By Armin Rosen, The Atlantic
Febuary 26, 2013
The organization is functionally above the law — and victims of Haiti’s cholera outbreak aren’t the only ones paying the price.
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. They would have to contend with Interpol red notices, along with the occasional cream pie attack. And the companies themselves would go into damage control mode, akin to BP’s post-oil-spill public relations blitz, or Wal-Mart’s pivot toward promoting American-made products. They’d acknowledge the need to convince skeptical consumers that their corporate behavior had changed.
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. peacekeeperswere 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.
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 1945International 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.
The Haiti case reveals an equally-troubling disparity. The U.N. is hosted by the United States — the chain of command ending with the Nepalese peacekeepers’ negligent waste management regime and the U.N.’s potentially-deadly obfuscations in dealing with the cholera outbreak arguably begins at a high rise in Turtle Bay. But the Haitian claimants have no options within the American justice system, at least under current interpretations of the IOIA.
Geneva-based lawyer Edward Flaherty, who represented the claimant in the Lubbers case, believes that system is due for a change. He says the European justice system, where the U.N. also enjoys broad immunities, is currently chipping away at the U.N.’s status. He described a case in the European Court of Justice in which a disabled job applicant was able to bring a non-discrimination suit against the European Patent Office, another protected international organization.
Flaherty thinks that the IOIA actually deprives American claimants of their constitutional right to due process. “Congress can’t say to someone, we can take away your right to sue somebody and you have no remedy,” he says. And even if there is a remedy provided, as allowed for under section 29 of the Convention, it still has to “meet the minimum standards of due process as required by the Bill of Rights and the U.S. Constitution.”
In past instances, the U.N. has proven inadequate even in creating a system to deal with employment-related disputes. A paper co-authored by Flahertyoutlines the lack of due process rights ensured through the adjudication system utilized by the U.N.– there is no oral testimony, no discovery process, and no cross-examination of evidence. And “judges” are appointed from within the U.N. system, casting serious doubt on their independence.
Last year, the General Assembly authorized the U.N. to pay out no more than three years salary to an employee who is either fired or incapacitated: “The U.N. could kill someone and the most they’d be responsible for is three years net base salary,” says Flaherty. The U.N. has a “rudimentary approximation of workman’s compensation,” but it’s well below the standards of much of the industrialized world. “In most national court systems if you’re injured while you’re working, a company can’t fire you until you’re able to get back to work,” Flaherty explains. “The U.N gives nine months of sick leave and it makes no distinction between service incurred injury or if you just broke your leg skiing. After you exhaust your statutory benefits, they stop paying you.” U.N. employees work in some of the most dangerous places in the world, and the U.S. and European legal systems are off-limits to them.
Under the U.N.’s rules, that actually shouldn’t matter, at least in theory. On paper, the Haitian claimants have at least partial due process rights. Brian Concannon notes that both the Convention, and the Status of Forces Agreement between the U.N. and the Haitian government, obligate the World Body to create a mechanism for redressing local grievances against U.N. personnel. In the latter case, no such mechanism has been created in Haiti, according to Concannon (Katzaddressed this in a recent article). And with the cholera outbreak, the U.N. has resorted to a tendentious line of reasoning to exempt itself under the Convention.
The U.N. has decided that the Haitian complaint isn’t receivable because it deals with a matter of U.N. policy and not a private law claim. “If you get hit by a mail truck, you can sue the federal government,” Concannon explains. “If you lose your business because the post office has said it’s not going to deliver mail on Saturdays you cannot sue, because that’s a policy that’s unreviewable in court.” In the U.N. context, pulling peacekeepers out of a safe zone would be a matter of public policy; a peacekeeper running someone over with a Humvee would be a private, civil matter, and therefore receivable under the Convention.
“If dumping sewage is a policy, it has two consequences,” Concannon says. “The first is that it’s a problematic policy and they should answer questions about that. And secondly — if that’s allowed to be under a policy that’s not reviewable, anything is ‘not reviewable.'”
No external actor can force the U.N. to change its mind. The World Body could waive liability for individual officials, but that’s a decision that only the Secretary General has the power to make — which is a bit like if the President of the United States had the sole authority to hand-pick which U.S. government employees could be sued or prosecuted. Congress could repeal or amend the IOIA, or the U.S. could simply withdraw from the Convention on Immunities. Flaherty advocates a system in which the rigidity of both laws is replaced with an executive-order based system in which the president dispenses with immunities on an organization-by-organization basis (not even Flaherty seems to believe that the U.N.’s immunity should be totally scrapped). A Supreme Court case that either pierces the shield of absolute immunity or rejects the IOAO on constitutional grounds could go a long way as well.
But for now, claimants against the U.N. have astoundingly few options. “Basically the U.N.’s approach to legal liability is we make up the rules, so we win,” says Concannon. None of the five legal experts consulted for this article could think of a single instance in which the U.N. had been successfully sued in U.S. or European court.
It is unreasonable to expect any organization to submit to more legal exposure than is required under existing law, and in the Haitian case, the U.N. had a procedural means of simply making the complaints go away. One might hope that the U.N., which was founded to “reaffirm faith…in the dignity and worth of the human person,” would be less mercenary in its concerns. After all, no multinational corporations host conferences on “Strengthening the Rule of Law,” and none act as a steward for and enforcer of scores of multilateral treaties. Idealism is hardwired into the structure and purpose of the U.N., which is still the world’s most respected venue for mediating international conflicts, and for forging cooperative solutions to weighty, global problems. The U.N. undoubtedly benefits from its legal immunity — and since immunity is the price of a functioning international system, so does the world at large.
But when an organization dedicated to the rule of law is itself immune from legal accountability, it can’t help but cheapen its larger mission, as well as the quality of its work. As Flaherty notes in his paper, no U.N. personnel were seriously disciplined for their role in the U.N.’s Oil for Food Scandal, in which U.N. diplomats received kickbacks from the regime of Saddam Hussein in exchange for allowing him to use a U.N. program to circumvent international sanctions. Lubbers was eventually forced out of the U.N., but only after a media outcry — and without the U.N. paying any compensation to his victim. And it is still the U.N.’s position that it was not responsible for the cholera outbreak in Haiti and owes nothing to the epidemic’s victims. The U.N. has a troubling recent history of behaving as if it is above the law, perhaps because it is. The epidemic reveals how far even the most well-intentioned organizations can drift when they aren’t subject to a hard external check, and how badly the U.N. is in need of mechanisms that will force it to do better.
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