Haiti Cholera Victims Get First Hearing in Court
by Jake Johnston, Haiti Relief and Reconstruction Watch (HRRW)

“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 an Oct. 23 federal District Court hearing concerning the UN’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 J. Paul Oetken heard oral arguments in the case George et al. V. United Nations et al. The question before the court was whether or not the UN and its officers should have immunity from claims arising from the introduction of cholera into Haiti by UN troops in October 2010.

“It is not seriously disputed that the UN is responsible for causing this devastating epidemic,” stated Beatrice Lindstrom, a staff attorney at the Institute for Justice and Democracy in Haiti (IJDH) and counsel for the thousands of Haitian cholera victims represented in the suit.  The UN did not appear in court, but rather it was U.S. government attorney Ellen Blain who spoke in defense of UN immunity, citing the U.S.’s obligation as host nation to the UN.

Lindstrom argued that the UN’s immunity, as called for in Section 2 of the Convention on the Privileges and Immunities of the United Nations (CPIUN) did not need to be expressly waived by the UN, 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 UN 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 UN had provided an alternative dispute mechanism, and the question was over its adequacy. This was the first case before U.S. courts where the UN 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 UN; and the failure of the UN 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 UN 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 Conzé, appearing on behalf of the Haitian Lawyers Association and the Haitian Women of Miami, noted, if the UN 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 UN would have to do to prevent a flood of lawsuits is simply comply with their own obligations.

Mario Joseph, Managing Attorney of the International Lawyers Office (BAI) in Port-au-Prince, Haiti, who also represents the cholera victims, noted in a press release after the hearing that “the UN 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 UN 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. government or another UN member nation. 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.

Lindstrom, as lawyer for the cholera victims, 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.