Privileges and Immunites (SOFAs / SOMAs)

MAJ Dan Tran LTO

QUESTIONS?SOFAs, Agreements, MOUs

SOFA

Cont. Nation(s)

• To enable effective international

work of diplomats, International Organisations, military forces and civilians working in another state, without undue interference from domestic law

• But - there should be accountability in some jurisdiction or process

Issues / Challenges

• UN Charter • Bi-lateral / Multi-national Treaties• MOUs and agreements• domestic laws and policies

What law applies?

United Nations

Immunity – International Instruments and Conventions

Article 105 of the United Nations Charter provides that UN pers shall enjoy “such privileges and immunities as are necessary for the independent exercise if its functions…”

Convention on the Privileges and Immunities of the United Nations (CPIUN) 17 Sep 1946

S 18 (a) provides that UN shall be “immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity”.

Applies to:

Experts on MissionJuridical personality

Property AssetsPremises

CivPol and UNMOsMay be waived

What does this mean?

• UN officials, property and assets • Enjoy jurisdictional immunity

• BUT immunity is not absolute in some of its commercial activities (eg. Contracts)

Exceptions

• jurisdictional immunity may be waived by the sending country

• The host nation may at any time and for any reason declare a particular member of the diplomatic staff to be persona non grata. Sending state must recall this person within a reasonable period of time, or he/she loses diplomatic immunity

QUESTIONS?

Military peacekeepers

• In most cases extraterritorial military jurisdiction may be applied:

Eg. Uniform Code of Military Justice (US)

Defence Force Discipline Act (Aus)

When does it apply?• Facilitated by agreement with host nation

• Exercise of jurisdiction is not blanket and may be quite limited

• Eg. Host nation exercises exclusive jurisdiction over TCN forces WRT offences committed domestically and punishable by domestic law

• TCN asserts jurisdiction over its forces WRT offences committed domestically and but not punishable by domestic law

How does it apply?• In agreement with host nation

• Exercise of jurisdiction may be waived

• Cooperation in arrest/custody/ investigation

• notifications

SOFAs / SOMAs

• SOFAs: Status of Forces Agreements

• SOMAs: Status of Mission Agreements

SOFAs / SOMAs

• Where a military force enters another state (other than during armed conflict) it is subject to the other state’s law

• SOFA can vary effect of Host Nation domestic law

Types of SOFAs

• Standing SOFA– Treaty negotiated between two countries,

normally when AS forces will be based in a country for an extended period of time

– Amendment/renewal requires involvement of DFAT & A-Gs

– Public document

• Operational SOFA– non-legally binding arrangement – time-limited to the duration of the operation– May be classified– Not a public document

Most important – SOFAs est. legal status of PO force with govt. of host nation.

generally, host nations have the right to exercise jurisdiction over any matter occurs in its territories

4 types of immunities: Criminal Civil Administrative Legal Process

What does it do?

Criminal - Restricts any criminal proceeding

Civil - Restricts any cause of action of a personal nature i.e. For injuries, or redress

Administrative - Restricts actions concerning the exercise of certain procedures or authoritative powers. (i.e. Jurisdiction Reviews etc.

What does this mean?

Legal process - Restricts proceedings commenced in a court of law.

Most cases, contributing troops are subject to the domestic laws of the host nations.

Criminal issues vary, but the typical provision is that TCN has jurisdiction over crimes committed either by a service member against another service member or by a service member as part of his or her military duty, but the host nation retains jurisdiction over other crimes

If no immunity exists, troops are subjected to domestic laws.

Blanket immunity ?

Criminal matters- Arrest

- Custody

- Investigations

- Notifications

- Consultation

UN Model Status of Forces Agreement (SOFA)

• Now applied by UNSC resolution until any other agreement entered into

• Contains standard provisions on immunities and privileges

Facilitation of International Assistance Act (S.I.)

17. (1) Members of the visiting contingent, the assisting country, and any other country whose personnel are members of the visiting contingent, shall have immunity from legal proceedings in Solomon Islands courts and tribunals in relation to actions of the visiting contingent or its members that are taken in the course of, or are incidental to, official duties

Other matters

• Rights of entry and exit– Immigration– Customs

• Freedom of movement within the host nation

• Weapons carriage within host nation territory

• Criminal jurisdiction– Death penalty

• Licences, eg. medical, driver’s• Liability for damage caused by force

members, including third party claims• Death of a member of the force

TRAINING

Essential component is to let operators know what law is applicable and their rights.

Guidelines to Commanders and soldiers of the applicable laws, Immunities, and authorities of different “players” in the peacekeeping operation.

Development in IHR law, accountability and enforcement has measures and guidelines on reporting, investigation and prosecution of IHR crimes.

Accountability Issues

• Examples: sexual exploitation, trafficking in women

• Other scandals: murder, fraud, injury and damage

UN MISSIONS

SomaliaBosnia

Sierra LeoneCongoLiberia

QUESTIONS?