COMMENTARY BY ENIS OMEROVIĆ: The United Nations and the Paradox of Their Absolute Immunity

By Enis Omerović

The Kingdom of the Netherlands has been declared responsible in civil law for the failure to protect a portion of Bosniaks during a critical period. The highest court partially confirmed the ruling of a lower Dutch court from 2017. It declared its state responsible in the context of genocide, not for all victims of this committed crime in the UN safe zone of Srebrenica in July 1995, but only for Bosniaks who sought refuge in the UN base in Potočari. Thus, we have the responsibility of one state solely for those members of the Bosniak group who took shelter and had to leave the said area. We also understand the latest decision in the sense that the Supreme Court determined that Dutch soldiers could only have done something to protect those Bosniaks who were within their military base. However, the probability that the liquidated Bosniaks could have survived had the Dutch battalion accidentally protected them after the fall of Srebrenica is, according to this court, ten percent. According to such findings, this should further complicate and increase the responsibility of those who directly managed UNPROFOR in Bosnia and Herzegovina – and that is the UN. But did this state interfere during that period and briefly interrupt the command chain within the Organization? We received the answer: it interfered by only ten percent, while the UN interfered by a full ninety!

In this text, I will not deal with the responsibility of a European kingdom – I will deal with another huge issue – what about the UN and their international legal, as well as civil law responsibility? Given the separate international legal personality of international organizations from the legal personality of their member states, it seems necessary to accept the understanding that, in principle, an international organization must assume legal responsibility for all its activities in international relations, “including for what constitutes an internationally wrongful act, regardless of the potential co-responsibility of its member states” (D. Lapaš, 2008).

The classical thinking is that when an international organization commits an internationally wrongful act, the organization is considered solely responsible, even if the act means a breach of obligations by its member states, if it was committed by them. However, is it not necessary to break away from such a rigid interpretation of the responsibility of an international organization? Above all, with the argument that when states, its members, abuse the international legal personality of an international organization, through the exercise of extensive control over the decision-making process within the organization (who had effective control over the Dutchbat in the UN safe zone of Srebrenica on the critical dates?), they should be held responsible, along with the organization, for violating international law by the organization, provided that such a wrongful act would also constitute a breach of international obligations by its member states if they had committed it. In such a situation, member states would no longer be able to hide behind the international legal personality of the organization (J. d'Aspremont (2007)).

Based on this, we see that the doctrine of dual legal responsibility of an international organization and its member states is largely of recent origin (the Draft Articles on Responsibility of International Organizations of 2011 are also in this vein) and differs significantly from the classical understanding according to which an international organization is solely responsible for an internationally wrongful act, which is particularly evident in peacekeeping missions when states, its members, are involved in the peacekeeping process by making their national military contingents available to the organization. As confirmation of this contemporary interpretation of responsibility, the court case against the Netherlands before its national courts, in which it was declared legally responsible for the conduct of its battalion in Bosnia and Herzegovina (Srebrenica safe zone) in 1995 as part of the Organization's peacekeeping mission, also serves.

However, these contemporary interpretations remain contemporary only on a theoretical level. It seems, however, that this remains only at the level of a general view without any constitutive effect, and that we still do not have a single judgment in which the UN has been declared responsible for committing an internationally wrongful act, primarily due to invoking the immunity they enjoy in the territory of their member states. Following this doctrine is the case of Mothers of Srebrenica et al v. State of The Netherlands and the United Nations, in which the Supreme Court of the Netherlands, as early as 2012, and in relation to this international organization, upheld earlier decisions of the lower courts of the District and Appellate Courts in The Hague, confirming that this organization enjoys full immunity from prosecution, even in relation to the gravity of its breaches of international obligations. Dutch domestic courts therefore declared themselves incompetent in relation to the UN in this proceeding, in which two substantive questions were raised regarding the Organization – whether the immunity of an international organization as an international legal person is absolute (i.e., operates without any limitation) and whether such immunity would still hold in situations of international crimes or serious violations of fundamental human rights. In relation to these questions, the Supreme Court of the Netherlands in 2012 took particular account of the UN Charter of 1945, the Convention on the Privileges and Immunities of the UN of 1946, as well as the interpretation of the European Court of Human Rights in the significant case of Behrami and Behrami v. France and Saramati v. France, Germany and Norway of 2007, in which it is determined that international obligations arising from the UN Charter take precedence over conflicting obligations from any other international treaty, regardless of whether it was concluded before or during the validity of the Charter. Therefore, the Court reached the legal conclusion that the UN is entitled to possess absolute immunity and has the right to it, despite the extreme seriousness of the accusations on which the Mothers of Srebrenica Association bases its claims.

