Is it possible to challenge the UN’s absolute immunity?

Earlier this month, a lawsuit was filed in New York against the United Nations. The lawsuit is being brought on behalf of individuals in Haiti who were affected by a cholera outbreak that began in October 2010. The UN deployed a group of Nepalese troops to Haiti. Those soldiers formed part of an ongoing peacekeeping operation in Haiti. It is well known that Nepal has high incidents of cholera. Despite that knowledge, the UN failed to screen its peacekeepers for cholera prior to them entering Haiti. On 21st October 2010, cholera broke out in Haiti for the first time in 50 years. Epidemiologists have been able to match the exact strain of cholera in Haiti to that found in Nepal. Unusually for the spread of infectious diseases, the cholera outbreak has been proven to be directly attributable to UN peacekeeping troops from Nepal.

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Failure to screen the Nepalese troops was not the only negligent or reckless act committed by the UN. Poor waste management at the UN peacekeepers’ camp resulted in infected human faeces being deposited in a tributary that feeds into Haiti’s main river. The Artibonite River is Haiti’s most important and most relied-upon river, with hundreds of thousands of people relying on it for water to drink, to bathe and to wash their clothes. Within the first 30 days of the outbreak, Haitian authorities recorded almost 2,000 deaths from cholera. In July 2011, the epidemic infected at a pace of one person every minute. The impact of the cholera outbreak has been devastating. Three years on from the outbreak, the country is still struggling to rid itself of the disease.

As things currently stand, the UN has repeatedly refused to compensate the victims of the cholera outbreak. Those victims include relatives of the thousands of people who died; the hundreds of thousands of people who were infected by the disease; and the countless individuals whose agricultural livelihoods have been affected by the pollution of the Artibonite River. After years of seeking redress and remedy from the UN, the suit filed last week is a bold and necessary step on behalf of the victims. The case is complicated, not by the facts of what happened but by the legal position about whether or not the UN can be brought before a court.

National courts have long-understood that they cannot hear cases brought against the United Nations. The Organisation has relied upon the doctrine of ‘absolute immunity’. Case law from various courts and jurisdictions shows that the UN’s absolute immunity has been challenged, albeit unsuccessfully on the facts of each case. The basis for those challenges have been that the bar to jurisdiction violates claimants’ rights to access a court and to a remedy. In all of the cases so far, the individuals’ ability to access alternative mechanisms for dispute resolution has been used to demonstrate that their rights have been realised. The difference for the individuals from Haiti is that there is no alternative mechanism for resolving their dispute. This leaves those individuals with their fundamental rights being violated.

Throughout these victims’ struggle to seek justice, the UN has relied upon its absolute immunity from jurisdiction. That immunity is understood to be based on Article 105(1) of the Charter of the United Nations and on Section 2 of the Convention on Privileges and Immunities of the United Nations. However, such immunity violates the fundamental rights of individuals to access a court and to seek a remedy. Therefore, a counter-balance exists through the UN being required to provide alternative mechanisms for resolving disputes. Section 29 of the Convention on Privileges and Immunities of the United Nations and the Model Status of Forces Agreement both mandate that the UN set up local claims boards within any peacekeeping operation. Those claims boards are designed for individuals involved in a dispute with the UN or its staff. They allow individuals to realise their rights to access a court and to seek a remedy despite the UN’s absolute immunity.

Alternative mechanisms for resolving disputes have not helped the individuals affected by the cholera outbreak in Haiti. The UN insists that the cases issued on those victims’ behalf cannot be brought before an alternative dispute resolution mechanism. The Organisation has classified the claims as ‘not receivable’ by the UN’s local claims board. It insists that these are not private law claims but rather ones requiring ‘political’ or ‘policy’ review.  Therefore, the individuals concerned are being denied their fundamental rights to access a court and to seek a remedy.

The UN does not dispute that its peacekeepers brought cholera into Haiti. Nor does it seek to absolve itself of blame for the conditions within the peacekeepers’ camp. The UN is seeking to avoid compensating victims of the cholera outbreak. UN Secretary-General Ban Ki-Moon has pointed to the Organisation’s absolute immunity from jurisdiction as a bar to individuals bringing legal claims against the UN.

By invoking absolute immunity, the UN has either ignored or missed the point that all individuals have rights to access a court and a remedy. The Organisation that created the modern system of international human rights law, and that is tasked with protecting and promoting those rights, is denying fundamental rights to these from Haiti. By failing to provide compensation to the victims of cholera in Haiti, the door has been opened for a successful human rights-based challenge to the UN’s absolute immunity – one that may have far-reaching implications and one that is long overdue. Lawyers acting on behalf of the individuals have repeatedly warned that if the UN continued to refuse to award compensation or to provide access to a claims board then they would bring a human rights-based challenge to the UN’s absolute immunity. The lawsuit that has been filed has made good on that promise.

 Rosa Freedman @GoonerDr Birmingham Law School

Additional links:

https://www.cia.gov/library/publications/the-world-factbook/geos/ha.html

http://www.ohchr.org/EN/NewsEvents/Pages/HaitiHumanRightsInAction.aspx

http://www.reuters.com/article/2013/10/09/us-haiti-cholera-un-idUSBRE99805N20131009

http://rabble.ca/blogs/bloggers/haiti-canada-blog/2013/10/haitian-cholera-victims-sue-un-gross-negligence

http://borgenproject.org/un-sued-haitian-families-affected-cholera/

http://www.un.org/apps/news/infocusRel.asp?infocusID=91&Body=Haiti&Body1=

 Image Source: http://commons.wikimedia.org/wiki/File:USMC-04913.jpg?uselang=en-gb

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