¹ See Preamble to resolution 49/59 adopted by the United Nations General Assembly on 9 December 1994.

² For details of these losses see M. Arsanjani:Protection of United Nations Personnel, paper submitted on 11 March 1995 during a colloquium held at the University of Durham, draft, pp. 2 and 3.

³ See Note by the Secretary-General, Doc. A/AC.242/1 of 25 March 1994, paragraph 4.

⁴ Ibid. For other statistics on the number of victims see Arsanjani, , op. cit., p. 1; United Nations Press Release GA/PK/125,11 April 1995, p. 1; United States Mission to the United Nations, Press Release, 217–(94), 9 December 1994, p. 1Google Scholar.

⁵ See Boutros Boutros-Ghali, An Agenda for Peace, Doc. A/47/277–S/24111, June 1992, paragraph 68.

⁶ See Press Release GA/PK/125, 11 April 1994, p. 5; Doc. S/25493.

⁷ Ibid, UNGA 49th Session, item 141, Statement delivered by the representative of New Zealand, Friday, 9 December 1994, p. 1; Doc. A/48/144.

⁸ Doc. A/48/349 of 27 August 1993.

⁹ See Doc. A/AC.242/1, Note by the Secretary-General, 25 March 1994, paragraphs 11, 17.

¹⁰ Resolution SC 868 (1993) of 29 September 1993. For an analysis of the resolution, see Doc. A/AC/241/1, paragraphs 12, 17.

¹¹ This need had also been recognized at the International Conference for the Protection of War Victims convened by the Swiss government (Geneva, 30 August-1 September 1993). Particular attention was drawn to it in paragraph 7 of Part I and in paragraphs 8 and 9 of Part II of the Declaration adopted there. For the text of the Declaration, see International Review of the Red Cross, No. 296, 09–10 1993, pp. 377–381 Google Scholar.

¹² Doc. A/C.6/48/L.2 and Doc. A/C.6/48/L.3.

¹³ See Doc. A/AC.242/1 of 25 March 1994, paragraph 3.

¹⁴ Ibid, paragraph 8.

¹⁵ See note 12 above.

¹⁶ Doc. A/AC.242/L.2 of 16 March 1994.

¹⁷ See note 12 above and Press Release GA/PK/125 of 11 April 1994, pp. 2–3.

¹⁸ A comparison of the different drafts shows that, subject to a few amendments, Articles 1, 2 and 10–20 of Doc. A/AC.242/L.2 are drawn from the earlier New Zealand draft and Articles 3–9 and 22–27 from the text proposed by Ukraine.

¹⁹ See Doc. A/AC.242/L.3.

²⁰ See Doc. A/AC/242/1 of 25 March 1994.

²¹ See Doc. A/49/22, Report by the Ad Hoc Committee on the elaboration of an international convention dealing with the safety and security of United Nations and associated personnel.

²² Ibid., Annex.

²³ See Doc. A/AC.242/1994/CRP.2 of 8 April 1994.

²⁴ See Doc. A/49/22, Annex I, summary of the debate.

²⁵ See Doc. A/AC.242/1994/CRP.13/Rev. 1 of 11 August 1994.

²⁶ See Doc. A/C.6/49/L.4 of 25 October 1994, Report of the Working Group.

²⁷ Ibid., Annex.

²⁸ Inter alia in the case of Articles 9, 11, 12, 14–21, 24 and 25–29 of the final text of the Convention.

²⁹ See, for example, the International Convention against the Taking of Hostages of 1979.

³⁰ See II B, C and D below for an analysis of these articles.

³¹ See Doc. A/C.6/49/L.4, paragraph 8; Doc. A/49/22, p. 54.

³² See Doc. A/49/22, paragraphs 24–30.

³³ Ibid., paragraphs 31–35.

³⁴ Ibid., paragraphs 66–67.

³⁵ See Doc. A/C.6/49/L.4, paragraph 13.

³⁶ See A/49/22, paragraphs 15–23.

³⁷ Ibid., paragraphs 36–41.

³⁸ Ibid., paragraphs 55–65.

³⁹ Ibid., paragraphs 81–83.

⁴⁰ Ibid., paragraphs 88–91.

⁴¹ See Doc. A/C.6/49/L.4, paragraph 13.

⁴² “Question of responsibility for attacks on United Nations and associated personnel and measures to ensure that those responsible for such attacks are brought to justice”.

⁴³ Doc. A/C.6/49/L.9.

⁴⁴ Ibid.

⁴⁵ Res. AG49/59.

⁴⁶ At 1 December 1995, 36 States had signed the Convention.

⁴⁷ See Doc. A/AC.242/1, paragraphs 11–14 and 16.

⁴⁸ See, Ibid.; during negotiation of the Convention, the United Nations Secretariat frequently indicated the advisability of using as a working document the “Model agreement between the United Nations and Member States contributing personnel and equipment for United Nations peace-keeping operations”, Doc. A/46/185.

