Protecting Aid Workers:

Prospects and Challenges

September 1997 Special Report

Table of Contents

Letter from the Director
International Humanitarian Law
The Convention on the Safety of United Nations and Associated Personnel
Ratification
Conclusion
Endnotes
Appendix: Convention on the Safety of United Nations and Associated Personnel
Table: Status of the Convention on the Safety of United Nations and Associated Personnel

Letter from the Director

On a bleak winter’s night in the war-weary republic of Chechnya, masked assassins surreptitiously entered a hospital run by the International Committee of the Red Cross (ICRC) and shot dead six doctors and nurses as they slept in their beds. The foreign medical workers had devoted their lives to alleviating suffering in troubled areas around the world. But in the end, like so many civilians around them, they succumbed to the senseless brutality of the Chechen war.

Sadly, the tragic event of December 1996 is not an isolated incident. Recently, humanitarian workers in Bosnia and Herzegovina, Rwanda, and other war-torn areas have been the targets of deliberate attacks, including robbery, kidnapping, and murder. Such abuses, if not curbed, jeopardize the provision of humanitarian aid to suffering populations. The security of those seeking to ameliorate suffering is increasingly endangered.

Humanitarian assistance during armed conflict has always been a dangerous endeavor. The end of the Cold War, however, brought changes in both the types of conflicts and the nature of international involvements. Most conflicts in the 1990s have been wars within states rather than between states, often characterized by nationalist struggles between multiple, ill-defined factions. Many such civil wars have been marked by “ethnic cleansing,” with the eradication or displacement of civilian groups being a primary war aim. Humanitarian workers in this chaotic environment are at risk for several reasons. They may be targeted due to their proximity to relief supplies, viewed as valuable resources by the contending parties; their efforts to assist civilians may also be perceived as aiding the enemy or prolonging the conflict.

The role of the international community in conflicts has changed as well. The United Nations Security Council is increasingly active in addressing threats to international peace and security. This renewed international involvement has frequently focused on “complex humanitarian emergencies,” requiring the coordinated efforts of relief workers, technical personnel, and peacekeeping forces. However, when the international community fails to respond to such crises with strong measures, as in Bosnia and Herzegovina, humanitarian workers are often left as the most visible and vulnerable personnel in the field.

These risks have sparked a debate on how to provide greater security to humanitarian workers in conflict zones. Leading NGOs disagree on the morality and feasibility of maintaining impartiality in a conflict zone. Opinions are also divided on the value of military protection, for while troops or UN peacekeepers can assist and protect humanitarian workers, they also politicize their efforts. In any event, many humanitarian groups have been forced to take practical ground-level measures such as retaining guards and providing personnel with protective equipment and security training. Finally, there is broad consensus on the need to strengthen accountability for gross violations of humanitarian law. This is reflected by growing support for the establishment of a permanent international criminal court to prosecute genocide, war crimes, and crimes against humanity.

The legal protection of humanitarian workers is a relatively neglected aspect of this debate. The security risks raise an important question: can international law prevent or redress harms to humanitarian workers? This report examines existing protections under international humanitarian law, and a recent attempt to strengthen those protections, the Convention on the Safety of United Nations and Associated Personnel. We wish to gratefully acknowledge the assistance of Gayle Oshrin, Jillian Shagan, and Jeremy Sharpe, students at New York University School of Law, and Jennifer Coon, a student at Yale Law School and a summer associate at the Forced Migration Projects, in the preparation of the report. We dedicate it to the memory of Fred Cuny, a humanitarian visionary, who lost his life in Chechnya in 1995 while on assignment for the Open Society Institute.

Arthur C. Helton
Director, Forced Migration Projects

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International Humanitarian Law

International humanitarian law consists of rules, established by treaty or custom, governing humanitarian problems that arise from armed conflict. This body of law does not address the justifications for war, which are limited in part by the United Nations Charter,² but rather aims to limit the effects of war on vulnerable persons and property. Humanitarian workers have a special mandate under this regime, not only to provide needed relief, but also to monitor state compliance with binding norms. In turn, international law accords them legal status and affirms their neutrality and inviolacy. Despite the importance of these formal legal protections, they have only limited application in internal conflicts and lack effective enforcement mechanisms. These gaps in the law and its implementation leave humanitarian workers and others vulnerable and give cause to reassess the efficacy of the existing legal regime.

The fundamental instruments of international humanitarian law are the four Geneva conventions of 1949³ and their additional protocols of 1977.⁴ The Geneva conventions, which enjoy near universal acceptance, apply to any international armed conflict, whether or not declared, and to any international military occupation. They establish basic standards of treatment for persons who are not, or are no longer, actively participating in armed conflict: specifically wounded, sick and shipwrecked soldiers (conventions I and II), prisoners of war (convention III), and civilians during armed conflict (convention IV). They prohibit, for example, subjecting noncombatants to murder, torture, hostage-taking, or execution without a trial, and specify that the sick and wounded must be cared for.⁵

The conventions are supplemented by two additional protocols of 1977. Protocol I extends coverage to wars of national liberation and self-determination “against colonial domination and alien occupation and against racist regimes.”⁶ By recognizing such conflicts, protocol I signaled a pragmatic evolution in the definition of war. Protocol II strengthens provisions relating to noninternational conflicts, but is limited to cases in which the insurgent party exercises control over part of the national territory.⁷ Unlike the 1949 conventions, the 1977 protocols have not garnered universal support, although they are binding on about three-quarters of states.⁸ Finally, the conventions and protocols are supplemented by other humanitarian principles and customary international law, such as the right to be free from enslavement, torture, or murder.

