[1] See: Supplement to an Agenda for Peace, A/50/60 & S/1995/1, 3 Jan. 1995 [hereinafter, Agenda Supplement], sec. II, table; The Blue Helmets --A Review of United Nations Peace-keeping (New York, UNDPI, 3rd ed., 1996), pp. v-vii and 4.
[2] With respect to 'aggravated peacekeeping', see: Terry MAYS, Historical Dictionary of Multinational Peacekeeping (Lanham, Md., Scarecrow Press, 1996), pp. xv-xvi; Richard CONNAUGHTON, 'Command, Control and Coalition Operations' (IN Military Implications of United Nations Peacekeeping Operations (McNair Paper no. 17), ed. by William Lewis, Washington, D.C., National Defense U. Press, June 1993), p. 13. On the subject of 'muscular peacekeeping', see Alan JAMES, 'Peacekeeping in the Post-Cold War Era', International Journal, vol. L, no. 2, spring 1995, pp. 250-58 (especially 250-51). The concept of 'wider peacekeeping', introduced by the British Army in 1995, will be discussed in chapter 6 (text accompanying notes , infra).
[3] This term has been used by the UN, the US government and many international relations scholars to describe the full range of operations mandated by the UN for the maintenance of international peace and security. The exact scope of the term will be explored in some depth in chapter 6, infra.
[4] Brian URQUHART, 'Who Can Stop Civil Wars?', The New York Times, 29 Dec. 1991, sec. E, p. 9. John MACKINLAY and Jarat CHOPRA, 'Second Generation Multinational Operations', The Washington Quarterly, vol. 15(3), summer 1992, pp. 116-20 (especially 118). And see: An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-keeping, A/47/277 & S/24111, 17 June 1992 [hereinafter, 'An Agenda for Peace'], para. 44; Marrack GOULDING, 'The Use of Force by the United Nations', International Peacekeeping (London), vol. 3(1), spring 1996, pp. 16-17.
[5] Mats BERDAL, 'Military Aspects of UN Peacekeeping' (IN New Dimensions of Peacekeeping, ed. by Daniel Warner, Dordrecht, Martinus Nijhoff, 1995), pp. 132-34. James, supra, note 2, pp. 252-58 (especially 252).
[6] See: Georges ABI-SAAB, 'United Nations Peacekeeping Old and New: An Overview of the Issues' (IN New Dimensions of Peacekeeping, ibid.), p. 9; John MACKINLAY, 'Improving Multifunctional Forces', Survival, vol. 36(3), autumn 1994, pp. 151-57; Olara OTUNNU, 'An Afterword' (IN Peacemaking and Peacekeeping for the Next Century (Report of the 25th Vienna Seminar, March 1995), New York, International Peace Academy, 1995), pp. 70-72; Adam ROBERTS, 'The Crisis in UN Peacekeeping', Survival, vol. 36(3), autumn 1994, pp. 110-11; idem, 'From San Francisco to Sarajevo: the UN and the Use of Force', Survival, vol. 37(4), winter 1995-96, p. 26; John Gerard RUGGIE, 'Wandering in the Void: Charting the U.N.'s New Strategic Role', Foreign Affairs, vol. 72(5), Nov.-Dec. 1993; Seminar on Peacekeeping and its Relationship to Crisis Management --Chairman's Summary (Progress Report to Ministers by the PMSC/AHG on Cooperation in Peacekeeping, Brussels, 2 Dec. 1994, Annex II; IN NATO Communiqués 1994, NATO Office of Information and Press), paras. 5 and 8-9; Shashi THAROOR, 'United Nations Peacekeeping in Europe', Survival, vol. 37(2), summer 1995, pp. 125-27; The United Nations in its Second Half-Century --A Report of the Independent Working Group on the Future of the United Nations (New York, Ford Foundation, 1995), pp. 14 and 19; Thomas WEISS, 'Overcoming the Somalia Syndrome --'Operation Rekindle Hope?'', Global Governance, vol. 1(2), May-Aug. 1995, pp. 174-76.
[7] See Oscar SCHACHTER, International Law in Theory and Practice (Dordrecht, The Netherlands, Martinus Nijhoff, 1991), p. 413.
[8] See: Rosalyn HIGGINS, The New United Nations: Appearance and Reality (University of Hull Press, 1993), pp. 5-9; David CARON, 'The Legitimacy of the Collective Authority of the Security Council', The American Journal of International Law, vol. 87(4), October 1993, pp. 562-66.
[9] See Frederic KIRGIS, JR., 'The Security Council's First Fifty Years', The American Journal of International Law, vol. 89(3), July 1995, pp. 537-39. On the question of Security Council legitimacy in general, see Caron, ibid.
[10] Supra, note 4.
[11] The account of the report's preparation included in this section is based on David COX, Exploring An Agenda for Peace: Issues Arising from the Report of the Secretary-General (Aurora Paper no. 20, Ottawa, Canadian Centre for Global Security, October 1993), pp. 3-6 and 41, and on a letter from Tapio KANNINEN, Political Affairs Officer (UN Secretariat, New York) to the author, 9 October 1996. Mr. Kanninen acted as Secretary of the Agenda Task Force.
[12] S/23500, 31 Jan. 1992.
[13] Cox, supra, note 11, p. 3.
[14] See Cox, supra, note 11, p. 3.
[15] An Agenda for Peace, supra, note 4, para. 21.
[16] Note that the hyphen included in the UN's initial spelling of the term --'peace-enforcement' -- was later dropped. The more recent, hyphen-less spelling is retained throughout the dissertation, except, obviously, where a quoted passage dictates otherwise.
[17] Concerning the problems inherent in the 1992 Agenda's definitions of preventive diplomacy and post-conflict peace-building, see Trevor FINDLAY, 'Multilateral Conflict Prevention, Management and Resolution', SIPRI Yearbook 1994, pp. 16-18. Note also that in his 50th Anniversary Annual Report on the Work of the Organization, Boutros-Ghali stated his preference for the term 'preventive action' as opposed to that of 'preventive diplomacy' (A/51/1, 20 Aug. 1996, para. 652). For Findlay, the likely source of these definitional problems lies in 'the woolly thinking of the Security Council, which tasked the Secretary-General with preparing a report on the rather selective menu of 'preventive diplomacy, peacemaking and peacekeeping' rather than the comprehensive agenda of conflict prevention, management and resolution' (ibid., p. 18).
[18] An Agenda for Peace, supra, note 4, para. 20. See also para. 21.
[19] See: A/47/386, 31 Aug. 1992, para. 41; Findlay, supra, note 17, p. 17; T. WEISS, D. FORSYTHE and R. COATE, The United Nations and Changing World Politics (Boulder, Co., Westview Press, 1994), p. 86.
[20] See: The Blue Helmets --A Review of United Nations Peace-keeping (New York, UNDPI, 2nd ed., 1990), pp. 7-8; Peacekeeper's Handbook (New York, International Peace Academy, 1978), pp. I-1 and I-6.
[21] See Gareth EVANS, Cooperating for Peace (St. Leonards, Australia, Allen & Unwin, 1993), p. 11.
[22] See: W. Michael REISMAN, 'Peacemaking', Yale Journal of International Law, vol. 18(1), winter 1993; Richard HAASS, Intervention (Washington, Carnegie Endowment for International Peace, 1994), pp. 59-60.
[23] See Boutros BOUTROS-GHALI, 'An Agenda for Peace: One Year Later', Orbis, vol. 37(3), summer 1993, p. 325. Compare A/48/1, 10 Sept. 1993, paras. 278 and 294.
[24] See: A/48/403, 14 March 1994, para. 4(b); A/50/1, 22 Aug. 1995, para. 593.
[25] Supra, note 1, para. 23.
[26] A/51/1, 20 Aug. 1996, para. 653.
[27] An Agenda for Peace, supra, note 4, para. 20.
[28] This task formed a central part of the mandate of the Special Committee on Peace-keeping Operations, established under General Assembly Resolution 2006(XIX) of 18 February 1965. Its codification efforts during the Cold War foundered, in particular, on the question of the distribution of authority over peace-keeping operations between the Security Council and the Secretary-General. See Robert SIEKMANN, 'The Codification of General Principles for United Nations Peace-keeping Operations', Netherlands International Law Review, vol. XXXV, 1988/3. The Special Committee has not resumed its codification attempts since the end of the Cold War. Note, however, that the most recent version of the Special Committee's draft articles for peace-keeping operations, dating back to 1977, lists, in draft article 9, 'the full co-operation of the parties' and the 'complete objectivity' (i.e. impartiality) of peace-keeping forces as essential features of peace-keeping. 'Draft Formulae for Articles of Agreed Guidelines for United Nations Peace-keeping Operations' (A/32/394, 2 Dec. 1977, Annex II, Appendix I) [hereinafter, '1977 Draft Articles']. While many of the 1977 draft articles contain alternative provisions, reflecting the disagreement just described, a single version of draft article 9 was agreed by all Special Committee members, at least as a basis for further discussion. In this regard, see paragraphs 7 and 8 of the Eleventh Report of the Working Group (A/32/394, 2 Dec. 1977, Annex II).
[29] The basic enunciations of the principle are found in: A/3943, 9 Oct. 1958, para. 155; Blue Helmets, supra, note 20, pp. 5-6. And see: Brian URQUHART, 'Beyond the 'Sheriff's Posse'', Survival, vol. 32(3), May-June 1990, p. 198; Marrack GOULDING, 'The Evolution of United Nations Peacekeeping', International Affairs, vol. 69(3), July 1993, p. 454; Abi-Saab, supra, note 6, p. 3.
[30] A/3943, 9 Oct. 1958, para. 155.
[31] S/11052/Rev. 1, 27 Oct. 1973, para. 3. And see: Fou-Tchin LIU, United Nations Peacekeeping and the Non-use of Force (International Peace Academy Occasional Paper, Boulder, Co., Lynne Rienner, 1992) p. 11; note 28, supra.
[32] A/3943, 9 Oct. 1958, para. 164. S/11052/Rev.1, 27 Oct. 1973, para. 4(b). Blue Helmets, supra, note 20, p. 6. And see note 28, supra. This principle, together with details of the facilities to be accorded, has been incorporated into the status of forces agreements that the UN has concluded with host states in respect of several peace-keeping operations. Note also that a peace-keeping force's right of freedom of movement is often analyzed in the literature as a corollary of its right of self-defence. On this point, see the discussion concerning the United Nations Operation in the Congo --text accompanying notes 136-42, infra.
[33] A/3943, 9 Oct. 1958, para. 179. UNEF I, exceptionally, was established by the General Assembly.
[34] See text accompanying notes 158-65, 169-73, and 311-15, infra.
[35] A/3943, 9 Oct. 1958, paras. 149 and 167. S/11052/Rev. 1, 27 Oct. 1973, para. 4(e). S/12611, 19 March 1978, para. 4(e). And see note 28, supra.
[36] Abi-Saab, supra, note 6, pp. 2 and 4. Goulding, supra, note 29, p. 454.
[37] Abi-Saab, supra, note 6, p. 4. And see A/3943, 9 Oct. 1958, para. 165.
[38] A/3943, 9 Oct. 1958, para. 160. And see Abi-Saab, supra, note 6, p. 2. Note that the participation of the United Kingdom in the United Nations Peace-keeping Force in Cyprus (UNFICYP) and that of France in the United Nations Interim Force in Lebanon (UNIFIL) were Cold War exceptions to the first rule. Since the end of the Cold War, the latter has effectively been abandoned. The second rule, while probably not abandoned, has been undermined in the post-Cold War period by several, significant departures from it, beginning with Russian and Turkish participation in the United Nations Protection Force (UNPROFOR) in the former Yugoslavia.
[39] For others, see: A/3943, 9 Oct. 1958; S/11052/Rev.1, 27 Oct. 1973; Blue Helmets, supra, note 20, pp. 5-8; Goulding, supra, note 29, pp. 453-55; Urquhart, supra, note 29, p. 198.
[40] See: Boutros BOUTROS-GHALI, 'Beyond Peacekeeping', New York University Journal of International Law and Politics, vol. 25(1), fall 1992, p. 120; Boutros-Ghali, supra, note 23, p. 328.
[41] Boutros-Ghali, 'Beyond Peacekeeping', ibid., p. 120.
[42] Boutros BOUTROS-GHALI, 'Message du Secrétaire Général de l'Organisation des Nations Unies' (DANS Le chapitre VII de la Charte des Nations Unies, Paris, Pedone, 1995).
[43] A/48/1, 10 Sept. 1993, para. 278.
[44] Ibid., para. 278.
[45] Ibid., paras. 292-93.
[46] Concerning the problems raised by the Secretary-General's 'hitherto', see: Weiss, supra, note 6, p. 176; Findlay, supra, note 17, pp. 17-18; Roberts, supra, note 6, pp. 100-01.
[47] See: John MACKINLAY, 'Powerful Peace-keepers', Survival, vol. 32(3), May-June 1990, especially pp. 248-50; William DURCH and Barry BLECHMAN, Keeping the Peace: The United Nations in the Emerging World Order (Washington, Henry L. Stimson Center, March 1992), pp. i-ii, 16-17 and 47. For other views and commentary on the issue of the use of force by peace-keepers, see Urquhart, supra, note 29, pp. 201-04; Liu, supra, note 31, pp. 41-43; Schachter, supra, note 7, pp. 409-10.
[48] S/23844, 24 April 1992, para. 16.
[49] Failure to demilitarize the 'United Nations Protected Areas' prevented the return of displaced persons to their homes as originally intended. For a good account of the subversion of UNPROFOR's mandate in Croatia, see Alan JAMES, 'The UN in Croatia: An Exercise in Futility?', The World Today, vol. 49(5), May 1993, especially pp. 94-95.
[50] S/24090, 12 June 1992. The Khmer Rouge were refusing to comply with measures which would permit the entry into force of Phase II of the cease-fire, involving the regroupment, cantonment, disarmament and partial demobilization of the four rival armies.
[51] Concerning the decision not to use force, see: Steven RATNER, The New UN Peacekeeping (New York, St. Martin's Press, 1995) pp. 154 and 170-71; Lt.-Gen. J.M. SANDERSON, 'UNTAC: Debriefing and Lessons --The Military Component View', International Peacekeeping (The Hague), vol. 2(2-3), Feb.-May 1995, p. 32.
[52] See chapter 4, 'The Safe Areas' section, infra.
[53] Agenda Supplement, supra, note 1, para. 35. It will be seen in chapter 3 of the dissertation that the second United Nations Operation in Somalia (UNOSOM II), in contrast to the safe areas initiative in Bosnia, did not in fact mix peace-keeping and enforcement action. Compare paragraph 35 of the Agenda Supplement, just quoted, with paragraphs 599-600 of the Secretary-General's 1995 Report on the Work of the Organization (A/50/1, 22 Aug. 1995) where, in a similar discussion of the dangers of mixing peace-keeping and enforcement, the example of Bosnia, alone, is retained.
[54] A/50/1, 22 Aug. 1995, para. 600. And see: Agenda Supplement, supra, note 1, paras. 34-36; Boutros BOUTROS-GHALI, 'Mes nouvelles propositions pour la paix', Le Trimestre du monde, no. 29, 1995/1, pp. 11-12; Idem, 'Friedmann Award Address', Columbia Journal of Transnational Law, vol. 33(2), 1995, p. 255; Idem, 'Le maintien de la paix: pause ou sursaut?', Le Trimestre du monde, no. 32, 1995/4, pp. 15-16; Idem, 'L'ONU et les nouveaux conflits internationaux', Relations internationales et stratégiques, no. 20, hiver 1995, pp. 19-20.
[55] A/48/403, 14 March 1994, para. 4(c).
[56] Agenda Supplement, supra, note 1, para. 33. And see Boutros BOUTROS-GHALI, 'Preface: The Evolution of Peacekeeping Policy' (IN Soldiers for Peace, ed. by B. Benton, New York, Facts on File, 1996), p. 2.
[57] See: A/50/230, 22 June 1995, paras. 40 and 43; A/51/130, 7 May 1996, para. 37; A/52/209, 28 June, 1997, para. 41; GAR 50/30, 6 Dec. 1995, para. 2; GAR 51/136, 13 Dec. 1996, para. 2; S/PRST/1995/9, 22 Feb. 1995, p. 2. Compare S/25859, 28 May 1993. And see the following authors: Roberts, supra, note 6, p. 94; Trevor FINDLAY, 'Reflections on the Use of Force in Peace Operations' (unpublished paper derived from the Workshop on the Use of Force in Peace Operations, SIPRI and the Austral. Dept. of Foreign Affairs & Trade, Stockholm, April 1995), p. 2; Olara OTUNNU, 'Peacekeeping: From a Crossroads to the Future', April 1995 (text of address to the UN Special Committee on Peace-keeping Operations; source <www.afnews.org/ans>); Marie-Claude SMOUTS, 'Pour qui sont ces soldats?' (DANS L'ONU et la guerre --la diplomatie en kaki, sous la direction de M.-C. Smouts, Bruxelles, Éditions Complexe, 1994), pp. 12-14.
[58] The new operations, unlike their Cold War predecessors, often follow a peace settlement between the parties and may have as their primary mission the implementation of that settlement. A second factor encouraging an expansion of tasks is the shift in the locus of activity from the inter-state to intra-state realm. See: Abi-Saab, supra, note 6; Georges ABI-SAAB, 'La deuxième génération des opérations de maintien de la paix: quelques réflexions préliminaires', Le Trimestre du monde, no. 20, 1992/4; Victor-Yves GHEBALI, 'Le développement des opérations de maintien de la paix de l'ONU depuis la fin de la guerre froide', Le Trimestre du monde, no. 20, 1992/4; Ratner, supra, note 51, p. 17.
[59] See: Ratner, supra, note 51, p. 17; Shashi THAROOR, 'Should UN Peacekeeping Go 'Back to Basics'?' Survival, vol. 37(4), winter 1995-96, p. 54. Both authors emphasize the continued importance of consent to second generation peace-keeping.
[60] Mackinlay, supra, note 47, reviews the various arguments made by those sceptical of the use of force in this context. And see Urquhart, supra, note 29, especially pp. 201-03.
[61] Urquhart, supra, note 4. Urquhart's proposal was echoed by Mackinlay and Chopra, supra, note 4 (p. 118). And see Jarat CHOPRA, Age EKNES, and Toralv NORDBO, Fighting for Hope in Somalia (Oslo, Norwegian Institute of International Affairs (NUPI), 1995), pp. 15-16.
[62] An Agenda for Peace, supra, note 4. Note the resemblance to Urquhart's proposal for 'armed police actions' designed 'to put an end to random violence and to provide a reasonable degree of peace and order so that humanitarian relief work could go forward and a conciliation process could commence.' Urquhart, supra, note 4.
[63] Chopra et al, supra, note 61, p. 14.
[64] This interpretation finds strong support in paragraph 44 where the Secretary-General 'recommend[s] that the Council consider the utilization of peace-enforcement units in clearly defined circumstances and with their terms of reference specified in advance.' (emphasis added) The suggestion, clearly, is that the cease-fire enforcement function is merely one of a possible range of assigned functions. Also in support of this interpretation, see Boutros BOUTROS-GHALI, 'L'ONU en première ligne', Politique internationale, no. 57, automne 1992, p. 146. But see Boutros BOUTROS-GHALI, 'Empowering the United Nations', Foreign Affairs, vol. 71(5), winter 1992-93, pp. 93-94.
[65] Boutros-Ghali, 'Empowering the United Nations', ibid.
[66] An Agenda for Peace, supra, note 4, paragraph 44, 3rd sentence.
[67] Boutros-Ghali, 'Empowering the United Nations', supra, note 64, p. 94.
[68] An Agenda for Peace, supra, note 4, middle of paragraph 44. And see Boutros-Ghali, 'Empowering the United Nations', supra, note 64, p. 94.
[69] Boutros-Ghali, 'Empowering the United Nations', supra, note 64, p. 94.
[70] The second-to-last sentence of article 40 reads: 'Such provisional measures shall be without prejudice to the rights, claims or position of the parties concerned.' The aim then is to freeze a given situation without consideration of relative blame or fault and without making any judgement on the specific claims advanced. For a detailed discussion of article 40, see chapter 8, infra.
[71] Boutros-Ghali, 'Empowering the United Nations', supra, note 64, p. 94.
[72] An Agenda for Peace, supra, note 4, para. 44, last sentence. And see the first two sentences of the paragraph. Peace enforcement's intermediate nature is also suggested in the Secretary-General's 1993 Report on the Work of the Organization wherein he states that 'the concept of peace enforcement ... involves peace-keeping activities which do not necessarily involve the consent of all the parties concerned.' A/48/1, 10 Sept. 1993, para. 278.
[73] 'The Special Committee stresses that full and continuous consent is crucial to the success of peace-keeping operations.' A/50/230, 22 June 1995, para. 43. This conclusion was endorsed by the General Assembly in paragraph 2 of its Resolution 50/30 of 6 December 1995.
[74] Although the Secretary-General claims, in paragraph 4 of the report (A/48/403, 14 March 1994) that 'the international community has become increasingly familiar' with these instruments, the definitions given for peacemaking and peace-keeping, as well as that for peace enforcement, differ in key respects from those offered in the 1992 Agenda.
[75] A/48/403, 14 March 1994, para. 4(d).
[76] Agenda Supplement, supra, note 1.
[77] The relevant sentence in paragraph 23 reads: 'Sanctions and enforcement, on the other hand, are coercive measures and thus, by definition, do not require the consent of the party concerned.' Agenda Supplement, supra, note 1.
[78] --section 'F' of the report, i.e. paras. 77-80. Agenda Supplement, supra, note 1.
[79] And see the transcript of Boutros-Ghali's press conference of 5 January 1995, held in conjunction with the release of the Agenda Supplement -- SG/SM/95/1, 5 Jan. 1995 (UN Information Service, Geneva), p. 7.
[80] UN Peace-keeping: Some Questions and Answers, UNDPI, DPI/1851, Sept. 1996. The discussion of 'peace-enforcement' contained in DPI/1851 has been used in a more recent UNDPI publication, though with some changes, in particular the partial replacement of the term 'peace-enforcement' with 'enforcement action'. See Peace-keeping at a Glance, UNDPI, DPI/1903, May 1997.
[81] A/51/1, 20 Aug. 1996, para. 653.
[82] Agenda Supplement, supra, note 1, para. 35. And see para. 34.
[83] Agenda Supplement, supra, note 1, paras. 18-19. The specific examples mentioned are the protection of humanitarian relief operations and the protection of safe areas. Paragraph 19 reads:
'This has led, in Bosnia and Herzegovina and in Somalia, to a new kind of United Nations operation. Even though the use of force is authorized under Chapter VII of the Charter, the United Nations remains neutral and impartial between the warring parties, without a mandate to stop the aggressor (if one can be identified) or impose a cessation of hostilities. Nor is this peace-keeping as practised hitherto, because the hostilities continue and there is often no agreement between the warring parties on which a peace-keeping mandate can be based. The 'safe areas' concept in Bosnia and Herzegovina is a similar case. It too gives the United Nations a humanitarian mandate under which the use of force is authorized, but for limited and local purposes and not to bring the war to an end.'
[84] Note that paragraphs 18 and 19 of the Agenda Supplement (supra, note 1), describing the new activities, contain no hint of the criticism found in the subsequent passage of the report (paragraphs 34-35). On the contrary, the presentation of these activities as 'a new kind of United Nations operation' suggests a desire to institutionalize such practice.
[85] For more on this subject, see: Cox, supra, note 11, pp. 10-11, 21, 27-28 and 41-42; Findlay, supra, note 17, pp. 15-16; A/48/173, 25 May 1993, paras. 39-44; A/47/386, 31 Aug. 1992, paras. 39-43.
[86] S/25859, 28 May 1993.
[87] In late March 1993, the Security Council decided to establish a UN peace enforcement operation for Somalia. UNOSOM II took over from the US-led multinational force in early May. See chapter 3, infra. The spring-summer of 1993 also saw the Security Council move to take a more muscular approach in respect of the Bosnian conflict. See chapter 4, infra.
[88] Acknowledgement: two works served as points of access to much of the source material (UN documentation) used in this chapter: Georges ABI-SAAB, The United Nations Operation in the Congo 1960-1964 (Oxford, Oxford U. Press, 1978); Rosalyn HIGGINS, United Nations Peacekeeping 1946-1967: Documents and Commentary (Oxford, Oxford U. Press, vol. III, 1980).
[89] At its peak, ONUC's military component comprised nearly 20,000 officers and men. The Blue Helmets, supra, note 1, p. 175.
[90] The overthrow of the Mobutu regime, in May 1997, was accompanied by the renaming of the country, from 'Zaire' to 'Democratic Republic of Congo', which is close to the name used in the early 1960s --'Republic of the Congo' (emphasis added). For the sake of uniformity between dissertation text and quoted materials, usage in this chapter will reflect that of the early 1960s, with the country being referred to as 'the Congo', instead of the current 'Congo'.
[91] The French acronym, 'ONUC' ('l'Opération des Nations Unies au Congo'), is used by the UN in both its French and English language documentation.
[92] See S/5784, 29 June 1964, para. 125.
[93] The cost was not limited to the 250 fatalities suffered by ONUC (United Nations Peace-keeping, UNDPI, DPI/1827, August 1996, p. 19) or the loss of Secretary-General Hammarskjöld, killed in a plane crash in September 1961 while en route to discuss cease-fire terms with Katangese leaders. The many controversies generated by the operation had wide, often negative, effects on the UN as a whole. See Alan JAMES, 'The Congo Controversies', International Peacekeeping (London), vol. 1(1), spring 1994.
[94] SCR 169, S/5002, 24 Nov. 1961, pream. para. 3.
[95] Hammarskjöld's concept of preventive diplomacy is enunciated in the introduction to his annual report on the work of the UN covering the year 1959-60 (GAOR, 15th sess., supp. no. 1A (A/4390/Add.1, 1960), sec. III), which is also the source of the quotation. The concept's relevance to the Congo operation is underlined by Abi-Saab, supra, note 88, pp. 1-2 and 5. Note that while the term 'preventive diplomacy' was revived in An Agenda for Peace, it carried a substantially different meaning from the Hammarskjöld concept. Preventive diplomacy now means crisis prevention. See: An Agenda for Peace, supra, note 4, paras. 23-33; note 17, supra.
[96] The 12 July telegram (English translation). The 13 July telegram reiterated the point, stressing that the requested assistance was not for the purpose of restoring the internal situation in the Congo. The two telegrams are reproduced in S/4382, 13 July 1960.
[97] While the mandate is not spelled out in these exact terms in Hammarskjöld's initial statement to the Security Council on the Congo crisis, it emerges from the statement read as a whole. See SCOR, 15th yr., 873rd mtg., 13-14 July 1960, paras. 24-27. While paragraph 2 of Security Council Resolution 143, authorizing the establishment of ONUC, retains the somewhat open-ended wording of the initial statement, subsequent UN documents enunciate the law and order mandate clearly. See: S/4389, 18 July 1960, paras. 5-7; GAR 1474 (ES-IV), 20 Sept. 1960, para. 2; SCR 169, S/5002, 24 Nov. 1961, preambular para. 3 (reproduced supra -- text accompanying note 94) and operative para. 9; SCOR, 15th yr., 913th mtg., 7 Dec. 1960, paras. 24-25.
