7. Implementation of the Duty of Care by the United Nations

UN 2008, para 4.

CEB 2016c, para 86.

UN Secretary-General 2016, para 3. For an updated account, see UN Secretary-General 2017a.

UN 2003a.

UN 2008, passim.

UN 2010a, b.

CEB 2016a.

Claus 2009, p. 8. See in this regard Chap. 2 of this book by Andrea de Guttry.

The specific extent of the provisions identified in this paragraph will be further explored in para 5.4 related to the content of the Duty of Care.

As established in its Article 1, for the purposes of the Convention ‘United Nations personnel’ means: (i) Persons engaged or deployed by the Secretary-General of the United Nations as members of the military, police or civilian components of a United Nations operation; (ii) Other officials and experts on mission of the United Nations or its specialized agencies or the International Atomic Energy Agency who are present in an official capacity in the area where a United Nations operation is being conducted. ‘Associated personnel’ means: (i) Persons assigned by a Government or an intergovernmental organization with the agreement of the competent organ of the United Nations; (ii) Persons engaged by the Secretary-General of the United Nations or by a specialized agency or by the International Atomic Energy Agency; (iii) Persons deployed by a humanitarian non-governmental organization or agency under an agreement with the Secretary-General of the United Nations or with a specialized agency or with the International Atomic Energy Agency, to carry out activities in support of the fulfilment of the mandate of a United Nations operation. ‘United Nations operation’ means an operation established by the competent organ of the United Nations in accordance with the Charter of the United Nations and conducted under United Nations authority and control: (i) Where the operation is for the purpose of maintaining or restoring international peace and security; or (ii) Where the Security Council or the General Assembly has declared, for the purposes of this Convention, that there exists an exceptional risk to the safety of the personnel participating in the operation.

In a previous resolution the General Assembly had only recommended that the Secretary General ‘continue to seek the inclusion of, and that host countries include, key provisions of the Convention, among others, those regarding the prevention of attacks against members of the operation, the establishment of such attacks as crimes punishable by law and the prosecution or extradition of offenders, in future as well as, if necessary, in existing status-of-forces, status-of-mission and host country agreements negotiated between the United Nations and those countries, mindful of the importance of the timely conclusion of such agreements’. See UN 2003a, para 3. The Council makes such a recommendation a ‘determination’ to take appropriate steps in order to ensure the safety and security of humanitarian personnel and United Nations and its associated personnel, including, inter alia, by making a direct request to the Secretary-General in this regard. See: UNSC Resolution S/res/1502 (26 August 2003) Protection of Humanitarian Personnel and the UN and its Associated Personnel in conflict zones, para 5(a).

In this regard, the UN has developed a practice of including elements of the conventions in SOMA/SOFA and the Security Council may also request it in the resolution establishing the operation. As an example see SOFAs for UNMIS (para 48); UNAMI/Iraq (Article 7, para 7a–e); UNAMI/Jordan (paras 9–12); UNAMIS (Article VI para 2), UNMISS (para 48).

UN 2008, para 259.

Ibid.

UN 2015, Annex 1, para 2.

UNGA Resolution A/Res/70/104 (2015) Safety and security of humanitarian personnel and protection of United Nations personnel.

Ibid., paras 24–25. Emphasis added.

UNGA Resolution 258/III (1948) Reparation for Injuries incurred in the service of the United Nations, preambular para 1.

UN 2016e. The Staff Regulations embody the fundamental conditions of service and the basic rights, duties and obligations of the UN Secretariat. They represent the broad principles of human resources policy for the staffing and administration of the Secretariat.

International Civil Service Commission 2013, para 41.

UN 2016b, commentary to regulation 1.2(d), p. 14.

UNDT, Edwards v. the Secretary-General of the United Nations, 26 January 2011, Judgment No. 22 (see Annex II, Case 39), para 60.

In particular UNAT, Mwangi v. the Secretary-General of the United Nations, 30 September 2003, Judgment No. 1125, (see Annex II, Case 38); UNAT, Durand v. the Secretary-General of the United Nations, 19 August 2005, Judgment No. 1204 (see Annex II, Case 36).

UNDT, Edwards, para 60.

UNAT, Haile v. the Secretary-General of the United Nations, 30 September 2004, Judgment n. 1194, para VI.

The HLCM is comprised of senior administrative managers from the member organizations of the United Nations system who meet twice a year. It has the task of identifying and analysing administrative management reforms with the aim of improving efficiency and simplifying business practices. 

CEB 2014, paras 6 ff.

For an account of good practices on the “stay and deliver” programmatic need, see Egeland 2011.

Ibid., para 26.

Ibid., para 29.

As a follow up to the work of the High-Level Working Group a task force under the leadership of the Deputy High Commissioner for Refugees was established. See CEB 2017a, paras 36 ff.

UN 2002a. The framework for Accountability was then welcomed by the General Assembly in UNGA Resolution 57/155 (2002).

UN 2010a, paras 1–22 and Annex I.

Ibid., para 1.

Here the focus will be only put on the responsibility of the UN vis-à-vis its staff, leaving aside host country considerations. For an analysis of the host state’s responsibility towards the protection of staff of international organizations refer to Chap. 4 by Lorenzo Gasbarri.

