The passage of time can play cruel tricks on noble intentions. The person selected as the new United Nations (UN) Secretary-General later this year should keep this in mind as he or she evaluates how effectively the UN is responding to the challenges of the 21st century.
When the UN and its specialised agencies were created after the Second World War, their founders were concerned that they would not be able to perform their assigned functions – to promote peace and security, international economic and social cooperation, economic development and human rights – if they were vulnerable to legal pressure from their member states. For example, the organisations would not be able to perform their assigned functions if a member state could threaten to arrest the officials of these organisations or to confiscate the materials they had collected when they were on official missions to the state.
To minimise this risk, the founders bestowed “functional immunity” on these international organisations. This ensured that they would not be subject to the jurisdiction of the member states or their courts when performing the functions for which they were created. This is different from diplomatic immunity, which protects accredited diplomats from the jurisdiction of their host states for all purposes. Thus, an off-duty UN official who is involved in a car accident can be sued for causing the accident, while an off-duty diplomat who causes an accident cannot.
At the time, this made good sense. The organisations were expected to primarily function as intergovernmental bodies. As such they would only interact with the governments of their member states, who would decide whether and how to use their services in their domestic affairs. There did not seem to be any need for them to engage directly with the citizens of their member states or for them to be directly accountable to those citizens.
But, over time, the scope of operations of these international organisations have expanded due to a mix of factors. These include:
the end of colonialism;
changes in the international economic system;
our evolving understanding of the development process;
the evolution of international human rights law; and
our greater awareness of the environmental consequences of our actions.
Changed roles of international organisations
Today these organisations play important roles in the governance of some of their member states. Their decisions and actions directly affect the citizens of these states. For example, the UN took over some of the functions normally performed by governments during political transitions in Namibia, Timor-Leste and Bosnia. It also did so in the refugee camps for people from countries like Afghanistan, Sudan and Iraq.
This expansion in the international organisations’ missions did not cause them or their member states to revise their functional immunity. This meant that their immunity expanded together with their expanding functions.
The result is that international organisations, contrary to the human rights and good governance principles that they espouse for the governments of their member states, are not accountable to those individuals who are adversely affected by their decisions and activities. Instead, they can use the immunity that was intended to shield them from interference by their member states as a sword to ward off claims by those they are alleged to have harmed.
Acting with impunity
Two recent examples demonstrate the gravity of this problem. First, in March 2016, Haitian plaintiffs argued to a US court that it should, despite all the legal precedents to the contrary, overturn a lower court’s decision denying their request to lift the UN’s immunity. That would allow them to sue it regarding its negligent actions in Haiti.
They allege that in 2010 the UN mission to Haiti introduced cholera into the country, which had been free of cholera for about 100 years. The evidence indicates that the cholera was brought to Haiti by infected soldiers who, contrary to good practice, had not been tested for the virus before leaving their home country, where cholera was widespread. Since 2010 approximately 8% of the Haitian population has had cholera and thousands have died from the disease.
The UN, however, relying on its immunity, has not even deigned to appear in the court, which has not yet ruled on the matter. It has also refused to accept any responsibility for the Haitian cholera outbreak, despite overwhelming evidence that the outbreak was caused by the arrival of the UN mission.
Second, it has recently been reported that the number of claims of sexual abuse of women and children brought against UN peacekeepers last year increased by 25% over 2014. This should not surprise the UN because for many years it has been slow to deal with such allegations.
In fact, despite a recent Security Council resolution, it is not clear that those responsible will be held accountable. This situation, in effect, encourages UN peacekeepers to feel that they can act with impunity. This impression has possibly been reinforced by the fact that in 2010 the UN relied on its immunity to block a UN staff member from suing the organisation for the unfair way in which she was treated after she complained about being sexually harassed by the head of her UN agency. The allegation was subsequently substantiated by his forced resignation.
Making the UN walk the talk
The UN and its agencies can solve the problem created by their reliance on their immunity to avoid their responsibilities. They must establish a reasonable alternative to a court, such as an independent tribunal, to hear the claims of those who allege they have been harmed by their actions.
They should empower the tribunal, when applicable, to award appropriate relief. This action would be consistent with their responsibilities to respect human rights and to comply with international law.
An independent tribunal would achieve two objectives:
provide the remedies that those harmed by the actions of international organisations like the UN are entitled to; and
protect the limited functional immunity that the organisations need to perform their mandates.
Likewise, multilateral development banks have independent mechanisms that can investigate the claims of people who allege they have been harmed by the failure of the banks to comply with their operational policies and procedures.
The UN and its agencies can build on these precedents. They can offer those they are alleged to have harmed a chance to have their claims adjudicated in a fair hearing before an independent decision-maker. If they do not, the courts in UN member states should follow the example of a number of European courts, and strip them of their immunity in appropriate cases.
Establishing this new tribunal should be a priority for the new UN Secretary-General when he or she takes office in 2017.