Document Type

Article

Disciplines

International Law

Abstract

Immunity protections are particularly important in peacekeeping operations where the UN is often intervening in an unstable political environment and where normal institutions of law and order are not functioning. With the rapid expansion of UN peacekeeping since the early 1990s, the General Assembly has regularly passed resolutions calling on states to respect the privileges and immunities necessary for the organization to achieve its objectives in difficult field environments.4 Immunity has been invoked by the UN not only to protect its personnel from harassment, but to protect itself from suit for institutional negligence, such as its failure to act while genocide was taking place in Rwanda.' In recent years, however, in response to a number of highly publicized cases of misbehavior,6 the UN has taken steps to make peacekeeping staff and administrations more accountable, including issuing an executive order requiring peacekeeping troops to abide by the Geneva conventions,7 and denying immunity protection when a serious breach of law is implicated. The issue of immunity for peacekeepers arose most recently in June 2002 when the United States threatened to veto the extension of current peacekeeping operations in the Security Council unless U.S. personnel were granted a blanket immunity from prosecution by the International Criminal Court.

While some senior United Nations officials enjoy the benefits of full diplomatic immunity and military personnel are regularly granted complete immunity in Status of Forces Agreements, most United Nations staff and field personnel are protected by a more ambiguous 'functional' or 'official capacity' immunity. The expansive mandates of transitional administrations such as UNMIK [United Nations Interim Administration Mission in Kosovo] and UNTAET [United Nations Transitional Administration in East Timor] present special problems for determining the scope of this immunity. Where the UN itself acts as the government, the normal rationale for immunity, shielding the organization from state interference, makes little sense. Broad staff immunity in such cases may violate the principles of democratic accountability and human rights at the core of these missions' mandates. This paper will attempt to draw some preliminary conclusions on current immunity practice in transitional administrations, and try to reconcile that practice with current and emerging law on immunity and human rights.

The paper will begin by setting out the basic legal texts and jurisprudence upon which claims of functional immunity are based, and reviewing current procedures for handling allegations of abuse in the field. It will then examine in some detail the ways in which issues of immunity have been dealt with in Kosovo and East Timor, and suggest that even a limited immunity may be inappropriate where the UN is acting as a government. Finally, it will discuss how the conflict between immunity protections and institutional accountability reflect a larger conflict between the human rights and peace and security functions of UN governance operations.

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