Chapter VI. Selected legal opinions of the secretariats of the United Nations and related intergovernmental organizations

a. legal opinions of the Secretariat of the united nations

(Issued or prepared by the Office of Legal Affairs)

PEACEKEEPING

1. Release of BoaRd of InquIRy RepoRt to next of kIn of deceased mIlItaRy peRsonnel

   Memorandum to the Military Adviser, Department of

   Peacekeeping Operations

   This refers to your memorandum dated 10 November 2000, seeking our advice in connection with the request of the Permanent Mission of a Member State to the United Nations to release the report of the United Nations Interim Force in Lebanon (UNIFIL) Board of Inquiry in the above case to the next of kin of Private X.

   With your memorandum, you forwarded to us, inter alia, a letter dated 30 October 2000 from the Military Adviser to the Permanent Mission, addressed to you. In that letter, the Permanent Mission recognized the Organization’s policy pursuant to which a United Nations Board of Inquiry report is an internal document of the United Nations and may not be made public either in whole or in part. Nevertheless, the Permanent Mission inquired whether there are exceptions to this policy which would permit the [Member State] Department of Defence to release a copy of the report of the Board or part thereof to the next of kin of the late Private X. The Mission stated that solicitors for Mrs. Y, mother of Private X, had requested the [Member State] authorities to make available a copy of the UNIFIL Board of Inquiry report on Private X’s death.

   We note that Private X was killed in a shooting incident while serving as part of the [Member State] military contingent in UNIFIL. In that connection, we wish to recall that the policy concerning the release of Board of Inquiry reports involving personnel of a troop-contributing State is set out in the Note to Directors dated

   26 April 1995, on the subject “Guidelines concerning Boards of Inquiry”. Pursuant to the Note to Directors, a Board of Inquiry report may be released to the Government of a troop-contributing State in cases where the incident under investigation involves the personnel or equipment of that State and may have implications for the procedures, training or otherwise of that State. Furthermore, the Note to Directors makes it clear, inter alia, that a Board of Inquiry report is an internal document of the United Nations which has no particular legal standing and that, even when shared with a troop-contributing State, the report “remains nevertheless an internal docu-

   ment of the United Nations and is for official use only and not to be made public in any way, including judicial or legislative proceedings”.

   Furthermore, the Note to Directors requires that when a Board of Inquiry report is provided to a Government in such cases, it be accompanied by a note verbale which includes the following sentence:

   “This report is an internal document of the United Nations and is being made available for official use only; it is not to be made public in any form either in whole or in part.”

   The Note to Directors also states, however, that exceptions concerning the release of Board of Inquiry reports “may be considered on a case-by-case basis (for example, in the interest of justice) in consultation with the Office of Legal Affairs”.

   The Organization has made exceptions to this policy in some recent cases by releasing to the families of victims of serious incidents the factual portion of the Board of Inquiry reports, which in most Board reports bears the title “Description of the incident” or “Narrative of events”.

   In the present case, the Board of Inquiry report was transmitted to the Permanent Mission of [Member State] under cover of a letter from your predecessor, dated

   15 December 1999. In accordance with the Note to Directors, that letter advised the [Member State] Permanent Mission about the internal and confidential nature of the Board of Inquiry report, using the essence of the language from the sentence to be included in a note verbale, as quoted above.

   In addition, we are aware that the [Member State] contingent conducted its own investigation, the results of which were contained in a Military Police report. We are also aware that the [Member State] contingent declined requests of cooperation with the UNIFIL Board of Inquiry and refused to allow that Board of Inquiry to interview a key witness from the Irish Contingent. Thus, the report of the UNIFIL Board of Inquiry relies entirely on and restates the [Member State] Military Police report.

   Under these circumstances, consistent with the recent exceptions to the general policy, we suggest that the United Nations agree to the release to Private X’s mother a copy of the part of the UNIFIL Board of Inquiry report entitled “Description of the incident”, which gives a factual description of the circumstances of Private X’s death. However, such copy of the “Description of the incident” should be accompanied by a letter from the [Member State] authorities informing Private X’s mother that the UNIFIL Board of Inquiry relied entirely on the investigation conducted by the [Member State] Military Police.

