Requerimientos de la disciplina y la sociedad
PERSONALES TP 1 Trabajo en equipo
2.4. CONSTRUCCION DEL MODELO TEORICO DE PERFIL PROFESIONAL POR COMPETENCIAS PARA LA FORMACION DEL INGENIERO QUIMICO
1.8.1 The importance of legal status for this study
Peace support operations involve several international actors, in particular the international organization that establishes the operation, the states that contribute troops to the operation and the host state. TheUNdoes not have armed forces of its own and relies on member states to contribute troops to a specific operation.NATOpeace support operations also consist of national contingents contributed by member and non-member states. The relationship between the different international actors – in other words, the legal status of peace support operations – is an important element to determine the re- sponsible entity for conduct of an operation and possible breaches of inter- national humanitarian law. Command and control relationships in particular are important. Attribution of conduct in international law is based to a large extent on the concept of control or authority.121In military terms, the posses-
sion of control or authority is expressed in the term ‘command and control’. Command in NATO terms for example means the “authority vested in an individual of the armed forces for the direction, coordination, and control of military forces.”122 For this reason the regulation of command is of crucial
importance.123The
UNSecretary-General reaffirmed the relationship between command and control and responsibility in 1996:
120 K. Annan,UN Peacekeeping Operations and Cooperation with NATO, 41 NATO Review 3 (1993). 121 Seee.g.P. Klein, La Responsabilité des Organisations Internationales dans les Ordres Juridiques Internes et en Droit des Gens 378 (1998); M. Perez Gonzalez,Les Organisations Internationales et le Droit de la Responsabilité, 92 Revue Générale de Droit International Public 63 (1988), at 83.
122 NATO Glossary of terms and Definitions, AAP-6 (V), 2003, at 2-C-8. 123 Seee.g.K. Wellens, Remedies against International Organisations 100 (2002).
The international responsibility of the United Nations for combat-related activities of United Nations forces is premised on the assumption that the operation in question is under the exclusive command and control of the United Nations.124
1.8.2 Legal status of United Nations peace support operations
In the absence of a pre-determined legal framework forUNpeace support operations, setting up a new operation requiresad hocmeasures. A number of instruments are adopted or concluded to regulate the legal status of each specific operation.125Over time the content of these instruments has devel-
oped into a more or less uniform pattern. A peace support operation is estab- lished by a Security Council or General Assembly resolution that defines the mandate of the operation, the so-called ‘enabling resolution’. The resolution usually makes reference to a more detailed plan prepared by the Secretary- General. Peace support operations are composed of national contingents contributed by member states. The Secretary-General is responsible for finding the necessary participants through informal consultations. He consults primar- ily with the Security Council about offers he receives. If the Council gives its consent, the agreement on the supply of troops is recorded in an exchange of letters between the Secretary-General and the government in question.
The composition of a peace support operation of military personnel be- longing to states requires detailed regulation of their legal status.126 In this
regard the Secretary-General stated in his second report on the United Nations Emergency Force that a “problem of first instance, therefore, was that of harmonizing the international character of the Force with the fact of its being composed of national contingents.”127
Conditions under which a contingent will be contributed are agreed on between theUNand each participating state. In some cases these are informal written or even oral agreements but in other cases they are formalized.128
The Secretary-General has developed a draft model agreement based on established practice and drawing extensively on previous participating state
124 UN Doc. A/51/389 of 20 September 1996, para. 17. 125 EPIL 1110 (1992).
126 P. Dewast,Quelques Aspects du Statut des “Casques Bleus”, 81 Revue Générale de Droit International Public 1007 (1977), at 1030.
