Status of Forces Deployed on UN Peacekeeping Operations: Jurisdictional Immunity

UN military peacekeepers are increasingly being accused of human rights abuses while deployed on UN missions. These personnel are rarely held accountable for their conduct given that they are granted immunity from criminal prosecution by the host State by a plethora of legal instruments, in particular a Status of Forces Agreement (SOFA). This article examines the legal status of UN military contingents while deployed on peacekeeping missions and the consequences this has on the delimitation of jurisdictional lines. It explores the possible theoretical basis for the grant of jurisdictional immunities, to include the law of the visiting forces, diplomatic immunity and the doctrine of ‘functional necessity’. UN SOFAs grant exclusive criminal jurisdiction over military contingents to sending States. However, the UN does not invariably succeed in negotiating a SOFA with the host State. While consent of the host State to the presence of the UN mission might render the UNs Model SOFA applicable automatically, in its absence the status of UN military contingents is unclear. This article argues that the immunity granted to UN military personnel is derived from conventional as opposed to customary international law and goes beyond more qualified or restricted forms of immunity granted elsewhere. It posits that the theoretical justification for the grant of these immunities is the doctrine of ‘functional necessity’. It then questions the nature and extent of immunities actually required by UN operations, positing that ‘functional necessity’ might not require such extensive jurisdictional immunities as those currently granted.