Council Decision 2005/765/CFSP

of 3 October 2005

concerning the conclusion of the agreement in the form of an Exchange of Letters between the European Union and the Government of Indonesia on the tasks, status, privileges and immunities of the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission - AMM) and its personnel

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Article 24 thereof,

Having regard to the recommendation from the Presidency,

Whereas:

(1) On 9 September 2005, the Council adopted Joint Action 2005/643/CFSP on the European Union Monitoring Mission in Aceh, Indonesia (Aceh Monitoring Mission - AMM) [1].

(2) Article 7 of the Joint Action provides that the status of the Aceh Monitoring Mission staff in Indonesia, including where appropriate the privileges, immunities and further guarantees necessary for the completion and smooth functioning of that Mission are to be agreed in accordance with the procedure laid down in Article 24 of the Treaty.

(3) Following the authorisation of 18 July 2005 given by the Council to the Presidency, assisted where necessary by the Secretary-General/High Representative, in case of future EU civilian crisis management missions to open negotiations with Host States with a view to concluding agreements on the status of the European Union civilian crisis management missions on the basis of the Model Agreement on the Status of the European Union Civilian Crisis Management Mission in a Host State (SOMA), the Presidency, assisted by the Secretary-General/High Representative, negotiated an agreement in the form of an Exchange of Letters with the Government of Indonesia on the tasks, status, privileges and immunities of the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission - AMM) and its personnel.

(4) The agreement in the form of an Exchange of Letters should be approved on behalf of the European Union,

HAS DECIDED AS FOLLOWS:

Article 1

The agreement in the form of an Exchange of Letters between the European Union and the Government of Indonesia on the tasks, status, privileges and immunities of the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission - AMM) and its personnel is hereby approved on behalf of the European Union.

The text of the agreement in the form of an Exchange of Letters is attached to this Decision.

Article 2

The President of the Council is hereby authorised to designate the person(s) empowered to sign the agreement in order to bind the European Union.

Article 3

This Decision shall be published in the Official Journal of the European Union.

Article 4

This Decision shall take effect on the day of its adoption.

Done at Luxembourg, 3 October 2005.

For the Council

The President

D. Alexander

[1] OJ L 234, 10.9.2005, p. 13.

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Agreement

in the form of an exchange of letters between the European Union and the Government of Indonesia on the tasks, status, privileges and immunities of the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission - AMM) and its personnel

Your Excellency,

I have the honour to acknowledge receipt of your letter of 14 September 2005 and its annexes regarding the tasks, status, privileges and immunities of the Aceh Monitoring Mission (AMM), which reads as follows:

"

With reference to your letter dated 9 September 2005, I have the honour to confirm the tasks and mandate of the Aceh Monitoring Mission (AMM) which are set out in paragraph 2 of your letter as attached in Annex I.

I should also like to convey to you that in order to facilitate the fulfilment of the mandate of the AMM established pursuant to the Memorandum of Understanding (MoU) between the Government of the Republic of Indonesia (GoI) and the Free Aceh Movement (GAM) signed at Helsinki on 15 August 2005, with a view to providing a peaceful, comprehensive and sustainable solution of the problem in Aceh within the unitary Republic of Indonesia, a legal framework is needed as a basis for the AMM to fulfil its mandate.

Accordingly, I have the honour to propose such legal framework which would govern the status, privileges and immunities of the AMM and its personnel in fulfilling their mandate, which is set out in Annex II. For the GoI, this legal framework is based on Indonesian Law No 2 of 25 January 1982 concerning the Ratification of Convention on Special Missions, New York 1969.

I would be grateful if you could confirm, on behalf of the European Union, your acceptance of those provisions, and also confirm your understanding that this letter and its Annexes, together with your reply, shall constitute a legally binding instrument between the Government of Indonesia and the European Union. This instrument shall enter into force on the day of signature of your reply. If your reply is received at a later date, the GoI will apply it provisionally as of 15 September 2005. It may be amended by mutual consent and will be terminated on 15 March 2006, unless extended for another period of up to six months by mutual consent.

The provisions governing the status, privileges and immunities of the AMM and its personnel will remain applicable until the departure of all AMM personnel from the Republic of Indonesia and, if any, the final settlement of all outstanding claims pursuant to Section 16 of the Annex II.

Please accept, Excellency, the assurances of my highest consideration.

Yours sincerely,

+++++ TIFF +++++

Yusril Ihza Mahendra

Minister for Foreign Affairs a.i.

