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A report in the Jan. 10 issue of The Age newspaper stated that the National Post newspaper of Canada had editorialized that U.N. Secretary General Kofi Annan should resign. The National Post editorial call was made in the light of the alleged inaction of Annan when he was chief of U.N. peacekeeping forces in 1994.

The alleged inaction of Annan was in relation to the Rwandan genocide that took place in April and May of that year. Some circles have, citing confidential cables sent to U.N. Peacekeeping Headquarters in New York from Rwanda, blamed Annan for not acting immediately and properly to prevent or stop the Rwandan genocide despite ample validated warnings from U.N. personnel “in the field” that mass murders of the Rwandan Tutsis were about to take place.

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

The news item raises two issues:

1. How much should a U.N. secretary general’s past or past activities have a bearing on the present status and performance of duties?

2. What are some of the legal issues involved in suing the U.N.?

Regarding the first issue, this is not the first time a U.N. secretary general’s past has come to arguably haunt him.

Kurt Waldheim’s Nazi past was not a major issue when he was elected secretary general in 1971 nor was it so during his 10 years at the helm of the U.N. However, it became a prominent and controversial issue after his retirement from the U.N. and just before he was elected to the presidency 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 Nazi past.

Waldheim’s Nazi past was not directly related to the performance of his duties as U.N. secretary general though the moral turpitude involved — not only about the past but possibly lying about the past — may have been considerable, especially for one who considered himself to be a “spokesman for humanity.”

Annan’s failure to prevent or stop the Rwandan genocide occurred during his tenure at the U.N. but only when he was undersecretary general. It is virtually out of the question that Annan would follow the steps of Trygve Lie, the first U.N. secretary general, who is the only person to resign from the post.

“The buck” did not stop with Annan. The moral responsibility could also be placed upon the U.N. Security Council as a whole for their inaction, apathy and even callousness during the Rwandan genocide. Therefore, it would be wrong to even metaphorically call the Rwandan genocide “Kofi Annan’s genocide.”

In an advisory opinion delivered by the International Court of Justice in 1949, the court unanimously held that the then newly established U.N. had “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 opinion was delivered, the U.N., with almost universal membership, has become even more of a “supranational 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 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 U.N. 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 U.N. history that an organ of the U.N. would sit in judgment of the U.N. itself. However, this would not be an anomaly or conundrum as it would first appear. In domestic societies, courts, which are judicial arms of governments, at times, sit in judgment or review the actions of the executive and legislative branches of governments.

In the international arena, such actions are almost nonexistent. The closest thing that occurred was in 1992 when Libya challenged the validity of the U.N. Security Council resolutions that had imposed sanctions on Libya. The challenge was made before the ICJ on the grounds that the resolutions violated international law. The ICJ by a majority rejected Libya’s challenge. Yet even the majority 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 U.N. Charter.

The Rwandan genocide was a black mark of the 1990s. The U.N. and the international community must do all it 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 U.N. in the future. In this context, the contemplated action of bringing the U.N., not only to task but also to court, could open new vistas and positive developments in international law.

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