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Abdi Hosh Askir v Boutros Boutros-Ghali, Joseph E. Connor et al., US District Court SDNY, 29 July 1996, 933 F. Suppl. 368 (SDNY 1996)

Tom Ruys

Relevance of the case

The present case affirms the immunity from legal process of the UN and UN personnel acting in their official capacity in procedures before national courts (regardless of allegations of malfeasance). Although the Court refrains from explicitly pronouncing on the consequences of possible discrepancies between immunities granted under domestic law and international law, it acknowledges that the 1946 General Convention on the Privileges and Immunities of the United Nations provides immunity from ‘every form of legal process’, the only exception being express waiver by the UN itself. In the margin, it sheds light on the scope of the doctrine of ‘restrictive immunity, by holding that acts that form part and parcel of military and humanitarian peacekeeping operations (including the occupation of property to house troops etc.) involve the exercise of governmental functions rather than private commercial activity and thus benefit from immunity.

I. Facts of the case

Following the downfall of President Siad Barre in 1991, civil war broke out in Somalia between followers of Interim President Ali Mahdi Mohamed and followers of General Mohamed Farah Aidid. With nearly one million refugees and almost five million people threatened by hunger, the Security Council stepped in. In January 1992, it imposed an arms embargo on Somalia.1 Subsequently, on 24 April 1992, the Council decided to establish the United Nations Operation in Somalia (UNOSOM I).[1] [2] The UNOSOM I peacekeeping operation lasted from April 1992 until March 1993. As of November 1992 it operated alongside the US-1 ed Unified Task Force (UNITAF), which was authorized by the UN Security Council to use ‘all necessary means’ to establish a secure environment for relief efforts. In March 1993, the Council decided on a transition from UNITAF to a new UN peacekeeping operation (UNOSOM II), which was eventually withdrawn in March 1995.3

In the wake of the UN peacekeeping operation, Abdi Hosh Askir, a Somalian citizen, brought an action for damages before the United States District Court of New York. Abdi Hosh Askir was the owner of a compound in Mogadishu encompassing nearly one million square meters and containing inter alia an office complex, a hotel, recreational facilities, and restaurants. Claiming that the UN had wrongfully and without proper authorization occupied approximately one quarter of the compound for a period of about eighteen months, he sought over 190 million US dollars in damages, allegedly equivalent to the fair rental value of the compound, as well as exemplary damages of 750 million US dollars plus interest.

The action was brought against UN Secretary-General Boutros Boutros-Ghali and Under-Secretary-General for Administration and Management Joseph Connor, both in their individual and official capacities, as well as several UN agents, including the construction company and private military contractor Brown & Root Services Corp. The plaintiff eventually dropped UN Secretary-General Boutros-Ghali as a defendant in the case in order to remedy a jurisdictional defect.

II. The legal question

The key question before the US District Court was whether or not Under-Secretary- General for Administration and Management Joseph Connor enjoyed immunity from legal process in the context of the action for damages lodged by Mr Abdi Hosh Askir. The claimant raised several arguments as to why no immunity should be accorded, relating both to US domestic law (in particular the International Organizations Immunities Act (IOIA) and the Foreign Sovereign Immunities Act (FSIA)) and international law (in particular the 1946 General Convention on the Privileges and Immunities of the United Nations). The different arguments were ultimately dismissed by the Court in its judgment of 29 July 1996.

III. Excerpts

The plaintiff offers three arguments against dismissal based on immunity.

First, with respect to the U.N. Convention, the plaintiff argues that the immunity afforded under article 2 is coextensive with the immunity provided to international organizations under the International Organizations Immunities Act (‘IOIA’), 22 U.S.C. § 288a. The plaintiff argues that the IOIA affords the United Nations the same immunity provided to foreign governments under the Foreign Sovereign Immunities Act (‘FSIA’), 28 U.S.C. § 1602 etseq. The plaintiff takes the position that the FSIA, and therefore for the purpose of the United Nations the IOIA, provides only restrictive immunity.

