15 October 2007

General Assembly
GA/L/3320 





Department of Public Information • News and Media Division • New York
Sixty-second General Assembly 
Sixth Committee 
6th & 7th Meetings (AM & PM)

GENERAL ASSEMBLY RESOLUTION SEEN AS FIRST STEP ON PROBLEM OF CRIMINAL

MISCONDUCT BY PERSONNEL ON UNITED NATIONS MISSIONS
 

Sixth Committee Is Told Convention May Be Longer-term Solution;
Action Needed Earlier on Issue Serious for Reputation of World Body

A convention on the accountability for their conduct of United Nations personnel and experts on mission was a long-term measure that might be premature, the General Assembly’s Sixth Committee (Legal) was told today, as it took up the matter at two meetings while its Working Group resumed consideration of the question.  But several delegates said an Assembly resolution could establish the framework for States to take national legislative measures to address the matter in the short term.

The recommendation to draft the resolution calling on States to take stronger domestic action was one of several initial steps the Secretariat had offered in a note based on an April Ad Hoc Committee report.  Others were to develop model legislation and to raise awareness by pre-deployment training.  Work was progressing on the basis of a 2006 report by a Group of Experts in response to allegations of serious sexual exploitation and abuse on certain United Nations missions.

Most speakers stressed the seriousness of the issue of misconduct by United Nations personnel and peacekeepers on mission, both for the victims and for the reputation of the Organization.

Present for the debate were the Legal Counsel and Under-Secretary-General for Legal Affairs, Nicolas Michel, as well as the Under-Secretary-General for Internal Oversight Services, Inga-Britt Ahlenius.  Dmitry Titov, Assistant Secretary-General for Rule of Law and Security Institutions in the Department of Peacekeeping Operations was also present, as was the Officer-in-Charge of the Department of Field Support, Philip Cooper.

Speaking for those Secretariat officials, Mr. Michel said the United Nations did not and could not condone criminal conduct by its officials and experts on mission.  The subject under discussion put into question the core values of the Secretariat, as the administrative and executive arm of the Organization.  Criminal conduct by United Nations personnel directly affected the operational activities of the Organization and its essential mission.  The problem was significant even though it concerned a very small minority.

Introducing the report of the Ad Hoc Committee on its first session in April, its Chairperson Maria Telalian ( Greece) said discussions had centred on understanding the problem and its magnitude.  Issues taken up included the extent of the problem, the categories of personnel to be covered (scope ratione personae), the crimes to be covered (scope ratione materiae), the bases for the assertion of jurisdiction, and questions of investigations and cooperation.  The question of the type of instrument to be elaborated was deferred.

The representative of Australia, speaking also for Canada and New Zealand, said the Sixth Committee should consider appropriate measures to end impunity for criminal conduct by United Nations personnel, in light of the jurisdictional gap that could lead to such impunity.  While a convention was the long-term solution of requiring States to exercise jurisdiction over their nationals participating in peacekeeping operations, with all United Nations personnel included in the provisions, the content of any new treaty required considerable further information.  So the Secretariat’s short-term recommendations for addressing the jurisdictional gap should be adopted, in particular, a General Assembly resolution urging all Member States to take action.

For the Non-Aligned Movement, the representative of Cuba said that group attached great importance to the subject since they contributed significantly to peacekeeping operations.  The Movement acknowledged the outstanding contribution and sacrifices of peacekeepers and stressed the need for all peacekeeping personnel to perform their duties in a manner that preserved the image, credibility, impartiality and integrity of the Organization.  She reiterated a commitment to zero-tolerance policy on all misconduct, including sexual exploitation and abuse by all categories of United Nations personnel.  However, the non-aligned nations believed it was still premature to discuss the expediency of establishing a convention.

Also addressing the meeting today were the representatives of Portugal (for the European Union), Switzerland, Egypt, Guatemala, China, India, Indonesia, Tunisia, Democratic Republic of the Congo, Thailand, Ecuador, Uruguay, El Salvador, South Africa, Mexico, Malaysia, Morocco, United States, Venezuela, Algeria, Chile, Kenya, Russian Federation, Iran, Trinidad and Tobago, Nigeria and Japan. 

The Sixth Committee (Legal) will meet again at 10 a.m. tomorrow, Tuesday, 16 October, when the report of the Special Committee on the Charter of the United Nations and on strengthening the role of the Organization is expected to be taken up.

