Abstract
The very nature of the North Atlantic Treaty Organization (NATO), namely a military alliance of a defensive character, points to the relevance that the duty of care may have for the organization, as it implies the prospect for deployment abroad and in a dangerous environment for personnel either directly hired by the organization or having some other working link with it. Civilians having a working relationship with NATO are not only those recruited to run the Headquarters or to support Council approved operations or missions but also consultants, temporary staff, staff seconded from a member State and members of the civilian component of a NATO force deployed in the field. This chapter will analyse the extent to which NATO implements its duty of care when these categories of civilians perform functions outside the Headquarters. In addition, the paper attempts to address the degree of applicability of NATO duty of care obligations to non-staff members, namely contractors and locally employed personnel.
Annex II—the Table of Cases—can be accessed online here: http://extras.springer.com/.
Luisa Vierucci, Associate Professor of International Law, University of Florence, Via delle Pandette 32, 50127 Florence, Italy, luisa.vierucci@unifi.it; Polina Korotkikh has recently graduated in International Relations and European Studies at the University of Florence, polinakorotkikh@outlook.com
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Notes
- 1.
According to Article 5 of the 1949 North Atlantic Treaty, ‘The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area’.
- 2.
See Article 2 of the North Atlantic Treaty.
- 3.
- 4.
Draper G.I.A.D. 1966, p. 21.
- 5.
Around 1,000 civilians are today working as NATO international staff at the headquarters in Brussels (see https://www.nato.int/cps/en/natohq/topics_58110.htm? Accessed 3 November 2017). According to the NATO Handbook 2006, p. 73: ‘civilian staff employed by NATO worldwide, including the staff of NATO agencies located outside Brussels and civilians serving on the staff of the military commands throughout NATO, number approximately 5200’ (NATO 2006).
- 6.
NATO 2005.
- 7.
Also the directives implementing Annex XIV, C-M(2005)0041 and C-M(2010)0115, would undoubtedly be of high importance for this study since they not only complement the provisions of the NCPR but also have primacy over the latter in case of a conflict of interpretation (see, in this sense, Article 12, para 1, of Annex XIV to the NCPR). However they are not publicly available. Equally not disclosed are ACO Directive 50-11, Deployment of NATO Civilians (a living document) and ACT Directive 50-13, Deployment of ACT NATO Civilians (12 February 2010), reference to which is made in: NATO 2010b, p. 172 (NATO Legal Deskbook).
- 8.
This was the first SOFA ever to apply to the civilian component of an armed force, see Draper 1966, p. 184.
- 9.
This possibility is envisaged in Article XIX of the Agreement on the Status of NATO, in para 2 of the Preamble to the NATO SOFA and in Article 7, para 2 of the Protocol to the NATO SOFA. Similar agreements have been concluded, for example, between NATO and Germany (Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces with respect to Foreign Forces stationed in the Federal Republic of Germany (Revised Supplementary Agreement, effective 29 March 1998), (NATO SOFA with Germany) available at: http://www.eur.army.mil/aepubs/docs/NATO-SOFA.pdf. Accessed 10 November 2017) and between NATO and Italy (Agreement between the Government of the Italian Republic and the Supreme Allied Commander in Europe on the special conditions applicable to the establishment and operation in Italian territory of International Military Headquarters which are or may be there installed, in Gazzetta Ufficiale della Repubblica Italiana, no. 182, 9-7-19963, p. 3565).
- 10.
An agreement concluded by NATO with a member State may expressly recognise priority to the NCPR. This is the case of the Agreement between the Portuguese Republic, of the one part, and the Supreme Headquarters Allied Powers Europe and Headquarters, Supreme Allied Commander Transformation, of the other part, to supplement the protocol on the Status of International Military Headquarters set up pursuant to the North Atlantic Treaty, Resolução da Assembleia da República n. 79/2014, 04-09-2014 (Article 13, para 1(a)). See also below n. 23.
- 11.
Agreement among the States Parties to the North Atlantic Treaty and the other States participating in the Partnership for Peace regarding the Status of their Forces, opened for signature 19 June 1995, entered into force 13 January 1996. Available at: https://www.nato.int/cps/ic/natohq/topics_50086.htm. Accessed 5 January 2018.
- 12.
Agreement between the North Atlantic Treaty Organization and the Islamic Republic of Afghanistan on the Status of NATO Forces and NATO Personnel Conducting Mutually Agreed NATO-Led Activities in Afghanistan, entered into force 1 January 2015. Available at https://www.nato.int/cps/ic/natohq/official_texts_116072.htm?selectedLocale=en. Accessed 14 December 2017.
- 13.
