The United Nations has a long and storied history of mistreating the vulnerable populations it seeks to help. From the withholding of food to those in refugee camps to allegations of sexual assault and abuse by UN Peacekeepers and even the outbreak of cholera in Haiti, the international organization has failed to reform such behavior and hold itself accountable. Immunity from local laws permits UN personnel to exist without repercussions for their actions leading to atrocious crimes against vulnerable populations and protection for aggressors.
End the UN’s Legal Immunity
Ian Hurd, The Hill
July 22, 2016
When the United Nations housed Roma refugees in Kosovo, it built their camp next to a lead-smelting plant. For years, the UN ignored the residents’ complaints that toxic waste was causing seizures, miscarriages, brain damage, and more. A UN report last week excoriated the organization for not taking them seriously. It called the organization’s complaints process a “sham” that abused the very people it was supposed to protect. It is well known that the UN operates with impunity when it harms innocent people – Congress and the White House can bring that to an end.
In Central African Republic, French peacekeepers used local teenagers as sex slaves. In Kenya, the UN withheld food from an entire refugee camp to punish people for a protest there. In Haiti in 2010, peacekeepers accidentally contaminated the water supply with cholera and launched an epidemic that has killed 8000 people and counting. In 2012, Pakistani peacekeepers in Haiti repeatedly raped a 14-year old boy. When officials came to investigate, their commanding officer sent the boy to another town so that he could not be interviewed. The local courts are powerless to address any of these wrongs. This is a tragedy for the people who suffer, as well as for the UN and its reputation.
When the UN sends peacekeepers abroad they arrive at their destination in a bubble of legal immunity. No matter how badly things go on the mission, how poorly the peacekeepers behave or what harm they cause, no courts have the capacity to hold them accountable. This is an untenable situation – it’s bad for the UN, bad for the peacekeepers, and especially bad for the people who have no choice but to live under their authority.
The UN is perfectly insulated from legal accountability in any form, civil or criminal. Its founding treaties say that it “shall enjoy immunity from every form of legal process” in all its operations, This makes it impossible for individuals to sue the UN for any harm it might cause. In addition, peacekeepers are exempt from local criminal laws. Neither the UN nor its peacekeepers can be brought before local courts. These protections remain in place whether the harms are caused by willful malevolence or mere negligence on the part of the UN. The rapes in the CAR fit the first of these and Haiti’s cholera the second. Both speak to a pervasive lack of effective oversight of field operations, made possible by its immunity.
To make matters worse, individuals have no right to present their own claims claim for damages to the organization. The UN does sometimes pay out compensation, and it sometimes waives the immunity of its officials, but this is at the discretion of the Secretary-General. The three Pakistani peacekeepers were sent back home and the UN decided not to lift their immunity. Their commanding officer was allowed to stay on the job in Haiti. The case was recognized inside the UN as so egregious that it became a ‘poster case’ for better accountability. But none came. Even in the worst cases, the people who are harmed by the UN are shut out, and the organization continues as before.
Two simple changes would go a long way toward holding the UN accountable. First, the State Department should issue a statement recognizing the UN’s legal immunity as functional rather than absolute. The original UN Charter gave the UN immunity only for acts necessary to its public duties, not for cholera and rape. But the US has for many years taken the view that the organization should be entirely untouchable by domestic courts. And so, when cholera victims tried to sue the UN in New York the US government reminded the judges of this broad interpretation of immunity and encouraged them to dismiss the suits. This creeping extension of immunity is a mistake. The US should push the UN back to the black-letter law of the Charter. This would set a model for other countries to follow and open the door to legal accountability. The same limited version of immunity should apply to individual peacekeepers so that they become subject to the jurisdiction of local criminal courts.
Second, every new UN peacekeeping operation should include an office tasked with considering claims for damage by private individuals. This would give local people someone to appeal to when they suffer at the hands of the UN. While every peacekeeping agreement between the UN and the host government already includes the possibility of a ‘claims commission’ of this kind, not a single one has actually been brought on line by the UN. A pathway for private claims should be mandatory for all missions.
Defenders of the UN will counter that the organization must be free from legal liability in order to function effectively. To take one pressing example, it is easy to imagine that fears of liability could make the UN unwilling to house refugees who have fled the Syrian war. So many things could go wrong that the UN might simply decide it is not worth the risk. This could leave a highly vulnerable population even more adrift.
This sad scenario offers a false choice between a reckless UN and an immobile one. Neither is acceptable. The potential for legal liability would induce the UN to improve its operations. It would encourage those in charge to take a realistic look at all acts that might be legally attributed to the organization and think harder about how to hold those who act its name accountable for their actions.
The business sector has taught us that corporations perform poorly when internal oversight is weak. If subordinates are unaccountable to superiors and the costs of bad choices are not felt by the firm then those in the executive suite have little incentive to care about what is happening down the chain of command. This same holds at the UN. While legal accountability cannot fix everything in UN operations, it is a crucial first step to empower local people in situations where things have gone wrong.
To be sure, ending the UN’s special privileges would increase the legal and financial risks of UN operations. It might require that the organization buy insurance, monitor its peacekeepers, and on occasion pay compensation when it makes a mess of things. These are reasonable costs that should be internalized by the organization as part of the cost of doing business. At present, those costs are being exported onto the people the UN purports to be serving. Compared to the children of CAR and the people of Haiti, the UN is rich and powerful. It can afford the costs and risks that accompany its global operations.
By demanding that the UN accept a greater share of its real liability, the next US president can contribute to more careful decision-making in the organization and, more importantly, improve the welfare of ordinary people who live under UN authority.
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