Bills Digest No. 28  2000-01 Criminal Code Amendment (United Nations and Associated Personnel) Bill 2000


Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details

Passage History

Criminal Code Amendment (United Nations and Associated Personnel) Bill 2000

Date Introduced: 28 June 2000

House: House of Representatives

Portfolio: Attorney-General

Commencement: On a day to be fixed by proclamation or six months after Royal Assent

Purpose

To give effect to the United Nations Convention on the Safety of United Nations and Associated Personnel.

Background

International Law

Safety of United Nations Personnel

The safety of United Nations personnel can rarely be taken for granted even in peace-keeping operations. As the previous Secretary General acknowledged '[p]eace-keeping operations are inherently risky, even when a cease fire is in place and the parties to a conflict cooperate and have consented to the deployment'.(1) Invariably there is a history behind the operation and no intervention will be able to eliminate the sources of conflict. Indeed, hostilities may return or even escalate regardless of, or potentially in response to, peace-keeping intervention. Instances of such complications can be found in Angola, Haiti, and recently in Sierra Leone, Kosovo and Burundi.(2) Other instances that required withdrawal or greater intervention occurred in Somalia, Yugoslavia and East Timor.(3)

While there has not been a large number of fatalities involving United Nations personnel, the incidence has been increasing since a turning point in 1992.(4) The following table records the major fatalities among peace-keeping operations between 1948 and 2000.

Top 7 UN Personnel Fatalities from Hostile Incidents (1948-2000)(5)

Operation

Period

Fatalities

United Nations Operation in the Congo

Jul 1960 - Jun 1964

150

United Nations Operation in Somalia II

Mar 1993 - Mar 1995

110

United Nations Interim Force in Lebanon

Mar 1978 - present

83

United Nations Protection Force (Former Yugoslavia)

Feb 1992 - Mar 1995

74

United Nations Transitional Authority in Cambodia

Mar 1992 - Sept 1993

25

United Nations Truce Supervision Organisation (Mid. East)

Jun 1948 - present

24

First United Nations Emergency Force (Gaza)

Nov 1956 - Jun 1967

21

There were three recorded fatalities in East Timor under the United Nations Mission in East Timor (UNAMET). There had been six fatalities during United Nations Transitional Administration in East Timor (UNTAET) as at 30 June 2000.(6)

Responses

The United Nations has long been concerned about the safety of personnel particularly in relation to peace-keeping operations. For example, in 1965 the General Assembly established a Special Committee on Peacekeeping Operations to conduct a 'comprehensive review of the whole question of peace-keeping operations in all their aspects'.(7)

In the 1980s and 1990s attention increasingly focused on the effectiveness and efficiency of peace-keeping operations. Concerns related to 'command and control, to the availability of troops and equipment and to the information capacity of peace-keeping troops'.(8) But the focus was on the sustainability of operations rather than the safety of personnel.

In June 1992, the Secretary General issued a report: An Agenda for Peace - Preventive diplomacy, peacemaking and peace-keeping.(9) The report briefly considered the safety of personnel noting an 'unconscionable increase' in the number of fatalities. The report acknowledged that 'innovative measures' were required to deal with the issue and suggested that unless the Security Council considered the immediate withdrawal of personnel it should 'gravely consider what action should be taken towards those who put ... personnel in danger'. It recommended that before an operation commences the Security Council should give advance consideration to the possibility of more severe intervention to protect personnel, including action under Chapter VII of the United Nations Charter.(10) (Chapter VII of the United Nations Charter deals with 'Action with respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression'. It empowers the United Nations to take peace-enforcement and other actions involving the use of force.(11))

This recommendation was later reiterated by the General Assembly. While it did not mention Chapter VII, it did suggest that, when establishing a peace-keeping operation, the Security Council might 'make it clear' that more serious measures would be taken under the Charter to ensure that the United Nations is not systematically frustrated by provocative attacks against such personnel.(12)

(In January 1995 the Secretary-General issued a Supplement to An Agenda for Peace.(13) Like the principal report, the Supplement did not directly address the safety of personnel.)

Convention

In December 1993, the General Assembly agreed to establish an Ad Hoc Committee to 'elaborate an international convention dealing with the safety and security of United Nations and associated personnel'.(14) In December 1994 the work of this Committee resulted in the Convention on the Safety of United Nations and Associated Personnel (the Convention)(15) which requires state parties to prevent and facilitate the prosecution of serious personal offences in relation to United Nations and Associated personnel.

