RevistaOn Diálogos the criminalityde Saberes On the criminality accountability ISSNaccountability 0124-0021 * Julio-Diciembreof un officials of un officials de 2010 Págs. 149-168 Camilo A. Enciso Vanegas** [email protected]

Resumen The officials of said organization have a green light to impunity, due to the lack of a global Este ensayo plantea la problemática derivada criminal law system that may judge them for de no contar con un sistema penal que busque crimes committed during the term of exercise sancionar a los funcionarios o agentes de la of their position. Organización de las Naciones Unidas que abusen de su posición o influencia, para Examples of this are (i) the massive sex- obtener privilegios o cualquier tipo de ventaja ual abuse of women in Congo by UN social, política o económica. Peacekeepers, or (ii) the deals with the Iraqi government related to the Oil for Food Los funcionarios de dicha organización cuen- Program, through which several officials tan con una vía libre a la impunidad debido enriched themselves. a la falta de un sistema penal mundial que los juzgue por los crímenes cometidos en Finally, the paper argues in favor of the ejercicio de su cargo. creation of a new criminal law system for officials or agents of the , and Ejemplos de esto son (i) la violación masiva It suggest some preliminary ideas of how to de mujeres en el Congo por parte de los reach that goal. Colaborador Internacional Cascos Azules, o (ii) los negocios de los cuales se lucraron numerosos funcionarios de 149 la entidad en desarrollo de acuerdos ilegales Palabras clave con el gobierno de Irak, relacionados con Naciones Unidas, Oficials, Delincuencia el acuerdo de Petróleo por Comida pactado de Cuello Blanco, Corrupción, Corte con dicho país. Penal Internacional, Governanza Global, Finalmente, se argumenta a favor de la nece- Excepcionalismo, Petróleo por Comida, sidad de crear un nuevo sistema penal para Competencia, Cooperación, Republicanismo, los funcionarios o agentes de las Naciones Derecho Penal, Coautoría y Participación, Unidas, y se sugieren algunas ideas prelimin- Estado de Derecho, Abuso de la Posición ares sobre cómo alcanzar dicha meta. Oficial.

Abstract – Master´s Thesis Key words This work introduces the problems derived United Nations, Officials, White Collar from the inexistence of a criminal law system Crime, Corruption, International Criminal aimed at punishing the officials and agents of Court, Scandal, Liability, Global Governance, the United Nations Organization, that abuse Exceptionalism, Oil for Food, Competence, their position or influence, in order to obtain Cooperation, Republicanism, Criminal Law, privileges or any type of social, political or Aiding and Abetting, Rule of Law, Color of economic advantage. Office.

Fecha de recepción del artículo: Septiembre 6 de 2010 Fecha de aceptación del artículo: Octubre 5 de 2010 * This article is product of the research of the author at Colombia university, and is based on the Master Thesis "On the criminality accountability of un officials * Master of Laws (LL.M.), Columbia Law School. Camilo A. Enciso Introduction Fourth, I will try to make the case for the Vanegas need of counting with criminal accountability The expanding role and growing importance institutions at the international level with the of the United Nations poses the need of capacity and competence to hold accountable creating norms, mechanisms and institutions, UN officials involved in corruption scandals. designed to hold UN officials criminally I also elaborate on some of the crimes that I accountable for committing or aiding and believe should be punished. abetting white collar crimes. Lastly, I will mention some ideas of institu- The current system of diplomatic immuni- ties, added to the difficulty, and many times, tional design that might be useful as a means impossibility, for domestic courts, to try UN to achieve the construction of a system of officials, for that type of crimes constitutes an criminal accountability of UN officials. unjustified status quo that fosters and tolerates corrupt practices within the UN system. 1. The Problem The victims of UN corruption are the con- 1.1 General Remarks stituents of a global public sphere, namely Corruption is generally viewed as one of the (i) global citizens and UN member states, on most common and serious crimes by citizens the one hand, and (ii) the citizens and states worldwide and by state governments.1 In 2004 deemed to benefit from UN activities and the World Bank estimated that more than funding. $1 trillion –the equivalent to 3% of gross The preservation of that status quo severely world product– is paid in bribes every year.2 undermines the credibility and legitimacy Corruption has been defined by the World of the UN. In many cases it jeopardizes the Bank as the abuse of public office for private Colaborador Internacional possibility of achieving peace and security in gain.3 In furtherance of the fight against 150 areas of intervention. Also, it puts at risk the corruption, Transparency International pre- feasibility of successfully achieving the goals pares annual reports whereby respondents pursued by myriad of UN activities. give their view on the levels of corruption in nation-states around the globe.4 Only This problem is even greater, if we consider recently, however, a real concern with regard that the most egregious corruption episodes to the grave impact of corruption within involving UN officials have taken place in the context of the United Nations (UN) has countries and regions with huge humanitarian started to grow. catastrophes, such as Iraq, Kosovo, Darfur, and Rwanda. An extremely naïve perception that prevailed during years assumed that UN officials were Below I aim to show, in the first place, the seriousness and extension of the problem of white collar criminality by UN officials, 1 See Conclusions of the meeting of the G8 Foreign and will argue for the need of criminal ac- Ministers’ Meeting. Miyazaki, Japan, 13 July, 2000. countability as a means to combat and punish “We therefore call for the adoption of the United corruption. Nations Transnational Organized Crime Convention and Related Protocols by the end of this year. Second, I will argue that the main victims Corruption also undermines democratic institutions of these abuses are the abovementioned and accountability, economic development and international cooperation. We call for the ratification constituents. and effective implementation of the OECD Anti- Third, I will assert that preserving the current Bribery Convention”. 2 status quo is a mistake, and that reform pro- Bhargava, Vinay. Curing the Cancer of Corruption. In: Global Issues for Global Citizens. Chapter 18, posals aimed at fostering criminal account- 341-370, 343. ability by member states under traditional 3 Id. at 341. jurisdictional norms does not contribute to 4 2009 Global Corruption Barometer, Transparency solve the problem. International. 2. www.transparency.org On the immune to the temptation of corruption. That At most, the UN imposes a duty on states to criminality perception has been progressively dismantled fight against corruption and adjudicate cor- accountability during the past two decades. Egregious cases, ruption cases, but that doesn’t seem to be a of un officials such as the oil-for-food program, just to men- feasible solution. tion one, triggered a strong alarm about this type of corruption. However, the measures The lack of teeth of the UN to fight cor- undertaken by the UN in reaction to those ruption within its own personnel is a major cases seem insufficient, when compared problem. As it also occurs with UN peace- to the gravity of the conducts and to the keepers accused of sexual exploitation and 7 extent of the problem. It is my contention harassment , the UN lacks of legal authority that criminal accountability is needed in that to prosecute wrongdoers in corruption cases. type of cases. The best it can do is impose administrative or disciplinary sanctions, and repatriate the UN officials’ corruption is particularly serious wrongdoers to the countries of origin, with given (a) the importance of the mission of the the hope that they will be prosecuted by a UN to achieve peace, international security local court, which is almost never the case.8 and human development, (b) the universal trust that states and global-citizens deposit on Below I will exemplify the gravity of the it, (c) the huge impact that its action has over problem by providing an oversight to the countries with harsh conditions of violence General Reports of the Office of Internal or social backslash, and (d) the direct effect Oversight Services of the UN, and by pre- that it has as a combustible of domestic senting a general picture of corruption of corruption, whereby the revenues of corrup- UN officials in the context of the interven- 9 tion are thereafter monopolized by corrupt tion in Iraq. Other cases left unaddressed here, among many others, are misconduct government officials, their family members or Colaborador Internacional 10 cronies, or brokers and middlemen.5 of UN official in Kosovo, South Lebanon , 151 The General Assembly, aware of the need 7 of preventing and fighting corruption at Schaeffer, Brett. Critical Reforms Required for U.N. Peacekeeping. September 8, 2009. P. 1. http://www. all levels, in the 2005 World Summit Outcome heritage.org/Research/Reports/2009/Critical- Document, resolved to: Reforms-Required-for-UN-Peacekeeping 8 Murphy, Ray (2006) ‘An Assessment of UN Efforts “24. (c) To make the fight against corruption to Address Sexual Misconduct by Peacekeeping a priority at all levels and welcome all actions Personnel’, International Peacekeeping, 13: 531-546, taken in this regard at the national and 532. international levels, including the adoption 9 Generalized misconduct also occurred in the UN of policies that emphasize accountability, intervention in Congo. The UN Office of Internal transparent public sector management and Oversight Services (OIOS) played a vital role in corporate responsibility and accountability, the investigation for accusations of misconduct including efforts to return assets transfe- against UN officials. Its report centered on an rred through corruption, consistent with extended behavior of sexual crimes committed by the United Nations Convention against UN peacekeepers and civilians, in detriment of the Corruption. We urge all States that have not persons they were deemed to protect. In May 2005 done so to consider signing, ratifying and it was reported that 152 peacekeeping personnel implementing the Convention;”6 and 5 UN staff members had been summarily dismissed. Despite those actions, a widespread The Convention itself, however, is insuffi- perception prevails in the sense that peacekeeping cient to address the need of punishment of personnel crimes remains in impunity (…) It is very important that such conducts are not left UN officials involved in conducts typically criminally unaddressed, particularly as they are considered to be criminal in modern states. unintended, yet almost inevitable, consequences of UN peacekeeping operations. This is also the case for corruption involving UN officials. Bhargava, 5 Bhargava, Vinay. Supra, 343. Vinay. Id. at 352. 6 A/60/L.1. September 15, 2005. World Summit 10 Murphy, Ray (2006). Supra, 543. (Asserting that Outcome. P.7. in September 2005 the UN announced “it would Camilo A. Enciso Somalia and Darfur, where the contingents After several inquiries and similar investiga- Vanegas also had a role in corrupt practices. tions, in 2008 the head of OIOS, Inga-Britt Ahlenius said: In this section I will not elaborate on the specific mode of the corruption-related-crimes “We can say that we found mismanagement committed by UN officials. For now, it should and fraud and corruption to an extent we 13 be enough to say that those crimes involved didn’t really expect.” activities defined by criminal legislations In 2009, the annual Report of OIOS por- around the globe as (i) abuse of color of trayed the case of a fraudulent scheme aimed office (traffic of influences or undue abuse at misappropriating UN fund originally al- of official position), (ii) money laundering, located for a humanitarian project. (iii) illicit enrichment, (iv) bribery, (v) scheme to defraud, and even (vi) insider trading, by “The former OIOS Procurement Task Force (PTF-R009/08) substantiated claims extra-neus agents. that a staff member participated in a scheme In section V I elaborate further on some to defraud the United Nations and embezzle funds of the United Nations Development specific crimes for which I think UN officials Fund for Women. The funds had been should be held accountable. I also elaborate allocated for a humanitarian project aimed there on some important distinctions that at assisting the people of Iraq. The evidence must be made with regard to (a) the specific showed that the fraudulent scheme was role displayed by UN officials in the crimes achieved by steering $350,000 allocated which they allegedly commit, and (b) the mens for the project to a preferred vendor and rea element with which they ought to act with subsequently assigning a substantial part of regard to the specific crimes above mentioned, this amount to the personal use of the staff member. The matter is pending outcome of all of which shall be taken into account in 14 Colaborador Internacional the internal disciplinary process.” determining their criminal liability and the 152 gravity of their conduct. That same year the Report emphasized the need of acting steady fast in the recovery of 1.2 General Reports of the Office almost $15,000,000 of over costs that had of Internal Oversight Services been paid to two contractors as of 2005. As late as 2009 those funds had not been The Office of Internal Oversight Services recovered. (OIOS) of the UN and the defunct UN Procurement Task Force unmasked some “6. In its review of the supply of rations to the of the most egregious cases of fraud, mis- United Nations Transitional Administration management, and corruption by UN officials. in East Timor/United Nations Mission of An OIOS audit concluded that in 2005 of Support in East Timor (AP2005/682/06, issued in November 2005), OIOS recom- $1 billion in Department of Peacekeeping mended that the Procurement Division, Operations (DPKO) procurement contracts in conjunction with the Office of Legal approximately “$265 million was subject to Affairs, take action to recover $7.9 mi- waste, fraud, or abuse”.11 llion2 in excess payments to a contractor. Subsequently, as part of its comprehensive In 2007, after reviewing a large number of management review of procurement by the contracts adding up to $1.4 billion dollars, a Department of Peacekeeping Operations different OIOS report concluded that at least (AP2005/600/20, issued in January 2006), 40% of them were tainted by corruption.12 OIOS recommended that the Department address accountability for the $7.3 million overpayment for transportation costs. (…)

