Scholars, Cholera Victims Tell Court UN Immunity Cannot Be Impunity

by the
Institute for Justice and Democracy in Haiti
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.