The Supreme Court recently explained the distinction between restrictive and absolute immunity: ‘Under the restrictive, as opposed to the “absolute,” theory of foreign sovereign immunity, a state is immune from the jurisdiction of foreign courts as to its sovereign or public acts (jure imperii), but not as to those that are private or commercial in character (jure gestionis) [...] [A] state engages in commercial activity under the restrictive theory when it exercises “only those powers that can also be exercised by private citizens,” “as distinct from those” “powers peculiar to sovereigns.” Put differently, a foreign state engages in commercial activity for purposes of the restrictive theory only where it acts “in a manner of a private player within” the market.’

Saudi Arabia v. Nelson, 507 U.S. 349, 359-60, 113 S.Ct. 1471, 1478-79, 123 L.Ed.2d 47 (1993) (citations omitted). The plaintiff argues that this action arises from the commercial activities of the United Nations, namely the leasing and occupation of property, and therefore falls outside the bounds of restrictive immunity.

It is unnecessary to decide, first, whether the restrictive immunity doctrine of the FSIA applies to the United Nations through the IOIA, or second, whether that restrictive immunity would trump the otherwise absolute immunity afforded by the U.N. Convention itself. Neither of these questions are necessary to determine because even if the more limited restrictive immunity doctrine applied, the claims in this case do not arise out of commercial activity by the United Nations. Compare Tuck v. Pan American Health Org., 668 F.2d 547, 550 (D.C.Cir. 1981) (declining to decide whether international organization governed by IOIA was granted restrictive or absolute immunity by virtue of the FSIA because activity was not commercial); Broadbent v. Organization of American States, 628 F.2d 27, 32-33 (D.C.Cir.1980) (same).

The scope of restrictive immunity is determined by the nature of the activity rather than its motivation or purpose. See Saudi Arabia, 507 U.S. at 360, 113 S.Ct. at 1479; Broadbent, 628 F.2d at 33; Friedar v. Government of Israel, 614 F.Supp. 395, 399 (S.D.N.Y. 1985). In this case, the plaintiff complains that his property was seized and occupied by the United Nations as part of its military and humanitarian peacekeeping mission in Somalia. A military operation, even one directed at ensuring the delivery of humanitarian relief, is not an endeavor commonly associated with private citizens—indeed, military operations are a distinctive province of sovereigns and governments. The occupation of property during such an operation to house troops, store and distribute supplies and ordinance, or manage the logistics and planning of peacekeeping and humanitarian relief efforts is part and parcel of such an operation. The United Nations mission in Somalia provided ‘a military force to enable relief agencies to deliver food and other supplies to the Somali people.’ (Compl. f 11.) This is not a case of the United Nations arranging for one of its officials to lease a residential apartment in a foreign state and providing heat, hot water, and electricity this is a case of an armed military occupation in a country where the government had been overthrown and no administration had taken its place. (Compl. f 8.) Indeed, the perimeter of the compound in Mogadishu was secured with ‘sandbags, land mines, barbed wire, and other anti-personnel weapons.’ (Compl. f 22.) There is no doubt that the operation of a military logistics and supply base was not commercial activity of the sort contemplated under the restrictive immunity doctrine. See Saudi Arabia, 507 U.S. at 361, 113 S.Ct. at 1479 (‘[A] foreign state’s exercise of the power of its police has long been understood for purposes of the restrictive theory as peculiarly sovereign in nature.’); Friedar, 614 F.Supp. at 399 (acts relating to recruiting for armed forces and determining veterans benefits were ‘purely governmental’).

Accordingly, even if the immunity available to the United Nations and its officials is only restrictive immunity, the immunity still applies because the nature of the acts complained of by the plaintiff are the exercise of governmental functions rather than private commercial activity.

The plaintiff’s second argument is that the interpretation of the term ‘immunity’ in the U.N. Convention itself should exclude commercial activities. The plaintiff makes this argument by pointing out that judicial decisions involving the interpretation of the scope of the U.N. Convention have related principally to employment disputes between former employees and the United Nations or its agencies. See De Luca v. The United Nations Organization, 841 F.Supp. 531 (S.D.N.Y.), aff’d without opinion,

41 F.3d 1502 (2d Cir.1994), cert. denied, 115 S.Ct. 1429, 131 L.Ed.2d 310 (1995); Klyumel v. United Nations, No. 92 Civ. 4231, 1992 WL 447314 (S.D.N.Y. Dec. 4, 1992) (report and recommendation by Grubin, M.J.), aff’d and adopted, 1993 WL 42708 (S.D.N.Y. Feb. 17, 1993); Boimah, 664 F.Supp. 69; see also Shamsee v. Shamsee, 74 A.D.2d 357, 428 N.Y.S.2d 33 (2d Dep’t 1980) (appeal of contempt order against U.N. Joint Staff Pension Fund).