replace the Ukraine contingent part of the UN force in South Lebanon due to ‘significant financial 13 Schaeffer, Brett. Supra, 5. misconduct’.) 14 OIOS, A/64/326(Part I) (24 Aug 2009) http:// 11 Schaeffer, Brett. Supra, 4. www.un.org/Depts/oios/pages/annual_ 12 Schaeffer, Brett. Supra, 4. reports.html On the Delays in addressing the issue may result in UN officials. Vinay Barghava summarizes the criminality further losses.”15 facts of the oil-for-food scandal as follows: accountability of un officials Further, in the General Report of OIOS of “In 1996, Iraq agreed to the UN-Supervised 2010, the following conclusion was made: Oil-for-Food Programme, which allowed the Iraqi government to sell oil as long as it “56. In UNOCI, OIOS investigated a used the revenue to buy humanitarian goods report of fraudulent claims for reimburse- for its citizens. When the program ended ment of travel expenses by various United following the U.S.-led invation in 2003, over Nations officials. It was further reported $64 billion worth oil had been sold, of which that the budget allotted to official travel $39 billion had been used to purchase food. had been overspent for the previous five However, reports started surfacing that the years (…) The Advisory Committee on Iraqi government had been imposing sur- Administrative and Budgetary Questions charges on the oil and collecting kickbacks expressed concern about the high level of from companies supplying the humanitarian travel expenditure. OIOS found deficiencies goods. A U.N. investigation in 2005 found in the reimbursement process for the travel that $.1.8 billion in illicit payments had been allotment resulting in over expenditures for diverted from the program and that much years 2004 to 2007. For example, the initial of the purchased food was unfit for human budget allocation for fiscal year 2006/07 was consumption. More that 2,200 companies set at $256,000; however, the total expendi- 16 were involves (figure 18.2). Illicit kickbacks ture amounted to $2,033,000.” came from companies and individuals from Aside from the importance of having auditing 66 different countries, and illicit surcharges mechanisms that aid to control the budget were paid by companies from around 40 17 and expenditures of UN officials or missions, countries.” and of imposing disciplinary sanctions for Further, an Independent Inquiry Committee,

mismanagement, it is apparent from the con- headed by Paul Volcker, former chairman of Colaborador Internacional clusions of OIOS’ Reports that something the Federal Reserve Bank of the United States, beyond bad management have taken place prepared a report on the abuses committed 153 in several occasions. For example, spending during the implementation of the oil-for-food $2,033,000 when the allocated funds for that program.18 The Committee was created by expenditure were $256,000, seems criminal on initiative of UN Secretary General Kofi its face. An over cost of $1,777,000 is simply Annan. It was endorsed afterwards by the too much, considering that the resources UN Security Council by means of Resolution spent were almost eight times the resources 1538, 2004.19 The Committee counted with allocated. 17 Bhargava, Vinay. Supra, 343. Even though OIOS audits did not necessarily 18 http://www.britannica.com/bps/ picture criminal behavior but also pictured additionalcontent/18/23307545/THE- poor and/or negligent management, an ACCUSATIONS-AGAINST-THE-OIL-FOR- important number of reported anomalies FOOD-PROGRAM-THE-VOLCKER-REPORTS involved fraudulent, deceptive or abusive May 11, 2010. 19 conducts, worthy of criminal punishment. SC/1538, 2004. “The Security Council, Expressing the desire to see a full and fair investigation of efforts by the former Government of Iraq, Iraq including through bribery, kickbacks, surcharges on The Iraq oil-for-food scandal is probably the best oil sales, and illicit payments in regard to purchases of humanitarian goods, to evade the provisions well known scandal of corruption implicating of resolution 661 (1990) of 6 August 1990 and subsequent relevant resolutions, Concerned by public news reports and commentaries that 15 OIOS, A/64/326(Part I)/Add.1 (26 Aug 2009) have called into question the administration and http://www.un.org/Depts/oios/pages/annual_ management of the Oil-for-food Programme reports.html (hereinafter the Programme) established pursuant 16 OIOS, A/64/326(Part II) (23 Feb 2010) http:// to resolution 986 (1995) of 14 April 1995 and www.un.org/Depts/oios/pages/annual_reports. subsequent relevant resolutions, including html allegations of fraud and corruption, Affirming Camilo A. Enciso over 60 permanent staff members and its Vanegas estimated functioning cost in furtherance of all the investigation reaches $30,000,000!20

