‘Small Number’ of Officials, Experts on Mission Who Commit Crimes, Damage Organization’s Reputation Must Be Held to Account, Sixth Committee Hears
Decrying crimes committed by the small number of United Nations officials and experts on mission, speakers in the Sixth Committee (Legal) today said such acts tarnished the reputation of the Organization and damaged relations with local populations, as they called for perpetrators to be held to account.
As the Committee began its consideration of Criminal accountability of United Nations officials and experts on mission and the Secretary-General’s related report (document A/70/208), delegates also stressed the need for States to develop national legislation towards that end and to report their responses to crimes committed by their nationals on mission to the Organization.
Australia’s representative, also speaking for Canada and New Zealand, emphasized that only a small number of officials and experts on mission committed crimes in the course of their work as compared to the many carrying out the Organization’s work in accordance with the highest possible standard. Yet that small number called into question the reputation, credibility, impartiality and integrity of the United Nations. The failure to hold those few to account risked tarnishing relations between the United Nations and the local population, and undermined the success of the operation and wider efforts to promote the rule of law, security, development and human rights, a view asserted by many delegations.
The representative of Côte d’Ivoire said the gravity of the allegations of sexual exploitation and abuse by United Nations personnel was a matter of concern since the goal of peacekeeping was to protect the civilian population. The United Nations must “purge those black sheep” from its ranks so that the solution did not become the problem.
The representative of the European Union added that, while the privileges and immunities of those on mission should be upheld, they must respect international law and national legislation of host States and no crime committed by them should go unpunished. While the Secretary-General’s announcement of new measures, including the setting-up of immediate response teams by the end of 2015, was welcomed, genuine accountability, nonetheless, rested on the cooperation of Member States. Where national authorities were unwilling or unable to prosecute, the International Criminal Court should exercise its jurisdiction.
Speaking for the African Group, however, South Africa’s delegate pointed out that some Member States did not have the legislation and capacity to exercise jurisdiction, while others had some provisions for only limited application. The existence of jurisdictional gaps led to criminality.
In that light, Egypt’s representative, one of several delegates, called for assistance to those States in closing legislative gaps so that they could assume that responsibility.
A number of delegations also stressed the responsibility of States who had sent officials or experts on mission and had had cases referred back to them, to report those cases. Norway’s representative, also speaking for the Nordic countries, expressed grave concern that of the 84 cases that had been brought to the attention of sending States since 2007, there had been feedback on only 15. It was time to strengthen the language of the resolution on the matter and request Member States to provide information to the Secretariat on follow-up of referred cases in their national jurisdictions. Furthermore, the Secretary-General’s report should identify those States that did not provide the information.
Concluding the debate on the rule of law at the national and international levels were representatives of Republic of Korea, China, El Salvador, Japan, Kuwait, Saudi Arabia, Burkina Faso, Brazil, Barbados, Botswana, Georgia, Madagascar, Mexico and the Philippines.
Observers for the Holy See and the non-Member State of Palestine also participated. Representatives of the International Committee of the Red Cross and the International Development Law Organization also spoke on that agenda item.
Speaking in right of reply on that topic were representatives of Morocco, China, Russian Federation, Israel, Algeria, Viet Nam, Georgia, Philippines and the non-Member State of Palestine.
Participating in the debate on criminal accountability of United Nations officials and experts on mission were representatives of Iran (on behalf of the Non-Aligned Movement), Ecuador (on behalf of the Community of Latin American and Caribbean States), Trinidad & Tobago (on behalf of the Caribbean Community), Guatemala, Kenya, Israel, Switzerland, Thailand, India, Viet Nam, Algeria, Liberia, United States, Malaysia, El Salvador, Morocco and the Russian Federation.
The Sixth Committee (Legal) would next meet on Monday, 19 October, at 10 a.m. to consider the report of the United Nations Commission on International Trade Law (UNCITRAL) and requests for observer status in the General Assembly.
Statements on Rule of Law at National and International Level
RHEE ZHA-HYOUNG (Republic of Korea) stated that his country, having achieved both democracy and economic development within a period of less than half a century, had learned the genuineness of the linkage between the rule of law and the three pillars of the United Nations. The success of multilateral treaty processes depended on ensuring both political will and capability, from the negotiating stage to the implementing stage. He said he was encouraged by various activities aimed at that, including the panel discussion in May, organized by the Permanent Missions of Singapore, Cyprus, and Trinidad and Tobago, on small islands’ perspectives on multilateral treaty-making. His country was participating in such efforts by providing training for officials and academics of developing countries in the implementation of international instruments on oceans, including the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
LI YONGSHENG (China) noted that in April China had hosted the fifty-fourth annual session of the Asian-African Legal Consultative Organization, the only trans-continental platform through which African and Asia countries could exchange information and build cooperation in the international law area. His country would be providing funds to set up with that organization a joint research and exchange program on international law. In addition, China had acceded to more than 450 multilateral treaties, implementing and observing those treaties in good faith, in accordance with the principle of pacta sunt sevenda. He also elaborated on efforts to strengthen multilateral treaty processes and promote the rule of law, including ensuring equal say of all countries, particularly developing countries, the unified application of treaty provisions, and more effective implementation monitoring mechanisms. He also underscored the need for development of multilateral rules in new frontiers, such as cyberspace and outer space. For example, through exploring how the United Nations Charter and other international legal principles could be applied to those sectors, the United Nations could be used as a platform for multilateral treaty processes that might create an international code of conduct.
