The Abuse of Functional Immunity Party Almost Over

Last chance, last call ?

As international organizations and their captive administrative tribunals continue to flout their clear obligations under numerous international and regional conventions such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the European Convention on Human Rights, to name but a few, the day when a national or regional court will tear asunder this last vestige of the cold war, known as “functional immunity”, is fast approaching.

While the UN Secretary-General, the UN Joint Inspection Unit (JIU), and the Office of Oversight and Inspection Services (OIOS), as well as a number of independent practitioners, have all acknowledged that the internal justice systems (so-called) within international organizations are plainly broke and in need of serious reform, little appears to be happening within the organizations to address such a fundamental issue which affects most international civil servants at one time or another during their careers. A concerted effort last year by the ILO Staff Union Committee (the ILO being the only international organization which mandates collective bargaining between the staff representatives and management, albeit rather tepidly) to bring the ILO Administrative Tribunal out of the dark ages and into the 21st century has been watered down and pushed off until 2004 (see “The Best of the Bunch Flunks”, UN Special N°. 614, January 2003), effectively killing any hope for serious reform of the ILOAT.

Although functional immunity (the right of international organizations and their senior officials to avoid civil suit or criminal charge in national courts for misdeeds or injury caused in the pursuit of the organisation’s core mandates) can exist only so long as such organizations provide an alternative system of justice that meets the minimum standards of due process and natural justice required of most national legal systems by their own internal constitutional doctrine or by international treaty, serious challenges are now being readied to pierce the principle functional immunity as a result of the organizations’ repeated and on-going abuse of such immunity. While originally formulated to insulate the policy and operation of international organizations from undue influence by local legal proceedings (particularly at the end of World War II and the beginning of the Cold War), functional immunity is regularly invoked today to protect unscrupulous senior managers and employers from their numerous and imperious legal transgressions that have little to do with the organisation’s core mandates, and which, if redressed in a national court system, might result in damage awards in the six or seven figure range.

Functional immunity has been perversely used (and sadly assisted by the weakness and/or systemic corruption of international tribunals) to avoid accountability for acts such as sexual harassment, mobbing, and negligent homicide, even though no reasonable person could argue that such acts are an essential or the foreseeable by-product of the functioning of an international organization. For example, the scandalous behaviour of some international aid workers and peacekeepers in UNHCR refugee camps in West Africa, where refugee aid was being traded for sex with teenage or younger refugee girls (and widely reported in the international press in 2002), has resulted in not one disciplinary sanction or management sacking! The only parties to be punished in the whole sordid affair were the freelance consultants hired by UNHCR, who blew the whistle on UNHCR senior management’s indifference to the widespread sexual abuse that had been going on for a number of years. The consultants were permanently banished from UNHCR payroll in return for their honorable efforts to report and stop an egregious pattern of human rights violations—now there is UN internal justice at its finest! The whistle-blowers get the boot, while the real criminal perpetrators (together with the higher level managers who did nothing to stop them) remain unaccountable today. Even worse, the alternative internal justice systems set up to redress the employment grievances of international civil servants have become little more than rubber stamps for administrations accustomed to acting with near-absolute impunity—there is no doubt that had the UNHCR consultants attempted to appeal their “banishment”, the internal justice system would have found a way to hold them at fault but not UNHCR.

Fortunately, as more and more reports of this ‘Starr Chamber’ justice trickle out of from behind the ramparts of international organizations and pique the interest of syndicalists and investigative journalists alike, the good old days of functional immunity appear to be numbered. The European Court of Human Rights has already opined in several cases involving the functional immunities of international organizations that it would not refrain from redressing a violation of the European Convention of Human Rights (ECHR) even in the face of a functional immunity defense. It is only a matter of time before the ECHR or an American court (where the entire judicial system is built around the near inalienable right to a day in court in order to seek redress for a wrong) either strikes down in its entirety or seriously abridges the present-day functional immunity of international organizations on account of their violations of a fundamental standard of due process (such as the right to a fair and public hearing by a competent, independent and impartial tribunal, the right to be tried without delay, the right to examine, or have examined, witnesses, the right to adequate discovery, etc.).

Although your correspondent will rejoice in this inevitable outcome, it is unfortunate that an arrogant few at the top of international organizations have put the worthwhile concept of functional immunity in jeopardy solely to avoid having to change the way they manage their staff, or to protect their own indefensible actions. For it is the international civil servant in the field, honorably carrying out his or her duties in some wretched battlefield or urban war zone who will suffer the most from the piercing of functional immunity. And once it is pierced, it is dead and gone for good. The perfidy of such managers never ceases to amaze.

But there is still a slim ray of hope— repent oh ye secretaries and directors general of international organizations protected by functional immunity, and abide by the minimum due process standards found in every developed national legal system and every international legal covenant when dealing with your staff and those your organization is charged with assisting, lest you soon find your precious immunity shield, under which many of you presently cower, ruthlessly cast upon the trash heap of history along with the League of Nations, the Oslo Peace Accords, and indeed, sovereign immunity, to which Messrs. Pinochet and Milosevic can readily attest!

Edward Patrick Flaherty is an American lawyer practicing with the international law firm of Schwab, Flaherty & Associés in Geneva, Switzerland (Flaherty@sfalegal.com), and counsel to a number of Staff Associations.