Armed Forces Participating in Crisis Management Operations

Similar to the UN, NATO does not possess its own armed forces, so operations under NATO command are conducted by forces provided by NATO Member States. In the early 1990s the organisation made its first steps in the field of crisis management conducting naval and air operations in and around the Balkans.⁵⁵ In 1995, after parties to the conflict in the former Yugoslavia had signed the Peace Agreement of Dayton,⁵⁶ NATO answered to the UN Security Council’s call to establish a multinational military Implementation Force (IFOR).⁵⁷ Later, NATO extended its activities in the Balkans to, inter alia, Kosovo and Macedonia. Afterwards, the organisation led various operations outside European territory, such as the ISAF operation in Afghanistan, Operation Unified Protector in Libya and a number of naval operations,⁵⁸ as well as giving support to the African Union (AU) and its operations.

For NATO the status of the participating forces has always been a focal point, exclusive jurisdiction of the sending States over their forces being paramount (see Table 4.3). For instance, the SOFA annexed to the Peace Agreement of Dayton determines⁵⁹:

NATO military personnel under all circumstances and at all times shall be subject to the exclusive jurisdiction of their respective national elements in respect of any criminal or disciplinary offenses which may be committed by them…⁶⁰

Similar provisions formulated somewhat differently were also used in other SOFAs.⁶¹ Several agreements are classified and have, therefore, not been published.

Decades of NATO practice show that host States never exercised criminal jurisdiction over the foreign forces. Unlike the UN and the EU (see below), NATO has not adopted a model SOFA that could clarify the organisation’s position on this point. As far as can be established, NATO has not concluded any mission-specific SOFA for its naval operations or for its assistance to the AU.

NATO member States participating in an operation are not party to the mission-specific SOFAs signed by NATO’s Secretary-General. Pursuant to Article 36 of the Vienna Convention on the Law of Treaties, consent of third States for whom rights arise out of treaty provisions, are to be presumed as long as the contrary is not indicated.⁶² Unlike UN practice, NATO member States do not conclude agreements on their contribution of forces to a NATO mission, in which they accept the SOFA provisions. However, the applicability of the SOFAs can be deduced from the decision-making procedure of NATO (see also Sect. 9.​4.​2), which is based on consensus. This means that the decision of the North Atlantic Council approving the final text of a SOFA implies acceptance by its members. It can also be argued that the sending State’s transfer of command over its military units to a NATO commander (see Sect. 11.​3) results in the sending State’s implicit acceptance of the provisions made by NATO.

In 1992, with the signing of the EU Treaty, the Common Foreign and Security Policy (CFSP) of the EU was established.⁶³ In 1999, the European Council meeting in Cologne defined the European (since the Treaty of Lisbon ⁶⁴ formulated as Common) Security and Defence Policy as part of the CFSP.⁶⁵ This meant that the EU could deploy armed forces to execute the so-called Petersberg tasks: humanitarian and rescue tasks, peacekeeping tasks and tasks of combat forces in crisis management operations.⁶⁶

The implementation of the Lisbon Treaty has led to reformulating the tasks as missions “…for peace-keeping, conflict prevention and strengthening international security …” (Article 42(1), EU Treaty). The Lisbon Treaty provides the EU with the possibility to entrust execution of tasks to a group of Member States (Article 42(5) EU Treaty).

Since 31 March 2003 the EU has undertaken crisis management operations,⁶⁷ for which member States and third countries provide armed forces. On 2 December 2004, after the successful execution of several smaller missions,⁶⁸ the EU took over from SFOR in Bosnia-Herzegovina, from then on called EUFOR Althea/BiH. Later, the EU also mounted operations in Africa.⁶⁹ On 31 December 2008 the EU launched Operation Atalanta, its first naval mission, to protect the vessels of the World Food Programme and to combat piracy off the coast of Somalia.