HECTOR ENRIQUE JAIME CALDERÓN (El Salvador), noting that the International Law Commission (ILC) had drafted legal instruments in highly pertinent spheres, said there should be active participation by all States in the subjects annually examined by the Commission, with a view to making contributions to their discussions, particularly those on international law norms and principles considered to be jus cogens. As well, the United Nations Commission on International Trade Law (UNCITRAL) had a harmonizing function that was crucial to establish fair, stable and predictable frameworks to strengthen and foster development, economic growth, and inclusive, sustainable and fair employment, as well as to generate investment and facilitate business activity. The challenges faced by States were not simply in relation to drafting and compliance of various treaties; obligations arising from the rule of law must be considered in a comprehensive way. He also noted that, after several years without a representative in the Sixth Committee, his Government had just designated a minister counsellor.
KAITARO NONOMURA (Japan) said he looked forward to active discussion on marine biological diversity beyond areas of national jurisdiction in the preparatory committee on the matter and further emphasized the importance of the international judicial organs. He pointed out the invaluable work of the ILC to the promotion and development of international law over many years and, at the same time, the increasing role of multilateral treaties and of the judicial organs. In that light he called for an increased role in securing the roles of both and said that the Commission could be important to that effort. In addition, he said the rule of law could not be achieved without nurturing human resources to enhance its realization and noted his country’s ongoing work, in that regard, with countries in the Asia-Pacific region.
Mr. AL-SUMAIT (Kuwait) said he welcomed paragraph 63 of the Secretary-General’s report, which reiterated the need for States to have sufficient support that enabled them to efficiently respond to terrorism and violent extremism. His country’s Constitution represented its history and its dedication to democracy and freedom. It contained articles on governance, guaranteed civil rights and ensured the separation of powers. The Government’s respect for the rule of law was evident in its legislation that safeguarded the rights and freedoms of children, and protected them from abuse, neglect, exploitation and discrimination. In addition, a constitutional court had been established that provided all individuals the right to recourse in that chamber. As well, legal principles for the protection of human rights had been translated to domestic law.
HASSAN ALJOMAE (Saudi Arabia), elaborated the tenets of Islamic law, among which were respect for diversity and the rule of law. He further stressed that legal systems were a national matter. There was no “one size fits all” system and no one system should be imposed on a State. He also strongly condemned the illegal use of information and communications technology and social media to destabilize countries and societies. Such actions were a violation of the rule of law and the rights of States.
MARIAME FOFANA (Burkina Faso), associating herself with the Non-Aligned Movement and the African Group, said her country’s efforts to bolster democracy included the holding of regular elections and the establishment of national institutions, such as the Office of the Ombudsman, an independent elections commission and a human rights commission. Civil society organizations had also provided assistance through pop-up legal clinics. However, despite progress in certain areas, corruption and a culture of impunity had tarnished her country’s image. It had not managed to create conditions for a handover of power as requested by its citizens, leading to a people’s uprising in October 2014. Subsequently, transition bodies had been established to help restore normal constitutional life, among other things. The adoption of laws against corruption had bolstered the country’s legal arsenal and had helped facilitate its handling of major crimes, economic crimes, and blood crimes. Although the transitional Government had continued to face hostile forces, its citizens had defeated a coup d’état. Expressing appreciation for the support given to her country, she underscored that the will and desire of Burkina Faso’s people alone was not sufficient to establish rule of law, especially when they continued to suffer from hunger and poverty. She called on international solidarity to help her country uphold the rule of law and international law.
PATRICK LUNA (Brazil), associating himself with the Community of Latin American and Caribbean States (CELAC), said his country had undertaken a number of initiatives to strengthen the rule of law,. To introduce certain agreed parameters for protecting civilians when the use of force was contemplated, his country had submitted a proposal, “responsibility while protecting” (A/66/551-S/2011/701). It had also been working with Germany in the Third Committee (Social, Humanitarian & Cultural) and in the Human Rights Council to safeguard the right to privacy in the digital age and ensure that human rights were equally protected offline and online. Although multilateral legal frameworks created over the last decades had not resorted to the work of the International Law Commission or the Sixth Committee that did not signify a decreasing role for the Committee. On the contrary, the Committee could and should serve as a platform for the exchange of views on recent developments regarding the Vienna Convention on the Law of Treaties achieved through other processes. That would enhance the understanding of current practice and bring more unity to the “dense web” of multilateral treaties. He also encouraged the Office of Legal Affairs to continue updating its practices in light of new communication technologies, bearing in mind that access to technology was still unequal.
JULIETTE RILEY (Barbados), associating herself with CELAC and the Caribbean Community (CARICOM), enumerated international instruments to which her country was party or signatory and noted that over the last year, Barbados had ratified the Arms Trade Treaty, the United Nations Convention on the Rights of Persons with Disabilities and its Convention on Transnational Organized Crime. She looked forward to the conclusion of an ambitious, legally binding agreement at the upcoming twenty-first session of the Conference of the Parties to the United Nations Framework Convention on Climate Change in Paris, particularly with regard to the conservation and sustainable use of the oceans, seas and marine resources. She then stressed the importance of the Office of Legal Affairs and the Advisory Committee on the Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law in providing critical capacity-building to Member States.
NKOLOI NKOLOI (Botswana), associating himself with the African Group and the Non-Aligned Movement, said that the rule of law required that representatives of the people must be accountable to the people. That accountability should be clearly defined in law, which should also provide remedies in cases of breach. The principle placed obligations on both the State and its citizens, including civil society, to observe, respect and, most importantly, to take ownership or have a stake in the legal order. That was also applicable at the international level where relations between States should be based on a clearly defined framework as set out in the Charter and the observance of international law. Thus, alignment between national and international law was critical. Furthermore, social and economic growth and sustainable development were interdependent with rule of law and human rights. Economic development should not be seen only as a goal of countries or Governments, but as a right to which citizens were entitled. The United Nations was the only universal multilateral framework within which nations could co-exist and promote global justice.