Background

The Sixth Committee (Legal) met this morning to consider the matter of criminal accountability of United Nations officials and experts on mission.

For its consideration, the Committee has before it a note by the Secretariat on criminal accountability of United Nations officials and experts on mission (document A/62/329).  It states that a primary concern in this regard was the fact that a crime may be committed in a State that was unable to hold the offender accountable and then other States would need to be involved in the process.  If the criminal laws of other States had not been extended to cover the crimes committed in a host State, then the jurisdictional gap would allow the alleged offender to escape prosecution.  The gap could be closed by urging as many States as possible to assert and exercise criminal jurisdiction.

A Group of Legal Experts on the matter had recommended the development of a new convention to address jurisdiction and other matters, the Secretariat note goes on.  A convention would enable States to establish jurisdiction in circumstances as broad as possible.  It would also provide certainty about who was subject to the exercise of such jurisdiction and the crimes covered.

In its note, the Secretariat expresses support for a convention requiring States to exercise jurisdiction when the alleged offender is one of their nationals or is in their territory and not being extradited.  The convention should also require States to consider establishing jurisdiction when the victim is one of their nationals or, in the case both of alleged offenders or victims who are stateless persons, when the habitual residence is on their territory.  All crimes should be covered and all United Nations personnel, excluding military members of national contingents who are subject to the exclusive jurisdiction of the sending State.

It is recommended that rather than listing the crimes covered by the convention, a generic approach should be used, such as defining crimes by reference to a level of punishment in the country able to assert jurisdiction.

Further, the note points out that only Member States have the legal capacity to conduct criminal investigations and prosecute alleged offenders.  Therefore, short-term measures should be introduced to emphasize the role of Member States in the exercise of criminal jurisdiction.  Those would have the Assembly adopt a resolution urging States to establish jurisdiction over their nationals.  The Security Council would be asked to include relevant language in mission-specific resolutions.  Through the Special Committee on Peacekeeping, the Secretary-General would be requested to continue including similar language in memoranda of understandings.  And finally, the Department of Peacekeeping Operations would be asked to ensure that notes verbales were sent to relevant permanent missions to inform them about the United Nations “zero-tolerance” policy.

The note concludes by stating that crimes committed by persons taking part in United Nations operations impacted on the victim, the host country, the international community and the execution of a mandate.  A comprehensive response to the problem requires that offenders be held accountable for criminal conduct.  The Secretariat could not conduct criminal investigations or trials, and as a result those activities were the responsibility of Member States.  The convention that would constitute the longer-term response would serve as a basis for the exercise of jurisdiction and clarification of issues.  It would also signal the importance accorded by the Organization to holding accountable those participating in its activities.

The report of the Ad Hoc Committee on its first session is contained in document A/62/54.  The August 2006 document A/60/980 contains the report of the legal experts that forms the basis for the Committee’s work on the matter.

Statement by Ad Hoc Committee Chairperson

MARIA TELALIAN (Greece), Chairperson of the Ad Hoc Committee on criminal accountability of United Nations officials and experts on mission, introduced the Committee’s report on its first session (9-13 April, New York).  She said two plenary meetings had been held, and there had been five meetings in the context of a working group as a whole, with the report organized into four chapters and an annex.

She said the report of the Group of Legal Experts established by the Secretary-General was prepared in the wake of serious allegations of sexual abuse and exploitation in peacekeeping operations.  Discussions centred on understanding the problem and its magnitude.  A briefing and question-and-answer segment involved representatives of the Experts and of Secretariat Departments.  Issues taken up included the extent of the problem, the categories of personnel to be covered (scope ratione personae), the crimes to be covered (scope ratione materiae), the bases for the assertion of jurisdiction, and questions of investigations and cooperation.  The question of the instrument to be elaborated was deferred.  

The recommendation was for the Sixth Committee (Legal) to establish a Working Group to continue consideration of the report of its Group of Legal Experts and the Secretariat note on the matter.  The Committee had followed that recommendation.

Statement by Legal Counsel

NICOLAS MICHEL, Under-Secretary-General for Legal Affairs and Legal Counsel, made a statement on behalf of Inga-Britt Ahlenius, Under-Secretary-General for Internal Oversight Services; Dmitry Titov, Assistant Secretary-General for Rule of Law and Security Institutions in the Department of Peacekeeping Operations, and Philip Cooper, Officer-in-Charge of the Department of Field Support.

