FACT SHEET: PRivileges and immunities of the un
The Roots of UN Immunity
- The UN was founded in 1945. One of the earliest Conventions passed by its Member States was the 1946 Convention on the Privileges and Immunities of the United Nations (the “Convention”), which set out specific privileges and immunities for the UN and its staff.
- At that time, the UN had a workforce of approximately 300 and served primarily as a diplomatic organization. Today, the UN has 44,000 staff around the world, carrying out large-scale humanitarian, human rights and development work and serving in multiple peacekeeping missions.
- Specific crimes are not mentioned in the Convention and no exceptions to immunity are specifically provided. The Convention was intended to ensure that states could not use false charges or spurious prosecutions against UN staff as political weapons. It was never intended to serve as a shield behind which even the most egregious crimes, such as sexual exploitation and abuse, may be committed. This is demonstrated by the fact that the Convention imposes a duty on the Secretary-General to waive immunity in certain situations, as described below.
- Today, anyone covered under the Convention is immune from any “legal process”. This means that they can neither be prosecuted for a crime, nor required to cooperate with an investigation, hand over evidence or testify in court, unless that immunity is waived by the Secretary-General.
Applying the Convention to Individuals
- The following are covered under the Convention:
- Absolute immunity for the UN: “The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process[.]”1
- Absolute immunity for Representatives of Member States to the UN and high-level UN officials: Similar to diplomatic envoys, people in these categories cannot be arrested or detained, and they are immune from legal process of every kind.2
- Functional immunity for Officials: “Officials” have immunity from legal process in respect of “words spoken or written and all acts performed by them in their official capacity”. This has been interpreted to apply to all UN staff (with the exception of those who are recruited locally and paid hourly rates, higher-ranking officials mentioned above, and anyone designated as an Expert on Mission, as described below).3
- Functional immunity and inviolability for Experts on Mission: “Experts on Mission” have immunity from legal process in respect of “words spoken or written and acts done by them in the course of the performance of their mission”. They cannot be arrested or detained.4
- Defining “Experts on Mission”: The definition of “Experts on Mission” is not explicitly set out in the Convention. The category has been interpreted quite broadly to include individuals on mission who have been appointed by, and are accountable to, the UN (other than Officials, as defined above).
Applying the Convention to Peacekeeping Missions
- Many types of personnel make up peacekeeping missions, and are broadly referred to as “peacekeepers”. As explained above, any non-military peacekeepers classified as Officials or Experts on Mission have immunity under the Convention. On a typical peacekeeping mission, this includes internationally recruited staff, locally recruited staff paid by salary, military observers, civilian police, and any other individuals designated as Experts on Mission by the UN. While UN documents are not entirely clear, our research indicates that both Formed Police Units and UN civilian police are classified as Experts on Mission.
- Contingents of military peacekeepers, known colloquially as “Blue Helmets,” are military troops contributed by national governments. They report to their own military commanders, but jointly make up a UN-mandated peacekeeping force. The individual countries (known as “Troop Contributing Countries” or “TCCs” for short) that provide military enter into Memoranda of Understanding with the UN. These MOUs stipulate that only the TCC can prosecute its own military members for crimes committed on mission. Military peacekeepers are therefore not covered under the Convention. They can only be prosecuted by their own countries, and not by either the UN or the country where they are serving (referred to as the “host country”).
- When the Security Council authorizes a peacekeeping mission for a particular country, the UN enters into a Status of Forces Agreement with that “host country”. All members of peacekeeping operations, including all those mentioned above as well as locally recruited staff paid hourly rates and UN volunteers, are also typically covered by a blanket “functional immunity” in accordance with the Status of Forces Agreements. Functional immunity means that all members of a peacekeeping operation are immune from legal process for acts performed by them in their official capacities.
- Under the Convention, the UN Secretary-General has the “right and duty” to waive immunity if, in his opinion, the immunity would impede the course of justice and it can be waived without prejudice to the interests of the United Nations. Could the Convention be amended? • The Convention could be amended to specifically exclude crimes of sexual exploitation and abuse from the immunity granted to UN personnel. The process of amendment would likely be achieved by applying Article 109 of the UN Charter: a majority of UN Member States, including 7 members of the 15-member Security Council, would first have to approve a General Conference to review the Convention. An amendment would then require approval of at least two-thirds of all Member States, including all five of the Permanent Members of the Security Council: China, France, Russia, the United Kingdom, and the United States.
Could sexual exploitation and abuse become the exception to immunity without amending the Convention?
- Among possible alternatives to an amendment, the Secretary-General could issue a policy Bulletin setting out an interpretation of the 1946 Convention that reflects today’s realities. Such a Bulletin would clarify that the UN has zero tolerance for sexual exploitation and abuse, and state that immunity does not apply when such cases arise. It may be possible to enact other measures to achieve the same ends as an amendment to the Convention. The Code Blue campaign will explore the full range of options available.
1. 1946 Convention, Section 2
2. 1946 Convention, Sections 11, 19 and 27
3. 1946 Convention, Section 18
4. 1946 Convention, Section 22