Convention on Safety of UN and Associated PersonnelSenate Consideration of Treaty Document 107-1
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[Senate Treaty Document 107-1] [From the U.S. Government Publishing Office] 107th Congress Treaty Doc. SENATE 1st Session 107-1 _______________________________________________________________________ CONVENTION ON SAFETY OF U.N. AND ASSOCIATED PERSONNEL __________ MESSAGE from THE PRESIDENT OF THE UNITED STATES transmitting CONVENTION ON THE SAFETY OF UNITED NATIONS AND ASSOCIATED PERSONNEL, SUBJECT TO AN UNDERSTANDING AND A RESERVATION, ADOPTED BY THE UNITED NATIONS GENERAL ASSEMBLY BY CONSENSUS ON DECEMBER 9, 1994, AND SIGNED ON BEHALF OF THE UNITED STATES OF AMERICA ON DECEMBER 19, 1994. January 3, 2001.--Convention was read the first time, and together with the accompanying papers, referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate __________ U.S. GOVERNMENT PRINTING OFFICE 89-118 WASHINGTON : 2001 LETTER OF TRANSMITTAL ---------- The White House, January 3, 2001. To the Senate of the United States: I transmit herewith, with a view to receiving the advice and consent of the Senate to ratification, subject to an understanding and a reservation, the Convention on the Safety of United Nations and Associated Personnel adopted by the United Nations General Assembly by consensus on December 9, 1994, and signed on behalf of the United States of America on December 19, 1994. The report of the Department of State with respect to the Convention is also transmitted for the information of the Senate. Military peacekeepers, civilian police, and others associated with United Nations operations are often subject to attack by persons who perceive political benefits from directing violence against United Nations operations. The world has witnessed a serious escalation of such attacks, resulting in numerous deaths and casualties. This Convention is designed to provide a measure of deterrence against these attacks, by creating a regime of universal criminal jurisdiction for offenses of this type. Specifically, the Convention creates a legal mechanism that requires submission for prosecution or extradition of persons alleged to have committed attacks and other offenses listed under the Convention against United Nations and associated personnel. This Convention provides a direct benefit to United States Armed Forces and to U.S. civilians participating in peacekeeping activities by including within its coverage a number of types of operations pursuant to United Nations mandates in which the United States and U.S. military and civilians have participated in the past. If the United States were to participate in operations under similar conditions in the future, its forces and civilians would receive the benefits created by this instrument. The Convention covers not only forces under U.N. command, but associated forces under national command or multinational forces present pursuant to a United Nations mandate. In situations such as we have seen in Somalia, the former Yugoslavia, and Haiti, certain attacks on these associated forces would now be recognized as criminal acts, subjecting the attackers to prosecution in or extradition by any State that is a party to the Convention. As a result, the international community has taken a significant practical step to redress these incidents. In doing so, we recognize the fact that attacks on peacekeepers who represent the international community are violations of law and cannot be condoned. By creating obligations and procedures that increase the likelihood of prosecution of those who attack peacekeeping personnel, this Convention fulfills an important objective under my Directive for Reforming Multilateral Peace Operations of May 1994, which directs that the United States seek additional legal protections for United States peacekeeping personnel. The recommended legislation, necessary to implement the Convention, will be submitted to the Congress separately. I recommend that the Senate give early and favorable consideration to this Convention subject to the understanding and reservation that are described in the accompanying report of the Department of State, and give its advice and consent to ratification. William J. Clinton. LETTER OF SUBMITTAL ---------- Department of State, Washington, November 8, 2000. The President, The White House. The President: I have the honor to submit to you, with a view to its transmission to the Senate for advice and consent to ratification, subject to an understanding and a reservation, the Convention on the Safety of United Nations and Associated Personnel, adopted by the United Nations General Assembly by consensus on December 9, 1994, and signed on behalf of the United States of America on December 19, 1994. Pursuant to proposals by New Zealand and Ukraine, the United Nations General Assembly adopted Resolution 48/37 on December 9, 1993, which established an ad hoc committee, open to all States, to draft an international convention dealing with the safety and security of United Nations and associated personnel. During 1994, the ad hoc committee made substantial progress, and remaining issues were resolved by a working group of the Sixth (Legal) Committee of the General Assembly. The Convention was adopted by consensus by the full Sixth Committee on November 16, 1994, and by the General Assembly on December 9, 1994. It was opened for signature at the U.N. Headquarters on December 15, 1994. The Convention entered into force on January 15, 1999. The Convention was drafted and negotiated on an urgent basis because of the increasing number