UN immunity overrides ius cogens norms of international law
This guest post was written by Bella Murati, Ph.D. Candidate at the Human Rights Centre of Ghent University.
July 2013 marks the 18th anniversary of the Srebrenica massacre, when in the period of 13-19 July 1995, more than 8,000 unarmed Bosnian Muslims were deliberately killed by Bosnian Serb forces. The case itself has been termed by both the International Court of Justice (in the Bosnia and Herzegovina v. Serbia and Montenegro case) and the International Tribunal for former Yugoslavia (in the Krstić case) as an act of genocide.
Although Serbian leaders (political and military) bear the greatest responsibility in this case, a certain amount of responsibility rests with the Dutch Battalion who at that time was serving with the UN Protection Force, as well as with the troop contributing country, in this case the Netherlands. Both actors have been accused of failing to protect civilians which were entrusted to them by the United Nations and, as such, of failing in their duty to prevent genocide.
Recently, in Stichting Mothers of Srebrenica and Others v. the Netherlands the European Court of Human Rights (ECtHR; the Court) refused to entertain a claim launched against the Netherlands by relatives of victims of the Srebrenice massacre. The Court relied on the immunity of the United Nations to reject the application as manifestly ill-founded. The ECtHR decision will be scrutinized here.
The accountability of international organizations is closely linked with the privileges and immunities that have been granted to these organizations in order to allow them to effectively and independently carry out their functions. 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”.
In light of the above , the UN enjoys immunity from every form of legal process of the host country. Though the Convention refers to the functional immunity that is merely designed to ensure the independent functioning of the UN from states suit, in practice it has been understood as an absolute immunity. National courts have placed absolute immunity of United Nations as a requirement under customary international law.
The impunity of United Nations for the Srebrenica case was challenged for the first time in front of the domestic courts in the Netherlands where the NGO Mothers of Srebrenica initiated a procedure against both the United Nations and the Netherlands (Mothers of Srebrenica v. The Netherlands & the UN). The application was grounded on Dutch civil law and international law.
In regards to the Dutch civil law, it has been argued that the United Nations and the State of the Netherlands failed to abide by the agreement which has been concluded with the inhabitants of the Srebrenica enclave (including the applicants) by which the above mentioned parties commit to provide protection inside the Srebrenica “safe area” in exchange for the disarmament of the forces that belonged to the Army of the Republic of Bosnia and Hercegovina (ARBH). Moreover, it has been stated that the state of the Netherlands, with the connivance of the United Nations, had committed a tort (onrechtmatige daad) against the applicants since they failed to send well equipped troops to Bosnia and Herzegovina capable of ensuring stable and peaceful environment for the entire zone. Whereas the argument under international law was based on the International Law Commission’s Draft articles on State Responsibility and Draft articles on the Responsibility of International Organizations, which enshrines a multiple attribution rule that provides a ground of responsibility for both, a state and an international organization involved in an operation.
However, in all judicial instances the immunity of the United Nations prevailed and in this regard it has been ruled that domestic courts do not have the jurisdiction to hear cases against the United Nations due to the far-reaching immunity that has been granted to them by the UN Charter and by the Convention on the Privileges and Immunities of the United Nations.
Soon thereafter, the ECtHR entertained the same challenge. On 8 October 2012 the Stichting Mothers of Srebrenica lodged an application (application no. 65542/12) against the Netherlands. The Court was asked to decide whether the Netherlands had violated the applicants’ right of “access to a court”, as guaranteed by Article 6 of the Convention, by granting the United Nations immunity from domestic jurisdiction. In addition , pursuant to Article 13 , the Court was asked to assess whether the granting of immunity to the United Nations allows the Netherlands to evade its liability towards the applicant. The applicants claimed that the nature of the immunity from domestic courts which international organizations enjoy is of a functional nature , whereas the very nature of their claim, which derives from the act of genocide committed in Srebrenica is of a higher order than any immunity which the United Nations may enjoy. Moreover, according to them the absence of any alternative jurisdiction to remedy acts against the United Nations results in an effective deprivation of applicants right to an effective remedy.
On 27 of June 2013, the Court decided to reject the complaint as manifestly ill-founded. Once again it rejected attempts to question what it takes for an international organization to be legally accountable for its conducts. The Court simply acknowledged the well-recognized practice that the immunity granted to an international organization is essentially important for ensuring the proper functioning of such organization in practice. In the Court’s view “it is a long-standing practice established in the interest of the good working of these organizations” and as such it has a legitimate objective.
Subsequently, the Court considered that the right to access to a court can be restricted. It highlighted that “International law does not support the position that a civil claim should override immunity from suit for the sole reason that it is based on an allegation of a particularly grave violation of a norm of international law, even a norm of ius cogens”.
So in light of the above it appears that the immunity of international organizations proves to be above the ius cogens norms and subsequently gives a legitimate purpose for restriction of right to access to the court. Such reasoning poses a direct challenge to scholars which consider that the “human rights rationale of providing access to court is equally cogent in the context of the immunity of international organizations”. In light of the above, it seems that the immunity and privileges granted to an international organization will continue to pose a stumbling block to accountability of international organizations.
Those who feared that the Court’s reasoning in Behrami/Saramati might become established law and as such may have a negative impact on an overall involvement of the United Nations in peace operations proved to be “too optimistic”. Unfortunately , the current decision will serve as a precedent for other courts to refuse review of cases that involve human rights violations committed by both , state members acting under UN authority and United Nations as an international organization, as it happened in Srebernica case.
It is difficult to imagine that a workable test for a functional immunity of the United Nations will be found in the near future. It is likely that the ECtHR will continue to follow this “long standing practice” of building a fortification around the Convention on Immunity of the International organizations, making it stronger and stronger.
 August Reinisch and Ulf Andreas Weber, ‘In the Shadow of Waite and Kennedy’, International Organizations Law Review 1; 2004, pp.61-62.
 UNSC Resolution 819, 16 April 1993. UNSC urged that: “all parties and others concerned treat Srebrenica and its surroundings as a “safe area” which should be free from any armed attack or any other hostile act”.
 ECtHR Decision, App.65542/12, Stichting Mothers of Srebernica and Others v. the Netherlands, paras. 54-56.
 August Reinisch and Ulf Andreas Weber, ‘In the Shadow of Waite and Kennedy’, International Organizations Law Review 1; 2004, p.64.