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Commentary - Missions under United Nations auspices
Article 5 - Missions under United Nations auspices

Article 5 of Draft Additional Protocol III of 5 July 2000 had as its title, "Peace operations". This phrase prompted objections on the grounds that it could be interpreted as excluding the applicability of this provision to certain operations headed by or authorized by the United Nations Security Council under Chapter VII of the Charter. Some States thus proposed renaming Article 5 using the classic formulation of "peacekeeping operations", while others preferred operations placed "under United Nations auspices." The latter formulation was ultimately adopted.
Admittedly, the expression "missions under United Nations auspices" is not legally recognized; however, the travaux préparatoires tend to demonstrate that it is meant to cover the different generations of peacekeeping operations. It includes, therefore, operations that conform to the traditionally accepted meaning of peacekeeping, which essentially consists of the separation of parties to a conflict along a cease-fire line and follows three important basic principles: impartiality, consent of the parties to the conflict, and minimal recourse to force. It also comprises, however, the more complex operations that have been emerging since the end of the Cold War and involve a combination of activities of a military and a civil nature (for example, promoting reconstruction and the creation of institutions in societies devastated by war). Under these circumstances, it is not excluded that both peace making and peace enforcement operations are also covered.
It should be noted, however, that the scope of application of Article 5 remains limited to forces acting under the auspices of the United Nations. Contrary to the Draft Additional Protocol III of July 2000, this provision does not apply to missions conducted by, or under the auspices of, other universal or regional international organizations (such as NATO or ECOMOG).[52]
With regard to the substance, the United Nations, which is not formally party to the Geneva Conventions, is not authorized to use the emblems recognized by those Conventions and their Additional Protocols. However, when the Organization acts through the national armed forces of its Member States, there is no doubt that the medical services and religious personnel of those forces have the right to use the distinctive emblems – and also the obligation to respect them. These rules, which seek to improve the protection of victims of armed conflicts, are moreover explicitly acknowledged in Article 9, paragraph 7, of the UN Secretary-General’s Bulletin entitled “Observance by United Nations forces of international humanitarian law”. [53]
Article 5 does not seek to alter the general practice that medical and religious personnel of each contingent of an operation carried out under the auspices of the United Nations are free to use their customary emblem – the red cross for some, the red crescent for others. [54] The formulation of this provision leaves no doubt that it is purely permissive; it simply acknowledges the option to choose, for identification and protection purposes, either a single emblem from among those recognized by the 1949 Conventions or the red crystal.[55] The choice of this single emblem, however, remains subject to the approval of the States participating in the multinational force.
Article 5 does not specify the reasons that might prompt those responsible for a force placed under the auspices of the UN to opt for a common emblem for the entirety of its medical and religious personnel. This decision might result, for example, from considerations relating to the zone of operations, leading the force to use the traditional emblem of the host country – the one that is most familiar to the civilian population and a priori ensures greater respect from the parties to the conflict. The decision might also be affected by factors related to the composition of the multinational force, the choice depending on the emblem used by the majority of the troops that form the contingent.
In such situations, certain States accept that their medical and religious services – in a particular context – operate under an emblem other than the one they traditionally use. Where this involves the use of the red cross in place of the crescent (or vice-versa), few problems, if any, are likely to arise, these emblems being recognized by the universally accepted Geneva Conventions. It is conceivable, however, that the force might decide to use the red crystal where one or several troop-contributing States are not party to Additional Protocol III. Yet such a situation would not pose any legal difficulties because the consent of the troop-contributing States is required for the unification of their medical and religious services under the same distinctive emblem. Moreover, nothing prohibits a State from accepting, through a specific agreement with the United Nations, the use of the red crystal and considering itself bound by Additional Protocol III in a particular context.


Notes

52. This comment does not prevent armed forces participating in operations not under the auspices of the United Nations from using the red crystal as a national contingent.

53. Section 9.7 of the Bulletin reads, “The United Nations force shall in all circumstances respect the Red Cross and Red Crescent emblems. These emblems may not be employed except to indicate or to protect medical units and medical establishments, personnel and material. Any misuse of the Red Cross or Red Crescent emblems is prohibited.” (ST/SGB/1999/13, 6 August 1999).

54. Any other solution would moreover contradict Article 2, paragraph 3, which unambiguously indicates that Additional Protocol III does not intend to modify the conditions for use of the emblem.

55. In fact, Article 5 refers to the distinctive emblems mentioned in Articles 1 and 2. While the reference to one of the distinctive emblems mentioned in Article 2 is perfectly logical, the reference to Article 1 could appear redundant. The reason for this reference is the didactic purpose served by the fact that Article 1, paragraph 2, lists the emblems recognized by the Geneva Conventions of 1949.