A number of news outlets are reporting that the UN has “invoked immunity” in response to claims for compensation from Haitian victims of a cholera epidemic that was probably introduced by Nepalese members of the MINUSTAH peacekeeping mission.
That’s not quite what happened.
The UN didn’t invoke its immunity, because it didn’t have to. The claims for compensation were not an effort to file suit in the courts of Haiti, or any other nation from whose jurisdiction the UN is immune. Rather, they were an attempt by NGOs representing Haitian victims, recognizing the UN’s immunity to lawsuits, to file a claim with the UN itself.
Let’s start from the top:
The UN has immunity from legal process under the 1946 Convention on the Privileges and Immunities of the United Nations. This means that UN officials and “experts on mission for the United Nations” (which is how peacekeepers are classified) are protected from any legal claims or charges arising out of actions performed in their official capacity.**
However, Article 29 of that Convention provides an avenue for the resolution of some disputes that courts cannot reach because of the UN’s immunity. It states that: “The United Nations shall make provisions for 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 keeping with this obligation, MINUSTAH’s Status of Forces agreement with the Haitian government provided for the establishment of a three person “standing claims commission” to hear civil claims arising out of actions of MINUSTAH, or its members, outside of the Haitian courts’ jurisdiction. This never happened. (And in fact, it appears that the creation of such a commission has never happened anywhere.)
Due to the nonexistence of the standing claims commission, the victims submitted their petition to MINUSTAH’s claims unit and directly to UN HQ. The UN Office of Legal Affairs took fifteen months to review it, and responded by letter yesterday. Its position is that the cholera claims are not the sort of “dispute of a private law character” envisioned by Art. 29 of the Convention, but rather involve questions of public law and policy. Well worth the wait, huh?
As Kristen Boon points out over at Opinio Juris: “The upshot of this communication is that the claimants have no venue to pursue their case.” There is no right of appeal for the UN’s denial of compensation, and any attempt to bring a case in Haitian courts (which victims representatives have signaled they will pursue) will be met with an immediate invocation of immunity. -In which case, we can all look forward to some recycled headlines.
**This isn’t relevant for the cholera claims, but the Status of Forces agreements that the UN signs with countries where peacekeeping operations deploy include additional language stating that military personnel “shall be subject to the exclusive jurisdiction of their respective participating States in respect of any criminal offences.” This means that even when peacekeepers commit crimes in no way related to their official duties (like, for instance, raping Congolese children), they can’t be prosecuted by the host country.