127 UN Doc. A/3943 of 9 October 1958, para. 127.
128 Seee.g.agreement between the United Nations and India concerning the service with the United Nations Emergency Force of 14 August 1957, UNTS 3968 (1957); agreement between the United Nations and Denmark concerning service with the United Nations Peace-Keeping force in Cyprus of 21 February 1966, UNTS 8108 (1966).
agreements. The model is intended to serve as a basis for drafting individual agreements.129
A participating state agreement refers to the Status of Forces Agreement (SOFA) concluded between theUNand the host state, which defines the relation between the force and the host state.130 In principle such an agreement is
concluded for every peace support operation. In practice aSOFAis not always concluded or is concluded after a certain period.131 An agreement was not
concluded in the case of the United Nations Operation in Somalia, for example, because there was no government with which to negotiate an agreement. In the United Nations Mission in Western Sahara (MINURSO) there was no agree- ment with Morocco until a year after the force deployed. Until 1990 the legal situation was very unclear in the absence of an agreement. Suy states that in this case it is generally accepted that principles laid down in previous agree- ments constitute general principles of law that are applicable.132In 1990 the
Secretary-General prepared a model SOFAbased on established practice.133
In 1992 the General Assembly recommended that pending the conclusion of aSOFA, the model would apply provisionally.134This arrangement was ap-
plied for example in the United Nations Mission in Ethiopia and Eritrea until theUNand Ethiopia signed an agreement on 23 March 2001.135
Forces contributed to aUNoperation are incorporated into the organiza- tion.136The participating state agreement, together with the ‘Transfer of Author-
ity’ (TOA), integrates the contingent into the organizational apparatus of the
UN. The troop contributing state gives its contingent instructions to serve the
UN.137The operations are subsidiary organs of the main organ by which they
have been established. Operations established by the General Assembly are subsidiary organs under Article 22 of theUNCharter and operations estab- lished by the Security Council are subsidiary organs under Article 29. Their legal personality is identified with that of the United Nations. The personnel of the force remain in their national service but are for the period of their
129 Model Agreement between the United Nations and Member States Contributing Personnel and Equipment to United Nations Peace-keeping Operations of 23 May 1991, UN Doc. A/ 46/185.
130 UN Doc. A/46/185, para. 4.
131 J-M. Thouvenin,Le Statut des Forces de Maintien de la Paix des Nations Unies, 3 International Law Forum 105 (2001), at 106.
132 E. Suy,Legal Aspects of UN Peace-keeping Operations, 35 Netherlands International Law Review 318 (1988), at 320. See also EPIL 1115 (1992).
133 Model Status-of-Forces-Agreement for Peace-keeping Operations of 9 October 1990, UN Doc. A/45/594.
134 General Assembly Resolution 52/12 B of 9 January 1998, UN Doc. A/RES/52/12 B, para. 7.
135 Bijlage Handelingen TK, 2000-01, 22831, 15.
136 N. Quoc Dinh, P. Daillier & A. Pellet,supranote 23, at 969.
137 M. Bothe, Streitkräfte Internationaler Organisationen: Zugleich ein Beitrag zu völkerrecht- lichen Grundfragen der Anwesenheit fremder Truppen 44 (1968).
assignment international personnel. This is the model that was used for the Emergency Force and has been used ever since.138 The Secretary-General
in his report on the Emergency Force called this arrangement an “effective marriage of national military service with international function.”139 The
International Court of Justice in theCertain Expensescase affirmed that the United Nations Operation in the Congo was a subsidiary organ of the Security Council. It stated in relation toONUCthat:
The Charter does not forbid the Security Council to act through instruments of its choice: under Article 29 it ‘may establish such organs as it deems necessary for the performance of its functions’.140
The Model Participating State Agreement refers to the status agreement to affirm the international nature of the operation as a subsidiary organ of the
UN.141It also states that the functions of the operation are exclusively inter-
national in character and that the personnel made available by the participating state shall regulate their conduct with the interests of theUNonly in view.142
This is the same language as used in previous agreements with individual participating states.143
While assigned to a peace support operation, military personnel of national contingents comprise an integral part thereof.144 The
UN has the power to take decisions concerning operational activities and activities concerning third parties. The Secretary-General has full authority over the deployment, organiza- tion, conduct and direction of the operation, including the personnel made available by the participating states, in close coordination with the Security Council. Seyersted states that the “substantive (legislative and administrative)
138 For a description of the status under international law of the Emergency Force see G. Rosner, The United Nations Emergency Force 142-157 (1963).
139 UN Doc. A/3943 of 9 October 1958, para. 128. 140Supranote 24, at 176.
141 UN Doc. A/46/185 of 23 May 1991, para 4. 142Id.para. 9.
143 Seee.g.Agreement between the United Nations and Denmark concerning service with the United Nations Emergency Force of 16 July 1957, UNTS 3959 (1957); Agreement between the United Nations and Canada concerning service with the United Nations Peace-keeping Force in Cyprus of 21 February 1966, UNTS 8107 (1966).