The Legal Counsel told the Committee the United Nations did not and could not condone criminal conduct by its officials and experts on mission.  The subject under discussion put into question the core values of the Secretariat, as the administrative and executive arm of the Organization.  Criminal conduct by United Nations personnel directly affected the operational activities of the Organization and its essential mission.  The problem of criminal conduct of those United Nations officials and experts was significant, although it concerned a very small minority.  It was not easy to quantify the problem.  Statistics should not be taken as the only indicator of the gravity of the problem 

He said that other factors should be considered, including pain and suffering caused to the victims and their families; the likely negative impact of the criminal conduct of the personnel on the overall activity and the fulfilment of the Organization’s mandates; the potential damage of such conduct to the image, credibility and reputation of the Organization; as well as the threat that such conduct might generate to the physical security of United Nations personnel in general.  He said failure to prosecute offenders brought about perceptions of impunity which would aggravate the negative effects that such incidents generated.

Continuing, he said the international community therefore needed to act resolutely and to make serious efforts to address the problem in a timely and efficient manner.  The Secretariat note before the Sixth Committee offered possible means to that end, against the background context of the report of the Group of Legal Experts which studied the problem and whose report was also before the Committee.

The Legal Counsel reviewed the recommendations of the Group of Legal Experts, including their proposal for an international convention which could facilitate the establishment of appropriate bases for the exercise of jurisdiction by the States concerned, while also providing clarity on which United Nations personnel would be subject to such jurisdiction and for which crimes.  Host States were not being discouraged from exercising jurisdiction.  Even in situations where the host State faced difficult conditions, the exercise of its jurisdiction ought to be encouraged through appropriate measures of capacity-building.

He said the elaboration of a draft convention could be a long-term measure that would provide clarity to the situation.  He also drew attention to short-term measures that could be considered for adoption by Member States, including a resolution by the General Assembly which would strongly urge States to assert their criminal jurisdiction at least over their nationals engaged in United Nations operations, who had allegedly committed a serious crime.

Statements

ROD KEMP ( Australia), speaking also for Canada and New Zealand, said the impact of the crimes being considered was great, and “even one case of criminal conduct is one too many.”  The measures taken by the entire United Nations system in response to the allegations of misconduct were welcome.  But when prevention failed, both States and the United Nations shared the responsibility of holding accountable any perpetrator of a crime.

The Legal Committee, he said, now needed to consider the appropriate measures to end impunity for criminal conduct by United Nations personnel, in light of the jurisdiction gap that could lead to impunity.  The long-term solution was the Secretariat’s recommendation for a convention requiring States to exercise jurisdiction over their nationals participating in peacekeeping operations.  It would help States investigate situations more effectively and would provide a framework for legal cooperation.

Further, he said, in context of the overall objective of avoiding impunity, the United Nations response to addressing the situation should not be limited to peacekeeping missions but should apply to all United Nations personnel.  Since the content of any new treaty required considerable further information, the Secretariat’s short-term recommendations for addressing the jurisdictional gap should be adopted.  In particular, there should be a resolution urging all Members to take action on the important issue.

JOÃO MADUREIRA ( Portugal), speaking for the European Union and associated States, said States should work with the United Nations to ensure that United Nations officials and experts were not, because of their special status, effectively exempted from being held accountable for criminal acts.  A clear political signal must be sent that the United Nations would not tolerate criminal misconduct and would actively work to prevent and prosecute such acts.

He said one way to bridge the jurisdictional gap was to encourage States to establish, assert and exercise criminal jurisdiction over their nationals on peacekeeping missions, in complementarity with that of a host State.  The dual-track approach of combining both short-term and long-term measures to address the situation should be adopted, with States being encouraged to address the gap in a way that made swift prosecution possible,

Towards that end, he said a General Assembly resolution should be elaborated and adopted so as to delineate a framework of principles within which measures could be sought.  It should encourage States and the United Nations to cooperate in sharing information, gathering evidence and ensuring the availability of witnesses.  Such cooperation would assist in facilitating the exercise of jurisdiction of states of nationality.

ISMARA VARGAS WALTER ( Cuba), speaking for the Non-Aligned Movement, said the Movement attached great importance to the subject, since its member States made a significant contribution to the maintenance of international peace and security, contributing more than 80 per cent of United Nations peacekeeping personnel in the field.  The Movement acknowledged the outstanding contribution and sacrifices of peacekeepers and stressed the need for all United Nations peacekeeping personnel to perform their duties in a manner that preserved the image, credibility, impartiality and integrity of the Organization.