None of these cases limit their respective interpretations of the immunity afforded by the U.N. Convention. Indeed, in De Luca the Court observed that the U.N. Convention contained no exceptions to its immunity provisions obviating any need to consider whether the FSIA or the IOIA applied. See De Luca, 841 F.Supp. at 533 n. 1. The U.N. Convention by its terms provides immunity from ‘every form of legal process’, the only exception being express waiver by the United Nations itself.

In any event, even if there is an exception to the immunity provided by article 2 of the U.N. Convention based on a distinction between commercial and noncommercial activity, as explained above, the activities upon which this lawsuit is based are not commercial.

Accordingly, the immunity provided by the U.N. Convention applies in this case.

The plaintiff’s third and final argument is based on the allegedly wrongful nature of the acts of the United Nations and Connor. The plaintiff argues that the United Nations did not have the authority to adopt the resolutions passed in connection with the peacekeeping operations in Somalia. The plaintiff also alleges that Connor was not authorized to refuse to pay the plaintiff rent for the use of the compound or to refuse to pay him because of racial animus or bias based on the plaintiff’s national origin. The plaintiff also makes allegations of fiscal improprieties relating to the operation of the United Nations generally and the operation in Somalia in particular, attributing the mismanagement to defendant Connor. (Compl. f 46-50.)

The plaintiff’s allegations of malfeasance do not serve to strip the United Nations or Connor of their immunities afforded under the U.N. Convention. See De Luca, 841 F.Supp. at 535 (defendant remained immune under the IOIA notwithstanding allegations of illegality and wrongdoing); Tuck, 668 F.2d at 550 n. 7 (IOIA immunity still applied notwithstanding allegations of race discrimination); Donald v. Orfila, 788 F.2d 36, 37 (D.C.Cir.1986) (allegations of improper motive did not strip individual of immunity under IOIA).

The allegation that the United Nations did not properly adopt its own resolutions authorizing its actions in Somalia is equally unavailing. The plaintiff has done nothing more than offer conclusory allegations that the missions in Somalia were beyond United Nations authority because they were interventions in civil wars. This allegation stands in direct contradiction to a series of duly adopted United Nations Security Council Resolutions (‘UNSC’), including UNSC Resolution 794 (Dec. 3, 1992) and UNSC Resolution 814 (Mar. 26, 1993), each adopted pursuant to Chapter VII of the United Nations Charter.

Accordingly, the plaintiff’s allegations of misconduct by Connor and lack of authority by the United Nations do not overcome Connor’s assertion of immunity in this case.

[In conclusion] For the reasons explained in this Opinion, the Court dismisses sua sponte the claims against defendant Connor in his official and individual capacities pursuant to Fed. R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction because, as described above, Connor is immune from being sued in this action.

IV. Commentary

The essence of the case concerns the jurisdictional immunity of the United Nations and its personnel before national courts. While the UN defendants had not been served with the summons and complaint, the UN legal counsel submitted papers asserting the absolute immunity of the UN defendants and requesting the Court to dismiss the complaint—a position that was supported by the United States government.[3]

Although the claim was originally brought against Connor both in his official and individual capacities, the Court notes at the outset (in a footnote) that the plaintiff acknowledges that the claim against Connor in his official capacity may be treated as an action against the UN itself. As for the claim against Connor in his individual capacity, the Court observes that the plaintiff failed to explain in any way why the alleged actions would fall outside the scope of his official duties (which clearly they did not). Obviously, ‘the mere allegation that the United Nations did not possess the authority to undertake its missions in Somalia’ (as the plaintiff suggested) did not imply that Connor’s alleged actions would somehow be less a part of his official function. For the sake of completeness, the Court recalls that, ‘in any case’, the immunities provided under art. V, Section 18 of the 1946 General Convention on the Privileges and Immunities of the United Nations (cf. UNTS vol. 1, 15)—which entered into force in respect of the United States upon its accession on 29 April 1970—‘are applicable here and would afford [Connor] protection in his individual capacity (emphasis added). Even if the outcome seems correct, this obiter dictum is somewhat puzzling in that art. V, Section 18 refers to the immunity from legal process of UN officials ‘in respect of words spoken or written and all acts performed by them in their official capacity’ (emphasis added).[4] The remainder of the judgment focuses on the immunity of the UN as an international organization as such.

