¹ Reuters, UN Calls on Sudan to Probe Attack on Peacekeepers, 17 February 2010, available at: http://www.alertnet.org/thenews/newsdesk/N17129558.htm, last accessed 15 June 2010. BBC News, Four Darfur Peacekeepers Kidnapped, 14 April 2010, available at: http://news.bbc.co.uk/2/hi/africa/8621060.stm, last accessed 15 June 2010. The toll of peacekeepers killed in Darfur “due to direct acts of violence since the beginning of 2008” until the end of 2009 was 22. Peace and Security Section of the United Nations – Department of Public Information, United Nations Peace Operations 2009: Year in Review 15 (2010).Google Scholar

² Id., 14; Katrina Manson, Fighters Kill U.N. Peacekeeper in North Congo Attack, available at: http://www.reuters.com/article/idUSTRE63315D20100404, last accessed 15 June 2010.Google Scholar

³ Peace and Security Section of the United Nations – Department of Public Information (note 1), 7. On the issue of safety and security of staff and how this can affect the effectiveness of missions, see also, for example, Global Field Support Strategy: Report of the Secretary-General, UN Doc. A/64/633 (2010), para. 8.Google Scholar

⁴ See, for example, Alex J. Bellamy, Paul Williams, and Stuart Griffin, Understanding Peacekeeping (2004); Michael W. Doyle and Nicholas Sambanis, Making War and Building Peace: United Nations Peace Operations (2006).Google Scholar

⁵ Convention on the Safety of United Nations and Associated Personnel, 9 December 1994, UNTS, 2051, 391. 88 states are parties to the Convention as of 17 February 2010. On 8 December 2005, the General Assembly through its resolution 60/42 adopted the Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel, which has not yet entered into force. Article 2 of the Protocol extends the application of the Convention to “all other United Nations operations established by a competent organ of the United Nations in accordance with the Charter of the United Nations and conducted under United Nations authority and control for the purposes of: (a) Delivering humanitarian, political or development assistance in peacebuilding, or (b) Delivering emergency humanitarian assistance.” These operations are otherwise covered by the Convention only if “the Security Council or the General Assembly has declared, for the purposes of this Convention, that there exists an exceptional risk to the safety of the personnel participating in the operation” (Article 1(c)(2)).Google Scholar

⁶ See, Id. Articles 9–19. On the regime of universal jurisdiction, see, for example, Evan T. Bloom, Protecting Peacekeepers: The Convention on the Safety of United Nations and Associated Personnel, 89 The American Journal of International Law 621,626–628 (1995).Google Scholar

⁷ Id. Article 2(2).Google Scholar

⁸ See, Id. Article 20(a).Google Scholar

⁹ See, for example, Robert Kolb, Gabriele Porretto, and Sylvain Vite, L'Application du Droit International Humanitaire et des Droits de l'Homme aux Organisations Internationales: Forces de Paix et Administrations Civiles Transitoires 121–129 (2005). For an analysis of relevant state practice and UN practice, see Marten Zwanenburg, Accountability of Peace Support Operations, 161–179 (2005).Google Scholar

¹⁰ See, Kolb, Porretto, and Vite, (note 9), 182; Robert Kolb, Droit Humanitaire et Operations de Paix Internationales: les Modalites d'Application du Droit International Humanitaire dans les Operations de Maintien ou de Retablissement de la Paix auxquelles Concourt une Organisation Internationale (en particulier les Nations Unies) 44 (2006). Other relevant conventions are: Convention on the Privileges and Immunities of the United Nations, 13 February 1946, UNTS, Vol. 1, 15; Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 14 December 1973, UNTS, Vol. 1035, 167; International Convention against the Taking of Hostages, 17 December 1979, UNTS, Vol. 1316, 205.Google Scholar

¹¹ Michael Bothe, War Crimes, in: The Rome Statute of the International Criminal Court: A Commentary, Vol. I (Antonio Cassese, Paola Gaeta, and John R. W. D. Jones eds., 2002), 411. See also Ola Engdahl, Protection of Personnel in Peace Operations: The Role of the ‘Safety Convention’ against the Background of General International Law 93 (2007).Google Scholar