INGA KANCHAVELI (Georgia), associating herself with the European Union said that her country had engaged in wide-ranging reforms to bolster the rule of law and the transparency and accountability of its Government. It had acceded to a range of international instruments, including the Istanbul Convention on preventing and combating violence against women and domestic violence, and the Kampala Amendments to the Rome Statute. It had reformed its judicial system by undertaking measures to depoliticize and strengthen the independence of the Chief Prosecutor’s Office. Among other initiatives, she said it was about to finalize revisions of the criminal code to ensure its full compliance with international standards. Noting that one of the United Nations’ co-founders continued to disregard its international obligations by annexing the territories of neighbours, occupying 20 per cent of her country and conducting an open aggression against Ukraine, she said the rule of law at both the international and national levels could be achieved only if Member States stood firmly for the principles in the Charter and other multilateral instruments.
LYDIA RANDRIANARIVONY (Madagascar) stressed the link between rule of law and sustainable development, good governance and democracy. She detailed national efforts towards those ends as well as her country’s contributions on the regional and international level, among them a high-level seminar on good governance organized in cooperation with the United Nations Conference on Trade and Development (UNCTAD). Encouraging contributions to the Peacebuilding Funds, she noted with gratitude the Fund’s $40 million contribution to Madagascar for reconciliation, good governance and job creation. Congratulating the Codification Division on the fiftieth anniversary of its grant programme, she said those grants benefitted not only recipient countries but international law globally and she encouraged Member States to contribute.
PABLO ADRÍAN ARROCHA OLABUENAGA (Mexico), associating himself with CELAC, said that frequently overlooked was the “every day or routine justice”, where institutional process or instruments aimed at providing settlement solutions to those conflicts generated by daily living in a democratic society. That aspect of justice in the civil, labour and commercial sphere was often slow, complex and costly. Judicial reforms to make it more efficient would pave the way for the protection of property rights, rights of workers and, in general terms, compliance with contract provisions — all indispensable elements to the consolidation of genuine rule of law. Turning to the subtopic, he said his country had taken advantage of the run-up to the annual Treaty Event by depositing ratified instruments. He also called for the need to support and strengthen international bodies, in particular the International Court of Justice, and the ILC, and to promote initiatives, such as that of France and his country, on restricting the use of the veto by the Security Council in cases of mass atrocities, inter alia.
LOURDES YPARRAGUIRRE (Philippines), associating herself with the Association of Southeast Asian Nations (ASEAN) and the Non-Aligned Movement, said that international law was “the great equalizer” among States and bound the community of nations together. Among the many multilateral treaties to which her country was party, she singled out the Law of the Sea as a distinct achievement. It was key to ensuring global and regional peace in the just and sustainable use of the world’s oceans and their resources. Referring to an ongoing dispute, on which there had been negotiations for over two decades, she said that if those negotiations had proved futile, its resolution should be found in the dispute mechanisms provided by UNCLOS and the Charter.
JOSEPH GRECH, the Holy See, said that the rule of law flourished when the moral fibre of society was strong. Recalling Sustainable Development Goal 16, he underscored that poverty eradication and sustainable development could not be achieved without tackling conflict and insecurity. The evaluations on the Millennium Development Goals had demonstrated the direct relationship between the two: countries in conflict had lagged far behind in the realization of those goals. Moreover, all seven of the countries unlikely to meet a single Millennium Goal by the end of 2015 had been affected by high levels of violence in recent years. It was most likely that they would not only be left behind; they would lag even further behind. On the sub-topic, he said the increased complexity of multilateral treaty processes through the proliferation of institutional structures created by those treaties and their growing role in treaty making was a “potentially worrisome development”, particularly in the instrumental use of certain resolutions and decisions to advance specific agendas. The proliferation of legal bodies and institutional structures did not always mean an advancement of the rule of law.
REEM JULIA MANSOUR, observer for the State of Palestine, said that since the General Assembly’s recognition of Palestine as a non-Member Observer State, it had acceded to over forty treaties and conventions in 2014 alone, without a single reservation, and had established a national committee to ensure compliance. Even prior to acceding to those instruments, Palestine had pledged to respect international law. She regretted that her country’s reality was one of brutal foreign military occupation by Israel, which denied the Palestinian people their rights to freedom, dignity, and too often, their right to life, despite the protections provided by international law. For decades, Israel had disregarded international law with impunity. For the rule of law to serve its purpose, there must be compliance and accountability for breaches, she said, reiterating the demand for an end to Israel’s illegal occupation.
PHILIP SPOERRI, International Committee of the Red Cross (ICRC), said that his organization was an important platform for promoting rule of law, bringing together all components of the Movement and States Parties to the Geneva Conventions to discuss major humanitarian issues and challenges. The thirty-second such Conference would take place in December, when a progress report on the four-year action plan for the implementation of international humanitarian law would be delivered. When requested, the ICRC also provided States with technical expertise on international humanitarian law and support to relevant national authorities on implementing their international obligations to prevent and punish serious violations. For example, the ICRC had coordinated an expert consultation on international humanitarian law in May 2015 with judicial officers from around the world, focusing on the important role of the judiciary in the interpretation of treaties and domestic legislation.
PATRIZIO CIVILI, Permanent Observer of the International Development Law Organization (IDLO), said that the processes leading to the adoption of the 2030 Agenda were at the centre of his organization’s engagement with the United Nations in 2015. While refraining from promoting specific formulas or language, IDLO had advocated a results-based approach to the rule of law by bringing to the table evidence of how justice could contribute to sustainable development. Further, in 2016, IDLO would consolidate established institution-building and legal reform operations, with Afghanistan remaining the largest country operation. The more donor Governments were willing to invest in long-term programmes to promote rule of law, the less they would have to scramble to address catastrophic development failures, from famines to migration crises. “Building resilient societies takes vision, time and money. But it is the soundest investment there is,” he stressed.
