Access to Justice for Victims of Cholera in Haiti: Accountability for U.N. Torts in U.S. Court

Beatrice Lindstrom,[1] Shannon Jonsson,[2] and Gillian Stoddard Leatherberry[3]

Andre Paul Joseph . . . describes how, in the middle of the night, he was suddenly seized by violent diarrhea followed by vomiting. Then Semans Pierre shares a similar story. One after another the residents of Rivye Kano come forward, and we hear about desperate family members rushing fathers and mothers and children down the mountain to the closest hospital. There, they found a panicky staff already tending to dozens of others in similar distress. It was a massive outbreak of cholera. . . . The consensus among public health experts is that, now that cholera has reared its ugly head in Haiti, it is destined to become endemic there.

– Fran Quigley, How Human Rights Can Build Haiti: Activists, Lawyers, and the Grassroots Campaign[4]

Georges v. United Nations, a lawsuit seeking to ensure that United Nations (“U.N.”) immunity does not deny a legal remedy to victims of a U.N.-caused cholera epidemic, is as legally important as it is humanly compelling.[5] The Plaintiffs have sued the U.N. as a last resort to seek remedies for personal injury and death sustained in one of the most tragic torts of recent times: the ongoing cholera epidemic in Haiti. Cholera erupted after peacekeepers from the U.N. Stabilization Mission in Haiti (“MINUSTAH”) recklessly discharged raw sewage into Haiti’s largest river system, setting off the world’s deadliest cholera epidemic that has killed over 8,500 people and sickened more than 706,000[6] since October 2010.[7] Despite overwhelming evidence establishing U.N. responsibility and global calls for justice, the U.N. has responded by refusing to take any responsibility for the epidemic and asserting immunity from suit.[8]

Seeking access to legal remedies as victims of U.N. torts, the Georges Plaintiffs[9] posit innovative arguments. Georges presents a question of first impression in a U.S. court:  whether the U.N. can and should enjoy immunity from suit where it has refused to comply with its obligations to provide victims with access to alternative dispute resolution and a chance to have their claims resolved elsewhere. The case is not only important to cholera victims who remain uncompensated in the face of U.N. wrongdoing, but more broadly highlights the incongruity between the U.N.’s mission to promote human rights and the rule of law[10] and its refusal to abide by these values itself—an inconsistency that jeopardizes the organization’s legitimacy as the promoter of these principles worldwide. Ultimately, if the Georges Plaintiffs are successful, the case will establish a precedent that U.N. immunity does not and cannot mean impunity.

I. U.N. Responsibility for Cholera:  Above the Law Despite Damning Evidence?

Extensive evidence drawn from numerous scientific studies, including one commissioned by the U.N. itself, demonstrates that MINUSTAH is responsible for introducing the disease to Haiti.[11] In October 2010, for the first time in its history,[12] Haiti experienced a devastating cholera outbreak—a disease that is transmitted through contaminated food or water.[13] The U.N. soldiers were deployed to Haiti from Nepal,[14] where cholera is endemic and there had been a surge in infections around the time of the deployment.[15] The soldiers were stationed on a U.N. base perched on the banks of a tributary to the Artibonite River, which Haitians use as a primary source of water.[16] The sanitation infrastructure serving the base was poorly maintained, and cracked and “haphazard” piping allowed wastewater to leak from the base into the river system.[17] The base disposed of fecal waste from its toilets in uncovered pits dug into the top of a hill that sloped downward towards the river and overflowed in heavy rain.[18] Genetic testing has since established that the strain of cholera in Haiti is a “perfect match” to the strain from Nepal.[19] Epidemiological studies show that the U.N. base was the most likely source of the disease in Haiti.[20] The outbreak was explosive, sparking what has become the largest cholera epidemic in the world.[21]

Despite clear evidence establishing U.N. responsibility, victims who have lost family members or have been sickened by the disease have faced incredible hurdles to accessing justice. Two international treaties provide the U.N. with immunity from suit in domestic courts, but also impose reciprocal obligations on the organization to provide an alternative settlement mechanism to those harmed by its actions. First, the Convention on the Privileges and Immunities of the United Nations (“CPIUN”) provides the U.N. with immunity from suit in member states’ courts with the understanding that some immunity from domestic jurisdiction was “necessary for the exercise of its functions and the fulfilment of [the U.N.’s] purposes.”[22] While the CPIUN states that “[t]he United Nations . . . shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity,”[23] it equally provides that the U.N. “shall make provisions for appropriate modes of settlement of . . . disputes of a private law character to which the United Nations is a party. . . .”[24]  Second, the Status of Forces Agreement (“SOFA”) signed by the U.N. and the Government of Haiti provides for CPIUN immunity to MINUSTAH in Haiti.[25] The SOFA also requires the establishment of a dispute resolution mechanism, which includes a standing claims commission for the settlement of “[t]hird-party claims . . . for personal injury, illness or death arising from or directly attributed to MINUSTAH. . . .”[26] The establishment of a standing claims commission is part of the model SOFA used for all U.N. missions.[27] To date, the U.N. has never set up such a commission in any country, despite signing thirty-two treaties that mandate it.[28]