¹² See, KOLB, Porretto, AND Vité (note 9), 182.Google Scholar

¹³ See, Id.; Eric David, Principles de Droit Des Conflits Armés 282 (4th ed., 2008). The study Customary International Humanitarian Law published by the International Committee of the Red Cross (ICRC) in 2005 states that “[s]tate practice treats peacekeeping forces, which are usually professional soldiers, as civilians” (Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Vol. I: Rules 112 (2005). Emphasis added). These authors have proposed two sources of protection. Some have affirmed that the peacekeepers are still protected by the law applicable in peacetime (see Kolb, Porretto, and Vité (note 9), 182; Kolb (note 10), 44), while others have argued that they are protected under IHL, in the sense that Article 37(1)(d) of Additional Protocol I, prohibiting the “feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other states not parties to the conflict,” would imply some kind of protected status for UN personnel (Christopher Greenwood, Protection of Peacekeepers: The Legal Regime, 7 Duke Journal of Comparative & International Law 185, 189–190 (1996)). Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, UNTS, Vol. 1125, 3 [hereinafter API].Google Scholar

¹⁴ Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, UNTS, Vol. 75, 287 [hereinafter GCIV].Google Scholar

¹⁵ Article 4 GCIV.Google Scholar

¹⁶ Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915 (2000), para. 16.Google Scholar

¹⁷ See, for example, Greenwood (note 13), at 190.Google Scholar

¹⁸ See, Id., 191. The author also adds that “it is arguable that the guarantees in Articles 4 and 5 of [Additional Protocol II] are declarations of customary law”. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, UNTS, 1125, 609 [hereinafter APII].Google Scholar

¹⁹ See, Engdahl (note 11), 117. See also Henckaerts and Doswald-Beck (note 13), 112.Google Scholar

²⁰ The term “combatant” is used here because the author shares the view that the engagement of peacekeepers in an armed conflict internationalizes it.Google Scholar

²¹ See, for example, Greenwood (note 13), 189; Kolb (note 10), 40–41; Marco Sassoli, International Humanitarian Law and Peace Operations, Scope of Application Ratione Materiae, in International Humanitarian law, Human Rights and Peace Operations: Proceedings of the 31st Round Table on Current Problems of International Humanitarian law, Sanremo, 4–6 September 2008,100, 104–106 (Gian Luca Beruto ed., 2009).Google Scholar

²² See, Article 51(3) API.Google Scholar

²³ See, for example, Kolb (note 10), 41; Bloom (note 6), 625; Greenwood (note 13), 198; Michael Cottier, Article 8 para. 2 (b) (iii), in: Commentary on the Rome Statute of the International Criminal Court – Observer's Notes, Article by Article (Otto Triffterer ed., 2nd ed., 2008) 336. On the other hand, Kittichaisaree makes reference to Section 1.1 of the Secretary-General's Bulletin: Observance by United Nations forces of international humanitarian law of 6 August 1999 (UN Doc. ST/SGB/1999/13) and he affirms that “the UN itself officially recognizes as ‘combatants’ UN forces engaged in situations of armed conflict, including those engaged in enforcement actions or those using force in self-defence during peace-keeping operations.” Kriangsak Kittichaisaree, International Criminal law 161 (2001).Google Scholar

²⁴ On this evolution, see Trevor Findlay, The Use of Force in UN Peace Operations (2002).Google Scholar

²⁵ Cottier (note 23), 336. For a less strict interpretation, see Engdahl (note 11), 98 and 103.Google Scholar

²⁶ Niels Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law 61 (2009).Google Scholar

²⁷ See, for example, Kolb (note 10), 45; Antoine Bouvier, Convention on the Safety of United Nations and Associated Personnel”: Presentation and Analysis, 35 International Review of the Red Cross 638, 652 (1995).Google Scholar

²⁸ Further complications may then derive from the enhancement of the mandate of a peacekeeping mission after its deployment, which may lead to the loss of consent from the parties. Another problematic aspect in the application of IHL to peacekeepers regards the relationship between the Safety Convention and IHL, in the sense that different interpretations of article 2(2) of the Convention have been proposed and while some authors have argued that in case of engagement of peacekeepers in armed conflict IHL (and only IHL) should apply; others have affirmed that in case of non-international armed conflict both the Safety Convention and IHL would be applicable. The present author shares the first point of view. See, on the one hand, Bouvier (note 27), 661–662; Sassoli (note 21), 102; Jakob Kellenberger, Keynote Address, in International Humanitarian law, Human Rights and Peace Operations: Proceedings of the 31st Round Table on Current Problems of International Humanitarian Law, Sanremo, 4–6 September 2008, 32, 36 (Gian Luca Beruto ed. 2009). On the other hand, see Engdahl (note 11), 238; Greenwood (note 13), 199.Google Scholar