It reiterated its commitment to zero-tolerance policy on all misconduct, including sexual exploitation and abuse by all categories of United Nations personnel.  It welcomed the efforts undertaken by the United Nations Special Committee on Peacekeeping Operations regarding the adoption of the Memorandum of Understanding between the United Nations and the troop-contributing countries.  The Non-Aligned Movement also took note with satisfaction of the work undertaken by the Ad Hoc Committee on the subject during its first session last April.

She said that the Movement believed it was still premature to discuss the expediency of establishing a convention on criminal accountability of United Nations officials and experts on mission.  The Working Group must concentrate on substantive matters and leave other issues for later.  In the view of the non-aligned, several issues needed clarification, such as the definition and scope of application of what was understood as “United Nations officials and experts on mission”; and also determination of the crimes for which criminal accountability would be demanded of the officials and experts on mission.  Then there was the issue of jurisdictional aspects; in that regard, the Non-Aligned Movement believed the host State should not be precluded from exercising jurisdiction.

EMMANUEL BICHET ( Switzerland) said his country supported the elaboration of a convention to provide for a sound legal basis for the exercise of jurisdiction by States, and to fill jurisdictional gaps.  Switzerland called upon States to ensure that they were able to hold their nationals accountable for any crime committed on United Nations mission.  It was a moral obligation towards the victims and nationals of a host country.  On the scope of application of a future convention, Switzerland was concerned about the current tendency to completely exclude military personnel of national contingents from the proposed Convention.  It favoured a convention that would provide for the application of legal rules to all persons involved in peacekeeping missions, regardless of the nature of their activities.

He said Switzerland emphasized the importance of close collaboration and communication among States, as well as between States and the United Nations.  Since elaboration of a convention might take some time, Switzerland appreciated the suggestion for short-term measures in the form of a General Assembly resolution urging Member States to establish jurisdiction over their nationals who committed serious crimes on mission.

NAMIRA NEGM ( Egypt) affirmed in full the principle of a zero-tolerance policy when it came to sexual exploitation on United Nations missions.  The jurisdictional gaps must be filled, she said, so that the reputation of the United Nations would be preserved.  Many of the situations reported had not been substantiated and the matter required careful consideration.  There could be allegations by enemies or others.  The legal competence of those investigating situations must be taken into consideration, particularly when the host State was unwilling to exercise its legal competence.

She said responsibility for prosecution for crimes should take into consideration territorial competence.  A comprehensive study of all the criteria should be conducted prior to elaborating a new instrument.  The criteria should include a definition of “experts” on mission, and whether military personnel should be included.  Immunity and terms of employment should also be addressed along with the degree of international cooperation between States and military relations.  Egypt’s legislation stipulated that any Egyptian committing a crime outside Egypt would be prosecuted under Egyptian law upon return.  In considering an instrument, the emphasis should be on increased cooperation and on decreasing the legislative gaps.

ANA CRISTINA RODRIGUEZ-PINEDA ( Guatemala) said the scope of the “ratione personae” should be in line with the Ad Hoc Committee’s recommendation and the scope of the “ratione materiae” should be within that of local jurisdiction.  Breaches of crimes in countries should be considered breaches of crimes within United Nations peacekeeping operations.  A distinction should be made between crimes committed against host country nationals and those against other United Nations personnel.  Crimes should not be limited to sexual crimes but should include financial crimes and other illegal activities such as money laundering.

She said universal jurisdiction should not hold for ordinary crimes, since the Charter provided only for functional immunity.  There was a lack of consistency in national legislations and a study should be undertaken towards the aim of developing guidelines to harmonize information concerning a very complex level of legal matters.  Measures to address juridical gaps could be in the form of amendments to the Model Statute, or the drafting of annexes into the form of cooperation agreements.  The effects of the new disciplinary measures should be considered along with the subject of cooperation, and the different levels of cooperation, such as those between States and the United Nations, those between the various Secretariat departments and those between States themselves.  A model instrument to be signed by States should be considered but it was too early to decide on its form.  A multilateral instrument may not bring about the desired result.