Right of Reply
In exercise of right of reply, the representative of Morocco said the appeal put forth by Algeria to hold a referendum on self-determination did not take into consideration recent developments. The Charter did not refer to a referendum mechanism and in no way assimilated the principle of self-determination with that of independence. The use of referendum was an option little practiced. The inefficacy of the settlement plan on referendum in the Sahara had been recognized by the Secretary-General in his report in February 2000. Since 2004 the Security Council no longer referred to that plan but rather promoted the quest for a politically negotiated, mutually acceptable solution to end the dispute. Resolution 1541 (2004) called for the same as did the reports of the Secretary-General. Security Council resolutions no longer talked of a referendum for some 15 years now.
In April 2007, he went on to say, Morocco had submitted to the Secretary-General its initiative for negotiating an autonomous status for the Saharan region. That initiative was qualified by the Security Council in its successive resolutions as a serious and credible one, thereby promoting its primacy as the right solution to that dispute. Morocco was committed solely under the auspices of the United Nations to find a mutually acceptable solution to that dispute. His country supported efforts of the Secretary-General’s special envoy to find a negotiated mutually acceptable solution. There was no other alternative.
China’s representative, in exercise of right of reply, said the Philippine representative had implicated China in her reference to the issue of the South China Sea. His country was a firm defender and active builder of the rule of law at the international level. His country did not accept or participate in arbitration pushed for by the Philippines. That position was supported by a wealth of international evidence that explained in detail his country’s position. The Philippines had repeatedly “reneged” on its commitment to China and other countries in the region and had unilaterally pushed forward arbitration.
He said that China’s sovereignty and rights over the islands under discussion had long been established in history and had been affirmed by China’s previous Governments. His country stood for the peaceful resolution of disputes through consultations and negotiations based on respect for historical facts. China’s construction activities in the Nansha Islands did not affect or target any countries, affect their freedom of navigation, or harm the ecosystem in the South China Sea. They had been lawful and justified beyond reproach. The illegal occupation on part of those islands, also called the Spratly Islands by the Philippines, was at the bottom of the dispute.
According to the Treaty of Paris of 1898, the Treaty of Washington in 1900 and the Convention between the United States and Great Britain of 1930, which defined the territory of the Philippines, the Nansha Islands were completely not in the Philippines’ territory. After the Philippines had gained independence, its domestic law and relevant treaties accepted the legal force of those treaties and confirmed the scope of its territory. Nonetheless, after the 1970’s the Philippines had staged military operations and illegally invaded eight islands within reach of China. He urged the Philippines to stop any act that sowed discord, violated international law and destabilized the region, and called it to consultations and negotiations as soon as possible.
In exercise of right of reply, a representative of the Russian Federation said it was unfortunate that the delegation of Georgia, not for the first time, had tried to incorporate a discussion of a matter not in the remit of the Committee and had used the rostrum to convey insinuations. Regarding the 20 per cent of territory that was apparently occupied by “somebody”, he recalled that in 2008 Georgia had sent missiles and military vehicles against 20 per cent of the country. Independent commission[s], including that of the European Union, had clearly stipulated that it was Tbilisi that had carried out attacks against those territories, violating international law. As a result, South Ossetia and Abkhazia had no other choice but to proclaim their right to self-determination and independence. For that reason, the Georgian delegation should resolve the question it had raised with those two independent States in line with international law and based on the rule of law.
Israel’s representative, in exercise of the right of reply, said he was responding to the “baseless comment” by the Palestinian delegate, who did not address that over the past month, 24 attacks had been committed by Palestinians claiming the lives of 8 Israelis and injuring 70. Those terrorists had spared no one and had targeted young and old every day. Israelis did not feel safe and feared for their children’s lives. It was “absurd” for Palestine to talk about the rule of law when its people killed in cold blood and abandoned basic morality. Israel would take any means to defend its citizens. The Palestinian delegation’s accession to treaties did not mark a change in its policy. Israel was the only real democracy in the Middle East. Since its founding, it had built a robust judicial system that provided access to justice for all and guaranteed due process and a fair trial, including to Palestinians.
In exercise of right of reply, the representative of Algeria said the Secretary-General’s report touched upon the role of the International Court of Justice and the peaceful settlement of conflicts. His intervention came in the frame of campaign launched by the Secretary-General in order to increase acceptance of the mandatory competence of the Court, which was also mentioned in the report. The right to self-determination was also part of the rule of law and had been equally mentioned in the statement by the Non-Aligned Movement, which was supported by Morocco. On the other hand, the Moroccan delegation had accused Algeria of trying to impose its hegemony on the regional level. As a reminder to Morocco, he stressed that Algeria had earned its right to self-determination after a long and violent war against colonialism. Hence, it was fully aware of the important right to self-determination, which was also enshrined in its Constitution. Finally, regarding the question raised by Morocco that the Charter did not mention the right of people to self-determination, he recalled that Article II did mention that right.
Viet Nam’s representative, in exercise of the right of reply, said that in regards to points raised by China concerning the South China Sea, her country had presented sufficient legal basis to affirm its sovereignty over the disputed islands. It stood ready to resolve the dispute through peaceful means in accordance with the Charter and international law, especially the 1982 United Nations Convention on the Law of the Sea.
In exercise of the right of reply, the representative of Georgia said that while her delegation did not specifically mention the Russian Federation as the aggressor in her statement, it was good that the Russian Federation’s representative had recognized the illegal activities of his country on the territory of Georgia and neighbouring States. Indeed, that country’ was responsible for the illegal occupation of two integral parts of Georgia’s sovereign territory, as well as other sovereign territories of its neighbours. In case the Russian Federation delegation required a definition of “illegal occupation”, she said that had been specified in international treaties, including The Hague Convention and the Geneva Convention. Describing other actions by the Russian Federation that she said were illegal and violated the Charter, she stressed that no grey zones should be tolerated. Her delegation would continue to raise those issues over and over again until the problem was addressed in accordance with international law and principles of sovereignty.
