The United Nations has been given an ultimatum - pay compensation to individuals affected by the cholera outbreak in Haiti or be brought before a national court. If it goes that far, this may be the first time that the UN is forced to settle a legal claim through a domestic court. The Organisation ought to be seriously concerned about the outcome of these claims. If it decides not to pay the compensation within 60 days then the path may be paved for national courts to hear future cases involving the UN.
In October 2010, the UN deployed a group of Nepalese troops to Haiti. Those soldiers formed part of an ongoing peacekeeping operation in Haiti. Despite it being well known that Nepal has high incidents of cholera, none of the troops were tested for cholera prior to entering Haiti. On 21st October 2010, cholera broke out in Haiti for the first time in 50 years. Within the first 30 days, Haitian authorities recorded almost 2,000 deaths from cholera. In July 2011, the epidemic infected at a pace of one person every minute. Epidemiologists have been able to match the exact strain of cholera in Haiti to that found in Nepal. Unusually for the spread of infectious diseases, the cholera outbreak has been proven to be directly attributable to UN peacekeeping troops from Nepal.
Claims were filed against the UN on behalf of thousands of individuals affected by the cholera outbreak in Haiti. Not only did the UN fail to screen Nepalese soldiers for cholera, it also failed to manage the waste from the peacekeepers' camp. Human waste infected the Artibonite River - Haiti's most important and most relied-upon river.
National courts have long-understood that they cannot hear cases brought against the United Nations. The Organisation has relied upon the doctrine of 'absolute immunity'. Instead, as a counterbalance, the UN sets up its own tribunals or claims boards to settle individuals' disputes with the Organisation. Those mechanisms have dealt with employment disputes, property damage, and other private law claims against the UN or its staff. The Organisation effectively is its own judge and jury in such cases. It determines whether or not it is responsible and, if so, the remedy that is awarded. Although those mechanisms have their own problems, not least in terms of the UN's accountability, they do provide a way for individuals to seek recourse against the UN.
The individuals affected by the cholera outbreak in Haiti have been refused access even to the UN's own mechanisms. The Organisation has classified the claims as 'not receivable' by the UN's local claims board. It insists that these are not private law claims but rather ones requiring political or policy review. As a result, those individuals have no access to a court and no access to a potential remedy.
Under international human rights law, all individuals have the rights to access a court and to a remedy. Cases have previously been brought on the basis that the bar to national courts hearing cases involving the UN violates those rights. In all previous cases, national courts have ruled that there has been no violation of these rights because individuals can access alternative mechanisms, such as UN tribunals or local claims boards. Yet it is clear in this situation that the individuals affected by the cholera outbreak in Haiti are not able to access a court of an alternative UN mechanism. Without such access, they cannot realise their right to a remedy.
The scene is then set for a human-rights based challenge to the UN's absolute immunity from cases being brought to national courts. The ball, then, is in the UN's court. It can either pay compensation to the individuals affected by the cholera outbreak, or it can take the gamble that a successful challenge to its immunity will open the door for a wholly new approach to how the UN is held responsible for its actions. If it chooses the latter, then the UN will only have itself to blame when the entire nature of the game changes on the back of this one case.
Follow Dr Rosa Freedman on Twitter: www.twitter.com/GoonerDr