GA/L/3280
21 October 2005
Legal Committee Speakers Identify Issues Involved in Effort to Enlarge Protections for United Nations Personnel
New Protocol to Security Convention May Exclude Disaster Relief Work from Operations to Be Covered; Limited Adherence to Treaty Noted
NEW YORK, 20 October (UN Headquarters) -- The impunity that followed attacks on personnel involved in United Nations operations was a reminder of the importance of strengthening the legal regime that protected them in risky situations, delegates said, as the Sixth Committee (Legal) this morning concluded its debate on expanding the scope of the 1994 Convention on the Safety of United Nations and Associated Personnel.
Negotiations to finalize an optional protocol to the Convention are continuing. Issues being discussed include which types of operations should be covered in the scope of the Convention, for example, peacebuilding, pre- and post-conflict situations, as well as the delivery of humanitarian assistance in natural disasters.
The representative of Australia pointed out that no one had yet been held accountable for the deplorable attack on UN headquarters in Baghdad. As a strong proponent of a robust protocol to the Convention covering the broadest range of UN operations, Australia had moderated its position to accept that protections of the extended regime might be afforded to only a subset of UN operations, to be determined with reference to a perceived risk. It was reluctantly willing to accept that States might opt out from applying the Protocol to a UN operation providing disaster relief assistance, even though such situations often involved a breakdown in law and order.
The delegate of Brazil said that with only 79 States parties to the safety Convention, it was necessary to reflect on the causes of resistance to adherence, especially by the host States of UN operations. The negotiations on the Protocol demonstrated that the protection regime involved, for many countries, sensitive issues of both a legal and political nature. If the interests of the traditional host States were not reflected in the new instrument, the UN again risked having an instrument with a low level of participation. Brazil, therefore, believed that pre-conflict situations should not be covered and that the role of the host State in assessing the situation in its country regarding emergency humanitarian assistance must be preserved.
Also speaking in the debate were representatives of Kenya, Switzerland, Uganda, Sudan, Russian Federation, Republic of Korea, Burkina Faso, Senegal, Cuba, Mexico, New Zealand, Liechtenstein, Canada, Venezuela, Nigeria, China, Guatemala, Argentina and Uruguay.
The Convention's key provisions require Parties to take all appropriate measures to ensure the safety and security of United Nations and associated personnel and for the prompt release and return of captured or detained personnel. The treaty requires Parties to establish as criminal offences, among others, the murder, kidnapping or any other attack upon the person or liberty of any United Nations or associated personnel; and, 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.
The Sixth Committee will meet again at 10 a.m. tomorrow, 21 October, to consider the report of its Working Group on Measures to Eliminate International Terrorism. The Committee is also expected to hear the introduction of two draft resolutions concerning the work of the United Nations Commission on International Trade Law (UNCITRAL) at its thirty-eighth session, and a draft United Nations convention on the use of electronic communications in international contracts that was adopted by UNCITRAL at that session.
Background
The Sixth Committee (Legal) met this morning to continue its debate on expanding the scope of legal protection under the Convention on the Safety of United Nations and Associated Personnel. (For further information, see Press Release GA/L/3279 of 19 October.)
Statements
ROSE MAKENA MUCHIRI (Kenya) said that, as a regular troop contributor to United Nations peacekeeping missions and host to several UN bodies, Kenya provided a convenient operating base for United Nation personnel in Africa. She, therefore, appreciated and strongly supported initiatives aimed at strengthening the safety and security of UN and associated personnel. She was concerned that, despite the acknowledged importance of the 1994 Convention, it had not received universal acceptance. She urged Member States that had not yet done so to consider becoming parties to the Convention.
