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.