«Fifty-ninth session Agenda item 77 Comprehensive review of the whole question of peacekeeping operations in all their aspects Letter dated 24 March ...»
Rules of discipline A.22 Civilian police and military observers who are alleged to have committed an act of serious misconduct are subject to the procedures set out in the Directives for Disciplinary Matters Involving Civilian Police Officers and Military Observers, which are distributed to police-contributing countries with the mission-specific guidelines for civilian police officers. In the Directives (para. 4), the definition of “serious misconduct” (which differs from the meaning of the term in the Staff Regulations and Rules), includes sexual exploitation and abuse, as does the 2003 Secretary-General’s bulletin in respect of staff.
A.23 As is the case for United Nations staff, the basic premise behind the due process procedures established by the Directives is that allegations are simply allegations. In other words, the presumption is that civilian police officers and military observers have complied with the prescribed standards of conduct. Serious misconduct must be established by the mission.
A.24 As is also the case for United Nations staff, the first step in the process is that if there is reason to believe that a civilian police officer or a military observer has committed serious misconduct, the head of mission must immediately undertake a preliminary investigation. If that preliminary investigation indicates that the report of serious misconduct is well founded, a board of inquiry is convened and the head of mission informs the Department of Peacekeeping Operations at Headquarters of the results of the preliminary investigation. The head of mission may recommend to the Department that the individual concerned be repatriated on the basis of the findings of the preliminary investigation. The Department then informs the permanent mission of the State concerned.
removal from a position of command; redeployment to another position/area after retraining, if necessary; removal of benefits and concessions provided to United Nations personnel;
suspension of leave/compensatory time off; full or partial recovery from mission subsistence allowance, in cases of financial loss to the United Nations; recommendation to repatriate; and written censure or reprimand, including a possible recommendation for non-eligibility for any future assignment with the United Nations (para. 23).
suit may continue. However, the personal liberty of a member of the peacekeeping operation shall not be restricted as a result of such civil proceedings (para. 49).
A.29 Procedures exist under the status-of-forces agreement for the settling of differences of opinion on such matters between the host State and the SecretaryGeneral.
Rules of conduct A.30 The model status-of-forces agreement provides that the Special Representative of the Secretary-General shall take all appropriate measures to ensure the maintenance of discipline and good order among members of the United Nations peacekeeping operation (para. 40). Military members of national contingents are subject to the standards of conduct set out in the Ten Rules and in We Are United Nations Peacekeepers (see paras. A.18 and A.19 above). Those documents are distributed to all United Nations peacekeeping personnel and are reproduced in the mission-specific guidelines for troop-contributing countries deploying military units that are sent to the troop-contributing country concerned.
A.31 The guidelines include detailed provisions on the conduct of members of the contingent concerned. They provide, inter alia, that members of military contingents shall not abuse or exploit individual members of the local population, in particular women and children, and that they are to show respect and courtesy towards the population. Since the promulgation of the 2003 Secretary-General’s bulletin, the rules contained therein have begun to be summarized in the guidelines and applied to members of national contingents.
Rules of discipline A.32 Military members of a national contingent who are alleged to have committed an act of “serious misconduct” (a defined term that includes sexual exploitation and abuse) are subject to the mission procedures set out in the Directives for Disciplinary Matters Involving Military Members of National Contingents, which are made available to troop-contributing countries. They are, of course, always subject to procedures instituted by their national contingents.
A.33 Section 2.2 of the 2003 Secretary-General’s bulletin, while not applicable per se to members of national contingents, notes that United Nations forces under United Nations command and control are prohibited from committing any acts of sexual exploitation and abuse and have, in particular, a duty of care towards women and children, pursuant to section 7 of Secretary-General’s bulletin ST/SGB/1999/13, entitled “Observance by United Nations forces of international humanitarian law”.
Section 1.1 of that bulletin provides that the rules set out therein are applicable to United Nations forces when in situations of armed conflict they are actively engaged as combatants, to the extent and for the duration of their engagement, and thus are applicable in enforcement actions or in peacekeeping operations when the use of force is permitted in self-defence.
In section 7.2, rape, enforced prostitution and any form of sexual assault and humiliation are specifically prohibited. Section 7.4 provides that children shall be the object of special respect and shall be protected from any form of indecent assault.
A.34 The mission procedures for a preliminary investigation and a board of inquiry to investigate allegations of serious misconduct against members of national
contingents are in substance identical to the procedures set out in the Directives described in paragraphs A.22 to A.26 above. As is the case for civilian police and military observers, the head of mission can only recommend repatriation, which must be decided by the Department of Peacekeeping Operations at Headquarters based on the recommendation of the head of mission. If the Department decides on repatriation, the permanent mission of the troop-contributing country concerned is notified and the expenses of the repatriation are borne by the troop-contributing country concerned.
A.35 It must be emphasized that the decision to repatriate a member of a national contingent is an administrative measure, not a disciplinary sanction. Discipline of a military member of a national contingent is a matter exclusively for the troopcontributing country concerned.
Status A.36 In recent years, status-of-forces agreements entered into by the Organization have provided that United Nations Volunteers are considered to have the status of officials under the General Convention. They thus have the privileges and immunities of staff in the host State (see paras. A.1-A.7 above).
Rules of conduct A.37 United Nations Volunteers are bound by the United Nations Volunteers programme’s rules of conduct. Those rules provide that Volunteers must respect the laws, moral codes and traditions prevailing in the host State and must refrain from any activity that is incompatible with the aims and objectives of the United Nations.
Rules of discipline A.38 United Nations Volunteers are subject to immediate dismissal for violations of the rules of conduct. The Department of Peacekeeping Operations will advise missions to require Volunteers to sign an agreement that they acknowledge that any violation of the prohibitions against sexual exploitation and abuse contained in the 2003 Secretary-General’s bulletin will constitute serious misconduct that could result in immediate repatriation.
A.39 In the event that a Volunteer disputes an administrative decision of the Organization, the conditions of contract provide that the dispute will be submitted to arbitration and that the award of the arbitration panel will be accepted by the parties as the final resolution of the dispute.
Status A.40 Peacekeeping missions may retain the services of individual consultants or contractors pursuant to standard conditions of contract that are specified in the administrative instruction entitled “Consultants and individual contractors” (ST/AI/1999/7). Consultants have specialized skills not available in the Secretariat.
Individual contractors may perform functions similar to staff but for short periods of time. The administrative instruction provides that consultants and individual contractors have the status of neither staff members nor experts on mission; they are subject to local law. However, consultants may be accorded the status of experts on mission if they are required to travel on behalf of the Organization. The privileges and immunities of experts on mission are described in paragraphs A.15 and A.16 above.
Standards of conduct A.41 Contracts for consultants and individual contractors provide, inter alia, that the holders must refrain from any conduct that would adversely reflect on the United Nations and that they must undertake to not engage in any activity that is incompatible with the aims and objectives of the Organization.
Rules of discipline A.42 The standard contracts for consultants and individual contractors provide that failure to conform to the standards of conduct specified therein shall lead to termination of the contract at the initiative of the United Nations. The Department of Peacekeeping Operations will advise missions to broaden this provision to include specific reference to violations of the prohibitions against sexual exploitation and abuse contained in the 2003 Secretary-General’s bulletin.
A.43 The standard contracts provide that in the event that a consultant or individual contractor disputes a decision of the United Nations, the dispute will be submitted to arbitration and the award of the arbitration panel will be accepted by the parties as the final resolution of the dispute.