Criminal Accountability of United Nations Officials, Experts on Mission Critical to Organization’s Credibility, Legal Committee Stresses in Debate
As the Sixth Committee (Legal) took up criminal accountability of United Nations officials and experts on mission, speakers agreed that such personnel must not be able to commit crimes with impunity, but held accountable if the Organization were to maintain its credibility.
Israel’s representative said that such crimes undermined the United Nations’ mandate, especially with respect to relations with local populations. Member States should take appropriate national action to ensure that such crimes were not met with impunity.
Indeed, if such serious violations were not prosecuted, underscored the representative of the Republic of Korea, the Organization might create the false signal that its officials and experts could improperly abuse immunities for private benefit.
India’s representative concurred, noting that Member States must ensure that their laws had adequate provisions for prosecuting any such conduct of their nationals who served as United Nations officials or experts on mission abroad.
However, the delegate of South Africa, speaking for the African Group, pointed out that while some Member States had expressed preference that the host State play a predominant role, the African Group favoured emphasis on the role of the State of nationality of the alleged perpetrator.
In that context, El Salvador’s delegate stressed that establishing who should have competence for those serious crimes was an important step for States. It would not always be necessary to change the description of the crime and expressly include officials and experts on mission, he said, since most States already considered serious crimes to be punishable by law, irrespective of who committed them.
Thailand’s representative suggested that one way to bring offenders to justice and end impunity was for host States and troop-contributing States to cooperate through treaties and arrangements on mutual legal assistance in criminal matters.
Delegations also pointed out that it was equally important for States addressing such criminal misconduct to report back to the United Nations Office of Legal Affairs on their actions. The representative of Norway, speaking for the Nordic countries, found the low rate of feedback on such actions troubling. The General Assembly, then, had no realistic basis for assessing the extent to which States carried out investigations of serious allegations of criminal conduct.
Echoing that, the representative of the United States suggested that the Organization provide a more systematic way for States to report on the outcome of such referrals in the future.
Also speaking were representatives of Iran (for the Non-Aligned Movement), Costa Rica (for the Community of Latin American and Caribbean States (CELAC)), New Zealand (also for Australia and Canada), Russian Federation, Ethiopia, Malaysia, Viet Nam, Morocco, Algeria, Nigeria and the Delegation of the European Union.
The Sixth Committee (Legal) would next meet at 10 a.m. Thursday, 23 October, to hear from the President of the General Assembly and consider the effects of armed conflicts on treaties, as well as the responsibility of international organizations. It would also take action on draft resolutions to grant Observer Status in the General Assembly for several organizations.
Background
The Sixth Committee (Legal) today would begin consideration of Criminal accountability of United Nations officials and experts on mission (document A/69/210).
Statements
HOSSEIN GHARIBI (Iran), speaking for the Non-Aligned Movement, said its member States contributed over 88 per cent of the peacekeeping personnel in the field. At the same time, they were the major recipients of those peacekeeping missions. He stressed that all United Nations peacekeeping personnel should continue to perform their duties in a manner that preserved the image credibility, impartiality and integrity of the Organization. It was also important to maintain a policy of zero tolerance in addressing all cases of sexual exploitation and abuse committed by peacekeeping personnel.
The comprehensive strategy on assistance and support to victims of sexual exploitation and abuse by United Nations staff and related personnel, which had been adopted by General Assembly resolution 62/214, would help mitigate the suffering of those victims as well as offer social support, legal services and medical attention, among other things, he said. It was necessary to implement, without delay, General Assembly resolution 61/291, which amended the revised draft model Memorandum of Understanding. That process would strengthen accountability mechanisms and contribute to guarantee due process in investigations of acts of sexual exploitation and abuse. However, it was still premature to discuss a draft convention on criminal accountability. For the time being, the Committee’s work must focus on substantive matters and leave matters of form for a subsequent stage.
KINGSLEY MAMABOLO (South Africa), speaking for the African Group, supported the Organization’s zero tolerance policy concerning criminal conduct, particularly that involving sexual abuse and exploitation, committed by United Nations officials or experts on mission. However, the existence of jurisdictional gaps in ensuring accountability had led to criminality, especially in situations where the host State was unable to exercise its criminal jurisdiction with respect to an alleged offender. Remedial measures adopted under several General Assembly resolutions on the matter could, if properly implemented, address those jurisdictional gaps. While some Member States had expressed a preference for the host State to play a predominant role, the African Group preferred to emphasize the role of the State of nationality.
