Sri Lankan takes the UN to Court: Immunity Is Not Impunity for Illegalities by UN
If the Rule of Law implies that every citizen is subject to the law including law makers themselves, how is it that the UN has given itself immunity through the UN Charter and the Convention on Privileges and Immunities of the UN? If the Convention was meant to deny states from making false charges and spurious prosecutions against the UN why is there no provision to protect member states from being victim to false charges & spurious prosecutions by the UN? What is the legal status when an individual plaintiff files a case against the UN as has currently happened with Dr. Gunadasa Amarasekera taking on the UN for illegal resolutions and investigations? If the UN is the party being alleged of doing wrong who will judge the case put forward by Dr. Amarasekera. Leaving aside a blanket immunity what is more important is the merit of the legal arguments under which the case was filed.
When the UN declares itself immune what does it say about victims’ right to a fair trial?
Just because international organizations and their officials are granted immunity in cases where they act with bias and commit illegalities what is the recourse that can be taken?
Right to a fair trial is a fundamental right and is part of due process though substantive due process accepts that no fundamental right is absolute.
When the UN stands for justice how right is it to incorporate an immunity clause preventing member States from taking it to court? When can the grievances of victims be heard against international organizations connected to the UN and officials who are UN employees using their position to do illegal acts?
The UN : Background to Immunity
- The UN was founded in 1945. In 1946 the Convention on the Privileges and Immunities of the UN set out specific privileges and immunities for the UN & its staff.
- The Convention does not mention specific crimes and
- In 1946 UN had only 300 staff and serves were diplomacy only. Today, the UN comprises over 44,000 staff carrying out multiple missions of varying nature.
- Neither specific crimes nor exceptions to immunity are given in the Convention as the Convention was designed to ensure states would not use false charges or spurious prosecutions against UN staff (what happens when the US staff does the same to Member states?)
- The Convention does give the UNSG to waive immunity (however what if the UNSG himself becomes the wrong doer as in the case of Sri Lanka?)
- Thus how fair is it for the UN & Staff to be immune from any ‘legal process’ when they might be doing wrong knowingly?
Clauses in the Convention:
The immunity of the United Nations is primarily governed by the United Nations Charter and the Convention on Privileges and Immunities of the United Nations (‘The Convention’). According to Article 105 paragraph 1 of the UN Charter: “The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes.” Whereas the Immunities Convention further provides in its Article II, Section 2, that: “The United Nations […] shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity”.
However ‘Experts on Mission’ has not been defined in the Convention and leaves scope for lawyers to explore legal prosecutions.
There are some legal questions unanswered
1. Article II, Section 2 of the General Convention affords the UN absolute immunity. What about UN’s obligation to provide alternative modalities to settle individual third-party claims under Article VIII Section 29 of the same Convention which would be applicable to Dr. Gunadasa Amarasekera’s case?
2. How can UN’s absolute immunity be reconciled with the UN’s role in promoting and ensuring respect for human rights including the individual’s right for access to justice?
The domestic court which will soon take up the arguments of Dr. Amarasekera’s case we hope will not bow down to foreign pressure. It is the plaintiff’s right to hear his grievance and the arguments of the case must be given hearing in the court despite the UN giving itself blanket immunity.
It is the publics right to know if as Dr. Amarasekera rightly says whether the UN & UNSG have committed illegalities knowing that they are immune from legal process. Even if the UN and officials are declared immune it is the merits of the arguments that matter and the onus is on the domestic judges to take up these arguments and give a legal judgement though the conclusion is known to all. Though the conclusion is known beforehand that should not deter the judges from telling the plaintiff that his arguments are correct but that no law in the world can do anything against the UN.
Anyone reading this would realize that we have created a monster out of the UN and from the manner it is now functioning it is all the more clear that the UN is being hijacked and used to advance the geopolitical agendas of bloc nations following neo-liberal policies.
Shenali D Waduge
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