October 23, 2014
“Haitian people are all too familiar with the court expressing sympathy to their plight but closing doors to them,” concluded Muneer Ahmad, Clinical Professor of Law at Yale Law School, at today’s federal District Court hearing concerning the U.N.’s immunity for introducing cholera to Haiti. “That need not be the case here,” said Ahmad.
For one day, at least, the Southern District federal court in New York did open their doors, as Judge Oetken heard oral arguments in the case George et al. V. United Nations et al. The question before the court today was whether or not the U.N. and its officers should have immunity from claims arising from the introduction of cholera into Haiti by U.N. troops in October 2010.
“It is not seriously disputed that the U.N. is responsible for causing this devastating epidemic,” stated Beatrice Lindstrom, a staff attorney at the Institute for Justice and Democracy in Haiti and counsel for the thousands of Haitian cholera victims represented in the suit. The U.N. did not appear in court but rather it was U.S. government attorney Ellen Blain who spoke in defense of U.N. immunity, citing the U.S.’s obligation as host nation to the U.N.
Lindstrom argued that the U.N.’s immunity, as called for in Section 2 of the Convention on the Privileges and Immunities of the United Nations [doc] (CPIUN) did not need to be expressly waived by the U.N., because it had failed to provide an alternative dispute mechanism, as called for in Section 29 of the CPIUN. Lindstrom stated that these two sections were “two-sides of the came coin” and that the convention must be interpreted “in whole.” By failing to live up to its obligations under Section 29, the U.N. would not be able to then claim immunity under Section 2. U.S. attorneys argued that there was no link between the two sections and pointed to previous cases where U.S. courts have upheld immunity.
However, in those previous cases, the plaintiffs argued, the U.N. had provided an alternative dispute mechanism, and the question was over its adequacy. This was the first case before U.S. courts where the U.N. had failed entirely to live up to its obligations under Section 29, according to the plaintiffs as well as international law scholars, who filed amicus curiae with the court.
“This case is without precedent, for two reasons,” said Ahmad, “The catastrophic scope of injury caused by the U.N.; and the failure of the U.N. to provide any forum whatsoever in which victims of the cholera epidemic may bring their claims.”
While the U.S. attorney argued that allowing the case to go forward would open the U.N. to a flood of lawsuits, impacting operations worldwide, Lindstrom countered by requesting a “narrow ruling” based on the specific facts of the case. As Kertch Conze, appearing on behalf of the Haitian Lawyers Association and the Haitian Women of Miami, noted, if the U.N. had simply complied with its own obligations under Section 29, “we wouldn’t be here today.” Speaking to HRRW after the hearing, Lindstrom explained that all the U.N. would have to do to prevent a flood of lawsuits is simply comply with their own obligations.
Mario Joseph, Managing Attorney of the Bureau des Avocats Internationaux (BAI) in Port-au-Prince, Haiti, who also represents the cholera victims, noted in a press release after the hearing that “the U.N. spends lots of time and money telling our officials and citizens to respect the rule of law. Then it refuses to have the law apply to itself after killing thousands of Haitians. Does the U.N. think Haitians do not notice the double standard?”
U.S. attorney Blain argued that any question regarding the interpretation of the convention should be brought to the International Court of Justice, but that only signatories to the convention could bring such claims, meaning the U.S. or another U.N. member country. Asked by Judge Oetken if the U.S. would bring the case to the international court, Blain responded that she was “not authorized” to speak on that question.
The lawyer for the cholera victims, Lindstrom, explained that the Status of Forces Agreement signed by Haiti and the United Nations explicitly calls for third parties to be able to present claims and further, that Section 29 of the CPIUN deals expressly with injuries to individuals.
The question of whether or not the court’s doors remain open to Haitians will have to wait; Judge Oetken reserved judgment for now, and no decision is expected for months. Another case, filed in Brooklyn earlier this year, is also making its way through the U.S. court system. Dr. Tim Howard, one of the lead attorneys in the case, told HRRW that, “If they lose here, and we lose there [in New York’s Eastern District, where the second case is being heard], we’ll take it somewhere else. We won’t stop until justice is done.”