This body of law provides specific protection to humanitarian workers in international conflicts. First, medical and relief workers have the right to be “respected and protected” in all circumstances⁹ as well as, like other noncombatants, to receive humane treatment. Second, in addition to their broad responsibilities to “safeguard the interests of the Parties to the conflict,”¹⁰ State Parties are bound under the conventions to re-quest or accept the assistance of humanitarian agencies if noncombatants are otherwise unprotected.¹¹ Protocol I goes further, specifying the right of humanitarian agencies to initiate and carry out assistance to the sick and wounded without interference,¹² and the duty of states to facilitate their efforts, subject only to military imperative.¹³ The conventions and protocols also explicitly recognize the neutrality of humanitarian work,¹⁴ and in particular the special significance of the ICRC’s red cross/red crescent emblem.¹⁵ Finally, the conventions recognize the paramount role of the ICRC as promoter and custodian of humanitarian law, granting it specific rights to visit and document prisoners of war and civilian detainees, investigate complaints about their treatment, distribute relief supplies, and provide training to facilitate compliance with the laws of armed conflict.¹⁶

In noninternational conflicts, however, formal legal protections are significantly weaker. The conventions, like much of international law,¹⁷ largely do not address civil wars, in which state sovereignty and humanitarian values directly clash. The Geneva conventions do not define “noninternational armed conflict,” and address the subject only in their common Article 3, which outlines minimum standards for the treatment of noncombatants. Corresponding protections for humanitarian workers are weaker as well. Article 3 accords humanitarian workers a “right of initiative” to offer their services in internal conflicts.¹⁸ While this provision may place moral pressure on states to accept assistance, it does not allow humanitarian action without the consent of the parties. In fact, some NGOs deem consent to be essential to their work, and “humanitarian intervention” to be a contradiction in terms. However, many other humanitarian groups argue that the suffering of civilians justifies a stronger “right to intervene.”

Protocol II only partially addresses this weakness. In an attempt to expand the application of the laws of war, protocol II furnishes a definition of noninternational conflicts.¹⁹ However, as the definition is limited to cases in which insurgents control a portion of national territory, it may not be applicable to some civil conflicts. In addition, the scope of relief activity is once again contingent on state acceptance.²⁰ Humanitarian workers in internal conflicts must therefore contend with a deficit of legal protection.

In addition to gaps in coverage, the international humanitarian regime lacks adequate enforcement of its legal obligations. Under the conventions and protocols, State Parties are mutually obligated to uphold humanitarian norms and ensure the compliance of other states. States thus have the duty to bring to justice those who commit “grave breaches” against persons protected by the conventions, including humanitarian workers.²¹ A state that cannot or will not prosecute a war criminal against whom another State Party has presented a prima facie case must extradite the perpetrator to the latter state.²² Enforcement of international humanitarian law is thus left largely in the hands of states, and depends on their political will to give it effect.

This enforcement regime is premised on the pragmatic recognition that states at war may still share a mutual interest in observing humanitarian law. The convergence of humanitarian principles and state self-interest generally facilitates adherence to the laws of war. However, when enforcement is necessary, it is contingent on the actions of other states. State Parties, including states not involved in the conflict, have a number of enforcement tools available. States may exert diplomatic pressure on the offending state, insisting that it adhere to its legal obligations. States may then take further steps, such as suspending diplomatic relations, withholding trade privileges, or conditioning public aid. Finally, states may resort to unarmed reprisals, including trade embargoes, the freezing of capital, and suspension of air transport. Military intervention may even be justified in exceptional circumstances not inconsistent with the UN Charter.²³

The United Nations, likewise, may exert pressure on wayward states. The General Assembly may denounce the offending state and issue a resolution calling for the termination of the illegal activity and full compliance with the conventions. In serious cases, the Security Council may invoke its enforcement powers and impose economic sanctions, arms embargoes, or armed countermeasures against a state.

An effectively functioning regime, then, would punish offenders of international humanitarian law. In many cases, however, states are unable or unwilling to comply with their enforcement obligations. A state devastated by internal conflict may lack the institutions or resources to bring war criminals to justice. States may also refuse to extradite alleged criminals on the grounds that the receiving state lacks sufficient due process safeguards or an extradition treaty, or out of fear of political manipulation. Finally, both individual states and the international community often lack the political will to enforce humanitarian principles. Because of these enforcement problems, many humanitarian workers are left effectively unprotected by the Geneva conventions. One recent attempt to address some of these deficiencies is the Convention on the Safety of United Nations and Associated Personnel.

