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A NATO perspective on applicability and application of IHL to multinational forces

Published online by Cambridge University Press:  30 July 2014

Extract

Questions of the applicability and application of international humanitarian law (IHL) to multinational forces are of central interest to the North Atlantic Treaty Organisation (NATO, also referred to as ‘the Alliance’ or ‘the Organisation’). Far from being incidental, multinational military coordination is the Organisation's raison d’être and the driving concept behind its methods, history and operations. Since the end of the Cold War, it has conducted a series of major multinational military operations – in and around the Balkans, Afghanistan, Libya and elsewhere – in which questions of the application of IHL have inevitably arisen.

Type
Research Article
Copyright
Copyright © icrc 2014 

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References

1 Although not an issue to date, this expectation could be put to the test if NATO were to conduct military operations involving active participation by states with less robust training programs and traditions of compliance with IHL.

2 Note, in this regard, that individual Allies had at times sharply differing views regarding the legal basis for conducting Operation Allied Force (the 1999 NATO air campaign in the context of the Kosovo conflict). It was unnecessary for the Alliance to agree on a specific legal basis, however, because there was no disagreement on the lawfulness of the campaign or on the ROE to govern its conduct.

3 See also letter of 23 January 2012 from the NATO legal adviser to the chair of the International Commission of Inquiry on Libya, in which NATO accepted that IHL was the lex specialis applicable to armed conflict and, by implication, the legal standard against which its actions would be tested in the element of NATO's Operation Unified Protector aimed at preventing attacks on civilians in Libya. Human Rights Council, Report of the International Commission of Inquiry on Libya, UN Doc. A/HRC/19/68, 2 March 2012, Annex II.

4 Note in this context the determination of the International Criminal Court's Office of the Prosecutor that it had no information to suggest that the actions of the North Atlantic Council in approving OUP, or of the operational commander in carrying out that operation, raised issues of compliance with legal obligations falling within its jurisdiction. While suggesting the theoretical possibility that participating states might bear individual responsibility for the conduct of specific strikes, the Office of the Prosecutor cited no evidence suggesting that any misconduct had in fact occurred. Office of the Prosecutor of the International Criminal Court, Third Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1970 (2011), 16 May 2012, paras. 57 and 58.

5 While non-NATO participating states do not have a formal decision-making role, they are full participants in ‘NATO+N’ meetings at which operational issues are discussed and proposed decisions are developed, and retain the same freedom to cease participating as they exercised in joining the operation.