Scholars, Cholera Victims Tell Court UN Immunity Cannot Be Impunity

by the Institute for Justice and Democracy in Haiti

International law scholars and practitioners from Europe and North America, many with United Nations (UN) connections, filed two amicus curiae briefs on May 15 in support of a federal class action lawsuit against the UN for bringing cholera to Haiti. The briefs demonstrate a consensus among scholars that the UN has an obligation to provide the cholera victims a hearing for their claims, and that its refusal to do so imperils the organization’s immunity.

            The amicus briefs buttress another brief filed May 15 by the cholera victims. It explains why immunity cannot shield the UN from having to respond to the victims’ suit. All three briefs respond to a March 2014 filing by the U.S. Government urging dismissal of the case on the grounds that the UN is immune from suit.

            In one amicus brief, well-known international law scholars note that several international treaties, as well as the UN’s own General Assembly resolutions, legal opinions, and practices establish an obligation for the organization to compensate people harmed by UN operations – an obligation which has not been fulfilled in the cholera case.

            One of the signers of this brief, José Alvarez, professor of international law at New York University School of Law, noted that “the UN has committed itself at the highest levels to the promotion and fulfillment of the rule of law, but apparently sees no contradiction in promoting accountability — including legal accountability — in others while refusing to address how the national or international law applies to itself in this case."

            European legal experts point out in the second amicus brief that courts outside of the United States balance an international organization’s immunity protection with victims’ right of access to court. They describe how those courts have required that in return for immunity in court, international organizations must provide harmed individuals with a reasonable alternative procedure.

            Manfred Nowak, Professor of International Law and Human Rights at Vienna and Stanford University and former UN Special Rapporteur on Torture, added that “the UN needs to understand that immunity cannot mean impunity. If it refuses to provide people alleging harm with a path to justice, courts will refuse to uphold its immunity.”

            The amicus briefs underscore the growing international consensus that the UN cannot be absolutely immune for its actions in Haiti. The international law authorities signing the briefs include current and former UN mandate holders such as Nico Schrijver and Krister Thelin. Last month, the New York City Bar Association sent a letter to the State Department expressing its concern that the U.S. Government should not support the UN’s violations of the law.

            The plaintiffs’ brief is the first opportunity that the cholera victims have had to tell the court why UN immunity does not apply in this case, which was filed in October 2013. The plaintiffs argue that the UN’s promises to provide an out-of-court procedure for the settlement of claims against it are a fundamental part of the treaties that grant it immunity, and that the organization cannot invoke its immunity under those treaties when it has failed to fulfill those promises.

            Cholera continues to affect Haiti’s vulnerable population. The UN itself has warned that the disease may kill up to 2,000 more people in 2014. To date, the epidemic has killed more than 8,500 and sickened more than 700,000.