Bruce Rashkow is an ABA Representative to the United Nations, a member of the Council of the Section of International Law, and a lecturer at Columbia Law School in New York. He previously worked at the UN Office of Legal Affairs.
The United Nations has come under increasing scrutiny amid allegations of sexual exploitation and abuse (SEA) and other crimes, including financial fraud and theft committed by United Nations (UN) peacekeeping personnel. Indeed, allegations of SEA have long plagued the UN and prompted many calls for action, including by the Section of International Law and the ABA more generally in regard to such abuses in the Congo. Last year, the ABA House of Delegates adopted Resolution 105 calling for the UN and its Member States to provide improved accountability for programs and services provided to victims of sexual and gender-based violence in areas of armed conflict.
The latest reports of sexual harassment and assaults of UN employees suggest a UN climate in which SEA is more widely tolerated and which, if true, present an issue that undermines the effectiveness and legitimacy of the UN. See, e.g., Rebecca Ratcliffe, Sexual Harassment and Assault Rife at United Nations, Staff Claim, The Guardian (Jan. 18, 2018 11:00 EST).
These continuing allegations of the failure of the UN to accept accountability in the area of SEA are amplified by past incidences of the UN failing to accept accountability in regard to the failure of the UN to protect the inhabitants of a UN safe haven in Bosnia from armed attack, exposing UN protected refugees from armed hostilities to lead poisoning, and creating an enormous cholera crisis in Haiti.
As litigation in those cases demonstrated, accountability remains complicated by legal aspects of privileges and immunity of the UN and its Members States to step up and accept responsibility, including responsibility they have mandated in regard to SEA and under the special liability regime for harm to third parties arising from peacekeeping activities.
Ensuring timely and conscientious action to follow existing mandates and policies is vital to strengthening accountability, achieving the benefits of peacekeeping, and ensuring justice.
UN Peacekeeping Accountability Is Not New
The accountability of the United Nations for injuries to third parties for its activities in the peacekeeping context is not a new issue and is not limited to concealing misconduct.
Accountability has been with the United Nations almost since its inception, dating back to the earliest of those missions in 1948 with the UN Truce Supervision Organization (UNTSO) and the UN Military Observer Group in India and Pakistan (UNMOGIP)—both of which continue to this day. Indeed, in all, there have been seventy-one UN peacekeeping operations since 1948, involving more than a million military, police, and civilian personnel, and costing some $70 billion. Today, there are fifteen peacekeeping missions employing some 95,000 uniformed personnel and more than 15,000 international and local civilian personnel and costing annually some $8 billion. See UN Peacekeeping; United Nations Handbook 2017–2018, pp. 110–125.
Until relatively recently, the question of the accountability of the UN for injuries to third parties during peacekeeping operations was not a significant issue for the UN. For most of the history of the UN, peacekeeping missions were relatively small in size with the modest mandate of simply keeping the warring factions separated so as to encourage dialogue that would hopefully result in a lasting resolution of the underlying political issues. As both UNTSO and UNMOGIP demonstrate, the achievement of this ideal has proven in some cases to be elusive.
For the many years leading up to the end of the Cold War, UN peacekeeping missions with their modest mandates to separate the warring factions, generated relatively few claims for injuries to third parties that generally were of a routine nature. Most of these claims were generated by automobile accidents involving UN vehicles or by contractual disputes with those locals who may have been providing premises or other services to the missions.
Evolving Mandates of UN Peacekeeping Missions
With the conclusion of the Cold War and the dissolution of the old Soviet Union towards the end of the 20th Century, there was a new approach to peacekeeping based on a new non-Cold War “consensus” of East and West. This period witnessed an expansion of UN peacekeeping activities in what was becoming a more complex world situation involving not simply conflicts between neighboring states, as had been the case in the past, but increasingly internal conflicts within states that threatened the peace and security within those states and also of neighboring states. This period also saw both an increased number of UN peacekeeping missions and the growth of proactive mandates of new missions. Unlike the past where the UN simply separated the warring factions, these new mandates have involved the UN often actively engaging the warring factions to protect civilian populations from being attacked or abused and to permit the distribution of humanitarian assistance to sustain those populations.
Indeed, the UN, for the first time in its history, authorized its peacekeeping forces in the Democratic Republic of the Congo (MONUSCO) in 2013 to proactively seek out and militarily strike armed elements that were threatening civilian populations with human rights abuses and the delivery of humanitarian assistance. The Security Council created, within the overall peacekeeping forces of that mission, a special "Intervention Brigade" with the responsibility "of neutralizing armed groups" for the "protection of civilians from abuses and violations of human rights and violations of humanitarian law, including all forms of sexual and gender-based violence and grave violations against children." See S.C. Res. 2098, ¶¶ 9–12 (Mar. 28, 2013).
The increasingly robust mandates of peacekeeping missions to protect civilians, especially the “Intervention Brigade,” has been criticized as placing the neutrality of the members of such missions, particularly members of the military contingents serving in such missions, in question, exposing such personnel to claims by the warring factions to treat such individuals as “enemy combatants” who may be legitimate military targets. See Mona Khalil, Humanitarian Law and Policy in 2014: Peacekeeping Missions as Parties to Conflicts, Professionals in Humanitarian Assistance and Protection (PHAP, Feb. 13, 2014).
