WHAT IS THE RATIONALE FOR THE GRANT OF IMMUNITIES TO UN CIVILIAN PERSONAL AND HOW, IF AT ALL, DOES IT PREVENT ACCOUNTABILITY FOR MISCONDUCT BY CIVILIAN PEACEKEEPERS?
The grant of immunities to officials of foreign nations and international organizations is a widespread and accepted practice in international relations and not without good reason. These immunities and privileges play a crucial role in enabling such persons to carry out their duties effectively without the interference of political or coercive influences.
However as the well known saying goes, power corrupts and absolute power corrupts absolutely. Granting absolute immunities is also hence, problematic as ...view middle of the document...
This is premised on the notion that such individuals must be empowered to carry out their duties without undue interference from the host state. This traditional idea of diplomatic immunity forms the basis for immunities granted to UN officials as well.
This rationale can be found reflected in the UN Charter itself which states as per article 105 that:
(i) the Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes;
(ii) representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.
Therefore the first basis for immunities for UN personnel flows from the charter itself.. However it is pertinent to note that such officials are solely granted a limited, ‘functional’ immunity as per the words of the Charter. The logical rationale that would therefore flow is that all acts falling outside the scope of such individual’s ‘functional’ or official are not within the purview of the Chartered immunity and may be prosecuted.
The convention on immunities and privileges makes the position clearer, conferring direct immunity on UN officials, civilian staff, military observers, and ‘experts on mission’ which include members of Civilian Police from all forms of legal process unless such immunity is waived by the Secretary-General. It also empowers the Secretary-General to grant immunities.
In the case of peacekeeping missions specifically, in practice, immunity is granted under Status of Forces Agreements (SOFAs) concluded between states, providing for the jurisdiction governing military forces and in certain instances civilian personnel, in a foreign state. SOFAs typically permit sending states to exercise exclusive criminal and civilian jurisdiction over its citizens that form part of a peacekeeping mission abroad.
In the case of peacekeeping missions immunity is particularly important as the states involved are generally post conflict nations with unstable political environments and wherein normal machinery of law and order does not exist or has been severely compromised. In such delicate situations the threat of liability would deter such officials from executing their duties with decisiveness. Moreover, it is also highly questionable whether the courts of such states mired by armed conflict and with crippled legal machinery would even be able to adhere to international standards of due process in such trials. Therefore allowing foreign personnel to be tried by such courts may be considered risky and inappropriate.
Furthermore, in the case of civilians especially, who are not empowered to carry arms for their own protection, the threat of impunity by the state they are functioning in would greatly compromise their ability to work effectively unless they are granted...