The Committee concluded that Iraq benefited from a scheme whereby a surcharge was collected from each oil barrel sold. The sur- charge was, of course, illegal. By means of an elaborate scheme, revenue collected from the surcharges would be finally allocated to the Iraqi central bank, to Iraqi officials, foreign officials, individuals and contractors. Further, the Committee concluded that Iraq had most prominently benefitted from kickbacks paid Chart 2. Source: Volcker Report23 by contractors selected to provide humanitar- ian aid and food. The Committee adds that I will not elaborate further on the details of Iraq received around 1.5 billion from those the fraudulent scheme here. It is explained in kickbacks.21 depth in the Volcker Report. The scheme to defraud the oil-for-food pro- Against all odds, some high UN officials and gram worked as shown in the charts below. businessmen involved in the oil-for food scandal were charged and/or tried by US officials for their criminal activity.24 United States’ courts were competent to try those cases because

Colaborador Internacional the defendants had used bank accounts in the US to receive revenues of their activi- 154 ties. Furthermore, the over broad and highly criticized mail fraud statute25 served as a fish net to indict the defendants for using (e)mails within US soil in furtherance of schemes to defraud. Chart 1. Source: Volcker Report22 Three cases are particularly noteworthy.

that any illicit activity by United Nations officials, Alexander Yakovlev personnel and agents, as well as contractors, including entities that have entered into contracts Yakovlev, a Russian citizen, was the first UN under the Programme, is unacceptable (…) official to be convicted for crimes related to Affirming the letter of its President of 31 March the oil-for-food scandal. 2004 welcoming the Secretary-General’s decision to create an independent high-level inquiry to After the release of the conclusions of investigate the administration and management the Volcker report, waived of the Programme and taking note of the details relating to its organization and terms of reference, Yakovlev’s immunity and he was tried by a 1. Welcomes the appointment of the independent US court. According to the Volcker report, high-level inquiry (…)” 20 http://www.iic-offp.org/about.htm#6.%20 How%20many%20people%20work%20in%20 23 Id. the%20IIC 24 http://www.msnbc.msn.com/id/10741998/ 21 Independent Inquiry Committee into the United May 11, 2010, and http://www.washingtonpost. Nations Oil-For-Food Programme, Report on com/wp-dyn/content/article/2007/01/16/ Programme Manipulation, Chapter One, Summary AR2007011600706.html May 11, 2010. of Report on Programme Manipulation. (Volcker 25 Enciso Vanegas, Camilo Alberto. Burn! Chopping Report). Down the Inquisitor’s Stake, Arguments against the 22 Id. Mail Fraud Statute. On the Yakovlev had tried to bribe Societe Generale a Chipriot court will prosecute Mr. Sevan for criminality de Surveillance S.A., in connection with an his role in the oil-for-food program. accountability oil inspection contract under the oil-for-food of un officials program.26 The story does not end here, however. I will come back to Mr. Sevan in Section 4 below. The Committee also came across evidence proving that he had received at least $950,000 Tongsun in kickbacks from corporations that had been South Korean businessman Tongsu Park was selected as contractors in transactions adding arrested in Houston, United States, in 2006. 27 up to $79,000,000. Yakovlev was accused He had been indicted for receiving bribes of wire fraud and money laundering for ac- from Iraq in the oil-for-food program. In July cepting approximately $1,000,000 in bribes he was convicted on conspiracy charges. He from UN contractors. He pleaded guilty in was the first person convicted in relation to 28 2005. the oil-for-food scandal.32

Benon V. Sevan Mr. Park admitted taking more than $2,500,000 As of January 16, 2007, Benon V. Sevan, from Iraq government to bribe senior UN of- Chipriot national, was indicted by a Manhattan ficials. His objective was to persuade them to prosecutor for taking $160,000 in bribes, ease economic sanctions against Iraq after the 33 abusing of his position as head of the oil-for- Gulf War. His trial also unveiled a network food program.29 Mr. Sevan intended to block of businessmen and politicians that aimed to efforts to review and investigate corruption ease UN sanction against Iraq after Kuwait’s accusations under the program. He allegedly invasion, in 1990. The efforts of that group instructed his staff that complaints about apparently led to the oil-for-food program. Colaborador Internacional illegal payoffs should be filed before the Mr. Park “funneled hundreds of thousands 30 whistleblower’s country. in cash from the South Korean government 155 However, Mr. Sevan was never tried in court. to influential members of Congress. After He fled to his native Cyprus, and never faced the case broke, Park fled to . the charges raised against him by a US pros- But after bribery charges against him were ecutor.31 Obvious reasons make apparent that dropped, he agreed to return to the United he will not stand trial in the future for his con- States and testify before Congress about his 34 duct in the oil-for-food program. Of course, activities.” Mr. Sevan’s has a right to a presumption of Mr. Park’s conviction is just one of the many innocence, and I do not make any claim on his cases of corruption involving corporate innocence or guilt. Yet it seems plainly wrong managers.35 However, the scope of this paper that Mr. Sevan can turn away and ignore the serious accusations against him, by flying back home. Likewise, it doesn’t seem probable that 32 http://www.washingtonpost.com/wp-dyn/ content/article/2007/02/22/AR2007022201650. html?sub=AR 33 26 http://www.foxnews.com/story/0,2933,165164,00. Id. html 34 Id. 27 Id. 35 Regardless of its accuracy, Wikipedia summarizes 28 Id. some of the major corruption cases of corporate managers in relation to the oil-for-food program, 29 http://www.washingtonpost.com/wp-dyn/ as follows: “On April 1, 2010, Daimler AG plead content/article/2007/01/16/AR2007011600706. guilty to bribery charges brought by the US Justice html May 11, 2010. Department and the U.S. Securities and Exchange 30 http://www.timesonline.co.uk/tol/news/politics/ Commission and will pay $185 million (US) as article583823.ece May 11, 2010. settlement, but remains subject to a two-year 31 http://www.heritage.org/Research/ deferred prosecution agreement and oversight by Reports/2009/02/Oil-for-Food-Revisited-The- an independent monitor. The German automaker UN-Should-Not-Pay-Benon-Sevans-Legal-Fees of Mercedes-Benz vehicles was accused of Camilo A. Enciso does not reach criminal liability of contrac- affairs of the country, and in a certain way Vanegas tors or outsiders. That topic could be matter legitimized what has been a common practice of a later essay. Mr. Park’s case, however, is for centuries, but aggravating it, namely cor- relevant to show some of the problems aris- ruption. The Iraqi Deputy Prime Minister ing from corruption of UN officials and the Barham Salih stated: extent of corruption within the UN. “Uncontrolled levels of corruption in Iraq After reviewing the cases mentioned above, it are fuelling the country’s sectarian conflict is relevant to ask what would have happened and creating a political economy of violence. The political economy of this conflict is had US prosecutors and courts not exercised very much rooted in the alarming levels of their jurisdiction against the defendants. corruption we are dealing with. A lot of the Furthermore, what would have happened if money from many sectors of the economy no territoriality nexus with a country with a is diverted to sustain the violence.”36 strong judicial system had been present in Unfortunately, the lack of legitimacy of those cases? Moreover, what would have hap- the UN after the oil-for-food program makes pened if the individuals charged had fled the it very difficult for the UN to advocate for country filing the indictment, as it occurred transparency in that context, without looking in Mr. Sevan’s case? I believe that the most hypocritical. reasonable guess is to say that nothing would have happened. The persons charged would 1.3 Additional Funds, New be out of the reach of justice. Responsibilities, Greater Risks One last issue is worth mentioning. The cor- The foregoing cases of corruption by UN of- ruption in Iraq influenced also the internal ficials are probably only the tip of the iceberg

