United Nations forces
The Charter of the United Nations envisaged that the Members of the United Nations would undertake to make available forces which the Security Council might utilize for the maintenance of international peace and security. The Military Staff Committee, established pursuant to Article 47, was to be ‘responsible under the Security Council for the strategic direction of armed forces placed at the disposal of the Security Council’. Apparently it was contemplated that the Military Staff Committee, composed of the chiefs of staff of the permanent members of the Security Council or their representatives, would act as combined chiefs of staff to the Security Council, which would, in the event of enforcement action under Chapter VII, be responsible for that type of politico-military leadership exercised by the leaders of the principal powers of the United Nations during the Second World War. The failure of the Members of the United Nations to agree to make forces available on the call of the Security Council has rendered the deliberations of the Military Staff Committee on the structure of command of little more than academic interest. The forces which are fighting under the aegis of the United
Nations in Korea occupy a status for which it is difficult to find any explicit provision in the Charter. In view of the fundamental political differences which have made action by the Security Council virtually impossible, it is probable that any future military commands having a United Nations character will be constituted in conformity with the General Assembly’s ‘Uniting for Peace’ Resolution.
Immediately after the hostilities in Korea began, the Security Council recommended that members of the United Nations furnish assistance to the Republic of Korea in repelling the armed attack from the north. The resolutions of 25 and 27 June 19 5 0 were followed by that of 7 July, which recommended
‘that all Members providing military forces and other assistance pursuant to the aforesaid Security Council resolutions make such forces and other assistance available to a unified command under the United States;’
and requested that the United States designate the commander of such forces and furnish it reports of the action taken under the unified command. The following day, the President of the United States designated General Douglas MacArthur as ‘Commanding General of the military forces which the members of the United Nations place under the unified command of the United States’. The possible ambiguity of the term ‘unified command of the United States’, which might indicate that the Unified Command was a separate entity subordinate to the United States Government, has been resolved by subsequent practice, which clearly indicates that the Unified Command is the United States itself. The actual international field force, of which General MacArthur was the first Commander in Chief, is designated the ‘United Nations Command’.
The hostilities in Korea have been conducted without military direction from the United Nations and its organs and with only indirect political guidance from that organization. Discussions in the Security Council and in the General Assembly of purported violations of the law of war, of the armistice negotiations, of prisoner of war repatriation, and of the relief of the civilian population in Korea have not led to directives to the Unified Command concerning the resolution of these matters. Formally established relationships between the Unified Command and the United Nations are for all practical purposes confined to the periodic reports furnished in accordance with the Security Council’s request. Although gratifying as a form of direct participation in the Korean action by a United Nations organ, the establishment of the United Nations Korean Reconstruction Agency as a subsidiary organ of the General Assembly with responsibilities for relief and rehabilitation has posed the problem of working out its relationships with the Unified Command and the United Nations Command, themselves apparently not organs of the United Nations, and with other agencies in Korea.
The United States in its character as the Unified Command has been required to enter into a number of international agreements. No fixed form of describing the role of that country runs through these documents. Agreements with several countries concerning the logistical support of their forces in Korea and related matters stated that they were concluded by the United States, ‘the executive agent of the United Nations Forces in Korea’. However, the United States had never been made an ‘agent’ of the United Nations, and the designation is difficult to reconcile with the actual status of the United Nations Command, since it would appear to indicate that the state was acting as an agent for one of its subordinate forces in the field. Agreements on economic matters have also been concluded by the United States with the Republic of Korea, and the more recent of these correctly states that one of the parties is ‘the United States of America acting pursuant to the resolutions of the Security Council of the United Nations of July 7, 1950 and July 31, 1950 (hereinafter referred to as the Unified Command)’.
The military structure established pursuant to the Security Council’s resolution of 7 July 1950 may thus be seen to have its summit in the United States as the Unified Command. Since the Unified Command was not created in the manner envisaged by Article 29 of the Charter, it is not an organ of the United Nations, and for the same reason the forces fighting in Korea lack that character. The ‘recommendation’ of the Security Council that the Members of the Organization assist the Republic of Korea in repelling the armed attack against it and that all the states providing forces and other assistance make them available to a unified command of itself imposed no duties and granted no authority, notwithstanding a reference in a later resolution of the Council to ‘the responsibilities being carried out by the Unified Command on behalf of the Security Council’.
In so far as purely military matters are concerned, the structure of command for the Korean action resembles that employed in the occupation of Japan. In both cases, a single state was allowed to act in the name of an international organization, which did not, however, exercise any control over actual military operations. A commander appointed by that state in turn commanded national contingents made available to the international command. It must be observed that the states participating in the Korean action, which include non-members of the United Nations, have not themselves banded together in any form of international organization but rather have, by bilateral arrangements with the United States, placed elements of their forces under United States command. The resulting force, although endowed with the name and the flag of the United Nations, cannot in strict law be said to comprise United Nations troops, except if it is understood that the command takes its United Nations character only from its formation in conformity with recommendations of that Organization. So, similarly, the expression ‘United Nations action’ is, while an acceptable term of political terminology, somewhat misleading in a legal context unless it is accepted as an element of its definition that it refers to action recommended as well as directed by the United Nations. These conclusions do not deny the international character ofthe action or the forces which carry it on nor suggest any impropriety in the Security Council’s authorizing forces to act when it is precluded from calling upon any troops of its own. They do, however, logically entail that the acts of the Unified Command or the United Nations Command are not the acts of the United Nations itself.
