The report of the Adviser to the Secretary-General on sexual exploitation and abuse by United Nations peacekeeping personnel (A/59/710) provided an analysis of the problem of sexual exploitation and abuse by United Nations peacekeeping personnel and noted that holding United Nations staff and experts on mission accountable for crimes committed during peacekeeping operations was problematic. Further consideration of the issue was required and it was therefore recommended that a group of legal experts be appointed to undertake the task.
The Group of Legal Experts (see annex I) carried out its work, in accordance with its terms of reference (see annex II), in the period from October to December 2005, resumed working in late February and completed its work in March 2006.
The Group has made a number of recommendations that are designed to overcome the obstacles that exist in holding United Nations peacekeeping personnel accountable for crimes committed during peacekeeping operations. The Group recommends that priority be given by the United Nations to facilitating the exercise of jurisdiction by the host State. The United Nations should
not readily assume that the host State is unable to exercise jurisdiction merely because a peacekeeping operation is carried out in a post-conflict area.
If the host State is unable, even with United Nations assistance, to exercise all aspects of criminal jurisdiction, there will be a need to rely on other States to do so. However, even in these circumstances, the host State may be able to provide some assistance to enable the exercise of criminal jurisdiction by another State, including by gathering evidence or arresting alleged offenders. Jurisdiction is not an indivisible concept and the host State and other States may be involved in different but mutually supportive aspects of the overall exercise of criminal jurisdiction.
The exercise of jurisdiction by States other than the host State presents many challenges that are not unique to the peacekeeping environment. These include the extradition of persons and securing admissible evidence for use in another jurisdiction. To provide a sound legal basis for the exercise of jurisdiction by States other than the host State, the Group recommends the development of a new international convention to address jurisdiction and related issues. Administrative investigations conducted by the United Nations for disciplinary purposes may be relevant to holding a person criminally accountable as they may be the only means of gathering evidence of the alleged crime. United Nations administrative investigators therefore need to be cognizant of the fact that the material they collect may be used to support not only disciplinary action but also criminal proceedings.
The Group makes a number of recommendations designed to ensure that administrative investigations are carried out to the highest possible standard. The Group acknowledges the steps the United Nations has taken to ensure that departments adopt a cooperative and coordinated approach to dealing with misconduct issues, but there need to be clearer guidelines about the role of the Office of Internal Oversight Services and its relationship with other departments, in particular the Department of Peacekeeping Operations, and peacekeeping missions.