Even as work continued towards finalization of the Optional Protocol, it was important not to overlook the immediate need to ensure protection, she said, in supporting such interim measures as including key provisions of the Convention in status-of-forces and status-of-mission agreements. Kenya supported, in principle, the inclusion of the concept of "peacebuilding". However, that concept should be limited to conflict and post-conflict situations. While Kenya was flexible on the applicability of the Optional Protocol concerning delivery of humanitarian assistance in response to natural disasters, the necessity for an "opt-on" or "opt-out" declaration should be carefully considered since it could create an unnecessary bottleneck in the implementation of the Protocol. Also, while it was the primary duty of the host State to protect UN and associated personnel, those personnel were also expected to respect the laws of the host State.
PAUL SEGER (Switzerland) said finalization of an Optional Protocol to the safety convention was completely realistic, and he called for the continuation of negotiations towards that end. He supported the adoption of a text by consensus and as soon as possible. However, Optional Protocol must constitute real progress and ensure the broadest protection possible to United Nations and associated personnel. He expressed the hope that the relationship between humanitarian law and the Convention not be set aside, and in that context, he said his delegation was grateful to Costa Rica for its proposal on the issues.
NYIRINKINDI ROSETTE KATUNGYE (Uganda) said her country aligned itself with the African Group statement, made by the representative of Namibia yesterday. It reflected Uganda's national position. She said Uganda truly hoped that the Ad Hoc Committee could still comply with the need expressed by world leaders at their 2005 summit to finalize negotiations on the Optional Protocol. Like others, she said, her delegation had made several concessions in the hope of speeding up the conclusion of the instrument. She called for the deletion of the brackets in article III of the Chairman's revised text, which referred to article 8 of the 1994 Convention, and requested that the flexibility shown to the Ad Hoc Committee by Uganda be reciprocated.
She said she wished to emphasize points in the African Group statement, including the fact that the United Nations had responsibilities to ensure the safety of its personnel. Attention should be paid by Member States and the Secretary-General to the recommendations of the African Group on meeting the needs of the personnel stationed on their territories and in neighbouring countries. She urged cooperation by Member States for early finalization of the text on Optional Protocol.
YASIR A. ABDELSALAM (Sudan) said he also aligned itself with the African Group statement. Attacks on United Nations personnel were criminal acts to be condemned. He said Sudan had consistently called for the broadening of the scope of the 1994 Convention. The reasons why it had not become universal should be examined, as should the reasons why Member States were not complying with its provisions. He said United Nations personnel should respect the laws of host countries.
ANNA LYUBALINA (Russian Federation) said the pace and spirit in the negotiations on the draft of a protocol suggested that finalization of the Optional Protocol was likely during the current session. Peacebuilding was not a new term; there was no need to further refine or develop the term for the purposes of the Protocol. In the delivery of emergency humanitarian assistance in natural disasters, she said, the main threats arose from such circumstances as looting and raiding. The primary responsibility for control of such situations fell to the host State which must make accommodations to respond. The Costa Rican proposal concerning the Convention and humanitarian law could be interpreted as permitting a legal use of force against United Nations and associated personnel and could create doubt. The Russian Federation was willing to work positively and constructively to achieve a speedy conclusion to the draft of the optional protocol.
AHN EUN-JU (Republic of Korea) said that, along with the efforts to complete a protocol, efforts should continue to achieve universality of the Convention. She took note of the Secretary-General's recommendation that, given the difficulty of declaring "an exceptional risk", the need for such a declaration should be dispensed with. The Protocol could achieve that. There was now general agreement that peacebuilding was an inherently risky endeavour and, thus, should not require a declaration of exceptional risk.
Member States should not single out a certain situation and then leave peacebuilding operations conducted during that situation, outside of the Protocol in the hope that a declaration mechanism would be effective. The triggering mechanism in the safety Convention was known not to function well in practice. Peacebuilding was an evolving concept and peacebuilding operations would evolve in response to the needs of societies in distress.
