| International Immunity
- An overview of the international immunity enjoyed by international organisations and the problems faced by those bringing claims against international organisations
International organisations enjoy international immunity, a functional immunity designed to protect them and to ensure the independence of their internal functioning from nation states. However, this immunity extends to all legal processes within international organisations and encompasses all labour issues (dismissal, discrimination and compensation for harassment or unfair termination). International civil servants from the level of P5 and above enjoy diplomatic immunity for issues as mundane as parking tickets and as serious as assault (for example, hitting a staff member during a demonstration). In order to lift the immunity, (for instance, in order to bring a charge for assault), a litigant must request the international organisation to lift the immunity of the person concerned, a discretionary decision of the Director-General or Secretary-General in charge.
While there are many instances where international immunity is a useful tool (most obviously when UN workers in the field are caught in war zones and escape difficult situations through their immunity), there are also numerous examples of abuse of the immunity, due to the essential problem of conflict of interest. Ordinary States enjoy separation of powers between the executive, legislative and judiciary: international organisations tend to run these concepts together through a unique governance system which provides the Director-General of the international organisation a wide discretion to make decisions without consultation with any board of directors or parliament. A Director-General enjoys significant personal discretion in implementing key decisions. As many of these decisions affect staff members (for example, the quantum of separation entitlements, whether or not to initiate an internal investigation or whether or not to lift the organisation’s immunity in response to an external investigation), one consequence is an imbalance in the bargaining power between staff and management, and an absence of adequate checks and balances inside international organisations, both for staff and for affected third parties.
- The history of functional international immunity is grounded in diplomatic immunity
The history of international immunity is grounded in diplomatic immunity, a concept which has evolved over centuries from the need for Nation States to dialogue and to secure the unhindered fulfilment of diplomatic functions, such as immunity from criminal and civil litigation and a guarantee of safe passage.
International immunity is classically divided into three categories; sovereign immunity held by States, diplomatic immunity afforded to individuals as representatives of States, and organisational immunities granted to international organisations. The essence of the immunities afforded to representatives of foreign territories has always been to secure the unhindered fulfilment of diplomatic functions, such as immunity from criminal and civil litigation and a guarantee of safe passage. The evolution of sovereign immunity is discussed in full from section 1.1 to 1.2 of the Report Commissioned by CAIO and prepared by the Amsterdam International Law Clinic. (Click on Accountability, see "The (Non-) Application of International Law by the ILO: Possible legal avenues for establishing accountability", under “Publications”).
The ordinary application of law to the UN ought, one would think, follow the same rules as those followed under ordinary diplomatic immunity as enjoyed by sovereign state actors, where immunity only applies to public acts done in the sovereign character of a State, and not to private acts. This concept has been developed in British case law and is now generally accepted as defining and restricting the extent of State immunity (P Sands and P Klein (eds) Bowett’s Law of International Institutions (Sweet and Maxwell London 2001) 491.
The extent to which this concept may be applied to international organisations is limited by their non-sovereign status, but commentators such as Isabelle Pingel-Lenuzza and have followed the evolution of diplomatic immunity in international organisations, and have asked to what extend this immunity should be granted, and to what extent it ought to be limited. Functional immunity exists to ensure the smooth functioning of international organisations.
Today, unless the issue of due process is adequately addressed, international organisation immunity leads to impunity and at times, contributes to lack of accountability. High profile examples of this include the recent Oil-for-Food scandal, in which UN officials approved large payments in the form of kickbacks to the Iraqi regime, without penalty.
Yet more ordinary examples of absence of accountability abound. International organisations today keep over half of their employees on short-term contracts, some for decades.
Around 25,000 international civil servants live and work in Geneva, Switzerland. Yet over 50% (in some international organisations, up to 60%) of these are employed on short-term contracts.
Ordinary employment laws insist that after the first 3 to 6 months, employees on short term contracts are automatically regularised, and short term employees are treated in law as having been granted ordinary employment rights.