²⁹ See, for example, Rome Statute of the International Criminal Court, 17 July 1998, Article 7, UNTS, Vol. 2187, 3 [hereinafter ICCSt.]. On crimes against humanity, see, for example, Roger S. Clark, Crimes Against Humanity and the Rome Statute of the International Criminal Court, in The Rome Statute of the International Criminal Court: A Challengeto Impunity, 75 (Mauro Politi and Giuseppe Nesi eds., 2001).Google Scholar

³⁰ Gerhard Werle, Principles of International Criminal law 219 (2005).Google Scholar

³¹ Articles 8(2)(b)(iii) and 8(2)(e)(iii) ICCSt.Google Scholar

³² Cottier (note 23), 330–331; Bothe (note 11), 410–411; Knut Dörmann, Elements of War Crimes Under The Rome Statute of the International Criminal Court 154–155 (2003).Google Scholar

³³ See, Article 4(b) Statute of the Special Court for Sierra Leone, annexed to the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone, Freetown, 16 January 2002 [hereinafter SCSLSt.]. This hybrid Court was created through the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone, Freetown, 16 January 2002, available at: http://www.scsl.org/LinkClick.aspx?fileticket=CLk1rMQtCHg%3d&tabid=176, last accessed 15 June 2010.Google Scholar

³⁴ See, for example, Daniel Franck, Article 8(2)(b)(iii)—Attacking Personnel or Objects Involved in a Humanitarian Assistance or Peacekeeping Mission, in: The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Roy S. Lee ed., 2001), 145; Kittichaisaree (note 23), 160; Werle (note 30), 381; Cottier (note 23), 330; Bothe (note 11), 411; Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915 (2000), para. 16. For the war crimes of attacking civilians and civilian objects, see Articles 8(2)(b)(i), 8(2)(b)(ii), and 8(2)(e)(i) ICCSt.; Article 4(a) SCSLSt.Google Scholar

³⁵ Werle (note 30), 380 and Franck (note 34), 145. See also Kittichaisaree (note 23), 160; Cottier (note 23), 330. Confirming the customary nature of this offence, see Rule 33 of the study Customary International Humanitarian law published by the ICRC in 2005. Henckaerts and Doswald-Beck (note 13), 112.Google Scholar

³⁶ Article 8(2)(b)(i), Article 8(2)(b)(ii), and Article 8(2)(e)(i), Elements of Crimes.Google Scholar

³⁷ See, for example, Cottier (note 23), 338; Dörmann (note 32), 153. No result requirement is provided in Article 8(2)(b)(iii) and Article 8(2)(e)(iii), Elements of Crimes of the International Criminal Court, adopted by the Assembly of States Parties 9 September 2002, ICC-ASP/1/3(part II-B) [hereinafter Elements of Crimes].Google Scholar

³⁸ Article 8(2)(b)(iii) and Article 8(2)(e)(iii), Elements of Crimes.Google Scholar

³⁹ Werle (note 30), 382: the author explicitly affirms that [a]ttacks within the meaning of this offence are not only military operations under Article 49(1) of Additional Protocol I.” See also Bothe (note 11), 410; Kittichaisaree (note 23), 160–161.Google Scholar

⁴⁰ Cottier (note 23), 337–338. In favor of a restrictive interpretation of “attack”, see also Engdahl (note 11), 302.Google Scholar

⁴¹ Werle (note 30), 343; Knut Dörmann, Article 8 para. 2 (b) (i), in: Commentary on the Rome Statute of the International Criminal Court – Observer's Notes, Article by Article (Otto Triffterer ed., 2nd ed., 2008), 323; Dörmann (note 32), 134.Google Scholar

⁴² Frits Kalshoven and Liesbeth Zegveld, Constraints on the Waging of War. An Introduction to International Humanitarian law 97 (3rd ed., 2001).Google Scholar

⁴³ ICTY Trial Chamber, The Prosecutor v. Pavle Strugar, Miodrag Jokić and others, Decision on Defence Preliminary Motion Challenging Jurisdiction of 7 June 2002 (IT-01-42-PT), paragraphs. 17–23. See, Updated Statute of the International Criminal Tribunal for the former Yugoslavia, September 2009, available at: http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf, last accessed 15 June 2010.Google Scholar

⁴⁴ ICTY Appeals Chamber, The Prosecutor v. Dario Kordić and Mario Čerkez, Judgment of 17 December 2004 (IT-95-14/2-A), paragraphs 55–68 [hereinafter Kordić Appeal Judgment].Google Scholar