UN Immunity and Responsibilities
Initially, there is the issue of the generally absolute immunity of the UN from any kind of jurisdiction in the courts of UN Member States. See UN Charter, arts. 1, 105; Convention on the Privileges and Immunities of the United Nations, art. 8, Feb. 13, 1946, 21 U.S.T. 1418. However, the UN has traditionally provided a means for these routine claims to be resolved. Virtually since its inception, the UN has had in place a worldwide insurance policy to deal with automobile claims throughout the world that has dealt with this issue on the ground in the various places where the UN manifests a presence. In addition, the UN has established internal administrative processes within each peacekeeping mission, including local internal claims review boards, to deal with claims against the UN, whether of a contractual or tort basis. These responses of the UN have generally been effective over the years to address claims by third parties in peacekeeping missions. See Bruce Rashkow, Immunity of the United Nations: Practice and Challenges, 10 Int’l Org. L. Rev. 332, 337–339 (2013).
However, with the end of the Cold War and with a dramatic increase in the number of UN peacekeeping missions and an expansion to more robust mandates of such missions, a large increase in the number and nature of third party claims in such operations led the UN to establish a special comprehensive liability regime to deal with those claims. That special regime spells out the extent of UN liability for both tort and contract claims, including personal injury and death and damage to property, arising out of the activities of UN peacekeeping missions. The special regime, which provides for claims to be addressed administratively by the UN principally in the field, as they have always been addressed, excludes certain kinds of claims, e.g., claims arising out of “operational necessity” as well as “military necessity”; and imposes certain temporal and financial limitations on the liability of the UN. See Bruce Rashkow, Above the Law? Innovating Legal Responses to Build a More Accountable UN: Where Is the UN Now?, 23 ILSA J. Int’l & Comp. L. 345, 348–349 (2017).
Limitations of the UN’s Special Liability Regime
Notwithstanding the efforts by the UN to responsibly address the changing nature of UN peacekeeping and the third-party claims resulting from such activities, three cases have arisen that have challenged the reputation of the UN as being fundamentally fair in dealing with such claims: Mothers of Srebrenica, Kosovo, and Haiti Cholera victims. The first two cases involve claims arising from the failure of the UN to protect innocent civilians threatened with armed attacks by one of the warring factions while the third case involves the purported negligence of a UN peacekeeping mission to properly maintain waste treatment facilities utilized by its military contingents. In all three cases, the UN declined to accept responsibility for the claims, successfully asserting its immunity in cases brought before the domestic courts in The Netherlands regarding the Mothers of Srebrenica and the United States in the Haiti Cholera case.
Mothers of Srebrenica
The Mothers of Srebrenica case involved the failure of the UN peacekeeping mission in Bosnia to protect civilians under the protection of the UN peacekeeping force in a UN-established “safe area.” The UN abandoned the area and the civilians to Serb forces in the face of a threatened attack on the area by such forces, resulting in the massacre of several thousand Bosnian men and boys. The mothers of the victims sued the UN and the Dutch government in Dutch courts, which ultimately recognized the immunity of the UN. They then appealed that judgment to the European Court of Human Rights, which affirmed the immunity of the UN but not the Dutch government. See Stichting Mothers of Srebrenica and Others v. the Netherlands, App. No. 65542/12, Eur. Ct. H.R. (27 June 2013). In upholding the immunity of the UN in that case, the courts focused on the mandate of the UN peacekeeping mission to use force under Chapter VII of the UN Charter to protect the civilians in the safe areas from armed hostilities. See Rashkow, at pp. 349–51.
The Kosovo case also involved the mandate of a UN operation under Chapter VII to use force to protect threatened civilians. However, in that case, the claims against the UN were not based on the failure of the UN to protect people, but on the negligence of the UN in the exercise of that mandate. The Kosovo case involved the actions of the UN in placing internally displaced persons threatened by armed hostilities in protected areas that, because of environmental lead pollution of the areas, resulted in damage to their health. A complicating factor for the claimants was the fact that the UN in that case was not simply acting under its mandate as a UN peacekeeping force but, pursuant to the Security Council mandate, was also acting as the interim or temporary governmental authority in Kosovo pending the resolution of the underlying conflict between the warring factions. Based on these considerations, the UN declined to consider the claims asserting that the claims were not of a private law character that legally would warrant action by the UN. See Letter from UN Under-Secretary-General on Claim for Compensation on Behalf of Roma, Ashkali and Egyptian Residents of Internally Displaced Person (IDP) Camps in Mitrovica, Kosovo (July 25, 2011).