A representative of the Philippines, in exercise of the right of reply, said the core issue was China’s claim of indisputable sovereignty over almost an entire Sea. That claim was anchored on its 9-dash line claim, which had no basis on international law. The Philippines would not allow China to claim the entire sea or allow coercion as a settlement mechanism. China had always evoked historic rights as international law, but there was nothing historical or right about the 9-dash line claim. The 1982 United Nations Convention on the Law of the Sea provided that historical rights or historical titles could not be claimed to undertake the exploitation of resources. But if there was to be a historical reference, much evidence and many documents proved that those islands were historically the Philippines’.
Describing further details of the dispute, she said that as of June 2015, the dispute had not been a bilateral dispute. It also involved three to four other parties. The Philippines, before initiating arbitration under UNCLOS, had bilaterally engaged with China in over 50 instances over the past two decades. However, negotiations presupposed the willingness of parties to compromise, and regrettably, had not produced mutually satisfactory results. In August 2015, ASEAN had reaffirmed the importance of freedom of navigation, while reiterating the importance of establishing an effective code of conduct and resolving disputes through peaceful means. Under the current situation, the Philippines could not exercise its right to fish and exploit natural resources in its exclusive economic zone as provided for by UNCLOS. Arbitration as a last resort manifested its commitment to the peaceful resolution of the dispute. She reiterated her country’s invitation to China to join the maritime tribunal on the basis of international law.
In exercise of right of reply, the observer of the State of Palestine said that the Israeli delegation had diverted attention from the crimes its country committed rather than addressing its occupation of Palestine. Right now Israeli occupying forces “had their boots on Palestinian ground” and were brutalizing its people in flagrant violation of international law and numerous United Nations resolutions. The international community had the power to end that illegal occupation. She denied Israel’s accusation of conducting a wave of terror. To the contrary, Palestine’s leaders’ had peaceful intentions. It was Israel that incited violence, she said, enumerating a host of examples. The Israeli occupation was the root cause of what was happening. Recalling that Israel had sent communications objecting to Palestine’s accession to international instruments, she asked if the occupying Power did not want Palestine to adhere to international law.
Speaking for a second time, the representative of Morocco said that his country had reclaimed its desert under the Madrid Accords. He noted further that self-determination took three forms, such as separation or integration, but that a referendum was not one of those forms. What Algeria wanted was to impose regional hegemony, dating back to its request in 2001 to divide the Sahara. Morocco, however, had refused such manoeuvres, which would have harmed the unity of his country.
Taking the floor a second time, China’s representative said that his country had affirmed its sovereignty over the Nansha Islands in the South China Sea over many years without objection from the Philippines. That country had initiated an arbitration process, without consulting China, which was why it would not participate. Describing how the Philippines had left a warship on a now-disputed reef, ostensibly for lack of parts to tow it, he said that on 14 March 2015 the Philippines had admitted that the ship had been left 15 years ago to establish its presence. He wondered what principle of international law the Philippines was respecting.
The representative of Algeria, speaking for a second time, said Morocco had spoken of a legal line linking his country to the people of the Sahara. However, the International Court had addressed that issue in 1975 on two grounds: allegiance and terra nulla, or empty territory. The Court had ruled that allegiance could not be considered a legal link aligning the people of Western Sahara with the Government. It further determined that the territory of the Western Sahara was not terra nulla. Addressing the representative of Morocco’s differentiation between self-determination and referendum, he pointed out that a referendum was a means towards self-determination, noting further that his country was renowned for championing that right.
Speaking for a second time, the representative of the Russian Federation said he welcomed the intention of Georgia not to raise the issue in the Committee again.
The representative of Philippines, responding to her counterpart, said the Spratly Island shoal on which the ship had docked constituted part of the Philippine’s continental shelf under UNCLOS. Thus, only the mechanisms under UNCLOS could arbitrate on matters in the area where that shoal was located. From the start the Philippines had invited China to participate in arbitration as only a group of impartial and independent experts could guide the parties to a resolution. She renewed her invitation for China to join her country in the Arbitral Tribunal and let the outcome be determined there.-eob-
HOSSEIN GHARIBI (Iran), speaking for the Non-Aligned Movement, recalled that the Group currently contributed more than 80 per cent of the United Nations peacekeeping personnel in the field. At the same time, those countries were also the major recipients of those peacekeeping missions. While expressing appreciation for the contributions and sacrifices of peacekeepers, he stressed that all United Nations personnel should perform their duties in a manner that preserved the image, credibility, impartiality and integrity of the United Nations. He also emphasized the importance of maintaining 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 would help to mitigate the suffering of the victims as well as offer social support, legal services and medical attention, among other things, he said. Likewise, he stressed the need to implement, without delay, the revised draft model Memorandum of Understanding. That process would strengthen accountability mechanisms and contribute to guarantee due process with respect to investigations of acts of sexual exploitation and abuse. Full implementation by Member States of related Assembly resolutions could help to bridge any existing jurisdictional gaps and an assessment could be undertaken to explore whether there was a need for further measures by the Assembly. Finally, he stressed that it was still premature to discuss a draft convention on criminal accountability of United Nations officials and experts on mission. The Sixth Committee must focus on substantive matters instead.
AGUSTÍN FORNELL (Ecuador), speaking for CELAC, stressed that any type of misconduct, especially criminal behaviour by United Nations personnel on mission had a “detrimental effect on the fulfilment of the United Nations mandates and on the credibility of the Organization as a whole”. The appalling recent events in the Central African Republic reinforced the pertinence and necessity of the debate. Of noted was the information prepared by the Secretariat, regarding the process of reporting credible accusations to the State of nationality, and the strengthening of existing training on United Nations standards of conduct. He also said it was important to receive continuous information from the Secretariat on statistics about substantiated allegations, as he was not convinced that the registered number of allegations reflected the true extent of the problem. “A better reporting practice will benefit our understanding of the problem so that we can address it properly,” he said.