Broadly, the Convention defines 'United Nations personnel' as persons engaged or deployed by the Secretary-General in a 'United Nations operation', other officials and experts on a mission of the UN or the International Atomic Energy Agency (IAEA) and present in an official capacity during a 'United Nations operation'.(16) A 'United Nations operation' is any operation established by a UN organ and conducted under the auspices of the UN either for maintenance or restoration of international peace and security or for which the Security Council has declared there to be an exceptional risk to the safety of personnel.(17) However, the Convention does not apply to enforcement action under Chapter VII 'in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies'.(18)

'Associated personnel' are persons that a Government has assigned by agreement to a UN organ, persons engaged by the UN or IAEA (but not necessarily in an official capacity) whether or not associated with an operation, and persons engaged by a humanitarian NGO under agreement with the UN or IAEA to carry out activities within the mandate of a United Nations Operation.(19)

State parties are required to ensure the safety and security of personnel, equipment and premises(20) and to release personnel captured in the course of performing their duties.(21) In particular, parties are required to take measures to establish a domestic jurisdiction to prosecute or extradite persons for serious crimes against personnel, including:(22)

  • murder, kidnapping or other attack
  • any violent attack on official premises, private accommodation or means of transportation which is likely to endanger persons or liberty
  • any threat to commit any such attack with the objective of compelling a person to do or to refrain from doing any act, and
  • any related offence of attempt or complicity.

As a minimum, the jurisdiction must extend to offences that are committed within the territory of a state and to offences committed by a citizen of a state. But it may also extend to offences committed by stateless persons who habitually reside in the state, to offences against a citizen of a state and to offences directed at the government of a state.

In addition, state parties are required to provide mutual assistance in criminal matters.(23)

Australia signed the Convention, subject to ratification, on 22 December 1995. The Convention came into force on 15 January 1999. On 7 March 2000, the Government indicated that it proposed to lodge Australia's instrument of ratification 'after completion of the treaty making processes, including the enactment of Commonwealth legislation'.(24)

Main Provisions

Schedule 1 seeks to amend the Criminal Code Act 1995.

Substantive Provisions

Item 1 inserts 'Division 71-Offences against United Nations and associated personnel'. It deals with murder, manslaughter and offences of causing harm or serious harm, unlawful sexual penetration, kidnapping, unlawful detention, and property damage. It also deals with aggravated offences and threats to commit offences which are aimed at compelling a person to act in a certain way. It provides for two discrete defences.

All of the offences relate to victims who are UN or associated personnel engaged in a UN operation other than a UN enforcement operation. Strict liability applies to these elements. Thus, it is not necessary to show that an offender knew or ought to have known that the victim was a UN or associated person or that they were engaged in a UN operation, although there is a 'defence' available of mistake of fact. Definitions of 'UN personnel', 'associated personnel', 'UN or associated person' and 'enforcement action' consistent with the Convention are included.(25)

Proposed section 71.2 makes it an offence to intentionally or recklessly kill. It carries a maximum penalty of life imprisonment. Proposed section 71.3 makes it an offence to kill where the offender intends to cause or is reckless as to causing serious harm. The maximum penalty is imprisonment for 25 years. ('Harm' includes any 'physical harm', or physical contact which a person might reasonably object to in the circumstances, and harm to a person's mental health, whether temporary or permanent. It does not include any force or impact which is 'within the limits of what is acceptable as incidental to social interaction or to life in the community'. 'Serious harm' includes harm that endangers or is likely to endanger life or which is likely to be significant and longstanding (items 4-7).)

Proposed section 71.4 makes it an offence to intentionally cause serious harm. The maximum penalties are 20 years and 25 years (aggravated offence). Proposed section 71.5 makes it an offence to recklessly cause serious harm. The maximum penalties are 15 years and 19 years (aggravated offence). (An offence will be an 'aggravated offence' if committed during torture, associated with an offensive weapon or committed in an abuse of authority (proposed section 71.13).(26))

Proposed section 71.6 makes it an offence to intentionally cause harm. The maximum penalties are 10 years and 13 years (aggravated offence). Proposed section 71.7 makes it an offence to recklessly cause harm. The maximum penalties are 7 years and 9 years (aggravated offence).

Proposed section 71.8 makes it an offence to sexually penetrate, or continue to penetrate, a person without consent where the offender know of or is reckless as to the lack of consent. The maximum penalties are 15 years and 20 years (aggravated offence).

