While Bosnian domestic laws regulate the acts of citizens of Bosnia and Herzegovina and of ordinary individuals from other states present in the country, foreign nationals serving with UNMIBH and on civilian contract to NATO peacekeeping forces enjoy almost complete immunity from prosecution.232 Although it was assumed that countries of origin of IPTF and SFOR personnel would prosecute and discipline their citizens upon their return home for crimes committed in Bosnia and Herzegovina, this has rarely happened in practice.233 Jurisdictional gaps, lack of political will, and indifference toward the crime of trafficking ensure that the small number of SFOR military contractors and IPTF monitors who participate in trafficking-related offenses do so with nearly complete impunity. The U.N. has failed to deal in a transparent fashion with allegations of involvement in trafficking-related activities by IPTF monitors and in some cases has failed to investigate those allegations thoroughly.
The Stabilization Force (SFOR)
In conjunction with the functional immunity provided under the Convention, Annex 1-A, Appendix B, of the Dayton Agreement provides that NATO military personnel are under the exclusive jurisdiction of their respective nations; for example, the United States alone has the right to exercise jurisdiction over any offenses committed by members of the U.S. military in Bosnia.237
There is no similar provision within the Dayton Agreement regarding NATO civilian personnel; this omission indicates that civilians and contractors working for NATO are entitled only to the limited (functional) immunity granted to U.N. experts on mission.238 However, with respect to such civilians and contractors the Bosnian government has abided by the no arrest or detention language of Appendix B to Annex 1-A of the Dayton Accords.
International Police Task Force (IPTF)
Within Bosnia, IPTF monitors are not subject to arrest or detention and have full immunity from criminal prosecution. Thus, without a waiver of immunity by the U.N. secretary-general,240 IPTF monitors can never be brought before Bosnian courts for the crimes they are alleged to have committed. Short of waiving immunity, the ultimate sanction available to U.N. officials against members of the IPTF is removal from service and repatriation. Per Sections 18 and 19 of the Convention, IPTF monitors do remain subject to penalties and sanctions under applicable laws and regulations of the U.N. and other states;241 therefore, each member state is responsible for any disciplinary or criminal action upon repatriation of their IPTF monitors.
The U.S. Government Position242
Undeniably, the immunity provisions in Annex 1-A present serious roadblocks to prosecuting crimes committed by expatriate civilians and contractors who accompany the U.S. NATO forces to Bosnia. If the United States did retain exclusive jurisdiction over civilians and contractors, then a jurisdictional gap was created when the Dayton Agreement was signed in 1995. At that time, there was no federal law in place to confer jurisdiction on U.S. courts to hear cases involving crimes that were committed extraterritorially245 by U.S. civilian personnel who accompanied the armed forces overseas.246
In November 2000, in a long overdue attempt to close the jurisdictional gap, Congress passed the Military Extraterritorial Jurisdiction Act of 2000 (MEJA).247 MEJA established federal jurisdiction over offenses committed outside the United States by persons employed by or accompanying the armed forces and by members of the armed forces who are released or separated from active duty prior to being identified and prosecuted for the commission of such offenses.248 MEJA grants jurisdiction to U.S. courts for any offense "that would constitute an offense punishable by imprisonment for more than one year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States."249
Existing U.S. law does not permit the prosecution of U.S. IPTF officers for criminal offenses committed while part of a U.N. mission; therefore, even after the monitors return to the United States, U.S. courts do not have jurisdiction over them. Moreover, since U.S. members of the IPTF do not originate from a national police force, there is no real possibility of disciplinary sanctions once they return from overseas.250
233 The official IPTF and UNMIBH policy on trafficking states, "As regards subsequent action taken by sending state, it is up to the country concerned to initiate disciplinary action against the sanctioned police monitor." A copy of the policy was submitted to the U.S. House of Representatives International Relations Committee on April 23, 2002. In a letter to Human Rights Watch, Andrei Shkourko, the U.N. headquarters Bosnia and Herzegovina desk officer, wrote, "The United Nations does not have the legal authority to take punitive measures against civilian police monitors made available by Member States for United Nations peacekeeping operations, and the disciplinary follow-up to their misconduct is the responsibility of the contributing countries. The options available to the United Nations in such cases are limited, therefore, to the administrative action of repatriation with the recommendation to the national authorities concerned to take the appropriate action against the individual in question. There is now a procedure in place to make the results of internal investigations routinely available to contributing countries for follow-up action. However, the mechanisms for ensuring follow-up by the authorities of the contributing countries need to be strengthened. We are aware of this need and we are trying to meet it." Letter to Human Rights Watch from Andrei Shkourko, senior political affairs officer, April 4, 2002.
234 Article VI of the Convention on Privileges and Immunities of the U.N. states: "Experts (other than officials coming within the scope of Article V) performing missions for the U.N. shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions." This status has been defined as functional immunity as compared with the complete immunity granted to U.N. officials. Convention on the Privileges and Immunities of the U.N., adopted by the General Assembly of the U.N. on 13 February 1946, entered into force on 17 September 1946. See Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, 1999 ICJ Rep. 100 (April 29, 1999).