Before the US District Court, the plaintiff submitted three arguments against dismissal based on immunity. First, the plaintiff argued that the US ‘International Organizations Immunities Act’ (‘IOIA’, 22 U.S.C. §288a) provides only restrictive immunity to international organizations, similar to the immunity granted to states under the ‘Foreign Sovereign Immunities Act’ (‘FSIA’, 28 U.S.C. § 1602 et seq.).

Second, the plaintiff argued that the interpretation of the term ‘immunity’ in the 1946 General Convention on the Privileges and Immunities of the United Nations itself should exclude commercial activities. Third, the plaintiff relied on the allegedly wrongful nature of the acts of the UN and of Connor.

As far as the first argument is concerned, the case fits within a broader series of cases brought before US national courts against various international organizations and/or their employees, and in which the relationship between the International Organizations Immunities Act and the Foreign Sovereign Immunities Act was at stake. Indeed, when in 1945 the United States adopted the IOIA, it was stipulated that international organizations would enjoy ‘the same immunity from suit and every form of judicial process as is enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity [...]’ (Section 2(b)). In 1976, however, the United States adopted the Foreign Sovereign Immunities Act, which provides for a series of exceptions to the jurisdictional immunity of a foreign state (§1605), for instance, when ‘the action is based upon a commercial activity carried on in the United States by the foreign state; or [...] upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States [...].’ US Courts, including the US Supreme Court, have moreover repeatedly confirmed that the FSIA accords only ‘restrictive immunity’, as opposed to ‘absolute immunity’, to foreign states, and that this extends to sovereign or public acts (acta de jure imperii), but not to those that are private or commercial in character (jure gestionis).[5]

Against this background, a controversy has developed in US legal doctrine and in judicial opinion as to whether the immunity granted to international organizations under the IOIA should be determined by reference to the standard of absolute immunity prevailing at the time of the IOIA’s adoption, or rather by reference to the standard of restrictive immunity subscribed to (in respect of foreign governments) in the FSIA and in US judicial decisions.[6]

On the one hand, in a number of cases, and in particular in a variety of employment- related cases, US Courts have simply circumvented this conundrum by holding that even under a restrictive immunity standard, the international organizations concerned would still enjoy immunity.[7] Thus, in Tuck v Pan American Health Organization, the Court held that even under the restrictive standard, the PAHO enjoyed immunity since the action forming the basis of Tuck’s complaint, viz. the supervision of its employees, was no commercial activity in the sense of the FSIA.[8] Similarly, in Morgan v IBRD, the District of Columbia district court dismissed a tort action against the World Bank for libel, slander, and false imprisonment, inter alia because the claims arose ‘directly from the World Bank’s employment practices, which do not constitute ‘commercial activity’ within the meaning of the [FSIA]’.10

By contrast, in several other cases, US Courts have interpreted the IOIA as according only restrictive immunity, in line with the immunity granted by the FSIA. If this position was hinted at, rather cautiously, in De Luca v United Nations (another employment case), it was adopted more explicitly in Dupree Associates Inc v US11 and Margo Rendall-Speranza v Edward A. Nassim and the International Finance Corp.12

Thus, in Dupree Associates, for instance, the District Court unequivocally held that ‘international organizations are entitled only to restricted immunity. It is this court’s opinion that this is the proper interpretation of the IOIA’/3