SABINE BAKYONO (Burkina Faso) said her country had participated actively in United Nations peacekeeping operations and currently had troops serving in Burundi, Democratic Republic of the Congo and Haiti. She condemned attacks against United Nations personnel who, she said, worked in difficult circumstances. Efforts should be made to resolve the shortcomings of the 1994 Convention. Her delegation also associated itself with the African Group statement made by Namibia yesterday. She expressed the hope for an early finalization of the text on the Optional Protocol. States that had not ratified the 1994 Convention must be reminded to do so. She welcomed the Secretary-General's suggestion that provisions of the 1994 Convention should be incorporated into status-of-forces agreements.
PAUL BADJI (Senegal) said his delegation supported the African Group statement. United Nations personnel were performing useful tasks in maintaining international peace and security, and it was essential for the international community to ensure their security and protection. He said provisions of the Convention should be strengthened to deal with new forms of violence being perpetrated against United Nations personnel. Efforts should be made for the adoption of the Optional Protocol, and its provisions harmonized with other legal instruments such as the International Criminal Court. The future of peacekeeping operations and other United Nations operations depended on the common efforts to ensure protection of those involved in the field.
SORAYA ALVAREZ NÚÑEZ (Cuba) said attacks on United Nations and associated personnel were unjustifiable and criminal acts that must be seriously punished in accordance with national legislations of States. While Cuba was not a State party to the Convention, its national law defined those acts as criminal. She believed that the best way of improving protection for UN personnel was through national legislations and incorporating the relevant provisions of the Convention into those laws.
She highlighted elements that should be taken into account in the negotiation Optional Protocol. It would be inappropriate to broaden the scope of application of the Convention to all types of UN operations, or the "presence" of the United Nations, she said, as this would create an imbalance in the legal regime and place an unnecessary burden on receiving States. United Nations operations by their very nature were inherently risky endeavours. The term "peacebuilding" did not enjoy universal acceptance. A definition of it did not exist in political doctrine nor international law and nor was it defined in national legislations. It should be defined for the purposes of the protocol, since that would contribute to universal acceptance of the protocol. Cuba did not believe that natural disasters should be included within the scope of application; those situations did not carry exceptional risks. She said any attempt to adopt a protocol without taking certain elements into consideration would be counterproductive and might hinder ratifications leaving the Protocol to the sane fate as the 1994 Convention.
JUAN MANUEL GÓMEZ ROBLEDO (Mexico) said that if the same spirit of cooperation prevailed in the continuing negotiations on the Optional Protocol, as during the Working Group's current sessions, finalization of the Protocol would be achieved. Mexico believed that an instrument that refrained from defining the term "peacebuilding" would be in keeping with the evolving nature of the concept that derived its definition from the practice of States, as well as the national authorities of each State party. It would be wise not to attempt to define the term in the context of the Protocol to Convention
On the automatic application of the Protocol to operations of humanitarian assistance in natural disasters, he said that allowing a declaration without specifying when such a declaration had to be made was a good compromise and that should be seriously considered. He added that there must be a tangible risk to operations for the application of the Convention.
JENNIFER MCIVER (New Zealand) said her country and Ukraine took a lead role in developing the Convention on the Safety of United Nations and Associated Personnel in 1994, which offered a legal framework for dealing with crimes against United Nations personnel. New Zealand welcomed the call upon States by world leaders in the World Summit Outcome Document to consider becoming party to the Convention and on the need for concluding the optional protocol to expand coverage of the Convention. Universal adherence to the Convention was essential to demonstrate to United Nations personnel on missions that the international community was committed to ensuring their protection.
She said risks confronting personnel on the ground had no regard for the distinctions made by the Convention. That was why it was vital that a protocol be concluded to expand the coverage of the 1994 Convention. The highest standards of behaviour by United Nations personnel should be insisted upon, while at the same time they were given the protection they needed to carry out their work. She believed delegations were now in good position to deliver on the commitment of the world leaders that the text on the Optional Protocol be finalized.