of attacks on peacekeeping personnel acting pursuant to U.N. mandates, and the lack of effective legal remedies to address such attacks. Although persons who attack peacekeeping personnel usually violate the domestic law of the State in which the attack occurs, host States for U.N. operations often do not have the capacity or will to investigate and prosecute these individuals. By creating a regime of universal jurisdiction over such attacks, the Convention makes it more likely that persons who commit these grave offenses will be punished. The Convention addresses attacks against United Nations and associated personnel, including certain multinational and national forces when they are engaged, deployed or assigned to carry out activities in support of the fulfillment of the mandate of a United Nations operation. The Convention does not cover those enforcement actions under Chapter VII of the U.N. Charter that involve international armed conflict in which the United Nations or associated personnel are engaged as combatants. The Convention creates a legal mechanism which requires submission for prosecution or extradition of persons alleged to have committed attacks and other offenses against United Nations and associated personnel as specified under the Convention. This mechanism is essentially the same as that used in a number of other Conventions involving crimes often committed by terrorists--including the Hague Convention for the Suppression of Unlawful Seizure of Aircraft of 1970, the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation of 1971, the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents of 1973 and the International Convention Against the Taking of Hostages of 1979. The United States is a party to each of these conventions. Many of the provisions of the new Convention are modeled on the provisions of these other conventions. The major features of the Convention may be summarized as follows: Definitions and Scope of Application In terms of its scope, Article 2(1) of the Convention provides that it applies in respect of ``United Nations and associated personnel'' and ``United Nations operations'' as those terms are defined in Article 1. Article 1 defines``United Nations personnel'' as persons engaged or deployed by the Secretary- General of the United Nations as members of the military, police or civilian components of a United Nations operation, as well as other officials and experts on mission of the United Nations or its specialized agencies or the International Atomic Energy Agency, who are present in an official capacity in the area where a United Nations operation is being conducted. ``Associated personnel'' is defined as persons assigned by a Government or an intergovernmental organization with the agreement of the competent organ of the United Nations, persons engaged by the Secretary-General of the United Nations or by a specialized agency or by the International Atomic Energy Agency, and persons deployed by a humanitarian non-governmental organization or agency under an agreement with the Secretary-General of the United Nations or with a specialized agency or with the International Atomic Energy Agency. To be protected under the Convention, both U.N. and associated personnel must be assigned, engaged or deployed to carry out activities in support of the fulfillment of the mandate of a United Nations operation. ``United Nations operation'' is defined under Article 1 as an operation established by the competent organ of the United Nations in accordance with the Charter of the United Nations and conducted under United Nations authority and control (i) where the operation is for the purpose of maintaining or restoring international peace and security, or (ii) where the Security Council or the General Assembly has declared, for the purposes of this Convention, that there exists an exceptional risk to the safety of the personnel participating in the operation. Under these definitions, therefore, the Convention applies to United Nations personnel engaged or deployed to carry out activities in support of the fulfillment of a U.N. mandate and who act under the authority and control of the United Nations. These individuals are commonly known as ``blue-hats.'' By virtue of its application to ``associated personnel,'' which can include multinational and national forces, the Convention covers not only these U.N. ``blue-hatted'' forces, but also forces and certain other personnel associated with a U.N. operation if they are assigned, engaged or deployed to carry out activities in support of the fulfillment of the mandate of the United Nations. Thus, the Convention should be read to cover personnel engaged in activities in support of the mandate of a U.N. operation, even in the absence of ``blue-hatted'' personnel. The United States intends to implement the Convention in a manner that will cover all those who assist in the maintenance or restoration of international peace and security pursuant to a U.N. mandate, and who are not excluded by virtue of Article 2(2) of the Convention. To ensure that this is clear to our treaty partners, I recommend that the following understanding to Article 1(b) be included in the United States instrument of ratification: The United States understands that associated personnel within the meaning of Article 1(b) includes all persons assigned, engaged or deployed to carry out activities in support of the fulfillment of the mandate of a United Nations operation, with respect to whom the application of the Convention has not been excluded pursuant to Article 2(2), without regard to the presence or absence