Such an expression cannot be found either in the official NATO Terminology database (available at https://nso.nato.int/natoterm/content/nato/pages/home.html?lg=en. Accessed 10 October 2017), or in non official documents such as the 2016 NATO Encyclopedia (available at https://www.nato.int/cps/en/natohq/topics.htm. Accessed 10 October 2017).
- 14.
The jurisprudence of the bodies competent to adjudicate upon the disputes between staff members and NATO (the NATO Appeals Board, active between 1965 and 2013, and the NATO Administrative Tribunal established in 2013 through an amendment to the NCPR) is not useful for the analysis of the duty of care of civilians personnel sent on mission. In the judgments issued by the Administrative Tribunal until the end of 2016, the expression ‘duty of care’ is used exclusively in respect to labour issues such as the dismissal of a person, the termination of a mission or the rejection to renew a contract due to a prolonged sick leave. Only the following statement seems to refer more closely to the notion of duty of care that we adopt: ‘This duty implies, in particular, that when the administration takes a decision concerning the situation of a staff member, the competent service should take into consideration all the factors which may affect its decision, and when doing so it should take into account not only the interests of the service but also those of the staff member concerned’ (Appellant v. NATO Joint Force Training Centre Respondent, 27 April 2016, Judgment Case No. 2015/1066 MDP, Article 58 (see Annex II, Case 30)).
- 15.
NATO Legal Deskbook, pp. 165–166.
- 16.
NCPR, Part Two, Article 69, para 1.
- 17.
NCPR, Preamble, Article B(v)(e).
- 18.
NCPR, Preamble, Article B(f)(i).
- 19.
Ibid., Article B(f)(ii).
- 20.
NATO SOFA, Article I, para 1(b).
- 21.
See NCPR, Preamble para A (devoted to ‘Applicability’), subpara (iii): Compliance with these Regulations, except as specified in agreements concluded between the member government concerned and the Secretary General or Supreme Allied Commander as appropriate, is likewise incumbent on nationals of a country which has elected to avail itself of the special provisions of Article 19 of the Agreement on the status of the North Atlantic Treaty Organization, national representatives and international staff or Article 7(2) of the Protocol on the status of international military headquarters’.
- 22.
NCPR, Annex XIV, Article 5: ‘When a staff member is sent on a Council approved mission on a foreign territory, an ‘appropriate legal status’ must be accorded to him/her prior to assignment or appointment’. Deployment is defined as ‘the assignment of a staff member to a remote location, to perform duties (inside or outside a theatre/deployment location) in support of a Council-approved operation or mission’.
- 23.
NATO Legal Deskbook, p. 166.
- 24.
NATO SOFA, Article IX, para 4.
- 25.
NATO Legal Deskbook, p. 166.
- 26.
NATO 2012, p. 161.
- 27.
Ibid.
- 28.
See e.g. Article 49, para 6(b) of the Agreement.
- 29.
See e.g. Article 9 of the Agreement.
- 30.
NCPR, Preamble, Article A(ii).
- 31.
NCPR, Annex XIV, Article 9, para 1.
- 32.
NCPR, Annex XIV, Article 9, para 2.
- 33.
- 34.
See Spagnolo, Chap. 3.
- 35.
According to the NATO Logistic Handbook (NATO 2012, p. 157), the NATO Commander has ‘full control’ over the activities of a contractor ‘in accordance with applicable regulations, terms and conditions laid down in the contract’. However, ‘where a nation is the contracting authority, and the contracted support is for national purposes only, the NATO Commander’s authority over the contracted support will be in accordance with the Transfer of Authority (TOA) or other arrangements agreed between the NATO Commander and the nation’ (ibid.).
- 36.
In the countries that belong to the Partnership for Peace programme, several liaison offices have been set up which are staffed mainly by civilians, see https://www.nato.int/cps/en/natohq/topics_79926.htm.
- 37.
See NATO and Afghanistan at https://www.nato.int/cps/ic/natohq/topics_8189.htm.
- 38.
See NATO 2014 Wales Summit declaration, para 38 (available at https://www.nato.int/cps/en/natohq/official_texts_112964.htm. Accessed 19 November 2017), according to which ‘following a request by the Libyan authorities, we continue to stand ready to support Libya with advice on defence and security institution building and to develop a long-term partnership’.
- 39.
NCPR, Article 14, para 3.
- 40.
NCPR, Article 47 provides details on the extent of the insurance coverage. It is the responsibility of the Secretary General and the Supreme Allied Commanders ‘to define the method of insurance to be applied in each host country’, and, once it is defined, it becomes compulsory for all members of the staff (NCPR, Article 48, paras 2–3).
- 41.
Ibid., Article 83.
- 42.
Ibid., Article 48.
