Boyle: Appointing alleged war-criminals to UN posts, a violation of UN Charter
While Ban Ki Moon’s spokesman Martin Nesirky insisted that Ban is powerless to stop the proposed appointment of alleged war-criminal Shavendra Silva to an UN adviser position, Professor Boyle, an expert in international law, said, "U.N. Secretary-General has a Charter obligation to determine that the terms of article 101(3) have been satisfied before he appoints someone to the Staff irrespective of any alleged recommendation by the General Assembly," and therefore, "Ban to appoint a presumptive war criminal to his Staff would be ultra vires his powers under the terms of article 101(3) and thus a violation of the Charter itself."
Text of the legal note Professor Boyle sent to TamilNet follows:
- The United Nations Charter establishes Six Independent Organs: The Security Council, the General Assembly, the Economic and Social Council, the Trusteeship Council , the Secretariat, and the International Court of Justice. The U.N. Charter was deliberately drafted so that no one Organ had the right to order around any other Organ. Chapter XV of the Charter sets forth the independent powers and responsibilities of The Secretariat. According to article 97 thereof, the Secretary-General is the chief administrative officer of the United Nations Organization.
Article 101 of the Charter provides: "The staff shall be appointed by the Secretary-General under regulations established by the General Assembly."
However, these General Assembly regulations cannot trump the terms of the Charter itself. In this regard, article 101(3) clearly states: "The paramount consideration in the employment of the staff and in the determination of the conditions of service shall be the necessity of securing the highest standards of efficiency, competence, and integrity."
The U.N. Secretary-General has a Charter obligation to determine that the terms of article 101(3) have been satisfied before he appoints someone to the Staff irrespective of any alleged recommendation by the General Assembly. Certainly the U.N. Secretary-General has a Charter obligation to reject a presumptive war criminal for appointment to the Staff on the grounds of his prima facie absence of "integrity." ef
Indeed, for the U.N. Secretary General to appoint a presumptive war criminal to his Staff would be ultra vires his powers under the terms of article 101(3) and thus a violation of the Charter itself.
For these reasons, the U.N. Secretary General must reject both Silva and Kohona for any U.N. Staff Appointment.
Inner City Press reported that even many member states describe the appointments as a travesty or a "new low," and say they are pushing Sri Lanka to pull Silva back, even if only to replace him with Permanent Representative Palitha Kohona, who also played a role in the White Flag killing of prospective surrenderees, along with Ban’s chief of staff Vijay Nambiar.
Professor Francis A. Boyle taught United Nations Law in the College of Harvard University during the 1976-1977 Academic Year, and later for several years at the University of Illinois College of Law in Champaign. See his Foundations of World Order(Duke University Press: 1999).