MA XINMIN ( China) said that tens of thousands of peacekeepers from more than 100 countries carried out their duties in foreign lands under dangerous and harsh conditions.  Some had even given their lives.  Their dedicated service had earned them broad support and deep appreciation from the international community.  However, criminal acts by a few individual United Nations officials and peacekeepers in mission areas had damaged the overall credibility of peacekeeping operations, diminished their effectiveness and caused unanimous condemnation by the international community.  He said holding the perpetrators accountable would help win the hearts of the population in mission areas and restore the credibility of the United Nations as well as the effectiveness of the peacekeeping operations.  China commended the Chairman of the Ad Hoc Committee and the Secretariat for their approach to tackling the problem. 

He said China believed that more information was needed on the subject, such as the prevalence of and severity of the crimes, and the methods used in the past to deal with them.  He noted that it was difficult to establish the terms and scope of the exercise of jurisdiction.  Punishment of criminal activities should not affect or hinder the work of United Nations officials and experts in fulfilling their peacekeeping mandate. 

He said host States should be given priority in exercising jurisdiction over criminal acts of United Nations officials and experts.  Judicial cooperation between the host State, the State of nationality and the United Nations should be strengthened, and judicial assistance mechanisms should also be established.  Military personnel from national contingents should not be included in the categories of United Nations officials and experts that could be subject to punishment.

SUBHASH MAHARIA ( India) said the goal of security, development and human rights for all must be strongly advanced; United Nations personnel held responsible for violating the codes of conduct must be held accountable.   India supported the proposal that the General Assembly could adopt a resolution strongly urging Member States to establish jurisdiction over their nationals who committed serious crimes.  He recalled that his delegation had said at the meeting of the Ad Hoc Committee last April that future deliberations on long-term measures might not be focused or geared only towards elaboration of a convention.  It still felt that the gaps in the current system could be plugged through other means, such as the development of a model law as indicated in the report of the Group of Legal Experts.   India was not fully convinced at present of the necessity of developing a convention.  It believed that short-term measures should be adopted first, for their efficacy to be assessed.  A decision on long-term measures could later be taken, if necessary.

ADAM TUGIO ( Indonesia) said the zero-tolerance policy should apply to all misconduct by all categories of United Nations personnel.  One of the surest ways to strengthen the application of the policy was to raise awareness and conduct appropriate training at the pre-posting stage, and then to continue the training at frequent and regular intervals during the operations.

On the Committee’s work, he said that while there had been agreement in April on the need to tackle the issue effectively, it was clear that numerous factors remained to be considered.  Those included the need to clarify aspects of the scope of issues involved and the principle of exercise of jurisdiction.  On the matter of jurisdiction, it was important to avoid any duplication with existing mechanisms governed by relevant conventions on privileges and immunities.  Inadvertent conflicts should also be avoided.  Finally, the distinction must be clarified between military observers deployed by the Security Council and military personnel under jurisdiction of the second State.    

HABIB MANSOUR ( Tunisia) said the scope of the problem must be determined before further measures were considered.  Discussion on form should be deferred until the substance had been thoroughly considered.  A resolution could request States to take appropriate legislative measures.  But whatever form the future instrument took, members of the military should not be included as experts, since they remained part of national forces that were subject to specialized rules.  The scope of the instrument should not be limited to sexual acts but should also take into consideration other great crimes such as torture and money laundering.

ZENON MUKONGO ( Democratic Republic of the Congo) noted that the number of peacekeeping personnel now in the field exceeded 100,000.  He observed that most of their functions were dangerous, and many had lost their lives in the process.  He commended troop-contributing countries for their sacrifices.  He said the activities of a few had seriously undermined those of the majority of peacekeeping personnel.  His country was convinced that a universal law was required to deal with the issue of criminal acts of United Nations officials and experts on mission; they should be held accountable for their actions.  He noted the crimes that had been committed in his country.  National sovereignty and judicial rights of a host country should be given priority in any measures to deal with the problem.

He said the Democratic Republic of the Congo supported the idea of an international convention.  The definition of crimes should be widened to include economic crimes committed by peacekeepers.  His country supported a clear definition of the crimes.  It also encouraged the inclusion of the issue of compensation.