[98] SCOR, 15th yr., 873rd mtg., 13-14 July 1960, para. 27 (statement of Secretary-General Hammarskjöld).
[99] Thus, the first Security Council resolution on the crisis, which authorizes the establishment of ONUC, also 'Calls upon the Government of Belgium to withdraw its troops from the territory of the Republic of the Congo'. SCR 143, S/4387, 14 July 1960, para. 1. See: Higgins, supra, note 88, pp. 15-16; Abi-Saab, supra, note 88, pp. 11-12.
[100] SCOR, 15th yr., 913th mtg., 7 Dec. 1960, para. 25 (statement of Secretary-General Hammarskjöld).
[101] See Abi-Saab, supra, note 88, pp. 12-13.
[102] Note that, in setting out the basic principles governing ONUC's establishment and operation, Hammarskjöld relied heavily on his Summary Study of UNEF I (A/3943, 9 Oct. 1958) which, as we saw earlier (text accompanying notes 29-39, supra), basically defined UN peace-keeping. Thus, many of the principles he enunciated in his first report on the implementation of SCR 143 (S/4389, 18 July 1960), relating to ONUC, simply restated the earlier report -- as reflected in the text and notes immediately below.
[103] For the formal request for UN military assistance (the two telegrams of 12 and 13 July 1960), see S/4382, 13 July 1960. Note that ONUC's consensual basis was affirmed in S/4389, 18 July 1960, paras. 6 and 7. It was also reflected in SCR 143 of 14 July 1960 (para. 2), authorizing the establishment of ONUC. While ONUC's consensual basis was one of its defining features, throughout its four-year history, the principle, as it applied to ONUC, was not absolute. When faced with a lack of cooperation, as in the case of the Katangese authorities in August 1960 (the problem of ONUC's deployment to the province) or the Kasavubu Government in March 1961 (the Matadi incident), Hammarskjöld portrayed UN action in the Congo as based on mandatory Security Council decisions taken in order to counteract a threat to international peace and security. From this he concluded: first, that the Congolese were legally bound to cooperate with ONUC and comply with Security Council decisions concerning the Congo; second, that any decision to withdraw ONUC rested solely with the Security Council. S/4775, 30 March 1961, sec. I. And see: E.M. MILLER, 'Legal Aspects of the United Nations Action in the Congo', The American Journal of International Law, vol. 55(1), January 1961, pp. 13-15; Higgins, supra, note 88, pp. 190-91. On the question of the mandatory nature of the Security Council decisions, see: S/4417, 6 Aug. 1960, para. 6; SCOR, 15th yr., 884th mtg., 8 Aug. 1960, paras. 22-23; SCR 146, S/4426, 9 Aug. 1960, para. 5. Concerning the power of decision over ONUC's withdrawal, see: S/4389/Add.5, 29 July 1960, especially para. 2; S/4775, 30 March 1961, sec. I, 6th para.; Miller, ibid., p. 15. On the same question, compare A/3943, 9 Oct. 1958, paras. 156-59.
[104] See text accompanying notes 106-09, infra.
[105] A/3943, 9 Oct. 1958, para. 179 (emphasis in the original). This passage and the point concerning the use of force which precedes it, both contained in the UNEF I Summary Study, are reproduced, in relation to ONUC, in S/4389, 18 July 1960, para. 15.
[106] S/4389, 18 July 1960, para. 7.
[107] See S/4389, 18 July 1960, paras. 7, 12 and 13.
[108] S/4417/Add.6, 12 Aug. 1960, para. 8.
[109] See Catherine HOSKYNS, The Congo Since Independence: January 1960 -December 1961 (London, Oxford U. Press, 1965), pp. 170-73. Despite ONUC's claim to impartiality, it would often be accused of siding with one party or another. This became a major issue in September 1960 when a simmering conflict between the Congolese President and Prime Minister developed into a full-blown constitutional crisis. For a good overview of the crisis and its ramifications for the UN, see James, supra, note 93, pp. 46-47.
[110] For a more comprehensive list of tasks, together with references to relevant UN documents, see Finn SEYERSTED, United Nations Forces in the Law of Peace and War (Leyden, A. W. Sijthoff, 1966), pp. 67-68 and R. SIMMONDS, Legal Problems Arising from the United Nations Military Operations in the Congo (The Hague, Martinus Nijhoff, 1968), pp. 80-81.
[111] See: S/4389, 18 July 1960, para. 7; S/4389/Add.1, 19 July 1960, para. 2; SCOR, 15th yr., 913th mtg., 7 Dec. 1960, para. 26; SCOR, 15th yr., 917th mtg., 10 Dec. 1960, para. 61.
[112] See: Oscar SCHACHTER, 'Preventing the Internationalization of Internal Conflict: A Legal Analysis of the U.N. Congo Experience', American Society of International Law -- Proceedings of the 57th Annual Meeting (Washington, D.C., 25-27 April 1963), p. 221; Abi-Saab, supra, note 88, p. 178; Michael BOTHE, 'Peace-keeping' (IN The Charter of the United Nations, ed. by B. Simma, Oxford, Oxford U. Press, 1994), p. 589. The quotation is from Schachter.
[113] SCOR, 16th yr., 935th mtg., 15 Feb. 1961, para. 27.
[114] This would mean, in the first place, the recognized representatives of the Central Government. It would also mean the Katangese authorities, whose consent, as described earlier, was considered a necessary prerequisite to ONUC's deployment in that province.
[115] See text accompanying note 105, supra.
[116] Over the course of its mission in the Congo, ONUC set up several zones where it undertook to ensure the security of all civilians who took refuge there. See: S/4757, 2 March 1961; S/4940/Add.18, 20 Dec. 1961, para. 6. Brady Lee's study of the 'Rikhye Zone' in Katanga illustrates, however, that this task could not always be reconciled with the constraints imposed on the use of force in peace-keeping. 'Since the U.N. had no authority for enforcement action in the zone, it could only act in self-defense, and local leaders rather than U.N. peacekeepers were the ones usually under attack.' Brady LEE, 'Peacekeeping, the Congo, and Zones of Peace', Peace Review, vol. 9(2), June 1997, p. 190.
[117] SCOR, 15th yr. , 917th mtg, 10 Dec. 1960, para. 62 (statement of the Secretary-General). And see: idem, para. 64; SCOR, 15th yr., 920th mtg., 13-14 Dec. 1960, para. 85.
[118] See SCOR, 15th yr., 920th mtg., 13-14 Dec. 1960, paras. 82 and 85.
[119] SCOR, 16th yr., 935th mtg., 15 Feb. 1961, para. 27. And see: Goulding, supra, note 4, p. 8; D.W. BOWETT, United Nations Forces (London, Stevens and Sons, 1964), p. 201.
[120] SCR 161, S/4741, 21 Feb. 1961, para. A1.
[121] SCOR, 16th yr., 942nd mtg., 20-21 Feb. 1961, paras. 216 and 218. S/4752, 27 Feb. 1961, Annex VII.
[122] S/4752, 27 Feb. 1961, Annex VII.
[123] Abi-Saab, supra, note 88, p. 106. Schachter, supra, note 112, p. 218.
[124] Abi-Saab, supra, note 88, p. 106.
[125] SCOR, 16th yr., 982nd mtg., 24 Nov. 1961, para. 104 (statement of Acting Secretary-General U Thant). Abi-Saab indicates that '[t]his was saying aloud what Hammarskjöld had said in the privacy of the Advisory Committee after the constitution of the Adoula Government.' Supra, note 88, p. 165 (n. 114). And see Seyersted, supra, note 110, p. 74. Note that this position was perfectly consistent with the Memorandum on Implementation of the Security Council Resolution of 9 August 1960, Operative Paragraph 4, paragraph 8 of which stated that 'the United Nations ... has no right to forbid the Central Government to take any action which by its own means ... it can carry through in relation to Katanga.' S/4417/Add.6, 12 Aug. 1960, para. 8.
[126] SCOR, 16th yr., 982nd mtg., 24 Nov. 1961, para. 104.
[127] S/4940/Add.12, 2 Nov. 1961, paras. 9-10. And see S/4940/Add. 13, 15 Nov. 1961, para. 21.
[128] See: S/5053/Add.11, 20 Aug. 1962, paras. 57-61 and Annex XXV; S/5053/Add.14, 11 Jan. 1963, paras. 13-14 and Annex VI.
[129] See: SCR 145, S/4405, 22 July 1960, para. 2; GAR 1474 (ES-IV), 20 Sept. 1960, preambular para. 4 and operative paras. 2 and 5.
[130] SCR 169, S/5002, 24 Nov. 1961, pream. para. 3.
[131] See ibid., preambular para. 5 and operative paras. 1 and 8.
[132] Ibid., para. 8.
[133] SCR 169, S/5002, 24 Nov. 1961, para. 9.
[134] S/5035, 19 Dec. 1961, sec. III.
[135] See: Abi-Saab, supra, note 88, pp. 171-72 and 174-75; Hoskyns, supra, note 109, pp. 454-56; S/4940/Add.18, 20 Dec. 1961, especially paras. 17 and 20; S/4940/Add.19, 22 Dec. 1961, especially paras. 2 and 7. For a detailed account of the December action, see: Hoskyns, pp. 447-58; S/4940/Adds.16-19, 6-22 Dec. 1961.
[136] See S/5053/Add.14, 11 Jan. 1963, Annex XXXI.
[137] See: S/5053/Add.14, 11 Jan. 1963, paras. 46-74; Abi-Saab, supra, note 88, pp. 175 and 189.
[138] For a detailed account of Operation Grandslam, see: S/5053/Add.14, 11 Jan. 1963; S/5053/Add.15, 30 Jan. 1963.
[139] S/4389/Add.5, 29 July 1960, para. 1. And see S/4389, 18 July 1960, para. 9.
[140] Agreement between the United Nations and the Republic of the Congo (Leopoldville) relating to the Legal Status, Facilities, Privileges and Immunities of the United Nations Organization in the Congo (27 Nov. 1961), UNTS, vol. 414, para. 30.
[141] Abi-Saab, supra, note 88, p. 174. And see: Simmonds, supra, note 110, p. 132; G.I.A.D. DRAPER, 'The Legal Limitations upon the Employment of Weapons by the United Nations Force in the Congo', International and Comparative Law Quarterly, vol. 12(2), April 1963, pp. 400-01.
[142] Draper offers the following reflections on ONUC's right of freedom of movement: 'We are thus confronted with a telling example of the expanding nature of the right of self-defence. It is an interesting and not entirely academic speculation to determine at what point that right has yielded up all that it can properly provide and the moment when it becomes necessary to invoke the right of the Force to take all military action necessary to carry out its mandate.' Ibid., p. 401. And see Schachter, supra, note 7, p. 409. Compare Simmonds, supra, note 110, p. 132.
[143] In his Second Progress Report, the Special Representative of the Secretary-General in the Congo estimated that, as of 31 October 1960, a total of 231 Belgian nationals (114 officers and 117 soldiers of other ranks) were in the Katangese gendarmerie, with a further 58 Belgian officers in the Katangese police. S/4557, 2 Nov. 1960, para. 35.
[144] SCR 161, S/4741, 21 Feb. 1961, para. A2. Concerning the categories of personnel the provision was specifically concerned with, see Simmonds, supra, note 110, p. 94.
[145] Hoskyns, supra, note 109, pp. 403-04.
[146] Brian URQUHART, Hammarskjold (New York, Alfred Knopf, 1972), pp. 555-56. Hoskyns, supra, note 109, p. 402. Two days before Rumpunch was launched, the Secretary-General expressed the view that paragraph A2 of Resolution 161 should be interpreted so as to allow for the use of force, this despite his earlier, more restrictive interpretation of that provision. Concerning the Hammarskjöld interpretation, see: Abi-Saab, supra, note 88, pp. 129-31; Urquhart, ibid., p. 555. For other views on this issue, see: Abi-Saab, ibid., pp. 129-31; Simmonds, supra, note 110, p. 95.
[147] Hoskyns, supra, note 109, pp. 406-08.
[148] Conor Cruise O'BRIEN, To Katanga and Back (London, Hutchinson, 1962), p. 249. O'Brien's description of the Khiari plan has been corroborated by other ONUC officials. Hoskyns, supra, note 109, p. 415.
[149] Hoskyns, supra, note 109, p. 417.
[150] See Hoskyns supra, note 109, pp. 417-19.
[151] Hoskyns, supra, note 109, pp. 419-20.
[152] O'Brien would later write: 'My instructions taken as a whole, had the unmistakeable meaning of ending the secession of Katanga, following the application of A.1 (preventing civil war). I saw no point in attempting to pretend that our action had any other character, and I declared that the secession of Katanga was at an end.' Supra, note 148, p. 266.
[153] Significantly, the official UN report on Operation Morthor, issued on 14 September, made no mention of the attempt to arrest Katangese leaders, clearly unrelated to the claimed objective of rounding up foreign military personnel. See: S/4940, 14 Sept. 1961; Abi-Saab, supra, note 88, pp. 141-43; Hoskyns, supra, note 109, pp. 422-23.
[154] Hoskyns, supra, note 109, p. 421. Abi-Saab, supra, note 88, p. 146. There was, however, more to Hammarskjöld's decision than this. See: Abi-Saab, pp. 143-48; Hoskyns, pp. 421-22. Note also that Hammarskjöld, though he had sketched out the broad outlines of follow-up action to Rumpunch, had not specifically approved Morthor. See Abi-Saab, pp. 133-39 and 145.
[155] Concerning ONUC's mandate for the promotion of the 'national integrity' of the Congo, see text accompanying notes 129-33, supra.
[156] S/4389, 18 July 1960, para. 13 (emphasis added). Note that the key elements of this formulation of the impartiality principle are derived, word for word, from Hammarskjöld's Summary Study of the UNEF I experience (A/3943, 9 Oct. 1958, para. 167). And see Abi-Saab, supra, note 88, p. 131. Note that he discusses this requirement within the framework of the principle of non-intervention.
[157] See: S/4417/Add.6, 12 Aug. 1960, para. 6; A/3943, 9 Oct. 1958, para. 166; Abi-Saab, supra, note 88, pp. 131 and 167-68; Schachter, supra, note 112, p. 223; Higgins, supra, note 88, p. 49.
[158] This process, described in the following paragraphs, is summarized in Goulding, supra, note 4, p. 8.
[159] S/5653, 11 April 1964, para. 16.
[160] S/5653, 11 April 1964, para. 17.
[161] S/5653, 11 April 1964, para. 18.
[162] S/5653, 11 April 1964, para. 18(c).
[163] S/11052/Rev. 1, 27 Oct. 1973, para. 4(d).
[164] With respect to the United Nations Interim Force in Lebanon (UNIFIL), see S/12611, 19 March 1978, para. 4(d).
[165] Goulding, supra, note 4, p. 9. Goulding, supra, note 29, p. 455.
[166] See: S/23829, 21 April 1992, paras. 22-26, 33, and Annex I; SCR 751, 24 April 1992, paras. 2-3; S/24480, 24 Aug. 1992, para. 27.
[167] See: S/23829, 21 April 1992, paras. 22-23, 27-29, 33 and Annex I; SCR 751, 24 April 1992, paras. 2 and 4-5; S/24480, 24 Aug. 1992, para. 24.
[168] The mandate of the security force is set out in S/23829, 21 April 1992, paras. 27-29. And see S/24480, 24 Aug. 1992, paras. 23-24.
[169] S/24868, 30 Nov. 1992, p. 2. And see The United Nations and Somalia, 1992-1996 (New York, UNDPI, 1996), 'Introduction', para. 66.
[170] S/24868, 30 Nov. 1992, p. 2.
[171] S/23829, 21 April 1992, para. 28.
[172] See: S/24451, 14 Aug. 1992; S/24480, 24 Aug. 1992, para. 24.
[173] Note also that SCR 775 (28 Aug. 1992) authorized the deployment of four additional UNOSOM I contingents (750 troops each) for the purpose of protecting humanitarian relief operations in different parts of Somalia. These were never deployed, however. Consent was obtained only for the deployment of a contingent to Bosasso in north-eastern Somalia, which was cancelled following the authorization of the US-led intervention in December 1992. Concerning the planned expansion of UNOSOM I, see: S/24480, 24 Aug. 1992, paras. 23-26, 30-31 and 37; SCR 775, 28 Aug. 1992, paras. 2-3; S/24531, 8 Sept. 1992; S/24532, 8 Sept. 1992; S/24859, 27 Nov. 1992, p. 4.
[174] For an account of the problems then facing the international relief effort in Somalia and a discussion of alternatives to peace-keeping, see: S/24859, 27 Nov. 1992; S/24868, 30 Nov. 1992.
[175] See S/24868, 30 Nov. 1992.
[176] SCR 794, 3 Dec. 1992, para. 10. And see para. 7. The operation undertaken by the multinational coalition in Somalia was called 'Operation Restore Hope'.
[177] John HIRSCH and Robert OAKLEY, Somalia and Operation Restore Hope (Washington, D.C., United States Institute of Peace Press, 1995), p. 69.
[178] See: Hirsch and Oakley, ibid., pp. 87-92; S/25168, 26 Jan. 1993, para. 23; Terrence LYONS and Ahmed SAMATAR, Somalia: State Collapse, Multilateral Intervention, and Strategies for Political Reconstruction (Washington, D.C., Brookings, 1995), p. 42.
[179] S/24868, 30 Nov. 1992, p. 3.
[180] The relevant excerpt is reproduced in S/24992, 19 Dec. 1992, para. 23.
[181] 'President Bush authorized and Eagleburger proposed to the secretary-general an American-led operation limited in mandate, time, and geographical scope.' John BOLTON, 'Wrong Turn in Somalia', Foreign Affairs, vol. 73(1), Jan.-Feb. 1994, p. 59. Concerning the differing US and UN interpretations of the disarmament mandate, see: Bolton, pp. 58-62; Stanley MEISLER, United Nations: The First Fifty Years (New York, Atlantic Monthly Press, 1995), pp. 299-300.
[182] See: Managing Arms in Peace Processes: Somalia (New York and Geneva, UNIDIR, 1995), pp. 78-79; Ken MENKHAUS with Louis ORTMAYER, Key Decisions in the Somalia Intervention (Pew Case Study no. 464, Washington, D.C., Institute for the Study of Diplomacy, 1995), pp. 12-13.
[183] See: Kenneth ALLARD, Somalia Operations: Lessons Learned (Washington, D.C., National Defense University Press, 1995), pp. 36-37 and 64; S.L. ARNOLD, 'Somalia: An Operation other than War', Military Review, vol. 73, December 1993, p. 31; Hirsch and Oakley, supra, note 177, pp. 57-59, 83, and 104; Lyons and Samatar, supra, note 178, pp. 41-42; 'Playing the US against the UN', The Economist, 9 Jan. 1993; S/25126, 19 Jan. 1993, p. 3; Rules of Engagement for Operation Restore Hope, 'Rules of Engagement' nos. 8, 10 and 11 (reproduced in Peace Operations, Dept. of the Army, Field Manual No. 100-23, 30 Dec. 1994 [hereinafter 'FM 100-23'], Appendix D).
[184] See: Somalia Faces the Future: Human Rights in a Fragmented Society (New York, Human Rights Watch/Africa, April 1995), pp. 58-59; 'Playing the US against the UN', ibid.
[185] Hirsch and Oakley, supra, note 177, p. 104.
[186] Jane BOULDEN, 'Rules of Engagement, Force Structure and Composition in United Nations Disarmament Operations' (IN Managing Arms in Peace Processes: The Issues, New York and Geneva, UNIDIR, 1996), p. 139. And see S/25354, 3 March 1993, para. 100.
[187] SCR 794, 3 Dec. 1992, para. 10.
[188] On 7 January 1993, US marines attacked a military compound belonging to Aideed in Mogadishu, destroying several buildings and seizing a large cache of weapons. The operation was carried out, in the first instance, in response to sniper fire which gunmen in the camp had earlier directed at US soldiers. Yet, it also appeared designed to stem a steady deterioration of the security environment in Mogadishu. See: Kenneth NOBLE, '400 U.S. Marines Attack Compound of Somali Gunmen', New York Times, 8 Jan. 1993, p. A1; Keesing's Record of World Events, Jan. 1993, p. 39255; 'Playing the US against the UN', supra, note 183; Hirsch and Oakley, supra, note 177, p. 60.
[189] On 25 January 1993, US and Belgian forces blocked the advance of warlord Mohamed Said Hersi 'Morgan' on the southern town of Kismayo. The operation was characterized by the US military as the first 'pre-emptive or direct action to enforce' a cease-fire agreed by the faction leaders at Addis Ababa earlier that month. Col. Fred Peck (Marine Corps), quoted in Diana Jean SCHEMO, 'U.S. Attacks Rebels in Somalia; Marine is Slain Later', New York Times, 26 Jan. 1993, p. A3. And see Hirsch and Oakley, supra, note 177, pp. 76-77 and 94.
[190] David BENTLEY and Robert OAKLEY, Peace Operations: A Comparison of Somalia and Haiti ('Strategic Forum' no. 30, Washington, D.C., National Defense University, May 1995), sec. 3. And see Hirsch and Oakley, supra, note 177, pp. 47 and 162.
[191] See Rules of Engagement for Operation Restore Hope, supra, note 183, 'Rules of Engagement' (especially nos. 2, 3, 6, 7 and 10(b)) and 'ROE Card'.
[192] See Rules of Engagement for Operation Restore Hope, supra, note 183, 'Rules of Self-Protection for all Soldiers', 'Rules of Engagement' (especially nos. 1, 3, and 10(a)), and 'ROE Card'. In the most significant exception to this restriction, Rule of Engagement 1(c) authorized the use of deadly force where 'Armed elements, mobs, and/or rioters threaten human life, sensitive equipment and aircraft, and open and free passage of relief supplies.' (emphasis added) Note that the US rules of engagement were used by most other UNITAF coalition members, though sometimes with modifications. Jonathan DWORKEN, 'Rules of Engagement: Lessons from Restore Hope', Military Review, vol. 74(9), Sept. 1994, p. 32.
[193] Hirsch and Oakley, supra, note 177, p. 162. The reference is to the United Nations Charter. Chapter VI is exclusively concerned with peaceful forms of dispute settlement, in contrast to chapter VII which includes provisions for the use of coercive measures.
[194] See: Bentley and Oakley, supra, note 190, sec. 3; Hirsch and Oakley, supra, note 177, p. xviii and 51.
[195] Discounting, that is, the swarm of TV reporters waiting to 'shoot' the marines as they landed on the beaches of Mogadishu, on 9 December 1992.
[196] Concerning the reasons for Aideed's sudden change of heart, see: Menkhaus and Ortmayer, supra, note 182, p. 9; Lyons and Samatar, supra, note 178, p. 39 (referring to a paper written by UNOSOM adviser John Drysdale).
[197] See: Lyons and Samatar, supra, note 178, pp. 39-40; Hirsch and Oakley, supra, note 177, pp. 54 and 69-72.
[198] See Hirsch and Oakley, supra, note 177, pp. 55-57 and 104.
[199] See: Arnold, supra, note 183, p. 33; Allard, supra, note 183, p. 73; Hirsch and Oakley, supra, note 177, p. 153.
[200] See: Hirsch and Oakley, supra, note 177, p. 58; Allard, supra, note 183, p. 73.
[201] See: Hirsch and Oakley, supra, note 177, pp. 56-57 and 104.
[202] The 'ROE Card', summarizing the rules of engagement for American soldiers in Somalia, urged them to 'Remember · The United States is not at war.' Rules of Engagement for Operation Restore Hope, supra, note 183 (emphasis in the original).
[203] Hirsch and Oakley, supra, note 177, p. 51. And see pp. 156-57.
[204] In early 1993, the Somali National Alliance (SNA) comprised, under Aideed's leadership, Aideed's faction of the United Somali Congress (USC) and three other factions. In this chapter, the abbreviation 'SNA' is used when referring to the SNA alliance as a whole and 'USC/SNA' when the discussion focuses on the USC/SNA faction, based in South Mogadishu. The other USC faction, led by Ali Mahdi, was part of a separate alliance, which Ali Mahdi also headed, known at that time as the 'Group of 11' or 'G-11'.
[205] See: Hirsch and Oakley, supra, note 177, pp. 60, 62-63, and 78-79; Lyons and Samatar, supra, note 178, p. 48.
[206] Chester CROCKER, 'The Lessons of Somalia --Not Everything Went Wrong', Foreign Affairs, vol. 74(3), May-June 1995, p. 4.
[207] See: Lyons and Samatar, supra, note 178, pp. 41 and 43; Operation Restore Hope: A Preliminary Assessment (London, African Rights, May 1993), p. 30; I.M. LEWIS, Making History in Somalia: Humanitarian Intervention in a Stateless Society (London, Centre for the Study of Global Governance, LSE, 1993), p. 11.
[208] See: Lyons and Samatar, supra, note 178, p. 47; Lewis, ibid., pp. 10-11; S/25354, 3 March 1993, para. 6.
[209] Thus, US Special Envoy Robert Oakley met frequently with traditional leaders, Somali professionals and representatives of women's groups, in Mogadishu and elsewhere, for discussions on the country's political future. See: Hirsch and Oakley, supra, note 177, pp. 33, 69-72, 78, 83-84, and 92-93; Lyons and Samatar, supra, note 178, pp. 47-48; Keith RICHBURG, 'Some Somalis Regain a Voice', International Herald Tribune (WP), 29 Jan. 1993, p. 4.
[210] 'You take one feather at a time, and the bird doesn't think there's anything terrible going on ... Then one day he finds he can't fly. We did that from the beginning.' Robert Oakley, quoted in Diana Jean SCHEMO, 'Nearly Everything in Somalia Is Now Up for Grabs', New York Times, 21 Feb. 1993, p. A3. And see John DRYSDALE, Whatever Happened to Somalia? (London, HAAN Associates, 1994), pp. 13 and 110.
[211] Richburg, supra, note 209. And see Menkhaus and Ortmayer, supra, note 182, pp. 12-13.
[212] ONUC's enforcement powers were, as noted earlier, not explicit, but could nevertheless be deduced from certain of the mandates assigned the force and the practical interpretation accorded to them. See The United Nations and Somalia, 1992-1996, supra, note 169, 'Introduction', paras. 5, 114 and 121.
[213] Both the Special Representative of the Secretary-General in Somalia, ret. Admiral Jonathan Howe, and the Deputy Force Commander, Major-General Thomas Montgomery, were Americans.
[214] Concerning the US role in shaping UNOSOM II policy in the aftermath of the USC/SNA's 5 June attacks on UNOSOM II soldiers, see Menkhaus and Ortmayer, supra, note 182, p. 16. For more information on the US military contribution to the UNOSOM II mission, including the exceptional command and control arrangements applicable to US forces, see Allard, supra, note 183, pp. 18-19, 24-25, 31 and 57-59.
[215] SCR 814, 26 March 1993, subparas. 4(a), (c), and (d). Other non-military tasks are enumerated in the other subparagraphs of paragraph 4.
[216] UNOSOM II's authority to take enforcement action derived from sec. B of SCR 814 (26 March 1993) and paras. 58 and 63 of S/25354 (3 March 1993). And see: paras. 91 and 97 of the latter report; note 235, infra.