Yet in international organisations, around 50% of staff are kept on a series of renewable short-term contracts. Some particular egregarious examples of this include short-term contracts which last for periods of time as short as one week (it is not unheard of for contracts to be drawn up for a single day). Some staff are in the difficult position of holding repeatedly renewed three month contracts for up to twenty years, without access to pension or social security entitlements. This situation leads to an internal "class" structure, where political favourites with oldtimers enjoy permanent appointments, whilst newcomers and the out-of-favour vie for contract renewals. Naturally, this creates an unhealthy working environment, and a disadvantaged, economically vulnerable underclass of workers.
Legal Protection – the gap created by international immunity from suit in all domestic and international courts
The challenge for international lawyers is whether exclusion from local and national courts achieves the goal of ensuring international organisational immunity, without leading to impunity. In some instances, inadequate regulation of international organisation activities can contribute to a legal lacunae where corruption goes without prosecution until picked up by industrious journalists. This is a particular issue in incidents involving blue helmets or UN employees who become involved in sexual exploitation of young women in their care, as was seen in the widely reported Sex-For-Food scandal in Sierra Leone, Liberia and Guinea, where locally employed UNHCR staff were involved in exchanging food, to be distributed free to refugees, for sex with young female refugees. This broader issue of criminal immunity extends to UN actions in the field, where rape is often a difficult issue to police, due to fragile systems in contributing nation states, logistal difficulties and cover-up.
The other principle effect of international immunity is that international organisations employees suffer from an imbalance in their legal protection. On the one hand, senior international civil servants enjoy an international immunity enabling them to avoid payment of parking tickets. On the other, they do not have access to ordinary civil or criminal courts for legal redress in order to enforce their civil rights as they are typically affected by workplace problems, (discrimination, unfair dismissal, pension complaints, sequential short-term contracts over periods of years) or for redress or compensation for low-level criminal acts (such as assaults in the workplace).
Criminal acts tend to fall into the legal lacunae (or gap, without law) for particular reasons. In theory, Director-Generals of international organisations are under a duty to lift any immunity surrounding their senior diplomats when appropriate, to enable prosecution under local rules (as per the immunity agreement in Switzerland) or repatriation in order that criminal charges be pursued. However, often, this is denied when an assault takes place against a junior staff member which is perpetrated by a senior official (particularly where this senior official is the Director- or Secretary- General, the same person making the decision as to whether or not to lift the immunity).
In practice, the immunity has not been lifted on a number of critical occasions over the years, each involving the discretion of the Secretary or Director-General:
In an incident involving a Director-General of an international organisation eight years ago, the former Director-General was himself involved in an assault of a staff member. The staff member was part of a “lock-out” and was sitting in the corridor as the Director-General walked down the corridor. The Director-General grabbed the staff member by the hair and threw her to the side, enabling him to pass, and causing her to loose consciousness. The staff member concerned tried to bring an action against the Director-General, but her complaint was not permitted by the Organisation.
In another, more recent, episode, a staff member alleged sexual assault during a board meeting. The staff member lodged a complaint about the incident. An internal report was produced, which held the witness to be reliable and recommended disciplinary sanctions for the High Commissioner concerned. The Report, produced by the Office of Internal Oversight, was forwarded on to the Secretary-General of the United Nations. The Secretary-General pardoned the official, who later resigned. As reported by the Washington Post on 27 October 2005 under the subtitle “Annan Clears Refugee Chief” By Colum Lynch:
“OIOS sent Annan a report in May ‘supporting the allegations’ of sexual harassment and recommended that ‘appropriate actions be taken accordingly.’ It notes that after reviewing that report and talking to Lubbers, the U.N. chief ‘decided that the complaints could not be substantiated by the evidence and therefore closed the matter.’”
In an ordinary sexual assault or harassment charge, there would be no additional discretionary power exercised by high-level diplomatic officials, deciding unilaterally (and without judicial review) whether to lift immunity in order that charges be brought. Such a discretion always lies with the Director-General of international organisations, and is not subject to judicial review.
To understand the practical effect of the immunity, it is necessary to take a close-up of the situation in law. This reveals further problems, both for staff inside international organisations wishing to bring a legal action and for third parties. Click on Legal Links, for an overview of expert legal opinions.
Practically, such legal deficiencies even greater problems for young women victims of sexual assault in far-flung UN missions, where often, little exists in the way of rule of law.