Legal Problems Arising from the United Nations Military Operations in the Congo

374 Pages·1968·9.368 MB·English

by  R. Simmonds LL. B. (Birmingham), Ph. D. (Cantab.) (auth.)

Concepts concerning the nature and
purposes of international military for
ces ha\ 'e changed radicall y over the years
in the light ofa ctual UN experience. Thc
use ofs uch forces, was originally though t
of - as indicated in the only specific
Charter provisions relating to armed
forces (Articles 42-45) - in terms of
peace enforcement or for the purpose
of imposing sanctions. But only in Ko
rea has this type offorce been used un
der the auspices of the United Nations.
Subsequent Unitcd Nations Forces have
been more closely assimilated function
ally to other international agencies tra
ditionally utilized in pacific settlement
procedures: truce supervision teams,
observation groups, and other neutral
bodies for supervising the maintenance
of peace under cease-fire conditions.
In short, the emphasis has become one
of "peace- keeping" rather than "peace
enforcement" .
The book traces the earlier precedents
for UN military operations, particularly
those like UNOGIL and UNEF which
had created a pattern of procedures
and even of legal principles which had
enormous influence on the way in which
the Congo operations were conceh'ed
and executed. Dr Simmonds here pre
sents in one volume an analysis of the
legal problems arising from the Congo
operations. The work is clear and com
pellingly readable. No student of inter
national law and organization, however
well-informed, can afford to miss it.
Dr Sinunonds, a grandson of the late Dr Francis
Matthew Simmonds, M. D. (Edinburgh), was born
in 1935 in Accra (Ghana) and read law at the
Universities of Birmingham and Manchester and
thereafter took a doctorate degree in International
Law at the University of Cambridge. He was a
mem~r of the Ghana delegations to the Second
United Nations Conference on the Law of the Sea
in 1960 as well as to the Vienna Conference on
Diplomatic I ntercourse and Immunities in 1961. Dr
Simmonds is presently a member of the legal staff of
the World Health Organization in Geneva.
LEGAL PROBLEMS ARISING FROM THE
UNITED NATIONS MILITARY OPERATIONS IN
THE CONGO
LEGAL PROBLEMS ARISING FROM THE
UNITED NATIONS MILITARY OPERATIONS
IN THE CONGO
by
R. SIMMONDS
LL. B. (Birmingham), Ph. D. (Cantab.) Sometime Lecturer in International Law
in the University of Ife, Ibadan, Nigeria. Presently member of the Legal Staff of
the World Health Organization in Geneva.
MARTINUS NIJHOFF - THE HAGUE - 1968
ISBN 978-94-011-8523-3 ISBN 978-94-011-9267-5 (eBook)
DOl 10.1007/978-94-011-9267-5
© I968 by Martinus Nijhoff, The Hague, Netherlands
All rights reserved, including the right to translate or to
reproduce this book or parts thereof in any form
To
My Uncle
AKO ADJEr
M. Sc., LL. D. 0/ the Inner Temple, Barrister-at-Law
CONTENTS
Page
Abbreviations XI
Preface XIII
CHAPTER I: THE PRECEDENTS FOR UNITED NATIONS MILI-
TARY OPERATIONS I
I. The UN Action in Korea I
(a) Action by the Security Council 3
(b) The Unified Command 4
2. United Nations Truce Supervision Organisation in Palestine
(UNTSO) 9
3. United Nations Observation Group in Lebanon (UNOGIL) II
4. United Nations Emergency Force in the Middle East (UNEF) 14
(a) The constitutional basis of UNEF 18
(b) The role of UNEF 18
(c) Composition of UNEF 21
(d) Relations with Host State and Contributing States 21
5. Conclusions 22
CHAPTER II: THE HISTORICAL BACKGROUND TO THE CONGO
SITUATION 25
I. Historical background of Belgian administration 25
2. Events leading to independence 26
3. Independence and the breakdown of public order 30
CHAPTER III: THE FACTUAL CONTEXT WITHIN WHICH THE
BASIC RESOLUTIONS OF THE SECURITY COUNCIL AND GEN-
ERAL ASSEMBLY WERE MADE 34
I. The First Phase: 12 July 1960--31 December 1960 34
2. The Second Phase: 1 January 1961-31 January 1963 47
CHAPTER IV: CONSTITUTIONAL BASIS AND EFFECT OF THE
RESOLUTIONS MADE 58
I. Action by the Security Council -Creation of ONUC 58
(a) Instructions to States 66
(b) Instructions to non-State entities 67
VIII CONTENTS
2. The Resolutions of the General Assembly 68
3. The role of the Secretary-General under the Charter generally and
the specific resolutions 70
CHAPTER V: THE FUNCTIONS OF ONUC 79
1. To assist the Congolese Government in the restoration and mainte-
nance of law and order 79
2. To assist the Government in restoring and maintaining the terri
torial integrity and the political independence of the Republic
of the Congo 85
3. To prevent the occurrence of civil war in the Congo 86
4. To secure the withdrawal and evacuation from the Congo of all
foreign military, para-military and advisory personnel, not under
the United Nations Command, and all mercenaries 92
CHAPTER VI: THE PRINCIPLES APPLIED BY THE SECRETARY-
GENERAL TO THE OPERATIONS OF THE FORCE 96
1. The Principle of Non-Intervention 96
(a) The meaning of ' intervention" in general international law 97
(i) Forms of conduct comprised in the term' intervention" 98
(ii) The effect of a consent or invitation by the government
