Wrongdoing of International Civil Servants ― Referral of Cases to National Authorities for Criminal Prosecution

in Max Planck Yearbook of United Nations Law Online
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Wrongdoing of International Civil Servants ― Referral of Cases to National Authorities for Criminal Prosecution

in Max Planck Yearbook of United Nations Law Online

References

1 Article 97 of the United Nations Charter. 2 WHO, article 35: "The Director-General shall appoint the staff of the Se- cretariat in accordance with staff regulations established by the Health As- sembly. The paramount consideration in the employment of the staff shall be to assure that the efficiency, integrity and internationally representative character of the Secretariat shall be maintained at the highest level. Due re- gard shall be paid also to the importance of recruiting the staff on as wide a geographical basis as possible". UNESCO, article VI para. 4: "The Direc- tor-General shall appoint the staff of the Secretariat in accordance with staff regulations to be approved by the General Conference. Subject to the paramount consideration of securing the highest standards of integrity, ef- ficiency and technical competence, appointment to the staff shall be on as wide a geographical basis as possible". UNIDO, article 11 para. 5 (fourth and fifth sentence): "The paramount consideration in the employment of the staff and in determining the conditions of service shall be the necessity of securing the highest standards of efficiency, competence and integrity. Due regard shall be paid to the importance of recruiting staff on a wide and equitable geographical basis". Slightly different the accentuation in the Constitution of the International Labour Organization (ILO), article 9 para. 2: "So far as is possible with due regard to the efficiency of the work of the Office, the Director-General shall select persons of different nation- alities". Noticeable also subsequent para. 3: "A certain number of these persons shall be women".

3 Staff Regulation 7: "In recruiting officials the Secretary-General shall give primary considera- tion to the necessity to obtain staff of the highest standards of competence and integrity. He shall provide, so far as possible, for an equitable distribution of posts among the nationals of Members of the Organization, in particular as re- gards senior posts. Different from similar legal texts of United Nations system organizations the wording of regulation 7 b) has not (yet) been reformulated in terms of gender neutrality." 4 Through A/RES/48/218B of 29 July 1994. 5 For further details see K.T. Paschke, "Innenrevision in den Vereinten Na- tionen - eine neue Erfahrung", Vereinte Nationen 44 (1996), 41 et seq.

6 Doc. ST/SGB/273 (section II.D.). 7 Doc. A/60/6 (Sect. 29). 8 Disregarding the Bretton-Woods-Institutions and IFAD. 9 A/RES/31/192 of 22 December 1976. t� See also article 6 para. 1: "Acting singly or in small groups, the Inspectors shall make on-the-spot-inquiries and investigations, some of which may be without prior notification, as and when they themselves may decide, in any of the services of the organizations." 11 1 For further details see W Miinch, "The Joint Inspection Unit of the United Nations and the Specialized Agencies - The Role and Working Methods of a Comprehensive Oversight Institution in the United Nations System", Max Planck UNYB 2 (1998), 287 et seq. 12 See the series of reports contained in the following documents, Account- ability and Oversight in the United Nations Secretariat, Doc. A/48/420; Accountability, Management, Improvement, and Oversight in the United Nations System, Doc. A/50/503 (Part I and II); More Coherence for En-

hanced Oversight in the United Nations System, Doc. A/53/171;Oversight Lacunae in the United Nations System, Doc. A/60/860. Reports and Notes of the Joint Inspection Unit can be retrieved in English, French and Span- ish versions from the Unit's website available at: . 13 Issued as United Nations Doc. A/56/282. 14 See Doc. A/57/16, paras 356 - 358. 15 A/RES/57/282 of 20 December 2002, Section IV.

16 The General Assembly welcomed the report in its resolution A/RES/59/287 of 13 April 2005 and gave the Secretary-General further guidance on specific elements such as basic investigation training or manda- tory reporting by programme managers of allegations of misconduct. 17 Most recent reports contained in Doc. A/59/5 (Vol. I and II); for further details on the Board of Auditors see E. Kaltenbach, "Die externe Fi- nanzkontrolle der Vereinten Nationen. Zur Arbeit des Rates der Rechnungsprufer", Vereinte Nationen 45 (1997), 168 et seq.

18 At the time Chief of Cabinet of the Secretary-General, now Deputy Secre- tary-General of the United Nations. i9 Doc. SC/8645. z° The Report can be accessed on the Bank's Internet site available at: . 21 For further details see 9th annual report of the Office of Internal Oversight Services contained in Doc. A/58/364, preface and para. 66.

