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Abstract

This article concludes that the United Nations is bound by the rules of customary international humanitarian law, and occupies a horizontal relationship with the other subjects of IHL that it engages in armed conflict. When U.N. armed forces engage in armed conflict, the Organization qualifies as a "party to armed conflict" within the meaning of IHL, and U.N. troops also fall within the IHL definition of "combatants," rendering the Organization subject to IHL obligations. Continuing U.N. arguments to the contrary either deprive IHL definitions of their determinacy or regress to a claim of undeserved special status for Charter norms and for the Organization. Moreover, with respect to U.N. intervention in civil wars, the existing allocation of law-making authority between sovereign states, on one hand, and the international order, on the other, leaves individual states and the United Nations without the authority to assert the civil war IHL regime. As a consequence, U.N. forces intervening in civil conflict are bound by the full IHL regime and must recognize in all hostile combatants the "combatant's privilege" and prisoner of war status. Finally, U.N. obligations under IHL cannot be satisfied by troop contributing states. By virtue of U.N. command and control, the United Nations alone is responsible under IHL for the conduct of its forces, because only an authority that exerts command and control over troops can require that those troops comply with IHL obligations, a position supported by the draft code of state responsibility and the International Court of Justice. The contrary notion - that troop contributing states could be directly responsible for actions taken under U.N. command and control - would cripple the effectiveness of any U.N. force by creating an incentive for contributing states to interfere with and compromise U.N. operations. Ultimately, humanitarian law obligations may require that the international community modify the way in which peacekeeping and peacemaking operations are structured.

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