The Reach of International Humanitarian Law in Multinational Armed Conflicts

This blog sheds light on the reach of international humanitarian law (IHL) in multinational forces while being clear that IHL is applicable, regardless of the mission mandate or label, so long as there are conditions of armed conflict. It highlights key issues, including, the distinction between peacekeeping & peace enforcement, classification of conflicts, the legal status of multinational forces, and difficulties around coordination & compliance. The blog emphasizes on the fact-based assessment in-turn based on accountability as the only means of ensuring humanitarian protections during multinational military operations.

I.              Overview / Abstract

This blog reviews the utility & operation of international humanitarian law (IHL) with respect to multinational military forces conducting armed conflict operations. It finds that the scope of the IHL legal obligations of multinational forces applies at the operational level irrespective of the legal formats, locations, and political legitimacy underlying their operational distinctions, based solely on the facts addressed in the armed conflict. The analysis reiterates a fundamental premise: IHL applies whenever the category of armed conflict is attained as set out in the Geneva Conventions and international customary law, even without consideration of legitimacy or jus ad bellum issues. Extrication of the issues in this context are the difference between a peacekeeping and peace enforcement mission; clarifying the significance of multinational forces as parties to the act of conflict; and how the actions of each member country within a unified IHL obligation interrelates, especially regarding general contingents. The blog notes how longstanding norms have addressed important issues such as occupation, detention, and the protection of peacekeepers (or military forces assuming similar such roles) intra and inter-se. The importance of some of this new jurisprudential and military manual development highlights not only the vital role of IHL generally in recognizing and enforcing rules for accountability of multi-national forces, but also maximizing or preserving humanitarian protections generally as outlined by IHL. Ultimately, the blog emphasizes the need for clear existing legal definitions, training, and standard operational procedures by countries in military contingents for multi-national military operations or missions - to convey the relevance of and compliance with IHL, and to shore up the rule of law during armed conflict operations.

II.             Introduction

International humanitarian law (IHL) governs multinational forces without qualification if the factual circumstances of their deployment satisfy the legal requirements for armed conflict, and applies no matter the mandate, origin, or legitimacy of the forces involved. With regard to the classification and regulation of operations involving multinational forces, the real world is infinitely complicated and the legal issues distinctly complicated enough to warrant academic analysis, as highlighted in the leading literature and also guidance from the International Committee of the Red Cross (ICRC).

III.           Understanding Multinational Forces

Multinational forces include military coalitions, typically sanctioned by international agencies such as the United Nations (UN), the North Atlantic Treaty Organization (NATO), or regional organizations such as the African Union (AU) or the European Union (EU).[1] These forces can be involved in operations that range from traditional peacekeeping, robust peace enforcement, and conflict prevention, to post-conflict stabilization. Their nature and scope can change overtime and may often involve the use of the substantial force, which can entangle the multinational forces in a conflict-managed environment.

IV.          The Principle of IHL Applicability

IV.I     Facts Over Labels

A basic principle of IHL is that its application to any military actor, including multinational actors, is determined solely by the facts on the ground, not by the character of the mission, or by its jus ad bellum. The ICRC states explicitly that multinational forces must adhere to IHL when its conditions for applicability are met, regardless of what the operation is called (e.g. “peacekeeping” versus “peace enforcement”),[2] or whether it is authorized by Chapter VI or Chapter VII of the UN Charter.

IV.II    The Relevance of the Geneva Conventions

Common Articles 2 and 3 of the Geneva Conventions of 1949 presents the standard for identifying the great debate concerning IHL applicability. In International Armed Conflicts (IACs), IHL applies in “all cases of declared war or of any other armed conflict” between states, while for Non-International Armed Conflicts (NIACs), IHL applies whenever there is sustained hostilities between armed groups and/or state actors or between such armed groups.

IV.III   The Myth of Immunity

There has been historical hesitance or reluctance couched in the insistence that peace forces are “neutral” or “impartial” and therefore, not “belligerents”, but there is no ground in treaty law and practice for international or domestic courts to conclude that multinational forces can avoid obligations under IHL just because the force is accepted as a participant to hostilities.[3] Courts, military manuals (UK, New Zealand, France, Spain, Peru), and academic writing affirm that IHL applies to peace missions when a peace force is a party to a particular conflict, and the principle of equal status of belligerents is fully in effect.

V.       The Principle of IHL Applicability

V.I     Peacekeeping v. Peace Enforcement

Multinational operations or missions frequently operate somewhere in between peacekeeping (generally Chapter VI of the UN Charter) and peace enforcement (typically falling under Chapter VII).[4] The mandate from the UN Security Council does not dictate the relevant International Humanitarian Law (IHL) one must follow; the relevant aspect is whether the military operations have crossed into armed conflict. For example, even a Chapter VI mission may be obligated to follow IHL if it became involved in hostilities (whether by mission creep or changing circumstances).

V.II     Direct & Indirect Participation

IHL applies to both direct participation in hostilities and indirect support or operational involvement. The so-called “support-based approach” is now widely accepted: multinational forces may be bound by IHL through their support or facilitation of hostilities, the transfer of detainees, or administration of territory as a de facto occupying power.