CHAVANART THANGSUMTHANT ( Thailand) said the substance rather than the form of the matter should be looked at in the discussion.  The immunity provision in the model status–of-force agreement should be revised.  It was necessary for the question of criminal accountability of United Nations personnel to be studied further for crimes committed in a State other than the host State.  She recalled an incident in 1992 in which a United Nations representative on a mission in Cambodia entered Thailand temporarily and, through reckless driving, caused the death of a Thai national.  The proposal for a convention merited careful study.  A future convention should include a provision to hold a superior responsible for crimes committed by subordinates if that person knew or consciously disregarded information which clearly indicated that the subordinates were committing, or were about to commit, a crime.  In cases of extradition, the requesting State should incorporate a provision in its domestic law to suspend the statute of limitations for the crime committed, or extend its prescription when the extradition procedure had begun.

RODRIGO RIOFRÍO ( Ecuador) said a major analysis must be undertaken before action could be taken on the proposal to draft a convention on accountability.  The varying circumstances surrounding peacekeeping operations made it impossible to count on a unique solution.

He said particular consideration must be given to defining categories to be included in the general one of “United Nations officials and experts on mission”.  The treatment for military observers was of special concern.  They were members of national military forces in active service, and subject to the military jurisdiction of their contributing State.  But they did not serve as part of a contingent and did not enjoy the same treatment as civil servants, when dealing with repatriation issues.  More than once, an official repatriation had been requested of the contributing country and had been granted quickly.  Civil servants were protected by lengthy administrative measures.  Therefore, if such experts were to be included, they should be treated as independent civil personnel.

GUSTAVO ÁLVAREZ ( Uruguay) said the core of the issue being considered today was zero tolerance.  Military personnel should not be included in the scope of application.  Making any decisions regarding the scope of personnel covered by the principle of ratione personae was premature, since it would be difficult to get agreement before the term “experts” was defined.  The scope of matters related to ratione materiae should be determined on the basis of the principles of local jurisdiction and functional jurisdiction.  The process of investigation should be clarified, including a provision for establishing a national focal point at the start of investigation to ensure follow-up.

CLAUDIA VALENZUELA ( El Salvador) said her country supported the short-term measures proposed in the report of the Group of Legal Experts.  The measures would strengthen the role of host States with regard to jurisdiction over crimes committed by United Nations officials and experts on mission.  As for the long-term measures, she said the proposed convention should be studied, bearing in mind its scope, as well as the issue of functional immunity of those on a mission. 

THANISA NAIDU ( South Africa) said the Committee should first consider the existing barriers to ensuring accountability, so as to better assess whether an international convention was the most appropriate means to address the problem.  Given the number of cases, she said it should be considered whether it was worthwhile to expand the resources that would be involved in the elaboration of a convention.  Other approaches could be considered, such as a General Assembly resolution  calling on States to take stronger domestic action; adoption of model legislation, or intensified efforts by the Secretariat to identify States which failed to take appropriate action.

She said her delegation was not opposed to the elaboration of a convention, but it should first be clarified that the cause of action was both necessary, as well as a useful tool to address the broader problem of crimes committed on mission, including the crimes of sexual exploitation and abuse.  

ALEJANDRO ALDAY GONZÁLEZ ( Mexico) said measures taken must reflect and preserve the impartiality of the United Nations in dealing with the criminality of personnel and experts on mission.   Mexico recognized the importance of the work on the subject.  It was necessary to restructure the Organization’s peacekeeping operations.  He said he welcomed the note submitted by the Secretariat on the subject.  He referred to the gravity of the question under discussion, and said that his delegation saw the elaboration of a convention as a long-term measure, whose scope must be studied.  He added that his delegation was interested to note that any future legal instrument must cover all categories of personnel on mission, such as those on peacebuilding, and humanitarian missions.   Mexico also welcomed the proposals on short-term measures.

NOOR RUWENA MOHD-NURIN ( Malaysia) said the “exploitative” acts of a few individuals must not tarnish the good name and image of United Nations peacekeeping missions.  The question was of particular concern to his country, which was a troop contributor in Timor-Leste and Lebanon.  Any measures elaborated would have an impact, whether in the form of streamlined resolutions, enhanced guidelines, a revised model agreement or even, if necessary, a new legally binding instrument.

He said the areas covered by the Ad Hoc Committee at its first session touched upon the fundamental issues involved in elaborating a convention.  They pertained to scope, basis and primacy of application, exercise of jurisdiction, and -– finally -- investigation, custody and prosecution.  His own country’s legislation covered the status of nationals serving abroad.  Yet to ensure that all personnel in the category of military observers were adequately accountable, a provision could be included in the deployment authorization document.  Finally, there should be no rush into any decision on form.