GEORGINA GUILLEN-GRILLO (Costa Rica), speaking for the Community of Latin American and Caribbean States (CELAC), stressed that any type of misconduct especially criminal behaviour committed by United Nations personnel was unacceptable and should not go unpunished. Not convinced that the registered number of allegations of criminal activities reflected the true extent of the problem, she requested that the Secretariat continue to improve information exchange and communication with Member States immediately after learning of any incident with criminal implications.
Furthermore, she said, the process being standardized for notifying Member States of serious allegations of misconduct involving uniformed personnel should also be followed for incidents involved United Nations officials and non-uniformed experts on mission. States with referred cases should give proper follow-up and inform the Secretary-General of actions taken. No State had contacted the Office of Legal Affairs to note that their matter had been raised with the relevant officials. It was the responsibility of the Secretary-General and Member States to take every measure to prevent and punish criminal activities by United Nations personnel and to enforce standards of conduct.
GILLES MARHIC, representative of the European Union Delegation, highlighted his continued support for a zero tolerance policy and a coherent approach within the United Nations to establish an “age of accountability”. While the Organization’s officials and experts enjoyed immunity when on mission, they were expected to respect the law and national legislation of the host State. Impunity for crimes of a serious nature they might commit would negatively affect the credibility of the United Nations in the long term. He welcomed the “rights upfront” initiative and special measures taken for protection against sexual exploitation and abuse. Allegations must be properly investigated.
While primary responsibility for bringing offenders to justice lay with the States themselves, in accordance with the Rome Statute, the International Criminal Court should exercise its jurisdiction where the preconditions for such exercise existed and national authorities were unable or unwilling to prosecute, he said. However, training and awareness-raising on the Organization’s standards of conduct remained central as preventive measures in the field and at Headquarters. The State of the alleged perpetrator’s nationality should be informed promptly to establish proper jurisdiction. States must fully implement their obligations under international law, he said, expressing support for combining short- and long-term measures to deal with jurisdictional gaps.
NATALIE PIERCE (New Zealand), speaking also for Canada and Australia, noted the efforts of Member States to establish jurisdictions for serious crimes committed by their officials and experts on mission. She acknowledged the 15 cases referred by the Office of Legal Affairs this year and urged Member States to continue to cooperate with the Secretary-General in reporting on efforts to investigate and prosecute individuals for serious crimes. Despite that progress, more work needed to be done to prevent individuals from evading accountability for their conduct. Over the long-term, there was support, in principle, for the Secretariat’s proposal for a convention that would require Member States to exercise criminal jurisdiction over nationals who were participating in United Nations operations abroad. Dialogue in the Sixth Committee session on the question of a legal instrument was an important step forward and demonstrated the leadership that the issue required.
ANDREAS MOTZFELDT KRAVIK (Norway), speaking also for Finland, Iceland, Sweden and Denmark, said that since the topic was included on the Committee’s agenda, 62 cases had been referred to States; however, the Office of Legal Affairs had received information on follow-up in only five instances. The low rate of feedback was cause for concern since the General Assembly had no realistic basis for assessing the extent to which States carried out investigations of serious allegations of criminal conduct. The Secretary-General’s report should include feedback by sending States to the Office of Legal Affairs about their follow-up of all cases referred to them, and not just from the most recent 12-month period. In addition, information on the actual steps taken by the States in question should be included. Also, a table showing all the relevant cases, the types of alleged crimes, when the case was brought to the Member State’s attention and the date and content of any response from the Member State should also be included. That table should be updated to incorporate the information received. Stressing that the Nordic countries’ proposal neither sought nor encouraged an exercise of “naming and shaming”, he said it would not be necessary to identify individual cases nor States in that overview.
SERGEY LEONIDCHENKO (Russian Federation) said the Organization must take all possible measures to prevent the commission of crimes by its personnel, noting further that the measures currently in place seemed adequate to the current scale of the problem. However, allegations of misconduct should be investigated in strict accordance with international law, with primary jurisdiction belonging to the State of citizenship of the person accused. He emphasized the importance of informing the State of the alleged perpetrator in a timely manner. Furthermore, mechanisms for cooperation during investigations should be strengthened; it was also important to include cooperation with local authorities. Commending the preventive work done in the field, he said it had brought real benefits.