This last point has considerable bearing upon the responsibilities imposed by the law of war. For a variety of purposes, it is necessary to ask what juridical person is responsible for the custody of prisoners of war, for the occupation of territory, and for compliance with the law of war in general. While these questions may more properly be considered in the context of the bearing of the law of war on international military commands, reference may be made here to the handling of two alleged violations of neutral rights during the Korean conflict. When the Soviet Foreign Minister called to the attention of the United States Ambassador in Moscow an aeroplane incident which had taken place off Korea, the Ambassador refused to receive his note of protest on the ground that, the action having been taken by United Nations forces, the protest should have been directed to the Security Council. In view of the relationship which actually prevailed between that organ and the Unified Command, which involved no control by the former over the actions of the latter, it is difficult to see how the Security Council could be said to have any responsibility under law for the matter, although it would not have been beyond its competence to consider the Soviet protest. On another occasion, when American forces serving in the United Nations Command violated the Soviet frontier, the United States quite properly reported the matter to the Security Council and expressed its readiness to pay damages.
-  For an interesting instance of the creation of international forces by a commission of the Leagueof Nations, see First Report by the Commission for the Administration of the Territory of Leticia,3 September 1933, League of Nations Official Journal, 1934, pp. 21—25.
-  Article 43.
-  See General Principles Governing the Organization of the Armed Forces Made Available to theSecurity Council by Member Nations of the United Nations: Report by the Military Staff Committee,in United Nations Yearbook, 1946—7, pp. 424 ff.
-  Resolution 377 (V), United Nations General Assembly, Official Records, Fifth Session, SupplementNo. 20 (U.N. Doc. A/1775), p. 10.
-  U.N. Doc. S/1501, United Nations Security Council, Official Records, Fifth Year, 473rdMeeting,pp. 7, 13—14; U.N. Doc. S/1511, United Nations Security Council, Official Records, Fifth Year, 474thMeeting, p. 4.
-  U.N. Doc. S/1588, text in United Nations General Assembly, Official Records, Fifth Session,Supplement No. 2 (U.N. Doc. A/1361), p. 25.
-  Statement by the President, 8 July 1950, in United States Policy in the Korean Crisis (Departmentof State Publication 3922, 1950), p. 67.
-  They are periodically reprinted in D.S.B.
-  Resolution 410 (V), United Nations General Assembly, Official Records, Fifth Session, SupplementNo. 20 (U.N. Doc. A/1775), p. 31.
-  On 18 July 1951, the United States Department of State announced the conclusion of anagreement between the United States, in its capacity as the Unified Command, and U.N.K.R.A.concerning responsibility for reliefand economic aid in Korea during hostilities and subsequent thereto(D.S.B. 25 (1951), p. 232). A United Nations Commission for the Unification and Rehabilitation ofKorea was also placed in Korea (Resolution 376 (V), United Nations General Assembly, Official Records,Fifth Session, Supplement No. 20 (U.N. Doc. A/1775), p. 9).
-  Agreement between the Government of the United States of America and the Government of theKingdom of Sweden Concerning Participation of a Swedish Red Cross Field Hospital in the UnitedNations Operations in Korea, T.I.A.S. 2268; Agreement between the Government of the United Statesof America and the Government of the Union of South Africa Concerning Participation of the Forcesof the Union of South Africa in United Nations Operations in Korea, 24 June 1952, in D.S.B. 27(1952), p. 106.
-  Agreement between the Government of the United States and the Government of the Republicof Korea on Expenditures by United Nations Forces, 28 July 1950, in D.S.B. 23 (1950), p. 734;Economic Co-ordination Agreement between the United States and Korea, 24 May 1952, in D.S.B.26 (1952), p. 943. In seeking investigation by the International Committee of the Red Cross of germwarfare charges, the Secretary of State of the United States made the request in the name of ‘the UnitedStates Government as the Unified Command’ (D.S.B. 26 (1952), p. 452).
-  Security Council Resolution of 31 July 1950, U.N. Doc. S/1567, United Nations SecurityCouncil, Official Records, Fifth Year, 479th Meeting, p. 3.
-  Until July 1952, when it was announced in the House of Commons that a deputy chief of staffrepresenting the Commonwealth would be added to the staff of the Commander in Chief, UnitedNations Command (Official Report, 1 July 1952, vol. 503, col. 250), that staff had been composedentirely of United States officers.
-  The forces of the Republic of Korea, which is not a member of the United Nations, were placedunder the Unified Command by President Rhee on 15 July 1950 (D.S.B. 23 (1950), p. 206). Thecontention could be made that forces of a non-member are not, strictly speaking, subordinated to theUnited States as the Unified Command but to the United States in its sovereign capacity, since onlyMembers of the United Nations were invited to furnish troops to the Unified Command. Even if thisview were to be adopted, the distinction would appear to be without practical consequences. Italy,similarly a non-member ofthe United Nations, has furnished a non-military Red Cross hospital, whichis serving both military and civilian patients in Korea (D.S.B. 25 (1951), p. 960).
-  By the resolution of the Security Council of 7 July 1950.
-  Kelsen, Recent Trends in the Law ofthe United Nations (1951), p. 940.
-  Ibid., p. 937.
-  D.S.B. 23 (1950), p. 454. The United States Representative in the General Assembly on 27November 1950 suggested similarly that such complaints might more properly be brought to theattention of the Security Council (United Nations General Assembly, Official Records, Fifth Session, FirstCommittee, Summary Records of Meetings, vol. i, p. 392).
-  U.N. Doc. S/1856.