[217] See: SCR 814, 26 March 1993, preambular para. 16 and operative para. 14; SCR 837, 6 June 1993, preambular para. 9; S/25354, 3 March 1993, paras. 58, 79, 85, and 91.
[218] With the exception of the Somali National Movement (SNM) of the secessionist north-west ('Republic of Somaliland'), the key Somali factions were represented at the January and March meetings.
[219] The General Agreement Signed in Addis Ababa on 8 January 1993 [hereinafter 'General Agreement']. Agreement on Implementing the Cease-fire and on Modalities of Disarmament (Supplement to the General Agreement Signed in Addis Ababa on 8 January 1993), 15 January 1993 [hereinafter 'Cease-fire and Disarmament Agreement']. These are reproduced in S/25168, 26 Jan. 1993 (Annexes II-III).
[220] Addis Ababa Agreement of the First Session of the Conference on National Reconciliation in Somalia, 27 March 1993 [hereinafter 'Addis Ababa Agreement of 27 March 1993']. Reproduced in The United Nations and Somalia, 1992-1996, supra, note 169, pp. 264-66.
[221] The link between UNOSOM II's enforcement mandate and the January Addis Ababa agreements emerges quite clearly from paragraph 8 of SCR 814 (26 March 1993) wherein the Security Council 'Demands' that the factions comply with the January agreements, especially the Cease-fire and Disarmament Agreement (supra, note 219). This demand was reiterated by the Security Council in paragraph 4 of SCR 837 (6 June 1993). The link between UNOSOM II's enforcement powers and the Addis Ababa agreements is also examined in the section on 'Consent', infra.
[222] Supra, note 4.
[223] SCR 814, 26 March 1993, para. 5. S/25354, 3 March 1993, subparas. 57(a) and (b). And see: SCR 814, para. 8; SCR 837, 6 June 1993, para. 4.
[224] SCR 814, 26 March 1993, para. 5. S/25354, 3 March 1993, subparas. 57(c) and (d). And see: SCR 814, para. 8; SCR 837, 6 June 1993, para. 4; S/25354, paras. 59-69 ('Cease-fire and Disarmament Concept').
[225] SCR 814, 26 March 1993, para. 5. S/25354, 3 March 1993, subpara. 57(e).
[226] Hirsch and Oakley, supra, note 177, pp. 115-16. At the time of the handover, UNOSOM II had only 17,000 troops in Somalia plus the 1100 member Quick Reaction Force. This compared with UNITAF's peak force level of some 37,000 troops and UNOSOM II's approved force level of 28,000 military personnel. The United Nations and Somalia, 1992-1996, supra, note 169, 'Introduction', para. 143. Hirsch and Oakley point, however, to other factors as inspiring the Somali perception of UN weakness, notably the failure of Pakistani troops in Mogadishu to patrol the city as aggressively as UNITAF forces had done. See Hirsch and Oakley, pp. 115-16.
[227] Fifty-six other Pakistani soldiers were wounded on June 5, of whom 11 were crippled for life. Probably the most complete account of the events of that day may be found in the report of the Commission of Inquiry established pursuant to SCR 885 (16 Nov. 1993). See S/1994/653, 1 June 1994, paras. 94-124 and 176-227. And see note 204, supra.
[228] Para. 3
[229] US and UN officials were convinced of Aideed's responsibility at the time. Michael GORDON, 'For Clinton, a Cautiously Limited Goal', International Herald Tribune (NYT), 19-20 June 1993, p. 2. Menkhaus and Ortmayer, supra, note 182, p. 14. Professor Tom Farer, an independent expert asked by the UN to carry out an investigation of the June 5 attacks, would subsequently conclude that Aideed's responsibility for the attacks was 'supported by clear and convincing evidence.' S/26351, 24 Aug. 1993, para. 24.
[230] SCR 814, 26 March 1993, para. 14. And see note 216, supra. This interpretation is supported by the language used in the provisions of SCR 837 quoted above: 'Re-emphasizes' (para. 3); 'Reaffirms that the Secretary-General is authorized under resolution 814 (1993)' (para. 5).
[231] For a detailed account of the events of 3-4 October, see the two-part series written by Rick ATKINSON for the Washington Post (published in the International Herald Tribune on 31 Jan. and 1 Feb. 1994).
[232] SCR 897, 4 Feb. 1994, subpara. 2(a). S/1994/12, 6 Jan. 1994, para. 57.
[233] SCR 897, 4 Feb. 1994, subparas. 2(b) and (g). S/1994/12, 6 Jan. 1994, para. 57.
[234] Boulden, supra, note 186, p. 155. And see: Agenda Supplement, supra, note 1, paras. 34-35; Boutros-Ghali, supra, note 54, p. 12.
[235] One should note, however, that the key operative provision in SCR 814, paragraph 5, simply approves the recommendations made by the Secretary-General in respect of the mandate in his report of 3 March 1993 (S/25354). UNOSOM II's mandate, including its enforcement mandate, is in fact defined in paragraphs 56 to 88 of the latter report.
[236] See text accompanying notes 216-25 and 230, supra. To these specific powers, one might arguably add a general power of enforcement for 'the consolidation, expansion and maintenance of a secure environment throughout Somalia'. See text accompanying note 217, supra.
[237] A change in rules of engagement, which came into effect shortly after the handover from UNITAF to UNOSOM II, allowed UN soldiers to fire upon technicals on sight, whether or not they showed hostile intent. Allard, supra, note 183, pp. 36-37.
[238] See: Menkhaus and Ortmayer, supra, note 182, p. 17; Allard, supra, note 183, pp. 65-66.
[239] UNOSOM II's 12 July missile attack on the 'Abdi House' was, in contrast to standard policy, conducted without warning. The aim, in fact, was to kill top SNA leaders, including Aideed. Though denied by the UN, it is widely believed that, at the time it was attacked, the house was being used by clan elders to discuss ways of ending the hostilities between Aideed and UNOSOM II. Casualty estimates ranged from a low of 20 (UNOSOM) to a high of 73 (SNA) killed (the ICRC gave a figure of 54). See: Somalia Faces the Future, supra, note 184, pp. 62-64; Menkhaus and Ortmayer, supra, note 182, p. 17; Hirsch and Oakley, supra, note 177, p. 121; 'The Mire', The Economist, 11 Sept. 1993; Allard, supra, note 183, pp. 65-66; S/26738, 12 Nov. 1993, para. 63; S/1994/653, 1 June 1994, paras. 153-55 and Annex 5 (pp. 79-80).
[240] Somali casualties over the period from 5 June to 3 October 1993 were an estimated 6,000 to 10,000 (dead and wounded), a large majority of which occurred in the USC/SNA's stronghold of South Mogadishu. These figures, which could not be broken down more precisely, resulted from interfactional fighting as well as clashes with UNOSOM II. Two-thirds of the casualties were reported to be women or children, many of whom were used as human shields by SNA militiamen. 'Americans Cite 6,000 Somali Casualties', International Herald Tribune (NYT), 9 December 1993, p. 2. UNOSOM II fatalities as of 14 October 1993 (just after the end of the UNOSOM - SNA conflict) stood at 81. United Nations Peace-keeping Operations --October 1993, UN Information Service (Geneva), Press Release GA/PK/3, 25 Oct. 1993.
[241] S/25354, 3 March 1993, para. 97.
[242] S/25354, 3 March 1993, para. 92. UNOSOM II's first chief of mission, (Ret.) Admiral Jonathan Howe, has written that '[s]uccess [in implementing UNOSOM II's initial mandate] depended on the willingness of Somali leaders to cooperate.' Jonathan HOWE, 'The United States and United Nations in Somalia: The Limits of Involvement', The Washington Quarterly, vol. 18(3), summer 1995, p. 52.
[243] Addis Ababa Agreement of 27 March 1993, supra, note 220, sec. I, paras. 4-6; referring to the General Agreement, supra, note 219, point 2, and the Cease-fire and Disarmament Agreement, supra, note 219, sec. II.
[244] Addis Ababa Agreement of 27 March 1993, supra, note 220, sec. I, paras. 2-5; referring to the Cease-fire and Disarmament Agreement, supra, note 219, sec. I.
[245] Addis Ababa Agreement of 27 March 1993, supra, note 220, sec. II, para. 5. And see: para. 6 of the latter agreement; General Agreement, supra, note 219, point 6.
[246] Addis Ababa Agreement of 27 March 1993, supra, note 220, sec. I, para. 6. Note that, in the January 1993 Cease-fire and Disarmament Agreement (supra, note 219), the factions committed themselves to both a cease-fire and disarmament.
[247] See note 188, supra.
[248] See: Paul LEWIS, 'Somali Factions Take a Tentative Step Toward Reconciliation', New York Times, 8 Jan. 1993, p. A8; Lyons and Samatar, supra, note 178, pp. 44-45; The Europa World Year Book 1993, vol. II (London, Europa Publications, 1993), p. 2557; 'Quatorze factions ont signé un accord de principe pour un cessez-le-feu', Le Monde, 10-11 janv. 1993, p. 3.
[249] Drysdale, supra, note 210, pp. 115 and 164. And see: Lyons and Samatar, supra, note 178, p. 50; note 221, supra.
[250] See: S/1994/653, 1 June 1994, paras. 193-97; Chopra et al, supra, note 61, p. 63.
[251] See SCR 814, 26 March 1993, para. 4. See also: S/1994/653, 1 June 1994, paras. 51-52, 93 and 199-205; Hirsch and Oakley, supra, note 177, pp. 153 and 158; Drysdale, supra, note 210, pp. 175-76.
[252] See S/1994/653, 1 June 1994, paras. 198-210.
[253] See: S/26530, 4 October 1993, pp. 2-3; Menkhaus and Ortmayer, supra, note 182, p. 15; Hirsch and Oakley, supra, note 177, pp. 123-24.
[254] Menkhaus and Ortmayer, supra, note 182, p. 15.
[255] See: Hope Restored? --Humanitarian Aid in Somalia 1990-1994 (Report of the Refugee Policy Group, Nov. 1994), p. 41 (citing the USLO); 'Somalia: Aydeed Faces His Own People', Africa Confidential, vol. 34(24), 3 Dec. 1993.
[256] Aideed's grip on the Habr Gedir was never as firm as popular imagination would have it. See: 'Somalia: Aydeed Faces His Own People', ibid.; Somalia Faces the Future, supra, note 184, p. 68; Michael MAREN, 'Somalia: Whose Failure?', Current History, vol. 95, no. 601, May 1996, p. 203.
[257] See: Menkhaus and Ortmayer, supra, note 182, p. 18; Hirsch and Oakley, supra, note 177, pp. 121-23; Managing Arms in Peace Processes: Somalia, supra, note 182, p. 96; S/1994/653, 1 June 1994, para. 235.
[258] See note 239, supra.
[259] See: Hirsch and Oakley, supra, note 177, pp. 120-22; Hope Restored?, supra, note 255, p. 41; S/1994/653, 1 June 1994, para. 156.
[260] S/25354, 3 March 1993, para. 57 (emphasis added). These provisions were made part of UNOSOM II's mandate through paragraph 5 of SCR 814 (26 March 1993). The plans drawn up by the UN for disarmament also assume impartiality. See S/25354, paras. 59-69 ('Cease-fire and Disarmament Concept'). For more evidence of impartiality, see SCR 814, paras. 8-9 and 13. Note finally that in the Addis Ababa Agreement of 27 March 1993, the Somali factions 'Further affirm that disarmament must and shall be comprehensive, impartial and transparent' (supra, note 220, sec. I, para. 2).
[261] S/26317, 12 Aug. 1993, para. 12. And see Lyons and Samatar, supra, note 178, p. 56.
[262] See Lyons and Samatar, supra, note 178, pp. 50 and 56.
[263] See: S/1994/653, 1 June 1994, paras. 64-69; Drysdale, supra, note 210, pp. 175-76; Chopra et al, supra, note 61, pp. 93-94.
[264] See: S/1994/653, 1 June 1994, paras. 74-80; Drysdale, supra, note 210, pp. 167-73 and 176-77; Hirsch and Oakley, supra, note 177, pp. 115-16.
[265] See: Hope Restored?, supra, note 255, p. 40; Menkhaus and Ortmayer, supra, note 182, pp. 14-15; Drysdale, supra, note 210, pp. 166-67. Menkhaus and Ortmayer point out that UN and US animosity was rooted in the hostility Aideed had shown towards the UN, and on occasion UNITAF, since the beginning of 1993 (p. 14).
[266] On 17 June 1993, SRSG Howe publicly called for Aideed's arrest and detention. A $25,000 reward was offered any Somali assisting in his capture.
[267] See SCR 837, 6 June 1993, operative paras. 1 and 4, preambular paras. 4 and 9.
[268] See: The United Nations and Somalia, 1992-1996, supra, note 169, docs. 56-59 (pp. 268-72); S/26022, 1 July 1993, paras. 17, 20, 30 and 32.
[269] See SCR 837, 6 June 1993, operative paras. 3 and 4, preambular para. 8.
[270] See: The United Nations and Somalia, 1992-1996, supra, note 169, docs. 56-57 and 59 (pp. 268-72); S/26022, 1 July 1993, paras. 17, 19, 22, 25, 28, and 30; S/26317, 17 Aug. 1993, para. 16; Jonathan HOWE, 'Somalia: Frustration in a Failed Nation' (IN Soldiers for Peace, ed. by B. Benton, New York, Facts on File, 1996), pp. 269-70; Menkhaus and Ortmayer, supra, note 182, p. 18.
[271] S/26317, 17 Aug. 1993, para. 73.
[272] 6 June 1993, operative para. 5 (reproduced after note 228, supra). And see preambular para. 11 and operative para. 6 of the resolution.
[273] See note 229, supra.
[274] See: Howe, supra, note 270, pp. 170-72; Howe, supra, note 242, p. 57; Menkhaus and Ortmayer, supra, note 182, p. 17. This strategy of marginalization also involved an attempt at pure and simple elimination in the form of a missile attack on a house where the UN believed top SNA officials, including Aideed, were meeting. See: Menkhaus and Ortmayer, p. 17; Hirsch and Oakley, supra, note 177, p. 121; note 239, supra.
[275] See Menkhaus and Ortmayer, supra, note 182, pp. 15-16.
[276] 'In Somalia, negotiating with Aideed after the killing of twenty-four Pakistani troops would be perceived as weakness and timidity by watchful Somali factions.' Menkhaus and Ortmayer, supra, note 182, p. 15. And see Howe, supra, note 270, p. 169.
[277] See: Howe, supra, note 270, pp. 169 and 172; Howe, supra, note 242, p. 57; The United Nations and Somalia, 1992-1996, supra, note 169, 'Introduction', paras. 145 and 147. The UN Security Council's insistence on the 'neutralization' of SNA-controlled Radio Mogadishu bore a particularly close relationship to this policy goal since the Radio was accused of encouraging violence against UNOSOM II. See: SCR 837, 6 June 1993, preambular para. 11 and operative para. 3; S/26022, 1 July 1993, para. 30. Note also that the question of the safety of UN personnel was already being considered by other UN organs, including the General Assembly (see GAR 47/72, 14 Dec. 1992), the Special Committee on Peace-keeping Operations (see A/48/173, 25 May 1993, sec. III D), and the Secretary-General (see An Agenda for Peace, supra, note 4, sec. VIII).
[278] Menkhaus and Ortmayer, supra, note 182, p. 15.
[279] See Menkhaus and Ortmayer, supra, note 182, p. 15. The UNOSOM II mission was widely perceived as the first practical application of paragraph 44 of An Agenda for Peace. See Samuel MAKINDA, Seeking Peace from Chaos: Humanitarian Intervention in Somalia (Boulder, Co., Lynne Rienner, 1993), p. 77.
[280] Howe, supra, note 270, p. 172. And see S/26022, 1 July 1993, para. 41.
[281] S/4389, 18 July 1960, para. 13. See text accompanying note 156, supra for the full quote.
[282] Hirsch and Oakley, supra, note 177, p. 123. Menkhaus and Ortmayer, supra, note 182, p. 18. There were two main reasons for the identification of the Habr Gedir with the USC/SNA's fight against UNOSOM II. First, the USC/SNA was essentially the militia of the Habr Gedir clan. By weakening the USC/SNA, UNOSOM II also weakened the Habr Gedir. Second, the principle of collective responsibility, a linchpin of Somali social order, bound the fate of the clan to its militia and militia leader (Aideed). Menkhaus and Ortmayer, p. 18.
[283] S/26022, 1 July 1993, paras. 30 and 41.
[284] Howe, supra, note 270, p. 170.
[285] See 'Somalia: Aydeed Faces His Own People', supra, note 255.
[286] See note 240, supra.
[287] 'Indeed, casualties on the SNA side were so high [after the 3 October battle] that most observers believe the Habr-Gedr clan were on the verge of suing for peace on U.N. terms, jettisoning General Aideed's policy as too costly for the clan.' Menkhaus and Ortmayer, supra, note 182, p. 19.
[288] See 'UNITAF: Impartiality' section, supra.
[289] See Crocker, supra, note 206, p. 107.
[290] See: Lyons and Samatar, supra, note 178, pp. 44-45 and 49-50; 'Addis 'Reconciliation' Conference Opened', Somalia News Update, vol. 2(11), 16 March 1993; Sture NORMARK, 'Building Local Political Institutions --District and Regional Councils' (Paper presented at the Comprehensive Seminar on Lessons Learned from United Nations Operation in Somalia (UNOSOM), Plainsboro, N.J., 13-15 Sept. 1995).
[291] The bottom-up strategy, inspired by the decentralized, though not anarchic, nature of traditional Somali society, was articulated in a series of meetings and consultations held under the auspices of the Life and Peace Institute in Uppsala, Sweden. See: Lewis, supra, note 207, p. 11; Normark, ibid., pp. 1-3; Local Administrative Structures in Somalia (A Case Study of the Bay Region Carried Out by the Life and Peace Institute (LPI), Horn of Africa Program), June 1995, p. 5.
[292] See: Addis Ababa Agreement of 27 March 1993, supra, note 220, sec. IV; Lyons and Samatar, supra, note 178, pp. 52, 54 and 68.
[293] Agreements Reached between the Political Leaders at the Consultations Held in Addis Ababa, 30 March 1993. Note that this agreement is not reproduced in the UN's major compilation of documents on the Somalia intervention (The United Nations and Somalia, 1992-1996, supra, note 169), but can be found in I.M. Lewis, Understanding Somalia (London, Haan Associates, 2nd ed., 1993; Appendix II). It is also discussed by the Commission of Inquiry established pursuant to SCR 885 (1993). See S/1994/653, 1 June 1994, paras. 60-63 and 206-09.
[294] Concerning the policy in 1994-95, see: Ken MENKHAUS, 'The Betrayal of the Somali People', Horn of Africa Bulletin, vol. 6(4), Aug.-Sept. 1994, p. 1; Normark, supra, note 290, p. 4.
[295] See: Menkhaus and Ortmayer, supra, note 182, p. 13; S/1994/12, 6 Jan. 1994, para. 10.
[296] See: Lyons and Samatar, supra, note 178, p. 55; Hirsch and Oakley, supra, note 177, pp. 98-99, 124 and 135-36; Local Administrative Structures in Somalia, supra, note 291, pp. 7 and 10; S/1994/12, 6 Jan. 1994, paras. 10-11.
[297] The Somali Salvation Democratic Front (SSDF) was probably the strongest supporter of the disarmament process. As a result, it got much further in the SSDF's north-eastern stronghold than in the south of the country. See Managing Arms in Peace Processes: Somalia, supra, note 182, pp. 91-92. For a general assessment of the attitudes of the factions towards the disarmament process, see Hirsch and Oakley, supra, note 177, p. 99.
[298] Concerning these inspections, see S/1994/653, 1 June 1994, paras. 94-103, 193-97 and 211. The SNA's decision to launch the 5 June attacks can also be traced to the threat the inspections appeared to pose to Radio Mogadishu, the site of one of its AWSS. In the face of the SNA's increasingly hostile, anti-UN broadcasts, UNOSOM II officials, prior to 5 June, had seriously considered seizing the station or otherwise silencing it. This was known to the SNA. See: S/1994/653, 1 June 1994, paras. 80-91, 94-95, and 210-11; Drysdale, supra, note 210, pp. 173-74; Chopra et al, supra, note 61, p. 95.
[299] See text accompanying notes 261-65, supra.
[300] See: Theo FARRELL, 'Sliding into War: The Somalia Imbroglio and US Army Peace Operations Doctrine', International Peacekeeping (London), vol. 2(2), summer 1995, p. 201; Hirsch and Oakley, supra, note 177, p. 99; S/1994/653, 1 June 1994, para. 45.
[301] The same name --'United Nations Protection Force (UNPROFOR)' --was assigned to the three UN forces deployed to Croatia, Macedonia, and Bosnia-Herzegovina up until 31 March 1995 when UNPROFOR-Croatia was renamed the 'United Nations Confidence Restoration Operation in Croatia' (UNCRO, SCR 981) and UNPROFOR-Macedonia was renamed the 'United Nations Preventive Deployment Force' (UNPREDEP, SCR 983). UNPROFOR-Bosnia retained the name 'UNPROFOR' (see SCR 982).
[302] Note that since the conclusion of the Dayton accords, in December 1995, the country's exact name is 'Bosnia and Herzegovina'.
[303] See S/23280, 11 Dec. 1991, Annex III, especially paras. 2 and 4.
[304] S/24075, 6 June 1992, para. 4. And see the Agreement of 5 June 1992 on the Reopening of Sarajevo Airport for Humanitarian Purposes, annexed to S/24075. This mandate and corresponding Force enlargement were approved in SCR 758 (8 June 1992) and SCR 761 (29 June 1992).
[305] See S/1995/444, 30 May 1995, paras. 23 and 24.
[306] Those Security Council representatives who addressed the question at the time of the resolution's adoption were of the opinion that it authorized the use of force, if necessary, for the stated purposes. See S/PV.3106, 13 Aug. 1992. And see Marc WELLER, 'Peace-keeping and Peace-enforcement in the Republic of Bosnia and Herzegovina', Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, vol. 56, nos. 1-2, 1996, pp. 97-98.
[307] The parties agreed they would collaborate fully in the delivery of humanitarian aid by road throughout Bosnia. Specific Decisions by the London Conference, LC/C7 (FINAL), 27 Aug. 1992, para. 5(i). This commitment was noted by the Security Council in its Resolution 776 (14 Sept. 1992) -- 2nd preambular para.
[308] Concerning this shift of approach, partly motivated by a reluctance to put an enforcement operation alongside the pre-existing peace-keeping mission (UNPROFOR), see Trevor ROWE, 'U.S., Britain and France Drop Plans for Bosnia Military Role', International Herald Tribune (WP), 26 Aug. 1992, p. 2.
[309] SCR 776, 14 Sept. 1992, para. 2.
[310] For the full list of tasks, see S/1995/444, 30 May 1995, para. 27.
[311] S/24540, 10 Sept. 1992, para. 9. And see para. 1.
[312] S/24540, 10 Sept. 1992, para. 9. Note that the extended definition of self-defence was incorporated into the rules of engagement adopted for UNPROFOR. See Force Commander's Policy Directive Number (13) Rules of Engagement, Part I: Ground Forces, issued 24 March 1992, revised 19 July 1993, paras. 2 and 5 (reproduced in Bruce BERKOWITZ, 'Rules of Engagement for U.N. Peacekeeping Forces in Bosnia', Orbis, vol. 38(4), fall 1994).
[313] See: S/25264, 10 Feb. 1993, para. 18; S/1994/300, 16 March 1994, para. 21; S/1995/444, 30 May 1995, paras. 28 and 29; John KIFNER, 'U.N. Aides Angry at the Serbs' Blocking of Relief', The New York Times, 12 Dec. 1993, p. A11; Wider Peacekeeping, Army Field Manual, vol. 5, part 2, London, HMSO, 1995 [hereinafter 'Wider Peacekeeping'], pp. 8-9 of 'UNPROFOR' supplement.
[314] See 'Les «casques bleus» britanniques ont pour la première fois vigoureusement répliqué à une attaque serbe', Le Monde, 12 janv. 1993, p. 4.
[315] S/1995/444, 30 May 1995, para. 29.
[316] --final preambular paragraph.
[317] --final preambular paragraph.
[318] SCR 847 (30 June 1993) made it clear that it applied to UNPROFOR in both Croatia and Bosnia-Herzegovina (final pream. para.).
[319] Certain provisions in chapter VII, to be examined in some detail in chapter 8, infra, give the Security Council the power to order or recommend coercive measures for the maintenance of international peace and security.
[320] See text accompanying notes 32 and 134-42, supra.
[321] See: Weller, supra, note 306, pp. 99-100; Boulden, supra, note 186, p. 160. It should, however, be noted that the reference to chapter VII is not technically incorrect. Article 40, situated within chapter VII, is widely viewed as a possible, even preferred, Charter basis for UN peace-keeping. In this regard, see text accompanying note 764, infra.
[322] The UN airlift to Sarajevo was suspended from 4 September to 3 October 1992 after an Italian aircraft was shot down by a missile of undetermined origin.
[323] --para. 1. An exception was made for '[UNPROFOR] flights or ... other flights in support of United Nations operations' (para. 1). SCR 786 (10 Nov. 1992) subsequently specified that the ban applied to all aircraft, whether fixed-wing or rotary-wing (helicopters) (para. 2). SCR 816 (31 March 1993) extended the ban to cover 'flights by all fixed-wing and rotary-wing aircraft' (not only 'military flights') in Bosnian airspace, excepting humanitarian flights and other flights consistent with relevant Security Council resolutions, authorized by UNPROFOR (paras. 1 and 2).
[324] Note, however, that the Security Council, in the last preambular paragraph of Resolution 781, states that it is 'Acting pursuant to the provisions of resolution 770 (1992) aimed at ensuring the safety of the delivery of humanitarian assistance in Bosnia and Herzegovina,' which, as noted earlier, were adopted under chapter VII.
[325] In paragraph 6 of the resolution, the Security Council simply 'Undertakes to examine without delay all the information brought to its attention concerning the implementation of the ban on military flights in Bosnia and Herzegovina and, in the case of violations, to consider urgently the further measures necessary to enforce this ban'.
[326] In response to the Security Council's request for technical monitoring assistance, NATO activated 'Operation Sky Monitor' in October 1992. See: SCR 781, 9 Oct. 1992, para. 5; Operation Deny Flight (Final Fact Sheet), NATO, 21 Dec. 1995, 'History and Significant Events'; Dick LEURDIJK, The United Nations and NATO in Former Yugoslavia, The Hague, Netherlands Atlantic Commission and the Netherlands Institute of International Relations 'Clingendael', 1994, pp. 31-32.
[327] See: SCR 781, 9 Oct. 1992, paras. 2 and 3; SCR 786, 10 Nov. 1992; S/24767, 5 Nov. 1992; S/24848, 24 Nov. 1992, paras. 41 and 42; SCR 816, 31 March 1993, paras. 2 and 3.
[328] See S/24848, 24 Nov. 1992, para. 48.
[329] See S/25264, 10 Feb. 1993, para. 20.
