UN Immunity, Access to Justice and the Haitian Cholera Epidemic
A few weeks ago a group of Haitian cholera victims took the extraordinary step of filing a class action suit against the United Nations in the Manhattan Federal District Court. The claimants ultimately seek compensation from the United Nations, alleging on the basis of overwhelming scientific evidence that the Haitian cholera outbreak was inadvertently caused by Nepalese peacekeepers stationed at a UN base close to a tributary of the Artibonite river on which Haitians rely for daily use. Evidence shows that poor sanitation at the UN base caused human waste to contaminate the river, thereby triggering the first cholera cases in Haiti in more than a century and to date infecting more than half a million people. This case raises important questions around the extent of UN immunity and access to justice for victims of peacekeeper wrongdoing.
The Convention on Privileges and Immunities of the United Nations (‘Convention’) protects the UN from legal process but it also requires the UN to provide for ‘appropriate modes of settlement’ of ‘disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party’. Similarly, most status of forces agreements (‘SOFAs’) in terms of which the UN deploys peacekeepers to host states, provide that peacekeepers (who are not agents of the UN but agents of their sending states placed at the disposal of the UN) have almost complete immunity from the local laws and courts of the host state. To compensate for this immunity, the SOFA requires the establishment of a ‘standing claims commission’ to consider ‘private’ claims against the UN or any member state. Yet, again, such a commission has never been established. The Convention and the SOFA thus together create a ‘double immunity’ on the part of the UN and peacekeepers. And, as no alternative forum or commission has been established despite binding obligations to do so, the UN’s inaction has created a ‘double impunity’.
In light of the above, correspondence from the UN to the claimants’ attorneys make for interesting reading. The UN stated, without providing reasons, that victims’ claims for compensation are not admissible because they would ‘necessarily include a review of policy and practical matters’ and are therefore not of a private nature as required by the Convention.
As the claimants have pointed out, there are several problems with this view including the following: first, personal injury claims are textbook private claims. Second, the UN has previously admitted that it has never established a standing claims commission in peacekeeping history despite a clear obligation to do so. There is no basis in law on which not to establish this commission. Third, it is not for the UN as ‘defendant’ to decide whether the claims are receivable, but rather for the claims commission to decide on admissibility once established.
To date there has not been any robust response from the UN regarding its failure to create a claims commission, or its responsibility for the cholera epidemic. This effective radio silence creates the unfortunate inference that the unexplained UN inaction is motivated by a fear of claim proliferation. Until the UN establishes an alternative forum, claimants in host states will remain precluded from accessing justice.
The detailed history and progress of this case can be followed on the IJDH’s website.
Hannine Drake is a South African lawyer in private practice in Johannesburg, South Africa and an LLM candidate with a focus on human rights at WITS University, South Africa. She writes in her personal capacity.