V.III    Determining Parties to Conflict

It can be tricky to identify precisely which states or entities are parties to an armed conflict with the multinational forces. Each contributor can be assessed or evaluated based on the amount of “effective control” or direct involvement in the hostile act.[5] The coalition may be considered one party, if they have a shared command structure; alternatively, depending on the situation each state may in fact have its own responsibility under IHL.

VI.       4.0 Key Issues

VI.I     Occupation Law

Occupation law, a subset or a specialized branch of IHL, is particularly applicable when multinational forces assert administrative or legislative functions in an occupied territory.[6] States & organizations cannot avoid & escape their legal obligations simply by asserting that the nature of their operations do not fall under occupation law.

VI.II     Detention Practices

Multinational operations usually will involve the detaining of individuals. International Humanitarian Law and human rights law provide for robust rules regarding the treatment, legal safeguards, and transfer of detainees.[7] Of note is the non-refoulement rule (prohibiting transfer where there is risk of torture or arbitrary killing).

VI.III    Protection of Peacekeepers

IHL contains various express prohibitions concerning attacks on peacekeeping facilities and personnel such as the Rome Statute of the International Criminal Court or customary law. Such protections apply as long as the personnel retain a civilian status in the context of conflict; once personnel engage in combat only (combatants) and not as civilians, they waive & lose the protections afforded to civilians and became a legitimate military objective or targets.

VII.          Jurisprudence and Military Manuals

International & domestic laws (jurisprudence) highlight the distinction between jus in bello and jus ad bellum, and significant case law such as the Hostage Trial proceedings before the US Military Tribunal at Nuremberg support that IHL is applicable regardless of the nature or perceived justice of the conflict, just as military manuals from a number of states will exhibit a comparable consensus.[8]

VIII.       Challenges in Implementation

VIII.I   Coordination & Interoperability

Multinational forces consist of contingents from multiple nations with different national doctrines. Training, observance and interoperability are difficult and thus can be challenging across IHL when national standards differ or when political doctrine interferes with an objective legal assessment.

VIII.II  Ambiguity in Mandate or Status

Changing politicians, ambiguous mission creep, and complex status relationships causes confusion as to whether IHL applies. When it comes to IHL, it is only the facts on the ground and the actual engagement in hostilities that determine when it applies, regardless of where or from which political mandate that mission originated.

VIII.III   Intersection with Human Rights Law

IHL and human rights law frequently overlap in multinational operations. Human rights norms can continue to apply in operations, particularly in detention and occupation circumstances, and may create additional protections where IHL may be silent and/or unsure.

IX.          Conclusion

The relevance and relevance of IHL and its application to multinational forces are based on objective criteria considering the factual nature of an operation, rather than labels and the political mandate of the force. When multinational forces transition to armed conflict, as defined by acts of war, whether directly or indirectly (through indirect involvement, third parties, ability to intervene or act), they are equally bound by IHL like any other belligerent to a conflict. Through the principles of the equality thesis of belligerent status, the strict separation of jus in bello from jus ad bellum, and scrupulous respect for the humanitarian principles: victims of conflict can be afforded protections irrespective of the nature and/or justifications of the conflict.[9] Multinational operations need to be carefully contextualized in a robust legal & operational framework (through effective training, ongoing evaluations, consistent assessments and harmonized standards) to be able to fulfil international humanitarian obligations. Given the evolving nature of peace operations, it is vital that there is continued adherence to and compliance with IHL in order to protect both civilian populations and peacekeepers,[10] as well as to maintain some semblance of the rule of law in international armed conflict.

[1] Michael E. Firlie, Practical Experience from a Former Officer in Missions Abroad, in Cultural Challenges in Military Operations 27 (Cees M. Coops & Tibor Szvircsev Tresch eds., NATO Def. Coll. 2007).

[2] Lise Morjé Howard, Peacekeeping, Peace Enforcement, and UN Reform, 16 GEO. J. INT’L AFF. 6, 6–13 (2015).

[3] Section 3: General Rights and Duties of Belligerents, 33 AM. J. INT’L L. 334, 334–421 Suppl. (1939).

[4] Lise Morjé Howard, Peacekeeping, Peace Enforcement, and UN Reform, 16 GEO. J. INT’L AFF. 6, 6–13 (2015).

[5] Marishet M. Hamza, Fragmented Armed Groups in International Humanitarian Law, 4 HUMAN. VÖLKERRECHT 98, 98–111 (2021).

[6] William Slomanson & Eyal Benvenisti, Applicability of the Law of Occupation, 99 PROC. ANN. MEETING (AM. SOC’Y INT’L L.) 29, 29–31 (2005).

[7] Paust & Jordan J, Detention, Judicial Review of Detention, and Due Process During Prosecution., vol. 97, Proceedings of the Annual Meeting (American Society of International Law), pp. 13–18, (2003).

[8] McMahan & Jeff, Morality, Law, and the Relation Between Jus Ad Bellum and Jus in Bello., vol. 100, Proceedings of the Annual Meeting (American Society of International Law), pp. 112–14, (2006).

[9] McMahan & Jeff, Morality, Law, and the Relation Between Jus Ad Bellum and Jus in Bello., vol. 100, Proceedings of the Annual Meeting (American Society of International Law), pp. 112–14, (2006).

[10] Lise Morjé Howard, Peacekeeping, Peace Enforcement, and UN Reform, 16 GEO. J. INT’L AFF. 6, 6–13 (2015).