International Organizations Accountability Symposium: Reparations for Mass Torts Involving the United Nations–Misguided Exceptionalism in Peacekeeping Operations

[Carla Ferstman is a Senior Lecturer at the University of Essex School of Law. She has worked in the human rights field for 25 years, with NGOs, intergovernmental organisations and in private practice.]

Where do individuals who suffer harm as a result of the negligence or malfeasance of the UN go to seek redress? Sadly, there is nowhere for them to go. Maybe I shock easily, or maybe I hold the UN up on a pedestal and expect it to react in a way in which it is clearly not capable of reacting. Regardless, the UN’s handling of mass torts claims, arising largely in the context of peacekeeping, is shocking.

The victims can’t go to a domestic court where they live or work, or where the harm happened, because the UN is largely immune. They can’t go to a regional or international Court because the UN will also be immune from such proceedings. The UN’s internal complaints processes are not independent, equipped or given jurisdiction to handle mass claims. At the same time, victims have not usually been able to rely on their own countries to pursue claims on their behalf. These are countries emerging from conflict, with weak legal systems and infrastructure. The last thing on their minds or within their capacity is to bring an international dispute against a country or organization that has come to help them keep the peace.

The UN has sometimes seen fit to set up trust funds or similar frameworks to rehabilitate victims, but this approach has only been taken after widescale media attention, and then, purely on a humanitarian basis – so without accepting any liability. This is simply about charity. So, victims have no ability to demand restitution or compensation that corresponds to the harms they suffered – they just have to wait and see what’s on offer and be thankful for what they’re given.

This is what happened with cholera victims in Haiti. In 2016 the UN issued a qualified apology and outlined a two-track strategy: Track 1 focuses on intensified efforts to treat, control and eradicate cholera, and Track 2 promises to deliver “a package of material assistance and support to those Haitians most directly affected by cholera” to be developed in a victim-centered manner, including through consultations with victims. A Trust Fund was established to generate and manage its resources. As of July 2019, it was reported that only 4% of the funding target had been met.

It is also what happened to Roma, Ashkali and Egyptian displaced persons in Kosovo who were forced to live in camps where they were subjected to lead poisoning resulting in serious illnesses and deaths. A UN Human Rights Advisory Panel determined that the UN was responsible for an array of violations and recommended reparations including public acknowledgment, payment of adequate compensation to the victims for material and moral damages suffered, reimbursement of fees and expenses and a series of measures to guarantee non-repetition. However, in May 2017 it was announced that the UN would establish (only) a trust fund for projects to help the affected communities. In February 2019, it was reported that the trust fund had received no contributions. 

It is also what happened to victims of peacekeeper sexual exploitation and abuse. A trust fund was set up to support victims. However, it had little to do with reparation or recognition of victims’ rights.

This bit of charity has become like a business expense, without any real sense of accountability or recognition of victim’s rights. This is shocking for an institution that has been a key promoter of standards on victims’ rights. And, because there is no one to hold the institution to account (because victims have no access to an independent court to adjudicate the claims), there is no incentive to strengthen the system to avoid recurrence – there is no learning from mistakes despite all the lip-service about victim-centred processes.

How has this happened?  One of the reasons is the (mis)use of the principle of lex specialis by the UN to exempt it from the general obligation to account for and address fully the harms it causes. The UN Secretariat has expressed its view that ‘the obligation to make reparation, as well as the scope of such reparation, must be subject, in the case of the UN, to the rules of the organization, and more particularly, to the lex specialis rule’ [Art 30, para 8].

This use of the lex specialis principle is misguided for three reasons.

First, the principle is only capable of displacing general law when there are more precise or ‘special’ rules that apply in a given situation. The UN hasn’t put in place special rules; it has simply exempted itself from dealing with parts of the situation – which is not the same thing.

Second, the UN cannot change the law that applies to individuals unconnected to the organization who were not involved or consulted about the change and have not agreed to be bound: ‘[i]n regard to conflicts between human rights norms, for instance, the one that is more favourable to the protected interest is usually held overriding. At least derogation to the detriment of the beneficiaries would seem precluded’ [para. 108].

Third, applying the UN’s lex specialis would frustrate the purpose of the general law, which is to ensure that victims receive adequate reparations. The special regime has ‘no reasonable prospect of appropriately addressing the objectives for which [it was] enacted’ [para. 251 (8)-(16)].

In peacekeeping, this lex specialis principle has been used (like a get out of jail free card) to limit the types of scenarios which may give rise to a claim; restrict the categories of eligible beneficiaries; limit the timeframe during which claims may be filed; justify abridged administrative procedures for the handling of claims as well as limit the scale of recoverable damages.

The principle has also been used unofficially, when the UN simply decides not to submit itself to any form of internal claims process. Given the absence of an alternative forum, the de facto restriction is an additional, virtually absolute, barrier to the resolution of claims. For example, the UN’s practice of distinguishing between claims of a ‘private’ and ‘public’ nature, and deeming the latter category of claims to be ‘non-receivable’, part of an approach Philip Alston, UN Special Rapporteur on Extreme Poverty has called ‘morally unconscionable, legally indefensible and politically self-defeating.’

Mass claims are often resolved in expedited or abridged fashions. But when this happens there is usually some independent adjudicative body which is capable of addressing the claims which fall outside the mold or where the claimants prefer or the circumstances require a more judicial process because of the particularity of the claim. Victims should have the possibility to opt out of a limited administrative process that does not take into account the full spectrum of their needs or rights. Some transitional justice or administrative claims commissions as well as mass claim settlement procedures afford this two-tiered possibility. The General Assembly resolution on third-party claims provides no scope for a more individualized and independent adjudication process, even if it were to allow for a wider understanding of ‘private’ claims. 

The cynics among the readers will be wondering why I am shocked; why I expect more from this global multilateral institution in an era when multilateral approaches have fallen out of favour with the most powerful states. But some things are just worth fighting for.