Bringing the UN to task

By Myint Zan

BURWOOD, Victoria (JP): A report in the Jan. 10, 2000 issue of The Age newspaper (of Melbourne, Australia) stated that The National Post newspaper of Canada had editorialized that the current United Nations Secretary-General, Kofi Annan, should resign.

The National Post's editorial call was made in the light of the alleged inaction and slackness of Annan when he was chief of the United Nations peacekeeping forces in 1994. The alleged inaction of Annan was in relation to the Rwandan genocide which took place in April and May of that year. Some circles have, citing confidential cables sent to UN Peacekeeping Headquarters in New York from Rwanda, blamed Annan for not acting properly and soon enough to prevent or stop the Rwandan genocide, despite ample validated warnings from UN personnel in the field that mass murders of the Rwandan Tutsis were about to take place.

The Age also indicated that a suit to sue the United Nations in relation to the Rwandan genocide was currently being contemplated by two Australian-born lawyers. There was no indication as to when, where and how the suit against the United Nations would be lodged.

This possible suit raises two possible issues: 1. Should a UN secretary-general's past or former activities have a bearing on the present status and performance of his duties? 2. What are the legal issues involved in suing the United Nations?

This is not the first time a UN secretary-general's past has come to arguably haunt him. (All seven UN secretary-generals, so far, have been male, although current Deputy UN Secretary-General -- a new post created in early 1998 -- Louis Frechette, a Canadian, is female.)

Kurt Waldheim's -- the fourth UN secretary-general -- Nazi past was not a major issue when he was elected in 1971, nor was it so during his 10 years at the helm of the UN. However, it became a prominent and controversial issue following his retirement from the UN and just before he was elected as the president of Austria in 1986. It was found that Waldheim had carefully hidden some of his activities as a Nazi officer during World War II and had glossed over, if not lied, about that part of his past.

Waldheim's Nazi background was not directly related to the performance of his duties as UN secretary-general, although the moral turpitude involved -- not only about the past but possibly lying about the past -- may have been considerable, especially for one (as he claimed in his memoirs In the Eye of the Storm) who was (as secretary-general) a "spokesman for humanity".

Kofi Annan's failure (for which he has expressed "deep remorse") to prevent or stop the Rwandan genocide did occur during his tenure at the UN, but only when he was under secretary-general. It is virtually out of the question that Annan would follow in the steps of one of his six predecessors, Trygve Lie, the first secretary-general of the United Nations, who so far is the only person to resign from office.

The buck did not stop with Annan. The moral responsibility could also be imputable collectively on the United Nations Security Council as a whole for their inaction, apathy, "head in the sand attitude" and even callousness during the Rwandan genocide. Therefore, it would be as wrong, even metaphorically, to call the Rwandan genocide "Kofi Annan's Genocide" (which the National Post did not as it is equally outrageous and sensationalist to call the 1967 Six-Day Middle East war as "U Thant's War": which The Daily Telegraph of London did in a headline of June 6, 1967. The Daily Telegraph was blaming U Thant -- third secretary-general of the UN -- for withdrawing United Nations Emergency Forces from Egyptian territory in May 1967. U Thant took that action in accordance with the agreement between the Egyptian government and the UN and at the request of President Nasser of Egypt.)

An advisory opinion delivered by the International Court of Justice (ICJ) in 1949 unanimously held that the then newly established United Nations had an "international legal personality" and that it had the capacity "to bring an international claim against the responsible de jure or de facto government with a view to obtaining reparation due in respect of damage caused to the United Nations". More than 50 years after the advisory was delivered, the United Nations, with almost universal membership, has become even more of a "supra-national organization" than it was in 1949. It certainly has the capacity to sue -- and to be sued.

The foremost legal issue here is choosing the appropriate forum in which to lodge the suit. The apparent answer is the International Court of Justice. Only the governments of nation- states could be parties before the ICJ. Therefore, the current Rwandan government could theoretically lodge a suit against the United Nations in the ICJ and perhaps also arguably in accordance with certain provisions of the Genocide Convention.

It should be noted that if this suit (brought forth by the current Rwandan government as postulated above) does occur then that would arguably be the first time in the history of the United Nations where an organ of the United Nations -- the ICJ -- would sit in judgment of the United Nations itself. However, this would not be an anomaly or a conundrum, as it first appears. In domestic societies, courts, which are the judicial arms of governments, at times, sit in judgment or review the actions of the executive and legislative branches of their governments.

In the international arena such actions are almost nonexistent. The closest to occur was in 1992 when Libya challenged the validity of the United Nations Security Council resolutions which had imposed sanctions on that country. The challenge was made before the ICJ on the grounds that the resolutions violated international law. The ICJ rejected Libya's challenge by a majority. Yet, even most of the judges appeared to have indicated that if a Security Council resolution violated jus cogens -- peremptory norms of international law -- the ICJ might well hold them to be "unconstitutional" as per the United Nations Charter.

According to the surviving relatives of victims of the Rwandan genocide and the lawyers that represent them, the UN peacekeeping forces had virtually turned a blind eye even when the right to be free from genocide -- a peremptory norm of international law -- was violated with impunity in Rwanda.

The Rwandan genocide is a black mark on the 1990s. The United Nations and the international community must do all they can to prevent such abominations from taking place in this new century.

At the very least, there must not be a repetition of such slackness by the UN in any similar situations in the future. In this context, the contemplated action of bringing the United Nations, not only to task but also to court, could open new vistas and positive developments in international law.

The writer is a lecturer in law at Deakins University in Burwood, Victoria, Australia.