In that regard, he requested the Secretariat to continue its efforts to improve the quality of information and its immediate communication to concerned Member States regarding possible criminal implications. States to which cases had been referred, should give the proper follow-up and inform the Secretary-General of the actions taken, including prosecutions as appropriate. However, even though the Office of Legal Affairs had requested States to keep the United Nations informed of action taken on those cases, only a few had done so. There was also a need to address other areas that presented critical challenges, including investigations in the field and during criminal proceedings, as well as the gathering of evidence, its assessment and its review in the administrative and jurisdictional procedures.
THEMBILE ELPHUS JOYINI (South Africa), speaking for the African Group and associating himself with the Non-Aligned Movement, said that the topic under discussion was very relevant to the Group considering the number of peacekeeping missions active in Africa. In 2006, the General Assembly had decided that the agenda item titled “Comprehensive review of the whole question of peacekeeping operations in all their aspects” which had been allocated to the Fourth Committee (Special Political and Decolonization) should also be referred to the Sixth Committee. That would enable discussion of the report of the Group of Legal Experts on ensuring accountability of United Nations staff and experts on mission with respect to criminal acts committed in peacekeeping operations. However, he noted with regret, there were no comments received from Member States who had been invited to submit further comments on the Group of Legal Experts’ report.
Commending the Organization’s zero tolerance policy concerning criminal misconduct, he added that it was apparent from the Secretary-General’s report that some Member States did not have the legislation and capacity to exercise jurisdiction, while others had some provisions for at least a limited exercise. The existence of jurisdictional gaps led to criminality, especially in situations where the host State was unable to exercise its criminal jurisdiction with respect to an alleged offender. 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 of the alleged offender.
LIZANNE ACHING (Trinidad and Tobago), speaking for CARICOM, associating herself with the Non-Aligned Movement and CELAC, said that in her region, Haiti had benefitted immensely from the work of the United Nations Stabilization Mission in Haiti (MINUSTAH). However, the recent allegations of misconduct and sexual abuse of women and children at United Nations peacekeeping operations was of great concern. That undermined the credibility of the Organization and appropriate measures needed to be implemented to ensure that staff and experts on mission would not be exempt from the consequences of criminal acts committed at their duty stations.
States must establish jurisdiction, she continued, over crimes committed by nationals while serving at peacekeeping missions. Commending countries that had taken steps to ensure that those found guilty of criminal offenses were brought to justice, she added that a zero-tolerance policy on the matter would help contribute to the restoration of faith in the United Nations system. Another important measure was the training and sensitization of official and experts on mission on the need to respect the national laws of the host State and United Nations standards of conduct. CARICOM would support the efforts of Member States and the United Nations to bring to justice any official or expert on mission accused of committing criminal offences.
ANCA CRISTINA MEZDRA, of the European Union, said that impunity for crimes of a serious nature committed by United Nations officials and experts on mission would have long-term detrimental effects on the credibility of the Organization and its effectiveness and must not be tolerated. While the privileges and immunities of such persons should be upheld, they must respect international law and national legislation of host States and no crime committed by them should go unpunished. More needed to be done to address unacceptable conduct, she continued. Allegations must be reported, investigations must be speedy and thorough and perpetrators must be punished.
In that respect, she welcomed measures announced by the Secretary-General, including the setting up of immediate response teams by the end of 2015, strong sanctions against those who committed acts of misconduct and those who failed to take action against them and the dissemination to missions of standards and procedures for alerting Headquarters, as well as the planned creation of an adequately resourced victim assistance programme among other measures. Still, genuine accountability rested on the cooperation of Member States; troop-contributing countries must investigate and prosecute all credible allegations of misconduct and crime by their nationals. Where national authorities were unwilling or unable to do so, the International Criminal Court should exercise its jurisdiction. She also supported the dual track approach of combining short-term and long-term measures to deal with existing jurisdictional gaps and acknowledged value in discussing principles for an international legal instrument.
MAY-ELIN STENER (Norway), speaking also for the Nordic countries, expressed grave concern that of the 84 cases that had been brought to the attention of sending States since 2007, there had been feedback on only fifteen. It was time to strengthen the language of the resolution on the matter and request Member States to provide information to the Secretariat on follow-up of referred cases in their national jurisdictions and preferably not only from the year of the report but from all previous years. Furthermore, the Secretary-General’s report should identify those States that did not provide the information.
She said that development of an internationally legally binding convention to ensure that criminal conduct was addressed would be a positive step. However many normative issues would have to be considered and openness and inclusiveness in all relevant aspects would have to be ensured. To that end she supported in principle the establishment of an intercessional ad hoc committee, or something similar, to consider the specific content of such a convention, and to report back to the seventy-first session of the Assembly. She also stressed that the Organization’s officials and experts who reported such crimes must be protected from retaliation and that investigations of those crimes should be conducted by experienced and professional investigators in accordance with human rights and other standards.
BARRY O’SULLIVAN (Australia), also speaking for Canada and New Zealand, stressed that officials and experts on mission who committed crimes in the course of their work were very small in number compared to the many who were striving to carry out the Organization’s work in accordance with the highest possible standards. However, the deplorable acts of a few called into question the reputation, credibility, impartiality and integrity of the United Nations. Moreover, the failure to hold those few to account for their crimes risked tarnishing relations between the United Nations and the local population, and undermined the success of the operation and the United Nations wider efforts to promote the rule of law, security, development and human rights.
He voiced concern about both reports in the last year of criminal conduct within United Nations missions, particularly allegations of sexual exploitation and abuse, and the ongoing failure to close the impunity gap. Member States had the primary responsibility for investigating and prosecuting crimes committed by United Nations officials and experts on mission. States should report to the Organization on the progress and outcome of the investigation and prosecution of such crimes in a timely manner and should also help build the capacity of domestic jurisdictions to undertake such investigations and prosecutions. “Of course, prevention is better than a cure”, he said, stressing that training was critical. In addition, the Secretariat should draw from lessons learned in relation to the allegations of sexual exploitation and abuse in the Central African Republic that surfaced this year.
