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Issues at AMUN 2018

General Assembly Sixth Committee (Legal)

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The General Assembly Sixth Committee addresses issues relating to international law. The Committee not only drafts new international law, but also offers interpretations of existing international law, as well as recommendations for Members to implement international regulations through national law. The Committee also considers legal issues which affect the United Nations Secretariat and operations. The Sixth Committee does not resolve legal disputes; that is the responsibility of the International Court of Justice.For more information concerning the purview of the United Nations General Assembly as a whole, see the introduction to the General Assembly Plenary.

Please note: When considering the reports of sub-committees that may change the United Nations Charter or other legal documents, the Sixth Committee may act on provisions within that report and write resolutions appropriate to carry out any recommendations from such reports. When a topic results in a recommendation to change the United Nations Charter, the provisions laid out in Chapter XVIII and elsewhere in the Charter must be followed in the GA Plenary session, followed by submission of any approved portion to the Member States before ratification. Similarly, if this Committee recommends the formation of a new treaty or comparable legal agreement, a treaty conference would be called for during the GA Plenary session, to be held at a later date.

Website: www.un.org/ga/sixth/index.shtml

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Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of the victims of armed conflicts Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of the victims of armed conflicts

The Geneva Conventions of 1949 are a collection of four Conventions and three additional Protocols that established protections and standards of humane treatment for those not directly involved in armed conflict. Together, these constitute the foundation of international humanitarian law which regulates armed conflict between states, covering both legal justifications for war and the legality of wartime conduct. Designed to protect those who are not or who are no longer participating in armed conflict, the Conventions provide specific rules to safeguard combatants or members of the armed forces who are wounded, sick or shipwrecked; prisoners of war; and civilians, as well as medical personnel, military chaplains and civilian support workers of the military. The Conventions apply in all cases of armed conflict, both declared and undeclared, among High Contracting Parties. Some provisions apply in conflicts with non-state actors and when only one belligerent is a Party to the Conventions.

While often referred to as a single document, the Geneva Conventions are actually four Conventions and three Additional Protocols. The First Convention (also known as the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field) details the protection of soldiers on land, those sick, and the wounded during war. It is a revised version of an older treaty that dates back to 1864. The Second Convention (also known as the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea) pertains specifically to military personnel at sea during war and replaced the 1907 Hague Convention. The Third Convention (also known as the Convention relative to the Treatment of Prisoners of War) applies to prisoners of war, while the Fourth Convention focuses on the protection of civilians, including those in occupied territories. The Third and Fourth Conventions specifically were created and established after World War II to prevent further harms like those seen during both World Wars.

In 1968, the General Assembly’s resolution 2444 paved the way for the Protocols by solidifying international agreement on the protection of civilian populations against the dangers of indiscriminate warfare and provided some groundwork for the Protocols. In 1977, the General Assembly welcomed the two new protocols and urged Member States to ratify them. Additional Protocols introduced in 1977 addressed the recognition that war, internal and external, causes massive collateral damage and victimizes civilian populations that are otherwise uninvolved. The following decades ushered in a slow but constant expansion of what harms the international community deems unacceptable and, consequently, a series of conflicts about those actions, the duties ascribed to the international community and state sovereignty. While the Conventions of 1949 enjoy universal adoption and ratification, the Protocols lack ratification by several High Contracting Parties to the Conventions.

In 2008, the Sixth Committee noted one of the fundamental issues surrounding the Geneva Conventions: despite nearly universal adoption, Member States continue to engage in actions counter to the Conventions. Attacks on civilian areas, hospitals as munitions targets and torture persist. The General Assembly urged its members to ratify the Rome Statutes, which would enable the International Criminal Court to pursue Geneva violations against ratifying States’ nationals. Many States have resisted doing so, either citing jurisdiction over their own nationals or reluctance to submit to a higher authority. In addition, Member States were urged to join in the Montreux Document, which obligates private military personnel to follow international humanitarian law. The debate at the time reflected the conflict over tactics and approaches to combating global terrorism, especially in light of countries’ use of waterboarding, force feeding and other extreme measures in pursuit of terrorist organizations.