[330] In his statement of 17 March 1993 (S/25426 of the same date), the President of the Security Council noted that a total of 465 violations had been reported by the UN since the beginning of monitoring operations. And see S/25443, 19 March 1993.
[331] See S/25444, 19 March 1993.
[332] See: S/25426, 17 March 1993; SCR 816, 31 March 1993, preambular paras. 4 and 5.
[333] SCR 816, 31 March 1993, pream. para. 8. In the previous preambular paragraph, the Security Council determined 'that the grave situation in the Republic of Bosnia and Herzegovina continues to be a threat to international peace and security'. This determination, a prerequisite under UN Charter article 39 to Security Council action under chapter VII, was first made in respect of the Bosnian conflict in SCR 757 (30 May 1992) which imposed economic sanctions on the FRY.
[334] SCR 816, 31 March 1993, para. 4.
[335] Operation Deny Flight (Final Fact Sheet), NATO, 21 Dec. 1995, 'History and Significant Events'. NATO Starts Operation of No-Fly Zone Enforcement, NATO Press Release (93)29, 12 April 1993.
[336] See: S/25567, 10 April 1993; Gregory SCHULTE, 'Former Yugoslavia and the New NATO', Survival, vol. 39(1), spring 1997, p. 27.
[337] Michael R. GORDON, 'Firing to Be NATO Planes' Last Resort', International Herald Tribune (NYT), 13 April 1993, p. 2.
[338] Barbara STARR, 'NATO Ready for Wider Air Strikes on Serbs', Jane's Defence Weekly, 30 April 1994, p. 4. Schulte, supra, note 336, p. 27. Théodore CHRISTAKIS, L'ONU, le chapitre VII et la crise yougoslave (Paris, Montchrestien, 1996), pp. 166-67.
[339] See: Operation Deny Flight (Final Fact Sheet), NATO, 21 Dec. 1995, 'History and Significant Events'; S/1994/5/Add. 13, 1 March 1994.
[340] See: S/1994/300, 16 March 1994, para. 24; S/1995/444, 30 May 1995, para. 31; Schulte, supra, note 336, p. 21; Rick ATKINSON, 'NATO Airmen, Nonchalant, to Keep Up Bosnia Pressure', International Herald Tribune (WP), 3 March 1994, p. 5.
[341] See: SCR 1031, 15 Dec. 1995, para. 19; S/1995/1050, 20 Dec. 1995. Since 20 December 1995, the NATO-led forces sent to ensure implementation of the Dayton accords have exercised control over Bosnian airspace under the provisions of that agreement.
[342] S/1995/5/Add.67, 27 Feb. 1996.
[343] SCR 781, 9 Oct. 1992, para. 1.
[344] See Specific Decisions by the London Conference, LC/C7 (FINAL), 27 Aug. 1992, sec. 3 ('confidence-building measures'). See also S/24634, 8 Oct. 1992, Annex, Enclosure. These undertakings were noted by the Security Council in the third and fifth preambular paragraphs of its Resolution 781 (9 October 1992) establishing the no-fly zone.
[345] See S/24616, 5 Oct. 1992.
[346] Some observers have, however, questioned the relative military significance of that advantage. See: 'Picking Over the Pieces of War', The Economist, 17 Oct. 1992, p. 34; 'The Dirty Work in Bosnia', International Herald Tribune (Wash. Post editorial), 3-4 April 1993, p. 4; Gordon, supra, note 337.
[347] S/1994/1389, 1 Dec. 1994, para. 44. As indicated by the Secretary-General in the latter paragraph of his report, the safe areas regime is defined in Security Council Resolutions 819 (16 April 1993), 824 (6 May 1993), 836 (4 June 1993), 913 (22 April 1994), and 959 (19 Nov. 1994).
[348] In paragraph 4 of Resolution 819 (16 April 1993), the Security Council requested the Secretary-General, 'with a view to monitoring the humanitarian situation in the safe area, to take immediate steps to increase the presence of UNPROFOR in Srebrenica and its surroundings' (emphasis added). Similarly, in Resolution 824 (6 May 1993), the Security Council authorized the strengthening of UNPROFOR by an additional 50 UN military observers, yet only for the purpose of monitoring the withdrawal of Bosnian Serb forces from the safe areas and the 'humanitarian situation' therein (paras. 4(a) and 6). While chapter VII of the Charter was invoked in the latter resolution, this was only to stress the Security Council's determination to ensure UNPROFOR's security and freedom of movement (last paragraph of the preamble, referring to SCR 815). On this issue, see text accompanying notes 316-21, supra.
[349] SCR 836, 4 June 1993, para. 4.
[350] As acknowledged by the Secretary-General in his May 1994 report on the safe areas, there was, in fact, considerable confusion in respect of the safe areas mandate. See S/1994/555, 9 May 1994, para. 16.
[351] S/1994/555, 9 May 1994, para. 16.
[352] Paragraph 13 of the May 1994 report is explicit in this respect: 'UNPROFOR's protection role is derived from its mere presence.' S/1994/555, 9 May 1994. And see paragraph 21 of the latter report. See also S/1994/1389, 1 Dec. 1994, para. 59, wherein the Secretary-General makes an interesting distinction between deterrence and enforcement: 'it is my view that the role of UNPROFOR of deterring violations of the safe-area regime should not be changed to one of enforcing the regime.' Recall that paragraph 5 of Resolution 836 (4 June 1993) required UNPROFOR 'to deter attacks against the safe areas'.
[353] 'UNPROFOR is neither structured nor equipped for combat and has never had sufficient resources, even with air support, to defend the safe areas against a deliberate attack or to hold ground.' S/1994/555, 9 May 1994, para. 13.
[354] See: S/25939, 14 June 1993, paras. 4 and 5; S/1994/555, 9 May 1994, paras. 16-17.
[355] In support of this interpretation, see S/1995/444, 30 May 1995, para. 33.
[356] Force Commander's Policy Directive Number (13) Rules of Engagement, Part I: Ground Forces, supra, note 312, para. 5. And see para. 17.
[357] S/25939, 14 June 1993, para. 5.
[358] Ibid.
[359] S/1994/1389, 1 Dec. 1994, paras. 2 and 54.
[360] S/25939, 14 June 1993, para. 5.
[361] Ibid., para. 6.
[362] See S/1994/1389, 1 Dec. 1994, paras. 4, 5, 7, 11 and 17.
[363] See S/1994/94, 28 Jan. 1994.
[364] See: Chris HEDGES, 'U.N. Warns Serbs of Bombing if They Attack Dutch Unit', The New York Times, 10 July 1995, p. A1; idem, 'Serb Forces Fight Dutch U.N. Troops in Eastern Bosnia', The New York Times, 11 July 1995, p. A1; idem, 'Bosnian Serbs Overrun Town Protected by U.N.', The New York Times, 12 July 1995, p. A1; Charles LANE, 'The Fall of Srebrenica', The New Republic, 14 Aug. 1995, pp. 15-16.
[365] Recall that the earliest formulations of the right of self-defence in peace-keeping permitted the use of force in response to 'an attack with arms, including attempts to use force to make [peace-keepers] withdraw from positions which they occupy under orders'. A/3943, 9 Oct. 1958, para. 179 (quoted more fully in chapter 1 --text accompanying note 33, supra).
[366] Ministerial Meeting of the North Atlantic Council, Athens, Greece (Final Communiqué), 10 June 1993 (source: NATO Communiqués 1993, NATO Office of Information and Press), para. 3.
[367] The offer of 'protective airpower' was stated to be a 'response to UNSC Resolution 836 and the expanded UNPROFOR mandate related to safe areas'. Ibid., para. 3.
[368] See 'Conseil OTAN: Protection aérienne de toute la FORPRONU ...', Nouvelles atlantiques, no. 2534, 12 juin 1993, p. 1. Close air support was operational as of August 1993 (S/26335, 20 Aug. 1993). It was first applied in April 1994 during the Gorazde Crisis and in a handful of instances thereafter, mostly, but not exclusively, in and around the safe areas. Note that Resolution 908 (31 March 1994) extended close air support to cover UNPROFOR troops in Croatia. It is submitted that, as it was not tied to the safe areas per se, but rather to the defence of UNPROFOR anywhere in Bosnia (and Croatia), close air support requires legal grounds other than Resolution 836 --such as those contained in Resolutions 807 and 815 (see text accompanying notes 316-21, supra). Many legal scholars, however, make no distinction between close air support and air strikes for the defence of the safe areas themselves, identifying Resolution 836 as the legal basis for both. In this regard, see Linos-Alexandre SICILIANOS, 'Le contrôle par le Conseil de sécurité des actes de légitime défense' (DANS Le chapitre VII de la Charte des Nations Unies, Paris, Pedone, 1995), p. 93.
[369] The somewhat misplaced emphasis, in Security Council resolutions dealing with the safe areas, on the security of UN personnel, as opposed to that of the safe areas' civilian inhabitants, has not escaped comment. See Maurice TORRELLI, 'Les zones de sécurité', Revue générale de droit international public, tome 99, 1995/4, pp. 842-43.
[370] SCR 836, 4 June 1993, para. 5.
[371] Paragraphs 5, 9 and 10 of Resolution 836 are reproduced supra (text following note 349).
[372] Resolution 836 (4 June 1993) had specified that NATO's use of air power in 'support [of] UNPROFOR in the performance of its [safe areas] mandate' would be 'subject to close coordination with the Secretary-General and UNPROFOR' (para. 10; and see para. 11). In the case of close air support, NATO merely acted upon UN request. Where air power was used for the defence of the safe areas, a 'dual key' system of authorization applied -- both NATO (after the Gorazde Crisis of April 1994) and the UN could call for action, while either one (in practice, this meant the UN) could veto such a request at any rung on the command chain. Both procedures were modified over the 1993-95 period. The most significant change occurred with the UN Secretary-General's delegation of authority to approve the use of air power down to the political and military commanders in the field (in February 1994 and July 1995). Concerning the delegation of July 1995, see note 390, infra.
[373] The Russian Federation persistently opposed NATO's use of air power, whether for the defence of UNPROFOR or of the safe areas, claiming, in particular, that the Security Council had a continuing right of oversight in these areas. Concerning the Russian position, see Christakis, supra, note 338, pp. 181-85; Weller, supra, note 306, p. 111; Sicilianos, supra, note 368, p. 93.
[374] See: 'Bosnie: Conseil extraordinaire de l'OTAN ...', Nouvelles atlantiques, no. 2547, 4 août 1993, p. 1; Schulte, supra, note 336, p. 22.
[375] See: Press Statement by the Secretary-General following the Special Meeting of the North Atlantic Council in Brussels on 2 August 1993 (reproduced in NATO Review, 1993/4, p. 26); Decisions Taken at the Meeting of the North Atlantic Council on 9th August 1993, NATO Press Release (93)52.
[376] Decisions Taken at the Meeting of the North Atlantic Council on 9th February 1994, NATO Press Release (94)15, 9 Feb. 1994. These decisions were prompted by the UN Secretary-General's request that the NAC authorize NATO commanders, when asked by the UN, to launch air strikes against Serb heavy weapons determined to be responsible for attacks against civilian targets in Sarajevo. NATO's imposition of the Sarajevo 'exclusion zone' in fact went beyond the terms of the UN request. See S/1994/131, 7 Feb. 1994.
[377] See: Decisions Taken at the Meeting of the North Atlantic Council on 22nd April 1994, NATO Press Release (94)31, 22 April 1994, paras. 5-7; Decisions on the Protection of Safe Areas Taken at the Meeting of the North Atlantic Council on 22nd April 1994, NATO Press Release (94)32, 22 April 1994, paras. 7 and 9 (reproduced in S/1994/495, 22 April 1994 and S/1994/498, 22 April 1994, respectively). Note that the four safe areas not dealt with in earlier NAC decisions (Srebrenica, Zepa, Bihac and Tuzla) were the focus of paragraphs 8 and 9 of the latter set of decisions. NATO commanders were authorized, under specified conditions, to impose military exclusion zones around these safe areas and to launch air strikes against Bosnian Serb heavy weapons attacking or threatening them. Legitimate target sets were to include Bosnian Serb heavy weapons 'and other Bosnian Serb military assets, as well as their direct and essential military support facilities' (paras. 9(a) and 9(b)). These broad powers went largely unused. As described below, the fall of the Srebrenica and Zepa safe areas in July 1995 prompted a new round of NATO decision-making covering similar ground. Note also that the request of the UN Secretary-General which prompted the NAC's 22 April decisions, like the request he had made in February concerning Sarajevo (see preceding note), made no mention of an exclusion zone. See S/1994/466, 19 April 1994. While the UN Secretary-General was to assert that the NAC decisions of February and April 1994 were 'in accordance with paragraph 10 of Security Council resolution 836 (1993),' he noted 'a certain ambiguity about the use of air power with regard to the exclusion zones around Sarajevo and Gorazde' given the lack of any reference to such zones in the Security Council resolutions concerning the safe areas. S/1995/444, 30 May 1995, para. 49. On the question of the compatibility of the NATO-decreed exclusion zones with Security Council Resolution 836, see: Robert SIEKMANN, 'The Lawfulness of the NATO Ultimatums Concerning the 'Safe Areas' in Bosnia', International Peacekeeping (The Hague), vol. 1(2), March-May 1994; Weller, supra, note 306, pp. 119-20; Christakis, supra, note 338, pp. 182-84.
[378] The NAC authorized NATO commanders to act on the basis of this wider authorization on 19 November. On 21 November 1994, in the largest air assault the Alliance had mounted to that point in the Bosnian war, 39 NATO aircraft struck the Udbina airbase in Serb-held Croatia, the launching point for Croatian Serb attacks against Bihac.
[379] The safe areas experience has led many to comment on the perils of mixing peace-keeping and enforcement action within a single mission. See: Agenda Supplement, supra, note 1, paras. 33-36; Shashi THAROOR, 'The Changing Face of Peacekeeping' (IN Soldiers for Peace, ed. by B. Benton, New York, Facts on File, 1996), pp. 215-16; Sanderson, supra, note 51, p. 32; Robert SIEKMANN, 'The Five Main Mistakes Regarding Bosnia in Retrospect', International Peacekeeping (The Hague), vol. 1(4), Sept.- Nov. 1994, p. 131.
[380] See: S/1995/444, 30 May 1995, para. 40; Schulte, supra, note 336, p. 21.
[381] Concerning the considerable restraint shown, before August 1995, in the use of NATO air power, see, for example, Meisler, supra, note 181, pp. 325-27. One of the most significant uses of air power during this period was the bombing, on 21 November 1994, of the Udbina airfield in Serb-held Croatia. Yet, while the airport runway was severely damaged in the NATO raid, Serb planes were spared at the specific request of the UNPROFOR Force Commander. 'Bosnie: l'OTAN a lancé avec succès une attaque contre l'aérodrome d'Udbina en Krajina (Croatie)', Nouvelles atlantiques, no. 2672, 23 nov. 1994. Ivo DAALDER, Anthony Lake and the War in Bosnia (Pew Case Study no. 467, Washington, D.C., Institute for the Study of Diplomacy, 1995), p. 5.
[382] See: S/1995/444, 30 May 1995, para. 63; Patrick MOORE, 'Karadzic Takes the International Community Hostage', Transition, vol. 1(12), 14 July 1995, pp. 2-4.
[383] See S/1995/444, 30 May 1995, paras. 6-15.
[384] For more information on the fall of Srebrenica, see the works cited in note 364, supra. As of November 1996, more than 6,500 Muslim men from the enclave remained unaccounted for and were presumed to have been massacred by the Bosnian Serbs immediately after its capture. John POMFRET, 'Bosnian Serb Leader Ousts Mladic', International Herald Tribune (WP), 11 Nov. 1996, p. 5.
[385] S/1995/470, 9 June 1995.
[386] Bruce NELAND, 'War on All Fronts', Time, 7 Aug. 1995, p. 38.
[387] In its Resolution 1004, adopted on 12 July 1995, just after the fall of Srebrenica, the Security Council requested the Secretary-General 'to use all resources available to him to restore the status as defined by the Agreement of 18 April 1993 of the safe area of Srebrenica in accordance with the mandate of UNPROFOR' (para. 6). In fact, as the wording of this provision suggests, no new resources were to be made available to the Secretary-General for the purpose of reversing the Bosnian Serb capture of the safe area. Although the resolution was adopted under chapter VII of the UN Charter, UNPROFOR received no new enforcement powers.
[388] These decisions were taken over the course of three meetings: the 21 July meeting, in London, of foreign and defence ministers of the Contact Group (France, Germany, Russia, the UK, and the US) and 11 other contributors to the UN peace-keeping forces in the former Yugoslavia; and the meetings of NATO's North Atlantic Council on 25-26 July and 1 August. A Memorandum of Understanding, signed by UN and NATO military commanders on 10 August 1995, incorporated these decisions into operational planning. See: 'Allies Warn Bosnian Serbs of 'Substantial' Air Strikes if U.N. Enclave Is Attacked' (articles by S. Engelberg and J. Darnton, excerpts from a summary of the London meeting), The New York Times, 22 July 1995, pp. A1 and A4; 'The International Conference on Bosnia -- Now We Must Act' (Remarks by Secretary of State Christopher at a Press Briefing, London, 21 July 1995), U.S. Department of State Dispatch, vol. 6(30), 24 July 1995, p. 583; 'Bosnie/OTAN: Après la Conférence de Londres, ...', Nouvelles atlantiques, no. 2738, 26 juill. 1995, p. 2; Statement by the Secretary General following North Atlantic Council Meeting in Permanent Session on the Situation in Gorazde, 25 July 1995 (source: NATO Communiqués 1995, NATO Office of Information and Press); Statement by the Secretary General following Meeting of the North Atlantic Council in Permanent Session on the Situation in Gorazde, 1 Aug. 1995 (source: idem); NATO and UN Military Commanders Sign Memorandum of Agreement on Air Operations, AFSOUTH (NATO) Press Release 95-23, 10 Aug. 1995; Operation Deliberate Force (NATO Background Note), 6 Nov. 1995.
[389] This process had begun in June with the abandonment of weapons collection points and observation posts in the Sarajevo exclusion zone. See: Tihomir LOZA, 'From Hostages to Hostilities', War Report, no. 43, July 1996, pp. 36-37; S/1995/623, 1 Aug. 1995, p. 2.
[390] But see: Ed VULLIAMY, 'The Defining Moment' (IN With No Peace to Keep, ed. by B. Cohen and G. Stamkoski, London, Grainpress, 1995), pp. 17-18; 'The West's Two-Track Mind', The Economist, 9 Sept. 1995, p. 29; 'Ratko Refuses to Leave the Sinking Ship', The Economist, 16 Sept. 1995, p. 37. At the end of July 1995, the UN Secretary-General delegated his authority to approve air strikes for the defence of the safe areas to the overall Commander of UN forces in the former Yugoslavia, Lt. Gen. Bernard Janvier. See: S/1995/623, 1 Aug. 1995; 'Security Council Is Flouted by Islamic States, US Senate, Pushing Europe toward Wider War', International Documents Review, vol. 6(28), 31 July 1995, pp. 2-3.
[391] Statement by the Secretary General of NATO, NATO Press Release (95)79, 5 Sept. 1995. Joint Statement by Admiral Leighton W. Smith, Commander in Chief, Allied Forces Southern Europe, and Lt. Gen. Bernard Janvier, Force Commander, United Nations Peace Forces, AFSOUTH (NATO) Press Release 95-43, 21 Sept. 1995.
[392] See: 'Enter the Americans', The Economist, 19 Aug. 1995, p. 23; Steven GREENHOUSE, 'U.S. Warns of Air Strikes Unless Serbs Negotiate', International Herald Tribune (NYT), 28 Aug. 1995, p. 1; 'French Jet Lost, 5 EU Aides Killed', International Herald Tribune (WP, AFP, AP), 31 Aug. 1995, p. 1 (comments of US State Dept. Spokesman); Rick ATKINSON, 'Will Strikes Shorten War or Prolong It?', International Herald Tribune (WP), 31 Aug. 1995, p. 1, at p. 6 (comments of NATO Secretary-General); Stephen ENGELBERG, 'NATO to Intensify Use of Air Power against the Serbs', The New York Times, 7 Sept. 1995, p. A1, at p. A10; 'Make War, Make Peace', Newsweek, 11 Sept. 1995, pp. 13-14; Vulliamy, supra, note 390, p. 19. Yet, according to Richard Holbrooke, chief American negotiator for Bosnia, the bombing had 'nothing to do with the peace negotiations'. 'The West's Two-Track Mind', supra, note 390, p. 29.
[393] The operation's primary targets were 'direct and essential military support' facilities located in Serb-held territory throughout Bosnia-Herzegovina, especially in the south-eastern part of the Republic, specifically: air defence systems, command and control centres, transport and telecommunications links, ammunition and fuel depots, and equipment storage and repair facilities. Heavy weapons were also targeted, where possible, but not Bosnian Serb troop concentrations. See: Press Briefing (Update): NATO Operation Deliberate Force, AFSOUTH (NATO), Naples, 9 Sept. 1995 (Briefer: Group Captain Trevor Murray, Chief Air Operations) (source of the quotation); Engelberg, ibid., pp. A1 and A10.
[394] These are listed in note 347, supra.
[395] See: S/25939, 14 June 1993, para. 6; S/1994/291, 11 March 1994, para. 16; S/1994/300, 16 March 1994, para. 32; S/1994/555, 9 May 1994, para. 12; S/1994/1389, 1 Dec. 1994, para. 55. But see S/1994/94, 28 Jan. 1994, p. 2.
[396] S/1994/1389, 1 Dec. 1994, para. 3.
[397] S/1994/1067, 17 Sept. 1994, para. 17.
[398] S/1994/1389, 1 Dec. 1994, paras. 7 and 9.
[399] See ibid., paras. 3-20.
[400] Neither SCR 819 nor SCR 824 required such demilitarization. In fact, SCR 836 explicitly recognized the right of Bosnian Government forces to remain in all six safe areas (para. 5).
[401] Concerning the relationship between SCR 819 and the local cease-fire agreement, see: S/25700, 30 April 1993, paras. 10-15; Managing Arms in Peace Processes: Croatia and Bosnia-Herzegovina (New York and Geneva, UNIDIR, 1996), pp. 124-26; Laura SILBER and Allan LITTLE, Yugoslavia: Death of a Nation (New York, TV Books / Penguin USA, 1996), pp. 270-74. The cease-fire agreement is reproduced in the first two publications (Annex II and p. 187 respectively).
[402] Managing Arms in Peace Processes: Croatia and Bosnia-Herzegovina, ibid., p. 127.
[403] S/1994/1389, 1 Dec. 1994, para. 45. See paras. 40-53.
[404] The Bosnian Serb military commander, Ratko Mladic, was to claim that the July 1995 seizure of Srebrenica and Zepa was motivated by the failure to demilitarize these zones pursuant to the agreements concluded in 1993. See: 'Bosnie: L'OTAN est déterminée à effectuer des raids aériens pour protéger Gorazde ...', Nouvelles atlantiques, no. 2739, 28 juill. 1995, p. 3; Hedges, supra, note 364 (12 July), p. A6. In fact, from the beginning of the war, the Bosnian Serbs sought total control of eastern Bosnia, as evidenced by their repeated attacks on Srebrenica, Zepa, and Gorazde, both before and after they were made safe areas in April-May 1993.
[405] S/1994/555, 9 May 1994, paras. 20 and 25. S/1995/444, 30 May 1995, para. 38. S/1994/94, 28 Jan. 1994, p. 4. The situation in respect of NATO, called upon to enforce several measures which targeted the Bosnian Serbs (in particular, the no-fly zone and the safe areas), was somewhat different. See Goulding, supra, note 4, p. 15.
[406] S/1995/470, 9 June 1995. SCR 998, 16 June 1995, pream. para. 5.
[407] See: S/1994/300, 16 March 1994, para. 34; S/1994/555, 9 May 1994, para. 15.
[408] See S/1994/1389, 1 Dec. 1994, paras. 34-37, together with the other UN sources listed in paragraph 34 of the report. See also: The Fall of Srebrenica and the Failure of U.N. Peacekeeping, Human Rights Watch/ Helsinki, October 1995, pp. 8-9; 'Call that Safe?', The Economist, 15 July 1995, p. 22.
[409] Note that this chapter covers developments up to the end of 1997, with the exception of the decisions reached by the Peace Implementation Council in Bonn, on 9-10 December 1997, during its review of Dayton Accord implementation.
[410] See Schulte, supra, note 336, p. 24.
[411] While the commonly used term 'Dayton accords' will be used in the text, the latter in fact constitute a single legal instrument, comprising a series of treaties (including the central General Framework Agreement for Peace in Bosnia and Herzegovina and its 12 annexes), unilateral declarations, and 'endorsements'. Our focus in this chapter will be on two of the annexes to the General Framework Agreement: Agreement on the Military Aspects of the Peace Settlement (Annex 1-A) and Agreement on Inter-Entity Boundary Line and Related Issues (Annex 2). These were signed by the Muslim-controlled administration based in Sarajevo ('Republic of Bosnia and Herzegovina'), the American-brokered institution which represented both the Bosnian Muslim and Bosnian Croat communities ('Federation of Bosnia and Herzegovina') and the Bosnian Serb regime based in Pale and Banja Luka ('Republika Srpska' (RS)). The two annexes were also 'endorsed' by the Federal Republic of Yugoslavia (FRY), comprising Serbia and Montenegro, and the Republic of Croatia. While there was some variation in the pattern of signature of the 12 annexes of the General Framework Agreement, the 'Federation of Bosnia and Herzegovina' and the RS, recognized by the Dayton accords as constituent 'entities' of the newly renamed country, 'Bosnia and Herzegovina', were signatories to all of them. The full text of the Dayton accords is reproduced in International Legal Materials, vol. 35, 1996, p. 75. Their complex structure is described in some detail in: Paul SZASZ, 'Introductory Note [to the Dayton accords]', International Legal Materials, vol. 35, 1996, pp. 77-80; Paola GAETA, 'The Dayton Agreements and International Law', European Journal of International Law, vol. 7(2), 1996, pp. 147-49.
[412] Annex 1-A, ibid., art. I(1)(a).
[413] SCR 1031, 15 Dec. 1995, para. 14.
[414] Ibid., paras. 19 and 33. S/1995/1050, 20 Dec. 1995.
[415] Eighteen non-NATO countries participated in IFOR. Fourteen of these were participants in NATO's 'Partnership for Peace' programme. For the list of participants, see Gregory SCHULTE, 'Bringing Peace to Bosnia and Change to the Alliance', NATO Review, 1997/2, p. 24.
[416] Concerning the particular legal features of this arrangement, see Michael BOTHE, 'Bosnia and Herzegovina: Farewell to UN Peacekeepers --Farewell to UN Peacekeeping?', International Peacekeeping (The Hague), vol. 2(6), Oct.-Nov. 1995, p. 130. For details of the IFOR and SFOR command structure, see: NATO's Role in the Implementation of the Bosnian Peace Agreement, NATO Fact Sheet no. 11, March 1997; The NATO-led Stabilisation Force (SFOR) in Bosnia and Herzegovina, NATO Fact Sheet no. 11, April 1997.