If the latter approach is followed, the question may arise to what extent the restrictive immunity allegedly granted by the IOIA (juncto the FSIA) is trumped by the more specific privileges and immunities granted to individual international organizations and their employees in separate conventions and headquarters agreements. In particular, in the case of the UN, the question arises to what extent such restrictive immunity is trumped by the broad immunity apparently envisaged by the 1946 General Convention on the Privileges and Immunities of the United Nations (which the US ratified in 1970). In De Luca v United Nations, the District Court of New York confirmed in passing that the broader immunity granted by the latter Convention should take precedence. According to the Court, even if the immunity granted by the IOIA was subject to exceptions, similar to those provided for in the FSIA, ‘[w]e need not consider the application of these exceptions to the instant case, for the U.N. Convention, which contains no such exceptions, provides sufficient ground for finding the U.N. immune from plaintiff’s claims?4 In a ‘statement of interest’ in a distinct procedure similarly arising from the occupation by UN peacekeepers of certain premises in Mogadishu/5 the US government expressed support for the position in

ю cf. Morgan v IBRD US District Court DC, 17 November 1980, US Court of Appeals DC Cir., 13 November 1981.

11 US District Court DC, 31 May 1977, 22 June 1977, (1982) 63 ILR 95.

!2 cf. De Luca v. United Nations Organization, Perez de Cuellar, Gomez, Duque, Annan et al., US District Court SDNY, 10 January 1994, 841 F. Supp. 531 (1994), fn. 1 (‘Under IOiA, designated international organizations receive the same immunity as that “enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract.” 22 U.S.C.A. § 288a(b). [...] The immunity of foreign governments is now governed by the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C.A. § 1602 et seq. (Supp. 1993). The FSIA confers on foreign governments general jurisdictional immunity subject to several exceptions. 28 U.S.C.A. § 1604. We need not consider the application of these exceptions to the instant case, for the U.N. Convention, which contains no such exceptions, provides sufficient ground for finding the U.N. immune from plaintiff’s claims.’), Dupree Associates Inc v US US District Court DC, 31 May 1977, 22 June 1977, (1982) 63 ILR 95, Margo Rendall-Speranza v Edward A. Nassim and the International Finance Corp US District Court DC, 18 March 1996, 3 July 1996.

  • 13 cf. Dupree Associates (n. 12).
  • 14 cf. De Luca v United Nations Organization, Perez de Cuellar, Gomez, Duque, Annan et al., US District Court SDNY, 10 January 1994, 841 F. Supp. 531 (1994), fn. 1 (n. 12).
  • 15 According to statement of interest, the claims over the occupation by UN peacekeepers of certain premises in Mogadishu were allegedly settled through an arbitral procedure, with an arbitral award of February 2001 allegedly ordering to pay the claimants a compensation of 757,452.26 US dollars.

De Luca. In particular, the US government (correctly) emphasized that ‘the immunity standards of [the] more generalized law’ of the FSIA and IOIA could not override the UN Convention’s treatment of the narrow, precise, and specific subject of the immunities of the UN.16

The same result was reached in the judgment of the US Court of Appeals in Brzak v United Nations.17 While leaving aside whether the immunity granted by the IOIA is broader than that accorded by the FSIA or not, the Court of Appeals held in this case that the 1946 Convention is a self-executing treaty, which ‘unequivocally grants the United Nations absolute immunity without exception’/8

Finally, at least one Court of Appeals case has explicitly dismissed the suggestion that the immunity granted to international organizations under the IOIA should be determined by reference to the standard of restrictive immunity subscribed to (in respect of foreign governments) in the FSIA. In particular, in light of the text and legislative history of the IOIA, the US Court of Appeals for the District of Columbia Circuit in Atkinson v the Inter-American Development Bank held that ‘despite the lack of a clear instruction as to whether Congress meant to incorporate in the IOIA subsequent changes to the law of immunity of foreign sovereigns, Congress’ intent was to adopt that body of law only as it existed in 1945—when immunity of foreign sovereigns was absolute?9

In Askir v Boutros-Ghali, however, the District Court of New York followed the first of the aforementioned approaches—that is, the Court deemed it unnecessary to decide (1) whether the restrictive immunity doctrine of the FSIA applied to the United Nations through the IOIA, and, if so, (2) whether that restrictive immunity would trump the otherwise absolute immunity afforded by the UN Convention itself.

