¹ The Convention was adopted by consensus in General Assembly Resolution 49/59 (Dec. 9, 1994), and was opened for signature at United Nations headquarters in New York on December 15, 1994. It is reprinted in 34 ILM 482 (1995).

² The UN General Assembly in Resolution 48/37, UN GAOR, 48th Sess., Supp. No. 49, Vol. 1, at 333, UN Doc. A/48/49 (1993), established the Ad Hoc Committee on the Elaboration of an International Convention Dealing with the Safety and Security of United Nations and Associated Personnel. The ad hoc committee held sessions at United Nations headquarters from March 28 to April 8, and from August 1 to 12, 1994. See Report of the Ad Hoc Committee on the Work Carried Out During the Period from 28 March to 8 April 1994, UN Doc. A/AC.242/2 (1994); and Report of the Ad Hoc Committee, UN Doc. A/49/22 (1994). The committee recommended to the General Assembly that it reestablish a working group in the framework of the Sixth Committee to undertake further work. The Sixth Committee working group reached final agreement on the text of the Convention, Report of the Working Group, UN Doc. A/C.6/49/L.4, annex (1994), which was adopted by the Sixth Committee by consensus on November 16, 1994. See Report of the Sixth Committee, UN Doc. A/49/742 (1994).

³ The Secretary-General of the United Nations observed that, with respect to attacks against personnel of the organizations of the United Nations system,

[t]here were 33 fatalities in the 24-month period from 1 January 1992 to 31 December 1993. Of the 33 staff members concerned, 16 were killed in areas where no government audiorities existed de facto or where such authorities were unable to maintain order and hence to discharge their responsibilities by protecting persons within their jurisdiction. Reference is made to fatalities in Somalia (3), southern Sudan (2), Afghanistan (4), Angola (5) and Bosnia Herzegovina (2). Of the 33 staff members referred to above, 29 suffered gunshot wounds, and there are grounds to believe that at least 6 were deliberately executed. …

… The number of fatalities among United Nations military contingents has also dramatically increased during the past two years. While the grand total for all past and ongoing missions amounts to 1,074 fatalities, in 1993 alone 202 personnel were killed.

Note by the Secretary-General, UN Doc. A/AC.242/1 (1994).

⁴ See, e.g., SC Res. 859 (Aug. 24, 1993) (demanding under chapter VII that the safety and operational effectiveness of UN Protection Force in the former Yugoslavia (unprofor) and Office of UN High Commissioner for Refugees (unhcr) personnel in Bosnia be fully respected by all parties); SC Res. 865 (Sept. 22, 1993) (condemning all attacks on personnel of the UN Operation in Somalia (unosom ii) and reaffirming that those who have committed or ordered commission of such criminal acts will be held individually responsible for them); SC Res. 925 (June 8, 1994) (emphasizing the need for all appropriate steps to be taken to ensure the security and safety of the operation and personnel engaged in the operation in Rwanda).

⁵ UN Doc. A/C.6/48/L.2 (1993).

⁶ UN Doc. A/C.6/48/L.3 (1993). The United Nations usually enters into status-of-forces or status-of-mission agreements with host countries when it deploys forces or other personnel in connection with an operation. See Comprehensive Review of the Whole Question of Peace-keeping Operations in all their Aspects, Model Status of Forces Agreement for Peace-keeping Operations, Report of the Secretary-General, UN Doc. A/45/594 (1990). The United States similarly enters into status-of-forces agreements with host countries when it stations forces abroad. These agreements normally provide for the privileges and immunities to be accorded the deployed personnel. The Convention under discussion in this Note does not, however, provide for or require the provision of specific privileges and immunities.

⁷ The states that had signed the Convention as of that date, in order of signature, are Argentina, Canada, Denmark (also ratified), Finland, New Zealand, Norway, Panama, Portugal, Sweden, Ukraine, Italy, Haiti, Spain, the United States, Bangladesh, France, Samoa, Germany, Brazil, Sierra Leone, Senegal, Tunisia, the Philippines, Pakistan, Malta and Poland.

⁸ UN Charter Art. 24.

