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Moderator: Alejandro Sousa (UN General Assembly).
Speakers: Simon Chesterman (National University of Singapore Faculty of Law), Patricia Galvão Teles (UN International Law Commission - ILC), and Andreas Vaagt (UN Secretariat).
He provided the academic perspective by defining the concept of accountability, which he introduced with the following question: Who is accountable for what?
For what: He started by asking whether the UN should be bound by rules at all, and the difficulty in answering this question given the unclear status of the UN – is it a “thing” or a “place”, a mere diplomatic forum or an actor in its own right exercising power? If we consider the UN as an independent actor in some capacity, then it should be bound by some rules.
The rule of law with respect to the UN is unclear, and one of the problems in particular is that the UN itself is not a party to the human rights treaties negotiated under its auspices.
Who: the UN as an organization enjoys absolute immunity the way diplomats and embassies do, and it is justified by functional necessity – immunity is necessary to perform its functions. He highlighted however that unlike diplomats, UN officials are not subject to a criminal law regime in their home jurisdiction. The UN does not always rely on this immunity and can waive it, however in those cases it decides to be held accountable, which leads to the argument that it is a judge sitting in its own court. He stressed the problem of incentive structures: those with the greatest interest in accountability have the least leverage, while those with the greatest leverage have no interest in accountability.
He concluded with the ironic remark that although the UN has done so much to promote the rule of law around the world, it is reluctant to embrace that principle as it applies to the UN itself.
He started by explaining how, once a mission is established, the UN enters into a SOFA (Status of Force Agreement) with the host country.
Regarding military personnel, the UN has no jurisdiction to undertake a criminal investigation as they are subject to the exclusive jurisdiction of their country of nationality. When it comes to civilian personnel, the issue of criminal accountability has been in the General Assembly agenda for more than 10 years. Since the adoption of Resolution 6263, the Secretary General (SG) has referred over 100 cases to the states against whose nationals allegations were made, some of which have been picked up by national authorities; however there has been no criminal conviction in any of those cases.
Regarding accountability in respect to damages caused by personnel in the performance of its functions, in the context of peacekeeping operations the UN´s liability is limited, as it excludes non-monetary loss (for example pain and suffering) and it applies only to claims of a “private law character” (which includes compensation for death, personal injury and property damage). Additionally, claims must be brought within 6 months of the incident.
The Model SOFA provides for the establishment of a Standing Claims Commission, composed of one representative of the UN, one of the host state, and a chairman appointed jointly by both. It is surprising however that such a commission has never been established.
Regarding the requirement that the claim must be of a “private law character”, some examples where the SG determined that the claim was not of private law character are claims regarding the Rwanda genocide and Srebrenica. He noted that there is no recourse to the judiciary by the victim, and the SG’s decision is not subject to review before national courts.
He concluded by explaining the claims against the UN for the October 2010 cholera outbreak in Haiti. A claim was filed against the UN alleging that the UN introduced the infection, and in particular: i) improper screening by the UN of the personnel coming from Asia, ii) lack of management of the sanitation facilities of the camp, and iii) failure to take appropriate preventive measures. The UN informed the victims that the claims would necessarily include the revision of policy and political matters, which translates into an absence of the required private law character. Since the outbreak and the strong criticisms against the UN that followed, the organization has spent many resources in Haiti. Last November the SG presented a report where he recognized that the UN didn’t do enough with regards to the outbreak and proposed a new approach, however it is too early to comment on the outcome.
Patricia Galvão Teles
She addressed the issue of whether the UN is alone in this complicated issue of immunity and discussed possible options to improve accountability.
She began by quoting SG António Guterres, who stated that: “This is a particularly complex question, how to preserve immunity and guarantee that there is not impunity. I will try to pay attention at how to find that equilibrium.”
With this quote in mind, she addressed three questions that arise when tackling the issue of how to find that equilibrium:
1) Do we need to revise the 1946 Convention?
She stated that the current atmosphere in international relations is not conducive to reforming existing treaties, and therefore it is not the best moment to revise the Convention. In her opinion, the efforts should be focused on improving the implementation of existing rules, rather than changing them. One example where implementation could be improved is the Standing Claims Commissions provided for in the SOFAs, which have never been put in place.
In the last 15 years there have been numerous cases that have raised more important questions than the ones in previous decades (cholera in Haiti, sexual exploitation in CAR, and the mothers of Srebrenica case), and the decisions in all these cases confirmed the 1946 Convention rule: the UN has immunity and it is applicable even when appropriate means of settlement were not in place.
2) Should a Convention on Jurisdictional Immunities of IIOO be envisaged?
In 2006 there was a proposal by the International Law Commission (ILC) to adapt the 2004 Convention on Jurisdictional Immunities of States and Their Property to International Organizations (IIOO). In her opinion this exercise possesses many difficulties, not only because of the different nature of states and IIOO, but also because of the many different types of IIOO, ranging from the EU to the CPLP, which makes it particularly difficult to find rules that apply to all of them.
3) Should the ILC tackle the issue of immunity in the framework of settlement of international disputes to which IIOO are parties?
This topic was added at the last ILC session in 2016, particularly stating that it would be for future decisions whether disputes of a private character might also be covered. In her opinion, the outcome of this topic would probably not be a convention, but rather model clauses or an adaption of the Manila Declaration on Peaceful Settlement of Disputes to IIOO, but probably not a full codification exercise.
She concluded by stating that the important point now is for the UN to reflect on implementation and address the criticism it has faced.
Isabel San Martin is a Research Assistant at the London Court of International Arbitration.