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On the Criminality Accountability of UN Officials*

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On the Criminality Accountability of UN Officials* 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 United Nations, 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.
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