⁹ A number of delegations objected to the declaration trigger mechanism, arguing that the Security Council or General Assembly might not act promptly (which would create a gap in protection) and that requiring a public statement of this type might cause political problems for nations contributing personnel because they would be forced to justify placing their citizens “at risk.” The U.S. delegation sought to address these concerns when it noted that the U.S. Government does “not believe that the need to obtain a declaration poses a barrier to efficient application of the Convention. We trust that bodies will not hesitate to make such declarations where there is any reasonable concern about the degree of risk.” U.S. Statement in the UN General Assembly at the adoption of the Convention (Dec. 9, 1994), UN Doc. A/49/PV.84, at 15 (1994) [hereinafter U.S. Statement].

¹⁰ The Convention would also cover operations such as that undertaken by the U.S.-led Multinational Force (MNF) in Haiti because that force was authorized under a Security Council mandate, and the linkage between the MNF and the UN personnel who were part of the unmih is established in relevant resolutions of the Council, such as SC Res. 940 (July 31, 1994).

¹¹ Article 2 common to the four Geneva Conventions provides the basis for application of the Conventions to international conflicts:

In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of the High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

See, e.g., Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, Art. 2, 6 UST 3114, 75 UNTS 31.

Common Article 2 speaks in terms of “High Contracting Parties.” As the United Nations is not a party to the Geneva Conventions, some commentators contend that the United Nations and its forces cannot be bound by its terms. Whether or not this is the case, the Conventions have become widely recognized as applying by virtue of customary international law to all forces engaged in international armed conflict. The negotiators of the Convention that is the subject of this Note tried to avoid some of these pitfalls by referring in Article 2(2) to “the law of international armed conflict” generally, rather than the Geneva Conventions. The former most certainly includes the law stated in the latter.

¹² There may be some situations in which attacks against peacekeepers, criminalized under this Convention, lead to a level of conflict that results in the applicability of common Article 2, i.e., international armed conflict. Nevertheless, the negotiators of the Convention intended that all attacks outside the context of chapter VII enforcement operations be criminalized. As a result, there is a narrow band of cases (combat situations in non-chapter VII peacekeeping operations) where attackers can be both criminals and subject to the rules applicable to combatants in international armed conflicts. An important reason for permitting this overlap is to ensure that peacekeepers do not lose the benefits of the Convention simply because they respond in self-defense and fighting ensues. Domestic courts, reviewing such self-defense situations and misconstruing the Geneva Conventions or having difficulty figuring out when “combat” has commenced, might otherwise leap to the conclusion that actions of the attackers are covered by the Geneva Conventions and not by this Convention.

¹³ U.S. Statement, supra note 9.

¹⁴ Dec. 14, 1973, 28 UST 1975, 1035 UNTS 167.

¹⁵ Dec. 17, 1979, TIAS No. 11,081, 6 ILM 1456.

¹⁶ Other relevant instruments establishing universal jurisdiction include the Hague Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 22 UST 1641, 10 ILM 133 (1971); and the [Montreal] Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, Sept. 23, 1971, 24 UST 564, 10 ILM 1151.

¹⁷ The United States will implement this Convention through legislation similar to that for the Protection of Diplomats Convention in 18 U.S.C. §§112, 1116 (1988).

¹⁸ See Report of the International Law Commission on the work of its twenty-fourth session, UN GAOR, 27th Sess., Supp. No. 10, at 95, UN Doc. A/8710/Rev.1 (1972) [hereinafter 1972 ILC Report].

¹⁹ See Michael C. Wood, The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, 23 Int’l & Comp. L.Q. 791, 803 (1974).

²⁰ With respect to the same language in the Protection of Diplomats Convention, the ILC noted:

The obligation of the State where the alleged offender is present will have been fulfilled once it has submitted the case to its competent authorities … . It will be up to those authorities to decide whether to prosecute or not, subject to the normal requirement of treaty law that the decision be taken in good faith in the light of all the circumstances involved.

1972 ILC Report, supra note 18, at 97.

²¹ Robert Rosenstock, International Convention Against the Taking of Hostages: Another International Community Step Against Terrorism, 9 Denv. J. Int’l L. & Pol’y 169, 181 (1980).

²² See UN Model Status of Forces Agreement, supra note 6. Note that in the UN context, these agreements are called either status-of-forces or status-of-mission agreements with no difference in meaning.

²³ Convention, supra note 1, Preamble para. 2.

²⁴ Art. 118, Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135.

²⁵ SC Res. 987 (Apr. 19, 1995).