""

ANNEX I

Brussels, 9 September 2005

Dear Minister,

I refer to your letter of 12 July 2005 inviting the European Union to participate in an Aceh Monitoring Mission (AMM) and my reply of 22 July 2005, confirming the EU's agreement in principle. I have the honour to inform you that the Council of the EU on 9 September 2005 adopted the Joint Action setting out the legal framework for the EU's participation in the AMM.

With reference to the Memorandum of Understanding (MoU) signed between the Government of Indonesia and the Free Aceh Movement on 15 August 2005 and the establishment of the Aceh Monitoring Mission (AMM), I would like to confirm that the AMM will carry out the following tasks:

The AMM shall monitor the implementation of the commitments undertaken by the Parties to the MoU.

In particular, the AMM shall:

(a) monitor the demobilisation of GAM and decommissioning of its armaments,

(b) monitor the relocation of non-organic military forces and non-organic police troops,

(c) monitor the reintegration of active GAM members,

(d) monitor the human rights situation and provide assistance in this field,

(e) monitor the process of legislation change,

(f) rule on disputed amnesty cases,

(g) investigate and rule on complaints and alleged violations of the MoU,

(h) establish and maintain liaison and good cooperation with the parties.

If required, I would suggest that implementing arrangements are agreed upon by the AMM Head of Mission and representatives of your government.

Consequently and following consultations between our representatives, I would like to invite you to initiate the Exchange of Letters regarding the status, privileges and immunities of the AMM and its personnel.

I look forward to further close cooperation with you and your government.

Please accept the assurances of my highest consideration.

Yours sincerely,

Javier SOLANA

""

ANNEX II

Provisions on the Status, Privileges and Immunities of the Aceh Monitoring Mission (AMM)

1. For the purposes of the legal framework of the AMM, the following definitions shall apply:

(a) "AMM" or "the mission" shall mean the Aceh Monitoring Mission in the Province of Nanggroe Aceh Darussalam, established by the European Union and ASEAN Contributing Countries in accordance with the Memorandum of Understanding between the Government of the Republic of Indonesia (GoI) and the Free Aceh Movement (GAM) signed at Helsinki on 15 August 2005, including its components, elements, headquarters, personnel and facilities deployed on the territory of the Republic of Indonesia and assigned to the AMM;

(b) "Head of Mission" shall mean the Head of Mission of AMM;

(c) "AMM personnel" shall mean the Head of Mission/Principal Deputy Head of Mission, personnel seconded by EU Member States, other European States and ASEAN Contributing Countries, international staff recruited on a contractual basis by the AMM deployed for the preparation, support and implementation of the mission, and personnel on mission for a Sending State or an EU institution in the framework of the mission. It shall not include commercial contractors or personnel employed locally;

(d) "Headquarters" shall mean the AMM main headquarters in Banda Aceh;

(e) "Sending State" shall mean any EU Member State, other European States or ASEAN Contributing Country that has seconded personnel to the AMM;

(f) "Facilities" shall mean all buildings, premises and land required for the conduct of the activities of the AMM, as well as for the accommodation of the AMM personnel;

(g) "Personnel employed locally" shall mean personnel who are nationals of or permanently resident in the Republic of Indonesia.

2. General provisions

(a) The AMM and AMM personnel shall respect the sovereignty, territorial integrity, national unity and political independence of the Republic of Indonesia in accordance with the Charter of the United Nations.

(b) The AMM and AMM personnel shall maintain strict impartiality, objectivity and independence in the conduct of their mandate and tasks, and shall respect the national laws and regulations of the Republic of Indonesia, including the local laws and regulations of the Province of Nanggroe Aceh Darussalam.

(c) In carrying out their mission, the personnel of AMM shall refrain from any activities not compatible with its nature and purpose. Such personnel are not to carry arms;

(d) The AMM shall be autonomous with regard to the execution of its functions. The Host State shall respect the unitary nature of the AMM.

(e) The Head of Mission shall regularly inform the Department of Foreign Affairs of the number and names of personnel deemed necessary to guarantee impartial, objective and credible monitoring of the entire implementation of the MoU between the GoI and GAM.

3. Identification

(a) The AMM personnel shall be provided with and identified by the AMM identification card, which they shall be obliged to carry with them at all times. The AMM shall provide a specimen of an AMM identification card to the relevant authorities of GoI.

(b) The vehicles and other mean of transport used by the AMM personnel shall be marked with the AMM emblem and must be notified to the local police. All means will only be used by AMM personnel and local personnel hired by the mission.

(c) The AMM shall have the right to display the flags of the EU and of the ASEAN Contributing Countries at its main headquarters and its District Offices and on its other facilities, together with the flag of the Republic of Indonesia. The emblem of the AMM may be displayed on the AMM Mission premises, vehicles and civilian dress, as decided by the Head of Mission.