[417] -- authorized by the UN Security Council in paragraph 18 of its Resolution 1088 (12 Dec. 1996).
[418] IFOR had nearly 60,000 troops at peak deployment. SFOR force levels were generally higher towards the end of 1997, as compared with the first half of that year, with special reinforcement undertaken in connection with the September and November 1997 elections. Initial plans for a gradual reduction in SFOR force levels, leading to its withdrawal in June 1998, were on hold at the end of 1997. See Ministerial Meeting of the North Atlantic Council Held at NATO Headquarters, Brussels, on 16 December 1997 (Final Communiqué), NATO Press Release M-NAC-2 (97)155, 16 Dec. 1997, para. 17. Concerning the initial, four-phase plan for SFOR operations, see: 'NATO to Set 'Enlargement Summit'', International Herald Tribune (Reuters, AFP), 10 Dec. 1996, p. 5; Thierry TARDY, 'Les forces de l'Otan en Bosnie-Herzégovine: paix retrouvée et avenir incertain', Relations internationales et stratégiques, no. 28, hiver 1997.
[419] SCR 1031, 15 Dec. 1995, para. 14. SCR 1088, 12 Dec. 1996, para. 18.
[420] SCR 1088, 12 Dec. 1996, para. 18.
[421] Supra, note 411.
[422] This abbreviation will be used to denote both IFOR and SFOR.
[423] Annex 1-A, supra, note 411.
[424] Annex 1-A, supra, note 411, arts. I(2)(a) and II.
[425] Annex 1-A, supra, note 411, art. III.
[426] Annex 1-A, supra, note 411, art. IV.
[427] Annex 1-A, supra, note 411, art. II(3).
[428] Annex 1-A, supra, note 411, art. IX.
[429] Annex 1-A, supra, note 411, art. X. And see art. II(4), also in Annex 1-A.
[430] Annex 1-A, supra, note 411, art. VI(3).
[431] Ibid.
[432] Annex 1-A, supra, note 411, art. VI(3)(d). Note that the obligation of the parties not to impede freedom of movement is, in Annex 1-A, enunciated only in favour of IFOR (art. VI(9)(a)) and 'international personnel ... in Bosnia and Herzegovina pursuant to [the Dayton accords]' (art. II(4)). Only in Annex 4 is the general principle of freedom of movement, including that for civilians, articulated. See Constitution of Bosnia and Herzegovina (Annex 4 to the General Framework Agreement, supra, note 411), art. I(4).
[433] Annex 1-A, supra, note 411, art. VI(3)(a).
[434] Annex 1-A, supra, note 411, art. VI(4).
[435] Such features of I/SFOR's mandate have led several commentators to characterize the Force as something close to 'an occupying army.' Gaeta, supra, note 411, n. 18. And see Bothe, supra, note 416, p. 131.
[436] SCR 1031, 15 Dec. 1995, para. 16. SCR 1088, 12 Dec. 1996, para. 21.
[437] SCR 1031, 15 Dec. 1995, para. 15. SCR 1088, 12 Dec. 1996, para. 19. As the last and third-to-last preambular paragraphs of both resolutions indicate, the latter were adopted under chapter VII of the UN Charter.
[438] See: Annex 1-A, supra, note 411, art. I, paras. (1)(third sentence), (2)(b), and (3).
[439] See Annex 1-A, supra, note 411, arts. I(1)(a) ('IFOR will begin the implementation ...'), I(1)(c) ('other [i.e. non-NATO] States may assist in implementing ...'), VI(4), and X.
[440] Annex 1-A, supra, note 411, art. VI(5). Note that the consent expressed here would apply to the three tasks mentioned earlier for which there is no corresponding party obligation under Annex 1-A since these are set out in paragraphs 3 and 4 of article VI. And see note 523, infra.
[441] See Bothe, supra, note 416, p. 130.
[442] See note 435, supra.
[443] This focus on the military provisions of the Dayton accords is articulated in a wide variety of NATO documents concerning IFOR and SFOR. See, for example: NAC Declaration on IFOR's Role in the Transition to Peace, NATO Press Release (96)60, 29 April 1996, paras. 1 and 4; S/1996/1066, 24 Dec. 1996, Annex. It also emerges from those provisions concerning I/SFOR in Annex 1-A of the Dayton accords (supra, note 411). See, in particular, art. I(1).
[444] See NAC Declaration on IFOR's Role in the Transition to Peace, ibid., paras. 4-5. For more information on IFOR support to civilian tasks, see: NATO Fact Sheet no. 11, March 1997, supra, note 416; Combined Joint Civil Military Cooperation --Operation Joint Guard, SFOR AFSOUTH Fact Sheet, 20 Dec. 1996.
[445] Stabilisation Force (SFOR) Fact Sheet, AFSOUTH, 20 Dec. 1996. Statement on Bosnia and Herzegovina (NAC Ministerial Meeting), NATO Press Release M-NAC-2 (96)166, 10 Dec. 1996. The 'Action Plan' is contained in the following texts: Official Summary of Conclusions and Bosnia and Herzegovina 1997: Making Peace Work (both adopted at the Peace Implementation Conference, London, 4-5 December 1996).
[446] For an overview of the various forms SFOR support in the civilian area has taken, see: NATO Fact Sheet no. 11, April 1997, supra, note 416; SFOR Support to Non-Military Tasks, SFOR Fact Sheet, 26 May 1997; SFOR's Support to Civil Implementation, SFOR Fact Sheet, 27 June 1997.
[447] For details, see text accompanying notes 543-46, infra.
[448] The shift to a far more assertive approach to civilian implementation has been led by the US and UK. It was signalled in a speech given by US Secretary of State Madeleine Albright in May 1997 and quickly received broad endorsement. See: Remarks at Annual Fleet Week Gala, Madeleine Albright, New York, 22 May 1997 (http://secretary.state.gov/www/statements/970522a.html); S/1997/434, 5 June 1997, Annex, paras. 2 and 6; Special Declaration on Bosnia and Herzegovina, North Atlantic Council, Madrid, 8 July 1997 (reproduced in NATO Review, 1997/4, p. 4). For background on the US policy shift, see Tyler MARSHALL and Tracy WILKINSON, 'U.S. Team on Bosnia Takes Peacekeeping to the Limit', Los Angeles Times, 12 Nov. 1997, p. A1.
[449] See text accompanying notes 444-46, supra.
[450] I/SFOR's right of freedom of movement is enunciated in: Annex 1-A, supra, note 411, art. VI(9)(a); Agreement between the Republic of Bosnia and Herzegovina and the North Atlantic Treaty Organisation (NATO) Concerning the Status of NATO and its Personnel, Wright-Patterson Air Force Base, Ohio, 21 Nov. 1995, and Brussels, 23 Nov. 1995 (Appendix B to Annex 1-A), art. 9. See also the side letters in the latter appendix. And see: Annex 1-A, arts. II(4) and VI(11); SCR 1031, 15 Dec. 1995, para. 18; SCR 1088, 12 Dec. 1996, para. 23.
[451] Annex 1-A, supra, note 411, art. VI(3)(b).
[452] Annex 1-A, supra, note 411, arts. VI(2)(a) and II(4).
[453] Annex 1-A, supra, note 411, art. VI(3)(d).
[454] IFOR initially dismissed this part of its mandate as police work and, as such, the responsibility of the parties themselves and the United Nations International Police Task Force (IPTF). Yet, as IFOR's military tasks waned in importance with the successful separation, cantonment and partial demobilization of rival forces, IFOR began to shift troops away from the Inter-Entity Boundary Line and patrol more widely throughout Bosnia-Herzegovina, with the September 1996 elections a particular focus for efforts to improve freedom of movement in the country. See: 'Serbs Accused of Kidnappings', International Herald Tribune (AFP, AP), 3 Jan. 1996, p. 5; 'Bosnia Serbs Buckle, Free All 16 Civilians,' International Herald Tribune (Reuters, AP), 5 Jan. 1996, p. 10; S/1996/131, 26 Feb. 1996, Annex I, Appendix, para. 8; Patrick MOORE, 'Serbs Blocking Freedom of Movement Near Doboj', Pursuing Balkan Peace (OMRI), no. 9, 5 March 1996; S/1996/465, 24 June 1996, Annex, Appendix, para. 2; S/1996/600, 29 July 1996, Annex, Appendix, para. 4; Warren CHRISTOPHER, 'Without Elections, There Will Be No Unified Bosnian State', International Herald Tribune, 15-16 June 1996, p. 6; Meeting of the North Atlantic Council in Defence Ministers Session, 13 June 1996 (communiqué reproduced in NATO Review, Sept. 1996, p. 32), para. 16.
[455] Concerning IFOR, see Admiral Leighton W. SMITH, Jr., 'The Pillars of Peace in Bosnia', NATO Review, 1996/4, pp. 11 and 16. A new checkpoint policy, introduced by the IPTF in May 1997, required the parties, subject to limited exceptions, to secure prior authorization for any checkpoint they set up. See: S/1997/468, 16 June 1997, para. 5; [Fifth] Monthly Report to the United Nations Security Council on SFOR Operations (NATO doc. covering the period 22 April - 22 May 1997), para. 21. Concerning SFOR's role in the implementation of the new policy, see the 6th to 12th monthly reports on SFOR operations (July 1997 - Jan. 1998), cited in the Bibliography (sec. I A) 3)). The IPTF was established under SCR 1035 (21 Dec. 1995) in order to help the Bosnian factions meet their obligations for the maintenance of law and order in accordance with internationally recognized standards. See Agreement on International Police Task Force (Annex 11 to the General Framework Agreement, supra, note 411).
[456] See S/1996/1066, 24 Dec. 1996, Annex.
[457] See: S/1996/600, 29 July 1996, Annex, Appendix, para. 4; S/1996/696, 27 Aug. 1996, Annex, Appendix, para. 10; Richard BOUDREAUX, 'Passage of Time Breaking Down Barriers in Bosnia', Los Angeles Times, 16 Dec. 1997, p. A1; Greg HUNTER, 'Bosnian Serbs Left Isolated as Dayton Continues to Drift', Jane's Intelligence Review, vol. 9(9), Sept. 1997, p. 400. In December 1997, the bus service was carrying about 2,000 people a day between 35 cities and towns. Boudreaux.
[458] See: Boudreaux, ibid; 'A Ghost of a Chance (A Survey of the Balkans)', The Economist, 24 Jan. 1998, p. S8; S/1997/966, 10 Dec. 1997, para. 10; S/1998/40, 16 Jan. 1998, paras. 58-59 and 71. The system of separate licence plates for the three ethnic territories, still in place at the end of 1997, constituted one serious impediment to freedom of movement as it enabled local police to easily identify drivers from other entities. See Hunter, ibid., pp. 396 and 399-400.
[459] Annex 4, supra, note 432, art. II(5). Agreement on Refugees and Displaced Persons (Annex 7 to the General Framework Agreement, supra, note 411), art. I.
[460] The figure for the total number of persons internally displaced or forced to find refuge abroad as a result of the war varies depending on the source. Nevertheless, there was broad agreement on the figure of 250,000 returnees for 1996. See, for example, Official Summary of Conclusions, supra, note 445, para. 3. The Reconstruction and Return Task Force estimated returns for 1997 at 160,000 (RRTF: Report December 1997, Office of the High Representative, sec. 3.1), while the UN Secretary-General, reporting to the Security Council on 10 December 1997, gave a figure of 150,000 returns since the beginning of that year (S/1997/966, 10 Dec. 1997, para. 29). The Economist estimated total, post-Dayton returns, up to December 1997, at 400,000. 'A Ghost of a Chance', supra, note 458, p. S9.
[461] 'A Ghost of a Chance', supra, note 458. The RRTF reported 8,138 registered minority returns for 1997. RRTF: Report December 1997, ibid.
[462] As reported above, total minority returns since Dayton have been estimated at 35,000. Christopher Bennett of the International Crisis Group, writing in late 1997, put the number of victims of post-Dayton ethnic cleansing at 'more than 80,000 people'. Christopher BENNETT, 'No Flying Colors for Dayton -- Yet', Transitions, vol. 4(7), Dec. 1997, p. 37. And see Ivo DAALDER, 'Bosnia After SFOR: Options for Continued US Engagement', Survival, vol. 39(4), winter 1997-98, p. 6.
[463] Annex 1-A, supra, note 411, art. II(3).
[464] Annex 1-A, supra, note 411, art. X.
[465] As explained earlier ('The Mandate: An Overview' section), I/SFOR have been mandated to enforce compliance with party obligations contained in Annex 1-A of the Dayton accords. The right of return is explicitly enunciated within the Dayton framework, but only outside of Annex 1-A. See note 459, supra for details.
[466] Annex 1-A, supra, note 411, art. VI(3)(a). And see subparas. (c) and (d).
[467] See, in particular: Annex 1-A, supra, note 411, art. VI(3)(d) (assuming the latter part of the provision is not necessarily bound to the first part, dealing with civilian freedom of movement); Annex 1-A, art. II(3) (read in conjunction with art. VI(2)(a) of the same annex).
[468] See John POMFRET, 'Cleaning Up on Ethnic Cleansing', International Herald Tribune (WP), 12 Sept. 1996, p. 7.
[469] See: SFOR Factsheet, supra, note 445; Patrick MOORE, '... And Ensure Freedom of Movement for Refugees?', Pursuing Balkan Peace (OMRI), no. 5, 6 Feb. 1996.
[470] See S/1996/696, 27 Aug. 1996, Annex, Appendix, para. 10.
[471] For more information on these activities, typically involving information-gathering, planning, and coordination functions, see: [Fifth] Monthly Report to the United Nations Security Council on SFOR Operations, supra, note 455, para. 23; S/1997/602, 31 July 1997, Annex, Appendix, para. 20; S/1997/636, 13 Aug. 1997, Annex I, Appendix, para. 19.
[472] The most important example of this practice which, in 1997, was not widespread, is the Brcko area, where American SFOR soldiers have provided 'near round-the-clock protection' to Muslim and Croat returnees. See Mike O'CONNOR, 'Quiet U.S. Protection in Brcko', International Herald Tribune, 30 July 1997, p. 2 (the source of the quotation).
[473] From the summer of 1996 up until the following spring, the zone of separation in the Brcko area of northern Bosnia was the scene of repeated confrontation and occasional clashes between Bosnian Muslims attempting to resettle in the area and Bosnian Serbs anxious to prevent the Muslims from encroaching upon this narrow strip of land which connects the two halves of their 'Republic'. Other flashpoints over the 1996-97 period have included the areas around the Croat-held towns of Jajce, in central Bosnia, and Drvar, in north-western Bosnia.
[474] See: 'Serb Policemen Club Muslims', International Herald Tribune (WP, Reuters), 30 Aug. 1996, p. 5; Daria Sito SUCIC, 'More Muslim Villagers Try to Go Home Despite NATO and the Serbs', Pursuing Balkan Peace (OMRI), no. 38, 24 Sept. 1996; Patrick MOORE, 'IFOR Rounds Up Weapons in Northeast Bosnia', Daily Digest (OMRI), 15 Nov. 1996; S/1996/970, 22 Nov. 1996, Annex, Appendix, para. 8.
[475] See: 'Serb Policemen Club Muslims', ibid.; 'UN Police Complain U.S. Troops Failed To Rescue Them', International Herald Tribune (AP), 31 Aug. - 1 Sept. 1996, p. 7; Patrick MOORE, 'NATO, Serbian Police in Standoff', Pursuing Balkan Peace (OMRI), no. 35, 3 Sept. 1996.
[476] See: 'Bosnian Muslims Confront NATO', International Herald Tribune (Reuters, NYT, AP), 14 Nov. 1996, p. 7; S/1996/970, 22 Nov. 1996, Annex, Appendix, paras. 8-9; S/1997/193, 5 March 1997, Annex, Appendix, para. 6; S/1997/257, 27 March 1997, Annex, Appendix, para. 9; three news bulletins concerning an incident near Drvar in RFE/RL Newsline of 9 and 10 Oct. 1997.
[477] Annex 1-A, supra, note 411, art. VI(3)(a)-(c). A second basis for I/SFOR's authority in this area is Annex 1-A, art. VI(2)(a) combined with the obligation of the parties, under Annex 1-A, to cooperate with the International Tribunal and its personnel (arts. II(4), IX(1)(g) and X). As argued above ('The Mandate: An Overview' section), this mandate, in all its aspects, would be an enforcement mandate. Note that the ICTY was established under Security Council Resolution 827 (25 May 1993).
[478] On 12 February 1996, two Bosnian Serbs were flown, via NATO aircraft, to The Hague for questioning and possible indictment. On 13 June 1996, NATO transported two Bosnian Muslims to the Hague for trial. All these individuals had been detained by the Bosnian Muslim authorities. Cases in which SFOR itself detained war crimes suspects before transferring them to ICTY custody are dealt with below.
[479] See note 477, supra. Of particular relevance to the task under consideration are: Annex 1-A, supra, note 411, art. VI(3)(c); and art. VI(2)(a) in combination with art. X, both of Annex 1-A. Note further that several authors have argued that I/SFOR and/or states participating in these missions have had not merely the right, but in fact the duty to arrest and detain persons indicted for war crimes. See: John R.W.D. JONES, 'The Implications of the Peace Agreement for the International Criminal Tribunal for the former Yugoslavia', European Journal of International Law, vol. 7(2), 1996, pp. 239-40; Niccolo FIGA-TALAMANCA, 'The Role of NATO in the Peace Agreement for Bosnia and Herzegovina', European Journal of International Law, vol. 7(2), 1996, pp. 165 and 171-75.
[480] Press Statement on Signing of the Memorandum of Understanding between SHAPE and the International Criminal Tribunal for Former Yugoslavia, NATO Press Release (96)74, 9 May 1996. The latter document summarizes the key features of the classified 'Memorandum of Understanding' of 9 May 1996 which itself reiterates the policy in respect of suspected war criminals agreed by the NAC in December 1995. And see IFOR Assistance to the International Tribunal, NATO Press Release (96)26, 14 Feb. 1996.
[481] See: 'If They Come Upon a War Criminal', International Herald Tribune (WP), 5 Jan. 1996, p. 6; Chris HEDGES, 'Bosnia and NATO Ease Off on Arrests Over War Crimes', International Herald Tribune (NYT), 13 Feb. 1996, p. 1.
[482] See: Charles RECKNAGEL, 'Radovan Karadzic Tests NATO's Resolve', RFE/RL News, 29 Feb. 1996; 'Karadzic Seen in Banja Luka', International Herald Tribune (WP), 1 March 1996, p. 10; 'Watching Karadzic Ride By', International Herald Tribune (Reuters), 12 Dec. 1996, p. 9.
[483] See: Elizabeth NEUFFER, 'Accused of War Crimes, but Policing Bosnia', International Herald Tribune (Boston Globe), 1 Nov. 1996, p. 1; Jan URBAN, 'Monitor --But Don't Touch', Pursuing Balkan Peace (OMRI), no. 44, 5 Nov. 1996; Patrick MOORE, 'Indicted War Criminal Complains to UN Police for Arrest Attempt', Daily Digest (OMRI), 8 Nov. 1996; Jan URBAN and Yvonne BADAL, 'War Criminals in Bosnia: Government Protection and IFOR's Blind Eye', Analytical Brief (OMRI), no. 481, 19 Nov. 1996.
[484] Urban and Badal, ibid. And see Urban, ibid.
[485] 'NATO to Set 'Enlargement Summit'', supra, note 418.
[486] See: 'ICTY Chief Urges IFOR Arrest Role', Reuters News Reports, 30 Sept. 1996 (in International Peacekeeping News, vol. 2(4), Sept.-Oct. 1996); William DROZDIAK, 'NATO Acts To Soothe Moscow on Expansion', International Herald Tribune (WP), 11 Dec. 1996, p. 1 at p. 8.
[487] As of 22 December 1997, taking into account the two operations mentioned immediately below, there were 19 accused held in the Tribunal's custody against a total of 20 public indictments targeting 74 individuals, plus 'a number of sealed indictments.' Fact Sheet, ICTY, 22 Dec. 1997 (source: ICTY website: http://www.un.org/icty ).
[488] Both operations were conducted by special forces acting as part of SFOR. For details of the 10 July operation, see: Statement Concerning Detained Indicted War Criminal, SFOR, LANDCENT, 10 July 1997; Richard BOUDREAUX, 'NATO Forces Kill Serb Suspect, Arrest Another', Los Angeles Times, 11 July 1997, p. A1; Steven ERLANGER, 'Raid in Bosnia: A Turning Point for Peacekeepers', International Herald Tribune (NYT), 12-13 July 1997, p. 1; 'Progress at Last?', The Economist, 19 July 1997, p. 29. For details of the 18 December operation, see: Statement by the Secretary General of NATO, Dr. Javier Solana, on SFOR's Action Against Indicted War Criminals, NATO Press Release (97)158, 18 Dec. 1997; Chris HEDGES, 'Dutch Seize 2 Croats to Face War Tribunal', International Herald Tribune (NYT), 19 Dec. 1997, p. 1.
[489] See: Charles TRUEHEART, 'Tribunal Hails Arrest of Croatian Serb', International Herald Tribune (WP), 2 July 1997, p. 5; 'En Bosnie, «les criminels de guerre se sentent en sécurité absolue dans le secteur français»' (interview with Louise Arbour, Chief Prosecutor, ICTY), Le Monde, 14-15 déc. 1997, p. 2.
[490] See the sources cited in note 488, supra.
[491] See: Statement by the Secretary General of NATO, Mr. Javier Solana on Actions by SFOR to Detain Indicted War Criminals at Prijedor, NATO Press Release (97)85, 10 July 1997; Statement Concerning Detained Indicted War Criminal, supra, note 488; Transcript: Press Conference SACEUR, SFOR, LANDCENT, 18 July 1997; NATO Press Release (97)158, supra, note 488; Transcript: Joint Press Conference, SFOR, LANDCENT, 19 Dec. 1997.
[492] See: Chris HEDGES, 'Bosnian Serb Chief Fears for Life', International Herald Tribune (NYT), 7 July 1997, p. 7; Edward CODY, 'Holbrooke Is Blunt: Remove Karadzic Now', International Herald Tribune (WP), 11 Aug. 1997, p. 1; Edward CODY, 'Going All-Out for Karadzic's Rival', International Herald Tribune (WP), 1 Sept. 1997, p. 7; James RISEN, 'Vigilant Karadzic Guards Dim Outlook for Capture', International Herald Tribune (LAT), 4-5 Oct. 1997, p. 2; 'NATO Preparing to Catch Karadzic?', RFE/RL Newsline, vol. 1(97), 18 Aug. 1997.
[493] See: Risen, ibid.; Craig R. WHITNEY, 'NATO Set to Extend Force's Stay in Bosnia', International Herald Tribune (NYT), 2 Dec. 1997, p. 1.
[494] See: 'Bosnia: U.S. Wants NATO to Support Serb President', RFE/RL News, 7 July 1997; Chris HEDGES, 'Western Support for the Figurehead Mrs. Plavsic Begins to Waver', International Herald Tribune (NYT), 28 Aug. 1997, p. 1; Doyle MCMANUS, 'U.S. Backs Using Force to Aid Bosnian Chief', International Herald Tribune (LAT), 30-31 Aug. 1997, p. 2; Cody, supra, note 492; Tracy WILKINSON, 'America's Unlikely Champion in Bosnia', Los Angeles Times, 22 Nov. 1997, p. A1.
[495] 'The Steering Board is concerned that the media has not done enough to promote freedom of expression and reconciliation. It declared that the High Representative has the right to curtail or suspend any media network or programme whose output is in persistent and blatant contravention of either the spirit or letter of the [Dayton accords].' S/1997/434, 5 June 1997, Annex, para. 70 ('Sintra Declaration', 30 May 1997). The Peace Implementation Council (PIC) was set up in London, in December 1995, to supervise peace implementation in Bosnia-Herzegovina. The Steering Board of the PIC gives the High Representative (see next note) political guidance on this question. See: S/1995/1029, 12 Dec. 1995, Annex, para. 21; Bosnia and Herzegovina 1997: Making Peace Work, supra, note 445, section on 'Co-ordination Structures', para. 4.
[496] Under Annex 10 of the Dayton accords, the High Representative for Implementation of the Peace Agreement on Bosnia and Herzegovina is responsible for overseeing implementation of the accords' civilian aspects. Carlos Westendorp replaced Carl Bildt in the post in June 1997. See Civilian Implementation (Annex 10 to the General Framework Agreement, supra, note 411). And see previous note.
[497] See: 'More Inter-Ethnic Incidents Near Tuzla', RFE/RL Newsline, vol. 1(86), 1 Aug. 1997; OHR Chronology, entry for 22 Aug. 1997 (obtained from http://www.ohr.int ); K.P. FOLEY, 'Yugoslavia: U.S. Envoy Meets President Milosevic', RFE/RL News, 1 Sept. 1997; 'Demonizing NATO Forces', Bosnia Report (RFE/RL), vol. 1(9), 24 Sept. 1997.
[498] See: S/1997/804, 16 Oct. 1997, Annex, Appendix, paras. 58 and 97; Tracy WILKINSON, 'Trying to Extract War from Journalism', Los Angeles Times, 26 Oct. 1997, p. A8; 'OSCE Tells Croatian Journalists to Apologize', RFE/RL Newsline, vol. 1(149), 30 Oct. 1997; Transcript: Joint Press Conference, SFOR, LANDCENT, 31 Oct. 1997.
[499] The Plavsic faction gained control of a transmitter in north-western Bosnia at the end of August 1997. See 'War of the Airwaves', The Economist, 30 Aug. 1997, p. 21. Yet, it was SFOR's seizure of four other transmitters, on 1 October 1997, that allowed Banja Luka to extend its broadcasts to cover the whole of Bosnian Serb territory. See: 'NATO Seizes Four Bosnian Serb Transmitters', RFE/RL Newsline, vol. 1(129), 1 Oct. 1997; Statement by the Secretary General, Dr. Javier Solana, on the SFOR Operation against SRT Transmitters in Bosnia and Herzegovina, NATO Press Release (97)117, 1 Oct. 1997. SFOR also intervened to thwart a subsequent attempt by Pale to knock its rival off the air. See: Tracy WILKINSON, 'NATO Wrests Bosnian TV from Serbs', Los Angeles Times, 19 Oct. 1997, p. A12; Bosnia Report (RFE/RL), vol. 1(15), 5 Nov. 1997. The struggle between hard-line and moderate factions within the Bosnian Serb Republic is described in somewhat greater detail in the section dealing with 'Impartiality', infra.
[500] See paragraph 70 of the 'Sintra Declaration' (reproduced in note 495, supra).
[501] See: Agreement on Elections (Annex 3 to the General Framework Agreement, supra, note 411), art. I(1); Annex 4, supra, note 432, art. II(3); Agreement on Human Rights (Annex 6 to the General Framework Agreement, supra, note 411), art. I.
[502] See: Annex 4, supra, note 432, preamble to the Constitution; Annex 7, supra, note 459, arts. I(3) and II(1).
[503] Annex 1-A, supra, note 411. As explained earlier ('The Mandate: An Overview' section), article X would be read in conjunction with article VI(2)(a) of Annex 1-A, giving SFOR the task of ensuring compliance with Annex 1-A obligations (an enforcement mandate). It is submitted that article VI(3)(a) of the same annex, authorizing SFOR 'to help create secure conditions for the conduct by others of other tasks associated with the peace settlement', does not provide an adequate basis for the actions in question as these involved much more than the provision or promotion of 'secure conditions'.