⁴⁹ This principle, whereby States are obliged to prosecute or extradite alleged offenders, is common to many international treaties, including the Geneva Conventions of 1949 and Additional Protocol I of 1977, and the International Convention against the Taking of Hostages of 1979. See Arsanjani, , op. cit., p. 21 Google Scholar.

⁵⁰ In both its wording and its purpose, this provision is broadly based on Articles 47, 48, 127 and 144 of the Geneva Conventions of 1949, and on Articles 89 and 19 of the Additional Protocols of 1977.

⁵¹ For the most recent contributions on this problem, see David, E.: Précis de droit des conflits armés, Université libre de Bruxelles, Bruylant, Brussels 1994, pp. 138;Google Scholar Emanuelli, C.: Les actions militaires de l'Organisation des Nations Unies et le droit international humanitaire, Wilson and Lafleur, Montreal 1995;Google Scholar Gasser, H.-P. “Die Anwendbarkeit des humanitären Völkerrechts auf militärische Operationen der Vereinten Nationen”, in Schweizerische Zeitschrift für Internationales und europäisches Recht, 05/1994, pp. 443–473;Google Scholar Otunu, O.: “Peacekeeping: from a crossroads to the future”, statement delivered at the United Nations Special Committee on Peace-keeping operations, New York, 14 04 1995;Google Scholar Palwankar, U.: “Applicability of international humanitarian law to United Nations peace-keeping forces”, in International Review of the Red Cross, No. 294, 05–06 1993, pp. 227–240;CrossRefGoogle Scholar Pfanner, T.: “Application of international humanitarian law and military operations undertaken under the United Nations Charter, in Symposium on Humanitarian Action and Peace-keeping Operations, ICRC, 1995, pp. 51–62 Google Scholar; D. Shraga and R. Zacklin: “The applicability of international humanitarian law to United Nations peace-keeping operations: conceptual, legal and practical issues”, ibid., pp. 41–50; Simma, B. (ed.): The Charter of the United Nations, a Commentary, Oxford University Press 1994, pp. 600 ff. For a more detailed analysis of the Convention, seeGoogle Scholar Bloom, E. T.: “Protecting Peacekeepers: The Convention on the Safety of United Nations and Associated Personnel, in American Journal of International Law, 07 1995, Vol. 89, No. 3, pp. 621–631;CrossRefGoogle Scholar Bourloyannis-Vrailas, M.-C.: “The Convention on the Safety of United Nations and Associated Personnel”, in International and Comparative Law Quarterly, 07 1995, Vol. 44, pp. 560–590 CrossRefGoogle Scholar.

⁵² See Emanuelli, , op. cit., p. 75. The existence of links between the question of the applicability of the rules of international humanitarian law to United Nations operations and the conclusion of a Convention granting special protection to United Nations and associated personnel was a matter raised from the startof the negotiations on the ConventionGoogle Scholar.

⁵³ For instance, in a Memorandum addressed on 10 November 1961 to the States party to the Geneva Conventionsand United Nations Member States, the ICRC drew the attention of theUnited Nations Secretary-General to the need to ensure application of the Conventions by the forces placed at the United Nation's disposal, see Palwankar, , op. cit., p. 230 Google Scholar.

⁵⁴ See Shraga/Zacklin, , op. cit., p. 47 Google Scholar.

⁵⁵ Such a clause, now standard, appears for the first time in Article 44 of the UNEF Regulations; see UNTS, Vol. 271, p. 168.

⁵⁶ See Shraga/Zacklin, , op. cit., p. 47 Google Scholar.

⁵⁷ The importance of this Model agreement (Doc. A/45/594) was expressly emphasized by the United Nations Secretary-General during negotiation of the Convention when he said that “(…) it would logically follow that, in drafting the proposed Convention, existing status-of-forces agreements should be used as examples.” See Doc. A/AC. 242/1, paragraph 13.

⁵⁸ See Shraga/Zacklin, , op. cit., p. 47 and note 10Google Scholar.

⁵⁹ See Piclel, J. (ed.), The Geneva Conventions of 12 August 1949, Commentary, Vol. I, on the First Geneva Convention, ICRC, Geneva 1952, p. 32 Google Scholar.

⁶⁰ See Protocol I to the Geneva Conventions of 1949, preambular paragraph 5.

⁶¹ See Emanuelli, , op. cit., pp. 24–41 Google Scholar.

⁶² See “Protection afforded to personnel engaged in humanitarian activities by the Geneva Conventions and their Additional Protocols”, ICRC statement to the Ad Hoc Committee, 6 April 1994, p. 4.

⁶³ See II.C below.

⁶⁴ See Shraga/Zacklin, , op. cit., pp. 49–50 Google Scholar.

⁶⁵ See Emanuelli, , op. cit., pp. 87–88 Google Scholar.

⁶⁶ See Doc. A/AC.242/1, paragraph 11.

⁶⁷ Doc. A/49/22, paragraph 19.