- 43.
Ibid., Article 47, para 3.
- 44.
Ibid., Article 74.
- 45.
Ibid., Article 76bis (for consultants) and Article 87 (for temporary personnel).
- 46.
The key document is the 2008 Allied Joint Medical Doctrine for medical evacuation (NATO 2008a).
- 47.
- 48.
NATO 2008b.
- 49.
NATO 2014.
- 50.
NCPR, Annex XIV, Article 8, para 1. For personnel deployed to a location remote from the actual theatre of operation or mission, the responsibilities fall on the Senior NATO Military Commander responsible for the deployed location.
- 51.
NCPR, Annex XIV, Article 8, para 2.
- 52.
NCPR, Article 4, para 4.
- 53.
NCPR, Annex XIV, Article 8, para 4.
- 54.
Article 12, para 1 of the Agreement.
- 55.
Article 12 of the Agreement.
- 56.
Ibid., Article 12, para 2.
- 57.
NATO 2012, p. 162.
- 58.
Ibid. The NATO Policy on Contractor Support to Operations C-M (2007)004 might provide protection towards contractors deployed on Council approved missions but it is not publicly available.
- 59.
NCPR, Article 14, para 4. See further below, Sect. 9.4.7
- 60.
NCPR, Article 4, para 1.
- 61.
NCPR, Article 16bis.
- 62.
However, according to Article 81 of the NCPR the provision on training may be derogated from in the contract.
- 63.
See NATO (2012) NATO Civilian pre-deployment training marks 5th anniversary. https://www.nato.int/cps/en/natolive/news_87928.htm. Accessed 21 December 2017.
- 64.
NATO Civilian Pre-Deployment Courses. http://www.predeploymentcourse.com/. Accessed 21 December 2017.
- 65.
The topics include first aid, orientation, negotiation and meditation, cultural awareness, international law, radio procedures and psychological aspects of missions, see Smith S (2007) Civilians get dirty too. https://www.nato.int/fchd/fchdold/news/2007/n070619b.htm. Accessed 21 December 2017.
- 66.
NATO (2015) Standard AJP-3.14 Allied Joint Doctrine for Force Protection Edition A version 1 with UK national elements. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/454616/20150804-AJP_3_14_Force_Protection_Secured.pdf. Accessed 21 February 2018.
- 67.
Ibid., Chapter 1, para 2.
- 68.
Ibid., Chapter 4, para 0420(c).
- 69.
Ibid., Chapter 4, para 0420(d).
- 70.
Ibid., Preface, para 0006.
- 71.
STANAG on Search and Rescue (SAR) and Combat Search and Rescue (CSAR) 2005.
- 72.
NATO Allied Joint Doctrine for Recovery of Personnel in a Hostile Environment 2016, AJP-3.7. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/511240/20160315-NATO_Pers_Recovery_AJP_3_7.pdf. Accessed 21 December 2017.
- 73.
See https://shape.nato.int/2016/nato-helps-promote-search-and-rescue-training. Accessed 13 January 2018.
- 74.
According to Article 12, para 1.4. of the NCPR; ‘Members of the staff shall treat their colleagues and others, with whom they come into contact in the course of their duties, with respect and courtesy at all times. (a) They shall not discriminate against them on the grounds of gender, race or ethnic origin, religion or belief, age or sexual orientation. (b) They shall not harass, bully or otherwise abuse another staff member’.
- 75.
NATO (2003) Protection against discrimination and harassment at work. http://www.ficsa.org/component/sobipro/?task=download.file&fid=37.1564&sid=1266&Itemid=0. Accessed 11 December 2017.
- 76.
Details on this Center can be found at https://www.nato.int/fchd/contact/fscindex.html. Accessed 11 December 2017.
- 77.
NATO/EAPC Policy for the implementation of UNSCR 1325 on Women, Peace and Security and related resolutions 2014. http://www.nato.int/cps/en/natohq/official_texts_109830.htm?selectedLocale=en. Accessed 11 December 2017.
- 78.
Ibid.
- 79.
See Gender perspectives in NATO Armed Forces. http://www.nato.int/cps/en/natohq/topics_101372.htm. Accessed 11 December 2017.
- 80.
More than 90% of NATO member States include gender in pre-deployment training and exercises and more than 73% include gender in operational planning (2015 Summary of the National Reports of NATO Member and Partner Nations to the NATO Committee on Gender Perspectives. http://www.nato.int/nato_static_fl2014/assets/pdf/pdf_2017_01/20170113_2015_NCGP_National_Reports_Summary.pdf. Accessed 1 December 2017, p. 35). In addition, 63% of the member nations have trained gender advisors and 30.8% have set up gender focal points (Ibid.).