STEFAN BARRIGA (Liechtenstein) said the shortcomings of the 1994 Convention on the Safety of United Nations and Associated Personnel were well known to delegations. There had been work for some years on a solution which should achieve several goals. These would include expanding the scope of legal protection of the Convention, while addressing the legitimate concerns of host States, and attracting more ratifications of the instrument to make it universal. In the consultations, delegations had come close to a text agreeable to all interested States, including those most affected -- countries hosting United Nations operations and those contributing personnel. He said Liechtenstein (whose representative was chairing the negotiations) wished those efforts to continue over the next few days, so that the text could be finalized without any further delay.
HUGH ADSETT (Canada) said the legal protections available to United Nations and associated personnel in their difficult work should be strengthened. Completing the draft protocol, in order to dispense with the need for a declaration of exceptional risk under the 1994 Convention, should be a priority. Canada was pleased with the significant progress that had been made towards agreement on the draft protocol. It was now time for the momentum to be seized for the conclusion of the text.
LAILA TAJ EL DINE (Venezuela) said her country supported the strengthening of the 1994 Convention to prevent attacks on United Nations personnel. There was also need for closer international cooperation to ensure the protection of those personnel. At the same time, the personnel should respect the laws of the host countries. It would be a mistake for the concept of "exceptional risk" to be deleted from the draft text of the Protocol because of unforeseen situations that might arise. The solution to the problems over that provision could be a definition of the term "exceptional risk". She believed that national disasters -- which did not pose a risk to United Nations operations -- should be excluded in that context. The term "peacebuilding" should be abandoned, she said, adding that it had caused problems. Delegations should work for consensus for the text on the Optional Protocol to be adopted and protection extended to United Nations personnel.
AMINU BASHIR WALI (Nigeria) said his country expected expeditious action on the completion of the draft Optional Protocol that would address inadequacies in the 1994 Convention. Nigeria reaffirmed its support for General Assembly resolution 59/47 which, inter alia, urged Member States to take all necessary measures to prevent attacks against United Nations and associated personnel, and to ensure those crimes were punished. Nigeria was convinced that robust peacekeeping and other United Nations missions would deter attacks on United Nations personnel and properties. He said the missions should be adequately funded and equipped, and their military and police components increased in size to protect those properties and personnel. He called for an early finalization of the draft instrument.
GUAN JIAN (China) said the improving the mechanism for protecting UN and associated personnel would be of great help to the maintenance of international peace and security as the august goal of the United Nations. The main purpose of the Optional Protocol was to render legal protection to the United Nations and associated personnel engaged in UN operations which entailed particular risks. It should, therefore, be applied to UN operations delivering humanitarian, political or development assistance in peacebuilding. However, for UN operations conducted solely for the purpose of responding to a natural disaster a State could declare that the Protocol not be applied. Such a declaration could be made when the State became a party and up until the moment prior to the deployment of the operation.
China insisted that the host State had a right to make such a declaration, he continued, adding that it was not with the intention of relieving a host State of an obligation to protect the UN and associated personnel, but rather in recognition that those operations were not of particular risk. Such a distinction would alleviate the pressure and burden on the UN and the contributing States on organizing and deploying such operations and would encourage more States to become parties.
CARLOS SERGIO SOBRAL DUARTE (Brazil) said his country had consistently defended the universal ratification of the safety convention as essential to guarantee the safety of UN and associated personnel. Although supplementary instruments, such as the Protocol, had proven to be necessary, the universality of the Convention remained a key element in the discussion of the legal protection issue. He welcomed the inclusion of core provisions of the Convention into status-of-forces and status-of-mission agreements.
With only 79 States parties to the convention, he said it was necessary to reflect on the causes of resistance to adherence, especially by the host States. The negotiations demonstrated that the protection regime involved, for many countries, sensitive issues of both a legal and political nature. If the interests of the traditional host States were not reflected in the new instrument, the United Nations again risked having an instrument with a low level of participation. That would weaken the legal protection regime, with undesirable consequences to UN operations. He said Brazil, therefore, believed that pre-conflict situations should not be covered, and that the role of the host State in assessing the situation in its country regarding emergency humanitarian assistance must be preserved.