The EU has almost always concluded SOFAs with the host States, the first of which with Macedonia.⁷⁰ Article 6 of the SOFA read:

EUF personnel shall be granted treatment, including immunities and privileges, equivalent to that of diplomatic agents granted under the Vienna Convention on Diplomatic relations dated 18 April 1961.

On the basis of this provision military personnel enjoyed full criminal immunity. Third States participating in the mission concluded agreements with the EU on the participation of their forces,⁷¹ in which applicability of the SOFA to the participating forces was confirmed.⁷²

Subsequent SOFAs show that absolute criminal immunity of the sending States’ forces was paramount to the EU, although no longer was referred to the Vienna Convention on Diplomatic relations. Article 6 of the SOFA concluded with Gabon, where EU forces were based to support EUFOR in de Democratic Republic of the Congo, read⁷³:

EUFOR-personnel shall enjoy immunity from the criminal jurisdiction of the Host State under all circumstances.

Furthermore, besides immunity of their forces, the SOFA allowed sending States to exercise criminal jurisdiction in the host State (Article 8):

The competent authorities of a Sending State shall have the right to exercise on the territory of the Host State all the criminal jurisdiction and disciplinary powers conferred on them by the law of the Sending State with regard to all EUFOR personnel subject to the relevant law of the Sending State.

Such provisions were also included in later EU agreements,⁷⁴ for instance, concerning the EU Naval Force Somalia and the operation in Chad⁷⁵ and the Central African Republic (CAR) (see Table 4.4).⁷⁶ Today, the provisions mentioned above are part of the Model Agreement on the status of the European Union–led forces (the Model EU–SOFA).⁷⁷ These provisions are more specific about criminal immunity than the provisions included in the SOFAs adopted by the UN and NATO. However, they have similar consequences for the exercise of criminal jurisdiction over the participating forces.

The applicability of the SOFAs to the armed forces of participating States is undisputed. On the basis of Article 216(2) of the Treaty on the Functioning of the European Union, all agreements concluded by the Union are binding for the institutions of the Union and the Member States.⁷⁸ With other participating States the EU concludes Participation Agreements. These agreements include a provision declaring the SOFAs EU is a party to as applicable to the participating non-member States.⁷⁹ Furthermore, the Participation Agreements explicitly state that third States can participate in the EU-led forces.

After the Cold War the number of operations led by international organisations increased, as did the number of coalition operations. The operations in East Timor are an example of the latter. In August 1999, after the population of this region had voted by referendum in favour of independence from Indonesia, serious disturbances occured. The deployment of multinational forces authorised by the UN had to restore peace and security and to facilitate humanitarian assistance operations.⁸⁰ Australia led the International Force in East Timor (INTERFET). On 24 September 1999, through an exchange of notes, it concluded an agreement with Indonesia on the status of the INTERFET-forces.⁸¹ The treaty is classified and for that reason unpublished. Apparently, the sending States retained full criminal jurisdiction over their forces.⁸²

On 28 February 2000 the United Nations Transitional Administration in East Timor (UNTAET) succeeded INTERFET. Until the independence of East Timor (Timor Leste) on 20 May 2002 UNTAET administered the territory. In 2006 the security situation worsened and subsequently the government of Timor Leste requested international assistance to restore peace and security. In June 2006, in response to the request, Australia and New Zealand sent the International Stabilization Force (ISF).⁸³ The status of the forces was regulated in two SOFAs concluded by East Timor with Australia and New Zealand, respectively.⁸⁴ They included a provision stating that the personnel would be granted the status:

…equivalent to that accorded administrative and technical staff of the Contributing Governments under the Vienna Convention on Diplomatic Relations of April 18, 1961.

This reference to the Vienna Convention on Diplomatic Relations is exceptional in the area of crisis management operations. In general the SOFAs concluded for other coalition operations show that, as far as the information is available, also in the context of coalition operations, the forces are subject to the exclusive criminal jurisdiction of the sending States (see Table 4.5).