Colaborador Internacional of a major and increasing problem. The gen- violating the terms of the United Nations’ Oil for eral impunity surrounding those cases, as well 156 Food Program with Iraq by including kickbacks 10 percent of the contract values to the Iraqi as many others, is a huge incentive to engage government. The SEC said the company earned in additional illegal activities, in a world where more than $4 million from the sale of vehicles UN action is increasingly necessary. and spare parts. The SEC case was sparked in 2004 after David Bazzetta, a former auditor at For example, in between 1945 and 1990, then DaimlerChrysler Corp, filed a whistle-blower despite myriad of conflicts that evidently put complaint after he was fired for raising questions about bank accounts controlled by Mercedes-Benz at risk international peace and security, the 37 units in South America. Bazzetta alleged that he UN only established 18 peace operations. learned in a July 2001 corporate audit executive In contrast, after the end of the cold war, committee meeting in Stuttgart that business units the UN was resumed a broad range of ac- “continued to maintain secret bank accounts to tivities. In the 2005 World Summit Outcome bribe foreign government officials,” though the company knew the practice violated U.S. laws. The document, the General Assembly stated investigation for the case also revealed that Daimler that the mobilization of financial resources made some $56 million in bribes related to more for development of poor countries or with than 200 transactions in 22 countries that earned economies in transition was central to a global the company $1.9 billion in revenue and at least $91.4 million in illegal profits. “Using offshore partnership for development, in furtherance 38 bank accounts, third-party agents and deceptive of the Millennium Development Goals. In pricing practices, these companies [Daimler AG the same document, the GA assured: and its subsidiaries] saw foreign bribery as a way of doing business,” said Mythili Raman, a principal deputy in the Justice Department’s criminal division. “It is no exaggeration to describe corruption and 36 Cited by Looney, Robert E., Reconstruction and bribe-paying at Daimler as a standard business Peacebuilding Under Extreme Adversity: The practice,” Robert Khuzami, director of the SEC’s Problem of Pervasive Corruption in Iraq. P. 1. enforcement division, said in a statement. Judge 37 Richard J. Leon of United States District Court Schaeffer, Brett. Supra, 2. in Washington, approved the plea agreement and 38 A/60/L.1. September 15, 2005. 2005 World Summit settlement, calling it a “just resolution.” Outcome. P.5-6. On the “a) We are encouraged by recent com- tined to benefit those societies and individuals criminality mitments to substantial increases in at risk. A strong message of zero-tolerance accountability official development assistance and the against UN officials engaged in corruption of un officials Organization for Economic Cooperation schemes should be sent as soon as possible. and Development estimate that official development assistance to all developing According to Brett Schaeffer by the end countries will now increase by around $50 of June 2009 the UN DPKO was directing billion a year by 2010, while recognizing and providing support to sixteen peace- that a substantial increase in such assistance keeping operations and two peace building is required to achieve the internationally 41 agreed goals, including the Millennium operations. The size of those operations is Development Goals, within their respective breathtaking. By 2009 they involved approxi- time frames; b) We welcome the increased mately 93,000 uniformed personnel from 118 resources that will become available as a countries, more than 20,000 volunteers, and result of the establishment of timetables by more that “2,000 military observers, police, many developed countries to achieve the tar- international and local civilians, and UN get of 0.7 per cent of gross national product volunteers are involved in the two political for official development assistance by 2015 or peace building missions.”42 Moreover, and to reach at least 0.5 per cent of gross according to Schaeffer the budget of the national product for official development assistance by 2010 as well as, pursuant to the DPKO from July, 2009 to June, 2010, was Brussels Programme of Action for the least of $7.75 billion! developed countries, 0.15 per cent to 0.20 Summarizing, the responsibilities and re- per cent for the least developed countries by no later than 2010, and urge those developed sources of the UN have grown from countries that have not yet done so to make monitoring cease-fires, demilitarized zones concrete efforts in this regard in accordance and post-conflict security, to much more with their commitments; (…) h) We resolve complex peace operations such as “complex Colaborador Internacional to operationalize the World Solidarity Fund military interventions, civilian police duties, 157 established by the General Assembly and human rights interventions, reconstruc- invite those countries in a position to do tion, overseeing elections, and post-conflict so to make voluntary contributions to the reconstruction.”43 fund;”39 (emphasis added) In addition, the document states: Those interventions create the appropriate ground where a corrupt bureaucracy can “103. We request the Secretary-General to flourish44, and provide almost unlimited funds establish a multi-year standing Peacebuilding that make the dreams of any crony come true, Fund for post-conflict peacebuilding, fun- unless determined action is taken. ded by voluntary contributions and taking due account of existing instruments. The objectives of the Peacebuilding Fund will 2. Victims and the Global Public include ensuring the immediate release of Sphere resources needed to launch peacebuilding activities and the availability of appropriate 2.1 General Remarks financing for recovery.”40 Mark Philip has described public corruption Whereas that huge amount of resources as a triadic relation. Three main actors are provides a magnificent opportunity to aid countries in extreme situations of violence, 41 Schaeffer, Brett. Supra, 3. poverty, transitional justice proceedings, or 42 Id. at 3. analogous situations, it is also provides global 43 Schaeffer, Brett. Supra, 2. cronies with a major opportunity to make 44 Id. at 4. According to Schaeffer: “This stress [of business and defraud funds and projects des- current level of UN activity] has contributed to serious problems of mismanagement, misconduct, poor planning, corruption, sexual abuse by 39 Id. U.N. personnel, unclear mandates, and other 40 Id. at 26. weaknesses.” Camilo A. Enciso involved in the unlawful activity. The first For example, in the Iraq case studied above, Vanegas party is the occupant of the public office; the one of the non intended consequences of second party is the intended (lawful) benefi- UN intervention has been massive and futile ciary of that office; and the third party is the expenditure in infrastructure. That infrastruc- actual beneficiary of the particular exercise ture has become an easy target for rebels and of that office.45 a financial drain for the United States, the UN and the Iraqi government.47 As a con- In the context we are analyzing the first party sequence, rebel groups have benefited from would be the UN official abusing of its office; stealing oil and other hydrocarbon from the the second party would be the contractor, weak infrastructure, thus literally fueling their state agent, or any other third party benefiting illegal activities. Finally, and more importantly, from an unlawful behavior of the UN official; Iraqi citizens have suffered detriment as the and the third party, the victim, would have resources from the oil within their territory a triple nature. Firstly, global citizens that has been used to fill the pockets of corrupt trust in the work and transparency of the officials and not to invest in projects aimed UN, and that rely on its effective work as an at benefiting the life quality of Iraqis. effective mechanism to preserve international peace and stability. Secondly, the immediate The corruption of UN officials has also citizens of the host country or countries paved the road for a pervasive, structural, and supposed to benefit from the role of the extended corruption in Iraq. That situation corrupt official. Thirdly, member states of fosters criminal networks that may become the UN that contribute to the UN system, important actors in the struggle for power, relying on the transparency of its officials, and that, of course, may affect in a negative are also deceived. way the rule of law, international relations, 48 Colaborador Internacional and regional stability. The right to peace of 2.2 Citizens of the host state individuals of Iraq is therefore endangered. 158 The citizens of the host state are stakeholders This is likely to occur also in other settings of UN activity. In many occasion UN inter- in which UN corruption tacitly or explicitly ventions need to be done without express endorses corruption. authorization of the host state. Moreover, it is not possible to ask the citizens of the host 2.3 Global demos state if they do agree with the intervention. In Complex theoretical and philosophical occasions there is no time for that. Imminent debates are currently in vogue with regard risks need to be addressed quickly in order to the existence and nature of a global demos. to prevent humanitarian catastrophes. This is I will not elaborate on this particular issue more likely in an era in which the notion of here. I assume that that global demos exists, and responsibility to protect has gained impor- that it has rights and duties, which it owes tance in the international community.46 to individuals and communities around the globe, and even to individuals that haven’t yet Citizens of the intervened countries have a been born, i.e. ecological duties. That global right to benefit from the funds and projects demos interacts in a global public sphere with allocated and designed from their benefit. sovereign states, international organization Corruption of UN officials obstructs the and even NGOs. exercise of that right, and in many occasions even worsens the actual situation of the persons that UN activity is supposed to help. 47 Looney, Robert E., Reconstruction and Peacebuilding Under Extreme Adversity: The 45 Philip, Mark (2008) ‘Peacebuilding and Corruption’, Problem of Pervasive Corruption in Iraq. P. 1. International Peacekeeping, 15: 3, 310 – 327, 315. 48 Holt, Victoria K. and Boucher, Alix J. (2009) 46 Outcome Document of the 2005 UN summit. ‘Framing the Issue: UN Responses to Corruption http://www.un.org/summit2005/documents. and Criminal Networks in Post-Conflict Settings’, html International Peacekeeping, 16: 1, 20 -32. On the I believe, however, that the global demos has imposing on them appropriate criminal criminality two different facets. The first is the politically sanctions. accountability organized group of nation-states, and the of un officials second is the demos composed by citizens The global demos is thus also a stakeholder of of those states, understood as universal mul- UN activity, and its rights should be protected titude.49 That multitude does not respond to a with the strongest tool that the rule of law 52 centralized source of power nor to any gov- has at its disposal: criminal law. ernment or power structure. That multitude is composed by global citizens. The global 2.4 Member States of the UN demos as a key player of the international Member States are the third type of victim of arena will become increasingly important in corruption by UN officials. The largest part the years to come, if proposals by scholars of the funds of the UN comes from member and politicians such as the creation of a global states of the organization. The constituents parliament move forward.50 of the UN, therefore, have a legitimate ex- pectation that the funds allocated by them I believe that corruption of UN official jeop- to the UN will be used lawfully and for the ardizes the goal of preserving international purposes for which the funds were disbursed. peace and security, and consequently harms One could expect, therefore, that member the rights and interests of the global demos. As states would be the most interested parties in the UN is an almost entirely universal organ, creating an international system of criminal guided by common values accepted by its accountability for UN officials. member states (who act as agents of their own nationals), grave harm to such values by However, this is not necessarily true. UN officials must be punished. One form of Paradoxically, the member states that contrib-

