Institute for Justice and Democracy in Haiti

Law Profs Think UN Immunity Should Be Curbed

More and more people are uncomfortable with UN immunity and its resulting lack of accountability. Those especially affected by UN immunity are Haitian cholera victims and their families, and survivors of the 1995 Srebrenica massacre.

Growing unease with U.N. immunity

ScienceGuide
August 13, 2014

Is the U.N. ‘above the law’, like the kings and emperors of the past? More and more Law Professors think the U.N.’s immunity should be curbed. Because immunity can easily lead to impunity.

The U.N. is well known for its work in the field of human rights. Peace forces have been called into action when human rights were threatened. But strangely enough, this ‘human rights champion’ does not have its own complaints procedure.

This is all the more strange considering that the ‘Convention on the Privileges and Immunities of the United Nations’ obliged the U.N. already in 1946 to set up such a claims commission. The U.N. failed to do so ever since.

The U.N. remains above the law, have noticed – among others – the ‘Srebrenica mothers’ and the Haitians who suffered from the cholera epidemic that was brought in by the peacekeepers.

“I think it is deplorable that the U.N. doesn’t have an effective complaints procedure”, Professor Cees Flinterman (member of the U.N. Human Rights Committee, Utrecht University and Maastricht University) says to ScienceGuide. “Against the background of the human rights treaties, it would be important to have some kind of procedure.”

Bringers of cholera

After the 2010 earthquake, Haiti was dealt a second blow by the U.N. peacekeeping troops who – inadvertently – carried cholera from Nepal. Pretty soon the main Artibonite river was contaminated and ever since 8.000 Haitians were killed by the disease and another 600.000 ill with cholera.

The question whether or not the U.N. could be held responsible for the cholera epidemic was investigated by students and professors of the Yale Law School. Their study, Peacekeeping without accountability, proves that the cholera epidemic is directly traceable to the U.N. peacekeepers and the inadequate waste infrastructure in the town of Méyè.

U.N. undercuts its mission

“While the U.N. has played an important role in the Haitian post-earthquake recovery effort, it has also caused great harm to hundreds of thousands of Haitians,” said Tassity Johnson, one of the students who worked on the report. To date, the U.N. has refused to consider the claims of approximately 5.000 Haitians seeking redress, invoking its immunity in concluding that the claims are “not receivable.”

“The U.N.’s ongoing unwillingness to hold itself accountable to victims violates its obligations under international law. Moreover, in failing to lead by example, the U.N. undercuts its very mission of promoting the rule of law, protecting human rights, and assisting in the further development of Haiti,” Johnson said.

The Yale researchers conclude that the U.N. Secretary General should appoint a claims commissioner and a claims commission to deal with the situation of the cholera victims in Haiti.

Holding peacekeepers accountable

Another case in another part of the world likewise calls for lifting the U.N.’s immunity. The survivors of the 1995 Srebrenica massacre  hold the U.N. troops responsible for the death of 8.000 Bosnian men.

In 1995 the peacekeeping force Dutchbat was supposed to defend the Bosnian enclave against the Serbs. However, when the Serb general Mladic closed in on the enclave, a large number of the Srebrenica citizens was murdered without any interference of the U.N. peacekeepers.

The ‘Mothers of Srebrenica’, a group of mothers and wives of the massacre victims, brought the case to justice, trying to hold both the U.N. and the State of The Netherlands accountable. Unfortunately the European Court for Human Rights (ECHR) however ruled in favour of immunity for the U.N. The case against The Netherlands is still undecided.

Professor of Law Nico Schrijver (Leiden University) observes a growing feeling of unease with the concept of absolute immunity. In a recentpublication on the topic of immunity he states that only exceptional cases warrant immunity. He suggests that the U.N. should create an ombudsman where local citizens could file their complaint about a peacekeeping mission.

A new human rights violation

In the Srebrenica case U.N. Human Rights Committee member, professor Flinterman, hopes that the State of The Netherlands will proactively offer the victims compensation. “And hopefully it will be a bit sooner than it has happened with the war crimes in Indonesia”, he added.

“If the judge considers the case of the ‘Mothers of Srebrenica’ against The Netherlands inadmissible, it would in fact amount to a new violation of their human rights”, continues Professor Flinterman. “In my view an extra reason for The Netherlands to give compensation.”

As members of the U.N. Human Rights Committee, Flinterman and his colleagues are competent to examine individual complaints against states. Could the ‘Mothers of Srebrenica’ also call on Flintermans committee for justice? “If the judge would call the case inadmissible, they could.”

 

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