By William Durch – In the wake of rapid growth in UN peace operations, 2003–04, came reports of serious criminal abuse by peacekeepers, starting with the UN mission to the Democratic Republic of Congo but soon emerging in other operations as well. The UN has taken significant steps since then to prevent, investigate, and punish misconduct. These measures may be having some effect: Reported cases of sexual abuse by peacekeepers—the source of early headlines—have declined from over 300 in 2006 to 83 in 2008, but 100 cases of other serious misconduct consistently arise every year. Although troop-contributing countries now pledge to abide by UN codes of conduct while their troops are on mission, and they promise to punish transgressors, few offer feedback on the disposition of cases, and the UN’s penalties for other mission personnel remain limited to job loss or fines. Personnel seconded by governments, such as police, who have the status of UN “experts on mission,” receive plane tickets home and generally face little prospect of punishment for actions often considered felonies in their home state.
The UN considers all police personnel in its operations to be under the jurisdiction of their “sending state,” whether or not that state’s laws reach overseas. The mission host state could claim criminal jurisdiction, and, if its justice system were up to international standards (unlikely in a state that requires a UN peace operation), the Secretary-General might waive the functional immunity that protects all UN staff and experts on mission. Tens of thousands of civilians and police deploy in UN operations and thus fall into this legal ambiguity. Such lack of criminal accountability poses a problem—of equity, morality, hypocrisy, injustice, or just bad example—and the UN must address it.
The new Stimson report, Improving Criminal Accountability in United Nations Peace Operations, proposes a two-step solution to this problem, for non-military UN mission personnel.
Step one would give an accused individual’s state of nationality the opportunity to prosecute, if its laws have extraterritorial reach, its criminal justice system meets international human rights standards, and it has agreed in writing to prosecute well-founded allegations of criminal behavior.
If that state fails to meet these conditions, step two would shift responsibility to the mission host state, working in close collaboration with the United Nations to bring its criminal justice system up to international standards for the purpose of dealing with UN personnel. This collaborative arrangement should be stipulated in the mission mandate and reinforced by the UN’s Status of Mission Agreement with the host state. The UN would need to be prepared to function as lead partner in the administration of criminal justice for mission personnel. The partnership would work most effectively by drawing on the widely-vetted model codes for criminal law and procedure produced by the joint efforts of the Irish Centre for Human Rights and the US Institute of Peace, in collaboration with the Office of the UN High Commissioner for Human Rights and the UN Office on Drugs and Crime. The model codes could also serve as consensus baselines for international planning, pre-deployment training, assessment of host state criminal justice capacity, negotiation of the Status of Mission Agreement, and modifications to host state laws and procedures to meet requisite international standards.
The collaborative justice work should be closely coordinated with the rule of law capacity building elements of the UN mission and with donors and other international agencies and programs that fund the reconstruction of criminal justice systems in post-conflict environments.
A UN criminal justice support structure would be needed at Headquarters and in the field, where a new “Civil Provost” would be the principal point of contact with the host state’s criminal justice system for purposes of collaborative criminal justice. Using preliminary investigative reports, the provost would decide whether reported misconduct warrants full investigation and prosecution as a serious criminal offense and if so, whether to repatriate or prosecute in partnership with the host state. The provost would, in other words, sit as a filter in the stream of conduct reports that now flow directly to the Head of Mission for dismissal or disposition by Headquarters. This proposal would radically change how the United Nations processes alleged criminal behavior in the field. It is, however, necessary if the United Nations ever hopes to move at the “speed of crime.”
The proposed collaborative system would respect international legal standards, with mechanisms to ensure accountability and independent oversight of the civil provost, broad and high-level input into development of policy and procedure, professional legal counsel for the accused at the UN’s expense, and the right of appeal, which would be administered in the host state so that local parties may see justice done. Sentences would be carried out under contract with qualified state of nationality or with third states (building on precedents from UN war crimes tribunals).
The proposed system would modestly expand the cost of UN peacekeeping, but the monetary cost should be weighed against the benefits it could bring to the UN, the people whom UN peace operations are mandated to protect, and the justice systems of mission host states whose effectiveness is crucial to rebuilding the rule of law.