grave harm to the UN values is corruption. ute with more resources to the functioning Colaborador Internacional of the UN are at the same time states with a The delegation and participation models of strong proclivity toward judicial exceptional- 159 51 authority become relevant when analyzing ism. The United States, for example, have UN power and accountability issues. Whereas repeatedly rejected the possibility of having some believe that the UN reports to its mem- US citizens tried by foreign or international ber states under a delegation model, I believe, courts.53 Therefore, it seems apparent that that the UN and its officials are directly several obstacles must be overcome in order accountable to the people affected by their to have the United States support a new actions, under the participation model. system of criminal accountability for UN As not only the immediate victims of cor- officials. This is particularly true, when those ruption cases are affected by them, but also officials are US citizens or residents. the global public sphere composed by global The problem of this is that when US citizens citizens is harmed, I believe that the UN as or residents get involved in corruption cases, visible organ of the global demos should hold the likeliness of a successful prosecution and corrupt officials under its own jurisdiction, adjudication of the case at hand relies almost entirely in the discretion of the United States President and his Attorney General. In sensi- 49 Virno, Paolo. A Grammar of the Multitude. For an Analysis of Contemporary Forms of Life. 2004. tive cases for political actors, contractors or Virno, Paolo. Multitude: Between Innovation and donor of political campaigns, political inter- Negation. 2008. 50 Falk, Richard and Strauss, Andrew. ‘On the Creation of a Global Peoples Assembly: Legitimacy and the 52 Megret, Frederic. ‘The vicarious responsibility of Power of Popular Sovereignty’, Stanford Journal of the United Nations’, pp. 250-267, in Aoi, de Coning International Law, Volume 36, Number 2, 3-31. & Thakur, footnote 2. 51 Aoi, Chiyuki et Al. Unintended Consequences of 53 Goldsmith, Jack. The Terror Presidency: Law And Peacekeeping. Centre for International Political Judgment Inside The Bush Administration, New Studies. University of Pretoria. P. 13. York: W.W. Norton & Company, 2007. Chapter 1. Camilo A. Enciso est may lead to a deadlock where nobody is ticularly true for post-conflict conditions, Vanegas investigated for the unlawful activities. where the breakdown of social and cultural norms, law and order, and socio-economic The important thing is that nation-states infrastructure55, have been severely eroded, have a legitimate expectation that their con- thus allowing international and domestic tribution, and the contribution of all other corruption. states to the UN will be used for legitimate purposes, with transparency and strong ac- The UN General Assembly has repeatedly countability mechanisms. manifested its concern on the issue of do- mestic and international corruption. Pursuant 3. Consequences of Preserving the to the defeat of that cancer, the UN enacted Status Quo the UN Convention Against Corruption, UNCAC, which might be considered the first 3.1 General Remarks anticorruption convention. It aims to pro- mote reforms within states directed to pre- The preservation of the Status Quo regard- vent corruption, criminalize and enforce legal ing criminal conducts by UN officials is norms and decision against persons engaged unacceptable. That Status Quo may be better in criminal conduct, promotes international characterized as a situation that preserves a cooperation in the fight against corruption, vacuum of power that is abused by corrupt and fosters measures aimed at assuring assets agents in their own benefit and at the expense recovery.56 UNCAC, however, does not solve of the global demos, citizens of host states, in any the jurisdictional problems addressed and the international community. in this paper (corruption by UN officials). Vacuum of power generally leads to corrup- It only intends to solve problems related to the transnational asset recovery provision, Colaborador Internacional tion, violence and anarchy. Recalling Plato’s which was a ground breaking develop- Ring of Gyges tale, introduced to the reader 160 ment in the fight against private and public in the voice of Glaucon in The Republic, in corruption.57 an overwhelming number of cases individuals will engage in criminal conducts unless they Other interesting efforts in the fight against are constrained by the fear of punishment, corruption have been made through the or unless their ethical standards stand par- enactment of the OECD Antibribery ticularly high.54 Convention,58 which makes it a crime to offer, promise or give a bribe to a foreign Vacuums of power are very likely to be pres- public official in order to obtain or retain an ent in cases where the UN is deemed to act, international business deal59, and the creation pursuant to peacekeeping/peacebuilding/ of the Financial Action Task Force on Money responsibility to protect interventions, in Laundering, whose purpose is to develop connection with humanitarian catastrophes. and promote national and international poli- As a consequence of the vacuum of power, cies to fight money laundering and terrorist a permissive environment for all types of organizations financing.60 violence and criminality arises. This is par-