of United Nations personnel engaged or deployed as members of a military component of a United Nations operation. As noted above, a United Nations operation is an operation established by the competent organ of the United Nations and conducted under U.N. authority and control. An operation under U.N. authority and control might include, for example, one in which the operation's mandate is derived from Security Council action and includes detailed authority for national or multinational forces to take actions in fulfillment of a U.N. mandate. Although a determination of whether an offense is prosecutable under the Convention depends on a careful review of the facts and circumstances of the particular case, as a general matter NATO assistance to the U.N. Protection Force (UNPROFOR) in the former Yugoslavia, United States assistance under theUnified Task Force in Somalia (UNITAF), and the participation of the United States and others in the Multinational Force assisting the United Nations Mission in Haiti (UNMIH) would have rendered the relevant U.S. forces ``associated personnel'' within the meaning of the Convention had the Convention been in force at the relevant time. It also would cover operations in which the United States has been involved since the Convention came into force, for example U.N. operations in Bosnia and Kosovo. Pursuant to Article 2(2), the Convention does not apply to a U.N. operation authorized by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations in which any personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies. Thus, when personnel of a United Nations operation are engaged as combatants (like the conflict with Iraq in ``Desert Storm''), they are covered by the laws of armed conflict, including the grave breaches provisions of the Geneva Conventions of 1949. Article 2(2)' phrases ``to which the law of international armed conflict applies,'' refers to the standard found in common article 2 of the 1949 Geneva Conventions and, thereby making it clear that this Convention does not apply to situations covered by common article 2 of the Geneva Conventions. The United States specifically sought to achieve just this type of dividing line. As a result, in enforcement actions under Chapter VII of the U.N. Charter where any of the personnel are combatants in a conflict ``to which the law of international armed conflict applies'', the law of armed conflict will define the responsibilities and relationships between and among the parties to the conflict. When common article 2 of the Geneva Convention does not apply, for example in situations where personnel of a United Nations operation are not engaged as combatants or are deployed in situations involving internal armed conflicts, this Convention applies and serves to criminalize attacks on United Nations and associated personnel, their means of transportation, equipment and premises. In addition the Convention criminalizes attempts or threats to do any of the above, the ordering or organizing of others to commit such attacks, as well as participation as an accomplice in any attack or attempt. The Convention's Article 2(2) also makes clear that the law of international armed conflict, rather than the Convention, applies if any personnel are engaged as combatants in the conflict described in that Article pursuant to Chapter VII. Thus, only when any of the U.N. or associated personnel participating in an operation are engaged as combatants, does this Convention cease to apply for all such personnel. As a result, it is easier for participants in an operation to know under which legal protective regime they fall in a given situation, and to conform their conduct accordingly. Identification Pursuant to Article 3, military and police components of U.N. operations, and their vehicles, vessels and aircraft are to bear distinctive identification. Other personnel, vehicles, vessels and aircraft involved in U.N. operations are to be appropriately identified unless otherwise decided by the U.N. Secretary-General. All personnel are to carry appropriate identification documents. The former requirement is analogous to the Geneva Convention principle that combatants are identified by a fixed distinctive sign recognizable at a distance. It is sufficient if military and civilian components operate vessels, vehicles and aircraft bearing national markings, wear national uniforms and carry identification issued by their national military authorities. Although identification is desirable, it is not a prerequisite for protection under the Convention. Argeements on the Status of the Operation Under Article 4, the host State and the United Nations are required to conclude, as soon as possible, an agreement on the status of the United Nationsoperation and personnel, including provisions on privileges and immunities for military and police components of the operation. Having status of forces agreements in place prior to, or as soon as possible after, deployment ensures that there is a common understanding of the status of the sending States' forces in the receiving State. Transit Article 5 makes clear that a transit State must facilitate the unimpeded transit of United Nations and associated personnel and their equipment to and from the host State in whose territory a U.N. operation is conducted. Respect for Laws and Regulations Article 6 provides that United Nations and associated personnel shall respect the laws and regulations of the host State and transit State, and refrain from any action or activity incompatible with the impartial nature of their duties. This obligation is without prejudice