by the United Nations).
271. See Caron, supra note 13, at 567 (warning that "it does not make sense to increase [the] legitimacy [of the Security Council] at the expense of a significant loss in effectiveness").
272. See, e.g., Bivens, et al., supra note 7, at 220. The Committee on the Study of Legal Problems of the United Nations concluded: The Committee agrees that the use of force by the United Nations to restrain aggression is of a different nature from war-making by 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 all 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. Id.
273. One possible exception is in the area of economic sanctions, where unanimity on the part of the world community is crucial to the effectiveness of sanctions, and therefore where derogations from the rights of neutrals under customary international law may be required to ensure that effectiveness. See, e.g., Defense Department Report, supra note 126, at 637-40 (suggesting that while under customary international law neutral states are normally permitted to engage in non-war related commerce with a party to a conflict, the Security Council can "modify" these rights and duties through Charter Articles 2(5)(6), 25, and 49 by making them "subordinate" to the states' obligations under the Charter, for example by requiring neutral states to comply with economic embargoes o_r to return downed aircraft and air crew acting on behalf of or in conjunction with the Security Council); see also SEYERSTED, supra note 7, at 284-87 (arguing that by virtue of Charter Article 2(5) member states are deprived "not only of some of their rights as neutrals, but even of their right to stay neutral in all respects," and suggesting that the customary international law regarding neutrality has thus been expressly altered through treaty).
274. See, e.g., Baxter, supra note 7, at 96 (suggesting that if the United Nations or states refuse to follow the laws of war, the persons whom the law is meant to protect will be the first to suffer).
275. gee Hague Convention IV, supra note 19; Fourth Geneva Convention, supra note 20; Third Geneva Convention, supra note 21; Second Geneva Convention, supra note 21; First Geneva Convention, supra note 14; Protocol I, supra note 22; Protocol II, supra note 23; see also SEYERSTED, supra note 7, at 290-92 (arguing that an explicit derogation provision in a treaty binding U.N. member states would be required to permit the United Nations to "deviate from those parts of the laws of war which apply to all types of armed conflict," and concluding that, with a few possible exceptions, "the United Nations must be bound by the substantive aspects of the traditional laws of war in the humanitarian field").
276. See, e.g., International Covenant on Civil and Political Rights, supra note 193, art. 4, para. 1; American Convention on Human Rights, supra note 186, arts. 27(1), 27(2).
277. See, e.g., International Covenant on Civil and Political Rights, supra note 193, art. 4, paras. 1, 3; American Convention on Human Rights, supra note 186, art. 27, para. 3; see also Richard B. Lillich, The Paris Minimum Standards of Human Rights Norms in a State Emergency, 79 AM. J. INT'L L. 1072, 1074-75 (1985) (setting out the minimum conditions and principles for valid derogations under human rights law).
278. See, e.g., International Covenant on Civil and Political Rights, supra note 193, art. 4, paras. 1, 3; American Convention on Human Rights, supra note 186, art. 27, para. 3; see also Richard B. Lillich, The Paris Minimum Standards of Human Rights Norms in a State Emergency, 79 AM. J. INT'L L. 1072, 1074-75 (1985) (setting out the minimum conditions and principles for valid derogations under human rights law).
279. See Protocol I, supra note 22, art. 85, paras. 3(e), 4(e) (expanding grave breaches to include, inter alia, making the civilian population or individual civilians the object of a wilfull attack, in violation of the relevant provisions of the Protocol, and causing death or serious injury to body or health; and depriving a protected person of the rights of a fair and regular trial, if committed wilfully in violation of the Conventions or Protocol); First Geneva Convention, supra note 21, art. 50; Second Geneva Convention, supra note 21, art. 51 (including as grave breaches "wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly"); Third Geneva Convention, supra note 14, art. 130 (adding as grave breaches "compelling a prisoner of war to serve in the forces of a hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention"); Fourth Geneva Convention, supra note 20, art. 147 (adding as grave breaches "unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention").
