Human rights lawyers in New York are preparing to file an appeal against a U.S. judge’s decision to dismiss a class action lawsuit against the United Nations, the next step in an uphill battle that, if successful, may change the way the public can hold the institution accountable for its actions.
The appeal is the latest in the much-publicized case alleging that the United Nations negligently introduced cholera to Haiti after the catastrophic 2010 earthquake that tarnished the U.N.’s reputation in the troubled Caribbean state.
The lawsuit, Georges et al. v. United Nations et al., was dismissed Jan. 9 in the Southern District Court of New York on the grounds that the United Nations is exempt to charges against its immunity.
Brian Concannon, executive director of the Boston-based Institute for Justice and Democracy in Haiti — the first to file claims on behalf of 5,000 cholera victims and their families — told Devex the appeal will argue that the United Nations should not be able to use its immunity as a shield for negligence and misconduct.
At least 8,721 Haitians have died and 717,203 have become ill from the disease since an outbreak occurred in 2010. It was caused by a cholera strain not present in Haiti until peacekeepers from an area in Nepal that was experiencing an outbreak at the time came to Haiti and stayed at a camp where their waste contaminated the country’s largest river, as scientific studies and a U.N. report itself found.
The United Nations has not accepted responsibility for the case or compensated victims despite the organization’s own rules to provide an alternate remedy to those claiming to be harmed by its operations. If the U.N. does not comply with its obligations, Concannon said, it should not be able to invoke its immunity.
“The judge said U.S. courts have always said the U.N. is completely immune to everything,” Concannon told Devex. “But we think the U.N. is extending the immunity beyond where it's ever been extended before.”
The executive director stressed that immunity should be a “two-way street.”
“You give the U.N. protection for being sued — which is a huge grant of power — and in turn the organization has obligations. We're saying you need to enforce the two-way street,” he said.
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No official review process
The organization has an internal process to handle claims made against peacekeeping missions. Third-party claimants must first seek resolution through Section 29 of the Convention on the Privileges and Immunities of the United Nations in an internal claims review board.
In response to the complaint from cholera victims, the institution publicly declared that the claims were “not receivable,” marking the first time it did not go through the official review process with respect to a peacekeeping mission. Still seeking compensation, lawyers then turned to U.S. courts, filing three lawsuits.
Thus, Concannon said this case differs from previous lawsuits against the United Nations because the complaint was not accepted to be processed by the review board before lawyers sought action in the U.S. judicial system.
“In this case, the U.N. said ‘we’re not going to have any process at all,’” he said.
The United Nations has not responded to the lawsuit. When contacted, press officer Sophie Boutaud de la Combe said it was “not … practice to discuss in public claims filed against the organization,” and that “the case is ongoing.”
“The U.S. government had made submissions to the court indicating its position that the United Nations and its officials were immune from the service of legal process as well as the lawsuit under the Convention on the Privileges and Immunities of the United Nations,” Combe said, alluding to the Jan. 9 hearing. “This position was ultimately adopted by the court.”
‘One of the gravest injustices’
In the hearing, New York Southern District Judge Paul Oetken compared the case to one in which U.N. High Commissioner for Refugees employee Cynthia Brzak complained of sexual harassment against then-high commissioner Ruud Lubbers in 2003. Brzak first sought action through the U.N. system but after finding the results inadequate, she went through the U.S. judicial system, where the verdict was the court would not question the U.N.’s internal process.
“As the Second Circuit held in Brzak, the language of Section 2 of the CPIUN is clear, absolute, and does not refer to Section 29: The U.N. is immune from suit unless it expressly waives its immunity,” Oetken stated.
But Concannon asserts this case differs from Brzak’s because the U.N. declined to apply the internal settlement process in this case whatsoever.
If the United Nations does lose the case, it will need to provide a settlement mechanism for victims of the cholera outbreak and can lose immunity if it does not, Concannon said. Further, he believes the United Nations did not want to provide settlement because it is embarrassed by its settlement mechanism, which takes the form of panels “completely controlled” by the United Nations to determine compensation that’s “very unfair to victims.”
The United Nations has a $50,000 cap on loss of life, low compensation for sickness based on lost wages and medical bills, and no pain and suffering. Most people infected throughout Haiti were treated at public clinics and not charged so lack medical bills, and were living on $2 a day or less, with many patients — especially women and children — lacking salary stubs for lost wages compensation.
This case hits at the fundamental issue of the public holding the United Nations accountable for its actions, and taking accountability could help the global body reduce harm, increase accountability for peacekeepers and avoid lawsuits in the future, Concannon said.
The case is “one of the gravest injustices” according to Wesley Laine, a Haitian law student at Sciences Po who will join IJDH to work on the group’s appeal. Laine is one of many lawyers who have voiced disdain at the U.N.’s dismissal of the case and said it undermines the global body’s credibility in Haiti. But he is confident the lawyers will win the case.
“By refusing to compensate the victims, the United Nations has reinforced the perverse idea that an impoverished human being is an isolated person unworthy of due process or any legal rights,” he told Devex from Paris. “However, when the lawsuit prevails, it will forge a new morality within the international judicial apparatus, and restore more humane principles on which the United Nations must operate.”
The notice of appeal, due Feb. 14, will be brought to a federal court in New York within the next half year.
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