Lo status del personale ONU e del personale associato nelle operazioni di peacekeeping

The notions of UN personnel and associated personnel can be found in the 1994 Convention on the safety of United Nations and associated personnel. Each of the two categories includes different subcategories. The position of the military members of UN peacekeeping operations is particularly complex, due to their double nature of State agents and components of a UN operation. This contribution mainly concentrates on the questions relating to the exercise of criminal jurisdiction and to the connected immunity of peacekeepers. Art. 105, § 2 of the UN Charter, providing for privileges and immunities of UN officials, does not apply to the military component of peace-keeping operations. The privileges and immunities of UN officials is in fact specified in the 1946 Convention on the privileges and immunities of the United Nations. As for the military members of the mission, the 2007 Model MOU between the UN and the State contributing resources to the UN peacekeeping operation provides that the sending State exercises exclusive jurisdiction over any crimes or offences committed by them. The main instrument for the definition of the status of peacekeepers is, however, the Status of forces agreement (SOFA) between the UN and the territorial sovereign. The 1990 UN Model SOFA remains relevant today, although recent SOFAs tend to introduce certain modifications: the tendency to apply it provisionally until the mission’s specific SOFA is concluded needs to be taken into account. The UN Model SOFA confirms the exclusive criminal jurisdiction of the sending State on possible criminal offences committed by military members, who enjoy thereby absolute immunity from the jurisdiction of the territorial State, although remaining bound to respect its laws. This rule of immunity is constantly applied by practice. It protects the interests of the UN, more than those of the single militaries, but it also meets the concerns of sending States, which would otherwise be reluctant in engaging their troops. Scholars debate on the legal grounds of such a rule. According to some, this provision would have acquired the status of customary international law. The present author is more convinced by the theory according to which the rule depends on the consent of the territorial State. The rule is certainly beneficial to the possibility of continuing to engage member States in UN peacekeeping. One cannot say the same as far as abuses committed by peacekeepers are concerned: the phenomenon is serious, although it only concerns a minority of peacekeepers. It is to be hoped that the control and preventative measures being adopted within the Secretariat, also following indications by the Security Council, will produce some effects.