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Sixty-fourth session

Criminal accountability of United Nations officials and experts on mission (agenda item 78)

Summary of work

Background (source: A/64/100)

At its sixty-first session, in 2006, the General Assembly decided that the agenda item entitled Comprehensive review of the whole question of peacekeeping operations in all their aspects, which had been allocated to the Special Political and Decolonization Committee (Fourth Committee), should also be referred to the Sixth Committee for discussion of the report of the Group of Legal Experts on ensuring the accountability of United Nations staff and experts on mission with respect to criminal acts committed in peacekeeping operations (see A/60/980), submitted pursuant to Assembly resolutions 59/300 and 60/263 and decision 60/563 (decision 61/503 A).

At the same session, the General Assembly decided to establish an Ad Hoc Committee, open to all States Members of the United Nations or members of specialized agencies or of the International Atomic Energy Agency, for the purpose of considering the report of the Group of Legal Experts, in particular its legal aspects (resolution 61/29).

At its sixty-second session, the General Assembly strongly urged States to consider establishing to the extent that they had not yet done so jurisdiction, particularly over crimes of a serious nature, as known in their existing domestic criminal laws, committed by their nationals while serving as United Nations officials or experts on mission, at least where the conduct as defined in the law of the State establishing jurisdiction also constituted a crime under the laws of the host State; requested the Secretary-General to bring credible allegations that revealed that a crime might have been committed by United Nations officials and experts on mission to the attention of the States against whose nationals such allegations were made, and to request from those States an indication of the status of their efforts to investigate and, as appropriate, prosecute crimes of a serious nature, as well as the types of appropriate assistance States might wish to receive from the Secretariat for the purposes of such investigations and prosecutions (resolution 62/63).

At its sixty-third session, the General Assembly encouraged States, in accordance with their domestic law or any applicable treaties or arrangements on extradition and mutual legal assistance, to afford each other assistance in criminal investigations or criminal or extradition proceedings, including with regard to evidence; encouraged all States, in accordance with their domestic law, to explore ways and means of facilitating the possible use, in criminal proceedings regarding crimes of a serious nature allegedly committed by United Nations officials and experts on mission, of information and material obtained from the United Nations, bearing in mind due process considerations; to provide effective protection to witnesses and others who provide information in respect of such crimes; and to explore ways and means of responding adequately to requests by host States in order to enhance their investigative capacity; decided that the consideration of the report of the Group of Legal Experts on the topic (see A/60/980) should be continued during the sixty-fourth session in the framework of a working group of the Sixth Committee; requested the United Nations to consider any appropriate measures that might facilitate the possible use of information and material for purposes of criminal proceedings initiated by States in respect of such crimes, bearing in mind due process considerations; encouraged the United Nations to take appropriate measures, in the interests of the Organization, to restore the credibility and reputation of officials and experts on mission, in the case of unfounded allegations; urged the United Nations to continue cooperating with States exercising jurisdiction in order to provide them, within the framework of the relevant rules of international law and agreements governing activities of the United Nations, with information and material for purposes of criminal proceedings initiated by States; emphasized the importance that no action be taken by the United Nations that would retaliate against or intimidate United Nations officials and experts on mission who reported allegations concerning such crimes; and requested the Secretary-General to report to the Assembly at its sixty-fourth session on the implementation of the resolution, as well as with respect to any practical problems in its implementation, on the basis of information received from Governments and the Secretariat, and to include in the report information on the number and types of credible allegations and any actions taken by the United Nations and its Member States regarding crimes of a serious nature committed by United Nations officials and experts on mission (resolution 63/119).

Consideration at the sixty-fourth session.

The Sixth Committee considered the item at its 7th, 14th, 18th and 25th meetings, on 13, 23 and 28 October and on 12 November 2009.

Pursuant to General Assembly resolution 63/119 of 11 December 2008, the Sixth Committee, at its 1st meeting, on 5 October, established a Working Group to continue the consideration of the report of the Group of Legal Experts established by the Secretary-General pursuant to resolution 59/300 (A/60/980), focusing on its legal aspects, taking into account the views of Member States and the information contained in the note by the Secretariat (A/62/329). At the same meeting, the Sixth Committee elected Ms. Maria Telalian (Greece) as the Chairperson of the Working Group. The Committee also decided to open the Working Group to all States Members of the United Nations or members of the specialized agencies or of the International Atomic Energy Agency. The Working Group held two meetings, on 13 and 15 October. At the 14th meeting, on 23 October, the Chairperson of the Working Group presented an oral report on the work of the Working Group (see A/C.6/64/SR.14).