YIDNEKACHEW GEBRE-MESKEL ZEWDU (Ethiopia), associating himself with the African Group and Non-Aligned Movement, said the matter was of great importance to his country as Ethiopia was one of the active participants in the United Nations peacekeeping operations and home to several United Nations offices. Cooperation between States and the United Nations in investigating allegations of criminal conduct of the Organization’s officials and experts on missions was critical. Member States should establish jurisdiction over crimes committed by their nationals while serving as United Nations officials or experts on mission abroad so that existing legal gaps could be eliminated, those crimes not be met with impunity and justice be served. Member States should also assist in criminal investigations and extradition proceedings. Pursuant to the national criminal code, his country’s courts had jurisdiction over an Ethiopian official or expert on mission who could not be prosecuted at the place of commission of the crime due to immunity that that person enjoyed.
PIMPIDA RAVIRAT THANARAT (Thailand), associating herself with the Non-Aligned Movement, reiterated that the rule of law applied fully to the United Nations and its personnel. She called on all Member States to ensure criminal accountability of United Nations officials and experts on mission. One way to bring offenders to justice and end impunity was for host States and troop-contributing States to cooperate through treaties and arrangements on mutual legal assistance in criminal matters. States also needed to adopt a more flexible approach to the double criminality principle. The Organization’s technical advice and support had helped Thailand amend its domestic laws so as to allow for investigation and prosecution. She also expressed support for existing pre-deployment and in-mission training programmes, which promoted compliance with the United Nations code of conduct and international law.
MEITAL NIR-TAL (Israel) said that crimes committed by officials and experts on mission undermined the United Nations mandate, especially with respect to relations with the local population. She urged Member States to take appropriate national action to ensure that such crimes were not met with impunity. Furthermore, those States to whom cases had been referred should update the Organization on their actions. She welcomed the three-pronged strategy of prevention, enforcement and remedial action to address all forms of misconduct, particularly those of a sexual nature. Enhancing cooperation among States, and between States and the United Nations on the matter would serve as a positive basis for progress. She also urged all States to develop practical ways to address accountability and strengthen the capacities of their national authorities to investigate and prosecute such crimes.
LESLIE KIERNAN (United States) said it was difficult to draw conclusions, given the relatively small number of case referrals. The United Nations should provide more comprehensive analysis next year on the outcome of those referrals in the State of the official’s nationality over the same period. In addition, aggregated information on the nature of the crimes, requests to waive immunity and the standard for determining whether such referrals were made would be welcomed. Member States should report to the United Nations on the disposition of cases to support and inform analysis of the actual, rather than speculative, gaps in jurisdiction and legislation. It would also be useful for the Organization to provide a more systematic way for States to report on the outcome of such referrals in the future. On the recommendation for a multilateral convention, he said such an instrument would not present the most efficient or effective means to ensure accountability. The Committee could consider asking the Secretary-General to examine and report on what obstacles might have blocked effective prosecutions in the past and add the results to the long-term analysis.
WAN AIMA NADZIHAN WAN SULAIMAN (Malaysia) said she fully supported cooperation between States and the United Nations through the exchange of information and expediting of investigations and prosecutions. That would ensure there was no impunity for serious crimes committed by officials and experts on United Nations missions. Malaysia’s Extradition Act of 1992 and Mutual Assistance in Criminal Matters Act 2002 helped provide a legal basis for international cooperation. Concerns had been raised about information and evidence-sharing mechanisms used during investigations carried out by the United Nations. The issue merited in-depth consideration. Regarding the draft convention prepared by the Group of Legal Experts, she said that additional study was needed to determine such a convention’s feasibility. Those efforts should not prevent the Sixth Committee’s Working Group on the matter from identifying significant issues and exploring practical solutions, independent from the draft text of the proposal.