ROBERTO LAVALLE-VALDÉS (Guatemala) recalled that in 1973 the United Nations had adopted a multilateral treaty of universal scope for the protection of diplomats, who had similar functions to United Nations personnel. That treaty, the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, had created a broad system of protection. If one considered the comparisons that could be drawn with diplomats and UN and associated personnel, it was highly justifiable that those in situations of particular danger would be entitled to similar protections as afforded by the 1973 treaty. His Government favoured the broadest protections possible under the safety convention and assurance that those who attacked UN and associated personnel would not escape justice. While he would have preferred the broadest scope of application, he was realistic and was prepared to cooperate in a consensus.
DIEGO MALPEDE (Argentina) said there was a primary international obligation on the part of a host State to protect UN and associated personnel on its territory. He expressed regret that most States where UN operations were being conducted had not ratified the Convention. While he understood there were reasons for that, the lives of UN personnel … "of our Organization" … were at stake. Argentina had 902 personnel in nine peacekeeping operations which raised its concern and fortified its determination about the need to reach agreement on the Protocol, and extend protection to persons not covered by the Convention. There was also need to increase the number of States parties, in particular in those countries where conflicts threatened the safety and security of UN and associated personnel.
He said Argentina shared the position that there should be the broadest protection possible, but understood the need to be realistic and that it would be necessary to make concessions to in attempting to achieve consensus. The Committee should be more pragmatic and less ambitious as legislators. As to emergency humanitarian assistance in natural disasters, it was necessary to take care not to add an additional burden on the affected Governments, whose priority was to provide assistance to victims of the disaster. Concerning the term "peacebuilding", he said he believed the Committee should try to make progress on the basis of the description of peacebuilding in the Outcome Document.
SUSANA RIVERO (Uruguay) said it was not necessary for the concept of peacebuilding to be defined, as it had already been spelled out in the 2005 World Summit Outcome Document. She also noted the proposal for the establishment of a peacebuilding commission. She said the commission should be broad-based and its members should operate on consensus. Her delegation agreed with the proposal by the United Kingdom and Canada on paragraph 3 of article 2 of the draft text, concerning the ability of a host country not to apply the provisions of the Optional Protocol. She also said that there was no need for the inclusion of the term "element of risk" in the text, since that might discourage wider application of the Protocol. Uruguay regarded United Nations peacekeeping operations as important and that was why it had very early been a troop contributor to such operations.
BEN PLAYLE (Australia) recalled that no one had yet be held accountable for the deplorable attack on UN headquarters in Baghdad, and quoted the Secretary-General as saying it offered "yet another appalling example of the impunity that so often followed assaults on United Nations personnel around the world, be they peacekeepers, humanitarian workers or others". It was a timely reminder of the importance of the agenda item as were the attacks on UN personnel in the past year in the Democratic Republic of the Congo, Afghanistan, Sudan and elsewhere.
He said Australia particularly welcomed the willingness to extend automatic application of the Convention to UN operations delivering humanitarian, political or development assistance in "peacebuilding". It was a good compromise solution. He encouraged States, in practice, to adopt a broad interpretation of the term which included all phases and elements of peacebuilding operations. However, Australia was reluctantly willing to accept a narrow provision enabling States to opt-out from applying the Protocol to a UN operation providing emergency humanitarian assistance in response to natural disasters. History showed that natural disasters often led to a breakdown in law and order. His Government was a strong proponent of a robust protocol which would apply the Convention automatically to the broadest range of UN operations. It had reluctantly moderated its position to accept that protections of the extended regime might be afforded to only a subset of UN operations, to be determined with reference to a perceived risk. Those were substantial concessions and the negotiated draft was significantly less than Australia had sought and less protection than UN and associated personnel deserved, but he recognized that the text was what was achievable.
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