UN 2010a, paras 1–22 and Annex I, para 6.

Ibid., para 28.

UN 2016b, p. 9.

Ibid.

UNDSS 2011.

UN 2008, para 309.

The Security Risk Management ‘is the process of identifying future harmful events (‘threats’) that may affect the achievement of UN objectives. It involves assessing the likelihood and impact of these threats to determine the assessed level of risk to the UN and identifying an appropriate response. Security Risk Management involves four key strategies: controlling, avoiding, transferring and accepting security risk. Security risks are controlled through prevention (lowering the likelihood) and mitigation (lowering the impact).’ UNDSS 2017, Chapter IV: Security Management—A. Policy on Security Risk Management (SRM), para 14.

International Civil Service Commission 2013, para 41.

UN 2016b.

CEB 2017a, p. 8.

The SRM process aims to be: (a) Objective, fact-based, logical and systematic; (b) Globally applicable in a consistent, de-politicised manner; (c) Reliable (achieve similar results when different people use it); (d) Valid (accurately represent the security environment on the ground), and (e) User-friendly without being over-simplistic.

The PC was identified in 2009 as one of the tools to assess acceptable risks. Further in 2010, the HLCM established a ‘Programme Criticality Working Group’ (PCWG) with the goal to ‘define four levels of programme criticality and to develop a common framework for informing decision making within the guidelines of acceptable risk’. In October 2011, the HLCM and CEB approved the initial Programme Criticality Framework. In March 2013, the HLCM approved a revised Programme Criticality Framework. In 2014, an independent review of the Programme Criticality Framework was undertaken. This gave evidence of the positive influence of the PC on the United Nations’ ability to implement its activities under difficult security circumstances. It concurrently recommended the design of a more robust system of support and oversight of Programme Criticality assessments, the full integration of Programme Criticality into the processes of all UN entities, and the full embedment of Programme Criticality decisions within the UN Security Management System (UNSMS) at country level. In January 2016, the UN Secretary-General’s Policy Committee reaffirmed that the Programme Criticality Framework should be implemented as a mandatory policy of the organization in areas where present security risk levels are high or above high, and that the CEB-endorsed methodology should be used. In October 2016, the HLCM approved the latest revision of the Programme Criticality Framework that incorporates the decisions by the Secretary-General’s Policy Committee on Programme Criticality and takes into account advances made in UNSMS with the roll-out of the new SRM process. See CEB 2016d.

CEB 2017a, pp. 7, 10, 24.

For a detailed account of the specific measures under each of the above categories refer to UNDSS 2017, Chapter IV Section N, Policy for United Nations Minimum Operating Security Standards (MOSS), pp. 125–140.

UNDSS 2011.

UN 2008, para 314.

‘Alternate Work Modalities’ are measures that limit or totally remove the number of personnel or family members at a specific location(s), short of official relocation or evacuation, so as to limit or remove their exposure to a sudden situation that creates unacceptable residual risk.’

Relocation is the official movement of any personnel or eligible dependant from their normal place of assignment or place of work to another location within their country of assignment for the purpose of avoiding unacceptable risk. Evacuation is the official movement of any personnel or eligible dependant from their place of assignment to a location outside of their country of assignment (safe haven country, home country or third country) for the purpose of avoiding unacceptable risk. Evacuation can be applied only to internationally recruited personnel and their eligible family members. Locally-recruited personnel and/or their eligible family members may be evacuated from a duty station only in the most exceptional cases in which their security is endangered as a direct consequence of their employment by organizations of the UN common system. A decision in this regard can only be made by the Secretary-General.

UN 2002b, p. 16. Emphasis added.

The Policy on security clearance indicates that ‘official travel includes official home leave or other entitlement travel where the cost of travel is borne by organizations of the United Nations system. This applies regardless of whether official travel is undertaken by air, sea, land or any combination thereof.’ UNSMS, Chapter V: Compliance with Security Policies and Procedures—A. Security Clearance Procedures and TRIP, para 31.

UNDT, James v. the Secretary-General of the United Nations, 30 September 2009, Judgment No. 25, (see Annex II, Case 41).

UNDT, Edwards v. the Secretary-General of the United Nations, 26 January 2011, Judgment No. 22 (see Annex II, Case 39). Refer to Burton 2010 for an account of healthy workplace-related practices.

UNAT, Mwangi v. the Secretary-General of the United Nations, 30 September 2003, Judgment No. 1125, (see Annex II, Case 38).

AsDBAT, Cynthia M. Bares et al. v. ADB, 31 May 1995, Decision No. 5 (see Annex II, Case 2).

Flores Callejas and Wesley Cazeau 2016.

Ibid., p. 12.

Ibid., p. 16. For an account of recurrent security management issues of UNHCR field operations, see OIOS 2016.

UNAT, Hjelmqvist v. the Secretary-General of the United Nations, 31 July 1998, Judgment No. 872 (see Annex II, Case 37); UNAT, Durand v. the Secretary-General of the United Nations, 19 August 2005, Judgment No. 1204 (see Annex II, Case 36).

