Privileges and Immunites (sofas / somas) maj dan Tran

Privileges and Immunites (SOFAs / SOMAs)

• MAJ Dan Tran

• LTO

QUESTIONS?

• 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

• UN Charter

• Bi-lateral / Multi-national Treaties

• MOUs and agreements

• domestic laws and policies

United Nations

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

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

Accountability Issues

• Examples: sexual exploitation, trafficking in women

• Other scandals: murder, fraud, injury and damage

UN MISSIONS

• Somalia

• Bosnia

• Sierra Leone

• Congo

• Liberia

QUESTIONS?