144 See Legal Status of Members of the National Military Contingents Serving in United Nations Peacekeeping Operations, 1996 UNJY 450. The status of military personnel in the United Nations Operation in the former Yugoslavia has also been analysed by the International Criminal Tribunal for the former Yugoslavia in the context of the question who has to give permission for them to testify. The Appeals Chamber has held in this regard that an officer “is present in the former Yugoslavia as a member of an international armed force re- sponsible for maintaining or enforcing peace and not qua member of the national military structure.”Prosecutorv.Tihomir Blaskicˇ,Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Case No. IT-95-14-AR108 bis, A. Ch., 2 October 1997.
jurisdiction in operational matters – and this is the most important – is vested in the Organization.”145 The participating states however retain a limited
number of powers over the troops they contribute. These powers are limited to administrative authority, including promotion and pay. Participating states also retain criminal jurisdiction over the troops they contribute. This is legally necessary to the extent that the United Nations has no law enforcement and judicial organs of its own. It is also politically necessary because participating states require it as a condition for contributing troops. The Secretary-General affirmed in his 1958 report on the Emergency Force that the policy of exclusive jurisdiction of the participating state “obviously, makes easier the decision of States to contribute troops from their armed forces.”146
The peace support operation’s status as a subsidiary organ of the Security Council or General Assembly gives it privileges and immunities related to those of the UN.147 It also results in exclusive
UN authority to protect the rights of the operation and its personnel.148
1.8.3 Military command and control over United Nations peace support operations
In the field, military command over a peace support operation is exercised on behalf of the Secretary-General by the Force Commander (FC) who is usually appointed by the Secretary-General.149He is responsible only to the Secretary-
General and, through the chain of command, exercises command over con- tingents. Since the inclusion in peace support operations of large civilian elements, the practice has been to appoint a Special Representative of the Secretary-General (SRSG) who has authority over the civilian as well as military
elements. The Special Representative, or in his absence the Force Commander, is the Head of Mission. According to the model participating state agreement, the authority of the Secretary-General in the field “shall be exercised by the Head of Mission, who shall be responsible to the Secretary-General.”150 In
practice, the division of responsibilities between theSRSGand theFCis arranged in an internal document.151
The level of command and control conferred on the UN is not easy to express in definite terms. TheUNdoes not have agreed terms to designate
145 F. Seyersted, United Nations Forces in the Law of Peace and War 97 (1966). 146 UN Doc. A/3943 of 9 October 1958, para. 136.
147 UN Doc. A/45/594 of 9 October 1990, para. 15. 148 F. Seyersted,supranote 145, at 112-117.
149 H. McCoubrey & N. White, The Blue Helmets: Legal Regulation of United Nations Military Operations 142 (1996).
150 UN Doc. A/46/185, para. 7.
151 Seee.g.in relation to the United Nations Mission in Ethiopia and Eritrea Bijlage Handelingen II, 2000-01, 22831, 10, para. 12.
levels of command and control such as for example NATO.152 In principle
the level of command conferred on theUN FCis set out in the participating state agreement and/or transfer of authority (the national order conferring command on theUN), and may vary. The use of terms in theTOAis connected to, and varies with, national use of terms.
The German government for example referred toUNcommand over Ger- man troops in the United Nations Operation in the former Yugoslavia as ‘operational control’,153a term with a distinct meaning in
NATOterminology. The Dutch government referred toUNcommand over Dutch troops in the same
operation as ‘operational command’,154 though there is no clear indication
that the Dutch government granted different powers over its contingent than the German government over its contingent. It is certain that participating states always retain full command, in other words the authority to withdraw the troops.