[504] For the source of the High Representative's authority for the curtailment or suspension of media networks, see note 495, supra.
[505] See Statement by the North Atlantic Council on the Situation in Republika Srpska, 30 Aug. 1997 (reproduced in NATO Review, 1997/5, p. 31).
[506] IFOR/SFOR Rules of Engagement (unclassified summary provided to the author by NATO in May 1997). And see NATO Fact Sheet No. 11, March 1997, supra, note 416.
[507] IFOR/SFOR Rules of Engagement, ibid.
[508] See: Statement on Bosnia-Herzegovina, NATO Press Release M-NAC-2 (95)119, 5 Dec. 1995; Transcript of the Lecture Given By COMIFOR, Admiral Leighton Smith at the Italian Armed Forces High Military Studies Center, Rome, 19 April 1996; Leighton Smith, supra, note 455, pp. 11-12; Statement on Bosnia and Herzegovina, supra, note 445; S/1997/636, 13 Aug. 1997, Annex I, Appendix, para. 25.
[509] See Leighton Smith, supra, note 455, p. 11.
[510] See text accompanying notes 543-46, infra.
[511] See Yvonne BADAL, 'IFOR Tested in the Republika Srpska', Pursuing Balkan Peace (OMRI), no. 32, 13 Aug. 1996.
[512] See: Badal, ibid.; S/1997/602, 31 July 1997, Annex, Appendix, paras. 5-8; Patrick MOORE, '1997 Year in Review: Bosnia Looks Toward Dayton's Third Year', RFE/RL Feature, 29 Dec. 1997.
[513] Such bans have been linked, in particular, to the compliance by the parties with their de-mining obligations (Annex 1-A, supra, note 411, arts. IV and V). See: SFOR's Military Tasks, SFOR Fact Sheet, 27 June 1997; S/1997/602, 31 July 1997, Annex, Appendix, para. 13.
[514] While IFOR, on occasion, sought to compel cooperation through the display of massive firepower, the actual use of force was invariably avoided. In 1996, the Bosnian Serb military headquarters at Han Pijesak was the site of several such confrontations. See: 'NATO Shows Force to Get at Arms', International Herald Tribune (AP), 19 Feb. 1996, p. 8; Patrick MOORE, 'IFOR Forces Serbs to Withdraw Weapons', Pursuing Balkan Peace (OMRI), no. 27, 9 July 1996; Patrick MOORE, 'How to Deal with Inat', Pursuing Balkan Peace (OMRI), no. 32, 13 Aug. 1996; 'NATO Moves to Increase Pressure on Bosnian Serbs', International Herald Tribune (Reuters), 13 Aug. 1996, p. 5; 'U.S. and NATO Press for Fair Polls in Bosnia', International Herald Tribune (Reuters), 14 Aug. 1996, p. 6. IFOR also mounted shows of force to compel cooperation by Bosnian Muslim forces. See: 'NATO Planes Settle Showdown', International Herald Tribune (Reuters), 2 Feb. 1996, p. 2; 'Christopher Hopes to Bring Bosnia Factions to Heel', International Herald Tribune (Reuters, AFP), 3-4 Feb. 1996, p. 2.
[515] 'Peace Mission to Bosnia Is 'on Track'' (interview with the NATO Secretary-General), International Herald Tribune (IHT), 19 Feb. 1996, p. 8.
[516] See text accompanying note 472, supra.
[517] See text accompanying notes 488-90, supra.
[518] See text accompanying note 499, supra.
[519] In order to control unruly, even violent, civilian crowds, SFOR troops have fired warning shots and deployed crowd control agents such as tear gas. Concerning the Brcko incident of 28 August 1997, see: Chris HEDGES, 'Bosnian Serbs Attack U.S. Troops', International Herald Tribune (NYT), 29 Aug. 1997, p. 1; 'Bosnian Serb Crowd Attacks NATO Troops', RFE/RL Newsline, vol. 1(106), 29 Aug. 1997; DoD News Briefing, Office of the Assistant Secretary of Defense (Public Affairs), 28 Aug. 1997 (source: http://www.defenselink.mil/news/ )
[520] See note 411, supra.
[521] See Annex 1-A, supra, note 411, arts. I(1) and VI(1).
[522] See: Annex 1-A, supra, note 411, art. VI, paras. (2)-(4) and (9); Annex 2, supra, note 411.
[523] See: Annex 1-A, supra, note 411, art. I(2)(b); Annex 1-A, art. IV, paras. (2), (4) and (6); Annex 1-A, art. VI, paras. (5)-(6) and (9). See also text accompanying note 440, supra.
[524] Annex 1-A, supra, note 411, art. X. And see art. II(4) of that annex.
[525] See S/1996/1025 (10 Dec. 1996), including its annexes. Note that the letter from the members of the Presidency of Bosnia and Herzegovina, confirming their acceptance of SFOR as 'the legal successor to IFOR', carries the signatures of all three Presidency members (Muslim, Croat and Serb).
[526] 'Milosevic Persuades the Bosnian Serbs to Accept Accord', International Herald Tribune (Reuters, AFP, IHT), 24 Nov. 1995, p. 1. Michael DOBBS, 'Clinton Won Assurances of Peacekeeper Security', International Herald Tribune (WP), 25-26 Nov. 1995, p. 1. Elaine SCIOLINO, Roger COHEN and Stephen ENGELBERG, 'In U.S. Eyes, 'Good' Muslims And 'Bad' Serbs Did a Switch', New York Times, 23 Nov. 1995, p. A1 at p. A10. Eric SCHMITT, 'Bosnian Serbs Balk at Pact, Imperiling U.S. Troop Plan', New York Times, 23 Nov. 1995, p. A12. And see Statement on Bosnia-Herzegovina, supra, note 508.
[527] See: Statements by the President (US President Clinton's Address to the Nation), The White House, Office of the Press Secretary, 27 Nov. 1995 (source: US Dept. of State: http://www.state.gov/www/current/bosnia/boshome.html ); Remarks by Adm. Leighton Smith, Commander, Implementation Force, at the Transfer of Authority Ceremony, Sarajevo, 20 Dec. '95 (source: NATO website: http://www.nato.int ).
[528] See: Sciolino et al, supra, note 526; Anthony BORDEN and Drago HEDL, 'How the Bosnians Were Broken', War Report, no. 39, Feb.-March 1996, pp. 28, 32, 39 and 42.
[529] See the works cited ibid. A key consideration in this decision was the military assistance US negotiators had promised if the Muslims reached a peace settlement. Concerning the US-sponsored 'train and equip' programme, see note 552, infra.
[530] See: Laura SILBER, 'Dayton: histoire d'une négociation', Le trimestre du monde, no. 34, 1996/2, p. 107; Borden and Hedl, supra, note 528, p. 28.
[531] See: Sciolino et al, supra, note 526; Borden and Hedl, supra, note 528, pp. 32, 34-35 and 41; 'Les Serbes de Bosnie n'acceptent pas l'accord', Le Monde, 23 Nov. 1995, p. 2.
[532] See: Sciolino et al, supra, note 526, p. 10; Schmitt, supra, note 526; 'Les Serbes de Bosnie n'acceptent pas l'accord', ibid.
[533] See note 411, supra.
[534] Gaeta, supra, note 411, p. 150. The marginalization of the Bosnian Serbs at Dayton was made possible by an agreement, reached on 29 August 1995 among Serb leaders from both Serbia and Bosnia, to form a joint FRY-RS delegation for purposes of negotiating and concluding future peace settlements concerning Bosnia-Herzegovina. This delegation, comprising three members from the FRY and three from the RS, represented the Serbs at Dayton. Pursuant to the terms of the 29 August accord, Milosevic headed the delegation and had a deciding vote in case of a split, 3-3 vote. As Milosevic already controlled the FRY side of the delegation, he could thus dictate the Serb, including Bosnian Serb, position in the Dayton negotiations. Depending on the subject at hand, the delegation acted as an organ of either the FRY or the RS. Gaeta, pp. 150-53.
[535] Sciolino et al, supra, note 526, p. 10. Schmitt, supra, note 526. 'The Enforcers', The Economist, 2 Dec. 1995, p. 36.
[536] See: 'Milosevic Persuades the Bosnian Serbs to Accept Accord', supra, note 526; Keesing's Record of World Events, Nov. 1995, p. 40831.
[537] See: 'For Peace Force, Rule Is Shoot First', International Herald Tribune (AP, Reuters, AFP), 28 Nov. 1995, p. 1 at p. 6; 'The Enforcers', supra, note 535; 'A Peace Still to Win', The Economist, 16 Dec. 1995, p. 35; Keesing's Record of World Events, Nov. 1995, p. 40831, and Dec. 1995, p. 40871.
[538] See note 411, supra. Note that International Legal Materials (vol. 35, 1996, p. 75) reproduces the accords exactly as signed in Paris, with the actual signatures.
[539] See Annex 1-A, supra, note 411, art. VIII.
[540] Annex 1-A, supra, note 411, art. VIII(3).
[541] Annex 1-A, supra, note 411, art. VIII(2). S/1996/49, 23 Jan. 1996, Annex, Appendix, para. 10.
[542] Annex 1-A, supra, note 411, art. VIII(8). S/1996/49, 23 Jan. 1996, Annex, Appendix, para. 10.
[543] Many of the worst incidents involved attempts by Bosnian Muslims to resettle the zone of separation in northern Bosnia in the latter part of 1996 and early 1997. See note 473, supra. The city of Mostar has been another flashpoint. Note that such violence has involved individuals and police forces or individual policemen, but not the rival armed forces as such.
[544] The separation of the rival forces went according to schedule, yet significant delays occurred in the cantonment / partial demobilization of troops and the cantonment of heavy weapons. For details, see the monthly reports on IFOR operations listed in the Bibliography (sec. I A) 3)).
[545] Article III of Annex 1-A (supra, note 411) requires all foreign forces to be withdrawn from Bosnia except for those, such as IFOR or SFOR, which are involved in implementing the Dayton accords under international mandate. On the question of compliance, see: S/1996/696, 27 Aug. 1996, Annex, Appendix, para. 8; John POMFRET, 'Islamic Militants Terrorize Bosnians', International Herald Tribune (WP), 9 July 1996, p. 8; Bradley GRAHAM, 'U.S's Training of Bosnians: Smoothing Its Exit?', International Herald Tribune (WP), 30 Jan. 1997, p. 1 at p. 7; Mike O'CONNOR, 'Iranian Agents Reportedly Infiltrate U.S. Military Program in Bosnia', International Herald Tribune (NYT), 29-30 Nov. 1997, p. 2; Moore, supra, note 512.
[546] See: S/1996/783, 25 Sept. 1996, Annex, Appendix, paras. 7-9; S/1997/193, 5 March 1997, para. 4; S/1997/257, 27 March 1997, Annex, Appendix, paras. 5 and 15; S/1997/369, 14 May 1997, paras. 6 and 8; S/1997/975, 13 Dec. 1997, para. 9; Badal, supra, note 511; Patrick MOORE, 'A Remarkable Year Comes to a Close', Pursuing Balkan Peace (OMRI), 17 Dec. 1996; 'U.S. Troops Begin Pullout, but Other GIs Bosnia Bound', International Herald Tribune (AP), 10 Oct. 1996, p. 10; Schulte, supra, note 336, p. 25. See also the works cited in respect of the confrontations at Han Pijesak (note 514, supra).
[547] See: Moore, supra, note 512; Peter S. GREEN, 'Bosnia's Continued Squabbling Blocks Reconstruction', International Herald Tribune, 11 Dec. 1997, p. 13; 'A Sporting Chance of Success?', The Economist, 6 Dec. 1997, p. 30.
[548] See: S/1997/694, 8 Sept. 1997, para. 47; 'Westendorp Threatens: 'Bye-Bye Mr. Krajisnik'', RFE/RL Newsline, vol. 1(150), 31 Oct. 1997; 'A Ghost of a Chance', supra, note 458, pp. 6-7.
[549] See: SCR 1031, 15 Dec. 1995, para. 15; SCR 1088, 12 Dec. 1996, para. 19; Dayton accords, Annex 1-A, supra, note 411, art. I(3); Statement on Bosnia-Herzegovina, supra, note 508; NAC Declaration on IFOR's Role in the Transition to Peace, supra, note 443, para. 4; Ministerial Meeting of the North Atlantic Council, Berlin, 3 June 1996 (statement reproduced in NATO Review, 1996/4), para. 10; Statement on Bosnia and Herzegovina, supra, note 445; Meeting of the North Atlantic Council in Defence Ministers Session Held In Brussels on 2nd December 1997 (Final Communiqué), NATO Press Release M-NAC-D-2 (97)149, 2 Dec. 1997, para. 6; Ministerial Meeting of the North Atlantic Council Held at NATO Headquarters, Brussels, on 16 December 1997 (Final Communiqué), supra, note 418, para. 17. The principle is also evoked in several of the NATO reports on IFOR and SFOR operations, issued as UN documents; see sec. I A) 3) of the Bibliography for references.
[550] See S/1996/49, 23 Jan. 1996, Annex.
[551] See Schulte, supra, note 336, pp. 25 and 32.
[552] This is the author's own assessment, based on an extensive review of IFOR and SFOR activities over the stated period, including those cited in notes 510-19, supra. And see Schulte, supra, note 336, p. 25. It is submitted that the $400 million, US-sponsored 'train and equip' programme, designed to bring the Muslim-Croat Federation Army up to military parity with its Bosnian Serb opponent, has not undermined the impartiality of the NATO-led forces given the complete lack of functional ties between the two. See Graham, supra, note 545, p. 1. Nevertheless, it may well be argued that 'train and equip' has hurt the impartiality of the international community's post-Dayton efforts in Bosnia, taken as a whole. For a detailed account of the programme, see Enis DZANIC and Norman ERIK, 'Retraining the Federation Forces in Post-Dayton Bosnia', Jane's Intelligence Review, vol. 10(1), Jan. 1998.
[553] According to some news reports, the split within the ranks of the Bosnian Serb leadership was itself engineered by the West. See: Wilkinson, supra, note 494; Patrick MOORE, 'Political Stories from Former Yugoslavia', RFE/RL Newsline (End Note), vol. 1(81), 25 July 1997.
[554] This has included crucial support for her dissolution of the Bosnian Serb Parliament and for her decision to hold early elections limited to the latter's replacement. See: 'Bosnia: U.S. Wants NATO to Support Serb President', supra, note 494; Mike O'CONNOR, 'Wiretapping Evidence Found', International Herald Tribune (NYT), 20 Aug. 1997, p. 5; Raymond BONNER, 'U.S. Push for Vote Hits Serb Defiance', International Herald Tribune (NYT), 17 Oct. 1997, p. 4; Chairman's Conclusions (Contact Group Meeting), Rome, 17 Oct. 1997 (source: http://www.ohr.int ); Chris HEDGES, 'In Bosnian Serb Election, the War 'Refuses to End'', International Herald Tribune (NYT), 24 Nov. 1997, p. 1, at p. 7.
[555] See: Remarks at Annual Fleet Week Gala, supra, note 448; Chris HEDGES, 'NATO Girds for a Final Push to Oust Serb Warlord', International Herald Tribune (NYT), 25 Aug. 1997, p. 1, at p. 6. At the end of 1997, the US administration appeared set to approve the first major package of financial assistance to areas under Plavsic's control. See R. Jeffrey SMITH, 'Despite Critics, U.S. Expected to Send Aid to Bosnian Serbs', International Herald Tribune (WP), 17 Dec. 1997, p. 10.
[556] See: Special Declaration on Bosnia and Herzegovina , supra, note 448; 'NATO Warns against Attempt to Oust Plavsic', RFE/RL Newsline, vol. 1(69), 9 July 1997.
[557] Concerning developments in July-August 1997, see: Keesing's Record of World Events, July 1997, p. 41748; 'Bosnia: NATO Boosts Security Around Serb President', RFE/RL News, 2 July 1997; 'Foreign Support for Plavsic', RFE/RL Newsline, vol. 1(66), 3 July 1997; 'Bosnia: U.S. Wants NATO to Support Serb President', supra, note 494; Hunter, supra, note 457, p. 398; McManus, supra, note 494. Concerning the failed attempt by hard-liners to mount a coup in Banja Luka in September 1997, see: OHR and SFOR Act to Prevent Intimidation at Banja Luka, OHR Press Release, Sarajevo, 8 Sept. 1997 (source: OHR website: http://www.ohr.int ); Sonia WINTER, 'Bosnia: Holbrooke Warns Serbs against Disrupting Election', RFE/RL Feature, 10 Sept. 1997; Bosnia Report (RFE/RL), vol. 1(7), 10 Sept. 1997; Keesing's Record of World Events, Sept. 1997, p. 41834.
[558] Control of the police has been the crucial element in this. SFOR's intervention in Banja Luka, in August 1997, allowed Plavsic to take control there. See: 'Pale Coup?', The Economist, 23 Aug. 1997, p. 21; 'Police Chief Is Seized in Serb Power Struggle', International Herald Tribune (AFP, NYT), 20 Aug. 1997, p. 5; 'NATO Guards Serb Police Stations', International Herald Tribune (Reuters, AP), 21 Aug. 1997, p. 2; 'NATO Consolidates Hold on Banja Luka Police Stations', RFE/RL Newsline, vol. 1(101), 22 Aug. 1997. Similar initiatives, undertaken by SFOR in Brcko and other Bosnian Serb towns at the end of August were, however, less successful. See: 'Bosnia: Brcko Serbs Stone U.S. SFOR Troops', RFE/RL News, 28 Aug. 1997; Tracy WILKINSON, 'In Bosnia, U.S. Creeps Deeper', Los Angeles Times, 11 Nov. 1997, p. A1.
[559] See 'Media Restructuring' ('Mandate Implementation') sec., supra.
[560] See Cody, supra, note 492. This is also reflected in many of the sources cited in the three preceding notes.
[561] See: Transcript: Joint Press Conference, SFOR, LANDCENT, 12 Sept. 1997; NATO Press Release (97)117, supra, note 499; NATO Press Release M-NAC-D-2 (97)149, supra, note 549, para. 5; NATO Press Release M-NAC-2 (97)155, supra, note 418, para. 17.
[562] See: S/1997/804, 16 Oct. 1997, Annex, Appendix, para. 102; The Road Forward In Bosnia (Remarks by Samuel Berger, Assistant to the President for National Security Affairs), Georgetown U., Washington, D.C., 23 Sept. 1997; 'Bosnia: Serb President Accuses Hardline Rivals of Threats', RFE/RL News, 4 July 1997; 'Bosnia: U.S. Will Continue to Support Serb President', RFE/RL News, 21 Aug. 1997. Note, however, that at the end of 1997 it was still unclear whether Plavsic would, in fact, deliver improved compliance with Dayton. On this question, see: McManus, supra, note 494; Wilkinson, supra, note 494; Moore, supra, note 512.
[563] This chapter was prepared in September 1997 on the basis of information available at that time.
[564] Note that both US and UK military doctrines spell 'peacekeeping' without the hyphen used by the UN, as indicated in the relevant quotations and citations appearing below. Nevertheless, for the sake of consistency in the dissertation as a whole, the UN spelling will, as a rule, be used in this chapter for simple 'peace-keeping', while the UK spelling will be retained for the special UK category 'wider peacekeeping'.
[565] Joint Tactics, Techniques, and Procedures for Peacekeeping Operations, Joint Pub. 3-07.3, 29 April 1994 [hereinafter 'JP 3-07.3 (Peacekeeping)'].
[566] FM 100-23, supra, note 183.
[567] Joint Tactics, Techniques, and Procedures for Peace Operations (Draft), Joint Pub. 3-07.3, 30 Sept. 1996 [hereinafter 'JP 3-07.3 (Peace Operations)'].
[568] Once finalized, the joint services manual on peace operations (ibid) will guide the planning and implementation of peace operations involving two or more of the American services (army, air force, navy, and marines). As it will override existing US Army doctrine, the latter will have to be revised to remove any discrepancies, although, at present, these appear minor. Also relevant to our discussion of US military doctrine for peace operations are: Department of Defense Dictionary of Military and Associated Terms, Joint Chiefs of Staff, Joint Pub. 1-02, 23 March 1994 [hereinafter 'JP 1-02'], setting out standard definitions of terms; and Joint Doctrine for Military Operations other than War, Joint Chiefs of Staff, Joint Pub. 3-07, 16 June 1995 [hereinafter 'JP 3-07'], describing the basic tenets of 'military operations other than war (MOOTW)', of which peace operations are a subset.
[569] JP 1-02, ibid., definition of 'peace operations'. JP 3-07, ibid., p. III-12. JP 3-07.3 (Peace Operations), supra, note 567, ch. I, pp. 2 and 6. Compare FM 100-23, supra, note 183, pp. iv and 2.
[570] Note that 'war' is not defined in JP 1-02 (ibid.), even though it is a key reference point in US doctrine. The latter divides all military operations into 'war' and 'military operations other than war (MOOTW)'. Peace operations fall within the scope of MOOTW. See JP 3-07, ibid., ch. I, pp. 1-2.
[571] FM 100-23, supra, note 183, p. v. And see: FM 100-23, pp. v-vi, 2, 13 and 17; JP 3-07.3 (Peace Operations), supra, note 567, ch. I, p. 31, and ch. III, pp. 1, 3, 24, and 37-38.
[572] FM 100-23, supra, note 183, p. 12. And see JP 3-07.3 (Peace Operations), supra, note 567, p. I-12.
[573] See: JP 3-07.3 (Peace Operations), supra, note 567, ch. III, pp. 1, 3, 24, 27 and 37; FM 100-23, supra, note 183, pp. v-vi and 17. Under US doctrine, the principle of 'restraint' guides the conduct of all 'military operations other than war (MOOTW)', including peace enforcement. See JP 3-07, supra, note 568, p. II-4.
[574] FM 100-23, supra, note 183, p. 13.
[575] See note 598, infra.
[576] JP 3-07.3 (Peace Operations), supra, note 567, p. I-13. In its description of the use of force in peace-keeping, FM 100-23 also incorporates the notion of extended self-defence (defence of the mandate), though with rather less precision than the UN. See FM 100-23, supra, note 183, pp. 12-13 and 17.
[577] JP 3-07.3 (Peace Operations), supra, note 567, pp. I-7 and II-3. FM 100-23, supra, note 183, pp. 1, 4 and 12.
[578] JP 3-07.3 (Peace Operations), supra, note 567, pp. I-7 and II-2. FM 100-23, supra, note 183, pp. 1, 12, 13, 18 and 36.
[579] JP 3-07.3 (Peace Operations), supra, note 567, p. I-7 (and see ch. III, pp. 1-3 and 38). The definitions given in JP 1-02 (supra, note 568, 'peace enforcement') and JP 3-07 (supra, note 568, p. III-13) are virtually the same, while that offered in FM 100-23 (supra, note 183, p. 6) differs only slightly.
[580] See: JP 3-07.3 (Peace Operations), supra, note 567, p. III-8; FM 100-23, supra, note 183, pp. 8-9.
[581] See FM 100-23, supra, note 183, p. 8. Note that JP 3-07.3 (Peace Operations) includes this task under the broad rubric of sanctions enforcement. See ibid.
[582] See FM 100-23, supra, note 183, pp. 9-11. While this task is not specifically mentioned in JP 3-07.3 (Peace Operations), it is at least partly captured by the latter's broad formulation of sanctions enforcement, which includes the enforcement of air, land or sea exclusion zones, such as those imposed in Bosnia-Herzegovina. See JP 3-07.3 (Peace Operations), ibid.
[583] See: JP 3-07.3 (Peace Operations), supra, note 567, p. III-8; FM 100-23, supra, note 183, p. 8.
[584] See: JP 3-07.3 (Peace Operations), supra, note 567, ch. III, pp. 8-9; FM 100-23, supra, note 183, p. 7.
[585] See: JP 3-07.3 (Peace Operations), supra, note 567, ch. III, pp. 9 and 34-35; FM 100-23, supra, note 183, pp. 11-12.
[586] See: JP 3-07.3 (Peace Operations), ibid; FM 100-23, ibid.
[587] See JP 3-07.3 (Peace Operations), supra, note 567, ch. III, pp. 36-37.
[588] JP 3-07.3 (Peace Operations), supra, note 567, p. III-3.
[589] FM 100-23, supra, note 183, p. 17. JP 3-07.3 (Peace Operations), supra, note 567, p. III-3.
[590] See: JP 3-07.3 (Peace Operations), supra, note 567, p. III-37 ('Conclusion'); FM 100-23, supra, note 183, p. 13.
[591] --i.e., unintended death and destruction caused to civilians, civilian property and other non-military objects.
[592] JP 3-07.3 (Peace Operations), supra, note 567, p. III-24. And see ch. III, pp. 3, 27 and 37.
[593] See: JP 3-07, supra, note 568, p. II-4; JP 3-07.3 (Peace Operations), supra, note 567, ch. I, pp. 38-40, ch. III, pp. 3 and 24; FM 100-23, supra, note 183, pp. 17 and 34-35.
[594] See: JP 3-07.3 (Peace Operations), supra, note 567, pp. I-13 and III-2; FM 100-23, supra, note 183, pp. 12-14.
[595] JP 3-07.3 (Peace Operations), supra, note 567, p. III-2.
[596] JP 3-07.3 (Peace Operations), supra, note 567, p. I-15. Note that, for the sake of clarity and consistency, abbreviations used in US and UK military manuals ('PK', 'PE', etc.) are spelled out when they appear in quoted passages, as here.
[597] JP 3-07.3 (Peace Operations), supra, note 567, ch. I, p. 15, ch. III, pp. 2-3.
[598] JP 3-07.3 (Peace Operations), supra, note 567, p. III-2. And see FM 100-23, supra, note 183, p. 14. Note that JP 3-07.3 (Peace Operations) says, at one point, that '[i]n some [peace enforcement] mandates, impartiality may not be desired' (p. I-13). This remark is not developed elsewhere in the manual, however. Throughout the rest of the text, impartiality is treated as a desirable, though not always attainable, feature of peace enforcement. The meaning of the quoted passage may, arguably, be found in FM 100-23 which asserts, at page 2, that despite their frequent designation as 'peace enforcement' operations, the UN operations in Korea (1950-53) and Kuwait/Iraq (1990-91) 'are clearly wars and must not be confused with [peace enforcement] as described herein.' War, as noted earlier, is seen in US military doctrine as a wholly partial activity. Thus, the reference in JP 3-07.3 (Peace Operations) to peace enforcement mandates where impartiality is not desired may be to operations such as those undertaken in Korea and Kuwait/Iraq.
[599] JP 3-07.3 (Peace Operations), supra, note 567, ch. III, pp. 2 and 34. FM 100-23, supra, note 183, p. 13.
[600] JP 3-07.3 (Peace Operations), supra, note 567, p. I-13. And see FM 100-23, supra, note 183, pp. 12 and 18. Although US doctrine is not entirely clear on this point, the sources just cited suggest the key problem is the perception -- as opposed to the reality --of bias.