⁴⁵ ICC Pre-Trial Chamber I, The Prosecutor v. Germain Katanga, Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga of 5 November 2007 (ICC-01/04-01/07-55), para. 37. See also ICC Pre-Trial Chamber I, The Prosecutor v. Germain Katanga, Decision on the confirmation of charges of 30 September 2008 (ICC-01/04-01/07-717), paragraphs 264–274. On the absence of any result requirement, see, Article 8(2)(b)(i), Article 8(2)(b)(ii), and Article 8(2)(e)(i), Elements of Crimes.Google Scholar

⁴⁶ Emphasis added. See, Engdahl (note 11), 302.Google Scholar

⁴⁷ It is arguable that the Safety Convention may be used as an interpretative guidance, since it is clear from the travaux préparatoires of the Statute that the Convention was the source of inspiration for the crime of attacking peacekeepers. See the Report of the Preparatory Committee on the Establishment of an International Criminal Court: Addendum, UN Doc. A/CONF.183/2/Add.1 (1998), 28. See also Cottier (note 23), 330.Google Scholar

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⁴⁹ See, Article 1(c) Safety Convention. Bothe (note 11), 411–412.Google Scholar

⁵⁰ See, Dörmann (note 32), 156, and Cottier (note 23), 333–334.Google Scholar

⁵¹ Cottier (note 23), 337. As far as the Safety Convention is concerned, it explicitly provides that it ceases to apply (in favor of IHL) to the whole peacekeeping mission (thus including the civilian component) as soon as some of its personnel become combatants. See, for example, Bloom (note 6), 626; Engdahl (note 11), 235 and 237; Greenwood (note 13), 202.Google Scholar

⁵² In this sense, see Engdahl (note 11), 235.Google Scholar

⁵³ ICTR Trial Chamber I, The Prosecutor v. Théoneste Bagosora, Gratien Kabiligi, Aloys Ntabakuze and Anatole Nsengiyumva, Judgment and Sentence of 18 December 2008 (ICTR-98-41-T) [hereinafter Bagosora Judgment].Google Scholar

⁵⁴ Id., paragraphs 2186 and 2245.Google Scholar

⁵⁵ Id., para. 2175.Google Scholar

⁵⁶ Id. Google Scholar

⁵⁷ See, Id., para. 145.Google Scholar

⁵⁸ Id., para. 185 and footnote 210.Google Scholar

⁵⁹ See, Id., paragraphs 177–193.Google Scholar

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⁶¹ See, ICTY Appeals Chamber, The Prosecutor v. Milan Martić, Judgment of 8 October 2008 (IT-95-11-A), para. 313. Cited in Bagosora Judgment, footnote 2353. On persons hors de combat, see Article 3 GCIV and Article 41(2) API.Google Scholar

⁶² SCSL Trial Chamber I, The Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao (RUF case), Judgment of 2 March 2009 (SCSL-04-15-T), para. 44 [hereinafter RUF Judgment].Google Scholar

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⁶⁴ The Appeals Chamber of the Court reviewed the judgment in October 2009, but without any significant change in the reasoning on the war crime of attacks against personnel and objects involved in a peacekeeping mission (SCSL Appeals Chamber, The Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao (RUF case), Judgment of 26 October 2009 (SCSL-04-15-A) [hereinafter RUF Appeal Judgment]).Google Scholar

⁶⁵ See, RUF Judgment, para. 214. None of the accused was indicted for attacks against objects involved in a peacekeeping mission.Google Scholar

⁶⁶ Id., para. 68.Google Scholar

⁶⁷ Id., para. 218.Google Scholar

⁶⁸ See, Id., paragraphs 107–109, 990 and 977, and 219. Only the awareness of the perpetrator of factual circumstances establishing the existence of an armed conflict is not explicitly mentioned.Google Scholar

⁶⁹ Id., paragraphs 235 and 220.Google Scholar

⁷⁰ On the possibility that negotiations of the ICC Elements of Crimes may be indicative of a progressive development of international law on [the absence of the need for a result element for prosecuting the crimes of unlawful attack on civilians and civilian objects],” Kordić Appeal Judgment, footnote 73.Google Scholar

⁷¹ RUF Judgment, para. 220.Google Scholar

⁷² Id., para. 1889. However, these conducts do not seem to be classifiable as act of violence.Google Scholar

⁷³ Id. Google Scholar

⁷⁴ Id., para. 1891.Google Scholar

⁷⁵ Id., para. 225.Google Scholar

⁷⁶ Id., para. 233.Google Scholar

⁷⁷ Id. Google Scholar

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⁸⁰ Id., paragraphs 1908 and 1917. On the Operational Orders and Rules of Engagement, see paragraphs 1912–1916.Google Scholar