4. Entry/Exit Points and movement within the Host State's territory

(a) The AMM personnel and AMM assets and means of transport shall enter/exit the border of the Republic of Indonesia at official border entry/exit, sea ports and via the international air corridors. Exceptions for medical and emergency evacuations shall be the subject of arrangements pursuant to Section 19.

(b) The GoI shall facilitate the entry into and the departure from the territory of the Republic of Indonesia for the AMM and AMM personnel, including the granting of the necessary permits for stay on the territory of the Republic of Indonesia for the duration of the mission. Except for passport control on entry into and departure from the territory of the Republic of Indonesia, the AMM personnel, with the identification card referred to in Section 3(a), shall be exempt from passport, customs control, visa and immigration regulations and any form of immigration inspection within the Republic of Indonesia.

(c) The AMM personnel shall be exempt from the regulations of the Republic of Indonesia governing the registration and control of aliens, but shall not acquire any right to permanent residence or domicile within the territory of the Republic of Indonesia.

(d) The AMM assets and means of transport entering, transiting or exiting the Republic of Indonesia's territory in support of the AMM shall be exempt from any requirement to produce inventories or other customs documentation and from any inspection, unless there are serious grounds for presuming that they contain articles that are prohibited by the law or controlled by the quarantine regulations of the Republic of Indonesia. Such inspection shall be conducted only in the presence of the authorized representative of the AMM.

(e) The AMM personnel may drive motor vehicle, navigate vessels and operate aircraft provided they have valid national or international driving licenses, ship masters certificates or pilot licenses, as appropriate. The GoI shall accept as valid, without tax or fee, such licenses, or certificates.

(f) Vehicles and aircraft used for the purposes of the mission shall not be subject to local licensing or registration requirements. Relevant international and national standards and regulations concerning overflight, landing and air traffic control shall continue to apply. If necessary, implementing arrangements will be concluded pursuant to Section 19.

(g) The AMM and AMM personnel together with their vehicles, aircraft or any other means of transport, equipment and supplies shall enjoy free and unrestricted movement throughout the Province of Nanggroe Aceh Darussalam, and the other parts of the territory of the Republic of Indonesia subject to Indonesia's laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security.

(h) For the purpose of the Mission, the AMM personnel, and local personnel employed by the AMM when travelling on official duties, may use roads, bridges ferries, airports and ports without payment of duties, fees, tolls, taxes or other charges, except on services provided by private sector. The AMM shall not be exempt from reasonable charges for services requested and received under the conditions that apply to those provided to the Republic of Indonesia's personnel.

5. Privileges and immunities of AMM granted by the GoI

(a) The AMM's facilities shall be inviolable. The GoI's agents shall not enter them without the consent of the Head of Mission.

(b) The AMM's facilities, their furnishings and other assets therein as well as their means of transport shall be immune from search, requisition, attachment or execution.

(c) The AMM, its property and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process.

(d) The AMM's archives and documents, including multimedia support, either in conventional or in digital form, shall be inviolable at any time, wherever they may be.

(e) The official correspondence of AMM shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions.

(f) The GoI will accord duty-free importation and exportation as well as exemption from internal taxation on products, property, material, and equipment imported into or acquired in host country by or for the AMM in connection with their official duties.

(g) The GoI shall permit the entry of articles for the mission and grant them exemption from all custom duties, fees, tolls, taxes and similar charges other than charges for storage, cartage and other services rendered.

6. Privileges and immunities of the AMM personnel granted by the GoI

(a) The AMM personnel shall not be liable to any form of arrest or detention.

(b) Papers, correspondence and property of the AMM personnel shall enjoy inviolability, except in case of measures of execution which are permitted pursuant to Section 6(f).

(c) The AMM personnel shall enjoy immunity from the criminal jurisdiction of the Republic of Indonesia under all circumstances. The immunity from criminal jurisdiction of AMM personnel may be waived by the Sending State or EU institution concerned, as the case may be. Such waiver must always be express.

(d) The AMM personnel shall enjoy immunity from the civil and administrative jurisdiction of the Republic of Indonesia in respect of words spoken or written and all acts performed by them in the exercise of their official functions. If any civil proceeding is instituted against the AMM personnel before any court of the Republic of Indonesia, the Head of Mission and the competent authority of the Sending State or EU institution shall be notified immediately. Prior to initiation of the proceeding before the court, the Head of Mission and the competent authority of the Sending State or EU institution shall certify to the court whether the act in question was committed by the AMM personnel in the exercise of their official functions. If the act was committed in the exercise of official functions, the proceeding shall not be initiated. If the act was not committed in the exercise of official functions, the proceeding may continue. The certification by the Head of Mission and the competent authority of the Sending State or EU institution is binding upon the jurisdiction of the Republic of Indonesia who may not contest it. The initiation of proceedings by the AMM personnel shall preclude them from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim.