[601] JP 3-07.3 (Peace Operations), supra, note 567, p. I-13.
[602] JP 3-07.3 (Peace Operations), supra, note 567, p. I-13.
[603] The following points are derived from FM 100-23, supra, note 183, pp. 12-14.
[604] And see: JP 3-07.3 (Peace Operations), supra, note 567, p. I-12; FM 100-23, supra, note 183, p. 12.
[605] See JP 3-07.3 (Peace Operations), supra, note 567, ch. I, pp. 8 and 15. Compare FM 100-23, supra, note 183, p. 12.
[606] JP 3-07.3 (Peace Operations), supra, note 567, p. I-15.
[607] See JP 3-07.3 (Peace Operations), supra, note 567, ch. I, pp. 8-9 and 14.
[608] JP 3-07.3 (Peace Operations), supra, note 567, ch. I, pp. 8 and 14.
[609] While UK doctrine uses the term 'peace support operations', for the sake of consistency we will continue to use 'peace operations' in this section. Quotations will, however, reflect British terminology (and see note 596, infra).
[610] Supra, note 313.
[611] Peace Support Operations (First Draft), Army Field Manual, 1996 [hereinafter 'Peace Support Operations'].
[612] This is asserted in Wider Peacekeeping itself (see supra, note 313, ch. 2, paras. 4-8 and 23). It is also reflected in the importance accorded by the manual to the principles of impartiality (see: ch. 2, paras. 15-16 and 19; ch. 4, paras. 4-7 and 14) and what it calls 'minimum force' (see: ch. 2, paras. 17-20; ch. 4, paras. 8-14) in wider peacekeeping. With respect to the latter principle, it should be noted that Wider Peacekeeping envisages the use of force for the purpose of overcoming local opposition to the wider peacekeeping force (ch. 2, para. 18) and 'in defence of mandated activities, for example the delivery of humanitarian aid' (ch. 4, para. 12), as well as for strict self-defence (ch. 4, para. 12). Yet, at the same time, the manual specifies that '[r]eprisals and the pre-emptive (ie first use) of force are inappropriate to Wider Peacekeeping operations.' (ch. 4, para. 14(b)). While Wider Peacekeeping is not as clear on this point as it might be, it appears that, lacking the authority to take the initiative in the use of force, a wider peacekeeping force would not be involved in enforcement.
[613] The specific scenarios envisaged appear to include a general breakdown of consent in situations of open warfare and/or state collapse, as well as instances where consent given by the principal belligerents at the 'theatre' level is not transmitted to the local or 'tactical' level. See Wider Peacekeeping, supra, note 313, ch. 1, paras. 5 and 24-25, ch. 2, paras. 9-10.
[614] See: Wider Peacekeeping, supra, note 313, ch. 2; note 612, supra.
[615] See Peace Support Operations, supra, note 611, ch. 1, para. 3, ch. 2, paras. 12-15, and ch. 3, para. 7.
[616] Peace Support Operations (supra, note 611), written in the latter part of 1996, acknowledges its debt to 'recent experience' (ch. 1, para. 4; and see para. 3) and draws explicitly on UNPROFOR and IFOR experience (see, for example, ch. 3, paras. 4-5, and 12).
[617] Thus, the experience of UNPROFOR in the spring-summer of 1995 showed quite clearly that, at least in some cases, consent could not be built up or restored through adherence to peace-keeping principles. See: text accompanying note 614, supra; chapter 4, 'The Breakdown of the Safe Areas Regime' section.
[618] See Peace Support Operations, supra, note 611, ch. 1, para. 1, and ch. 3, paras. 3-4 and 6.
[619] As we shall see, as it concerns peace enforcement, UK doctrine is even more insistent on this point than the US version.
[620] Peace Support Operations, supra, note 611, ch. 1, para. 1. And see ch. 3, paras. 3 and 5.
[621] See Peace Support Operations, supra, note 611, ch. 2, para. 16, and ch. 4, para. 1. See also the discussion of the use of force in peace enforcement, infra.
[622] 'In [peace support operations], the active participation of the belligerent parties in the formulation and achievement of the end-state, be that ceasefire or peace plan, will be advantageous. As the operation moves towards war this trend will diminish until ultimately the terms of any peace plan could be imposed without consultation or agreement with the factions concerning conditions.' Peace Support Operations, supra, note 611, ch. 3, para. 3.
[623] See Peace Support Operations, supra, note 611, ch. 1, para. 10, ch. 3, paras. 5 and 7, and ch. 4, para. 13. Note, however, that the draft manual allows peace-keepers greater scope for the use of force 'in a situation of chaos' where 'belligerent parties [are] uncoordinated and independent' (ch. 4, para. 8) or to 'contain local upset' (ch. 4, para. 11). In each case, the use of force would involve a loss of consent at the tactical (field operations) level only.
[624] Concerning consent, see Peace Support Operations, supra, note 611, ch. 1, paras. 1 and 10, ch. 2, para. 12, and ch. 3, paras. 5, 7 and 12. Concerning impartiality, see ch. 3, paras. 5 and 7.
[625] Peace Support Operations, supra, note 611, ch. 1, para. 1.
[626] Generally, see Peace Support Operations, supra, note 611, ch. 3, para. 23.
[627] See Peace Support Operations, supra, note 611, ch. 3, para. 25(a), and ch. 5, para. 26.
[628] See Peace Support Operations, supra, note 611, ch. 5, para. 27.
[629] See Peace Support Operations, supra, note 611, ch. 3, para. 25(b), and ch. 5, para. 28.
[630] See Peace Support Operations, supra, note 611, ch. 3, para. 25(c), and ch. 5, para. 29.
[631] See Peace Support Operations, supra, note 611, ch. 3, para. 25(d), and ch. 5, paras. 30-31.
[632] See Peace Support Operations, supra, note 611, ch. 3, para. 25(e), and ch. 5, para. 32.
[633] See Peace Support Operations, supra, note 611, ch. 3, para. 25(f), and ch. 5, para. 33.
[634] See Peace Support Operations, supra, note 611, ch. 1, paras. 1 and 11, ch. 3, para. 8, and ch. 4, para. 8.
[635] Peace Support Operations, supra, note 611, ch. 2 , para. 12. And see note 596, supra.
[636] Peace Support Operations, supra, note 611, ch. 4, para. 8.
[637] Peace Support Operations, supra, note 611, ch. 1, para. 11. This point is also made in ch. 3, paras. 6 and 8, and ch. 4, para. 8.
[638] Peace Support Operations, supra, note 611, ch. 4, para. 13.
[639] Peace Support Operations, supra, note 611, ch. 4, para. 8.
[640] Peace Support Operations, supra, note 611, ch. 4, para. 15. And see ch. 3, para. 3, and ch. 4, para. 13.
[641] See Peace Support Operations, supra, note 611, ch. 1, para. 1, ch. 2, paras. 12 and 15, and ch. 3, paras. 5, 8, and 12.
[642] Peace Support Operations, supra, note 611, ch. 6, para. 2. And see ch. 3, paras. 8 and 26, ch. 4, para. 5, and ch. 6, sec. 2.
[643] See Peace Support Operations, supra, note 611, ch. 3, paras. 8 and 26, and ch. 4, paras. 4, 8, and 17.
[644] Peace Support Operations, supra, note 611, ch. 3, para. 26.
[645] See Peace Support Operations, supra, note 611, ch. 3, paras. 5, 8 and 26, and ch. 4, paras. 4, 12, and 17-21.
[646] Peace Support Operations, supra, note 611, ch. 4, para. 19. And see para. 18.
[647] Peace Support Operations, supra, note 611, ch. 4, para. 18. And see ch. 3, para. 3, and ch. 4, para. 19.
[648] Peace Support Operations, supra, note 611, ch. 3, para. 2.
[649] Peace Support Operations, supra, note 611, ch. 3, para. 5.
[650] See Peace Support Operations, supra, note 611, ch. 2, para. 18.
[651] 'The significance and nature of the conceptual divisions separating [peace-keeping] from the resource-intensive and combat capable activities of [peace enforcement], and [peace enforcement] from war have been identified as inexact but critical divides that should only be crossed deliberately and after careful preparation.' Peace Support Operations, supra, note 611, ch. 3, para. 26. And see ch. 3, paras. 9 and 13.
[652] See Peace Support Operations, supra, note 611, ch. 1, para. 10, ch. 2, para. 12, and ch. 3, paras. 5, 9, 10, and 12.
[653] See Peace Support Operations, supra, note 611, ch. 3, para. 10.
[654] See Peace Support Operations, supra, note 611, ch. 2, para. 13, and ch. 3, para. 9.
[655] See Peace Support Operations, supra, note 611, ch. 3, paras. 9-10.
[656] An equivalent expression is used in French military manuals, although there is some variation in the particular term used --one finds both 'opérations en faveur de la paix' and 'opérations de paix'.
[657] Orientations pour la conception, la préparation, la planification, le commandement et l'emploi des forces françaises dans les opérations militaires fondées sur une résolution du conseil de sécurité de l'ONU, lettre de l'Amiral Jacques Lanxade, Chef d'État-Major des Armées, no. 165/DEF/EMA/EMP/E.1, le 6 mars 1995 [hereinafter 'lettre 165'].
[658] Concerning the process of formulation of French military doctrine, see Colonel LE NEVEN, 'La Communauté doctrinale?', Objectif 21 (Revue du Commandement de la Doctrine et de l'Entraînement), no. 2, 1er semestre, 1996.
[659] Supplément à l'Agenda pour la paix --Aide-Mémoire français, A/50/869 & S/1996/71, 30 janv. 1996, annexe [hereinafter 'A/50/869']. See note 1, supra for the reference for the Agenda Supplement.
[660] Forces terrestres et maîtrise des crises: conception générale de l'emploi des forces terrestres dans les opérations extérieures en faveur de la paix, de la sécurité, et de l'application du droit international (document provisoire), État-Major de l'Armée de Terre, Centre d'Études et de Prospective, novembre 1996 [hereinafter 'Forces terrestres et maîtrise des crises'].
[661] Lettre 165, supra, note 657, sec. I, 1.1. The equivalent English terms are taken from: A/50/869, supra, note 659, Engl. version, pp. 2-3; and Forces terrestres et maîtrise des crises, supra, note 660, pp. 73-74.
[662] Forces terrestres et maîtrise des crises, supra, note 660, pp. 17 and 49-50.
[663] See: Livre blanc sur la défense 1994 (Paris, Éditions 10/18, 1994), pp. 115-16 and 122; Lettre 165, supra, note 657, cover note by Admiral Jacques Lanxade (Chief of Staff); Forces terrestres et maîtrise des crises, supra, note 660, p. 17 (note also the subtitle of this publication: 'Conception générale de l'emploi des forces terrestres dans les opérations extérieures en faveur de la paix, de la sécurité, et de l'application du droit international').
[664] Forces terrestres et maîtrise des crises, supra, note 660, p. 49. And see the discussion of the French concept of 'peace enforcement', infra.
[665] See: Lettre 165, supra, note 657, sec. I, 1.2.1; Forces terrestres et maîtrise des crises, supra, note 660, pp. 32-33.
[666] See: Lettre 165, supra, note 657, sec. I, 1.1 (definition of peace-keeping); Forces terrestres et maîtrise des crises, supra, note 660, pp. 25 and 31.
[667] See Forces terrestres et maîtrise des crises, supra, note 660, pp. 31-32.
[668] Lettre 165, supra, note 657, sec. I, subsecs. 1.1, 1.2.1, and 1.2.2. A/50/869, supra, note 659, pp. 2-3. Forces terrestres et maîtrise des crises, supra, note 660, p. 39.
[669] Lettre 165, supra, note 657, sec. I, subsecs. 1.1 and 1.2.2, and sec. II, 2.1. A/50/869, supra, note 659, p. 2. Forces terrestres et maîtrise des crises, ibid.
[670] Lettre 165, ibid. A/50/869, supra, note 659, pp. 2-3. Forces terrestres et maîtrise des crises, ibid.
[671] Lettre 165, supra, note 657, sec. I, 1.2.2. A/50/869, ibid. Forces terrestres et maîtrise des crises, supra, note 660, pp. 41-42.
[672] See: A/50/869, supra, note 659, p. 3; Forces terrestres et maîtrise des crises, supra, note 660, pp. 18 and 42.
[673] Lettre 165, supra, note 657, sec. I, 1.2.2. And see A/50/869, supra, note 659, p. 3.
[674] See: Forces terrestres et maîtrise des crises, supra, note 660, pp. 25 and 39-40; A/50/869, supra, note 659, p. 3.
[675] Forces terrestres et maîtrise des crises, supra, note 660, p. 40. A/50/869, supra, note 659, pp. 2-3.
[676] Lettre 165, supra, note 657, sec. I, 1.1. Forces terrestres et maîtrise des crises, supra, note 660, pp. 25 and 39.
[677] Lettre 165, supra, note 657, sec. II, 2.2. A/50/869, supra, note 659, p. 3. Forces terrestres et maîtrise des crises, supra, note 660, p. 40. Note that none of the sources of French military doctrine used in this chapter define 'neutrality' or otherwise make its meaning clear.
[678] See: A/50/869, supra, note 659, p. 3; Forces terrestres et maîtrise des crises, supra, note 660, pp. 39-41.
[679] Forces terrestres et maîtrise des crises, supra, note 660, p. 39 (emphasis in the original).
[680] --'adversaire désigné'. Forces terrestres et maîtrise des crises, supra, note 660, p. 25. And see Lettre 165, supra, note 657, sec. I, 1.1.
[681] Forces terrestres et maîtrise des crises, supra, note 660, p. 49. Lettre 165, supra, note 657, secs. I, 1.1 and II, 2.1.
[682] Lettre 165, supra, note 657, sec. I, 1.2.3. Forces terrestres et maîtrise des crises, ibid. The example given in these documents is the international community's response to Iraq's invasion and annexation of Kuwait (1990-91).
[683] Forces terrestres et maîtrise des crises, ibid.
[684] Lettre 165, supra, note 657, sec. I, 1.2.3. Forces terrestres et maîtrise des crises, ibid. The example given in these documents is of the humanitarian intervention launched in favour of Iraqi Kurds following the end of the Gulf War in 1991.
[685] See Forces terrestres et maîtrise des crises, supra, note 660, pp. 49-51.
[686] Forces terrestres et maîtrise des crises, supra, note 660, pp. 49-50.
[687] Forces terrestres et maîtrise des crises, supra, note 660, p. 25.
[688] See: Lettre 165, supra, note 657, sec. I, subsecs. 1.1 and 1.2.3; Forces terrestres et maîtrise des crises, ibid.
[689] For a graphical representation of some of these distinctions, see Forces terrestres et maîtrise des crises, supra, note 660, p. 25.
[690] Lettre 165, supra, note 657, sec. I, 1.2.1. And see Forces terrestres et maîtrise des crises, supra, note 660, pp. 33-34.
[691] A/50/869, supra, note 659, p. 3. Forces terrestres et maîtrise des crises, supra, note 660, p. 42.
[692] Note that the points made in the following section are derived exclusively from the analysis of national military doctrine undertaken earlier in this chapter, together with the sources cited in that connection.
[693] See note 598, supra.
[694] See first pages of 'Peace Enforcement' section in that chapter, supra.
[695] The following discussion relies on: Victor-Yves GHEBALI, L'OSCE dans l'Europe post-communiste, 1990-1996 (Bruxelles, Émile Bruylant, 1996), pp. 323-28; Anthony KELLETT, 'Soviet and Russian Peacekeeping 1948-1998: Historical Overview and Assessment', The Journal of Slavic Military Studies, vol. 12, no. 2, June 1999.
[696] See: Ghebali, ibid., pp. 326-27; Kellett, ibid., pp. 13-41.
[697] See: S/25123, 18 Jan. 1993, paras. 5, 10 and 12; SCR 806, 5 Feb. 1993.
[698] With respect to the UK, see chapter 6, text accompanying notes 616-17, supra.
[699] See 'UNOSOM II: The Use of Force' section, supra.
[700] See text accompanying notes 48-50, supra.
[701] See 'Conclusion: The Role of Peace Enforcement', pp. 222-23, infra.
[702] Note that former UN Secretary-General Boutros-Ghali and the UN Security Council have both affirmed that the modification of behaviour, not punishment, is the purpose of economic sanctions. See: Agenda Supplement, supra, note 1, para. 66; S/PRST/1995/9, 22 Feb. 1995.
[703] Charter of the United Nations and Statute of the International Court of Justice, San Francisco, 26 June 1945 (reprinted in UNDPI, DPI/511, 1990).
[704] Supra, note 4.
[705] S/23500, 31 Jan. 1992 (emphasis added).
[706] Hubert THIERRY, 'L'«Agenda pour la Paix» et la Charte des Nations Unies' (DANS Le développement du rôle du Conseil de Sécurité (Colloque de l'Académie de Droit International de la Haye, 21-23 juillet 1992), éd. par R.-J. Dupuy, Dordrecht, The Netherlands, Martinus Nijhoff, 1993), p. 376.
[707] See, for example: David RAMSBOTHAM, The Changing Nature of Intervention: The Role of UN Peacekeeping (Conflict Studies no. 282, London, Research Institute for the Study of Conflict and Terrorism, 1995), pp. 2-3.
[708] Concerning the meaning of the word 'enforcement' in the UN Charter, see: Michael AKEHURST, 'Enforcement Action by Regional Agencies, with Special Reference to the Organization of American States', British Yearbook of International Law, vol. 42, 1967, pp. 185-88; Leland M. GOODRICH, Edvard HAMBRO, and Anne Patricia SIMONS, Charter of the United Nations --Commentary and Documents (New York, Columbia U. Press, 3rd rev. ed., 1969), pp. 365-67. The focus of our analysis is, obviously, military enforcement action, as will be indicated in the text where necessary.
[709] Other UN military missions which predated UNEF I, including the United Nations Truce Supervision Organization (UNTSO, established in 1948) and the United Nations Military Observer Group in India and Pakistan (UNMOGIP, established in 1949), are usually put in the separate category of 'observer missions'. Concerning the 'launch date' of UN peace-keeping and the distinction between observer missions and 'peace-keeping forces', see: Ratner, supra, note 51, pp. 9-10; Blue Helmets, supra, note 20, pp. 8-9.
[710] Certain Expenses of the United Nations, Advisory Opinion, [1962] ICJ Reports 151 [hereinafter 'Certain Expenses'], at pp. 163-65 and 172. And see Bowett, supra, note 119, pp. 288-90.
[711] Recent General Assembly involvement in peace-keeping, broadly defined, has been limited to the authorization of a handful of electoral and human rights missions. See Ratner, supra, note 51, pp. 56 and 63.
[712] Certain Expenses, supra, note 710, pp. 164-65 and 171.
[713] See GAR 377 (V), 3 Nov. 1950, part A, sec. A.
[714] Thus, the Security Council resolutions which established ONUC and defined its mandate (see ch. 2) do not indicate the Force's legal basis. And see: Goodrich, Hambro and Simons, supra, note 708, p. 303; Thomas BRUHA, 'Security Council' (IN United Nations: Law, Policies and Practice, ed. by R. Wolfrum and C. Philipp, Dordrecht, The Netherlands, Martinus Nijhoff, 1995), p. 1150.
[715] One notable exception is Resolution 660 (2 Aug. 1990), adopted just hours after Iraq's invasion of Kuwait, in which the Council specifies Charter articles 39 and 40 as the legal basis (preambular para. 3) for its demand for an immediate and unconditional withdrawal of Iraqi forces (para. 2).
[716] The typical formulation is: 'Acting under Chapter VII of the Charter of the United Nations'.
[717] Freudenschuss identifies two Security Council resolutions, Resolution 665 and 773, both relating to the Iraq-Kuwait conflict, which were not explicitly adopted under chapter VII, but which can hardly be situated elsewhere in the Charter. See Helmut FREUDENSCHUSS, 'Between Unilateralism and Collective Security: Authorizations of the Use of Force by the UN Security Council', European Journal of International Law, vol. 5(4), 1994, pp. 493-96, 501 and 523.
[718] --for example, the authorization of the use of force by the United Kingdom for the purpose of enforcing an oil embargo against the former Southern Rhodesia. See SCR 221, 9 April 1966, para. 5.
[719] --e.g., UNITAF.
[720] --e.g., IFOR and SFOR.
[721] See: Higgins, supra, note 88, pp. 57-58; Bowett, supra, note 119, p. 176 (also pp. 201-03 and 278-79); Simmonds, supra, note 110, p. 62.
[722] See text accompanying notes 121-23 and 153-54, supra. See also, Abi-Saab, supra, note 88, pp. 103-04.
[723] Certain Expenses, supra, note 710, pp. 166 and 177.
[724] See: Abi-Saab, supra, note 88, pp. 104-06 and 165; Seyersted, supra, note 110, p. 140. For the present author's opinion on the question of whether or not ONUC had enforcement powers, see chapter 2, especially the 'Conclusion'.
[725] See: Jean COMBACAU, 'Le chapitre VII de la Charte des Nations Unies: résurrection ou métamorphose?' (DANS Les nouveaux aspects du droit international (colloque des 14, 15 et 16 avril 1994), sous la direction de Rafâa Ben Achour et Slim Laghmani, Paris, Pedone, 1994), pp. 144 and 153-54; Freudenschuss, supra, note 717, p. 523.
[726] Bothe, supra, note 112, p. 590.
[727] Freudenschuss (supra, note 717) refers specifically to the mandates conferred upon UNOSOM II in Resolutions 814 and 837 and upon UNPROFOR in Resolutions 836 and 871. It is submitted that Freudenschuss errs in respect of the last-named resolution which essentially involves an affirmation of UNPROFOR's right of self-defence and, as such, falls within the scope of peace-keeping. For a full discussion of this issue, see chapter 4, section entitled 'UNPROFOR's Mandate and Chapter VII', supra. Note that SCR 871 follows SCR 815, discussed in the latter section, in its formulation.
[728] Freudenschuss, supra, note 717, p. 524. Note that we will examine this problem infra.
[729] An Agenda for Peace, supra, note 4, para. 44.
[730] Thierry, supra, note 706, p. 382. The original French text, just quoted in translation, reads 'largement interprété'.
[731] Peter KOOIJMANS, 'Provisional Measures of the UN Security Council' (IN Reflections on International Law from the Low Countries --In Honour of Paul de Waart, ed. by Erik Denters and Nico Schrijver, The Hague, Martinus Nijhoff, 1998), pp. 296-297.
[732] Giorgio GAJA, 'Use of Force Made or Authorized by the United Nations' (IN The United Nations at Age Fifty --A Legal Perspective, ed. by Christian Tomuschat, The Hague, Kluwer Law International, 1995), p. 53.
[733] See John W. HALDERMAN, 'Legal Basis for United Nations Armed Forces', The American Journal of International Law, vol. 56(4), Oct. 1962, especially pp. 972-73. See also Seyersted, supra, note 110, p. 160.
[734] See: C.F. AMERASINGHE, 'The Charter Travaux Préparatoires and United Nations Powers to Use Armed Force', The Canadian Yearbook of International Law, vol. 4, 1966, pp. 83-86 and 99; Ruth B. RUSSELL, A History of the United Nations Charter (Washington, D.C., The Brookings Institution, 1958), pp. 655-57.
[735] See the sources cited ibid., especially Russell, pp. 655-56. And see UN Charter, art. 24(2).
[736] See Bowett, supra, note 119, p. 179.
[737] Note that although these concepts are, in principle, distinct, they are sometimes confused in legal doctrine and even, arguably, in legal jurisprudence. Concerning 'inherent capacity' or 'power', see: Seyersted, supra, note 110, ch. IV, secs. 3-4; Hilaire MCCOUBREY and Nigel D. WHITE, The Blue Helmets: Legal Regulation of United Nations Military Operations (Aldershot, England, Dartmouth Publishing, 1996), pp. 44-45. With respect to 'implied powers', see: Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, [1949] ICJ Reports 174, at pp. 182 and 198; Michael BOTHE, 'Les limites des pouvoirs du Conseil de Sécurité' (DANS Le développement du rôle du Conseil de Sécurité, supra, note 706), pp. 71 and 74-75; McCoubrey and White, ibid., pp. 39-44. Concerning 'general' or 'residual powers', see: Hans KELSEN, The Law of the United Nations (London, Stevens and Sons, 1950), pp. 283-84 and 291-92; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [1971] ICJ Reports 16, at para. 110; Oscar SCHACHTER, 'United Nations Law in the Gulf Conflict', The American Journal of International Law, vol. 85(3), July 1991, p. 461; Bothe, ibid., pp. 70-71; Benedetto CONFORTI, The Law and Practice of the United Nations (The Hague, Kluwer Law International, 1996), pp. 205-06.
[738] Pierre Michel EISEMANN, 'Article 48' (DANS La Charte des Nations Unies, sous la direction de Jean-Pierre Cot et Alain Pellet, Paris, Economica, 2e éd., 1991), p. 749. The original, French text reads 'réaffirme'. And see SCR 670, 25 Sept. 1990, adopted in the context of the Persian Gulf Crisis.
[739] Brun-Otto BRYDE, 'Article 48' (IN The Charter of the United Nations, supra, note 112), p. 652.
[740] See: Eisemann, supra, note 738, p. 751; Bryde, ibid., pp. 652-53.
[741] Compare: Pierre Michel EISEMANN, 'Article 49' (DANS La Charte des Nations Unies, supra, note 738), p. 757; Brun-Otto BRYDE, 'Article 49' (IN The Charter of the United Nations, supra, note 112), p. 656.
[742] Eisemann, ibid., p. 759. Bryde, ibid., pp. 656-57.
[743] Compare: Eisemann, ibid., p. 759; Bryde, ibid., p. 657.
[744] See: Goodrich, Hambro and Simons, supra, note 708, pp. 337-40; Eisemann, ibid., pp. 759-62; Bryde, ibid., pp. 656-58.
[745] Pursuant to the interpretation of the two provisions suggested here, article 48(1) would only involve legally binding 'decisions of the Security Council', such as those imposing economic sanctions under article 41, whereas article 49 would apply to all 'measures decided upon by the Security Council', whether legally binding or not. The words 'decided upon' in the latter provision would simply refer to the formal Council voting procedure, set out in Charter article 27. Although only article 48(1) is clear on this point ('decisions ... for the maintenance of international peace and security'), both provisions would apply solely within the framework of chapter VII. Note that the French text of article 49 ('mesures arrêtées') supports the argument that the 'measures' referred to in the English version of that provision are different from the 'decisions' ('décisions') mentioned in article 48(1). Eisemann, however, asserts that they are one and the same (ibid., pp. 760-61). On the distinction between 'binding and nonbinding decisions' and its application to article 48(1), see Schachter, supra, note 737, p. 463 (n. 31).
[746] On this point, with respect to article 48(1), see: Bowett, supra, note 119, pp. 284-85; Bryde, supra, note 739, p. 652.
[747] Note however that, in practice, the Security Council has often failed to make such a determination, at least explicitly. For several recent examples, see Freudenschuss, supra, note 717, p. 523. Concerning the question of whether an 'implicit determination' suffices for the purposes of article 39 and what, exactly, such a determination would involve, see: Gérard COHEN JONATHAN, 'Article 39' (DANS La Charte des Nations Unies, supra, note 738), pp. 651 and 653-54; Jochen Abr. FROWEIN, 'Article 40' (IN The Charter of the United Nations, supra, note 112), p. 618; Jochen Abr. FROWEIN, 'Article 42' (IN The Charter of the United Nations, supra, note 112), p. 631.
