Chapter VI. Selected legal opinions of the secretariats of the United Nations and related intergovernmental organizations

CHAPTER VI

SELECTED LEGAL OPINIONS OF THE SECRETARIATS OF

THE UNITED NATIONS AND RELATED INTERGOVERN-MENTAL ORGANIZATIONS

1. Legal opinions of the Secretariat of the United Nations (Issued or prepared by the Office of Legal Affairs)

   CLAIMS AND LIABILITY ISSUES

   1. LEGAL BASIS FOR INSTITUTING CLAIMS AGAINST TROOP-CONTRIBUTING

      GOVERNMENTS TO COMPENSATE THE UNITED NATIONS FOR LOSS OF, OR DAMAGE TO, UNITED NATIONS PROPERTY — LEGAL PRINCIPLES CONCERNING NEGLIGENT ACTS AS APPLIED TO MEMBERS OF THE STAFF AND MEMBERS OF MILITARY CONTINGENTS OF UNITED NATIONS PEACEKEEPING OPERATIONS

      — LIABILITY OF TROOP-CONTRIBUTING GOVERNMENTS FOR GROSS NEGLIGENCE OF MEMBERS OF THEIR MILITARY CONTINGENTS — DEFINITION OF GROSS NEGLIGENCE

      Memorandum to the Assistant Director for Peacekeeping Matters and

      Special Assignments, Office for Programme Planning, Budget and Finance

   1. You have asked for our opinion as to the legal basis for instituting claims against troop-contributing Governments to compensate the United Nations for loss of, or damage to, United Nations property caused by members of their military contingents who are found at fault.

   2. From a review of our files, it would appear that this Office supported the Organization in its endeavour to seek compensation, by way of set-off of accounts, from Governments contributing troops to the United Nations Emergency Force (UNEF) and the United Nations Operation in the Congo (ONUC). However, most of our legal opinions were answers to specific individual questions posed from time to time. To formulate, now, a general opinion it is necessary to examine the applicable legal principles in the context of the status of the military component of peacekeeping forces together with the staff surcharging rules and the claims settlement procedures evolved over the years. We will first (in section I) examine the legal principles concerning negligent acts as applied to: (a) members of the staff of the Organization; and (b) members of military contingents of United Nations peacekeeping operations in cases where such individuals cause damage to United Nations property while performing official duties. We will then (in section II) examine the liability of troop-contributing Governments for gross negligence of members of their military contingents.

      1. PRINCIPLES OF LIABILITY FOR TORTIOUS ACTS AS APPLIED BY THE ORGANIZATION WITH RESPECT TO:

      (A) Staff members

   3. Legally, the United Nations can ask any person who it believes has caused damage to United Nations property to compensate the United Nations for the damage. If the person does not comply, then the United Nations may sue him or her, and the determination as to the financial responsibility of that person would involve a judicial process under domestic law. If, however, the person causing damage is a staff member, then staff rule 112.3 of the United Nations Staff Regulations and Rules applies, which operates in conjunction with financial rule 110.15(b). Staff rule 112.3 provides as follows:

      “Any staff member may be required to reimburse the United Nations either partially or in full for any financial loss suffered by the United Nations as a result of the staff member’s negligence or of his or her having violated any regulation, rule or administrative instruction.”

      Financial rule 110.15 provides as follows:

      “(a) The Controller may, after full investigation in each case, authorize the writing-off of losses of United Nations property or such other adjustment of the records as will bring the balance shown by the records into conformity with the actual quantities.

      “(b) Final determination as to all surcharges to be made against staff members or others as the result of losses will be made by the Controller.”

      The Controller, in exercising responsibility for surcharges against staff members, acts upon the advice and recommendations of the Headquarters Property Survey Board or the Local Survey Boards as appropriate (financial rules 110.32(e) and (f) and 110.33(b)).