Based on this legal architecture, in November 2011, the Bureau des Avocats Internationaux (“BAI”), one of Haiti’s leading public interest law firms, and its U.S. partner, the Institute for Justice & Democracy in Haiti (“IJDH”), filed claims directly with the U.N. and MINUSTAH on behalf of over 5,000 cholera victims.[29]  The petitioners sought a public acknowledgment of responsibility, compensation, and funding for clean water and sanitation infrastructure.[30] They also requested the establishment of the SOFA-required standing claims commission, asking that the claims be adjudicated “in a fair, impartial and transparent manner.”[31] It took fifteen months for the U.N. to respond to the claims.[32] In February 2013, the U.N.’s Legal Counsel sent a letter to the petitioners’ attorneys that dismissively asserted that the claims were “not receivable” because they “would necessarily include a review of political and policy matters.”[33]  The U.N. refused requests for further explanation.[34]

International law experts agree that this response is not legally justified[35] and that the refusal to receive the claims or establish a standing claims commission violates the U.N.’s legal obligations under international law.[36] The U.N.’s refusal to engage with victims also departs from its previous practice of compensating victims of U.N. torts.[37] Commenting on the proffered justification for refusing the claims, Bruce Rashkow, the former head of the U.N.’s General Legal Division, noted: “As the head of the United Nations legal office that routinely handled claims against the Organization for some ten years, I did not recall any previous instance where such a formulation was utilized in regard to such claims.”[38]

II. Taking the UN to Court: Immunity Is Not Impunity

Having been denied access to any alternative dispute resolution mechanism, the cholera victims turned to domestic courts. In October 2013, IJDH and partners filed a class-action suit against the U.N., MINUSTAH, and two U.N. officers on behalf of Haitian and Haitian-American cholera victims and their families in the United States District Court for the Southern District of New York.[39] The defendants have not entered an appearance in the case, but have instead requested that the U.S. Government seek dismissal on their behalf.[40] In March 2014, the U.S. Attorney filed a Statement of Interest arguing that the case should be dismissed because the U.N. and its officers have absolute immunity from suit in U.S. court.[41]

While prior cases against the U.N. have been dismissed on the grounds of immunity, Georges presents a case of first impression in U.S. court. Both parties agree that under the CPIUN, the U.N. must provide reparations[42] and that the U.N. breached its obligations to the Plaintiffs.[43] The question for the court is therefore whether the U.N. is still entitled to immunity where it has breached the treaties that confer that immunity.

The Georges Plaintiffs present two main arguments in support of the position that, in light of the breach of its obligations under the CPIUN, the U.N. does not enjoy immunity from Plaintiffs’ claims under the treaty. First, Plaintiffs argue that U.N. immunity pursuant to Section 2 of the CPIUN is conditional on the provision of an alternative remedy for private law claims—a requirement under Section 29 of the treaty.[44] According to Plaintiffs, principles of treaty interpretation require that the CPIUN be read as a whole, such that Section 2 may not be read without also considering Section 29.[45] Plaintiffs point to the travaux préparatoires of the CPIUN as evidence that the drafters understood the U.N.’s entitlement to immunity to be conditioned on the provision of alternative remedies,[46] noting, for example, that the drafters instructed that dispute resolution must be provided “if [the U.N.] is not prepared to go before the Courts.”[47] Plaintiffs also cite that the U.N. has itself repeatedly stressed that enjoyment of immunity is permissible precisely because compliance with Section 29 of the treaty ensures that the organization could not act with impunity.[48]  Indeed, the U.N. has even argued before the International Court of Justice, stating:

[T]he immunity accorded to the United Nations by [the CPIUN] . . . is offset by an obligation . . . to make remedies available to private parties who might otherwise be harmed by the immunity of the Organization and its agents. . . . [W]e again emphasize that in the event that immunity is asserted, a claimant seeking a redress against the Organization shall be afforded an appropriate means of settlement. The immunity of the United Nations, or its agents, does not leave a plaintiff without remedy. . . .[49]

Thus, where the U.N. fails to fulfill the precondition of providing an alternate dispute resolution mechanism, as was the case for the Haitian cholera victims, Plaintiffs argue that immunity under Section 2 is not available.

