When the United States and European countries began trading with Japan in the late 1850s, they forced the Japanese authorities to grant their nationals immunity from prosecution in the Japanese courts.
Extraterritoriality”, as it was called, was one of the humiliations that the nationalists of the Meiji period were passionately determined to reverse: it was seen, reasonably enough, as the thin end of the colonialists’ wedge.
Yet the United Nations has enjoyed a similar degree of protection from the justice systems of the countries where it operates ever since its foundation. If the lawyers representing Haiti’s cholera victims manage to make a dent in it, they will have scored a rare victory.
The “Convention on the Privileges and Immunities of the United Nations”, adopted by the UN General Assembly in 1946 states that “the Organisation shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes, and that representatives of the Members of the United Nations and officials of the Organisation shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions”.
Section 29 of the Convention referred to by UN spokesman Martin Nesirky in the rejection of the cholera claims spells out that the UN is the sole arbiter of disputes “to which the United Nations is a party”.
In the case of Haiti, the activities of MINUSTAH, the UN’s stabilisation mission there, are protected by a so-called Status of Forces Agreement which affords the stabilisation force broad protection from actions in the Haitian courts. This should be counterbalanced by the setting up of an independent Standing Claims Commission to compensate those injured by the UN’s activities. But as the Institute for Justice and Democracy in Haiti points out, “despite this requirement, no commission has been established during MINUSTAH’s eight years in Haiti. In fact, no Standing Claims Commission has been established in over 60 years of UN peacekeeping anywhere.”
This helps to explain the impression of impunity that UN peacekeepers have left where they have been accused of crimes and abuses in recent years. They are beyond the reach of justice.