Guest post: How NOT to dismantle the U.N.

By Mark Leon Goldberg

Hi Passport readers. I write the U.N. and global affairs blog UN Dispatch. The good folks at Passport asked me to respond to Matthew Russell Lee’s selective lobotomy of U.N. Secretariat offices and functions.

Matthew and I have history. Every other week for the past two years we have sparred on BloggingHeads about U.N. issues and foreign policy more generally. I’m sure we’ll take this beef to the airwaves this weekend when our program goes online. For now, though, it’s to the keyboard. And in the interest of brevity, I’ll limit my response to Matthew’s recommendation that the U.N.’s Ethics Office be abolished in favor of a new "Office of Discipline" in order to punish miscreant peacekeepers.

As Passport’s own Elizabeth Dickinson documents so elegantly in the current dead-tree version of Foreign Policy, there are over 100,000 peacekeepers from dozens of countries deployed to 19 missions around the world. The vast majority of peacekeepers conduct themselves professionally, but there have been instances in which peacekeeper impropriety has threatened to undermine the credibility of the U.N. in the eyes of the population that it is meant to serve. This is serious problem-and it is taken seriously at the UN. (See, this 2005 report Prince Zeid Ra’ad Zeid Al-Hussein, the Permanent Representative from Jordan and a former civilian peacekeeper himself.)

There are, however, certain structural problems in dealing with peacekeeper accountability that go beyond setting up or dismantling offices at U.N. headquarters.

For example, when a U.S. Marine is accused of misconduct he or she is subject to Courts Martial under the Uniform Code of Military Justice. The United Nations does not have a similar capacity to pursue criminal investigations against peacekeepers; there are no criminal prosecutors in the Department of Peacekeeping Operations nor are there judges, courts or prisons. Rather, when a peacekeeper is accused of misconduct, the most the U.N. Secretariat can do is send him or her home. It is the responsibility of the troop contributing countries to launch the criminal probes.

This is clearly problematic because it leaves open the possibility that peacekeepers accused of a crime may go unpunished once sent home. However, since 2007 the United Nations has used inserted provisions in Memorandums of Understanding (MOU) between troop contributing countries and the United Nations Department of Peacekeeping Operations that compel the troop contributing country to treat the prosecution of repatriated peacekeepers as it would should a similar offense occur in its territory.

This is a welcome development, but the question of what to do should a troop contributing country violate this provision of the MOU remains. Should the UN summarily reject peacekeepers from countries that do not follow the letter of this MOU? If so, whole peacekeeping missions in places like the Democratic Republic of the Congo, Darfur, and Haiti could threaten to fold should, say, Pakistan fail to prosecute a small handful of its approximately 11,000 blue helmets in the field. I would argue that this is a worse outcome than having a relatively few number of peacekeepers go unpunished.

What to do about civilians accused of misconduct on a peacekeeping mission is an even more difficult nut to crack. Many times, civilians operate under diplomatic immunity. Immunity can be waived by the Secretary General but then there is the problem of jurisdiction. Under what penal code should civilians be subject? Generally, an individual would be tried where the crime occurs. But peacekeeping missions are often in countries without a functioning judiciary or without one that is up to international standards.

The aforementioned Zeid Report recommends a number of ways in which this accountability gap can be closed. The most straightforward of these is setting up a new "convention on the criminal accountability of United Nations officials and experts on mission," which spells out how nationals of states that are party to this convention could be criminally prosecuted.

A draft text of this convention exists, but has not yet been adopted by UN member states. And even if this convention were adopted, only nationals of countries that have ratified the convention would be subject to its jurisdiction. Does that mean the U.N. should prohibit civilians from states that are not party to the convention from participating in peacekeeping missions? Again, such a rule would prevent a number of civilian experts from lending their skills and expertise to peacekeeping operations.

The point is these are complex issues that cannot, contra Matthew, be fixed simply by abolishing the Ethics Office and setting up a new "Disciplinary Office." Rather, U.N. member states – not the UN Secretariat itself – must to take the initiative.

Like I said, stay tuned for a longer discussion about this and the other issues Matthew raises on BloggingHeads. Our diavlog will be posted on Sunday.