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The Convention on the Safety of United Nations and Associated Personnel

The Convention on the Safety of United Nations and Associated Personnel,²⁴ which has not yet entered into force, aims to address the increasing dangers faced by peacekeepers and relief workers associated with UN missions. As the first international legal instrument to cover such personnel, the convention could potentially fill significant gaps in international humanitarian law. It would extend coverage to civil conflicts that are of international concern, and would strengthen enforcement mechanisms by widening state jurisdiction.

The convention extends coverage to two categories of personnel. The first, “United Nations personnel,” includes “military, police or civil components of a United Nations operation” deployed or engaged by the Secretary-General.²⁵ This category also includes other officials and experts on a 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 the UN operation is being conducted.²⁶ This subsection would thus protect both UN humanitarian workers on peacekeeping missions and other UN civilian personnel in the area who could potentially be targeted.

The second and more controversial category of protected persons is “associated personnel.” This category includes: “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 the International Atomic Energy Agency.”²⁷ To be covered, such personnel must be carrying out a mandate of the United Nations.²⁸ This provision would thus protect workers of certain humanitarian NGOs, as well as nationally or regionally controlled troops deployed to assist UN forces.

Convention protection of these personnel applies only to UN operations, defined as those that are established by a competent organ of the United Nations and conducted under its authority and control.²⁹ To be covered, an operation must fall into one of two categories: either the purpose of the operation must be to maintain or restore peace and security, or the Security Council or the General Assembly must declare that there is an exceptional risk to the safety of the personnel participating in the operation.³⁰ These provisions could thus remedy a significant legal gap by extending coverage to noninternational conflicts if they have been designated by the United Nations as areas of international concern.

Two provisions, however, expressly limit the scope of the convention’s coverage of humanitarian workers. The first is the requirement that associated personnel deployed by humanitarian NGOs have a contractual link with the United Nations.³¹ This provision would expressly exclude from protection humanitarian workers who are not formally related to the UN. Some observers have criticized the convention for this exclusion, citing “a need to either expand it to cover ALL relief workers in conflict settings or develop additional international instruments for that purpose.”³² Some international humanitarian organizations, however, prefer to be excluded from the convention’s protection, asserting that an express link to the UN would damage their credibility and perceived neutrality. The ICRC expressed this opinion during convention negotiations, concluding that “application of the Convention to the ICRC would necessarily imply a fairly close association between it and the United Nations; this would include contexts in which it would generally be essential for the ICRC to be separate and different, and also clearly seen as such.”³³

A second provision excludes UN operations which would otherwise be covered by the law of international armed conflict. Article 2 specifies that the convention will not apply to enforcement actions authorized by the Security Council under Chapter VII of the UN Charter, in which any of the personnel are engaged as combatants.³⁴ Thus, if the Security Council authorizes a UN peacekeeping operation to take military action under Chapter VII, this “trigger mechanism” would end protection for all personnel on that operation, including civilian humanitarian workers. Coverage might thus terminate precisely when egregious violations of international law have provoked a strong UN response. For example, the exclusion might be triggered if UN peacekeepers responded militarily to attacks on humanitarian workers.³⁵

When the convention does apply, however, it significantly clarifies the duties of states to protect UN and associated personnel. Articles 7 and 11 of the convention establish a duty to prevent. Under Article 7, State Parties are required to “take all appropriate measures to ensure the safety and security of United Nations and associated personnel,”³⁶ particularly if personnel are deployed on that state’s territory or if the host state is unable to comply.³⁷ Under Article 11, State Parties must cooperate in preventing crimes against protected personnel. State Parties are required to take “all practicable measures” to prevent preparations in their territories for such crimes, and to exchange information and coordinate “administrative and other measures” to prevent their commission.³⁸ These provisions would establish a stronger mandate than existed previously for states to intervene in conflicts and take appropriate actions to protect humanitarian workers.

The convention also establishes a duty to punish. State Parties are required to consider attacks or threats against such personnel crimes under their national law,³⁹ and to either prosecute or extradite alleged offenders,⁴⁰ under provisions which aim to ease extradition treaty requirements.⁴¹ Most importantly, however, the convention dramatically widens jurisdiction over these crimes. Each State Party is required to establish jurisdiction over crimes allegedly committed in its territory or by its nationals, and permitted to establish jurisdiction over crimes committed against its own nationals or with the attempt to influence its actions.⁴² These provisions, like the Geneva conventions, still rely on states to enforce humanitarian violations. However, they increase opportunities for enforcement by allowing the more activist states to extend their jurisdictional reach.