   28 November 2000

2. questIon whetheR a state’s aIR foRce and navy assIstIng In the deployment of that state’s contIngent In the unIted natIons mIssIon aRea can Be gRanted “expeRts on mIssIon” status—aRtI-cle 5.1 and aRtIcle 7 of annex a to the model memoRandum of undeRstandIng—secuRIty councIl ResolutIon 1320 (2000)

   Memorandum to the Assistant Secretary-General for

   Peacekeeping Operations

   I wish to refer to your memorandum of 29 November 2000 attaching a note verbale from the Permanent Mission of [Member State] to the United Nations, dated 28 November 2000. The note verbale states that a transport ship of the [Member State] navy and a transport aircraft of the [Member State] air force are going to assist in the deployment of the [Member State] contingent for the United Nations Mission in Ethiopia and Eritrea (UNMEE). The Permanent Mission has requested that the transport ship’s company and the crew of the transport aircraft be granted the status of “Experts on missions for the United Nations” under article VI of the Convention on the Privileges and Immunities of the United Nations (“the Convention”).

   You seek our advice on the legal status of the above-mentioned ship’s crew and the transport aircraft’s aircrew in the light of the fact that these personnel, who are performing tasks in support of the [Member State] contingent in the mission area, are serving as national support elements above the requirements and authorized strength for UNMEE.

   The Model Memorandum of Understanding between the United Nations and States contributing resources to United Nations peacekeeping operations establishes the administrative, logistic and financial terms and conditions which govern the contribution of personnel, equipment and services provided by a Government in support of a United Nations peacekeeping operation (see the annex to the note by the Secretary-General, A/51/967, of 27 August 1997, which contains the Model Memorandum of Understanding).

   The Model Memorandum of Understanding in article 5.1 provides for the number of regular personnel to be provided by a contributing State and further states that “any personnel above the level indicated in this Memorandum shall be a national responsibility and thus not subject to reimbursement or other kind of support by the United Nations”.

   The principle that excess personnel is a national and not a United Nations responsibility is further elaborated upon in section 3 of annex A to the Model Memorandum of Understanding, which contains the general conditions for personnel. Paragraph 7 provides, inter alia, that excess personnel “may be deployed to the [United Nations peacekeeping mission], with the prior approval of the United Nations, if it is assessed by the troop-contributing country and the United Nations to be needed for national purposes”. Significantly, paragraph 7 further provides that “this personnel shall be part of the contingent, and as such enjoy the legal status of members of the [United Nations peacekeeping mission]”.

   Provided that the conditions set out in paragraph 7 of annex A to the Model Memorandum of Understanding have been met, the [Member State] excess personnel would enjoy the legal status that members of the military contingent enjoy and which is provided for in the draft status-of-forces agreements currently being negotiated with the Governments of Eritrea and Ethiopia. By virtue of that status, members

   of the military component of UNMEE shall be subject to the exclusive jurisdiction of their respective participating States in respect of any criminal offences that may be committed by them in Eritrea or Ethiopia as the case may be (article 51 (b) of both draft status-of-forces agreements).

   It should also be recalled that the Security Council by its resolution 1320 (2000) provided in paragraph 6 that “pending the conclusion of [status-of-forces agreements], the model status-of-forces agreement of 9 October 1990 (A/45/594) should apply provisionally”. The model status-of-forces agreement, which provides for the privileges and immunities of military contingents, specifically states in paragraph 47(b) that members of a military contingent of a peacekeeping mission are “subject to the exclusive jurisdiction of their respective participating States in respect of any criminal offences which may be committed by them in the [host country/territory]”.

   It would therefore be advisable that an agreement between the United Nations and the Government of the [Member State], on the basis of the Model Memorandum of Understanding, be concluded for the purposes of the personnel and equipment contributed by the Government to UNMEE. In accordance with paragraph 7 of annex A to the Model Memorandum of Understanding, should excess personnel have been approved by the United Nations and assessed by the Government of [Member State] and the United Nations be needed for national purposes, then this should also be...