Book Reviews

L. Condorelli, A.-M. La Rosa, and S. Scherrer (eds), Les Nations Unies et le droit international humanitaire : Actes du Colloque International à l'occasion du 50e anniversaire de l'ONU. Paris: Pedone, 1996.

This volume is a record of a three-day colloquium held in October 1995, jointly organized by the law faculty of the University of Geneva, the United Nations and the International Red Cross, and involving some 250 participants. It is an awkward mix of bilingual (French and English) riches, consisting of formal diplomatic speeches by high-level public officials, 15 thought-provoking academic papers by an impressive collection of eminent scholars and practitioners, more open-ended `debats' among the participants, and reflective `conclusions' by Dietrich Schindler, Georges Abi-Saab, Theodor Meron and Luigi Condorelli. After a formal opening plenary, the symposium was organized around three substantive sessions, the first describing the United Nations' role in the elaboration of international humanitarian law, the second canvassing the UN's implementation efforts, and the third addressing the extent to which UN forces are bound by that law. As Abi-Saab notes in his conclusion to the second session, this effort to compartmentalize what are in reality inextricably linked issues does not wholly succeed and results in some duplication of substantive coverage. Nonetheless, the `debats' and `conclusions' serve as useful bridges between the substantive papers and provide opportunities for synthesis. The result is an impressive survey of the United Nations' many achievements and even greater challenges with respect to international humanitarian law at the closing of the millennium.

In the opening introductory session, Cronelio Sommaruga, President of the International Committee of the Red Cross (ICRC), outlines what becomes a persistent theme for other participants. Sommaruga argues that the UN and the Red Cross each have distinctive roles and that it remains essential for the latter to maintain its neutrality as independent, apolitical guardian of the norms of international humanitarian law. Ralph Zacklin, from the UN Office of the Legal Counsel, develops this point further, suggesting that the UN has not been (and perhaps cannot be expected to be) equally adept as codifier, executor and subject of international humanitarian law. Zacklin points out that the UN, established to eradicate war, is the wrong place in which to seek the codification of the laws of war and that it is fortunate that the Red Cross provided the politically sheltered forum from which the four Geneva Conventions emerged. Although Zacklin surveys the normative impact of relevant General Assembly resolutions, he implies (as does Yves Sandoz) that the UN has had the greatest normative impact on humanitarian law through the indirect consequences of Security Council enforcement actions, including most recently, that organ's creation of ad hoc international war crimes tribunals.

In the first substantive session, Eric David, Mahnoush H. Arsanjani, Laurence Boisson de Chazournes, and Christian Dominicé outline other ways that UN bodies (from the General Assembly through the International Court of Justice (ICJ)) are today elaborating humanitarian law. The sheer abundance of examples of institutional practice that they present suggests that, however `indirect', the normative consequences of UN actions, even when these do not purport to be normative, are substantial and hard to ignore. Each of the essays in this section are illuminating case studies of modern institutional law-making. Nonetheless, several of these essays cast doubt on the ultimate value of the UN's normative impact. Arsanjani's contribution, describing the UN's efforts to protect its own blue helmets, the many reasons why UN personnel come under threat, and the distinct problems of UN military operations, also outlines the numerous ambiguities of its newly (and all too quickly) adopted Convention on the Safety of UN and Associated Personnel. Arsanjani concludes that this UN Convention may provide no more than a psychological shield, in the sense of morale booster, for UN personnel and she evinces considerable doubts about whether the possible incompatibilities between the Convention and existing international humanitarian law were properly considered. Her sobering essay will suggest to some readers that the negotiation of future treaties relating to humanitarian law should remain within Red Cross fora whenever possible. Similarly, Chazournes' (and later Hans-Peter Gasser's) critical examination of the normative impact of relevant Security Council resolutions regarding Somalia and the former Yugoslavia is not likely to please those who believe that humanitarian law's continuing legitimacy requires systematical, unconditional and even-handed application. Finally, Christian Dominicé's argument that Article 103 of the UN Charter does not entitle the Security Council to override `fundamental principles of humanity' reflected in international humanitarian law only raises concerns about whether the present Security Council agrees with his premises. Some might suggest that the Security Council, despite its humanitarian exceptions to its various sanctions regimes, has thus far demonstrated relatively little sensitivity to these principles, given the impact of its sanctions on innocent civilians within targeted countries and its passivity in the face of, for example, the Rwandan genocide of 1994.

The second session contains surveys of the diverse ways that the UN serves as a humanitarian law enforcement agency (especially through its role in peacekeeping). These essays, by Michael Bothe, Antonio Cassese, Laïty Kama, Hans-Peter Gasser, and Mario Bettati, are more positive in tone and are especially laudatory about the contributions to the progressive development of humanitarian law being made by the UN's ad hoc international criminal tribunals for the former Yugoslavia and Rwanda. Bothe provides a comprehensive survey of the `enforcement' efforts of distinct UN organs, from the ICJ through the Security Council, indicating the ways that such efforts promote the principles and purposes of the United Nations. It falls to Cassese and Kama, judges at the Yugoslav and Rwanda tribunals respectively, to make the not entirely convincing case that while neither tribunal is empowered to make new law (since this would violate the nullum crimen principle), both entities are nonetheless legitimately developing the law in `controversial' areas. Cassese surveys several areas of international humanitarian law where the Appellate Chamber of the Yugoslav tribunal has rendered, in his words, `legal findings that could be regarded, at least in some respects, as not fully consonant with the view upheld by the majority of the legal literature' (p. 235).