of the State 101
(iii) Effect of withdrawal of consent II3
(b) Specific instances in which the principle of non-intervention
became applicable to ONUC operations II7
(i) In relation to the movements for secession II9
(ii) In relation to the struggle for power within the Central
Government 125
2. The Principle of Self-Defence 127
3. The Right to Freedom of movement 130
CHAPTER VII: OPERATIONAL PROBLEMS CONNECTED WITH
THE UN FORCE 134
1. Methods of raising the Force 134
2. Relations between UN and Contributing States 141
(a) Composition of the Force 141
(b) Withdrawal of national contingents 142
( c) Logistical support 147
(d) Regulations governing the Force 152
(i) International status or character of the Force 152
(ii) Division of responsibilities between UN Commander and
national Commanders 154
(iii) Jurisdictional problems 156
Discipline 156
General immunities from jurisdiction of Host State 156
3. Command Structure 159
4. Strategic and political control 161
5. Applicability of the Laws of War 168
(a) The question of the compatibility of the concept of belliger
ency with the constitutional structure of the UN and the ap
plicability of the Law of War to military forces of the Organ-
isation 169
CONTENTS IX
(b) The functions of ONUC to which the Law of War applies as a
matter of law 174
(c) The Law of War as binding on ONUC as such 178
(i) Rules of customary law 178
(ii) Rules of conventional law 180
(d) Role of the C.I.C.R. in assuring the application of conventional
rules 184
(e) Practice of the Force in respect of the Geneva Conventions 187
(f) Steps taken by the United Nations 191
(g) Capacity of the ONUC Command to assume the obligations of
the Laws of War - The question of practical application 193
CHAPTER VIII: RELATIO~S BETWEEN THE UN AND THE
"HOST" STATE 197
I. Exclusiveness of UN authority over the Force 197
2. Status of Forces Agreements 203
(a) Status of ONUC prior to the conclusion of agreements 203
(b) The Status agreement with the Congo 207
3. Relations between the UN and Provincial Authorities 209
CHAPTER IX: RELATIO'KS BETWEEN THE UN AND MEMBER
STATES GEXERALLY 214
I. Expulsion of foreign military, para-military personnel, political
advisers and mercenaries 215
2. Unilateral assistance outside UN 219
3. Use of territories 222
4. Economic" Sanctions" 225
CHAPTER X: CLAIMS AND RESPONSIBILITY 229
1. Civil Claims 231
(a) Claims between the UN and the Congo 231
(b) Claims between the UN and Congolese Civilians 233
(i) Official acts 233
(ii) Non-official acts 235
2. Criminal Responsibility 235
(a) Claims made against the United Nations by States 238
CHAPTER XI: CIVILIAN RELIEF OPERATIONS 242
CHAPTER XII: FINANCING 246
1. The Budget Procedure 246
2. Apportionment of Expenses generally 247
3. Sources of Funds 248
(a) The Participating States 249
(b) Voluntary Contributions by other Member States 252
(c) Binding obligation on all UN Members 255
(i) The Method of Apportionment 256
(ii) Effect of apportionment 260
4. Practice followed in relation to O'KUC 264
5. Default of payment and the problem of arrears 267
6. Submission of the Finance Question to the I.e.]. 270
x CONTENTS
7. The Court's Opinion on the Finance Question 271
(a) Applicability of Article 17 272
(b) The Budget 273
(c) Expenses of the Organization 275
8. The question of Suspension 279
9. New Sources of Funds 284
CHAPTER XIII: CONCLUSIONS 288
APPENDIX 295
I. A "Basic Agreement" between the United Nations and the Con-
golese Government on the Operation of the Force 295
II. Agreement between the United Nations and the Republic of
the Congo Relating to the Legal Status, Facilities, Privileges and
Immunities of the United Nations Organization in the Congo 296
III. Charter of the United Nations and Statute of the International
Court of Justice 305
Bibliography 344
Index 351
ABBREVIATIONS
AJIL American Journal of International Law.
ANC Armee N ationale Congolaise
Annuaire Franc;ais Annuaire Franc;ais de Droit International
(1955- ).
BYIL British Yearbook of International Law.
Dept. State Bull. United States Department of State Bulletin.
EFTA European Free Trade Association.
FAO Food and Agriculture Organization
G.A. General Assembly of the United Nations.
I.C.J. International Court of Justice.
ICLQ International and Comparative Law Quarterly.
ILO International Labour Organisation.
Int. Concil. International Conciliation.
Int.Org. International Organization.
MACS Mixed Armistice Commissions.
NATO North Atlantic Treaty Organization.
Off. Rec. Official Records.
Off. Rec. G.A. Official Records of the General Assembly.
Off. Rec. S.C. Official Records of the Security Council.
ONUC United Nations Operations in the Congo.
PCIJ Permanent Court of International Justice.
Proceedings, ASIL Proceedings of the American Society of Inter-
national Law (1907- ).
Recueil des Cours Recueil des Cours de l' Academie de Droit Inter
national.
Repertory Repertory of Practice of United Nations Organs,
vols. 1-5 and Supplements.
S.C. Security Council of the United Nations.
S.C.O.R. Security Council Official Records.