UN Violates Law in Congo, Leaked UN Legal Memo Shows, Doss on Grill in NY

By Matthew Russell Lee

UNITED NATIONS, December 13 -- What are the consequences if the UN violates international law, as defined by the UN's own Office of Legal Affairs? The question is now squarely raise by an October 2009 memorandum to the UN Mission in the Congo (MONUC) from chief UN legal office Patricia O'Brien, obtained by Inner City Press and published online here.

In the October 12 memo, marked "Priority Confidential" and addressed to top UN peacekeeper Alain Le Roy, MONUC's policies for providing assistance to the Congolese army (FARDC) are found to violate international law. Specifically, MONUC's policies, then and now, do not provide for suspending assistance to operations of the FARDC in which laws are violated, but rather only partial suspension to particular units.

OLA notes that MONUC, even in the cases (so far only one) in which is suspends assistance to a particular unit, might just increase support to other units in the operation. Before publishing this memo, Inner City Press asked UN Spokesman Martin Nesirky for an answer, and received a three paragraph UN Peacekeeping response which does not even address OLA's critique of the lack of a policy for initiating support to an FARDC operation.

The UN's own Special Rapporteur on extra judicial execution Philip Alston has noted that MONUC worked with - and continues to work with - units under Colonel Zimulinda, which he charges with murder and mass rape.

These decisions are made by the chief of MONUC Alan Doss, embroiled since the summer in a nepotism scandal in which as exposed by Inner City Press he asked the UN Development Program to show him "leeway" and give his daughter a job, in violation of applicable rules.

Doss is scheduled to be in New York from December 14 on, to brief the Council -- but perhaps hide from the Press -- on December 16. In the interim there will be press conferences about among other things MONUC's violations of international law under Doss' tenure. Watch this site.

In Congo, UN's Doss under fire, legal violations not shown

As noted, Inner City Press before publishing this October 2009 OLA memo asked the UN about reports its own Office of Legal Affairs advised MONUC not to work with units of the Congolese army involved in these and other crimes. The response:

Subj: your question on the DRC
From: unspokesperson-donotreply [at] un.org
To: Inner City Press
Sent: 12/10/2009 1:33:20 P.M. Eastern Standard Time

I. The tasks carried out by MONUC are determined by the Security Council. The mission has a mandate to provide support to the Congolese Armed Forces (FARDC) in disarming illegal armed groups while protecting the civilian population. MONUC continues to give the highest priority to protection of civilians.

II. In furtherance of this mandate, MONUC and DPKO requested advice from the Office of Legal Affairs regarding the conditions governing their collaboration with the FARDC. In full transparency, the Secretariat and the Mission advised the Security Council of the risks involved and potential consequences of cooperating with the FARDC. The Security Council has repeatedly expressed their unanimous support for MONUC and for the joint operations with the FARDC against the FDLR, with full respect for International Humanitarian, Human Rights and Refugee Law.

III. After extensive consultations between the Secretariat the Mission and OLA, a policy was developed, setting out the conditions under which the Mission would support FARDC. This policy was transmitted to the DRC Government in November. It specifies that all MONUC participation in FARDC operations must be jointly planned and must respect international humanitarian law, human rights and refugee law. The policy also includes measures designed to improve FARDC performance as well as to prevent and sanctioning violations. This 'conditionality' provision is why the Mission suspended support to a specific FARDC unit believed to have been involved in the targeted killing of civilians in the Lukweti area of North Kivu.

But this response does not address the October 2009 memo, which says that MONUC should have had a policy before begin to support FARDC operations, and should suspend assistance to entire operations, rather that particular unit. Watch this site.