Proposed section 71.9 makes it an offence to detain persons without their consent for the purpose of holding them for ransom, removing them from the country or committing a serious offence against them or another person.(27) The maximum penalties are 15 years and 19 years (aggravated offence).

Proposed section 71.10 makes it an offence to detain a person without their consent. The maximum penalties are 5 years and 6 years (aggravated offence).

Proposed section 71.11 makes it an offence to intentionally cause damage to official premises, private accommodation or vehicles (currently occupied or used) so as to recklessly give rise to a danger of serious harm. The maximum penalty is 10 years.

A person is guilty of an offence if they threaten to commit one of the offences above for the purpose of compelling a person to do or omit to do an act (proposed section 71.12).

Jurisdiction

Under proposed section 71.16 the Division will only apply to:

  • offences committed wholly or partly in Australia or on an Australian ship or aircraft
  • offences committed wholly outside Australia by Australian citizens, bodies incorporated in Australia or stateless persons ordinarily resident in Australia
  • offences committed wholly outside Australia which are subject to the jurisdiction of another country which is a party to the Convention and the person enters Australia
  • offences committed against Australian citizens, and
  • offences aimed at compelling an Australian government to do or omit to do an act.

Proceedings may not commence without the written consent of the Attorney-General. Pending this consent, a person may lawfully be arrested, charged or remanded in custody or on bail (proposed section 71.20).

Definitional and Procedural Provisions

The new Division provides for two discrete defences. It is a defence to the 'serious harm' offences that the conduct was aimed at benefiting the victim or 'in pursuance of a socially acceptable function or activity' or was otherwise reasonable, 'having regard to the purpose, function or activity' involved (proposed section 71.14). It is a defence to the 'sexual assault' offence if the penetration was 'carried out in the course of a procedure in good faith for medical or hygienic purposes' (proposed section 71.15).

The Division will not apply if there is a corresponding offence under State or Territory law (proposed section 71.17). Nor will it apply if a person has been convicted or acquitted of an offence for the conduct under the law of a foreign country (proposed section 71.18).

In prosecutions for offences under the new provisions, aspects of evidence may be tendered by ministerial certificates. These certificates are prima facie evidence of the material they contain. In other words, the facts they assert stand unless they are displaced. Evidence as to matters relating to the Convention, jurisdiction of State Parties, the status of UN or associated personnel and UN operations may be given by a certificate issued by the Minister for Foreign Affairs. Similarly, evidence as to a person's status as an Australian citizen or 'stateless person' who habitually resides in Australia may be given by the Minister for Immigration and Multicultural Affairs (proposed section 71.21).

Concluding Comments

Constitutional Bases of the Bill

The Bill would seem to be a valid law. The external affairs power in section 51(29) of the Constitution will support a law with respect to a matter which is physically external to Australia. Arguably, any offence committed outside Australia would fall within this aspect of the external affairs power. Moreover, increasingly the common law is recognising a jurisdiction of courts to deal with offences committed overseas where there is a 'real and substantial link' with the territory of a country.(28) Such an approach has recently been endorsed in Australia in relation to offences that cross domestic borders.(29) Arguably, it might also be taken in relation to offences that cross international borders.

The external affairs power will also support a law whose purpose is to implement an international treaty, provided it selects means which are 'reasonably capable of being considered appropriate and adapted to implementing the treaty'.(30) Thus, there is some width in the power. It is not confined to the implementation of treaties or treaty obligations. Arguably, it extends also to the measures which implement recommendations of international agencies and to measures which pursue agreed international objectives.(31) Nor is it confined to the full implementation of treaties. A law is valid even if it only partially implements a treaty,(32) provided the deficiency is not so substantial as to deny the law the character of a measure actually implementing the convention.(33)

Clearly, the Bill is directed at the same subject matter as the Convention. Moreover, it adopts many of the particulars provided in the Convention. Strictly speaking, the Bill does go beyond the language used in the Convention in prescribing particular offences, such as sexual offences, aggravating circumstances, such as torture, and particular defences, such as the 'serious harm' defence relating to 'a socially acceptable function or activity'. Arguably, it also goes beyond the language of the Convention by extending a jurisdiction to cover offences aboard Australian ships or aircraft, offences by Australian corporations and offences where the offender enters Australia. However, these measures might reasonably be considered 'appropriate and adapted' to implementing the Convention. Moreover, other sources of international law exist which would support the measures.(34)

Wider Concerns

Clearly, the approach adopted in the Convention and the Bill is intended to increase the protection available to peace-keeping personnel, but it will not completely address safety concerns. Nor may it be intended to achieve this result. As noted above, concern has increasingly focused on these issues, but largely in the context of wider concerns about the effectiveness and efficiency of peace-keeping operations.