PHAM THI THU HUONG (Viet Nam), associating herself with the Non-Aligned Movement, noting that her country had started to participate in the Organization’s peacekeeping missions this year, said that further measures were needed to close jurisdictional gaps. She called on all States to take the necessary steps, including adoption of legislation and enhancement of international cooperation, to ensure criminal accountability of nationals for any offence committed while on mission for the United Nations. Viet Nam had taken measures that allowed the exercise of extraterritorial jurisdiction over crimes committed by nationals in other countries under certain circumstances and had concluded agreements on extradition and mutual legal assistance with many other States.
KOTESWARA RAO (India), associating himself with the Non-Aligned Movement, said offences committed by Indian officials or experts on mission while serving abroad were subject to the jurisdiction of Indian courts and punishable under Indian law, which also had provisions for assistance in criminal matters. Dealing with the wrongdoings of United Nations officials or experts on mission did not require an international convention. Member States must ensure that their laws provided for jurisdiction and had adequate provisions for prosecuting any such conduct of nationals who served as United Nations officials or experts on mission abroad. Additionally, those laws should have provisions for international assistance for the investigation and prosecution of the crimes committed.
MOHAMED ATLASSI (Morocco), associating himself with the Non-Aligned Movement and African Group, said that any criminal infraction committed by a United Nations official on mission should be addressed by the State of nationality of the offender. Further, the Organization should strengthen cooperation with Member States in that context. He expressed support for preventive measures, including strengthening training of civilian and military personnel on proper conduct in the field and at Headquarters. The legitimacy of the Organization’s work depended upon the confidence it enjoyed, which was harmed by infractions committed by its staff. Such alleged perpetrators must not enjoy impunity for serious crimes, but be investigated and prosecuted, if necessary, with respect for all relevant international law.
MOHAMED SALAH EDDINE BELAID (Algeria), associating himself with the Non-Aligned Movement and the African Group, expressed concern over the persistence of cases and instances of sexual exploitation and abuses. He noted an increase in the number of cases of misconduct for the reporting period 1 January to 31 December 2013. However, overall, during the last decade, there had been a downward trend in allegations of sexual exploitation and abuse. He expressed hope that there would be a decrease in such crimes by the next report. Immunity enjoyed by officials and experts on mission should not offer impunity for serious crimes they might commit. Therefore, measures initiated by the Secretary-General that promptly brought credible allegations of such crimes to the attention of the States of nationality were welcomed, as was the implementation of preventive components. He also expressed satisfaction at the development of an accountability framework to measure performance in the field, to be implemented in the third quarter of 2015.
HUSSEIN ABDULLAHI (Nigeria) commended the zero-tolerance policy on criminal conduct, especially as it concerned sexual exploitation and abuse committed by United Nations personnel and experts on mission. He voiced support for the current procedure that let police of a troop-contributing Member State exercise authority over an erring national on a mission. Referral of alleged criminal conduct to the State of the official or expert for investigation and possible prosecution was also welcomed. He urged States to report their subsequent steps to the Organization and prosecute their nationals for any offence committed while on mission and, if necessary, adapt their national legislation to guarantee jurisdiction would be exercised. Activities by the Departments of Peacekeeping Operations and Field Support, which raised awareness of personnel in the field missions, and an initiative to develop an accountability framework were commendable. The framework would measure field missions’ performance around several indicators relating to conduct and discipline.
RUBÉN IGNACIO ZAMORA RIVAS (El Salvador), associating himself with CELAC, said all individuals must be subject to the rule of law irrespective of their functions. Establishing who should have competence for those serious crimes was an important step for States. However, it would not always be necessary to change the description of the crime and expressly include officials and experts on mission since most States already considered serious crimes to be punishable by law, irrespective of who committed them. In that regard, it would be more useful for States to ensure the applicability of criminal law in the broadest context and not be limited to the territoriality principle.
CHOI YONGHOON (Republic of Korea) said that bringing United Nations personnel who committed a crime to justice was a crucial part of the continuing global fight against impunity. If such serious violations were not prosecuted, the Organization might create the false signal that its officials and experts could improperly abuse immunities for the sole purpose of their private benefit. The recurring misuse of immunities could bring about serious institutional damage to the credibility, impartiality and integrity of the international body. It was important for the States of nationality to periodically inform the Office of Legal Affairs of ongoing progress, including details of their legal procedures and final results of cases within their jurisdiction. In his country, the selected personnel for peacekeeping operations took a three-month intensive training course prior to their deployment to prevent such offenses.