In 2014, the Sixth Committee presented a report on the Additional Protocols and their implementation among Member States. At this time, many Member States wished for more direct United Nations involvement in international humanitarian law. Member States have continued to distrust others’ commitments to the Protocols and point to instances of civilian targeting and attacks on humanitarian workers, even those bearing the emblems of the International Committee of the Red Cross (ICRC). Member States continue to be reluctant to report Protocol violations. Many are vocal about the need for Protocol enforcement, while not reporting alleged violations or ratifying the Rome Statute which would allow the International Criminal Court to weigh in on violations. Resolution 69/120 was adopted, which reaffirmed established international humanitarian law and called upon Member States to quickly collect and disseminate information regarding violations per the methods in Protocol I.

The 71st Session of the General Assembly proposed streamlining reporting processes and making a central database to report alleged Protocol violations. The Sixth Committee expressed concern over the limited protections under humanitarian law for individuals affected by intrastate conflicts, largely as a response to weaknesses exposed by the recent migrant crisis and a need to address asymmetric warfare or armed conflicts involving non-state parties. The Committee also advocated for universal adoption of the Montreux Document, an ICRC document outlining legal obligations for participating states regarding the operation and actions of private security forces or private militaries during armed conflict. Currently only 54 Member States have become signatories to the Montreux Document.

The Sixth Committee faces many issues. It must first achieve full adoption of the Additional Protocols and the Montreux Document and compliance therewith. Member States continue to fail in their obligation to report violations of the Conventions. With increasing strife and ambiguities in how best to apply the Protocols to non-State actors, especially in high-conflict areas and with mass movements of refugees, the Conventions are more important than ever before. Without full adoption of the Additional Protocols, some aid workers are left vulnerable. In addition, the use of military contractors, militias and other forces associated with but not commissioned by Member States, the Montreux Document and reporting are key to international success.

Questions to consider: Questions to consider:

  • What are the responsibilities of Member States regarding conflict areas where militia and other non-State actors are involved? How should Member States approach non-State actors originating from their borders and how can Member States adapt the Geneva Conventions when those actors are entering or otherwise crossing borders?
  • What is the role of Member States in enforcing the Additional Protocols and the Montreux Document when violators are not High Contracting Parties or signatories and how can Member States compensate for the lack of accountability on the part of non-Member States?
  • How can the United Nations address issues of accountability without full reporting from Member States and without the use of the International Criminal Court? What can the international community do to incentivize compliance and the full adoption of the Court?

Bibliography: Bibliography:

United Nations Documents:

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Criminal accountability of United Nations officials and experts on mission Criminal accountability of United Nations officials and experts on mission

In 2016, 145 United Nations personnel stood accused of sexual assault. Similar scandals have plagued UN missions, including a massive scandal in the 1990s when peacekeepers abused those in their charge, leading to an HIV/AIDS outbreak in Cambodia, and 2014 revelations of child sexual abuse in Central African Republic. While the United Nations continually strives to uphold its values and principles regarding human rights, United Nations personnel periodically commit crimes, including sexual crimes, and other abuses while on mission. While discussion of this topic often mentions peacekeeping personnel, the term is used broadly to refer to all United Nations personnel and affiliated personnel. Though long-standing numerical data does not exist and past reports have been scarce, peacekeeping personnel have committed crimes including assault, pedophilia and rape; these crimes are especially notable because of personnels’ positions of power and ability to control access to United Nations services. When humanitarian workers commit crimes, it sows distrust among Member States, decreases United Nations mission efficacy, and delegitimizes the work done on behalf of the United Nations.

