OMNI-JUR was created on December 18, 2013, to provide people and organizations with a venue where they can address issues and criminal cases involving high profile individuals and concerning the diplomatic immunity of institutions such as the United Nations and the European Union.
Literally hundreds of thousands of people from around the world are faced with the inability to prosecute the United Nations and the European Union for war crimes and other severe violations of individual and collective rights. This urgently needs to be reversed by the people and OMNI-JUR is on the frontlines in this battle.
December 18, 2013
Due to the diplomatic status of certain entities and (political) mandataries it yet remains impossible to hold these entities and mandataries accountable for their actions and the results thereof. OMNI-JUR is convinced that this current situation should be adjusted, without further delay, in order to allow any and all victims of by diplomatic immunity protected entities and mandataries to prompt the by diplomatic immunity protected entities and mandataries to compensate any and all of their victims, as a result of the legal possibility to effectively file (a) lawsuit(s) in (a) by the victim(s) preferred court(s) of law.
1. UNITED NATIONS
When the United Nations was established it was considered necessary that it should enjoy the status of a legal person under the domestic law of its Member States. Such a domestic legal personality is a prerequisite for international organizations to effectively manage numerous practical needs such as procurement contracts, the acquisition of property and the capacity to pursue its private law rights before national courts. The Charter of the United Nations only very generally responded to these needs by providing in its Article 104 that “[t]he Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.”
At the time of the adoption of the Charter of the United Nations there were not many legal instruments that could have served as examples for what was intended to be achieved. The Covenant of the League of Nations of 28 June 1919 merely provided for “diplomatic” privileges and immunities of its employees and the inviolability of its property. Only a subsequent agreement with the League’s host State, the so-called modus vivendi, stipulated that the League possessed international personality and capacity and that it could not “in principle, according to the rules of international law, be sued before the Swiss Courts without its consent.” (Communications du Conseil Fédéral Suisse concernant le Régime des Immunités Diplomatique du Personnel de la Société des Nations et du Bureau International du Travail, entered into by the League of Nations and the Swiss Government on 18 September 1926, 7 OJLN (1926), annex 911a, 1422).
The General Convention specifies the notion of “functional” personality and immunity of the United Nations and contains detailed provisions on the privileges and immunities enjoyed by United Nations officials and Member State representatives. Because of the high level of precision of the Convention’s articles they are considered directly applicable or self-executing in many national legal systems. That means that national courts may directly rely on them without the need of national implementing legislation.
In article I, section 1, the “functional” personality of the United Nations is defined as “juridical personality” encompassing the specific capacity: “(a) to contract; (b) to acquire and dispose of immovable and movable property; (c) to institute legal proceedings.” This provision clarifies that the United Nations should be able to enter into day-to-day operations governed by private law.
The Convention’s core provision with regard to immunity from jurisdiction is found in article II, section 2, which runs as follows: “The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution.” The resulting “absolute” immunity from suit of the United Nations has been largely respected in most countries, though some national courts have tried to limit the Organization’s scope of immunity along the initially envisaged “functional” immunity. In practice, this has also sometimes led to the application of restrictive State immunity principles denying immunity for “commercial” activities.
The de facto “absolute” immunity of the United Nations is mitigated by the fact that article VIII, section 29, of the Convention requires the United Nations to “make provisions for appropriate modes of settlement of: (a) disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party”. The General Convention’s obligation to provide for alternative dispute settlement in case of the Organization’s immunity from legal process can be regarded as an acknowledgment of the right of access to court as contained in all major human rights instruments.
Private law contracts entered into by the United Nations regularly contain arbitration clauses. In the case of tort claims, such as those resulting from harm suffered as a result of peacekeeping operations or vehicular accidents, the United Nations usually agrees on similar forms of dispute resolution. Staff disputes within the United Nations are settled by an internal mechanism in the form of the United Nations Administrative Tribunal, established in 1949 (General Assembly resolution 351 A (IV) of 9 December 1949). In 2009, this system will undergo a major reform leading to the establishment of a two-tier judicial system with a United Nations Dispute Tribunal and a United Nations Appeals Tribunal.
In addition to immunity from suit, the General Convention provides for the “inviolability” of United Nations premises and property which basically means that they are exempted from any search, requisition, confiscation, or other forms of executive, administrative, judicial or legislative interference. The same inviolability applies to the archives of the United Nations.
The most important “privileges” conferred upon the United Nations by the General Convention are fiscal ones. Most significantly, article II, section 7, exempts the United Nations from all direct taxes as well as from customs duties and quotas concerning goods for the United Nations’ official use. With regard to indirect taxes, the Convention merely provides that in case of “important purchases for official use” the State concerned will make appropriate administrative arrangements for tax reimbursement.
The General Convention further contains privileges and immunities for three categories of persons crucial for the work of the Organization: 1) representatives of Member States; 2) United Nations officials; and 3) experts on missions for the United Nations. While Member State representatives enjoy modified diplomatic privileges and immunities, United Nations officials, i.e. permanently employed staff members, enjoy “functional” immunity which is defined in article V, section 18 (a), as immunity “from legal process in respect of words spoken or written and all acts performed by them in their official capacity.” Article V, section 20, stresses that “[p]rivileges and immunities are granted to officials in the interests of the United Nations and not for the personal benefit of the individuals themselves” and that the Secretary-General has to waive the immunity of United Nations officials where it would “impede the course of justice and can be waived without prejudice to the interests of the United Nations.” In addition to jurisdictional immunity, United Nations officials are tax exempt with regard to their salary received from the United Nations and enjoy a number of other fiscal, travel and residence privileges. Only the Secretary-General, Under-Secretaries-General and Assistant Secretaries-General enjoy full diplomatic privileges and immunities.
As opposed to United Nations officials, experts on missions for the United Nations, like members of the International Law Commission, Special Rapporteurs, or members of United Nations peacekeeping operations, serve under a temporary and specific mandate. They also enjoy certain functionally limited privileges and immunities pursuant to article VI of the General Convention.
Already on 21 November 1947, the General Assembly approved the Convention on the Privileges and Immunities of the Specialized Agencies. It entered into force on 2 December 1948 and applies to those United Nations related international organizations that have entered into special relationship agreements with the United Nations pursuant to Article 63 of the Charter, such as the International Civil Aviation Organization, the World Health Organization, the Food and Agriculture Organization, the United Nations Educational, Scientific and Cultural Organization, the International Monetary Fund, the International Bank for Reconstruction and Development, and others. The so-called Special Convention contains roughly the same provisions on privileges and immunities as the General Convention.
Examples of similar privileges and immunities treaties are the General Agreement on Privileges and Immunities of the Council of Europe, 1949, and the Agreement on Privileges and Immunities of the Organization of American States, 1949. Numerous “headquarters” or “seat agreements” have also been influenced by the General Convention.