54 Plato. The Republic. Chapter 2. “For all men believe 55 in their hearts that injustice is far more profitable to Aoi, Chiyuki et Al. Supra, 2. the individual than justice, and he who argues as I 56 Bhargava, Vinay. Supra, 356. have been supposing, will say that they are right. If 57 Bhargava, Vinay. Supra, 357. you could imagine any one obtaining this power of 58 The OECD Convention on Combating Bribery becoming invisible, and never doing any wrong or of Foreign Public Official in International touching what was another’s, he would be thought Transactions. by the lookers-on to be a most wretched idiot, 59 although they would praise him to one another’s In the United States, the Foreign Corrupt Practices faces, and keep up appearances with one another Act complies a similar purpose. from a fear that they too might suffer injustice.” 60 Bhargava, Vinay. Supra, 357. On the In any case, the preservation of the Status Pharisaic maxim: “It is better that one man criminality Quo proves to be an undesirable state of should die that the whold people should accountability things for preventing corruption by UN of- perish”. For if justice and righteousness of un officials ficials. The Status Quo fosters (a) impunity, perish, human life would no longer have any value in the world.”61 (b) endangers international peace and ag- gravates non intended consequences of UN In addition, disciplinary and administrative interventions in host states, and (c) fosters proceedings can easily fireback against the additional corruption. UN. Above I said that I would retake below the case of Mr. Sevan. Now is the time. 3.2 Impunity According to the Heritage Foundation, Presently, there are only two types of re- Sevan’s lawyers are seeking $880,300 plus sponses against corrupt activities by UN offi- interest from the United Nations for legal cials: First, the imposition of disciplinary and fees incurred by Mr. Sevan in furtherance of administrative sanctions against the involved his defense for his activities as UN official in 62 party; second, the waiver of UN immunity the oil-for-food program. Recently, the United 63 and the prosecution and adjudication by a Nations Administrative Tribunal ordered domestic court against the official. None of the United Nations to pay “all reasonable these alternatives seems to be convenient. legal fees” to Benon Sevan for issues relates On the contrary, I believe that both leaven to the disciplinary he faced before the UN. an open leeway for corruption, as it will be The UN confirmed that the organization explained in a subsection below. would abide by the tribunal’s decision. It’s a huge contradiction that while Mr. Sevan 3.2.1 Insufficiency of disciplinary/ is facing criminal charges before a US court administrative sanctions for his activity as a UN official, at the same Colaborador Internacional It is often contended that the only possible time he is awarded by the UN highest ad- 161 and desirable sanction against UN officials ministrative tribunal with a sum aimed to for corruption cases is the imposition of indemnify him for damages pursuant to his disciplinary and/or administrative sanctions. legal expenses.64 I contend here that if those sanctions are effectively imposed, the overall reputation 61 Kant, Immanuel. The Philosophy of Law. W. Hastie and public image of the person involved tr. 1887. Cited by Kadish, Sanford H. et al. Criminal is harmed, and in some cases a part of the Law and Its Processes, Cases and Materials. Eight misguided or misappropriated assets of the Edition. P. 80. UN are recovered, but further than that 62 http://www.heritage.org/Research/ nothing really happens. Those sanctions are Reports/2009/02/Oil-for-Food-Revisited-The- UN-Should-Not-Pay-Benon-Sevans-Legal-Fees effective from a disciplinary standpoint, but 63 The Administrative Tribunal, composed by seven completely ineffective to deter and punish the members, was created by the General Assembly wrongdoing. The harm done by the official in 1950 to deal with employment related disputed remains unpunished, the credibility of the between UN staff and the organization. UN is destroyed, and impunity triumphs. 64 http://www.heritage.org/Research/ Reports/2009/02/Oil-for-Food-Revisited-The- The Kantian call for justice is thus ignored, UN-Should-Not-Pay-Benon-Sevans-Legal-Fees and harm to other individuals and the society The indignation of right wing scholars for the as a whole takes place and remains without decision of the UN administrative tribunal was expressed as follows: “The U.N.’s decision to pay sanction. Sevan his legal costs is an affront to American taxpayers, who currently give over $5 billion a year “The penal law is a categorical imperative; to the United Nations and deserve accountability and woe to him who creeps through the and respect for the rule of law. For the United serpent-windings of utilitarianism to dis- Nations to even consider paying what could amount cover some advantage that may discharge to nearly $1 million in legal fees is a disgrace and him from the justice of punishment, or even is yet another stain on the reputation of the world from the due measure of it, according to the body.” Camilo A. Enciso 3.2.2 Domestic investigation and All this factors contribute to impede the Vanegas adjudication prosecution and adjudication of criminal charges of corruption against UN officials, Different corruption schemes and scenarios and leaves the door open for additional are possible at the international level. Let us criminal conduct. take a look, as an example, to one of them: UN corruption in states with harsh humani- An additional difficulty that must be men- tarian crises. In those states, the vacuum of tioned in this context, is the lack of legitimacy power and low level of respect for the rule of deriving from unequal sentencing practices law in the host countries of the intervention of different member states. While US courts makes it almost impossible to reasonably could sentence individuals to several decades believe that domestic courts will have the of imprisonment, it is highly probable that capacity, autonomy and interest in prosecut- courts of several other countries could sen- ing UN cronies. tence individuals for exactly the same conduct to only a year or little more than that; not to In spite of decisions of the General Assembly, mention the option that they would have to such as those made in the sixty second and apply to parole or other type of privileges. sixty third sessions, whereby the GA strongly That does not seem fair from any perspec- urged states to undertake in their domestic tive. In that scenario, UN officials accused criminal laws, cooperative investigations of mismanagement or corruption could go against UN officials and experts-on-mission forum shopping, looking for the jurisdiction engaged in criminal activity, effective prosecu- with the most lenient punishment for the tion is not probable.65 crimes committed. That practice must not The reasons for that conclusion are, among be tolerated.

Colaborador Internacional others, (i) lack of interest of domestic pros- ecutors or courts to investigate and adjudicate 3.2.3 Danger to international peace and 162 cases against the persons involved66, (ii) lack security and aggravation of non- of prosecutorial capacity to collect evidence intended consequences against wrongdoers, (iii) lack of awareness The intervention of the UN in countries and knowledge to identify and uncover in conflict is likely to have non intended complex schemes to defraud and perform in- consequences. As countries in conflict are ternational corruption, (iv) high vulnerability highly complex systems, it is logical to expect of domestic courts to bribes and kickbacks in responses to interventions in “a nonlinear furtherance of trials pursued in local courts, fashion.”68 (v) political implications of prosecuting nationals from other countries, that might be One of the non intended consequences is seen as putting at risk the national interest of the exacerbation of corruption, bolstered by the host country, (vi) difficulties deriving from the financial aid provided by the UN.69 The diplomatic immunity and lack of extradition UN can, indirectly and unconsciously end up treaties between countries.67 financing local corrupt lords, and persons and organizations engaged with organized crime, 65 A/64/100. if it doesn’t count with strong management 66 See Furham, Johannes. Legal problems concerning controls over the disbursement and use of the the lack of accountability of UN peacekeeping funds provided, and even worse, if its officials forces. Raizes Juridicas. Curitiba, v.2, n.2 jul./dez. engage in criminal conduct with others aimed 2006. P. 29-42. P. 32 (signaling similar problems at defrauding UN aid. for UN peacekeepers involved in cases of sexual abuse) Moreover, when corruption is used as a 67 Furham, Johannes. Supra, 33. Similar problems arise means to prevent violent disintegration, and in connection with immunity granted in Status of Forces Agreements (SOFAs) for personnel working 68 in peacekeeping operations, involved with sexual Aoi, Chiyuki et Al. Supra, 2. abuse crimes. 69 Aoi, Chiyuki et Al. Supra, 2. On the counts with additional resources disbursed by lacks teeth to impose criminal accountability criminality the UN, in the context of peacebuilding or over officials involved with corruption scan- accountability peacekeeping operations, the whole reform dals, even in the worst cases. of un officials agenda is severely undermined, and it may even become the “crutch” on which corrupt 4.2.4 Fostering of additional corrupt leaders rely to stay on power in an anarchic practices and harm to the environment.70 This situation aggravates if we legitimacy of the UN take into consideration the fact that corrupt Preserving the status quo and tolerating impu- governments lack political legitimacy, fact nity will only serve as an incentive to corrupt that can lead to violence by people frustrated officials to further engage in criminal activity. by the “venality of public officials”71 or by It is a fact that corruption and impunity call organized crime oriented to usurp power. for more corruption. The 2005 World Summit Outcome Document Furthermore, the lack of criminal account- implicitly recognizes the intrinsic relation be- ability of UN officials negatively impacts tween transnational crime and corruption: UN legitimacy.74 Just as corruption scandals “111. We express our grave concern at the in sovereign states parliaments undermine negative effects on development, peace democracy and legitimacy of the state, en- and security and human rights posed by dangering in many occasions the existence of transnational crime, including the smuggling the state itself, at the global level, corruption of and trafficking in human beings, the of UN officials undermines its every day world narcotic drug problem and the illicit expanding role as a new world Leviathan. trade in small arms and light weapons, and at the increasing vulnerability of States to For those who believe that the UN represents