280. See infra note 90 and accompanying text (discussing the neutrality of peacekeeping forces).
281. See Report of the Commission of Inquiry in Somalia, supra note 132, para. 238 (concluding that the "dual role" of peacekeeping and "war-making" played by UNOSOMII in Somalia made it possible for the operation to be "portrayed as an enemy of the Somali people"); Hpuck, supra note 11, at 57 n.269 (expressing concern that the increased use of military force by the United Nations may blur the distinction between peacekeeping and peace enforcement and compromise the neutrality essential to the success of U.N. peacekeeping); Lyons, supra note 107, at 184 ("although the use of coercive force by peacekeepers may be necessary, it can compromise the neutrality of the UN," which is seen as a "major source of its influence and effectiveness"); Miller, supra note 107, at 822-23 (suggesting that the establishment of a U.N. army would seriously impair the United Nations' traditional role as a peaceful "broker" in international affairs); von Grünigen, supra note 143, at 132-33 (suggesting that the idea of collective security is not compatible with the concept of neutrality, since if the United Nations decides to apply enforcement measures under Chapter VII, it becomes a party to the conflict, while a neutral state is obliged to accord equal treatment to the parties to a conflict).
282. for example, ONUC, after having been authorized to use force to execute parts of its mandate in the Congo, subsequently assisted in consolidating the Congolese government before withdrawing in June of 1964, See THE BLUE HELMETS, supra note 14, at 232, 259.
283. See Report of the Commission of Inquiry in Somalia, supra note 132, para. 270 (proposing that the United Nations "refrain from undertaking further peace enforcement actions within the internal conflicts of states").
284. See, e.g., SIMMONDS, supra note 7, 174-77 (arguing that to the extent that a U.N. force can be considered a de facto belligerent through its acts of force, the laws of war should apply to its actions "to the extent commensurate with the amount of force necessary to permit effective self-defense and accomplishment of its mandate").
285. See, e.g., First Geneva Convention, supra note 14, art. 13 (defining "armed forces" for the purposes of the Convention, whithout any temporal element).
286. See Protocol I, supra note 22, art. 51, para 3 (providing that "[c]ivilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities").
287. See supra note 38 (reviewing current theories underlying the concept of internationalized armed conflicts and the potential role of humanitarian law with respect to the parties involved, depending upon whether the parties are state or nonstate entities).
288. See, e.g., BOWETT, supra note 7, at 498 (suggesting that the test for the application of humanitarian law to U.N. activities should be to investigate when the actions taken by U.N. forces "amount to war in a material sense"); SEYERSTED, supra note 7, at 199 (noting that "an action conducted under the command of the United Nations itself may be considered as war in a material sense if it in fact exhibits the characteristics of a war").
289. See Fourth Geneva Convention, supra note 20, arts. 4, 47-78; Hague Regulations, supra note 18, art. 42; see also GREEN, supra note 17, at 246-57 (discussing the rights and duties of occupying powers, and also noting that a territory is "occupied only when it is actually under the control and administration of an occupant and [the occupied territory] extends only to those areas in which he is actually able to exercise such control").
290. See, e.g., SIMMONDS, supra note 7, at 175 (indicating that one of the greatest difficulties with the application of the law of armed conflict to U.K. operations arises with respect to peacekeeping forces which have only a limited right to use force, where the host states have consented to their presence and where the force has been granted immunities under Article 105 of the Charter); Lyons, supra note 107, at 174 (observing that the distinction between peaceful settlement and enforcement by the United Nations is not always clear).
291. The United Nations' involvement in the former Yugoslavia presents a particularly complicated example of how the rules of international armed conflict apply to U.N. forces outside of a large-scale enforcement action. In this dispute, Security Council authorization of the use of force by NATO troops arguably rendered all U.N. forces, including UNPROFOR, subject to the rules governing international armed conflict vis-à-vis Serbia, to the extent that Serbia had been assisting Bosnian Serbs in their battle with Croats in Bosnia-Herzegovina. See Prosecutor v. Tadić, Case No. IT-94-AR72, 37 (App., Oct. 2, 1995), para. 70 (concluding that there had been protracted, large-scale violence between the armed forces of different States and between government forces and organized insurgent groups in Yugoslavia in 1991 and 1992, and therefore that international humanitarian law applied to those hostilities); SIMMONDS, supra note 7, at 183 (arguing that Common Article 3 cannot apply to a U.N. force, because to the extent that the hostilities engaged in by an international force operating under a U.N. command and pursuant to U.N. authorization become an international armed conflict, military operations carried out by the United Nations cannot be described as "not of an international character" subject to the control of Common Article 3).
292. See supra note 38.
293. See SIMMONDS, supra note 7, at 235-36 (indicating that Articles 9 and 10(c) of the Status of Forces Agreement and paragraph 29(a) of the Force Regulations in the Congo vested exclusive criminal jurisdiction over members and officials in the authorities of the participating states from whose contingent the member came).