The Supreme Court of the Netherlands gave special importance to the discussion of whether the right of access to court outweighs the immunity of the UN, given that the Organization is accused of involvement in the crime of genocide and other serious violations of fundamental human rights. The plaintiffs in this legal matter emphasized that “there is no norm in international law more important than the prohibition of genocide. [...] The enforcement of this norm is one of the main reasons for the existence of international law and the most important international organization, the UN. This means that in case of failure to prevent genocide, international organizations have no right to immunity, and in any case, the prohibition should take precedence over immunity. The view that the UN's immunity is stronger in this case would mean that the UN has absolute power. Such power would not be subject to restrictions, and it would mean that the UN would not be accountable to anyone, as it would not be considered a subject of the rule of law: the principle that no one is above the law and that power is constrained and regulated by law. Immunity [...] undermines the credibility of the UN as a champion of human rights.” (Supreme Court of the Netherlands, 2012).

On another level, concerning state immunity, it is interesting in the context of the text to mention the case of the European Court of Human Rights Al-Adsani v. the United Kingdom. The legal case concerned a claim for damages brought before English courts against the State of Kuwait. Al-Adsani held Kuwait responsible for the damage caused to him as a result of torture suffered in Kuwait after the 1991 Gulf War. After the English courts accepted Kuwait's invocation of immunity, Al-Adsani appealed to the European Court of Human Rights, arguing that the decision of the English courts violated his right to a fair trial. He argued that due to the specific nature of the prohibition of torture, the right of access to courts, contained in the European Convention on Human Rights, should take precedence over the immunity invoked by Kuwait. The European Court, it is true, would state in 2001 that increasing weight is being given to the argument that immunity should be denied in cases of death or personal injury resulting from a state's act in violation of human rights norms. However, while national courts in some cases showed their inclination towards the argument that states are not entitled to invoke immunity in situations of human rights violations of an imperative norm character, in many cases, the invocation of sovereign immunity by states has indeed succeeded. The Court also stated that it is not yet accepted in international law that states do not have the right to immunity in relation to civil claims for alleged torture committed outside the forum state. For these reasons, the Court rejected Al-Adsani's application.

The Supreme Court of the Netherlands, in further reasoning its judgment in the aforementioned case in 2012, relied on the decision of the International Court of Justice in Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), in which the question arose whether Italian courts should respect the immunity of the Federal Republic of Germany in cases seeking compensation from that state for violations of international humanitarian law committed by German forces during World War II. The International Court of Justice in 2012 concluded that they should. Therefore, the Court disagreed with the Italian assertion that it would be justified to deny Germany its immunity due to the gravity of the acts on which the claims were based. The World Court concluded that under customary international law, a state cannot be denied its immunity on the grounds of accusations of serious violations of human rights or international humanitarian law of armed conflict. This Court did not accept the argument that because German forces violated imperative rules, this state should not have immunity. The International Court of Justice ultimately took the position that the rules on state immunity are in fact procedural rules and are aimed at determining whether the courts of one state can establish jurisdiction over another state. They are not intended to answer the question whether the acts on which the proceedings are based were lawful or not.

The Supreme Court of the Netherlands, following the above, determined that although the immunity of the UN should be distinguished from the immunity of a state, ultimately a position contrary to the above examples discussing state immunity and access to courts could not be taken. Therefore, the UN is entitled to invoke immunity regardless of the gravity of its internationally wrongful act!

This organization consistently repeats with paradoxical effect that it is bound by human rights, but apparently does not consider itself bound in this particular case, nor did it even appear in the court proceedings in the Netherlands, in the territory of its member state. This leads to a political question: how long will the UN maintain its credibility regarding the protection of human rights if it itself has no respect for them? (S. Leyersdorff, L. Melvern (2012)). The consequence of the Dutch Supreme Court's ruling appears to be that this organization, or its activities, are not subject to any form of judicial control, so the UN enjoys absolute power. If this decision is upheld, or if other courts refer to its reasoning in future proceedings, human rights will inevitably remain subordinate to this absolute power. (S. Leyersdorff, L. Melvern (2012)). This is simply unacceptable! From a political, human, and legal perspective.
Based on all of the above, we believe it can be concluded that the UN will continue to have absolute immunity before the courts of states (its members) compared to the limited immunity from jurisdiction that states have. Starting from this assumption, it seems that only some international tribunal, which could be established, would make sense, as there is still no judicial forum (international or national) in the international community before which you can bring a lawsuit against the UN.
Precisely as a consequence of the legal struggle against such solutions, it would be advisable to propose a correction of international instruments in the form of amendments to international treaties concerning the immunities and privileges of international organizations, especially the UN, while organizationally, space should be opened for the establishment of an international tribunal, which would be established outside the system of any international organization, and which would have jurisdiction to judge them exclusively. Thus, in the contemporary international legal order, we would have three permanent international courts – the International Court of Justice (court of general jurisdiction for states), the International Criminal Court (court of special jurisdiction for individuals), and a potential international court (court of general jurisdiction for international organizations). Only then would international law mean respect for basic legal principles: equality and justice. And it would represent a departure from the law of absurdity.

* Enis Omerović is a professor of international law at the Faculty of Law in Zenica.