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Ratification

If and when the convention takes effect, it thus would remedy certain gaps in both the coverage and enforcement of international humanitarian law. As the convention was negotiated and drafted in the space of only nine months,⁴³ many had hopes for an equally accelerated ratification process. The convention opened for signature on December 9, 1994, and will go into effect 30 days after its ratification by 22 states.⁴⁴ However, while 43 states have signed the convention, it has thus far been ratified by only 13 of them.⁴⁵

The length of this ratification process, of course, is not unusual, as many international conventions require many years after being opened for signature to take effect.⁴⁶ In fact, several nations have given the convention public support, indicating that they may ratify it in the near future. In an official summit communiqué in 1995, the Group of Seven (G7) “stress[ed] the need for measures to ensure the security of UN personnel, including the early entry into force of the recently adopted UN Convention on the Safety of United Nations and Associated Personnel.”⁴⁷ However, of the G7 states, only Japan and Germany have ratified the convention. Much pressure has also been put on Ireland by members of its Parliament and by a soldiers’ representative association to ratify.⁴⁸ In addition, the General Assembly passed a resolution this past December urging all states to bring the convention into force.⁴⁹

Some states may be waiting for action by other states. However, several states that have recently hosted UN operations—the Democratic Republic of the Congo, Rwanda, Somalia, and Bosnia and Herzegovina—have not even signed the convention. States may also be held up by time-consuming domestic procedures for ratification. In the United States, for instance, while the president has the sole power to sign an international convention, ratification requires the advice and consent of two-thirds of the Senate;⁵⁰ this could prove difficult at a time when some legislators are wary of international commitments. The process is often drawn-out, as the Senate has the power not only to reject the treaty, but also to amend it or approve it subject to reservations or understandings.⁵¹ Japan, however, which has a comparably arduous ratification procedure, was one of the first states to ratify, on June 6, 1995.⁵²

Ratification could also be delayed by certain controversial provisions in the convention. Article 4, for example, requires host states and the UN to conclude “status of mission” agreements governing jurisdiction over UN personnel and providing privileges and immunities for the military and police components of the operation.⁵³ However, if an operation commenced without such an agreement, a concern expressed by the United States delegation,⁵⁴ then the conflicting parties could claim jurisdiction as a tactic to intimidate UN personnel and seek to manipulate the operation. Another problematic provision is Article 21, which reads: “Nothing in this Convention shall be construed so as to derogate from the right to act in self-defense.”⁵⁵ While most delegations interpreted this provision to apply only to United Nations and associated personnel,⁵⁶ it could conceivably recognize claims of self-defense by alleged criminals or even by states. Such ambiguities will likely require clarification by states in appropriate understandings, which may be entered upon ratification.

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Conclusion

In the face of egregious violations of humanitarian norms, it is incumbent upon the international community to fortify the existing legal regime. The Convention on the Safety of United Nations and Associated Personnel is a positive step in this direction, clarifying and strengthening the duties of State Parties to protect humanitarian workers in the field. Accession by all states to the convention should be encouraged. However, even once it enters into force, the convention will have a rather limited application. Personnel lacking sufficiently close links to qualifying UN operations are excluded from coverage, and an escalation in hostilities involving some members of the operation might trigger exclusions for all others. Finally, enforcement of the convention depends on the discretion and will of states to give it effect. Thus, the convention provides only a preliminary and partial solution to averting and redressing the dangers facing humanitarian workers. The search for workable approaches must continue in order to guarantee the provision of humanitarian assistance to war-affected populations.

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Endnotes

1. Kofi Annan, “Peacekeeping and Humanitarian Action,” Address at Conflict and Humanitarian Action, a Conference at Princeton University (Oct. 22-23, 1993).

2. The United Nations Charter prohibits the “threat or use of force against the territorial integrity or political independence of any state.” UN Charter, art. 2(4). However, this prohibition does not extend to internal conflicts or to the exercise of individual or collective self-defense. See id. at art. 51.

3. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 75 U.N.T.S. 31 [hereinafter Geneva convention I]; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 75 U.N.T.S. 85 [hereinafter Geneva convention II]; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135 [hereinafter Geneva convention III]; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva convention IV].

4. Protocol Additional to the Geneva conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Geneva protocol I]; Protocol Additional to the Geneva conventions of 12 August 1949, and Relating to the Protection of Victims of noninternational Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609 [hereinafter Geneva protocol II].

5. Geneva conventions I-IV, supra note 3, at common art. 3.

6. Geneva protocol I, supra note 4, at art. 4.

7. See Geneva protocol II, supra note 4, at art. 1(1).

8. Currently, 148 states are party to protocol I and protocol II. See “Geneva Conventions of 12 August 1949 and Additional Protocols of 8 June 1977: ratifications, accessions and successions” (last modified July 31, 1997) <www.icrc.ch/>.

9. See Geneva convention I, supra note 3, at art. 24, 26; Geneva convention II, supra note 3, at art. 36; Geneva protocol I, supra note 4, at art. 71(2); Geneva protocol II, supra note 4, at art. 9(1).

10. See Geneva convention I, supra note 3, at art. 10; Geneva convention II, supra note 3, at art. 10; Geneva convention III, supra note 3, at art. 10; Geneva convention IV, supra note 3, at art. 11; Geneva protocol I, supra note 4, at art. 5(4).

11. E.g., Geneva convention I, supra note 3, at art. 8.

12. See Geneva protocol I, supra note 4, at art. 17.

13. See id. at art. 71(3).

14. “In no circumstance shall this activity be deemed to be an interference in the conflict.” Geneva convention I, supra note 3, at art. 27(3); Geneva protocol I, supra note 4, at art. 64(1). Humanitarian and relief actions “shall not be regarded as interference in the armed conflict or as unfriendly acts.” Geneva protocol I, supra note 4, at art. 70. “[R]elief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken.” Geneva protocol I, supra note 4, at art. 70; see also Geneva protocol II, supra note 4, at art. 18.

