Reviewing the 1990 United Nations Model Status of Forces Agreement

On Friday, February 25, 2011, the International Peace Institute and the Permanent Mission of New Zealand to the UN, in collaboration with the School of Law at the University of Essex, held a policy forum to consider the issue of reviewing the 1990 United Nations Model Status of Forces Agreement (Model SOFA) to better address today’s UN peacekeeping challenges.
The meeting, which was convened under the Chatham House Rule of nonattribution, took place during the annual session of the UN Special Committee on Peace Operations (CC-34 Committee) at UN headquarters. It featured presentations by a panel of military and legal experts and a briefing on a preliminary study prepared by the UN Peacekeeping Law Reform Project at the Essex University School of Law.

Representatives from UN member states, the Secretariat, and the academic and policy communities in New York were invited to share their views on the Model SOFA and to discuss whether an update of the document is necessary to improve the impact of UN peace operations in the field.

The current Model SOFA was promulgated by Secretary-General Javier Pérez de Cuellar in 1990. It is the standard status of forces agreement between the UN and a host state until a mission-specific agreement has been established for a peacekeeping operation. When the document was adopted more than twenty years ago, it was emphasized that it was to be a “living document” and that it should evolve over time to take into consideration the UN’s role in a changing peace and security environment.

Meeting participants noted that over the past two decades, UN peacekeeping has undergone a number of significant changes that are not taken into account in the current Model SOFA.

To start with, peacekeeping operations are more large-scale than ever and they are also increasingly authorized to use a greater spectrum of force in a greater number of situations. The complexity and range of mission mandates have also expanded dramatically. The UN is increasingly asked to implement comprehensive peace agreements with multidimensional tasks, ranging from the promotion of human rights to rule of law and security-sector reforms and long-term stabilization and development projects.

These developments have also had an impact on the role of the Special Representative of the Secretary-General (SRSG). Today, the SRSG is tasked with the almost impossible job of ensuring the UN’s impartiality while at the same time being involved with highly sensitive and political early peacebuilding tasks. This has raised important questions for the relationship between the host state and the UN.

The Model SOFA is intended to be provisional during the first thirty days of the start-up phase of a mission. However, lately it has come to constitute the binding legal document for months and even years of a mission. Making sure that it is updated to match the current peacekeeping challenges therefore becomes an even more pressing issue.

A number of challenges were discussed in relation to the application of the Model SOFA in today’s peacekeeping environment.

The safety and protection of UN peacekeepers and civilian mission staff was mentioned as an area of particular concern and one that is not adequately addressed under the current Model SOFA. Given the rising number of attacks on UN personnel and the increasingly violent peacekeeping environment, the legal provisions on safety and protection need to be comprehensive.

Related to this issue is the need to clarify the legal ramifications and the UN’s liability with regards to the additional categories of UN peacekeeping personnel serving in missions, including UN volunteers and civilian contractors. For roughly 2,500 UN volunteers active in the field this remains a particularly pressing matter.

Since the 1990s, a number of challenges have arisen in relation to the use of force and the application of the Model SOFA. Shortcomings in the agreement on this important aspect may leave military or police staff unnecessarily exposed, or prevent them from acting in situations where force would have been legitimate.

On the freedom of movement of UN personnel, it was noted that the Model SOFA is reasonable and precise, but that there is still room for improvement, particularly to help prevent situations where UN staff are hindered in their travel within the host state to carry out important mission-tasks. It was also emphasized that the legal provisions relating to the respect for international humanitarian law (IHL) and international human rights law (IHR) are two important issues to take into consideration when reviewing the Model SOFA. Over the years, the document has been partially strengthened in these areas, but making sure that the respect for IHL and IHR is observed in the field still remains a challenge.

Furthermore, in order to ensure compliance with the Model SOFA, missions need to do a better job in disseminating information about the agreement internally. Experience shows that UN peacekeeping personnel today remain relatively uninformed about both the Model SOFA and the mission-specific status of forces agreements.

It was pointed out that the debate on reviewing the Model SOFA should focus on identifying realistic and appropriate improvements of the document and avoid embracing areas that are better left for bilateral negotiations between the host state and the UN. Ultimately, a revision of the Model SOFA should not be about reinventing the wheel, but about refining the document to ensure that it is equipped to address today’s peacekeeping challenges.