Second, the Plaintiffs assert that the U.N. has materially breached the CPIUN by failing to provide the requisite alternative settlement mechanism and therefore cannot benefit from immunity under the same treaty.[50] Plaintiffs argue that the drafters of the CPIUN envisioned a balanced treaty that, while conferring broad immunities to the U.N., counterbalanced that immunity by providing for settlement mechanisms of private law claims.[51] Section 29 thus serves the critical function of ensuring that immunity does not conflict with the customary international law right to an effective remedy,[52] the U.N.’s own mandate to promote human rights,[53] and the object and purpose of the CPIUN.[54] As a result, the obligation to accord immunity to the U.N. is inapplicable when the U.N. fails to provide appropriate modes of settlement of private law claims as is the case in Georges.  Plaintiffs’ claims are buttressed by amici who argue that the U.N. has an obligation to settle the cholera victims’ claims,[55] and that U.N. immunity in domestic courts should be carefully balanced against the organization providing a reasonable alternative means of settling private law claims.[56]

Georges presents a legal question never before decided and draws from an entirely new palette of facts and circumstances. Previous cases have challenged U.N. immunity based on the adequacy rather than the availability of an out-of-court settlement. U.N. employees, who have access to the U.N.’s Administrative Tribunal, have brought the vast majority of these cases and have challenged unfavorable decisions or inadequate remedies issued by the Tribunal.[57]  Those plaintiffs argued that the U.N.’s failure to provide adequate remedies amounted to a waiver of immunity, which the courts have rejected on the grounds that waiver under the CPIUN must be express. In contrast, the Georges Plaintiffs do not argue that the failure to provide a settlement mechanism constitutes a waiver of otherwise enforceable U.N. immunity. Rather, they argue that the failure to provide access to any dispute resolution procedure precludes the application of immunity to the U.N. ab initio, such that the U.N. never possessed an enforceable right to immunity in their case. Further, unlike employment cases, Georges concerns harm to innocent bystanders otherwise unconnected to the U.N.  The U.N. has well-articulated obligations to compensate for such harms,[58] and a longstanding practice of doing so.[59]  While courts have upheld U.N. immunity where dispute resolution mechanisms and compensation schemes exist, a U.S. court has never addressed U.N. immunity in a case where the U.N. has completely denied innocent bystanders access to any U.N. dispute resolution, settlement, or compensation mechanism.

Outside of the United States, courts have adopted a balancing approach to the immunity of international organizations. Under this approach, access to alternative dispute settlement is a material factor that, when denied, can provide grounds for setting aside immunity.[60] Courts have applied this approach to the U.N.,[61] and Plaintiffs and amici point to these decisions as evidence of the proper interpretation of U.N. immunity.[62]

Moreover, the interest in preserving the U.N.’s ability to carry out its core functions without external interference—commonly cited as a ground for upholding U.N. immunity[63]—does not apply in Georges. The UN’s reckless and improper waste management on its base in Haiti was in no way related to MINUSTAH’s mandate or the mission of the U.N. as a whole. To the contrary, the Georges Plaintiffs assert that upholding U.N. immunity in their case would only allow defendants to evade the rule of law.[64]  Thus, the Georges Plaintiffs note that the U.N. and MINUSTAH, in their insistence on absolute immunity, “seek an extreme version of immunity beyond the limited and contingent immunity authorized by their founding document [the UN Charter].”[65]

III. Accountability as a Means to Strengthen the U.N.

As the human costs of a lack of U.N. accountability grow, the international community, including U.N. insiders, is beginning to recognize that in some cases immunity should give way to the need for accountability from an otherwise untouchable institution. Former U.N. Special Envoy for AIDS in Africa Stephen Lewis has taken the view that:

immunity should not be blanket; it should not be wholesale. There are instances where immunity should be lifted, and what happened in Haiti is one of those instances. . . . I don’t think [liability] would compromise the UN. In fact, I think it would do the UN a lot of good to be seen as principled in the face of having caused so much devastation.[66]

Numerous other human rights experts affiliated with the U.N. have also spoken out publicly in favor of U.N. accountability for the cholera epidemic, including former U.N. High Commissioner for Human Rights Navanethem Pillay,[67] U.N. Special Rapporteur on the Right to Water Catarina de Albuquerque,[68] and U.N. Independent Expert on Human Rights in Haiti Gustavo Gallón,[69] among others.[70]

The cholera case is not the only situation in which U.N. immunity has recently come under scrutiny.[71] An abundance of questions regarding the reputation of the United Nations have arisen in other contexts, including instances of egregious sexual violence perpetrated by U.N. peacekeepers.[72] Together, these concerns amount to a credibility crisis for the organization.[73]  Ultimately, enforcing a balanced interpretation of U.N. immunity when the organization harms innocent bystanders will render it stronger as an institution, and reinforce its legitimacy as a bastion of international human rights.

Georges v. United Nations went to oral argument in the Southern District of New York on October 23, 2014. Counsel for Plaintiffs Beatrice Lindstrom (the first author on this article), three amici for Plaintiffs, and the U.S. government argued the question of United Nations immunity. A decision on the question is currently pending.