PSO Operations within The NIAC paradigm Lt Col R. Brennan BL

Transcription

1 PSO Operations within The NIAC paradigm Lt Col R. Brennan BL

2 The conflicts in the former Yugoslavia could have been characterised as both internal and international, or alternatively as an internal armed conflict alongside an international one, or as an armed conflict that had become internationalized because of external support, or as an international conflict that had subsequently been replaced by one or more internal conflicts or some combination thereof ICTY Appeals Chamber Tadic Decision

3 Relevance of the dialogue Applicability of IHL to PSO Legal Regimes Case Study Libya DRC The legitimacy imperative Future operations.

4 First Non-International Armed Conflicts (NIACs) have been and will remain the dominant form of warfare, NIACs will not disappear and pure international wars are becoming rare. Watkin (2011) 1: Relevance

5 The Chameleon Factor (Ross, 2008) 1: Relevance

6 The multifaceted nature of operations, and the ever more difficult and violent environments in which personnel operate sometimes requiring them to fight on the side of one party to a conflict against another Kellenberger, Relevance

7 Legal Spectrum of Military Operations Peacetime Internal tensions, riots, disturbances Non-International Armed conflict International Armed conflict National Law, Human Rights Law, Treaty law, CIL? National Law, Emergency Legislation, Human Rights Law, Treaty Law, GC Common Art 3, AP II, some HRL, Treaty Law, CIL, National Law GC I, II, III, IV, AP I All treaties, Customary Law, some HRL, National Law e.g. UK now Northern Ireland, FRY early 90 s, AFG 03+, Iraq 1990, Falklands, Afg/Iraq early stages 7

8 ICRC view UN view UN Secretary-General s bulletin on the Observance by the United Nations Forces of International Humanitarian Law Article 8(2)(b)(iii) of the Rome Statute EU view EU Concept for the Use of Force in EU-led Military Operations 2 Applicability of IHL

9 Common Article 3 Tadic (1997) Rome Statute Art 8(2)(d) &(f) Additional Protocol II 3 Legal Regimes

10 The distinction between IAC and NIAC has lost much of its value and weight what is inhumane and consequently proscribed in international wars, cannot but be inhumane and inadmissible in civil strife Prosecutor v Tadic, Case No.IT-94-1., para Legal Regimes

11 Transformers Eritrea Libya Uganda/Sudan DRC 3 Legal Regimes

12 4 Libya Case Study

13 Operative paragraph 4: Authorizes Member States to take all necessary measures. to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory UNSCR 1973 (2011) 4 Libya Case Study

14 Classification Targeting Military Objective Proportionality 4 Libya Case Study

15 OP 4..to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi UNSCR 1973 (2011) 4 Libya Case Study

16 4 Libya Case Study August/Sept NTC Targeting Qaddafi Forces.

17 The Chameleon Factor MONUC : 1999 SC res 1258 under initial mandate were classic peace keepers (90 personnel) and therefore enjoyed the protection of civilian status under the 1994 Convention on the Safety of United Nations (UN) and Associated Personnel 4 DRC Case Study

18 MONUC: 2000 SC res 1291 increased up to 5537 pers with mandate to use force in self defence and also to defend civilians under imminent threat of physical violence. MONUC: 2004 SC res 1565 MONUC authorised to use all necessary means to carry out its protection mandate. 4 DRC Case Study

19 MONUC: 2005 SC res 1592 MONUC authorised to take more robust tactics in dealing with armed groups ; forcibly disarm rebels; cordon and search operations against illegal armed groups. MONUC was a party to at least one or more NIAC in Ituri and Kivu in 2005,when it began to conduct far more proactive military operations with FARDC - Operation Falcon Sweep and Operation Iron Fist. 4 DRC Case Study

20 MONUC: : role reduced to that of logistical support and operational training as such no longer party to the conflict and consequently its forces were subject to civilian protection. 4 DRC Case Study

21 MONUC: 2008 SC res 1856 (2008), implement its mandate through robust rules of engagement and further authorised it to engage in joint military operations with FARDC. MONUCs Con Ops and ROEs were revised to include fire support, air to ground engagements; preventing collateral damage. Twenty-seventh report of the Secretary General on the UN in the DRC S/2009/160 (27 March 2009) Para s mission 4 DRC Case Study

22 MONUSCO: 2010 SC res 1925 (2010) MONUC renamed MONUSCO -Operation Amani Leo (3rd Joint Operation) Combatants within the meaning of the Secretary General Bulletin. 4 DRC Case Study

23 Libya Restrictive Target Lists Increased Caveats Denial Operations restricted Narrow application of Military Objective ; 4 DRC Case Study

24 However, the nature of a conflict equally affects application of the law, sometimes by necessitating policy and operational limitations that exceed those found in international humanitarian law. Nowhere has this dynamic been more apparent than during PSO operations in NIACs 5 The legitimacy imperative

25 During 2009/2010 FARDC whom MONUC had been engaged in joint operations committed mass atrocities in retribution actions against FDLR in which rape became endemic. International Crisis Group Congo: No stability in KIVU despite rapprochement with Rwanda Africa Report No The legitimacy imperative

26 In 2009 revised terms of collaboration were entered into between the UN and the government of the DRC where military and operational support was governed by the policy of conditionality. (Conditionality note 12th October 2009). ( 5 The legitimacy imperative

27 Protection of Civilians European Union Military Staff Draft Concept on Protection of Civilians (POC) in EU led Military Operations issued on 10th April 2014, Para 34/35 -Senior Mission/operation leadership needs to be clear about which body of law (IHL/IHRL/IRL) is applicable to whom and in what circumstances 6 Future Operations

28 Protection of Civilians Since the POC has become a core part of UN peace keeping reflected in the fact that 95% of UN Peacekeepers serve on 9 UN missions that have POC at the heart of their mandate. The UN Secretariat s November 2013 report further underpins the requirement for the enhancing protection of UN peacekeeping missions 6 Future Operations

29 Conclude