such crime. We reaffirm the need to work the promise of a new world government, Colaborador Internacional collectively to combat transnational crime. legitimacy should be nursed as the most valu- 163 112. We recognize that trafficking in persons able living creature. The UN has repeatedly continues to pose a serious challenge to insisted in its goal of fostering democracy not humanity and requires a concerted interna- only within states, but also at the international tional response. (…) level.75 113. We urge States that have not yet done so to consider becoming parties to the rele- It would therefore be certainly incoherent vant international conventions on organized to say that the goal of achieving democratic crime and corruption and, following their governance does not apply to the organiza- entry into force, for them to implement tion itself, but only to its member states. them effectively, including by incorporating Therefore, a new type of criminal account- provision of those conventions into natio- ability is required against UN officials. Below nal legislation and by strengthening criminal I further elaborate on this issue and draw 72 justice systems.” some initial thoughts on how the construc- All the above has, therefore, a close relation not just with problems of lack of social and economic progress, but particularly, with the 74 creation and preservation of conditions likely See Schaeffer, Brett. Supra, 2. (in the same line of thought, but specifically directed to the need of to undermine key social institutions and po- reform to prevent abuse of peacekeepers in UN litical stability.73Unfortunately, the UN system operations). 75 See Pettit, Philip. Two-dimensional Democracy, 70 Rose-Ackerman, Susan (2008) ‘Corruption and National and International. IILJ Working Paper Government’, International Peacekeeping, 15: 3, 2005/8 (History and Theory of International Law 328-343. Series, www.iilj.org (discussing a consideration of what “democracy should require in the 71 Rose-Ackerman, Susan (2008), Supra, 332. international domain: in the context of international 72 Furhmam. Id. at. 27. organizations and, more generally, cooperation 73 Bhargava, Vinay. Id. at 346. among national governments”) Camilo A. Enciso tion of that type of accountability could be It is my contention that criminal account- Vanegas achieved. ability of UN officials is a necessary means to enhance the rule of law and the checks and 4. Criminal accountability over balances system of the UN. Only through egregious corruption cases criminal accountability, UN officials would have a real deterrent to engage in criminal 4.1 General Remarks conduct, by the fear of investigation and severe criminal punishment. At the same time, In Section 2 I pointed out the growing scope punishment would reinforce the validity of of action of the UN in current world affairs. the UN legal framework.79 That growth signals the construction process of a new global Leviathan, namely the United 4.2 UN Jurisdiction over its own Nations. The question we should ask is officials whether the UN and its officials should have unfettered power, or whether the institutional The UN should ensure the creation of design should intend to control the exercise criminal accountability that would enable of such power under the limits of the rule the organization to prosecute and adjudicate of law. cases of white collar crime. The UN should assume competence over the most egregious The General Assembly stated in the 2005 crimes of its own officials, by promoting World Outcome Summit document: the adjudication of jurisdiction to the ICC “15.We pledge to enhance the relevance, of crimes such as those contemplated in effectiveness, efficiency, accountability and the document of the UN Action Against credibility of the United Nations system. Corruption in Bribery.

Colaborador Internacional This is our shared responsibility and interest.76 (…) Recognizing the need for In that document, the most serious cor- 164 universal adherence and implementation ruption-related offenses are deemed to be: of the rule of law at both the national and bribery, fraud, speed money payments, illicit international levels, we: 134. (a) Reaffirm our political contributions, abuse of power, color commitment to the purposes and principles of office and/or breach of trust, misappro- of the Charter and international law and to priation of public funds, and conflict of inter- an international order based on the rule of est80; to which I would add illicit enrichment, law and international law, which is essential money laundering, and insider trading.81 for peaceful coexistence and cooperation among States;”77 It seems very clear that the General Assembly has recently renewed its vows, in the same line 79 A clarification must be made at this point. of the original Charter of the UN, pursuant Criminologist and criminal lawyers have to the promotion of the rule of law and discussed throughout centuries the issue of the real deterrent effect of criminal laws. Some democracy. assure that criminal laws are useless pursuant to such end, and others assert the contrary. “11. We acknowledge that good gover- Pursuant to this article I assume as a given nance and the rule of law at the national that criminal law does work as a deterrent of and international levels are essential for corrupt behavior of UN officials, and that, sustained economic growth, sustainable moreover, it is necessary not just because development and the eradication of poverty of its deterrence effects, but also because and hunger.”78 punishment is a fair and just response to the abuse of power and of color of office. 80 United Nations Crime Prevention and Criminal Justice Division. United Nations Action against 76 Id. Corruption and Bribery. September 1997. P. 8-11. 77 Id. at. 30. 81 This crime takes place when a public official cannot 78 A/60/L.1. September 15, 2005. World Summit justify the source of any income or asset within its Outcome. P.2. patrimony. On the Pursuant to this proposal, the ICC could en- 5. Institutional Reform of the criminality deavor to prosecute only the most egregious ICC accountability corruption cases, based on wide prosecutorial of un officials discretion. Rationales to define when a case 5.1 Enhancing competence of the is egregious could be the amount of money International Criminal Court involved in the transactions, the scope of the The competence of the ICC could be damage of the unlawful activity, the number enhanced through article 123 of the Rome of persons involved in the conspiracy to Statute. According to such article, after seven commit the crime, and/or the ranking of the years of the entry into force of the statue, officials involved. the Secretary General of the UN must invite member states to a conference whereby 4.3 Complicity amendment proposals to the statute will be The competent prosecutor should have evaluated. the right to indict the alleged wrongdoers as principals or aiders and abettors of the According to article 123, the review of the criminal activities. Further, it would be pos- Rome Statute may comprehend the crimes sible to adopt the United States Model Penal listed under article 5, but is not limited to Code, that finds that aiders and abettors them. Therefore, if the proposal of central- are equally liable for the crimes committed izing criminal accountability of UN officials by the principal as their own. However, the obtained widespread approval by member distinction between the two categories of states, that kind a accountability could be participants would be useful pursuant to included in the Rome Statute. sentencing issues. Schaeffer argues against what I hereby pro-

pose. He asserts that: Colaborador Internacional 4.4 Required mens rea element of specific crimes “The abusers and their governments must 165 face real consequences to create incentives The specific crimes for which the ICC for effective enforcement. The remedy should assume jurisdiction should obvi- should not involve countries yielding ju- ously require a specific mental state. The risdiction over their personnel to the U.N. required mens rea element could be present, or to a non-national judicial authority, but depending on the nature of each crime, it should entail commitments by member when the agent commits the actus reus with states to investigate, try, and punish their purpose, intent, recklessness, or negligence. personnel in cases of misconduct.”83 Of course, however, the nature of the mens Schaeffer contention is naïve. It is simply not rea element present on each occasion would reasonable to believe that member states will have an important impact on the sanction comply with the “obligation” to try and con- to be imposed in each case. But this could vict UN officials within its territory. This is be subject of a different paper. particularly true in countries with non liberal governments or high corruption levels. 4.5 Punishment The punishment system for UN officials I believe, on the contrary, that the ICC could could work in exactly the same way as it does play a significant role, as I have stated, in the for criminals under Section X of the Rome promotion of the rule of law, checks and Statute. No reform would be needed in that balances, and democratic global governance. regard. Therefore, the sanction imposed In a certain way, it can do something similar would be enforced in a member state that to what has been achieved by the ICJ at other previously manifested to the ICC its avail- level: ability to receive convicted parties.82