⁸¹ Id., paragraphs 1923, 1930, 1932, and 1935.Google Scholar

⁸² Id., para. 1937.Google Scholar

⁸³ Id., para. 1908.Google Scholar

⁸⁴ Security Council Resolution, 1289 of 7 February 2000, para. 10.Google Scholar

⁸⁵ Corinna Kuhl, The Evolution of Peace Operations, from Interposition to Integrated Missions, in International Humanitarian Law, Human Rights and Peace Operations: Proceedings of the 31st Round Table on Current Problems of International Humanitarian law, Sanremo, 4–6 September 2008, 70, 72 (Gian Luca Beruto ed., 2009).Google Scholar

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⁸⁷ See, RUF Judgment, paragraphs 1901–1905 and 1942.Google Scholar

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⁹⁰ As far as the war crime of hostage-taking is concerned, the Chamber considered that the prosecutor had not proven the necessary element of “the use of a threat against the detainees so as to obtain a concession or gain an advantage” (Id., para. 1969). This conclusion was partly reversed by the Appeals Chamber, which determined (contrary to what had been stated by the Trial Chamber) that “the communication of a threat to a third party is not a requirement of the offence of the taking of hostages,” and that “the requisite mens rea may arise at a period subsequent to the initial seizure or detention.” It thus found that “some RUF fighters committed the offence of the taking of hostages with the intent to condition the safety or release of the captured UNAMSIL personnel on the release of Sankoh,” but it stated that “the requisite mens rea to be held individually criminally responsible for the offence” had not been proven with reference to the Appellants (RUF Appeal Judgment, para. 609). Further developments regarding the taking of peacekeepers as hostages may come from the trial of Radovan Karadžić before the ICTY, since he has been indicted for having “committed in concert with others, planned, instigated, ordered, and/or aided and abetted the taking of UN military observers and peacekeepers as hostages” and thus for the war crime of taking of hostages (ICTY Trial Chamber III, The Prosecutor v. Radovan Karadžić, Prosecution's Marked-Up Indictment of 19 October 2009 (IT-95-5/18-PT), paragraphs 83 and ff.). Karadžić's trial commenced on 26 October 2009. Ratko Mladić, facing the same indictment as Karadžić, is still at large (see ICTY, The Prosecutor v. Ratko Mladić, Amended Indictment of 10 October 2002 (IT-95-5/18-I), paragraphs 45–47). Similarly, Johnny Paul Koroma, facing indictments before the SCSL similar to those of Sesay, Kallon, and Gbao, is still at large (see, SCSL, The Prosecutor v. Johnny Paul Koroma, Indictment of 7 March 2003 (SCSL-2003-03-I), para. 59).Google Scholar

⁹¹ ICC Pre-Trial Chamber I, The Prosecutor v. Bahr Idriss Abu Garda, Decision on the Confirmation of Charges –Public Redacted Version of 8 February 2010 (ICC-02/05-02/09-243-Red) [hereinafter Abu Garda Decision on the Confirmation of Charges].Google Scholar

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⁹³ Abu Garda Decision on the Confirmation of Charges, para. 232.Google Scholar

⁹⁴ Id., paragraphs 57 and 34.Google Scholar

⁹⁵ Id., paragraphs 64–66.Google Scholar

⁹⁶ Id., para. 105.Google Scholar

⁹⁷ See Id., para. 71.Google Scholar

⁹⁸ Id., paragraphs 97–98, 107–109, and 114.Google Scholar

⁹⁹ SC Res. 1769 of 31 July 2007, para. 15 (emphasis added).Google Scholar

¹⁰⁰ See, Abu Garda Decision on the Confirmation of Charges, para. 121.Google Scholar

¹⁰¹ See, for example, SC Res. 1556 of 30 July 2004 and SC Res. 1564 of 18 September 2004.Google Scholar

¹⁰² See, Abu Garda Decision on the Confirmation of Charges, para. 83.Google Scholar

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¹⁰⁴ Id., para. 89.Google Scholar

¹⁰⁵ See, ICC Pre-Trial Chamber I, The Prosecutor v. Bahr Idriss Abu Garda, Transcripts of the Confirmation of Charges Hearing of 28 October 2009 (ICC-02/05-02/09-T-19-ENG ETWT 28-10-2009 1/69 NB PT), 18.Google Scholar

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