Haiti Cholera Case
The Haiti case also involved claims of negligence of a UN peacekeeping mission that the claimants allege resulted in some 10,000 deaths and injury to hundreds of thousands of Haitians. These claims stem from actions by the UN peacekeeping mission beginning in 2010 in allegedly failing to adequately screen peacekeeping troops for cholera prior to deployment in Haiti and failing to properly maintain its waste treatment facilities, thereby allowing the introduction and spread of cholera throughout Haiti. From the outset in 2010, the UN declined to consider these claims arguing that the claims, like those asserted in Kosovo, were not of a private law character that legally would warrant action. Accordingly, when the UN was sued in U.S. courts beginning in 2013, it asserted its immunity. Both the U.S. District Court and the Appellate Court that heard the case upheld that immunity. Only following the decision of the Appellate Court in August of 2016, and a constant stream of criticism from a number of quarters over a long period of its failure to accept legal responsibility, did UN accept moral responsibility for not doing more to help the people of Haiti deal with the Cholera epidemic. See Rashkow, at pp. 351–57.
In accepting moral responsibility for the UN, the Secretary-General launched a Two Track initiative to respond to the cholera crisis in Haiti. Track I focuses on intensifying existing efforts to reduce and end transmission of cholera, improve care and treatment, and address long-term issues of water sanitation and health systems in Haiti. Track II focuses on the development of proposals to provide material assistance and support to those Haitians most directly affected by cholera, on an individual and community basis.
The Secretary-General identified the goal of raising $400 million for his initiative, $200 million for each track. Both tracks, however, rely on voluntary contributions from Member States and others, which thus far have not been significantly forthcoming, particularly in regard to Track II. Moreover, the “development” of proposals for the critical Track II initiative relating to material assistance to individual Haitian victims is apparently conditioned on the UN receiving funding up front for the implementation of such proposals even before development of the proposals can proceed—a significant obstacle to moving forward on that front depending on how the Secretary-General actually decides to proceed in this regard.
In the end, whether this Two Track initiative succeeds in providing significant relief to the people of Haiti—whether on a national or on a community or individual basis—is largely in the hands of Member States. It is they who will decide on whether to make the financial contributions called for in the initiative and, thus, whether to fund Track I or Track II, both, or neither! See Rashkow, at pp. 357–60.
Sexual Exploitation and Abuse
Any discussion these days on the accountability of the UN for harm caused to third parties injured in connection with UN peacekeeping operations must take into account the many and continuing allegations of SEA of the vulnerable civilian populations for whose benefit these missions were established by UN staff and members of the military contingents that make up these missions. This became an issue in the early 1990s, and the UN has been dealing with the problem since. Since the 1990s, the UN has enacted a series of policies intended both to prevent such abuses in the first instance and, failing that, to bring to justice those UN staffers and military personnel who engage in SEA, ratcheting up in each instance its efforts to deal with this issue. See Rashkow, at pp. 360–70. Although the UN has succeeded in significantly reducing the number of SEA incidents, the problem remains.
On the accountability front, it is important to note at the outset, that the UN does not, in principle, view itself as responsible for SEA committed by its civilian staff or military contingent members of its peacekeeping operations. The UN has in place a number of programs that seek to assist the victims of SEA both in responding to the immediate medical and material needs of those victims and in seeking justice after the fact for those victims. However, these acts of SEA, which are forbidden by UN policy and regulation, are viewed as criminal acts by the individuals involved, and are not viewed as the responsibility of the UN for which it might be held legally liable by the victims. See Rashkow, at pp. 363–64.
The efforts of the UN to hold its civilian staff accountable for SEA are complicated by the fact that, while the UN can administratively act to dismiss or sanction such individuals for serious misconduct, it does not have the power to institute criminal proceedings against them. In such cases, the UN routinely refers the matter to the appropriate Member State’s authorities to institute criminal actions, and relies on such authorities to follow up. Unfortunately, there are often issues of which Member State, if any, has jurisdiction over the matter under its own legislation, and, in any event, whether and how they may choose to proceed. The Secretary-General has made a number of suggestions to Member States for addressing this problem through domestic legislation or through multilateral action.
With respect to members of military contingents serving with peacekeeping operations, the matter is even more complicated because, as a matter of UN policy, these members are subject to the exclusive authority of the authorities of the Member States that have provided such contingents. The UN has adopted a number of policies to enhance cooperation between the UN and those Member States in the training to prevent SEA, the investigation of SEA incidents, and the follow up by those states regarding military contingent members who are accused of SEA. However, in light of continuing problems with SEA, the Secretary-General has recently made a number of additional far-reaching proposals to the General Assembly to reform the system for dealing with SEA generally to better ensure that allegations of SEA are effectively pursued and justice for the victims is achieved. See Rashkow, at pp. 364–70.
Is the United Nations Above the Law?
It remains to be seen whether and to what extent the General Assembly, and in particular the Member States who provide military contingents to UN peacekeeping operations, will accept and act on proposals to strengthen the accountability for SEA within UN peacekeeping operations and more generally throughout the UN system, and whether and to what extent it will implement its special regime for harms caused to third parties in the peacekeeping context.
The UN needs to correct its past failures and must act in a timely and conscientious manner to implement existing policies and enact new policies to end a culture of impunity. It is clear that further concrete actions will be needed to achieve accountability and justice.