      The standard of conduct to be applied in such cases, namely, negligence (not gross negligence), has been a cause of controversy and much discussion within the Organization. According to our files, the majority of cases in which United Nations property was damaged arose out of motor vehicle accidents caused either by full-time United Nations drivers or by staff members who had to drive themselves on official business. Hence, most of our legal opinions addressing the question of the financial responsibility to the Organization of staff members for damage caused to United Nations property concerned damage to motor vehicles. While additional aspects, such as driving on official duty or for recreational purposes, played an important role in those cases, there is no doubt that the United Nations policy which evolved from those cases embraces loss of or damage to all types of United Nations material property, and that, since 1969, the policy has been to require proof of gross negligence to justify a staff member being held accountable for the damage he or she caused to United Nations property. The view of the Legal Office was expressed in a memorandum from the Legal Counsel of 17 October 1969, and published in the United Nations Juridical Yearbook, 1975, page 186, entitled: “Question of the financial respon-

      sibility to the Organization of members of the staff for accidental damage caused to United Nations vehicles while driving such vehicle — policy of the Organization in this respect”. It remains valid. The pertinent excerpts of this opinion, which commented on a draft text that attempted to establish assessment policy guidelines, but which never materialized, read as follows:

      “5. It does not seem reasonable to us, however, that a United Nations driver should be made financially accountable [for damage caused to a United Nations vehicle being used on official business, as a result of negligence as distinct from gross negligence] ... it seems to us to be only equitable, if a United Nations vehicle is damaged while driven on official business in circumstances involving negligence but not gross negligence on its driver’s part, that the Organization [which chooses to be self-insured for damage to its vehicles] should meet resulting costs and not require the driver to bear such costs totally or in part.” (emphasis added)

      (B) Members of military contingents

   4. The aforementioned rules and the assessment procedure do not apply to military members for reasons inherent in the setup of peacekeeping operations. Although the military members of peacekeeping operations are international personnel under the authority of the United Nations and subject to the orders of the Force Commander through his chain of command, they nonetheless remain part of their respective national armed forces, especially for disciplinary purposes. It must be stressed, however, that the remaining link with their armed forces does not make them agents or servants of their respective Governments while performing United Nations duties in a United Nations peace-keeping force; this is because they operate under United Nations command and are performing United Nations, not national, duties. In this connection, this Office offered the following advice in a memorandum of 20 August 1975, which was later published in the United Nations Juridical Yearbook, 1975, page 161:

      “2. While in general, Contingent Commanders have broad disciplinary authority, they have little or no authority to impose financial assessments upon members of contingents. The financial element which may attach to the disciplinary powers of military commanders is limited and is more in the nature of a fine than of a compensation for damage.

      “3. Normally, a determination as to the financial assessment of military personnel lies with national jurisdictional organs and involves a judicial or quasi-judicial administrative process under domestic law. We believe that because of constitutional and structural requirements, it is unlikely that the exercise of such judicial or jurisdictional power would be or may be extended to Contingent Commanders.”

   5. Thus, while civilian staff of United Nations peacekeeping operations may be surcharged in accordance with the aforementioned staff rule and financial rules authorizing the Controller to act upon the advice and recommendation of the Property Survey Board, military personnel are not. Hence, although the Local Survey Board can express an opinion on the degree of negligence of mili-

      tary personnel, it can only recommend, rather than require, that a United Nations claim be made against the Government contributing the military contingent in question. The situation is clearly reflected in a memorandum of 22 December 1971 from this Office ..., which stated in part:

      “... while United Nations staff members assigned to the United Nations Peacekeeping Force in Cyprus are required to reimburse the United Nations in accordance with Local Survey Boards’ assessments in cases where United Nations property is lost or damaged as a result of their fault, the Local Survey Board makes no assessment and accordingly no reimbursement is made to the United Nations when those involved are members of national contingents ...”

   6. The lack of a common assessment procedure for civilian and military staff was a matter of great concern to the Organization, leading to extensive discussions in the early 1970s between the Office of General Services and this Office on how to solve this problem. The situation was further complicated by the fact that, although the United Nations might have had legal claims against the individual military drivers, it was reasoned that it would be inequitable and unfair to claim compensation directly from them as they did not (and perhaps could not) obtain insurance protection, and since they are continuously exposed to traffic and to err is human, it is to be expected that they will eventually become involved in accidents resulting in damage...