Abdi Hosh Askir v. Boutros Boutros-Ghali, Joseph E. Connor et al

The applicant, a Somali citizen, filed a legal claim before the District Court of New York against the Secretary General of the United Nations, Boutros Boutros-Ghali and the Under Secretary General for Administration and Management, Joseph E. Connor, in their official and individual capacities. Specifically, the appellant sought compensation for damages resulting from the prolonged occupation by the United Nations of his property in Somalia during the peacekeeping mission.

The Legal counsel for the United Nations has submitted papers, asserting the United Nations and the respondents enjoyed absolute immunity and requesting the Court dismiss the complaint. At the request of the Court, the Government of the United States filed a legal opinion which supported the invocation of immunity.

The applicant advanced three arguments against dismissal based on immunity. Firstly, the immunity granted to the United Nations under the Convention on the Privileges and Immunities of the United Nations must be applied in light of the International Organizations Immunity Act (IOIA), which accords to international organizations the same immunity provided to foreign governments under the Foreign Sovereign Immunities Act (FSIA). Accordingly, the United Nations was entitled to a restrictive immunity. Since the dispute arose from a commercial activity, the claim fell out the scope of the restrictive immunity. Secondly, the term “immunity” in the Convention should be interpreted as excluding commercial activities. Lastly, the applicant pointed out the illegal nature of the acts complained of by him.

The District Court rejected the applicant’s arguments and declared that it lacked jurisdiction over the case, given the immunity granted to the United Nations and its functionaries and agents.

The Court stressed that, as provided by the Convention, the United Nations enjoys immunity from any form of legal process, and its agents are immune for the activities performed in their official capacities. In this regard, the Court reminded that national courts had constantly affirmed that the immunity granted to the United Nations has an absolute character.

The Court considered unnecessary to decide whether the restrictive immunity doctrine of the FSIA applies to the United Nations through the IOIA, since, as it has affirmed, the claims in the instant case did not concern commercial activities. In this regard, the Court underlined that “the scope of restrictive immunity is determined by the nature of the activity rather than its motivation or purpose”. According to the Court, the occupation of a compound to house troops, store supplies and planning the humanitarian relief efforts is a crucial part of a military operation. In particular, the Court affirmed that“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. (…) 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”.

Finally, the Court held that allegations of malfeasance cannot affect the immunities granted to the United Nations and its officials under the Convention. In this regard, the Court mentioned the cases of  De Luca v. United Nations and Tuck v. Pan American Health Organization, where the courts affirmed that the immunity provided under the IOIA still applies in case of allegations of illegality and wrongdoing.