Sunday, March 14, 2010

Criminal Accountability of United Nations Officials and Experts on Mission

United Nations (UN) officials and experts are increasingly being accused of crimes, particularly sex crimes, in the Member States where they have been assigned. The primary concern is that often, a Member State lacks the jurisdiction or means to prosecute the offender. To remedy this, the UN turned to the Group of Legal Experts (Group) for a report on this situation. The Group submitted document A/60/980, which sought to ensure the accountability of UN staff and experts on mission with respect to criminal acts committed by peacekeeping operations. Subsequently, the General Assembly (GA) decided to establish an Ad Hoc committee. The committee is open to Member States and members of specialized agencies, such as the International Atomic Energy Agency (IAEA). At this point, the UN continues to face reports of crime committed by its officials.

Currently, the Secretariat cannot hold a person criminally accountable; nor can the Secretariat conduct an investigation or enforce extraditing offenders. However, administrative investigations conducted by the UN may offer some help in providing evidence for criminal proceedings. The administrative investigators must be aware that any evidence collected is used not only for disciplinary actions, but potentially for criminal investigations as well.

The UN is attempting to facilitate international cooperation between all Member States to prosecute offenders. One of the biggest hurdles the UN faces is that many Member States lack jurisdiction over foreign nationals. Further, there is no type of international statute or code stating what crimes are punishable. On top of this, sexual crimes committed by UN officials are often not reported due to the fear victims face. In fact, from January 2006 to December 2006, a total of 357 allegations of sexual exploitation and abuse were reported to the Office of Internal Oversight Services (OIOS). These statistics were reported in A/61/957.

Other difficulties that the UN faces are that offenses often occur in conflict or post-conflict environments, where the criminal justice system may be impaired. Further, not all Member States observe due process, nor do Member States penalize criminals in a manner that all would see as just. Also, an executive mandate is just not practical, as few Member States are willing to give the UN that type of executive power.

The Secretariat wishes to hold a convention to further discuss the matter. The Secretariat does not wish to specify crimes, but rather find avenues for a State to exercise jurisdiction. Also, the Secretariat would like to see the crimes be punishable by two to three years’ imprisonment. The UN favors the advantages of a host State when it comes to investigating, trying, and prosecuting a case. The UN has offered to incorporate the United Nations Police to facilitate trials in the host State.

The UN would like to encourage implementing hybrid tribunals, such as the United Nations Transitional Administration in East Timor. The UN would hope to facilitate a type of jurisdiction in the host state. These types of tribunals are more likely to meet international standards of human rights, and to promote confidence in the potential legal system.

The international community recognizes the need for holding UN officials and experts liable for their actions in the field. Now it is up to the Member States to propose a multilateral approach to the problem, via a hybrid tribunal, or modifying their own jurisdictional boundaries.

Food for thought on this issue:
• What can a Member State do independently of the UN to hold peacekeepers liable for their actions?
• Should the Secretariat attempt to define crimes or criminal activity for the sake of uniformity?
• If so, what should be the guidelines?
• What avenue should a Member State take to gain jurisdiction over criminals? I.e., should they write a code or statute, or amend their constitution?
• Who should fund the trials, investigations, and imprisonment of offenders; the UN or the Member State?
• What defenses should be available for alleged criminals who are nationals of other States?
• Does Protocol I of the Geneva Conventions provide any sort of jurisdiction or benefits for civilian victims in regards to protecting them from UN representatives?
• Should the UN provide for an appellate court of review?
• Should this court be based on common law or civil law?
• Should the Member States be responsible for appeals in their State?

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