236 Sections 20 and 23 of the Convention specify that all privileges and immunities are granted in the interests of the U.N. and not for the personal benefit of the individuals. It reserves the right of the U.N. secretary-general to waive immunity when that immunity would impede the administration of justice.
237 See General Framework for Peace in Bosnia and Herzegovina, Annex 1-A, Appendix B, sec. 7. Members of the U.S. military are subject to the Uniform Code of Military Justice (UCMJ) and as such are normally tried before courts martial.
238 The International Court of Justice discussed this type of functional immunity at great length in two advisory opinions involving its application to special rapporteurs. See Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the U.N., Advisory Opinion, 1989 ICJ Rep. (15 Dec. 1989). See also Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, 1999 ICJ Rep. 100 (April 29, 1999).
239 General Framework for Peace in Bosnia and Herzegovina, Annex 11. Convention on the Privileges and immunities of the U.N. was adopted by the General Assembly of the U.N. on 13 February 1946, and entered into force on 17 September 1946.
240 In an Advisory Opinion by the International Court of Justice, the Court gave some indication that in certain compelling situations a waiver by the secretary-general was not required with regard to the immunity held by experts on mission. Unfortunately, the Court failed to give any indication as to what qualified as a compelling situation, or if this exception extended to the immunity of U.N. officials under Sections 18 and 19. See Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, 1999 ICJ Rep. 100 (April 29, 1999).
243 Prepared statement of Robert E. Reed, Esq., associate deputy general counsel, U.S. Department of Defense, presented to the House Committee on the Judiciary Subcommittee on Crime, March 30, 2000. The House Report on Military Extraterritorial Jurisdiction Act of 2000 also indicates that the United States has exclusive jurisdiction over U.S. civilian and contractor criminal offenses committed in Bosnia. H.R. 106-778, July 20, 2000.
244 The Military Extraterritorial Jurisdiction Act provides for jurisdiction in the United States, but as of October 2002 no cases had yet been brought. Two U.S. contractors who faced accusations ranging from procuring and pandering to illegal purchase of a weapon did not face charges in Bosnia and Herzegovina or in the United States. See Chapter XI, SFOR contractor involvement.
245 Criminal laws are generally not given extraterritorial application. However, a half dozen NATO member states are drafting specific language into domestic laws, specifically those relating to prosecution of citizens who travel for sex with minors abroad, enabling extraterritorial jurisdiction; other states recognize extraterritorial jurisdiction for prosecution of their own citizens. See Eric Thomas Berkman, "Note: Responses to the International Child Sex Tourism Trade," B.C. International & Comparative Law Review, 19 (1996), p. 397.
248 During a hearing before the House Judiciary Committee's Subcommittee on Crime, Brigadier General Joseph Barnes, the assistant judge advocate general for the U.S. Army, was asked specifically whether MEJA would apply to civilians participating in military operations in Bosnia. He answered affirmatively.
249 Statutes applicable to the "special maritime and territorial jurisdiction of the United States" include: 18 U.S.C. § 113 (assault); id. § 1111-1113 (homicides); id. §§ 2241-2246 (sexual abuse); id. § 2422 (transportation for illegal sexual activity and related crimes); id. §1589 (forced labor). Although much of the motivation behind passing MEJA was a desire to prosecute crimes committed by U.S. citizens against U.S. citizens when host states lack the incentive to do so, MEJA also enables prosecution of crimes committed against individuals from other countries by U.S. citizens who accompany the armed forces. This jurisdiction is particularly important when a status of forces agreement (SOFA) effectively prohibits a host country from prosecuting. Where a SOFA does not preclude host country prosecution, MEJA creates concurrent jurisdiction between the United States and the host country.
250 Unlike other NATO countries, the United States must rely on volunteers from state and local police departments to assemble its contingent to civilian police operations. The Department of Justice Bureau of Statistics estimates there are over 18,000 separate state and local law enforcement agencies in the United States. Bureau of Statistics, Law Enforcement Statistics Report, www.ojp.usdoj.gov/bjs/lawenf.htm (retrieved November 10, 2002). The fact that IPTF monitors from the United States are drawn from this enormous number of police agencies scattered throughout the United States has serious ramifications for discipline among the U.S. contingent. Because of this decentralized, diffuse recruiting pool, information on disciplinary actions against particular officers rarely makes it back to a U.S. police officer's home force. Experts such as Robert Perito of the U.S. Institute of Peace have advocated federalizing U.S. officers participating in U.N. civilian police missions, arguing that "officers would be held accountable by a federal law enforcement agency would help ensure good behavior.... It would also be very difficult for the federal agency itself to turn a blind eye to the behavior of its personnel." E-mail correspondence with Robert Perito, USIP senior fellow, Washington, D.C., October 29, 2001, on file with Human Rights Watch.