- 81.
NCPR, Annex IX, Article 1, para 1 specifies the principles set out in Article 61 of the NCPR.
- 82.
According to Article 6 of the Annex, the Administrative Tribunal is composed of five members, including the President, who shall be of different nationalities. Each member must be of the nationality of one of the Member states of NATO, may not be staff members or members of the retired NATO staff or of the national delegations to the Council.
- 83.
The Tribunal may also order specific performance such as a pay increase, promotion, transfer or reinstatement of employment, and the payment of a monetary relief or of compensation for the injury resulting from any irregularity committed by the Head of the NATO body.
- 84.
NATO Legal Deskbook 2010, p. 166.
- 85.
Ibid.
- 86.
Or a former staff member, or member of the staff family.
- 87.
NCPR, Part One, Article 14, para 1.
- 88.
NCPR, Part One, Article 14, para 4.
- 89.
Agreement on the Status of NATO, Articles 12–13.
- 90.
See Draper 1966, esp. pp. 47–70.
- 91.
Article 11, para 1, of the 2014 NATO SOFA with Afghanistan.
- 92.
Ibid., Article 11, para 5.
- 93.
NCPR, Part One, Article 3(d) and (g).
- 94.
NCPR, Annex XIV, Article 10, para 1. The NCPR contain detailed provisions on the duties of the staff members (Article 12, para 1), which are supplemented by several Council Memoranda (e.g. the Council Memorandum CM(2002)49 on Security within North Atlantic Treaty Organization, 17 June 2002, which specifies what are the obligations of the staff members in respect to the security of NATO information. The document is available at: http://www.freedominfo.org/documents/C-M(2002)49.pdf. Accessed 1 December 2017).
- 95.
NCPR, Annex XIV, Article 8, para 4.
- 96.
NATO (2004) Policy on Combating Trafficking in Human Beings. http://www.nato.int/docu/comm/2004/06-istanbul/docu-traffic.htm. Accessed 15 December 2017.
- 97.
NATO (2004) Guidelines on Combating Trafficking in Human Beings for Military Forces and Civilian Personnel Deployed in NATO-led Operations. https://www.nato.int/docu/comm/2004/06-istanbul/docu-traffic-app1.htm. Accessed 15 December 2017.
- 98.
NATO Policy on Combating Trafficking in Human Beings, Article 5(f).
- 99.
NATO (2013) Code of Conduct. https://www.nato.int/structur/recruit/info-doc/code-of-conduct.pdf. Accessed 7 January 2018 (Only an abridged version of the document is publicly available).
- 100.
Soder K (2009) Multilateral Peace Operations: Personnel, 2009. https://www.sipri.org/sites/default/files/files/FS/SIPRIFS1007Personnel.pdf. Accessed 3 December 2017.
- 101.
NATO 2010a.
- 102.
Ibid.
List of References
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Lucarelli S, Marrone A, Moro F (eds) (2017) Projecting Stability in an Unstable World. NATO, Brussels
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NATO (2006) Handbook. https://www.nato.int/docu/handbook/2006/hb-en-2006.pdf. Accessed 4 October 2017
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Further Reading
Golbert A (1962) The status of forces agreement of the North Atlantic Treaty Organization: With special reference to its applications to civilians and Italy [S.l. : s.n.]
Goodhart A L (1951) The North Atlantic Treaty of 1949. In: Recueil des Cours de l’Academie de Droit International de La Haye, vol. II. The Hague Academy of International Law, p 187ff.
Lazareff S (1965) Le statut des forces de l’OTAN et son application en France. Pedone, Paris
Marauhn T (2017) The North Atlantic Treaty Organization (NATO). In: Lachenmann F, Wolfrum R (eds) The Law of Armed Conflict and the Use of Force. In: Max Planck Encyclopedia of Public International Law. Oxford University Press, Oxford, online edition, available at http://opil.ouplaw.com/home/EPIL. Accessed 10 February 2018
Tuohy E (2016) NATO and Its Conflict Management Toolbox. In: Goda S, Tytarchuk O, Khylko M (eds) International Crisis Management: NATO, EU, OSCE and Civil Society. IOS Press, Amsterdam, pp 54–65
List of Cases
NATO Administrative Tribunal, Appellant v. NATO Joint Force Training Centre Respondent, 27 April 2016, Case No. 2015/1066 MDP (see Annex II, Case 30)
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Vierucci, L., Korotkikh, P. (2018). Implementation of the Duty of Care by NATO. In: de Guttry, A., Frulli, M., Greppi, E., Macchi, C. (eds) The Duty of Care of International Organizations Towards Their Civilian Personnel. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-258-3_9
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