Georges v. United Nations: a challenge to the UN immunity
By Gaiane Nuridzhanian, on 2 August 2016
By Kateryna Moroz (LLM, University of Miami School of Law; Fulbright scholar, US)
The worst cholera epidemic in recent history erupted in Haiti six years ago. Thus far, it resulted in the death of 8,500 people and sickened more than 706,000. Public health scientists who investigated the epidemic concluded that most probably UN peacekeepers from Nepal introduced the strain into Haiti.
As of today, opinions of international law experts around the world remain split over the question whether the Convention on the Privileges and Immunities of the United Nations (CPIUN) grants the UN an absolute immunity. In 2013, law professors and students of the Yale Law School asserted that it does not. So did the Institute for Justice and Democracy in Haiti (IJDH), which on behalf of the cholera epidemic victims, sued the United Nations (UN), Secretary-General Ban Ki-Moon, and former Under Secretary-General for MINUSTAH Edmond Mulet, for negligence, gross negligence, recklessness, and deliberate indifference for the lives of Haitian people. The question whether the American judicial system will take the side of the ordinary people, who fell victim to the UN’s negligence, is an interesting question that may well be answered in the very near future. As, usually, the Court issues its decisions within 130 days of the oral arguments (in the matter of Georges, the oral arguments were concluded on 1 March 2016).
Background: In October 2010 the UN Stabilization Mission in Haiti (MINUSTAH) deployed 1,075 troops to Haiti. These troops were deployed from Nepal, where cholera is one of the major public health concerns. The UN stationed the troops, who were not treated for cholera, in the military bases located adjacently to the main potable water source of national importance. As a result of defective sanitation of the infrastructure, cholera-contaminated human waste flowed into the Haitian waterways. As of November 2010, public health experts recorded 7,000 cases of infection.
American and Haitian human rights lawyers, including IJDH, filed administrative complaints with the UN on behalf of cholera victims. However, the UN dismissed these claims, relying on its immunity under CPIUN.
In October 2013 IJDH brought a class action before the United States District Court of the Southern District of New York, on behalf of five named victims of the cholera epidemic. The claim was filed pursuant to the Federal Rule of Civil Procedure 23. The families of 8,300 individuals who died of cholera and 679,000 survivors of the disease would have benefited if the plaintiffs in Georges v. United Nations had prevailed. But the road is long and in March 2014 the US Government moved to dismiss on the grounds of immunity under CPIUN. Plaintiffs opposed arguing that the UN’s rejection of the victims’ administrative claims breached its obligation under CPIUN and thus precluded the application of immunity.
In January 2015 the Court dismissed the case on grounds of immunity. The plaintiffs appealed, and the case is currently pending before the United States Court of Appeals for Second Circuit.
Issues raised by the Georges case: Georges v. United Nations sought to ensure that the UN immunity did not waive the right of the victims of the cholera epidemic to a remedy. ‘The claims are that the U.N. engaged in reckless and gross negligence and misconduct bringing cholera to Haiti’, said Ira Kurzban, a partner in the Kurzban Kurzban Weinger Tetzeli & Pratt, P.A., law firm, and a board member with IJDH.
In fact, according to Rosa Freedman and Nicolas Lemay-Hebert, Georges is a direct result of the UN’s refusal to establish any alternative mechanisms for resolving disputes of the cholera victims. This case revolves around two provisions of the CPIUN: Section 2, granting the UN immunity, and Section 29, requiring the UN to provide alternative modes of settlement for private law claims.