to the privileges and immunities such personnel may enjoy or to the requirements of their duties, and thus local law cannot be interposed to prevent accomplishment of the operation's mission. Duty to Ensure Safety and Security of Personnel Article 7 provides that United Nations and associated personnel, their equipment and premises must not be made the object of attack or of any action that prevents them from discharging their mandate. In addition, States Parties must take all appropriate measures to ensure the safety and security of such personnel, and must take all appropriate steps to protect such personnel who are deployed in their territory from crimes set out in Article 9. States Parties must cooperate with the United Nations and other States Parties, as appropriate, in the implementation of the Convention, particularly in any case where the host State is unable itself to take the required measures. Duty with Respect to Captured or Detained Personnel Article 8 establishes that except as provided in an applicable status-of-forces agreement, if United Nations or associated personnel are captured or detained in the course of the performance of their duties and their identification has been established, they must not be subjected to interrogation and they must be promptly released and returned to the United Nations or other appropriate authorities. If U.N. or associated personnel are captured and detained they must be treated in accordance with universally recognized standards of human rights and the principles and spirit of the Geneva Conventions of 1949. These principles reflect an important and appropriate response to the increasingly common problem of capture or detention of U.N. and associated personnel by local entities. Such personnel are entitled to respect and protection as a result of their status as representatives of the world community. Moreover, the Convention makes it clear that detention of these personnel until the conclusion of the conflict is impermissible. The rule that may be followed under the Geneva Conventions in a situation involving international armed conflict (i.e., a person may be detained until the end of the conflict) is not applicable to persons covered by this Convention. Crimes and Jurisdiction Article 9 requires each State Party to this Convention to make certain crimes punishable by appropriate penalties which shall take into account their grave nature. Article 9 establishes the crimes to be covered by this Convention as the intentional commission of a murder, kidnapping or other attack upon the person or liberty of any United Nations or associated personnel; a violent attack upon the official premises, the private accommodation or the means of transportation of such a person likely to endanger his or her person or liberty; a threat to commit any such attack with the objective of compelling a physical or juridical person to do or to refrain from doing any act; an attempt to commit any such attack; and an actconstituting participation as an accomplice in any such attack, or in an attempt to commit such attack, or in organizing or ordering others to commit such attack. The terms ``organizing or ordering'' help bring within the ambit of the Convention attacks ordered by military or civilian officials, which attacks are particularly relevant in the context of peacekeeping. Article 10 requires a State Party to this Convention to establish jurisdiction over the crimes set forth in Article 9 when the crime is committed in the territory of that State or on board a ship or aircraft registered in that State, or when the alleged offender is a national of that State. Moreover, each State Party is also given the option to establish jurisdiction over any such crime when it is committed by stateless persons whose habitual residence is in the territory of that State, or in cases where the crimes are committed with respect to a national of that State, or when the offense is committed in order to compel that State to do or to abstain from doing any act. This Article also requires a State Party to take such measures as may be necessary to establish its jurisdiction over the crimes set out in Article 9 in cases where the alleged offender is present in its territory and it does not extradite such person pursuant to Article 15 to any of the States Parties which have established their jurisdiction under the Convention. This Article also makes clear that the Convention does not preclude criminal jurisdiction exercised in accordance with national law. Cooperation and Prevention Articles 11, 12, 13, 16 and 18 specify the manner in which States Parties shall cooperate in preventing crimes listed in Article 9 and in communicating information regarding the commission of such crimes and the outcome of prosecutions, as well as the measures taken to detain an alleged offender for the purpose of prosecution or extradition. States Parties are also, consistent with existing treaty obligations and national laws, obligated to afford each other assistance in criminal proceedings with respect to Article 9 crimes. The State Party where an alleged offender is prosecuted must communicate the final outcome of the proceedings to the Secretary-General of the United Nations who shall transmit the information to other States Parties. Prosecution and Extradition Article 14 provides that if a State Party to this Convention does not extradite an alleged offender present in its territory, it must without exception whatsoever and without undue delay, submit the case to its own competent authorities for the purpose of prosecution through proceedings in accordance