KARIM MEDREK ( Morocco) said the accountability issue was a most important one for the United Nations.  To protect the Organization’s integrity, all States must ensure that impunity for United Nations personnel was impossible.  It was essential to adopt the Secretariat’s short-term recommendations, including the formulation of a General Assembly resolution.  A convention could be useful for filling jurisdictional gaps but the discussion was premature, since it entailed a legally complicated exchange, not to mention the resource implications.  Other matters to be considered included the limitation of the scope (as applicable only to those on peacekeeping operations), and when accountability would be invoked.  Competence of jurisdiction should be taken into consideration, with primacy being accorded to the jurisdiction of home States.  There should be close cooperation on the matter between the Fourth Committee (Special Political) and Sixth Committee (Legal), and also between them and the Department of Peacekeeping.  The only solution to the problem was for all States to cooperate in bringing perpetrators to justice.

JAMES DONOVAN ( United States) said he had given his view in the spring that the welcome report of the Group of Legal Experts had left a number of important questions unanswered, particularly with regard to the negotiation of a multilateral convention.  The report had begun from the assumption of theoretical gaps in accountability mechanisms that could preclude accountability for crimes.  But more information was needed on what practical problems were arising in efforts to investigate and prosecute the relevant crimes, and whether a convention would address such problems.  Negotiation of a convention would require significant resources, time and political capital.  That should not be undertaken without certainty that it was likely to be an effective instrument.

He said a convention might be of some use if the problem to be solved were the lack of a legal basis for States to cooperate with each other in investigating or prosecuting the relevant crimes.  It would not, however, address other possible barriers to accountability, such as national definitions of crimes which made it difficult to prove guilt or prosecute.  Further, a convention would bind only States who became party to it, and therefore have practical value only to the extent that States likely to host peacekeeping operations, or States with relevant staff on mission, chose to become parties.

He said the United States did not expect to be in a position to support a proposal to proceed with negotiation of a convention.  The Working Group would do better to dedicate its present session to considering more practical measures for promoting accountability, including by issuing a statement calling on States to take stronger action domestically, working on “model laws”, increasing Secretariat monitoring or “naming and shaming” States that failed to take appropriate action.

AURA MAHUAMPI RODRÍGUEZ DE ORTIZ ( Venezuela) said her country supported the proposals for long-term and short-term measures to deal with the problem of criminal acts of United Nations officials and experts on mission.  Short-term measures should include expanding United Nations capacity to deal with criminal actions, in addition to administrative investigation of the offences.  There was a need to establish the core legal issues first, before the elaboration of long-term measures.  The proposed convention required further discussion.  Venezuela supported the policy of zero tolerance of criminal acts of peacekeepers.  It was the responsibility of the United Nations to act to show that it did not condone any impunity.  It was important to preserve the Organization’s credibility and integrity. 

EL HADJ LAMINE ( Algeria) said his delegation associated itself with the statement made by the representative of Cuba, on behalf of the Non-Aligned Movement.  The Secretary-General must waive the immunity of personnel found to be involved in criminal activities while on mission, if he found that the immunity had been abused.  He said cases of criminality should not go unpunished.  The Group of Legal Experts, in its report, had provided a clear view on how to deal with the matter.  More studies were required on the scope of the proposed convention.  There was a need for international cooperation in pursuing the issue of criminality of those on United Nations mission; the United Nations must set an example in dealing with such problems.  The measures proposed by the United Nations Secretariat were a good start for dealing with the problem.

ÁLVARO ARÉVALO ( Chile) said taking action on this matter underscored the important principle that no one was above the law.  However, a series of gaps in jurisdictional law would need to be addressed before concrete work could begin on formulating an instrument, which should cover crimes beyond those of a sexual nature.  A formula should be devised on the question of immunity that struck a balance between the various interests involved.  In brief, much preparatory work would have to be conducted before an appropriate instrument could be elaborated.  The short-term measures recommended by the Secretariat should be considered in the meantime.  

When the Committee met again this afternoon, WANJUKI MUCHEMI ( Kenya) said the work of the United Nations was compromised when a person participating in a mission committed crimes of any nature.  Without the trust of the local community, the United Nations mandate would not get the necessary cooperation.  Therefore, pre-deployment training was strongly recommended.  Further, in its consideration of the “live” issue, the Committee should bear in mind that the greatest tasks required the greatest consensus.  It was crucial for States to solidify efforts in confronting challenges by building consensus.  