294. See, e.g., Arend, supra note 82, at 524-25 (describing some of the financial difficulties faced by the United Nations, and indicating that nations remain reluctant to provide increased financial support for the Organization); Julia Preston, Massive World Body Resists Shaping Up; Reform Efforts at U.N. Meet Opposition, WASH. POST, Jan. 3, 1995, at Al (reporting on complaints by U.N. officials that more peacekeeping and other work is being given to the Organization when members are $2 billion behind in their support payments).
295. See, e.g., Mackinlay & Chópra, supra note 86, at 122 (indicating that for "second generation" U.N. forces, the pool of potential force commanders must be widened to include general officers from armies with a wider experience of low intensity conflict).
296. See, e.g., Houck, supra note 11, at 93 (suggesting that states have been reluctant to pursue a more permanent U.N. security structure in part due to concern that the United Nations is "institutionally incapable of exercising that authority or using those resources wisely").
297. See, e.g., SIMMONDS, supra note 7, at 156, 194-96 (noting that the United Nations does not have a system of military law or procedures for court martial, which are required by the Geneva Convention's enforcement provisions, and citing as an example the inability of the United Nations in the Congo to maintain disciplinary and criminal authority over its members in accordance with the Geneva Conventions).
298. See, e.g., Houck, supra note 11, at 35 (referring to the dispute that arose between the United Nations and the United States over the transition of UNITAF to UNOSOM II and whether disarmament of violent segments of the population would be required before the peacekeeping force would be deployed); Lyons, supra note 107, at 175 (indicating that the United Nations' problems with managing peacekeeping operations have been escalated by disagreements between the Secretary-General and member states over the full implications of the peace enforcement function of the Organization).
299. See BROWNLIE, supra note 163, at 444-50 (concluding, based upon state practice and the decisions of international tribunals, that whenever international law is breached there is a duty to make reparations); see also Hague Convention IV, supra note 19, art. 3 (rendering belligerent parties that violate the provisions of the Hague Regulations liable to pay compensation for violations of the Convention "if the case demands"); Protocol I, supra note 22, art. 91; Torture Convention, supra note 78, art. 14 (requiring contracting states to establish appropriate compensation for violations of the Convention by the state); Report of the Commission of Inquiry in Somalia, supra note 132, para. 264 (recommending that ex gratia payments be made to some Somali civilians on a without prejudice basis for injuries suffered as a result of UNOSOM II's implementation of Security Council Resolution 837).
300. See, e.g., Congo Status of Forces Agreement, supra note 94, art. 10(b) (providing for the settlement of disputes "by negotiation or any other method agreed between the Parties; if it is not found possible to arrive at an agreement in this manner, the matter shall be submitted to arbitration at the request of either Party.").
301. See, e.g., Common Article 3, supra note 31, para. 1 (providing that the "application of the preceding provisions shall not affect the legal status of the Parties to the conflict"); see also supra note 32.
302. See Richard R. Baxter, Jus in Bello Interno: The Present and Future Law, reprinted in LAW AND CIVIL WAR IN THE MODERN WORLD 518-36 (John Norton Moore ed., 1974) (indicating that even though Common Article 3 specifies that its application does not affect the legal status of the parties to the conflict, governments have nonetheless been reluctant to acknowledge the existence of internal armed conflicts or to conclude agreements with the rebels since doing so might enhance the status of the insurgents).
303. The United Nations might also consider the creation of a further Protocol to the Geneva Conventions permitting the United Nations to ratify the agreements, although this would take more time and require ratification by a minimum number of states in order to come into effect See, e.g., Secretary-General ICTY Report, supra note 12, para. 20 (arguing that using a treaty to establish a war crimes tribunal for the former Yugoslavia presented disadvantages such as the considerable time required to establish the instrument and obtain member state ratification, without guarantee that member states would, in fact, ratify the treaty). Alternatively, the Security Council could request an advisory opinion from the International Court of Justice, or the General Assembly could adopt a resolution or declaration on the issue; however, these mechanisms arguably would not bind member states to the same extent as a Security Council resolution. See U.M. CHARTER arts. 10, 25, 96.
304. See supra note 6; see also supra note 98 and accompanying text
305. See Secretary-General's ICTY Report, supra note 12, para. 35; see also S.C. Res. 955, supra note 72, Annex, arts. 2-4. With respect to potential internationalized armed conflicts, U.N. member states have legitimate concerns that parties to a conflict will be more likely to target U.N. forces if those parties decide that they may take advantage of the combatants' privilege whenever U.N. forces are actively involved in hostilities. To address this, a presumption might be codified that any taking of the life of a U.N. force member will constitute an offense for which the perpetrator may be prosecuted, but that if it can be established that the U.N. force member was a combatant in an international conflict vis-à-vis the other party, the combatants' privilege will operate as a valid defense to the charges.
