Boys on their way to fill water jugs pause near a cross adorned with black cloth on a hill overlooking a burial site for earthquake victims outside of Port-au-Prince, Haiti on January 10, 2011. (Allison Shelley/Reuters)
If a multinational corporation behaved the way the U.N. did in Haiti, it would be sued for stratospheric amounts of money. And that's just for starters: Were Unilever or Coca-Cola responsible for a cholera outbreak that killed 8,000 people and infected 640,000 more, and for subsequently covering up its employees' failure to adhere to basic sanitation standards, it is likely their executives would have difficulty visiting countries claiming universal legal jurisdiction.
The U.N. and its leadership won't have to worry about any of this. But maybe it should.
As award-winning journalist Jonathan Katz established in a bombshell chapter of his recent book, The Big Truck That Went By, a base for Nepalese U.N. peacekeepers next to the Artibonite River was the origin of the cholera epidemic that swept through Haiti in October of 2010. There had been no reported cases of cholera in Haiti for a century; now, the disease is endemic, and it is projected to kill as many as 1,000 people a year until it is eradicated, according to Brian Concannon, director of the Institute for Justice and Democracy in Haiti and a lawyer representing Haitian claimants against the U.N. Former president Bill Clinton, the U.N.'s special envoy for Haiti, has admitted that U.N. peacekeepers were responsible for the outbreak. But Katz, the AP's Haiti correspondent in the years after the country's devastating 2010 earthquake, was at the receiving end of a bungled U.N. cover-up of the epidemic's cause. The World Body actively discouraged and even impeded journalists and public health investigators attempting to trace the causes of the pestilence. The U.N. never admitted responsibility, even as a U.N. commissioned-report left little room for doubt (the entire saga is recounted in Katz's chapter, which should be read in full).
Last week, the U.N. announced that Haitian claims for compensation weren't receivable under article 29 of the Convention on the Privileges and Immunities of the United Nations.
The Convention orders the U.N., which enjoys broad legal immunity in most national court systems, to create "provisions for the 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." In a letter to Concannon, the U.N.'s Under-Secretary for Legal Affairs argued that "consideration" of the Haitian claims would "necessarily include a review of political and policy matters." In the U.N.'s opinion, peacekeepers from a cholera-endemic country dumping human waste into a major river system was a public policy rather than private law concern, meaning the U.N. wasn't required to create even an internal, para-legal structure to address Haitian damages.
Unmentioned in the letter is that in the context of the organization's privileged status under international and domestic law, this announcement was really a way of avoiding having to address any damages, ever. The U.N. has few legal obligations to anyone or anything other than itself, and it's not fighting the cholera allegations because it simply doesn't have to.
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The U.N.'s immunity within the American legal system is established through both the aforementioned 1946 Convention on Immunities and Privileges, which the U.S. signed in 1970, and through the 1945 International Organizations Immunity Act, which was partly aimed at convincing the nascent World Body to locate its headquarters in the United States.As Marco Simons, legal director of the environmental advocacy organization Earth Rights International explained, a diverse range of international organizations enjoy almost absolute legal immunity in the U.S. "The U.S. took a very blanket approach, rather than a case by case approach to the international organizations issue," Simons says of the IOIA. "Rather than passing a specific statute that implemented the immunity required for each international organization, the U.S. said that all international organizations were going to enjoy the same immunities as foreign states."
The IOIA has gone unchanged since the mid-40s. In that time, U.S. case precedent has established that a foreign government's immunity can be canceled in cases of commercial liability, violation of property rights, certain civil offenses committed within the United States and support for terrorism. But there are no such exceptions to the IOIA, or at least none that circuit-level federal courts can agree on: In 2010, the Third Circuit Court of Appeals determined that a New Jersey Company could sue the European Space Agency on the basis that the exact same suit would be permitted against foreign government. But the same year, the Second Circuit court found that a female U.N. employee could not sue the organization after she was repeatedly sexually harassed by Ruud Lubbers, the U.N.'s former High Commissioner for Refugees (the plaintiff sued for abuses committed while Lubbers was High Commissioner, between 2001 and 2005). In Simons's view, American law "probably goes beyond what the U.S. is required to do under the headquartering agreement or the U.N. charter."
The IOIA was well-intentioned: as legal scholar Kate Cronin-Furman explained in an email, immunity is crucial in enabling international organizations to conduct their day-to-day business. "Immunities are how we ensure that diplomats and international organizations can do their work," she wrote. "It would be impossible for them to function if they had to worry about being arrested or sued all the time." Misdeeds will inevitably go unpunished -- but immunity is still "a feature, not a bug, of the international system," and it wouldn't be a universally accepted concept if it didn't serve some essential and highly practical end.
University of California-Hastings international law professor Chimene Keitner agrees. "For the U.N. to go into a country to begin with it's got to be fairly certain it's not exposing itself to limitless liability," Keitner says, explaining that the U.N. "depends on member state financing and doesn't have infinite resources."
Yet immunity also creates incoherencies within the U.S. legal system. The Lubbers case, along with the 1998 case of Atkinson vs. the Inter-American Development Bank , are glaring examples -- in both instances, federal courts determined that the IOIA prevented American citizens from seeking redress in U.S. court. "With the state of international organization immunity, employees of international organizations do not enjoy protections from U.S. anti-decimation laws, effectively because [those organizations] cannot be sued," says Simons.