15. See, e.g., Geneva convention I, supra note 3, at art. 44; Geneva protocol II, supra note 4, at art. 12.

16. See Geneva convention I, supra note 3, at art. 28; Geneva convention III, supra note 3, at art. 33, 81, 125-26; Geneva convention IV, supra note 3, at art. 30, 76, 142-43; Geneva protocol I, supra note 4, at art. 6(1).

17. Under the United Nations Charter, the international community is largely precluded from interfering with “matters which are essentially within the domestic jurisdiction of any State.” U.N. Charter, art. 2, para. 7.

18. “An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties in the conflict.” Geneva conventions I-IV, supra note 3, at art. 3, para. 2.

19. “[A]ll armed conflicts which are not covered by [protocol 1] and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory to enable them to carry out sustained and concerted military operations and to implement this Protocol.” Geneva protocol II, supra note 4, at art. 1, para. 1.

20. See id. at art. 18.

21. Grave breaches include willful killing, torture, inhuman treatment, biological experimentation, infliction of great suffering or serious bodily injury, willful acts or omissions endangering physical or mental health, forced conscription into enemy armed forces, forced deportation, and deliberate or indiscriminate attacks on individual civilians, civilian populations, or civilian objects. See Geneva convention I, supra note 3, at art. 50; Geneva convention II, supra note 3, at art. 51; Geneva convention III, supra note 3, at art. 130; Geneva convention IV, supra note 3, at art. 147; Geneva protocol I, supra note 4, at arts. 11, 85.

22. See Geneva convention I, supra note 3, at art. 49; Geneva convention II, supra note 3, at art. 50; Geneva convention III, supra note 3, at art. 129; Geneva convention IV, supra note 3, at art. 146; Geneva protocol I, supra note 4, at art. 88.

23. It is generally accepted that a state may intervene with limited force in the territory of another state, if necessary to rescue endangered persons there. One example is Israel’s rescue of hostages from a hijacked airplane in Entebbe, Uganda in 1976. See Restatement (Third) of Foreign Relations Law of the United States § 905 cmt g (1987); see also Arthur C. Helton, “The Legality of Providing Humanitarian Assistance,” 4 Intn’l J. Refugee L. 373, 375 (1992) (arguing that a proportionate use of force is justified to rescue threatened relief workers); cf. Geneva protocol I, supra note 4 at preamble.

24. Convention on the Safety of United Nations and Associated Personnel, opened for signature Dec. 9, 1994, 34 I.L.M. 482.

25. Id. at art. 1(a)(i).

26. See id. at art. 1(a)(ii).

27. Id. at art. 1(b).

28. See id.

29. See id. at art. 1(c).

30. See id.

31. See id. at art. 1(b)(iii).

32. Yasushi Akashi, Under Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, “Protection for Civilians Endangered by Conflict: Role of the Security Council,” Statement to the Security Council, para. 12 (May 27, 1997). Emphasis in the original.

33. Antoine Bouvier, “ ‘Convention on the Safety of United Nations and Associated Personnel’: Presentation and Analysis,” 309 IRRC 638, 655 (1995).

34. See Convention on the Safety of United Nations and Associated Personnel, supra note 24, at art 2(2).

35. See Adam Roberts, Humanitarian Action in War: Aid, Protection, and Partiality in a Vacuum 70 (Adelphi Papers 305, December 1996).

36. Convention on the Safety of United Nations and Associated Personnel, supra note 24, at art.7(2).

37. See id. at art. 7(2) and 7(3).

38. See id. at art. 11.

39. See id. at art. 9.

40. See id. at art. 14.

41. See id. at art. 15.

42. See id. at art. 10.

43. Negotiations began on Mar. 28, 1994, at the first meeting of the Ad Hoc Committee established pursuant to a December 1993 General Assembly resolution. See G.A. Res. 48/37, U.N. GAOR, 48th Sess., U.N. Doc A/RES/48/37 (1993). The convention was adopted unanimously by the General Assembly on Dec. 4, 1994. See G.A. Res. 49/59, U.N. GAOR, 49th Sess., U.N. Doc A/RES/49/59 (1994).

44. Convention on the Safety of United Nations and Associated Personnel, supra note 24, at art.27(1).

45. The convention has thus far been ratified by Argentina, the Czech Republic, Denmark, Germany, Japan (acceptance), Norway, Panama, the Philippines, Singapore (accession), Slovakia, Sweden, Ukraine, and Uzbekistan (accession).

46. Both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights took approximately nine years from the time they were adopted to go into effect; the Convention Relating to the Status of Stateless Persons took approximately six years to go into effect; and the Vienna Convention on the Law of Treaties took over ten years to enter into force.

47. “Full text of Group of Seven communiqué,” Reuters World Serv., June 17, 1995, available in LEXIS, News Library.

48. “MEP in Call to Ratify UN Pact,” Irish Times, Jan. 2, 1997, available in LEXIS, News Library.