This may reflect the broader focus of the United Nations and the international community. Alternatively, it may reflect the fact that the concerns are interrelated. Arguably, the safety of peace-keeping personnel can be compromised by poor planning and coordination. If there are flaws in planning and coordination, the approach may be unrealistic without some action being taken on the wider concerns associated with peace-keeping operations.

A number of concerns have been raised in relation to planning and coordination of peace-keeping operations. In his Supplement to an Agenda for Peace the Secretary-General highlighted concerns relating to lack of information and tension between authority of the Security Council and command of the Chief of Mission and between the United Nations framework and the Governments of contributing countries. It also identified a tendency for the Security Council to 'micro-manage' peace-keeping operations,(35) and for Governments to provide unwelcome guidance and orders to their contingents.(36)

At the heart of the issue is the fact that, historically, the United Nations has demonstrated a preference for peace-keeping and desire to avoid peace-enforcement. It might be argued that, in this context, the United Nations has tended to deploy peace-keeping personnel in situations requiring a peace-enforcement response. This may lead to immediate problems and ongoing difficulties in the transition of operations from peace-keeping to peace-enforcement. The key issue is that 'peace-keeping and peace-enforcement are distinct undertakings'.(37) Moreover, 'the logic of peace-keeping flows from political and military premises that are quite distinct from those of enforcement; and the dynamics of the latter are incompatible with the political process that peace-keeping is intended to facilitate' and any blurring of the distinction between peace-keeping and peace-enforcement tends to 'undermine the viability of the peace-keeping operation and endanger its personnel'.(38)