22 In the report on implementation of decisions of the 2005 World Summit outcome the Secretary-General mentions an increase of fraud cases in re- cent years in the Office of the United Nations High Commissioner for Refugees, Doc A/60/568, para. 25(a). z3 Doc. A/59/5 (Vol. I), para. 335. 24 Doc. A/59/5 (Vol. I), para. 343. 25 According to Regulation 2.13 of the Financial Regulations of the United Nations (published in Doc. ST/SGB/2003/7) the Secretary-General shall submit twice a year to the General Assembly for informational purposes a

table summarizing the budgetary requirements of each peace-keeping op- eration for the financial period from 1 July to 30 June, including a break- down of expenditure by major line item and the aggregate total resource requirement. 26 Doc. A/59/736, Annex II. 27 Doc. A/60/846, para. 2. 28 Doc. A/58/364, para. 139. 29 On the 90th day after deposit of the 30th ratification instrument according to article 68. 3o Article 16 para. 1 states: "Each State Party shall adopt such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, the promise, offering or giving to a foreign public official or an official of a public international organization, directly or indi- rectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties, in order to obtain or retain business or other undue advantage in relation to the conduct of international business."

31 Article 16 para. 2 states: "Each State Party shall consider adopting such leg- islative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, the solicitation or acceptance by a foreign public official or an official of a public international organization, directly or indirectly, of an undue advantage, for the official himself or her- self or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties." The full text of the Con- vention can be accessed electronically on the website of the United Nations Office on Drugs and Crime (UNODC) available at: . 32 See Doc. ST/SGB/2003/13. 33 A/RES/60/lof 16 September 2005, para. 161 (d). 34 For further details about the Office see Doc. A/60/568 and Doc. ST/SGB/2005/22.

3s Published in Doc. ST/SGB/2002/1. 36 A compilation of disciplinary measures taken by the Secretary-General and cases of criminal behaviour covering the period 1 January 2004 - 30 June 2005 is published in Doc. A/60/315.

37 Main exception, the United States, here the diplomatic status is only granted at the level of an Assistant Secretary-General and above.

38 The Secretary-General of the United Nations referred 32 cases to national authorities within the period from 1 January 2004 to 30 June 2005, cf. Doc. A/60/315, para. 39.

39 Published in OJEC No 78, 30 March 1995. 40 UNAT judgement No. 436 (Case No. 457, Wiedl against: The Secretary- General of the United Nations, 9 November 1988).

41 For further details F. Sudre, Droit europeen et international des droits de l'homme, 7ieme edition refondue, 2005, paras 23 and 24. 42 A/RES/60/1 of 16 September 2005, paras 157 - 160. Finally established by A/RES/60/251 of 15 March 2006; E. Strauss, "Menschenrechtsschutz im UN System. Zu den Auswirkungen der Reform der Vereinten Nationen

auf das Amt des Hohen Kommissars fur Menschenrechte", Vereinte Natio- nen 54 (2006), 19 et seq. 43 A/RES/60/1, see above, paras 121 et seq.

44 On cases in the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC), see the results of the investigations of the Office of Internal Oversight Services contained in Doc. A/59/661. As to the international press, see Neue Ziiricher Zeitung of 15 February and 13 September 2005. Also noteworthy the Bulletin of the Secretary-General in this respect cf. Doc. ST/SGB/2003/13. 45 The report of the Board of Auditors on United Nations Peace-keeping Operations for the period 1 July 2003 to 30 June 2004 is mentioning the case of siphoning and reselling of gasoline at the United Nations Mission in Sierra Leone (UNAMSIL), Doc. A/59/5 Vol. II, para. 345. In addition a number of cases of fraud obviously happened at UNAMSIL as is evidenced in A/RES/60/279 of 30 June 2006, para. 6, on financing UNAMSIL: "The General Assembly .... Notes with concern the cases of fraud and presump- tive fraud identified by the Mission, and requests the Secretary-General to report to the General Assembly at its sixty-first session on the matters, in- cluding investigations undertaken in this regard and actions taken regard- ing proven cases, in accordance with established procedures, as well as ef- forts to recover any lost funds."

46 S/RES/1687 (2006) of 15 June 2006. Also in this respect see S/RES/1675 (2006) of 28 April 2006, concerning MINURSO and S/RES/1655 (2006) of 31 January 2006 concerning UNIFIL.

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