The Secretary-General presented a report in 1994 in relation to command and control overUNpeace support operations. This report states that:
In general, United Nations command is not full command and is closer in meaning to the generally recognized military concept of “operational command”. It involves the full authority to issue operational directives within the limits of (1) a specific mandate of the Security Council; (2) an agreed period of time, with the stipulation
152 The North Atlantic Treaty Organization distinguishes the following levels of command and control in the NATO Glossary of Terms and Definitions, AAP-6 (V), modified version, 7 August 2000:
Full command
The military authority and responsibility of a superior officer to issue orders to subordinates. It covers every aspect of military operations and exists only within national services. Operational Command (OPCOM)
The authority granted to a commander to assign missions or tasks to subordinate com- manders, to deploy units, to reassign forces, and to retain or delegate operational and/or tactical control as may be deemed necessary. It does not of itself include responsibility for administration or logistics. May also be used to denote the forces assigned to a commander. Operational control (OPCON)
The authority delegated to a commander to direct forces assigned so that the commander may accomplish specific missions or tasks which are usually limited by function, time, or location; to deploy units concerned, and to retain or assign tactical control of those units. It does not include authority to assign separate employment of components of the units concerned. Neither does it, of itself, include administrative or logistic control.
Tactical command (TACOM)
The authority delegated to a commander to assign tasks to forces under his command for the accomplishment of the mission assigned by higher authority.
Tactical control (TACON)
The detailed and, usually, local direction and control of movements or manoeuvres neces- sary to accomplish missions or tasks assigned.
153 Bulletin 32 of 23 April 1993, cited in BverGE 90, 286, at 311. 154 Handelingen II 1994-95, p. 5987.
that an earlier withdrawal requires adequate prior notification; and (3) a specific geographical range (the mission area as a whole).155
According to the Secretary-General, it is clearly impermissible for contingent commanders to be instructed by national authorities to depart fromUNpolicies, or to refuse to carry out orders.156
Illustrative of the confusion in this area is that only a year after the pre- sentation of the Secretary-General’s report, the Special Committee on Peace- keeping Operations stated that “the authority of theUNForce Commander
is based on the concept of operational control.”157
In practice, the actual level of UN command, whatever the term used,
depends to a certain extent on political factors. It is a compromise between the desire for unity of command and legitimate interests of the participating states.158This compromise can for example be institutionalized by appointing
officers from participating states to the staff of an operation.159
Of much greater concern is that in certain cases participating states do not respect more or less formal agreements relating to command and control. There are reports of cases in which commanders of national contingents counter- manded orders of aUNcommander or where national authorities bypassed the chain of command. The Secretary-General for example states that during the United Nations Operation in Somalia, while some contingents were os- tensibly part of the operation, they were in fact consulting first with their national capitals.160Similar problems occurred in the United Nations Opera-
tion in the former Yugoslavia. There are reports that then President Chirac of France bypassed UNcommanders on several occasions. United Nations commander Rose gives a number of other examples in his account of the operation.161A continuing question is whether or not the Dutch government
directly gave orders to the Dutch contingent in Srebrenica in 1995, which the government denies.162There were reports in September 2000 that the Nigerian
contingent in the United Nations Mission in Sierra Leone ignored orders from
155 UN Doc. A/49/681 of 21 November 1994, para. 6. 156Id.para. 7.
157 Report of the Special Committee on Peace-keeping Operations of 22 June 1995, UN Doc. A/.50/230, para. 53. The Committee also states that “it would be useful for the Department of Peacekeeping Operations, in co-operation with member States, to reach an agreed definition of the different kinds of command relationships applicable to peacekeeping operations.”, para. 54.
158 Interview with a senior official in the United Nations Department of Peacekeeping Opera- tions of 18 September 2002.
159 Seee.g.S. Gordon,Icarus Rising and Falling: The Evolution of UN Command and Control Structures, in D. Gordon & F. Toase (Eds.), Aspects of Peacekeeping 19 (2001).
160 United Nations, The United Nations and Somalia 1992-1996 86 (1996). See also L. Ahlquist (Ed.), Co-operation, Command and Control in UN Peace-keeping Operations (1996). 161 M. Rose, Fighting for Peace 85, 116 (1998).
the Indian Force Commander.163In general, as these examples illustrate, inter-
vention by national authorities is more frequent in a volatile environment.
1.8.4 Legal status of North Atlantic Treaty Organization peace support operations
In the case ofNATOpeace support operations the legal status of each individual operation is specified in several instruments. These operations have differed in legal basis, scale and other respects, but proven structures, procedures and command and control arrangements in the organization have been discussed.