Endnotes

  1. United Nations, The Blue Helmets: A Review of United Nations Peacekeeping, 3rd Ed., United Nations Department of Public Information, New York, 1996, p. 6.
  2. General Assembly President Strongly Condemns Killings of UN Staff in Kosovo and Burundi, Press Release GA/SM/109, 154 October 1999.
  3. For example, with respect to East Timor see United Nations Security Council, Resolution 1272 (1999), S/RES/1272 (1999) 25 October 1999 at http://www.un.org/Docs/scres/1999/99sc1272.htm [8/8/00].
  4. Prior to 1992, 'no more than a handful of civilian staff lost their lives in the line of duty' whereas between 1992 and 1998, 219 civilian staff were killed while serving with the United Nations: Thalif Deen, 'UN Personnel Killed with Impunity', Interpress Newswire, 25 February 1998 at http://www.oneworld.org/ips2/mar98/un.html [8/8/00].
  5. Figures drawn from Situation Centre, Department of Peacekeeping Operations within the General Assembly Secretariat, 'Fatalities by Mission and Incident Type' (as at 30 June 2000) at http://www.un.org/Depts/dpko/fatalities/fatal2.htm [8/8/00].
  6. That is, not counting the fatal shooting of New Zealand soldier Private Leonard Manning on 24 July 2000.
  7. Resolution 2006 (XIX) of 18 February 1965.
  8. United Nations Secretary General, Supplement to an Agenda for Peace: Position Paper of The Secretary-General on the Occasion of the Fiftieth Anniversary of the United Nations, A/50/60 - S/1995/1 3 January 1995 at http://www.un.org/Docs/SG/agsupp.html [8/8/00], para 37. Particular issues identified in the various resolutions related to consultation, personnel contributions and composition of operations, planning and coordination, financial contributions, information exchange, application of high technology, training programs for personnel, and the use of civilians.
  9. An Agenda for Peace - Preventive diplomacy, peacemaking and peace-keeping, Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security Council on 31 January 1992, A/47/277 - S/24111 17 June 1992 at http://www.un.org/Docs/SG/agpeace.html [8/8/00].
  10. Agenda for Peace, op cit, Chapter VIII, para 68.
  11. See http://www.un.org/Overview/Charter/contents.html [8/8/00].
  12. United Nations General Assembly, 'Protection of peace-keeping personnel', A/RES/47/72 85th plenary meeting 14 December 1992 at http://www.un.org/gopher-data/ga/recs/47/72 [8/8/00].
  13. United Nations Secretary General, Supplement to an Agenda for Peace, op cit.
  14. United Nations General Assembly, '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', A/RES/48/37 73rd plenary meeting, 9 December 1993 at http://www.un.org/gopher-data/ga/recs/48/37 [8/8/00].
  15. G.A. res. 49/59, 49 U.N. GAOR Supp. (No. 49) at 299, U.N. Doc. A/49/49 (1994) at http://www1.umn.edu/humanrts/resolutions/49/59GA1994.html [7/8/00].
  16. Article 1(a).
  17. Article 1(c)(ii).
  18. Article 2(2).
  19. Article 1(b).
  20. Article 7.
  21. Article 8.
  22. Article 9.
  23. Article 16.
  24. Security Law and Justice Branch, Information and Security Law Division, Attorney-General's Department, National Interest Analysis: Convention on the Safety of United Nations and Associated Personnel, done at New York on 9 November 1994 at http://www.austlii.edu.au/au/other/dfat/nia/2000/2000008n.html [2/8/00], tabled in Senate, Hansard, 7/3/00, p 12300 at http://www.aph.gov.au/hansard/senate/dailys/ds070300.pdf [2/8/00].
  25. The definitions are provided in proposed section 71.23.
  26. There must be intention or recklessness in respect of these matters: proposed section 71.13(3).
  27. A 'serious offence' for these purposes is any offence in Australia or overseas for which the maximum penalty is death or 12 months imprisonment.
  28. Libman v The Queen [1985] 2 SCR 178.
  29. Lipohar v The Queen; Winfield v The Queen [1999] HCA 65 (9 December 1999), per Gleeson CJ at para 35; per Gaudron, Gummow and Hayne JJ at para 123; per Callinan J at para 269.
  30. Victoria v Commonwealth (1996) 187 CLR 416 at 487 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ. See also at 488.
  31. See generally, R v Burgess, Ex Parte Henry (1936) 55 CLR 608, per McTiernan J at p 687; Commonwealth v Tasmania (1983) 158 CLR 1, per Deane J at pp 258-259 and Murphy J at pp 171-172.
  32. Victoria v The Commonwealth (1996) 187 CLR 416, per Brennan CJ and Toohey, Gaudron, McHugh and Gummow JJ, at pp 488-489; The Commonwealth v Tasmania (1983) 158 CLR 1, per Deane J, at pp 233-234, 268; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 75 (cf R v Burgess; Ex parte Henry (1936) 55 CLR 608, per Evatt and McTiernan JJ, p 688).
  33. Victoria v The Commonwealth (1996) 187 CLR 416, per Brennan CJ and Toohey, Gaudron, McHugh and Gummow JJ, at p. 489.
  34. For example the United Nations Convention on the Law of the Sea (10 December 1982, UN Doc A/Conf 62/122; 21 ILM 1261 (1982)) recognises a jurisdiction over crimes committed aboard Australian ships. International law recognises a jurisdiction where a valid nexus exists between the alleged criminal conduct and the state. The nexus will exist where the offence occurs within the territory or where the offender is present within the territory ('territorial jurisdiction') and where the results of the conduct are felt within the territory ('extra-territorial jurisdiction'). It may also recognise a jurisdiction based on the offender's nationality ('nationality principle'), the victim's nationality ('passive personality principle') and the need to protect the interests of the state (the 'protective principle'), but there is a degree of uncertainty. See generally Ivan Shearer in S. Blay, R. Piotrowicz and B.M. Tsamenyi, Public International Law: An Australian Perspective, Oxford University Press, Melbourne, 1997, 161-192, at pp 165-179; Matthew Goode, 'The Tortured Tale of Criminal Jurisdiction', Melbourne University Law Review, 1997, vol. 21(2), pp 411-459 at pp 413-414 ['Goode, 1997(b)']; and Halsbury's Laws of Australia, 'Title 215 - Foreign Relations' [215-380 and 215-385].
  35. United Nations Secretary General, Supplement to an Agenda for Peace, op cit, para 39.
  36. Ibid, para 41.
  37. United Nations, The Blue Helmets: A Review of United Nations Peacekeeping, 3rd Ed., United Nations Department of Public Information, New York, 1996, p. 6.
  38. United Nations Secretary General, Supplement to an Agenda for Peace, op cit, para 34. 'In reality, nothing is more dangerous for a peace-keeping operation than to ask it to use force when its existing composition, armament, logistic support and deployment deny it the capacity to do so', ibid.

Contact Officer and Copyright Details

Nathan Hancock
6 September 2000
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

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ISSN 1328-8091
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Published by the Department of the Parliamentary Library, 2000.

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