ANA CRISTINA RODRIGUEZ PINEDA (Guatemala), associating herself with the Non-Aligned Movement and CELAC, said, given the recommendations of the Group of Experts, deliberations to the remainder of the United Nations staff both at the Headquarters and on the field should be expanded. The Secretary-General’s current report indicated 22 reported cases. What was troubling was that two dealt with sexual exploitation and abuse of minors. Also troubling was that systematic efforts to eradicate sexual exploitation and abuse especially in peacekeeping operations had not yet led to tangible change. She condemned those acts and demanded a zero-tolerance policy by the Organization. Work with the Fourth and Fifth Committees needed to be coordinated. The Office of Internal Oversight Services (OIOS) needed to be strengthened. Knowledge sharing programmes must be bolstered to protect whistle-blowers. Cases of misconduct did not give the Committee complete diagnosis of the problem. In that regard, increased and more consistent information, as well as better reporting and follow-up mechanisms were also needed.
JAMES N. WAWERU (Kenya), associating himself with the Non-Aligned Movement and the African Group, said that the lack of prosecution of criminal acts committed by United Nations officials and experts on mission posed a serious threat to the reputation of the Organization, undermined the work of those missions and in most cases hampered the acceptance of those United Nations deployments even in very needy situations. There should be a zero tolerance policy of the United Nations concerning criminal conduct, particularly that involving sexual exploitation and abuse. Criminal accountability was a fundamental pillar of the rule of law, and it was crucial for the United Nations integrity and effectiveness. The immunity of a United Nations staff member on mission could only be waived by the Secretary-General and only where he was persuaded that the host country was incapable of adhering to the principles of due process and human rights. For its part, Kenya was well equipped to prosecute nationals who had committed serious offenses. The key challenge it faced in that respect was the fairly lengthy process of seeking a waiver of immunity by the Secretary-General, thus further delaying criminal proceedings. In addition, the lack of a comprehensive procedural law, from complaints to eventually sentencing, exacerbated the problem.
AMIT HEUMANN (Israel) said she was looking forward to learning how States would develop national legislation on criminal activity by their nationals participating in United Nations missions, and he urged them to take appropriate action to ensure that such crimes were not met with impunity. She also urged those States who had had cases referred to them to update the Organization on actions undertaken by national authorities. The perpetrators of such crimes must be brought to justice without prejudice to the privileges and immunities of such persons and the United Nations under international law, and in accordance with international human rights standards, including due process. She expressed hope that taking further practical measures to strengthen training on the Organization’s standards of conduct would raise awareness of that issue among States.
DAMARIS CARNAL (Switzerland) said everything must be done to prevent United Nations staff members from committing offenses that undermined the fundamental values of the Organization and tarnished its credibility. It was the duty of Member States and the Secretary-General to take necessary measures to prevent those crimes and to ensure they did not go unpunished. She welcomed all measures aimed at improving the reporting system, and said that the Secretary-General should name the States concerned and, in light of the “very incomplete reporting”, he should explicitly request Member States to: report on the progress of investigations, prosecutions and disciplinary actions in their jurisdiction, including with regards to cases originating from previous years; and report on concrete measures taken to prevent such acts from reoccurring. Her delegation remained convinced that an international convention would be an appropriate measure to effectively and sustainably address the problems in that area.
Ms. EL GARF (Egypt), associating herself with the Non-Aligned Movement and the African Group, said she supported the zero tolerance policy. Such crimes should be prosecuted in the jurisdiction of the State of nationality of the person who perpetrated the crimes. She called for assistance to those States in closing legislative gaps so that they could assume that responsibility. Egypt’s domestic laws provided for the immediate prosecution of persons who had permitted those crimes and also provided training for their nationals participating in such missions on standards of conduct as well as on the laws of the host countries.
PIMPIDA RAVIRAT THANARAT (Thailand) said his country had actively participated in the Summit on Peacekeeping convened by the United States in September. The Declaration of Leaders, which Thailand supported, affirmed, among other things, a zero tolerance policy on all forms of sexual exploitation and abuse. Thailand had a proud, long history of contributing to United Nations peacekeeping operations worldwide; over 20,000 Thai military and police personnel had served in more than 20 peacekeeping missions since 1946. Pre-deployment training and in-mission induction was important, in particular, with the obligation to respect the United Nations standards of conduct and to observe the laws of the host States. Advocating the link between women, peace and security, she went on to say that women peacekeepers had a crucial role to play in supporting survivors and witnesses. In addition, the tendency of victimized women to open up to female peacekeepers would help to increase the ratio of incidents being reported and decrease the number of unpunished criminal conducts.
M. KOTESWARA RAO (India) expressed concern with the increasing number of cases throughout the years but also said he had confidence that concerned States would conduct efficient and thorough investigations and prosecution. Dealing with the wrongdoings of United Nations officials or experts in mission did not require the development of an international convention. Member States must ensure that their laws provided for their jurisdiction and had adequate provisions for prosecuting those officials. States should also have laws that provided as well for international assistance for prosecution and investigation. India’s penal code had provided for extra offenses committed by Indian nationals and for seeking and providing assistance in criminal matters.
PHAM QUANG HIEU (Viet Nam), associating himself with the Non-Aligned Movement, said that peacekeepers, who enjoyed immunity in accordance with international law, needed to respect the national laws of the host State and those of their country of nationality. Reaffirming support for the zero tolerance policy, he added that it was necessary to fill the jurisdictional gaps in order to avoid impunity. Calling upon all States to take the necessary steps, including adoption of national legislation and enhancement of international cooperation, he noted that his country had adopted in its penal code a provision that allowed, in certain circumstances, the exercise of jurisdiction over crimes committed by Vietnamese nationals in other countries.