49. G.A. Res. 51/137, U.N. GAOR, 51st Sess., U.N. Doc. A/RES/51/137 (1996).

50. See U.S. Const. art. II, § 2, cl. 2.

51. See Ramesh Chandra Ghosh, Treaties and Federal Constitutions: Their Mutual Impact 90 (1961).

52. In Japan, international treaties must first be ratified by the Cabinet, then sent to the Diet for approval, and finally sent to the Emperor for attestation. See Yomiuri Shimbun, “Govt to Seek Approval of Peacekeeping Pact,” The Daily Yomiuri, Apr. 17, 1995, available in LEXIS, News Library..

53. See Convention on the Safety of United Nations and Associated Personnel, supra note 24, at art. 4.

54. See Steven J. Lepper, “The Legal Status of Military Personnel in United Nations Peace Operations: One Delegate’s Analysis,” 18 Hous. J. Int’l L. 359, 415 (1996).

55. Convention on the Safety of United Nations and Associated Personnel, supra note 24, at art. 21.

56. See Lepper, supra note 54, at 453.

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Appendix:
Convention on the Safety of United Nations and Associated Personnel

The States Parties to this Convention,

Deeply concerned over the growing number of deaths and injuries resulting from deliberate attacks against United Nations and associated personnel,

Bearing in mind that attacks against, or other mistreatment of, personnel who act on behalf of the United Nations are unjustifiable and unacceptable, by whomsoever committed,

Recognizing that United Nations operations are conducted in the common interest of the international community and in accordance with the principles and purposes of the Charter of the United Nations,

Acknowledging the important contribution that United Nations and associated personnel make in respect of United Nations efforts in the fields of preventive diplomacy, peacemaking, peace-keeping, peace-building and humanitarian and other operations,

Conscious of the existing arrangements for ensuring the safety of United Nations and associated personnel, including the steps taken by the principal organs of the United Nations, in this regard,

Recognizing none the less that existing measures of protection for United Nations and associated personnel are inadequate,

Acknowledging that the effectiveness and safety of United Nations operations are enhanced where such operations are conducted with the consent and cooperation of the host State,

Appealing to all States in which United Nations and associated personnel are deployed and to all others on whom such personnel may rely, to provide comprehensive support aimed at facilitating the conduct and fulfilling the mandate of United Nations operations, Convinced that there is an urgent need to adopt appropriate and effective measures for the prevention of attacks committed against United Nations and associated personnel and for the punishment of those who have committed such attacks, Have agreed as follows:

Article 1
Definitions

For the purposes of this Convention:

(a) “United Nations personnel” means:

(i) 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;

(ii) 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;

(b) “Associated personnel” means:

(i) Persons assigned by a Government or an intergovernmental organization with the agreement of the competent organ of the United Nations;

(ii) Persons engaged by the Secretary-General of the United Nations or by a specialized agency or by the International Atomic Energy Agency;

(iii) 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 carry out activities in support of the fulfillment of the mandate of a United Nations operation;

(c) “United Nations operation” means 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;

(d) “Host State” means a State in whose territory a United Nations operation is conducted;

(e) “Transit State” means a State, other than the host State, in whose territory United Nations and associated personnel or their equipment are in transit or temporarily present in connection with a United Nations operation.

Article 2
Scope of application

1. This Convention applies in respect of United Nations and associated personnel and United Nations operations, as defined in article 1.

2. This Convention shall not apply to a United Nations operation authorized by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies.

Article 3
Identification

1. The military and police components of a United Nations operation and their vehicles, vessels and aircraft shall bear distinctive identification. Other personnel, vehicles, vessels and aircraft involved in the United Nations operation shall be appropriately identified unless otherwise decided by the Secretary-General of the United Nations.

2. All United Nations and associated personnel shall carry appropriate identification documents.

Article 4
Agreements on the status of the operation

The host State and the United Nations shall conclude as soon as possible an agreement on the status of the United Nations operation and all personnel engaged in the operation including, inter alia, provisions on privileges and immunities for military and police components of the operation.

Article 5
Transit

A transit State shall facilitate the unimpeded transit of United Nations and associated personnel and their equipment to and from the host State.

Article 6
Respect for laws and regulations

1. Without prejudice to such privileges and immunities as they may enjoy or to the requirements of their duties, United Nations and associated personnel shall:

(a) Respect the laws and regulations of the host State and the transit State; and

(b) Refrain from any action or activity incompatible with the impartial and international nature of their duties.

2. The Secretary-General of the United Nations shall take all appropriate measures to ensure the observance of these obligations.

Article 7
Duty to ensure the safety and security of United Nations and associated personnel

1. United Nations and associated personnel, their equipment and premises shall not be made the object of attack or of any action that prevents them from discharging their mandate.

2. States Parties shall take all appropriate measures to ensure the safety and security of United Nations and associated personnel. In particular, States Parties shall take all appropriate steps to protect United Nations and associated personnel who are deployed in their territory from the crimes set out in article 9.

3. States Parties shall cooperate with the United Nations and other States Parties, as appropriate, in the implementation of this Convention, particularly in any case where the host State is unable itself to take the required measures.