Statements were made by the representatives of: Australia (also on behalf of Canada and New Zealand); Sweden (on behalf of the European Union; the Candidate Countries Croatia, the former Yugoslav Republic of Macedonia and Turkey, the Countries of the Stabilisation and Association Process and potential candidates Albania, Serbia, members of the European Economic Area, as well as Ukraine, the Republic of Moldova, Armenia and Georgia aligned themselves with the statement); Mexico (on behalf of the Rio Group); Egypt (on behalf of the African Group); Iran (Islamic Republic of) (on behalf of the Non-Aligned Movement); Jordan; Switzerland; Indonesia; Guatemala; Malaysia; Norway; China; Democratic Republic of the Congo; Russian Federation; South Africa; Republic of Korea; Senegal; United States of America; Venezuela (Bolivarian Republic of); Nigeria; Morocco; and United Arab Emirates.

All speakers reiterated their support for the zero tolerance policy of the Organization concerning criminal conduct, particularly that involving sexual abuse and exploitation, committed by United Nations officials or experts on mission. It was reiterated that criminal accountability is a fundamental pillar of the rule of law, and that it is crucial for the Organization’s integrity and effectiveness. Several speakers observed that it was important for the Organization to give a clear political signal that it will not tolerate criminal behaviour. It was noted that it was apparent from the Secretary-General’s reports that some member States do have the legislation and capacity to exercise jurisdiction, while others have some provisions for at least a limited exercise of jurisdiction. Member States were encouraged to exercise jurisdiction in applicable cases in order to ensure that criminal acts do not go unpunished. It was noted that the remedial measures adopted under G.A. Res. 62/63 and 63/119, if properly implemented, could address the issue of jurisdictional gaps. While a preference was expressed for a predominant role to be played by the host State, others preferred to emphasize the role of the State of nationality. The Organization was commended for its efforts to refer cases of possible crimes of a serious nature to the State of nationality.

Delegations emphasized the importance of strengthening cooperation between States – including between the host State and the State of nationality of the alleged offender – as well as cooperation between States and the United Nations, in prosecuting alleged crimes of a serious nature. The need for such cooperation was emphasized, inter alia, with respect to investigations, exchange of information and the collection of evidence, as well as regarding extradition matters and the execution of sentences. While recognizing that cooperation was to be carried out in conformity with domestic law, some delegations were of the view that such law should not serve as a justification for refraining from cooperating as recommended by the relevant General Assembly resolutions, and that amendments to domestic law should also be considered when necessary.

A number of delegations stressed the importance of receiving from the Secretariat statistics about substantiated allegations. It was also suggested that there was a need to ensure that there be no abuse of the process of waiver of privileges and immunities. A call was also made for the implementation of the amended draft model Memorandum of Understanding (Res. 61/291), as well as for greater coordination with the work of the Special Committee on Peacekeeping Operations. All speakers expressed gratitude and support for the Organization’s efforts in the pre-deployment training of peacekeeping personnel.

Several delegations expressed support for the proposal for a negotiation of an international convention requiring parties to exercise criminal jurisdiction over nationals who participate in United Nations operations abroad. Some expressed a preference for including military contingents within the scope of such instrument, while other suggestions included also covering civil liability for economic damage and loss. Other delegations were of the view that it was still too premature to discuss a draft convention.

Action taken by the Sixth Committee

At the 18th meeting, on 28 October 2009, the representative of Greece, on behalf of the Bureau, introduced a draft resolution entitled “Criminal accountability of United Nations officials and experts on mission” (A/C.6/64/L.8). At the 25th meeting, on 12 November, the Committee adopted draft resolution A/C.6/64/L.8 without a vote.

The draft resolution, which continued to build upon General Assembly resolutions 62/63 of 6 December 2007 and 63/119 of 11 December 2008, included a number of elements aimed at enhancing international cooperation to ensure the criminal accountability of United Nations officials and experts on mission.

This agenda item was subsequently considered at the sixty-fifth session (2010)