These judges' positive views of the role and impact of their respective tribunals echo the sentiments of many other participants here, including Zacklin, Gasser and Abi-Saab, and this reader at least wishes that participants had more thoroughly and critically examined the contributions of these tribunals, especially where, as in Rwanda, there is a simultaneous attempt to conduct national criminal prosecutions. While it is undoubtedly true that the existence of these tribunals has boosted the visibility of international humanitarian law, the contribution that they have made to the affirmation of the national rule of law within Rwanda (for example) is not obvious.¹ Given the fact that the first trial at the Yugoslav tribunal involved a fairly low-level perpetrator, it is striking that no participant challenged Cassese's affirmation that the mission of these tribunals is to punish the `grand' criminals emerging from recent conflicts (p. 304). Given such developments as South Africa's Truth and Reconciliation Commission, it seems odd that most participants here were content to presume that criminal punishment of war criminals is vital to national reconciliation. One wishes that the symposium had elicited some sparks of disagreement about what are, upon reflection, deeply contentious issues.

During this second session, Gasser, legal advisor to the Red Cross, returns to the theme of the `complementarity' between the `political' Security Council and the `neutral' Red Cross. Like others before him, Gasser presents the strong case in favour of continued independence and autonomy for the Red Cross. Interestingly, he reads Security Council decisions addressed to his organization, as in connection with the former Yugoslavia, not as inappropriate attempts to subordinate the Red Cross to UN authority, but as `appeals - welcome appeals - to the parties to an armed conflict to comply with their obligations under international humanitarian law, including obligations toward the ICRC and its delegates' (p. 279). Whether this is an objective reading of those resolutions or of the Security Council's contemporaneous intent - as opposed to the pious hopes of a vitally interested partisan - is left to the reader.

The third session, consisting of essays by Daphna Shraga, Jean De Courten, Claude Emanuelli and Françoise Hampson, canvasses the extent to which the UN itself is bound by international humanitarian law. Shraga, from the UN's office of legal counsel, presents a historical overview of the increasingly defunct distinction between peacekeeping and peace enforcement and concisely summarizes familiar debates over the applicability of international humanitarian law to each, indicating, for example, the problems that emerge for the application of traditional humanitarian law from UN command and control and the difficulties inherent to the proper categorization of conflicts (`international' or internal) in which the UN becomes involved. Shraga lays out the UN's current position with respect to the inapplicability of certain portions of humanitarian law, noting, for example, that the UN is in no sense an `occupying power' administering enemy territory (p. 326). For their part, Emmanuelli and Hampson present the general arguments in favour of applying humanitarian law to UN forces; they canvass the specific rules and principles that ought to be applicable depending on the nature of the particular UN operation. In his conclusions to this section, Theodore Meron is critical of the UN's existing approach to international humanitarian law (whereby UN forces are said to adhere only to the `principles and spirit' of that law). Meron argues that `there is a growing consensus on the proposition that the United Nations must comply or try to ensure compliance with international humanitarian law in all cases of use of armed force in armed conflicts, whether by military formations acting under United Nations control or authorized by the United Nations' (p. 444). To this end, he, along with Abi-Saab, propose that the UN announce instead that it adheres `mutatis mutandis' to the principal conventions and protocols.

Although the essays in this collection provide a useful compendium of the state of the law on this rapidly developing topic, non-specialists might be a bit disappointed by the relatively narrow approach taken. Few participants mention, much less analyse, the possibility of overlap (or conflict) between the issues addressed and human rights regimes, for example. Yet narrowness has its own rewards. For readers of such classic works in the field as Derek Bowett's United Nations Forces (whose conclusions as to the applicability of humanitarian law to UN forces are similar to Meron's), this volume serves notice of how far the UN has come in a relatively short period of time. And despite the inevitable shortcomings of the multi-authored symposium format, this collection of essays manages to present a consistent narrative. It tells the fascinating story of how one intergovernmental organization, established to ban war, came to realize that it needed to regulate it and how another non-governmental organization, long involved in a lonely struggle to defend the integrity of international humanitarian law, now wrestles with `complementarity'.

José E. Alvarez
University of Michigan Law School

1 For an interesting discussion of the `anomalies of inversion' that may result when international prosecutions are accorded `primacy' over national proceedings, see, e.g., Morris, `The Trials of Concurrent Jurisdiction: The Case of Rwanda', 7 Duke Journal of Comp. & Int'l L. (1997) 319.

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