(e) The AMM personnel are not obliged to give evidence as witnesses.

(f) No measures of execution may be taken in respect of the AMM personnel, except in the case where a civil proceeding not related to their official functions is instituted against them. Property of the AMM personnel, which is certified by the Head of Mission to be necessary for the fulfilment of their official functions, shall be free from seizure for the satisfaction of a judgment, decision or order. In civil proceedings the AMM personnel shall not be subject to any restrictions on their personal liberty or to any other measures of constraint.

(g) The immunity of the AMM personnel from the jurisdiction of the Republic of Indonesia does not exempt them from the jurisdictions of the respective Sending States.

(h) The AMM personnel shall, with respect to services rendered for the AMM be exempt from social security provisions which may be in force in the Republic of Indonesia.

(i) The AMM personnel shall be exempt from any form of taxation in the Republic of Indonesia on the salary and emoluments paid to them by the AMM or the Sending States, as well as on any income received from outside the GoI.

(j) The GoI shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on articles for the personal use of the AMM personnel. The GoI shall also allow the export of such articles. For goods and services purchased on the domestic market the AMM personnel shall be exempt from VAT and taxes according to the laws of the Republic of Indonesia.

(k) The personal baggage of the AMM personnel shall be exempt from inspection, unless there are serious grounds for presuming that it contains articles that are not for the personal use of the AMM personnel, or articles the import or export of which is prohibited by the law or controlled by the quarantine regulations of the Republic of Indonesia. Such inspection shall be conducted only in the presence of the AMM personnel concerned or of an authorised representative of the AMM.

7. Personnel employed locally

Personnel employed locally who are nationals of or permanently resident in the Host State shall enjoy privileges and immunities only to the extent admitted by the Republic of Indonesia. However, the Republic of Indonesia must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission.

8. Criminal jurisdiction

The competent authorities of a Sending State shall have the right to exercise on the territory of the Host State all the criminal jurisdiction and disciplinary powers conferred on them by the law of the Sending State with regard to its personnel according to the relevant law of the Sending State.

9. Security

(a) The GoI, through its own capabilities, shall assume full responsibility for the security of the AMM personnel.

(b) To that end, the GoI shall take all necessary measures for the protection, safety and security of the AMM and AMM personnel. Any specific provisions, proposed by the GoI, shall be agreed with the Head of Mission before implementation.

(c) Medical evacuation for the AMM personnel may be provided by private contractors from major airfields; however, the GoI security forces shall be responsible for the medical evacuation from field locations in Province of Nanggroe Aceh Darussalam to major airfields. In situations of urgency, the AMM contractor may perform its medical evacuation tasks from field locations to the major airfields upon prior notification of the authorities of the GoI. Medical personnel of the GoI may accompany in the evacuation process.

10. Dress

The AMM personnel shall wear civilian dress with distinctive AMM identification, subject to rules issued by the Head of Mission.

11. Cooperation and Access to Information and Media

(a) The GoI shall provide full cooperation and support to the AMM and AMM personnel.

(b) If requested and necessary for the accomplishment of the mission and relevant to the mandate of the AMM, the Host State shall provide AMM personnel with effective access to:

- buildings, facilities, locations and official vehicles within the control of the Host State,

- documents, materials and information within its control.

If required, supplementary arrangements as referred to in Section 19 shall be concluded.

(c) The Head of Mission and the GoI shall consult regularly and take appropriate measures to ensure close and reciprocal liaison at every appropriate level. The GoI may appoint a liaison officer to the AMM.

(d) The Head of Mission shall have free access to local, national and international media representatives to freely express his views in relation to AMM activities and the accomplishment of the mission. The same unhindered access to the Head of Mission or his spokesperson will be granted to the media.

(e) The Head of Mission shall have the right to make use of and have access to the available broadcast systems and organizations and/or to produce and distribute his message by his own means to inform relevant audiences in the Province of Nanggroe Aceh Darussalam within the boundaries of his mission, subject to arrangements with the relevant broadcasting and media operators.

(f) The AMM shall have legal capacity under Indonesian laws and regulations for the effective fulfilment of its mandate, in particular to allow the AMM to open bank accounts and to acquire or dispose of movable or immovable property and to be party to legal proceedings.

12. GoI support and contracting

(a) The GoI agrees, if requested, to assist the AMM in finding suitable facilities.