As in previous cases, the reason for this resided in the fact that, even if the UN and its officials were to enjoy only restrictive immunity, the immunity would still apply ‘since the nature of the acts complained of [...] are the exercise of governmental functions rather than private commercial activity’. In accordance with established US case-law, the Court recalled that the scope of restrictive immunity is determined by the nature of the activity, rather than its motivation or purpose.20 In casu, there

'6 cf. Statement of interest of the United States of America, US District Court, DC, John Kamya v the United Nations, Civl No. 1:02CV01176(TFH), at 4, available at http://www.state.gov/documents/organi- zation/38812.pdf

‘7 2 March 2010, 597 F.3d 107.

18 The Court of Appeals nonetheless adds a further argument, noting that ‘the plaintiffs have not presented any argument [.] which would suggest that one of FSIA’s exceptions to immunity would apply’.

Note: in the more recent case of Delama v United Nations (US District Court, 13-CF-7146 (JPO), 9 January 2015), the District Court simply recalls the self-executing character of the 1946 Convention, as affirmed in Brzak v United Nations, without even mentioning the IOIA.

  • 19 Atkinson v Inter-American Development Bank and Kestell, Appeal judgment, 156 F 3d 1335 (DC Cir 1998), No 97-7181, [1998] USCADC 237, 332 U.S.App.D.C. 307, ILDC 1766 (US 1998), 9 October 1998, Court of Appeals (DC Circuit) [D.C. Cir.], Section III. According to the Court of Appeals, ‘Congress was content to delegate to the President the responsibility for updating the immunities of international organizations in the face of changing circumstances.’
  • 20 This corresponds by and large to the approach adopted in art. 2(2) of the UN Convention on jurisdictional immunities of States and their property (not yet in force).

was no doubt ‘that the operation of a military logistics and supply base was not commercial activity of the sort contemplated under the restrictive immunity doctrine’. Indeed, according to the Court, a military operation, even if directed only at ensuring the delivery of humanitarian aid, is not an endeavour commonly associated with private citizens. Crucially, the court found that the occupation of property during such an operation to house troops, store and distribute supplies and ordinance, or manage the logistics and planning of peacekeeping and humanitarian relief efforts ‘is part and parcel of such an operation’. The Court contrasted such activities to the UN arranging for one of its officials to lease an apartment in a foreign state. In all, the Court’s reasoning sheds further light on the application of the restrictive immunity doctrine to military and police operations abroad (by states or international organizations) and confirms that conduct associated to such operations will normally benefit from immunity from suit.[9] [10]

With regard to the plaintiff’s second argument, concerning the interpretation of the term ‘immunity’ in the 1946 General Convention, the Court notes that the plaintiff adduces no evidence to support a narrow interpretation of the term, but instead confines himself to pointing out that previous US judgments involving the Convention related principally to employment disputes. Against this, the Court rightly observes that none of these cases supports a restrictive interpretation of the immunity provided for in the Convention. Quite the contrary, the Court draws attention to De Luca, where it was previously held that the Convention provides immunity from ‘every form of legal process’ without any exception (save for an express waiver by the UN itself)^ While it is perhaps regrettable that the Court did not affirm in more explicit/stronger wording that the lex specialis rules of the 1946 Convention take precedence over the general domestic rules of the IOIA (regardless of the interpretation of the latter rules), the outcome remains the same: the Court implicitly affirms that the UN in principle enjoys absolute immunity from suit. For the sake of completeness, the Court recalls, that even if the immunity provided for in the General Convention would not apply to commercial activities, the activities upon which the claim is based are not commercial in any case.

