Privileges and immunities

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Privileges and Immunites
(SOFAs / SOMAs)
MAJ Dan Tran
LTO
SOFAs, Agreements, MOUs
QUESTIONS?
SOFA
Cont. Nation(s)
Issues / Challenges
• 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
What law applies?
•
•
•
•
UN Charter
Bi-lateral / Multi-national Treaties
MOUs and agreements
domestic laws and policies
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 Mission
Juridical personality
Property Assets
Premises
CivPol and UNMOs
May 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
What does it do?
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 this mean?
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.
Legal process - Restricts proceedings
commenced in a court of law.
Blanket immunity ?
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.
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
Somalia
Bosnia
Sierra Leone
Congo
Liberia
QUESTIONS?
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