Article 8
Duty to release or return United Nations and associated personnel captured or detained

Except as otherwise 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 shall not be subjected to interrogation and they shall be promptly released and returned to United Nations or other appropriate authorities. Pending their release such personnel shall be treated in accordance with universally recognized standards of human rights and the principles and spirit of the Geneva Conventions of 1949.

Article 9
Crimes against United Nations and associated personnel

1. The intentional commission of:

(a) A murder, kidnapping or other attack upon the person or liberty of any United Nations or associated personnel;

(b) A violent attack upon the official premises, the private accommodation or the means of transportation of any United Nations or associated personnel likely to endanger his or her person or liberty;

(c) 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;

(d) An attempt to commit any such attack; and

(e) An act constituting 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, shall be made by each State Party a crime under its national law.

2. Each State Party shall make the crimes set out in paragraph 1 punishable by appropriate penalties which shall take into account their grave nature. Article 10 Establishment of jurisdiction

1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the crimes set out in article 9 in the following cases:

(a) When the crime is committed in the territory of that State or on board a ship or aircraft registered in that State;

(b) When the alleged offender is a national of that State.

2. A State Party may also establish its jurisdiction over any such crime when it is committed:

(a) By a stateless person whose habitual residence is in that State; or

(b) With respect to a national of that State; or (c) In an attempt to compel that State to do or to abstain from doing any act.

3. Any State Party which has established jurisdiction as mentioned in paragraph 2 shall notify the Secretary-General of the United Nations. If such State Party subsequently rescinds that jurisdiction, it shall notify the Secretary-General of the United Nations.

4. Each State Party shall 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 in accordance with paragraph 1 or 2.

5. This Convention does not exclude any criminal jurisdiction exercised in accordance with national law.

Article 11
Prevention of crimes against United Nations and associated personnel

States Parties shall cooperate in the prevention of the crimes set out in article 9, particularly by:

(a) Taking all practicable measures to prevent preparations in their respective territories for the commission of those crimes within or outside their territories; and

(b) Exchanging information in accordance with their national law and coordinating the taking of administrative and other measures as appropriate to prevent the commission of those crimes.

Article 12
Communication of information

1. Under the conditions provided for in its national law, the State Party in whose territory a crime set out in article 9 has been committed shall, if it has reason to believe that an alleged offender has fled from its territory, communicate to the Secretary-General of the United Nations and, directly or through the Secretary-General, to the State or States concerned all the pertinent facts regarding the crime committed and all available information regarding the identity of the alleged offender.

2. Whenever a crime set out in article 9 has been committed, any State Party which has information concerning the victim and circumstances of the crime shall endeavour to transmit such information, under the conditions provided for in its national law, fully and promptly to the Secretary-General of the United Nations and the State or States concerned.

Article 13
Measures to ensure prosecution or extradition

1. Where the circumstances so warrant, the State Party in whose territory the alleged offender is present shall take the appropriate measures under its national law to ensure that person’s presence for the purpose of prosecution or extradition.

2. Measures taken in accordance with paragraph 1 shall be notified, in conformity with national law and without delay, to the Secretary-General of the United Nations and, either directly or through the Secretary-General, to:

(a) The State where the crime was committed;

(b) The State or States of which the alleged offender is a national or, if such person is a stateless person, in whose territory that person has his or her habitual residence;

(c) The State or States of which the victim is a national; and (d) Other interested States.

Article 14
Prosecution of alleged offenders

The State Party in whose territory the alleged offender is present shall, if it does not extradite that person, submit, without exception whatsoever and without undue delay, the case to its competent authorities for the purpose of prosecution, through proceedings in accordance with the law of that State. Those authorities shall take their decision in the same manner as in the case of an ordinary offence of a grave nature under the law of that State.

Article 15
Extradition of alleged offenders

1. To the extent that the crimes set out in article 9 are not extraditable offences 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 offences in every extradition treaty to be concluded between them.

2. If a State Party which 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 at its option consider this Convention as the legal basis for extradition in respect of those crimes. Extradition shall be subject to the conditions provided in the law of the requested State.

3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize those crimes as extraditable offences between themselves subject to the conditions provided in the law of the requested State.

4. Each of those crimes shall be treated, for the purposes of extradition between States Parties, as if it had been committed not only in the place in which it occurred but also in the territories of the States Parties which have established their jurisdiction in accordance with paragraph 1 or 2 of article 10.

Article 16
Mutual assistance in criminal matters

1. States Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of the crimes set out in article 9, including assistance in obtaining evidence at their disposal necessary for the proceedings. The law of the requested State shall apply in all cases.

2. The provisions of paragraph 1 shall not affect obligations concerning mutual assistance embodied in any other treaty.

Article 17
Fair treatment

1. Any person regarding whom investigations or proceedings are being carried out in connection with any of the crimes set out in article 9 shall be guaranteed fair treatment, a fair trial and full protection of his or her rights at all stages of the investigations or proceedings.

2. Any alleged offender shall be entitled:

(a) To communicate without delay with the nearest appropriate representative of the State or States of which such person is a national or which is otherwise entitled to protect that person’s rights or, if such person is a stateless person, of the State which, at that person’s request, is willing to protect that person’s rights; and

(b) To be visited by a representative of that State or those States.