MEHDI REMAOUN (Algeria) expressed his concern over the persistence of cases of sexual exploitation and abuses by United Nations officials and experts on mission. “It is crucial to avoid that the United Nations action become a source of further suffering to the people it is supposed to serve,” he said. He welcomed the establishment of Standing Sexual Exploitation and Abuse (SEA) Task Forces in most peacekeeping operations, with hope that it would be possible to achieve as soon as possible the objective of setting up teams of immediate response to gather and preserve evidence, within 72 hours of receipt of an allegation. He also appreciated the dissemination to missions, in early 2016, of a detailed guidance on standards and procedures for alerting Headquarters on instances of criminal misconduct by civilian, military or police personnel. Noting that strengthening prevention would require constant awareness-raising and training, he said that lessons learned could also be extended to regional organizations such as the African Union.
MARJON V. KAMARA (Liberia), associating herself with the Non-Aligned Movement and the African Group, expressed support for the Secretary-General’s policy of zero tolerance for sexual exploitation and abuse. It also supported the exercise of jurisdiction by Member States in cases where their nationals appeared to be the subject of investigation. However, reports of the lack of information on actions taken by States upon referral by the Secretary-General of some of their citizens undermined the Organization’s efforts to curb the problem. She called on those States to investigate and prosecute where evidence availed, underscoring that inaction would acquiesce to impunity.
CASSANDRA Q. BUTTS (United States) said that in the last few months, particularly appalling allegations of sexual exploitation and abuse in peacekeeping had surfaced. Those came alongside discouraging reports from the Independent Panel of Experts and the Office of Internal Oversight Services indicating significant underreporting of sexual exploitation and abuse in peacekeeping missions and the inability of the United Nations to fully enforce prohibitions against transactional sex and exploitative sexual relationships between peacekeepers and members of host populations. The Committee should review and strengthen appropriately its annual resolution on criminal accountability. Her delegation was actively considering whether a convention could play a useful role in helping close any gaps, particularly jurisdictional. However, the discussion of the draft convention showed that the Organization could take administrative actions by dismissing or repatriating personnel but could not prosecute sexual exploitation and abuse. States must act to support efforts to prevent misconduct and to take the necessary steps for accountability.
KOFFI NARCISSE DATÉ (Côte d’Ivoire) associating himself with the Non-aligned Movement and the African Group, said that the gravity of the allegations of sexual exploitation and abuse by United Nations personnel was a matter of concern since the goal of peacekeeping was to protect the civilian population, often the most vulnerable, who sometimes had to pay the heavy price of fleeing combat zones. Criminal impunity tarnished the image of the Organization greatly and compromised its effectiveness. The United Nations must “purge those black sheep” from its ranks so that the solution did not become the problem. Recalling various resolutions adopted by the General Assembly on the matter, he urged States to establish special jurisdiction with regard to grave offences committed by their nationals in other countries. That could only work with greater international cooperation, he stressed.
SHAHARUDDIN ONN (Malaysia) said his country had jurisdiction over crimes committed by its military personnel, in their capacity as officials and experts on mission. The provisions of that relevant legislation continued to apply to such personnel wherever they might be deployed, and was also provided in the applicable United Nations Status of Forces arrangements. His country could also claim extra-territorial criminal jurisdiction over serious crimes, such as terrorism, offences against the State, corruption, money laundering, drug trafficking and trafficking in persons. Additionally, its criminal procedure code provided that any offence under any other written law could also have extraterritorial application. On the Group of Legal Experts’ proposal for a convention on the issue, he said further deliberation would be needed on the definitions of the terms to be used throughout, especially in relation to “serious crimes”, as well as the scope of application, limitation to the types of offences and the principle of dual criminality. Given outstanding issues, further in-depth study was needed to determine the feasibility of such a draft convention.
RUBÉN IGNACIO ZAMORA RIVAS (El Salvador), underscoring that his country had benefitted in the past from United Nations peacekeeping operations, he emphasized the particular vulnerability of populations in armed conflicts and other emergency situations. Every mission must be carried out with full respect for the principles of the Charter and the obligations stemming from rule of law. The international community must ensure that all persons were subject to the rule of law, regardless of rank. On a national level, El Salvador had enacted various measures to ensure that if its personnel committed such criminal offences they could be tried not only by the application of territoriality but also through the principles of “personality and universality” which were recognized in the country’s criminal norm.
MOHAMMED ATLASSI (Morocco) said any criminal offense committed by a United Nations official or expert on mission must be tried by the competent relevant national court of the State of whom the official or expert was a national. Those officials or experts were obliged to respect laws of the host State. In order to establish criminal competence for serious offenses committed by them and to ensure that they abided by relevant resolutions on the topic, efforts between Member States needed to be harmonized. Cooperation between States, particularly where there were instances of serious allegations of criminal offences, was also needed. Legal training for members of the military and civilian staff of each State must be strengthened as well. The legitimacy of the Organization’s actions largely depended on the trust placed upon it. Member States must dovetail efforts to ensure that crimes did not go unpunished and remained in line with due process. Similarly, the United Nations, whenever it had set up an administrative inquiry into an allegation of a serious crime and found it unfounded, must take all measures to re-establish the reputation of the official or expert concerned.
SERGEY A. LEONIDCHENKO (Russian Federation) said the Organization should focus efforts on prevention and perpetration of crimes by its officials. His country supported a zero-tolerance policy in relation to crimes committed by United Nations officials and experts on mission. He expressed concern about existing cases of sexual exploitation and abuse. Investigating allegations should be carried out in strict compliance with international law. A leading role should be played by the State of the staff member. Given the specificity of legal status, that would help in ensuring the individual’s right to a fair trial. The Secretariat should fully and immediately inform the State concerned of cases in which their nationals were suspected of committing crimes.