UNAT, Applicant v. the Secretary-General of the United Nations, 23 November 2005, Judgment No. 1273.

UNAT, Hjelmqvist.

CEB 2016c, para 107.

CEB 2017a, p. 15.

Ibid., p. 16.

CEB 2017a, pp. 18–19.

The UN operates in different security scenarios that require diverse types and means of security information provision. Usually, the decision to set up information provision mechanisms is taken by the local Security Management Team. In various field locations Security Information Operation Centres (SIOC) have been established as facilities for managing security issues in given operational areas. The SIOC operates 24/7 and provides information and advice on security-related incidents, and gathers information from different sources, including staff.

CEB 2017a, p. 12.

UNDSS 2017, Chapter IV: Security Management—M. Gender Considerations in Security Management, pp. 120 ff.

UN 2003b, para 2.2.

UNDSS 2017, Chapter V: Compliance with Security Policies and Procedures—C. Security Training and Certification, para 12.

Infra Sect. 7.4.7. Such activity is carried out when gathering facts and analysing issues brought by individuals, whereby the Office also discerns trends and identifies systemic issues underlying conflicts. These are the brought to the attention of the organization’s management on an on-going basis in accordance with UNGA Resolution 64/233 (2009), in which the Assembly emphasised that the role of the Ombudsman was to report on broad systemic issues that he or she identified, as well as issues that were brought to his or her attention. The General Assembly, in UNGA Resolution 70/112 (2015), encouraged the continued involvement of the Office in the progressive development and refinement of human resources policies and practices.

UN 2016a, para 17.

Ibid., para 75.

Ibid., para 76.

Ibid., para 79.

Ibid., paras 58–65.

UN 2016e, Appendix D, Rules governing compensation in the event of death, injury or illness attributable to the performance of official duties on behalf of the United Nations.

Ibid., para 65.

CEB 2017a, p. 14.

Information can be found at the following link: https://​icsc.​un.​org/​secretariat/​hrpd.​asp?​include=​dp. Accessed on 3 October 2017.

Ibid.

CEB 2016b, para 43. This relates to the different system of calculation of the allowance for national and international staff. Indeed, for internationally-recruited staff, the amount is currently set at US$1,600 per month. For locally-recruited staff members serving in designated locations, the allowance is calculated locally at the rate of 30 per cent of the net midpoint of the applicable 2012 local General Service salary scale (excluding possible long-service and longevity steps).

UN 2011, para 1.1.

Ibid.

Ibid., para 1.4.

Ibid., paras 2.1–2.3.

UN 2016e, Rule 3.14.

A malicious act means hostilities, revolution, rebellion, insurrection, riots or civil commotion, sabotage, explosion of war weapons, terrorism, murder or assault by foreign enemies or an attempt threat.

UNOHRM-EPST 2012, pp. 76 ff.

UN 2016e, Appendix D, Rules governing compensation in the event of death, injury or illness attributable to the performance of official duties on behalf of the United Nations.

UN 2016e, Rule 3.19(h).

CEB 2009, para 36.

UN 2012, para 3.

Ibid., para 8.

Ibid., para 9.

UNDSS 2017, Chapter IV—I. Armed Private Security Companies, paras 16 and 27–29.

AsDBAT, Cynthia M. Bares et al. v. ADB, 31 May 1995, Decision No. 5, para 26 (see Annex II case n. 2).

UNDSS 2017, Chapter IV—I. Armed Private Security Companies, Annex B—Model Contract, Article 4.3.

International Code of Conduct Association 2010.

Ibid., para 69.

UN 2016e, Article XI.

Ibid., Chapter XI.

Ibid.

Ibid.

UN 2015, paras 74–79.

ICJ, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 11 April 1949, I.C.J. Rep. 174, p. 184. Article 1 of the ILC Draft Articles on Diplomatic Protection defines diplomatic protection as ‘the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility.’ UN 2006, p. 24.

UN 2016c, para 27, p. 394.

See Chap. 2.

UN 1982.

Ibid., Annex I.

Ibid., p. 4.

Ibid., p. 5.

Ibid.

Ibid.

UN Secretary-General 2017a, para 24.

UNDT, Hassouna v. the Secretary-General of the United Nations, 10 July 2014, Judgment No. 094, (Annex II, Case 40); UNDT, Tal v. the Secretary General of the United Nations, Order on an Application for Suspension of Action pursuant to article 13 of the Rules of Procedure n. 51, 15 June 2017.

Ibid., para 26.

UNDT, Hassouna, para 51.

UNDT, Tal, para 54.

UNAT, Durand, para XXVI

Ibid.

UNAT, Daw Than Tin v. the Secretary-General of the United Nations, 26 February 1991, Judgment No. 505, (Annex II, Case 35), paras IV–V.

ILOAT, In re Grasshoff, para 6.

UNAT, Durand, para XXXI.

On this issue of the transfer of risk, see also Jackson and Zyck 2016, pp. 56–57.

For an analysis of the importance of ensuring safety and security of personnel in UN peacekeeping operations for fulfilling the Organization’s duty of care, see Willmot 2015.

UN Secretary-General 2017b.