Article 18
Notification of outcome of proceedings

The State Party where an alleged offender is prosecuted shall communicate the final outcome of the proceedings to the Secretary-General of the United Nations, who shall transmit the information to other States Parties.

Article 19
Dissemination

The States Parties undertake to disseminate this Convention as widely as possible and, in particular, to include the study thereof, as well as relevant provisions of international humanitarian law, in their programmes of military instruction.

Article 20
Savings clauses

Nothing in this Convention shall affect:

(a) 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;

(b) The rights and obligations of States, consistent with the Charter of the United Nations, regarding the consent to entry of persons into their territories;

(c) The obligation of United Nations and associated personnel to act in accordance with the terms of the mandate of a United Nations operation;

(d) The right of States which voluntarily contribute personnel to a United Nations operation to withdraw their personnel from participation in such operation; or

(e) The entitlement to appropriate compensation payable in the event of death, disability, injury or illness attributable to peace-keeping service by persons voluntarily contributed by States to United Nations operations.

Article 21
Right of self-defence

Nothing in this Convention shall be construed so as to derogate from the right to act in self-defence.

Article 22
Dispute settlement

1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which is not settled by negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice by application in conformity with the Statute of the Court.

2. Each State Party may at the time of signature, ratification, acceptance or approval of this Convention or accession thereto declare that it does not consider itself bound by all or part of paragraph 1. The other States Parties shall not be bound by paragraph 1 or the relevant part thereof with respect to any State Party which has made such a reservation.

3. Any State Party which has made a reservation in accordance with paragraph 2 may at any time withdraw that reservation by notification to the Secretary-General of the United Nations.

Article 23
Review meetings

At the request of one or more States Parties, and if approved by a majority of States Parties, the Secretary-General of the United Nations shall convene a meeting of the States Parties to review the implementation of the Convention, and any problems encountered with regard to its application.

Article 24
Signature

This Convention shall be open for signature by all States, until 31 December 1995, at United Nations Headquarters in New York.

Article 25
Ratification, acceptance or approval

This Convention is subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations.

Article 26
Accession

This Convention shall be open for accession by any State. The instruments of accession shall be deposited with the Secretary-General of the United Nations.

Article 27
Entry into force

1. This Convention shall enter into force thirty days after twenty-two instruments of ratification, acceptance, approval or accession have been deposited with the Secretary-General of the United Nations.

2. For each State ratifying, accepting, approving or acceding to the Convention after the deposit of the twenty-second instrument of ratification, acceptance, approval or accession, the Convention shall enter into force on the thirtieth day after the deposit by such State of its instrument of ratification, acceptance, approval or accession.

Article 28
Denunciation

1. A State Party may denounce this Convention by written notification to the Secretary-General of the United Nations.

2. Denunciation shall take effect one year following the date on which notification is received by the Secretary-General of the United Nations.

Article 29
Authentic texts

The original of this Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States.

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Status of the Convention on the Safety of United Nations and Associated Personnel

Adopted by resolution 49/59 of the General Assembly dated 9 December 1994.
NOT YET IN FORCE: [see article 27 (1)]
TEXT: Doc. A/49/742 of 2 December 1994
STATUS: Signatures: 43, Parties: 13

Declaration:
In accordance with German law, the authorities of the Federal Republic of Germany will communicate information on alleged offenders, victims and circumstances of the crime (personal data) directly to the states concerned and, in parallel with this, will inform the Secretary-General of the United Nations that such information has been communicated.

Declaration made upon signature and confirmed upon ratification:
“If a dispute concerning the interpretation or application of the Convention is not settled by negotiation, the Slovak Republic prefers its submission to the International Court of Justice in accordance with article 22, paragraph 1 of the Convention. Therefore a dispute, to which the Slovak Republic might be a Party can be submitted to arbitration only with the explicit consent of the Slovak Republic.”

Source: Multilateral Treaties Deposited with the Secretary-General, United Nations, New York ST/LEG/SER.E), as available on http://www.un.org/Depts/Treaty on August 14, 1997.”

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WHAT ARE THE FORCED MIGRATION PROJECTS?

The Forced Migration Projects of the Open Society Institute were established to monitor circumstances in different regions of the world in order to provide the international community with early warning of forced movements of people, as well as to identify the social, economic, and political conditions which cause such dislocations. The Projects encourage early and effective humanitarian responses to migration emergencies; advocate the humane treatment of those unable to return; urge permanent solutions for those displaced; and promote measures that avert individuals’ need to flee. The Projects gather information concerning displacements and the circumstances that motivate them, concentrating primarily on the countries of the former Soviet Union, the former Yugoslavia, and the Americas.

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The Open Society Institute is a private operating and grantmaking foundation that promotes the development of open societies around the world. OSI develops and implements a variety of domestic and international programs in the areas of educational, social, and legal reform, and encourages public debate and policy alternatives in complex and often controversial fields. OSI is part of a network of more than 25 autonomous nonprofit foundations and other organizations created and funded by philanthropist George Soros in Central and Eastern Europe, the former Soviet Union, Haiti, Mongolia, and South Africa, as well as in the United States.

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