306. see, e.g., Houck, supra note 11, at 30-37 (describing the adoption by the United Nations of a hybrid form of the single-state and managed-coalition models of command and control in the U.N. Somalia operation).
307. See, e.g., SIMMONDS, supra note 7, at 196 (suggesting that the United Nations may have to designate as its agent one or more member states contributing troops to a U.N. force in order to fulfill the requirements of the Geneva Conventions).
308. See S.C. Res. 794, supra note 4, paras. 12-15, 18 (authorizing the Secretary-General and member states "to establish appropriate mechanisms for coordination between the United Nations and their military forces," appointing an "ad hoc commission composed of members of the Security Council to report to the Council on the implementation of the present resolution," inviting "the Secretary-General to attach a small operation liaison staff to the field headquarters of the unified command," and requiring the Secretary-General and, as appropriate, the states concerned to report to the Council on a regular basis); see also General Principles Governing the Organization of the Armed Forces Made Available to the Security Council by Member Nations of the United Nations, Report by the Military Staff Committee U.N. SCOR, 2d Sess., Special Supp. No. 1, U.N. Doc. S/336 (1947) (providing model provisions for agreements under Article 43 of the Charter); Report of the Commission of Inquiry in Somalia, supra note 132, para. 272 (suggesting that the command structure for U.N. peace enforcement actions requires more study).
309. See S.C. Res. 794, supra note 4, paras. 12-15, 18 (authorizing the Secretary-General and member states "to establish appropriate mechanisms for coordination between the United Nations and their military forces," appointing an "ad hoc commission composed of members of the Security Council to report to the Council on the implementation of the present resolution," inviting "the Secretary-General to attach a small operation liaison staff to the field headquarters of the unified command," and requiring the Secretary-General and, as appropriate, the states concerned to report to the Council on a regular basis); see also General Principles Governing the Organization of the Armed Forces Made Available to the Security Council by Member Nations of the United Nations, Report by the Military Staff Committee U.N. SCOR, 2d Sess., Special Supp. No. 1, U.N. Doc. S/336 (1947) (providing model provisions for agreements under Article 43 of the Charter); Report of the Commission of Inquiry in Somalia, supra note 132, para. 272 (suggesting that the command structure for U.N. peace enforcement actions requires more study).
310. See, e.g., Mackinlay & Chopra, supra note 86, at 125 (postulating the creation of a U.N. "department of defense").
311. See SIMMONDS, supra note 7, at 191 (indicating that in 1963, the United Nations informed the ICRC that "it would propose to incorporate in any future agreements with States providing contingents a provision under which these contributing States would be obliged to take those measures ... to ensure the observation of and compliance with the laws of war and the Geneva Conventions by members of their contingents"); see also Model Participation Agreement, supra note 87, para. 28.
312. See Model Participation Agreement, supra note 87, para 28.
313. See Protocol I, supra note 22, art. 90 (providing for the establishment of an "International Fact-Finding Commission" upon the agreement of 20 or more states); Fourth Geneva Convention, supra note 20, art. 149 (providing for the establishment of ad hoc commissions of inquiry to investigate poten-tial violations of humanitarian law by the parties to an armed conflict); Third Geneva Convention, supra note 21, art. 132; Second Geneva Convention, supra note 21, art. 53; First Geneva Convention, supra note 14, art. 52; see also S.C. Res. 885, supra note 154 (authorizing the establishment of an impartial commission of inquiry to investigate armed attacks on peacekeepers during the U.N. operation in Somalia); Report of the Commission of Inquiry in Somalia, supra note 132, para. 268 (recommending that the United Nations adopt as a principle the use of experienced observers at the outset of new peacekeeping missions); SEYERSTED, supra note 7, at 195-96 (describing an independent commission established by the United Nations and the ICRC during the U.N. Operation in the Congo to investigate the deaths of three red cross personnel which potentially involved members of the U.N. Force).
314. See, e.g.. STAFF OF SENATE COMM. ON FOREIGN RELATIONS, 103D CONG., IST SESS., REFORM OF UNITED NATIONS PEACEKEEPING OPERATIONS: A MANDATE FOR CHANGE, UNITED NATIONS STAFF REPORT TO THE COMMITTEE ON FOREIGN RELATONS OF THE U.S. SENATE 58 (Comm. Print 1993) (recommending, inter alia, that a U.N. peacekeeping training unit be established that "is capable of providing continuous training to units both before and after they are deployed").