⁶⁸ Such fears were expressed inter alia by the United Nations High Commissioner for Refugees in a document entitled “UNHCR Comments on the proposals by New Zealand and Ukraine for a draft Convention on the Protection of UN Personnel” circulated during the first session of the Ad Hoc Committee. In it, the UNHCR declared that: “(…) an unfortunate result of the present draft would be to extend greater protection to one UN colleague than to another, although they might face similar levels of danger and even be working in the same place”.

⁶⁹ See Doc. A/C.6/49/L.4, paragraphs 9-11.

⁷⁰ See Article 1 b) iii of the Convention; Emanuelli, C., op. cit., p. 76 Google Scholar.

⁷¹ See Doc. A/AC.242/L.2, proposal by New Zealand and Ukraine, Article 1, paragraph 2.

⁷² See statement by the Permanent Representative of New Zealand, 28 March 1994, pp. 2 and 3: “… we recognized, however, mat this question will be one of the key issues for negotiation… But we are open to suggestion on this point… For New Zealand's part, we would support a wider coverage…”.

⁷³ See Doc. A/49/22, pp. 46 and 51.

⁷⁴ See Doc. A/AC.242/1, paragraph 22: “Another issue relates to enforcement measures under Article 42 of the Charter of the United Nations. The question arises (our underlining) whether attacks on United Nations military contingents engaged in an enforcement operation should be considered, for the purposes of such a convention, as an attack on United Nations personnel.”

⁷⁵ See II.B and note 68 above.

⁷⁶ See Doc. A/49/22, Annex I, pp. 16–17.

⁷⁷ See Doc. A/49/22, Annex I, paragraphs 10–14.

⁷⁸ See Emanuelli, , op. cit., pp. 76–78Google Scholar.

⁷⁹ It should be noted that whereas Article 2, paragraph 2 mentions operations authorized by the Security Council, Article 1 (c) refers to operations established by a competent organ. In our view, bearing in mind the way the work progressed and the general haste in efforts to find an acceptable compromise on Article 2, paragraph 2, it would be inappropriate to attach too much importance to this use of differing terms. It is simply an example of the terminological inconsistencies which occur throughout the text of the Convention.

⁸⁰ To Arsanjani, , op. cit., p. 23, this was even a “virtually non-invokable criterion. The political pressure mounted on the Secretary-General would make it impossible for him to request the General Assembly or the Security Council to declare that there is an exceptional risk to the safety and security of United Nations personnel in a particular part of the world. Even assuming that he overcame that pressure, the Assembly or the Council would not be able to make such a declaration, due to pressure from many Member States.”Google Scholar

⁸¹ In this connection see H.-P. Gasser, Comment on the 1994 Convention on the Safety of United Nations and Associated Personnel: Proceedings of the Third Joint Conference of the American Society of International Law and the Netherlands Society of International Law, 13–15 July 1995 (to be published): “Thus it would be wrong to conclude a contrario from Article 1, paragraph 2 of the 1994 Convention that, as the Convention does not apply in enforcement situations, its applicability in other situations should automatically exclude that of international humanitarian law”.

⁸² See Emanuelli, , op. cit., p. 84 Google Scholar.

⁸³ See Arsanjani, , op. cit., p. 25 Google Scholar.

⁸⁴ See Doc. A/AC.242/L.3, third element: “Besides the protection offered under the new instrument, United Nations and associated personnel remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience”.

⁸⁵ See Doc. A/AC.242/1994, Informal paper 2, 31 March 1994, Article 3: “The protection provided under the present Convention is without prejudice to that afforded by (…) the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.”

⁸⁶ See statement by the ICRC on 29 March 1994: “It is now conceivable that the real function of Article 6 may have to be clarified in one of two ways: - as a cross-reference to other rules for situations other than those covered by the Convention; - as a remedy for omissions in the Convention in those situations which it covers (that was the main purpose of the ‘Martens Clause’).”

⁸⁷ See Doc. A/49/22, Annex I, paragraph 47: “Nothing in this Convention shall in any way affect the application of international humanitarian law and international human rights law in relation to the protection of United Nations operations and personnel or the responsibility of such personnel to respect such law.”; see also Emanuelli, , op. cit., pp. 75–76 Google Scholar.

⁸⁸ See in particular Article 8 which stipulates that, pending their release, United Nations personnel must be treated in accordance with the principles and spirit of the Geneva Conventions.

⁸⁹ See Emanuelli, , op. cit., p. 83 Google Scholar.

⁹⁰ Ibid., p. 85.

⁹¹ Ibid., p. 84; for an analysis of the scope of this clause, see Shraga/Zacklin, , op. cit., pp. 49–50.Google Scholar It is surprising that besides the aforesaid shortcomings of Article 20 (a) of the Convention makes no provision concerning the relationship between the Convention and other instruments dealing with related areas, such as the Convention of 1946 on United Nations Privileges and Immunities and the Convention of 1979 against the Taking of Hostages.

⁹² See Arsanjani, , op. cit., pp. 21–22: “…the effect of a Convention of this nature is even more minimal than other similar Conventions”Google Scholar.