82 Rome Statute. Article 103 and following. 83 Schaeffer, Brett. Supra, 12. Camilo A. Enciso “134. (f) Recognize the important role of on that type of cases, whereas personnel Vanegas the International Court of Justice, the prin- involved with international humanitarian cipal judicial organ of the United Nations, law violations could focus on those more in adjudicating disputes among States and traditional kind of violations to international the value of its work, call upon States that criminal law. have not yet done so to consider accepting the jurisdiction of the Court in accordance 5.2 Complementary and Subsidiarity with its Statute and consider mans of stren- gthening the Court’s work (…)”84 This is a complex issue that would need to be addressed in a later work. The role of the ICC could be facilitated by a cooperative relationship with OIOS. The highly specialized knowledge that OIOS has Conclusions developed in the process of auditing UN Summarizing, it is apparent that corruption work can prove particularly useful for ICC of UN officials is one of the most serious prosecutors and courts. problems faced by the international commu- “12. Aside from the overall structure of nity today. None of the existing mechanisms the Investigations Division, OIOS has to sanction the officials involved in wrongdo- also begun to further develop its capacity ing of that kind seems strong or effective to conduct specialized investigations. The enough to address the problem and punish primary consideration in this has been the the parties responsible. distinction between the two main types of cases investigated by OIOS, namely The victims of the wrongdoing are citizens sexual exploitation and abuse and financial, of host countries, the global demos, and the economic and administrative cases, and member states of the UN system. Those Colaborador Internacional the need to ensure that qualified teams parties are deprived of the honest services of the corrupt officials, and regional and 166 investigate these cases effectively. The skills and experience required for these types of international peace and security are put at risk. cases vary significantly, and the experience Strong measures should be imposed to deter of OIOS over the years provides a compe- that kind of wrongdoing and to punish the lling argument for concentrating specialized individuals responsible. Criminal liability is investigators within three regional centres: one of the most important types of measures New York; Vienna; and Nairobi. that need to be adopted. 13. In addition, the Investigations Division The most convenient thing to do in further- focused on ensuring that the competencies ance of the creation of criminal accountabil- and knowledge developed by the Procurement ity institutions and mechanisms appropriate Task Force were incorporated into the knowl- to combat corruption, is to enhance the edge base of the Investigations Division. In competency of the ICC. The crimes for particular, the Division conducted a survey which the ICC should assume competency of the Procurement Task Force best practices are the most relevant conducts to which UN 85 and lessons learned.” cronies have resorted in furtherance of their This is important because it would substan- unlawful activities. The punishment imposed tially reduce the cost of creating a new bu- by a sentence of the ICC could be enforced reaucracy of prosecutors and judges deemed in state members of the Rome Statute, as to adjudicate corruption cases. What could provided under Chapter X of the statute. be done is to compartmentalize internally the ICC so personnel with specific knowl- Bibliography edge on international corruption could focus Pettit, Philip. Two-dimensional Democracy, National and International. IILJ Working 84 Id. at. 30. Paper 2005/8 (History and Theory of 85 A/64/326(Part I) (24 Aug 2009), P. 9. International Law Series, www.iilj.org On the Bhargava, Vinay. Curing the Cancer of Goldsmith, Jack. The Terror Presidency: criminality Corruption. In: Global Issues for Global Law And Judgment Inside The Bush accountability Citizens. Chapter 18, 341-370, 343. Administration, New York: W.W. Norton & of un officials Schaeffer, Brett. Critical Reforms Required Company, 2007. Chapter 1. for U.N. Peacekeeping. September 8, 2009. P. 1. http://www.heritage.org/Research/ Plato. The Republic. Chapter 2. Reports/2009/Critical-Reforms-Required- Kant, Immanuel. The Philosophy of Law. W. for-UN-Peacekeeping Hastie tr. 1887. Cited by Kadish, Sanford H. Murphy, Ray (2006) ‘An Assessment of et al. Criminal Law and Its Processes, Cases UN Efforts to Address Sexual Misconduct and Materials. Eight Edition. P. 80. by Peacekeeping Personnel’, International Furham, Johannes. Legal problems concern- Peacekeeping, 13: 531-546, 532. ing the lack of accountability of UN peace- Enciso Vanegas, Camilo Alberto. Burn! keeping forces. Raizes Juridicas. Curitiba, v.2, Chopping Down the Inquisitor’s Stake, n.2 jul./dez. 2006. P. 29-42. P. 32 Arguments against the Mail Fraud Statute. Rose-Ackerman, Susan (2008) ‘Corruption Looney, Robert E., Reconstruction and and Government’, International Peacekeeping, Peacebuilding Under Extreme Adversity: 15: 3, 328-343. The Problem of Pervasive Corruption in http://www.heritage.org/Research/ Iraq. P. 1. Reports/2009/02/Oil-for-Food-Revisited- Philip, Mark (2008) ‘Peacebuilding and The-UN-Should-Not-Pay-Benon-Sevans- Corruption’, International Peacekeeping, 15: Legal-Fees 3, 310 – 327, 315. http://www.foxnews.com/ Outcome Document of the 2005 UN story/0,2933,165164,00.html Colaborador Internacional summit. http://www.timesonline.co.uk/tol/news/ 167 http://www.un.org/summit2005/docu- politics/article583823.ece May 11, 2010. ments.html http://www.heritage.org/Research/ Holt, Victoria K. and Boucher, Alix J. Reports/2009/02/Oil-for-Food-Revisited- (2009) ‘Framing the Issue: UN Responses to The-UN-Should-Not-Pay-Benon-Sevans- Corruption and Criminal Networks in Post- Legal-Fees Conflict Settings’, International Peacekeeping, http://www.washingtonpost.com/ 16: 1, 20 -32. wp-dyn/content/article/2007/02/22/ Virno,Paolo. A Grammar of the Multitude. AR2007022201650.html?sub=AR For an Analysis of Contemporary Forms of http://www.heritage.org/Research/ Life. 2004. Virno, Paolo. Multitude: Between Reports/2009/Critical-Reforms-Required- Innovation and Negation. 2008. for-UN-Peacekeeping (in the same line of Falk, Richard and Strauss, Andrew. ‘On the thought, but specifically directed to the need Creation of a Global Peoples Assembly: of reform to prevent abuse of peacekeepers Legitimacy and the Power of Popular in UN operations). Sovereignty’, Stanford Journal of International http://www.msnbc.msn.com/id/10741998/ Law, Volume 36, Number 2, 3-31. May 11, 2010 Aoi, Chiyuki et Al. Unintended Consequences of Peacekeeping. Centre for International http://www.washingtonpost.com/ Political Studies. University of Pretoria. P. wp-dyn/content/article/2007/01/16/ 13. AR2007011600706.html May 11, 2010. Megret, Frederic. ‘The vicarious responsibility http://www.iic-offp.org/about.htm#6.%20 of the United Nations’, pp. 250-267, in Aoi, How%20many%20people%20work%20 de Coning & Thakur, footnote 2. in%20the%20IIC Camilo A. Enciso http://www.britannica.com/bps/ A/64/100. Vanegas additionalcontent/18/23307545/THE- 2009 Global Corruption Barometer, ACCUSATIONS-AGAINST-THE- Transparency International. 2. www.trans- OIL-FOR-FOOD-PROGRAM-THE- parency.org VOLCKER-REPORTS May 11, 2010. OIOS, A/64/326(Part I) (24 Aug 2009) The OECD Convention on Combating Bribery of Foreign Public Official in OIOS, A/64/326(Part I)/Add.1 (26 Aug International Transactions. 2009) United Nations Crime Prevention and OIOS, A/64/326(Part II) (23 Feb 2010) Criminal Justice Division. United Nations SC/1538 (2004) Action against Corruption and Bribery. September 1997. P. 8-11. Conclusions of the meeting of the G8 Rome Statute (whereby the International Foreign Ministers’ Meeting. Miyazaki, Japan, Criminal Court is created) 13 July, 2000. A/60/L.1. September 15, 2005. World Independent Inquiry Committee into the Summit Outcome. P.2. United Nations Oil-For-Food Programme, A/64/326(Part I) (24 Aug 2009), P. 9. http:// Report on Programme Manipulation, Chapter www.un.org/Depts/oios/pages/annual_re- One, Summary of Report on Programme ports.html Manipulation. (Volcker Report). Colaborador Internacional

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