(b) The GoI shall provide free of charge, if required and available, facilities owned by the GoI, in so far as such facilities are requested for the conduct of administrative and operational activities of the AMM.

(c) Within its means and capabilities, the GoI shall assist in the preparation, establishment and execution of and support for the Mission, including co-location facilities and equipment for the AMM experts.

(d) The GoI's assistance and support of the mission shall be provided under the same conditions as the assistance and support given to the GoI's personnel.

(e) The law applicable to contracts concluded by the AMM in the Republic of Indonesia shall be determined by the respective contracts.

13. Change to facilities

(a) The AMM shall be authorized to construct, alter or otherwise modify facilities as required for its operational requirements, in consultation with the competent Indonesian authorities. Any objections on the part of the competent Indonesian authorities shall be notified to the AMM without delay.

(b) No compensation shall be requested from AMM by the GoI for those constructions, alterations or modification.

14. Deceased AMM personnel

(a) The Head of Mission shall have the right to take charge of and make suitable arrangements for the repatriation of any deceased AMM personnel, as well of their personal property.

(b) No autopsy shall be performed on any deceased members of the AMM without the agreement of the State concerned, and the presence of a representative of the AMM and/or the State concerned.

(c) The GoI and the AMM shall cooperate to the fullest extent possible with a view to early repatriation of deceased AMM personnel.

15. Communications

(a) The AMM shall have the right to use equipment necessary for the fulfilment of its mandate, such as maps and navigation tools, observation instruments, cameras, video tape recorders and other related equipment as appropriate.

(b) The AMM may install and operate radio sending and receiving stations, as well as satellite systems. They shall cooperate with the GoI's competent authorities with a view to avoiding conflicts in the use of appropriate frequencies. The GoI shall grant access to the frequency spectrum free of charge.

(c) The AMM shall enjoy the right to unrestricted communication by radio (including satellite, mobile and hand-held radio), telephone, telegraph, facsimile and other means, as well as the right to install the equipment necessary for the maintenance of such communications within and between the AMM facilities, including the laying of cables and land lines for the purpose of the operation, in consultation with the Indonesian authorities.

(d) Within their own facilities the AMM may make the arrangements necessary for the conveyance of mail addressed to and from AMM and/or AMM personnel.

16. Claims for death, injury, damage and loss

(a) The GoI, Sending States, the AMM and AMM personnel shall not be liable for any damage to or loss of civilian or government property which are related to operational necessities or caused by activities in connection with civil disturbances or protection of the AMM.

(b) with a view to reaching an amicable settlement, claims for damage to or loss of civilian or government property not covered by paragraph 1, as well as claims for death or injury to persons and for damage to or loss of AMM property, shall be forwarded to the AMM via the competent authorities of the GoI, as far as damage sustained by legal or natural persons from the Republic of Indonesia is concerned, or to the competent authorities of the Republic of Indonesia, as far as damage sustained by the AMM and its personnel are concerned. Claims may concern both issues related to contractual or non-contractual liability.

(c) Where no amicable settlement can be found, the claim shall be submitted to a claims commission composed on an equal basis of representatives of the AMM and representatives of the GOI. Settlement of claims shall be reached by common agreement.

17. Liaison and disputes

(a) All issues arising in connection with the application of these Provisions shall be examined jointly by representative of the AMM and the GoI's competent authorities.

(b) Failing any prior settlement, disputes concerning the interpretation or application of these Provisions shall be settled exclusively by diplomatic means.

18. Other provisions

(a) Whenever these Provisions refers ro the privileges, immunities and rights of the AMM and of the AMM personnel, the GoI shall be responsible for their implementation and for compliance with them on the part of the appropriate GOI local authorities.

(b) Nothing in these Provisions is intended or shall be construed to derogate from any rights that may attach to any sending state.

19. Implementing arrangements

For the purpose of the application of these Provisions, operational, administrative and technical matters may be the subject of separate arrangements to be concluded between the Head of Mission and the GoI's administrative authorities.

"

I have the honour to confirm, on behalf of the European Union, that the contents of your letter and of its annexes are acceptable to the European Union and that your letter and its annexes, together with this reply, shall constitute a legally binding instrument, in accordance with your proposal. As set out in your letter, this instrument shall enter into force on the day of signature of this letter. I would also like to use this opportunity to thank the Government of Indonesia for having agreed to apply this instrument provisionally as of 15 September 2005.

I should be obliged if you could acknowledge receipt of this letter.

Please accept the assurances of my highest consideration.

+++++ TIFF +++++

Javier SOLANA

c.c: Dr. N. Hassan Wirajuda

Minister for Foreign Affairs

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