In Georges, the plaintiffs argue that compliance with Section 29 of the CPIUN is a prerequisite for the establishment of immunity under Section 2. Thus, failure to comply with Section 29 constitutes a material breach of the treaty, and thus strips the UN and MINUSTAH from the protections accorded under the treaty. The trial Court indeed asserted that Section 29 was breached. Nevertheless, the Court interpreted this violation as one that does not entail repercussions for the UN. In its decision, the Court relied on Brzak v United Nations. There, however, the breach of Section 29 of the CPIUN was not one of the contentious issues before the Court, as Brzak addressed a question of a narrower scope. The case, in fact, was only concerned with the question whether the alleged inadequacies in the UN’s internal claims process for employees constituted an express waiver of immunity under CPIUN Section 2. George markedly deals with a different question. Here, the question is whether a breach of the obligations stipulated in Section 29 prevents the UN from benefiting from immunity under Section 2.
Under Section 20 of the CPIUN, the Secretary General has the right to waive the immunity of any UN official. Wilfred Jenks concludes that the failure to exercise this option can constitute abuse of immunity (C.WILFRED JENKS, INTERNATIONAL IMMUNITIES, 41-45 (1961)), whereas some experts interpret this provision as discretionary. In any case, establishment of mechanisms to settle private claims in Haiti was not a matter of discretion, as provided by the Status of Forces Agreement (SOFA) between Haiti and MINUSTAH in 2004.
The European courts concluded that there is a distinction between an International Organization’s activities that are core to its functions and conduct that are no different from the private entity’s conduct (discussed in Memorandum of Law of Amici Curiae European Law Scholars and Practitioners in Support of Plaintiffs’ Opposition to the Governments’ Statement of Interest). Unlike in Mothers of Srebrenica, in Georges, the MINUSTAH’s activities that resulted in a cholera epidemic, were ‘…at a mere mission support level, a part of the UN’s routine…’ (see the Memorandum, page 8). The authors of the Memorandum also raised the issue of the balance between the UN’s immunity and the individual right to remedy. They asserted that in the case of Georges there was no reason to conclude that the establishment of a standing UN claims commission to hear torts claims would affect the balance between the UN interests on the one hand, and the interests of the plaintiffs in the Georges case, on the other (see the Memorandum, page 9).
So, if the existing mechanisms for settlement for private claims were not effective, what are then the appropriate alternatives for substantial torts claims, such as the one brought in George?
There are good examples that may serve as inspiration. Most recently, the 9/11 Victims Compensation Fund in the U.S., or the UN’s own Iran Claims Tribunal. In fact, even prior to 9/11, funds were established for victims of the Columbine High School Shooting and the Oklahoma City Bombing (United Nations as Good Samaritan: Immunity and Responsibility, Kristen E., 16 Chi. J. Int’l L. 341 (2015-2016)). Indeed, John Culhane, argued that the U.S. government is no different from a private tortfeasor in its obligation to compensate for negligent acts (John Culhane, Tort, Compensation, and Two Kinds of Justice, 55 RUTGERS L. Riv. 1027, 1054 (2002)).
It should be noted, that there are instances in which the UN has already been found liable for tortuous acts. Thus, in 1966 the Secretary General made a lump-sum payment to the Belgian government for the settlement of all disputes of its nationals relating to the UN Organization in the Congo (ONUC) in response to Manderlier v. Organisation des Nations Unies case. As Rosa Freedman notes, claims were settled through global settlement agreements to avoid public scrutiny.
Proposed Remedies: The Peacekeeping without Accountability Report, for one, suggested that the Secretary General (or the government of Haiti, having regard to the UN’s views) would appoint an initial commissioner so as to establish a commission that would receive the victims’ claims. The Report also suggested that in parallel, all the relevant public health issues would be addressed.
Conclusion: If successful, Georges may become a policy changing decision, as it will create a precedent for a legal interrelationship and codependency between Sections 2 and 29 of the CPIUN. It is also significant in ascertaining that the UN does not benefit from immunity under Section 2 of the CPIUN where it breaches its obligations under CPIUN or SOFAs. Finally, the decision may bring a sense of justice to more than 706,000 victims and to the families of over 8,500 deceased who remain uncompensated due the UN’s failure to comply with the human rights principles it promotes.