In 2005, the General Assembly asked the Sixth Committee to review criminal accountability of United Nations officials and experts on mission. The Sixth Committee is uniquely equipped to address the many legal complications involved in the topic. The Committee requested that a group of legal experts identify jurisdictional issues for peacekeepers, as well as the consequences outlined in General Assembly resolutions. The resulting 2008 report clarifies that a confluence of legal issues complicate accountability for United Nations personnel on mission. The United Nations typically defers to host States to prosecute crimes committed in their jurisdiction. Because United Nations personnel often operate in countries with limited legal capacity, States may lack the infrastructure or political will to effectively prosecute misconduct. Once personnel depart the host country, extradition laws may make the prosecution unlikely or impossible. Some States object to the practice of deferring to the host State on prosecution due to differences in domestic laws, perceived inability of the host State to prosecute or fully investigate offenses, political disagreement, or belief that the claims are not legitimate. The Report points to a number of solutions and suggests responses, including maintenance of host State jurisdiction whenever possible, capacity-building and the creation of an international convention to aid in the process of determining jurisdiction and prosecution. Over the course of the next two years, an Ad Hoc Committee within the Sixth Committee was created to look specifically at the recommendations made by the Group of Legal Experts and provide further implementation recommendations.

In 2013, the Sixth Committee also urged Member States to create jurisdictional agreements. The Sixth Committee aimed for more information sharing, especially during investigations into alleged crimes. Internally, the Sixth Committee committed to improved training for personnel on United Nations standards and expectations. Delegations acknowledged the contributions that the United Nations has made regarding criminal accountability but also the negative effect criminal misconduct via peacekeepers and others on missions has had on the credibility of the United Nations. Supporting the zero tolerance policy of the United Nations, Member States discussed serious crimes, like sexual abuse and exploitation, while also speaking of respecting international and national laws within each country.

In 2014, the Secretary-General issued a report on criminal accountability of United Nations officials and experts on mission. The report was supposed to focus on the state of the issue and provide current updates on jurisdictional agreements. The report relied on volunteered information and only contained information from Colombia, El Salvador and Finland. The report clarifies that the Department of Peacekeeping Operations and the Office of Legal Affairs are working to reconcile those numbers internally and improve reporting processes and procedures. It concludes that far more work needs to be done in extending extrajurisdictional agreements and asks Member States to continue to share information and to do so in a streamlined manner.

In 2017, the General Assembly requested a comprehensive report on the issue of sexual exploitation and abuse in United Nations peacekeeping operations. The Report of the Group of Legal Experts was placed, once again, on the Sixth Committee agenda, in hopes of furthering Member States’ cooperation. The same issues are the ones at odds: reluctance to extradite to host States for prosecution, disagreement over whether host States can be trusted with prosecution, lack of information sharing. The General Assembly requested that the Secretary-General continue to improve reporting methods and requested updates on cases reported to the Secretary-General.

Looking ahead, Member States might consider addressing some of the following issues. The most significant issue is the lack of reliable data on the issue. Member States continue to report only sparingly on investigations and fail to report on overall trends. The lack of overarching data and the lack of updates from specific Member States to the Secretary-General prevent clear understanding on the extent of the issue. The second significant issue is the ambiguities surrounding jurisdiction. It is still unclear which State or States have jurisdiction in a number of cases. Some States have sought to improve accountability by adding extraterritorial jurisdiction for their nationals serving under United Nations auspices, but this is far from universal. It is more common that Member States will spend significant periods of time disputing jurisdiction or simply not begin investigations at all as a result of anticipated jurisdictional disputes. A 15 February 2018 report of the Secretary-General provides information on possible measures to strengthen responses to allegations of sexual exploitation and abuse, implementing the United Nations’ zero-tolerance policy, and utilizing a more victim-centered approach to allegations. These measures include increasing awareness of prohibited behavior, using an accountability framework, improving data collection, and improving development of personnel screening mechanisms. UN agencies need to improve management controls to prevent and ensure accurate reporting of sexual exploitation. The consistent difficulties in reporting, Member States reluctance to actually implement recommended changes, and difficulties adapting legal and peacekeeper training regimes persist. Without accurate data or updated legal systems, criminal actions by peacekeepers will persist unprosecuted.

Questions to consider: Questions to consider:

  • In which ways can Members States communicate allegations more quickly, efficiently and privately with those at the United Nations in charge of following up on allegations of misconduct, abuse or sexual exploitation?
  • What data reporting difficulties exist and how can the Sixth Committee incentivise more accurate and prompt reporting and data collection?
  • How can host States and States of Origin better coordinate for investigations and jurisdictional issues? How do these coordination efforts intersect with the Sixth Committee’s efforts?

Bibliography Bibliography

UN Documents

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