Finally, the Court gives short shrift to the third (and ostensibly poorly developed) argument concerning the allegedly wrongful nature of the acts of the UN, and of Connor, and dismisses it without much ado. On the one hand, the Court confirms that allegations of malfeasance—viz. the suggestions that the UN did not have the authority to set up the peacekeeping operation in Somalia or that Connor was not authorized to refuse to pay rent for the use of the compound—did not remove the immunity from suit accorded to the UN and to Connor. The Court is of course stating the obvious: immunity from legal process would surely be of little avail if it would not extend to (allegedly) wrongful conduct. It is noted that in casu the allegedly wrongful conduct did not take place in the country where the claim was brought. As a result, the case does not offer any insight into the question whether there exists in general international law a ‘territorial tort exception’ for official acts, and, if so, under what conditions said exception would apply.[11] On the other hand, the Court dismisses in passing the allegation of the plaintiff that the missions in Somalia were beyond the UN’s authority because they were interventions in civil wars. Instead, the Court finds that the operations were established pursuant to a series of ‘duly adopted’ UN Security Council resolutions, ‘each adopted pursuant to Chapter VII of the United Nations Charter’. Again, while this is hardly a revolutionary finding, it remains interesting to note that the Court implicitly confirms that the UN Security Council’s Chapter VII jurisdiction undoubtedly extends to civil war scenarios. Seen from this perspective, the judgment—adopted several years before the emergence of the ‘Responsibility to Protect’ doctrine—adds to the substantial body of evidence in state practice confirming that non- i nternational armed conflicts and large-scale human rights violations within a state can give rise to a ‘threat to the peace’ in the sense of art. 39 of the UN Charter.

  • [1] cf. SC Res. 733(1992) of 23 January 1992; SC Res. 746(1992) of 17 March 1992,
  • [2] cf. SC Res. 751(1992) of 24 April 1992. з cf. SC Res. 814(1993) of 26 March 1993.
  • [3] As Reinisch observes, ‘as a matter of practice, most international organizations find ways to communicate their legal point of view to courts either by the official way of informing the forum state’s foreignministry or by directly communicating with the courts, since—even if immunity does not have to beclaimed by the defendant—it is frequently useful to communicate the organization’s legal opinion onthe matter’ (cf. A. Reinisch, International Organizations before National Courts (Cambridge, CambridgeUniversity Press 2000), p. 139).
  • [4] It might have been more sensible to refer instead to art. V, Section 19 which affirms that the Secretary-General and all Assistant Secretaries-General shall enjoy the privileges and immunities accorded to diplomatic envoys. This provision was applied, for instance, in Brzak v United Nations (US Court of Appealsfor the Second Circuit, 2 March 2010, 597 F.3d 107, 111-12) and in Delama Georges v United Nations (USDistrict Court, Southern District of New York, 9 January 2015, 13-CV-7146 (JPO), available at http://www.ijdh.org/wp-content/uploads/2011/11/Dkt62_Opinion_and_Order_01_09_15.pdf, at 7-8).
  • [5] For example US Supreme Court, Saudi Arabia v Nelson, 507 US 349 (1993); US Supreme Court,Alfred Dunhill of London v Republic of Cuba, 425 US 682 (1976).
  • [6] cf. A. Reinisch (n. 4), pp. 197-203.
  • [7] For example Marvin R. Broadbent et al. v OAS et al., US District Court DC, 25 January 1978, 28March 1978; US Court of Appeals DC Cir., 8 January 1980; Weidner v International TelecommunicationsSatellite Organization, DC Court of Appeals, 21 September 1978.
  • [8] cf. US District Court DC, 13 September 1990, 752 F. Supp. 492 at 494 (DDC 1990).
  • [9] Compare to ICJ, Jurisdictional Immunities of the State (Germany v Italy: Greece intervening),Judgment, [2012] ICJ Rep 99, at §§ 65-78. Consider also art. 11 of the European Convention on StateImmunity and art. 12 of the UN Convention on Jurisdictional Immunities of States and their Property.
  • [10] cf. De Luca v United Nations Organization, Perez de Cuellar, Gomez, Duque, Annan et al., US DistrictCourt SDNY, 10 January 1994, 841 F. Supp. 531 (1994).
  • [11] cf. for example (in the context of state immunity) ICJ, Jurisdictional Immunities of the State (Germanyv Italy: Greece intervening), Judgment, [2012] ICJ Rep 99, para. 65 where the Court considered that itwas ‘not called upon [...] to resolve the question whether there is in customary international law a ‘tortexception’ to State immunity applicable to acta jure imperii in general’; see also: A. Dickinson, ‘Germanyv. Italy and the Territorial Tort Exception—Walking the Tightrope’, (2013) 11 Journal of InternationalCriminal Justice 147.
 
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