VLADIMIR TARABRIN ( Russian Federation) said the question of jurisdictional gaps deserved further discussion.  The broader interpretation should be applied as to whom to include, not just those in the United Nations system but also those who provided services and served as military advisers.  Prosecution of personnel by anyone other than the contributing country should occur only when that country was incapable of carrying out its function.  The specific status of participating persons should be considered and no hybrid tribunals should be conducted.  The conduct of investigation remained the prerogative of States but that should not hinder parallel arrangements.  Ending impunity should not sacrifice principles, and consideration should be given to the prevailing authority of the Department of Peacekeeping in the field of inquiry.

ESMAEIL BAGHAEI HAMANEH ( Iran) said his delegation attached high importance to the work of the Ad Hoc Committee.  While Iran acknowledged the great contributions of United Nations peacekeeping personnel, it was incumbent that appropriate mechanisms were developed to ensure that their sacrifices, as well as the whole peacekeeping operation, were not overshadowed by criminal misconduct of a few individuals.  The adherence to zero-tolerance policy towards any crime and misconduct, including sexual exploitation and abuse committed by peacekeeping personnel, would require the closure of existing judicial gaps to ensure their prosecution.

He said Iran supported efforts to address the problem.  States should be entitled to establish criminal jurisdiction.  To close the jurisdictional gap with regard to prosecution of crimes, Member States should be required to exercise jurisdiction when the alleged offender was on their territory and they did not intend to extradite the individual concerned.  Iran supported the short-term measures proposed to deal with crimes.  The issue of criminal accountability of United Nations personnel on peacekeeping missions was a cross-cutting one, which was very much related to the whole question of United Nations reform as well as the rule of law and administration of justice at the United Nations.  The Organization and its Member States should do their utmost to safeguard the efficiency and image of the Organization by promoting the rule of law and preventing impunity.

EDEN CHARLES ( Trinidad and Tobago) said his delegation found merit in the proposed short-term measures to address the issue of criminal accountability of United Nations officials and experts on mission.  It also saw the proposal of a General Assembly resolution as being similar to the principle of double criminality with regard to the obligations of States party to a bilateral extradition agreement.  There was need for legal certainty in order to prosecute those accused of committing crimes.  Such certainty was also required to establish a common set of rules acceptable to all Member States, despite their existing domestic legal systems.  It was for that reason, he said, that his country agreed that in the long term there was need for the elaboration of a comprehensive convention (excluding members of national contingents) to cover crimes of sexual exploitation and abuse, as well as all crimes committed by United Nations personnel on mission.

He said the eventual conclusion of the convention would demonstrate that the United Nations was committed to the rule of law in all areas of its operations.  It would also consolidate further the Organization’s moral authority.

IFEYINWA ANGELA NWORGU (Nigeria) said that, as a major troop-contributing nation and an active participant in United Nations peacekeeping activities, her country attached utmost importance to the need for criminal accountability of United Nations officials and staff on mission.  That need was informed by the constant necessity to prevent impunity which, if not resolutely stamped out, could become one of the gravest dangers to international peace and security.  Her country did not give much credence to administrative investigations conducted by the United Nations, which could hardly suffice as a basis for criminal investigations.  There was a need to strengthen the capacity of the Organization to conduct investigations that would result in the likelihood of the evidence being admissible in national criminal proceedings.

In considering the extension of the scope of application to a broader range of crimes, she said a distinction should be drawn between crimes committed against the general population, and the United Nations itself.  In Nigeria’s view, crimes committed against the former were the ones that attracted the most negative attention and were capable of eroding the integrity of the Organization.  That fact ought to be taken into consideration, should the extension of the scope be deemed advisable and appropriate.  Nigeria welcomed the recommendations of the Group of Legal Experts regarding deployment-awareness training and in-mission induction training of peacekeeping personnel.  It was happy that a victim assistance policy was being considered by the Special Committee on Peacekeeping Operations.

TOMOHIRO MIKANAGI ( Japan) said discussion in the Ad Hoc Committee had been preliminary, but had been useful for deepening understanding.  The note by the Secretariat was also a useful basis for discussion.  

The approach of short and long-term solutions seemed appropriate, but more information needed to be gathered about the real situation on the ground.  A careful examination should be conducted of the necessary legal system required in the longer term to address problems arising from the existing legal framework.

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For information media • not an official record