[748] Note that the same passage in the French version of the text lacks the two commas: 'Le Conseil de sécurité ... fait des recommandations ou décide quelles mesures seront prises conformément aux Articles 41 et 42 pour maintenir ou rétablir la paix et la sécurité internationales.'
[749] See Bowett, supra, note 119, pp. 276-77. Note that article 39 has been cited by states and scholars alike as a possible legal basis of the UN-authorized military intervention in Korea (1950-53). See: Bowett, ibid., pp. 32-36 and 276-77; Seyersted, supra, note 110, pp. 129-30; Goodrich, Hambro and Simons, supra, note 708, pp. 301 and 315; Cohen Jonathan, supra, note 747, pp. 662-63; Nigel D. WHITE, Keeping the Peace --The United Nations and the Maintenance of International Peace and Security (Manchester, Manchester U. Press, 1993), pp. 106-08.
[750] Frowein, 'Article 40', supra, note 747, p. 619.
[751] Note that the following list is by no means exhaustive. Pursuant to the terms of article 40, the Security Council has virtually unlimited freedom to adopt whatever provisional measures 'it deems necessary or desirable' to achieve the basic purpose already described. Goodrich, Hambro and Simons, supra, note 708, p. 308. Denys SIMON, 'Article 40' (DANS La Charte des Nations Unies, supra, note 738), p. 680. For further examples of provisional measures and associated Security Council resolutions, see Simon, pp. 680-81.
[752] See: SCR 54, S/902, 15 July 1948, paras. 2, 5 and 8; SCR 502, 3 April 1982, para. 1; SCR 598, 20 July 1987, para. 1; SCR 713, 25 Sept. 1991, para. 4; SCR 733, 23 Jan. 1992, para. 4.
[753] See: SCR 502, 3 April 1982, para. 2; SCR 598, 20 July 1987, para. 1; SCR 660, 2 Aug. 1990, para. 2.
[754] See: SCR 502, 3 April 1982, para. 3; SCR 598, 20 July 1987, para. 4; SCR 660, 2 Aug. 1990, para. 3; SCR 713, 25 Sept. 1991, para. 5. Note that such measures may also be seen as falling under chapter VI of the UN Charter, relating to peaceful dispute settlement. Concerning the Security Council's power to recommend provisional measures under chapter VI, see Goodrich, Hambro and Simons, supra, note 708, pp. 278-79 and 305.
[755] See: SCR 598, 20 July 1987, para. 5; SCR 713, 25 Sept. 1991, para. 7; SCR 733, 23 Jan. 1992, para. 6.
[756] See: SCR 713, 25 Sept. 1991, para. 6; SCR 733, 23 Jan. 1992, para. 5. Note, however, that some legal scholars have persuasively argued that arms embargoes actually fall under article 41 of the Charter, as opposed to article 40. See: Combacau, supra, note 725, pp. 152-53; Kooijmans, supra, note 731, pp. 295-96.
[757] See: Goodrich, Hambro and Simons, supra, note 708, p. 308; Frowein, 'Article 40', supra, note 747, pp. 619-20.
[758] Kelsen, supra, note 737, p. 743.
[759] Simon, supra, note 751, p. 685.
[760] See: Goodrich, Hambro and Simons, supra, note 708, p. 308; Simon, supra, note 751, p. 685.
[761] See Simon, supra, note 751, pp. 684-85.
[762] Examples include SCR 502, 3 April, 1982, para. 2 (ordering the withdrawal of Argentine forces from the Falkland / Malvinas Islands) and SCR 660, 2 Aug. 1990, para. 2 (ordering the withdrawal of Iraqi forces from Kuwait). Legal scholars typically see such measures as provisional measures, even where, as in SCR 502, article 40 is not stated as the legal basis. See: Simon, supra, note 751, p. 681 (n. 1); Frowein, 'Article 40', supra, note 747, p. 619.
[763] See An Agenda for Peace, supra, note 4, para. 44, second-to-last sentence.
[764] See Simon, supra, note 751, p. 681.
[765] See Simon, supra, note 751, pp. 681-82.
[766] See: Bowett, supra, note 119, p. 283; Higgins, supra, note 88, vol. IV, 1981, p. 144; Abi-Saab, supra, note 88, p. 103 (n. 163). Support for this conclusion can be found in the Certain Expenses case, wherein the International Court of Justice states: 'Articles of Chapter VII of the Charter speak of 'situations' as well as disputes, and it must lie within the power of the Security Council to police a situation even though it does not resort to enforcement action against a State.' Supra, note 710, p. 167. Note that the only article in chapter VII which employs the word 'situation' is article 40. The point is also valid for the French versions of the International Court's judgement (p. 167) and the UN Charter ('situation'). For an overview of the debate concerning peace-keeping's legal basis, see: Ratner, supra, note 51, pp. 56-57; Eric SUY, 'Peace-keeping Operations' (IN A Handbook on International Organizations, ed. by R.-J. Dupuy, Dordrecht, The Netherlands, Martinus Nijhoff, 2nd ed., 1998), p. 544.
[767] Concerning the somewhat different functions of 'first' and 'second generation' peace-keeping, see text accompanying note 58, supra.
[768] The legal doctrine, though not unanimous, solidly backs this conclusion. See: Kelsen, supra, note 737, pp. 740-41; Bowett, supra, note 119, pp. 281-82; Simon, supra, note 751, pp. 686-88; White, supra, note 749, p. 90; Frowein, 'Article 40', supra, note 747, pp. 620-21; Jean COMBACAU et Serge SUR, Droit international public (Paris, Montchrestien, 3e éd., 1997), p. 650. Note that the Security Council, since its earliest days, has assumed it has the power to take binding decisions under article 40. See, for example: SCR 54, S/902, 5 July 1948, paras. 2, 5 and 8; SCR 598, 20 July 1987, para. 1; SCR 660, 2 Aug. 1990, para. 2. Concerning the mandatory intent behind the latter provision, see also SCR 678, 29 Nov. 1990, pream. paras. 2 and 4.
[769] And see Simon, supra, note 751, pp. 688-89.
[770] See UNCIO Documents, vol. 17, pp. 204-05 (Doc. WD 428 (Engl.), CO/192, 20 Aug. 1945).
[771] See: UNCIO Documents, vol. 11, p. 19 (Doc. 943 (Engl.), III/5, 13 June 1945); Bowett, supra, note 119, p. 277; Seyersted, supra, note 110, pp. 161-62; Goodrich, Hambro and Simons, supra, note 708, p. 316; Schachter, supra, note 7, p. 394; Rosalyn HIGGINS, Problems and Process: International Law and How We Use It (Oxford, Clarendon Press, 1994), pp. 265-66; Frowein, 'Article 42', supra, note 747, p. 633. Of course, if the Security Council army to be established in accordance with article 43 was fully internationalized, in the sense of remaining continuously under Security Council command and control, then there would be no need for the Council to direct member states to provide the forces and other forms of assistance agreed under article 43 for specific operations. Yet, this is only one possible means of organizing such a force. If the relevant forces remained under national command and control, except when participating in specific UN operations, then the Security Council would need to issue binding directives to those states which had concluded article 43 agreements to make their agreed contribution or some part thereof for the operation in question (thus transferring command and control over the relevant forces to the Security Council). In fact, the latter scenario seems to be the one envisaged in article 43, which refers to the provision of forces and other assistance to the Security Council 'on its call' (para. 1). For additional comment concerning the type of force organization contemplated in articles 43-47, see: Goodrich, Hambro and Simons, pp. 317-18 and 328; Kelsen, supra, note 737, pp. 748 and 762-68.
[772] Western nations and their East bloc rivals shared the view that the failure to conclude the article 43 agreements rendered action under article 42 impossible, although they disagreed on the broader consequences of this failure. While the West believed that other forms of military action outside the framework of article 42, such as peace-keeping, were still possible, the Soviet Union and its allies insisted that the Security Council could take no military action of any kind. See: Higgins ibid., pp. 263-64; Seyersted, supra, note 110, pp. 129-30 and 163; Goodrich, Hambro and Simons, supra, note 708, p. 316. But see Frowein, 'Article 42', supra, note 747, p. 633.
[773] See: Kelsen, supra, note 737, pp. 756-57; Seyersted, supra, note 110, p. 130; Schachter, supra, note 7, p. 393 (n. 13).
[774] The point is made by Higgins, supra, note 771, pp. 264-65. See: A/3302, 6 Nov. 1956, paras. 9-10; A/3943, 9 Oct. 1958, para. 155; Certain Expenses, supra, note 710, pp. 165-67. Note that the International Court rejected the theory of article 43 linkage, but only with respect to peace-keeping. It did not consider the question in relation to UN military enforcement operations.
[775] See: Burns WESTON, 'Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy', The American Journal of International Law, vol. 85(3), July 1991, p. 519; An Agenda for Peace, supra, note 4, paras. 42-43.
[776] Higgins argues the point forcefully. Supra, note 771, pp. 265-66. Other advocates of this view, include: Bowett, supra, note 119, pp. 277-78; Seyersted, supra, note 110, pp. 130-31, 163-64 and 169; Georges FISCHER, 'Article 42' (DANS La Charte des Nations Unies, supra, note 738), pp. 712-13; Frowein, 'Article 42', supra, note 747, p. 633; McCoubrey and White, supra, note 737, pp. 12-13.
[777] Goodrich, Hambro, and Simons, supra, note 708, pp. 630-31. Schachter, supra, note 7, p. 393. Thomas FRANCK, Fairness in International Law and Institutions (Oxford, Clarendon Press, 1995), p. 300.
[778] Bowett, supra, note 119, p. 277. And see Seyersted, supra, note 110, pp. 130-31.
[779] See Frowein, 'Article 42', supra, note 747, p. 633. This point will be developed further in the section of the chapter dealing with UN-authorized peace enforcement operations, infra.
[780] See: Amerasinghe, supra, note 734, pp. 90-91 and 100; Seyersted, supra, note 110, pp. 130 and 131 (n. 20).
[781] See: UNCIO Documents, vol. 12, pp. 402-03 (Doc. 704 (Engl.), III/3/36, 31 May 1945); idem, vol. 11, pp. 187 and 189-90 (Doc. 1150 (Engl.), III/12, 22 June 1945).
[782] This is reflected in the first words of article 106: '... as in the opinion of the Security Council ...'. Concerning this phrase, see: UNCIO Documents, vol. 12, pp. 651-52 (Doc. WD 68 (Engl.), III/3/A/2, 1 June 1945); idem, vol. 12, pp. 419-21 (Doc. 765 (Engl.), III/3/39, 3 June 1945); idem, vol. 12, pp. 533-37 (Doc. 1089 (Engl.), III/3/49, 19 June 1945 and Doc. 1104 (Engl.), III/3/49 (1), 20 June 1945); idem, vol. 11, p. 189 (Doc. 1150 (Engl.), III/12, 22 June 1945); Russell, supra, note 734, pp. 682-83.
[783] It is submitted that the broad wording of article 106, specifically the phrase 'as in the opinion of the Security Council', would allow the necessary Security Council determination to be implicit in the sense that it would follow from a series of Council decisions to take military enforcement action in specific cases. The assumption that the Security Council can take enforcement action under article 42 is, in fact, reflected in a wide range of UN practice, both old and new. See: Schachter, supra, note 7, pp. 393-94; Frowein, 'Article 42', supra, note 747, pp. 633-34; Franck, supra, note 777, pp. 300-04.
[784] Certain Expenses, supra, note 710, p. 177. And see p. 166.
[785] The relevant phrase reads: 'If preventive or enforcement measures against any state are taken by the Security Council, ...'.
[786] See Miller, supra, note 103, p. 8. The present author was unable to assess the merits of Oscar Schachter's claim (writing under the name 'E.M. Miller') since the references he provides to the relevant Charter preparatory works -- specifically, '12 U.N.C.I.O. Docs. 334 et seq., 580-581' --are incorrect.
[787] Certain Expenses, supra, note 710, p. 164. And see pp. 165 and 171.
[788] Certain Expenses, supra, note 710, p. 165.
[789] See quoted passage accompanying note 784, supra.
[790] The following argument is derived from Kelsen, supra, note 737, pp. 19 and 731.
[791] In the same vein, see Charter article 1(1).
[792] Recent examples of such a determination include: SCR 794, 3 Dec. 1992, 3rd pream. para. (Somalia); SCR 864, 15 Sept. 1993, sec. B, 4th pream. para. (Angola). Note that article 2(7) explicitly exempts chapter VII enforcement measures from its prohibition of UN intervention in the internal affairs of states. And see: Seyersted, supra, note 110, p. 139; Abi-Saab, supra, note 88, p. 104 (n. 165). Concerning the Security Council's broad interpretation of the notion of a threat to international peace, see: Higgins, supra, note 771, pp. 254-57; Jochen Abr. FROWEIN, 'Article 39' (IN The Charter of the United Nations, supra, note 112), pp. 609 and 611-12.
[793] Fischer, supra, note 776, p. 713.
[794] Abi-Saab, supra, note 88, p. 104 (n. 165). And see: Bowett, supra, note 119, p. 278; Seyersted, supra, note 110, p. 139.
[795] See: Kelsen, supra, note 737, pp. 19 and 731; Seyersted, supra, note 110, pp. 139-40; Abi-Saab, supra, note 88, p. 104 (n. 165).
[796] Concerning the Cold War period, see: Fischer, supra, note 776, pp. 713-14; Peter KOOIJMANS, 'The Security Council and Non-State Entities as Parties to Conflicts' (IN International Law: Theory and Practice --Essays in Honour of Eric Suy, ed. by K. Wellens, The Hague, Martinus Nijhoff, 1998), pp. 334-35. Note that the two UN-conducted military enforcement operations examined earlier in the dissertation --in the Congo (ONUC) and Somalia (UNOSOM II) -- both involved internal conflicts. Note also that the Security Council has imposed arms embargoes and other sanctions on non-state entities in the context of several internal conflicts during the post-Cold War period, including those in Angola, Liberia, Rwanda, Somalia, and the former Yugoslavia. For details, see: Kooijmans, pp. 335-37; Farid Wahid DAHMANE, 'Les mesures prises par le Conseil de Sécurité contre les entités non-étatiques', African Journal of International and Comparative Law, vol. 11(2), June 1999. And see note 792, supra.
[797] UNCIO Documents, vol. 11, p. 19 (Doc. 943 (Engl.), III/5, 13 June 1945). And see Russell, supra, note 734, pp. 669-70 and 676.
[798] See: Bowett, supra, note 119, pp. 278 and 415; Kelsen, supra, note 737, p. 743.
[799] See: UNCIO Documents, vol. 18, p. 243 (Doc. WD 194 (Engl.), CO/83 (1), 5 June 1945); idem, vol. 17, p. 74 (Doc. WD 256 (Engl.), CO/107, 10 June 1945); idem, vol. 18, p. 244 (Doc. WD 330 (Engl.), CO/83 (2), 15 June 1945); idem, vol. 17, p. 153 (Doc. WD 442 (Engl.), CO/206, 5 Sept. 1945); idem, vol. 11, p. 234 (Doc. 1170 (Engl.), III/13, 23 June 1945).
[800] See Combacau, supra, note 725, pp. 150-51. Note that the basis for enforcement action in these cases, which include resolutions adopted against Iraq (1990) and Libya (1992-93), is not non-compliance with the Security Council decision per se, but rather the Council's assessment that such non-compliance constitutes a threat to the peace, breach of the peace or act of aggression (article 39). On this point, see Kelsen, supra, note 737, p. 294.
[801] See text accompanying note 769, supra.
[802] Acknowledgement: The seminar paper of a fellow student at the Graduate Institute of International Studies (Geneva) served as a useful introduction to the subject matter of this section: Sarah HEATHCOTE, 'The Nature of Forcible Measures under Article 42 of the Charter and the Legality of the Practice of 'Contracting Out' these Measures to Member States, Coalitions or Regional Arrangements' (1996).
[803] See text accompanying notes 213-14, supra.
[804] --as acknowledged by the UN itself. See: Agenda Supplement, supra, note 1, para. 77; Le Secrétaire général souligne le rôle majeur joué par l'ONU dans l'émergence des nouvelles règles du droit international (Service de l'information de l'ONU (Genève), Communiqué de presse SG/SM/95/63/Rev.1, 22 mars 1995), p. 6.
[805] See: Bowett, supra, note 119, p. 276; Seyersted, supra, note 110, pp. 129-30; White, supra, note 749, p. 106.
[806] See: SCR 82, S/1501, 25 June 1950; SCR 83, S/1511, 27 June 1950; SCR 84, S/1588, 7 July 1950.
[807] See, for example: SCR 678, 29 Nov. 1990, last pream. para.; SCR 794, 3 Dec. 1992, para. 10; SCR 929, 22 June 1994, para. 3; SCR 940, 31 July 1994, para. 4; SCR 1031, 15 Dec. 1995, last pream. para.; SCR 1088, 12 Dec. 1996, last pream. para.
[808] See SCR 816, 31 March 1993, pream. para. 6.
[809] See: Higgins, supra, note 771, p. 261; Frowein, supra, note 792, p. 614; Olivier PAYE, Sauve qui veut? (Bruxelles, Éditions Bruylant, 1996), p. 248.
[810] See: Eugene ROSTOW, 'Until What? Enforcement Action or Collective Self-Defense?', The American Journal of International Law, vol. 85(3), July 1991; Schachter, supra, note 737, pp. 459-61; Gaja, supra, note 732, pp. 44-45.
[811] Higgins has suggested that Security Council resolutions authorizing member states to use force for the purpose of ensuring compliance with mandatory economic sanctions can be based on article 41, like the sanctions themselves (supra, note 771, p. 258). This argument could be applied to peace enforcement where one holds that arms embargoes, a common feature of these operations, are also based on article 41. See note 756, supra. Yet, the argument, which basically involves an application of the doctrine of implied powers, must be rejected since the latter doctrine cannot lead to an increase of powers under the article (here, article 41) from which the additional powers are to be implied. I owe this point to my dissertation director, Professor Georges Abi-Saab.
[812] For the arguments against the applicability of article 48, see: Schachter, supra, note 737, p. 463; Bryde, supra, note 739, p. 652; Freudenschuss, supra, note 717, p. 525; text accompanying notes 745-46, supra.
[813] Paye mentions article 106 as a possible legal basis for permissive enforcement, assuming the provision is not obsolete. Supra, note 809, p. 252. In fact, as previously argued, the Security Council has at least implicitly determined that its authority under article 106 has terminated. See text accompanying notes 780-83, supra.
[814] See Paye, supra, note 809, pp. 250-51 and 253-54.
[815] See: Schachter, supra, note 737, pp. 459 and 461-62; Weston, supra, note 775, p. 522; Combacau, supra, note 725, p. 157.
[816] See: Bowett, supra, note 119, pp. 32-36 and 276-77; Goodrich, Hambro and Simons, supra, note 708, pp. 301 and 315; White, supra, note 749, pp. 104-08. For an opposing view, see: Frowein, supra, note 792, pp. 614-16.
[817] Article 53 has been identified by several commentators as a legal basis of NATO's involvement in Bosnia-Herzegovina, including the IFOR and SFOR peace enforcement operations. See: N.D. WHITE and Özlem ÜLGEN, 'The Security Council and the Decentralised Military Option: Constitutionality and Function', Netherlands International Law Review, vol. XLIV, issue 3, 1997, p. 389; James SUTTERLIN, The United Nations and the Maintenance of International Security (Westport, Connecticut, Praeger, 1995), p. 95.
[818] See the end of chapter 7, supra.
[819] See: Frowein, 'Article 42', supra, note 747, p. 634; White, supra, note 749, pp. 102-03; White and Ülgen, supra, note 817, generally (and pp. 381 and 411, more specifically); Schachter, supra, note 737, p. 462. Concerning Schachter's assertion that both articles 42 and 51 could serve as the legal basis of SCR 678 (29 Nov. 1990), authorizing military enforcement action against Iraq by a US-led coalition, see: Georges ABI-SAAB, commentaires (DANS Le chapitre VII de la Charte des Nations Unies, Paris, Pedone, 1995), p. 108; Frowein, p. 635. Those who have argued that article 42 cannot provide a legal basis for UN-authorized military enforcement operations include: Carl-August FLEISCHHAUER, 'Inducing Compliance' (IN United Nations Legal Order, ed. by O. Schachter and C. Joyner, Cambridge, Cambridge U. Press, 1995), p. 233; Freudenschuss, supra, note 717, p. 524; and former UN Secretary-General Boutros-Ghali (An Agenda for Peace , supra, note 4, paras. 42-43).
[820] Heathcote, supra, note 802, p. 22. And see Danesh SAROOSHI, The United Nations and the Development of Collective Security (Oxford, Clarendon Press, 1999), pp. 20 (1st limitation) and 248.
[821] See: Bothe, supra, note 737, pp. 73-74.
[822] For a broad interpretation of the term, see Mackinlay and Chopra, supra, note 4, p. 127.
[823] See Sarooshi, supra, note 820, pp. 20-32, 34-35, and 40-41.
[824] See the sources cited in relation to implied powers in note 737, supra.
[825] --i.e., the power to delegate the implementation of 'second degree' provisional measures. See text accompanying note 764, supra.
[826] See Akehurst, supra, note 708, p. 177.
[827] See: Pierre-Marie DUPUY, 'Le Maintien de la paix' (IN A Handbook on International Organizations, supra, note 766), pp. 599-603; An Agenda for Peace, supra, note 4, paras. 61-62. Note also that, in SCR 816 (31 March 1993), the Security Council implicitly categorized NATO, which was to enforce the Bosnian no-fly zone pursuant to this resolution, as a 'regional arrangement or agency' (see: pream. para. 6; op. para. 4). This was often disputed during the Cold War. For contrasting views on this issue, see: Bowett, supra, note 119, pp. 306-07; Akehurst, supra, note 708, pp. 179-80.
[828] See Sarooshi, supra, note 820, pp. 148 and 161-62.
[829] See Goodrich, Hambro, and Simons, supra, note 708, p. 315.
[830] See: Fischer, supra, note 776, pp. 711 and 713; Rein MÜLLERSON and David SCHEFFER, 'Legal Regulation of the Use of Force' (IN Beyond Confrontation, ed. by L.F. Damrosch, G.M. Danilenko, and R. Müllerson, Boulder, Co., Westview Press, 1995), p. 128. But see Frowein, 'Article 42', supra, note 747, p. 630.
[831] See Sarooshi, supra, note 820, p. 142.
[832] See: Akehurst, supra, note 708, p. 184; Christian WALTER, 'Security Council Control over Regional Action', Max Planck Yearbook of United Nations Law, vol. 1, 1997, p. 176.
[833] See: Weston, supra, note 775, pp. 525-26; SCR 678, 29 Nov. 1990, paras. 2 and 4.
[834] See Jules LOBEL and Michael RATNER, 'Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime', The American Journal of International Law, vol. 93(1), Jan. 1999.
[835] See: Jorri DUURSMA, 'Justifying NATO's Use of Force in Kosovo?', Leiden Journal of International Law, vol. 12(2), 1999; Bruno SIMMA, 'NATO, the UN and the Use of Force: Legal Aspects', European Journal of International Law, vol. 10(1), 1999; Antonio CASSESE, 'Ex iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?', European Journal of International Law, vol. 10(1), 1999.
[836] See: White and Ülgen, supra, note 817, pp. 381, 387 and 396-412; Lobel and Ratner, supra, note 834, pp. 141-42; SCR 940, 31 July 1994, paras. 4-8 and 13 (authorizing the 1994 military intervention in Haiti). Note, however, that these operations typically involved situations of modest strategic importance for the major powers. Lobel and Ratner, pp. 143-44.
[837] See Freudenschuss, supra, note 717, p. 526.
[838] See Mackinlay and Chopra, supra, note 4, p. 127. Note that in the preamble to the UN Charter, member states undertake 'to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest'.
[839] See: White and Ülgen, supra, note 817, pp. 387 and 410; Sarooshi, supra, note 820, pp. 155, 159-63, and 249-50.
[840] See: Mackinlay and Chopra, supra, note 4, p. 127; White, supra, note 749, pp. 103-04; Luigi CONDORELLI, 'Le Statut des forces de l'ONU et le droit international humanitaire', Rivista di Diritto Internazionale, vol. 78(4), 1995, p. 906; Gaja, supra, note 732, p. 46; White and Ülgen, supra, note 817, p. 387; Lobel and Ratner, supra, note 834, pp. 125, 127-29, and 142-44; Sarooshi, supra, note 820, pp. 44-46, 155-59, and 249-50.
[841] See text accompanying note 766, supra.
[842] See: chapter 6, paragraph accompanying note 693, supra; end of chapter 7, supra.
[843] See the final pages of the chapter. Note that, for the sake of argument, it is assumed here that the category of 'war' does indeed violate international law, leaving military sanctions alone at the end point of our spectrum.
[844] See: chapter 6, third paragraph of the 'Conclusion', supra; chapter 7, pp. 173-74, supra.
[845] See: Introduction, pp. 1-2, supra; chapter 1, pp. 16-17 and 20, supra.
[846] See chapter 3, 'UNITAF' section, supra, especially pp. 53-55 concerning the latter's policy of 'weapons management' as opposed to real disarmament. Note also that the cease-fire enforcement function of former Secretary-General Boutros-Ghali's 'peace-enforcement units' would, without more, also involve the preservation of the prevailing status quo.
[847] See chapter 1, p. 19, supra.
[848] As noted earlier, the United Nations Iraq-Kuwait Observation Mission (UNIKOM) does not have enforcement powers (text accompanying note 697, supra).
[849] See text accompanying note 697, supra.
[850] UN Charter, preamble.
[851] The Security Council Official Records, 15th - 19th years (1960-64) are the source of all Security Council documents listed in this section.
[852] Note that, as of the date of writing (January 1998), the fifth monthly report on SFOR operations (covering the period 22 April - 22 May 1997), in contrast to the other reports in the series, has not been published as a UN document. See section I B) of the Bibliography ('NATO Documents') for the reference for the fifth report.
[853] Many of the documents listed in this section, including all those for which no other source is indicated, were obtained from the NATO website: http://www.nato.int
[854] See note 852, at the beginning of section A) 3), supra.
[855] All OMRI publications listed in this section were obtained through the OMRI website: http://www.omri.cz.
[856] Obtained through the RFE/RL website: http://www.rferl.org.
[857] See note 855, supra.
[858] See note 855, supra.
[859] Citations to the Herald Tribune in the text indicate the news service(s) used for the article in question: Agence France Presse (AFP), The Associated Press (AP), International Herald Tribune (IHT), New York Times Service (NYT), Reuters, and Washington Post Service (WP).
[860] Also published in English as Atlantic News.
[861] Obtained through the OHR website: http://www.ohr.int.
[862] See note 855, supra.
[863] Obtained through the RFE/RL website: http://www.rferl.org.
[864] Obtained via e-mail subscription. Also available through the RFE/RL website: http://www.rferl.org/newsline/