with the law of that State. The competent authorities have an obligation to take their decision to prosecute in the same manner as in the case of an ordinary offense of a grave nature under the law of that State. Article 15 provides that to the extent that crimes set out in Article 9 are not extraditable offenses in any extradition treaty existing between States Parties, they shall be deemed to be included as such therein. States Parties undertake to include those crimes as extraditable offenses in every extradition treaty to be concluded between them. If a State Party that makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of those crimes. Extradition will be subject to the conditions provided in the law of the requested State. Article 15 modifies existing extradition treaties between States Parties to include offenses defined in Article 9 as extraditable offenses. States Parties which do not make extradition conditional on the existence of a treaty must recognize those crimes as extraditable offenses between themselves subject to the conditions provided in the law of the requested State. Article 17 provides that any person under investigation or being prosecuted for offenses under the Convention shall be guaranteed fair treatment, a fair trial and full protection of his or her rights. Any alleged offender has a right to communicate with and receive visits from representatives of his State of nationality or another State entitled to protect that person's rights. Final Clauses Article 19 provides that States Parties will disseminate the Convention as widely as possible and include the study thereof, as well as relevant provisions of humanitarian law, in their programs of military instruction. Articles 20 and 21 contain a series of savings clauses. Article 20 provides that nothing in the Convention affects the applicability of international humanitarian law and universally recognized standards of human rights as contained in international instruments in relation to the protection of United Nations operations and United Nations and associated personnel or the responsibility of such personnel to respect such law and standards. This clause recognizes that the Convention is not intended to alter the existing application of humanitarian and human rights law. Article 20 also restates the obligation of United Nations and associated personnel to act in accordance with the terms of the mandate of the United Nations operation. Article 21 provides that nothing in the Convention shall be construed so as to derogate from the right to act in self- defense. This Article reflects a basic tenet of international law: that forces may defend themselves when attacked or threatened by imminent attack. In this context, the right to self-defense does not extend to persons who have initiated or attempted to initiate an attack on United Nations or associated personnel. Article 22(1) provides that disputes between two or more States Parties over the interpretation or application of the Convention that cannot be settled by negotiation shall, at the request of one of them, be submitted to arbitration. If the organization of such arbitration cannot be agreed upon within six months, any one of the parties to the dispute may refer it to the International Court of Justice. Under Article 22(2), a State Party may, at the time of signature, ratification, acceptance, approval or accession, declare that it does not consider itself bound by all or part of paragraph 1. Other States Parties shall not be bound by paragraph 1 or the relevant part thereof with respect to any State Party which makes such a reservation. In October 1985, the United States withdrew its declaration under Article 36 of the Statute of the International Court of Justice accepting the compulsory jurisdiction of the Court. Consistent with that decision, I recommend that the following reservation to Article 22(1) be included in the United States instrument of ratification: Pursuant to Article 22(2) of the Convention, the United States of American declares that it does not consider itself bound by Article 22(1), but reserves the right specifically to agree to follow this or any other procedure for arbitration in a particular case. This reservation would allow the United States to agree to an adjudication by a chamber of the Court in a particular case, if that were deemed advisable. The Convention entered into force on January 15, 1999. Under Article 27, the Convention enters into force for a state depositing its instrument of ratification, acceptance, approval or accession after the Convention has entered into force, 30 days after the deposit of such instrument. Recommended legislation necessary to implement the Convention will be submitted to the Congress separately. The legislation will establishjurisdiction over offenses in accordance with Article 10(1) (mandatory jurisdiction) and Article 10(2) (optional jurisdiction). United States ratification of this Convention will not only promote the safety of all personnel serving under U.N. mandates, it will, in particular, increase the legal protections afforded United States citizens, including members of our armed forces, who are placed in the dangerous circumstances which can follow from peacekeeping duties. The Departments of Defense and Justice, as well as the Joint Chiefs of Staff, join the Department in recommending that this Convention be transmitted to the Senate at an early date for its advice and consent to ratification, subject to the understanding to Article 1 and reservation to Article 22(1) as previously described. Respectfully submitted, Madeleine Albright.