Clearing Up Some Confusion on UN Immunity and the Haitian Cholera Claims

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.

 

WTF Friday, 8/24/2012

It’s still Thursday for another 12 hours in my current time zone, but I’m calling it for this week:

An elected judge in Lubbock County, Texas has announced that the United States risks descending into civil war if President Obama is reelected. An armed insurrection will become necessary, Judge Head believes, in order to battle the UN troops that will pour into US territory when Obama surrenders sovereignty of the country to the United Nations. Because the UN would DEFINITELY want to take that on.

I don’t think there’s anything I can add to make this funnier than it already is, so I’ll just echo Lubbock County Commissioner Gilbert Flores’s advice to Judge Head: “I think you better plan to go fishing pretty soon.”

Recommended Reading on the Khmer Rouge Tribunal

Stéphanie Giry has an interesting post about the Khmer Rouge Tribunal up at the NY Review of Books blog. I’m in Phnom Penh at the moment, spending my time watching the Tribunal’s proceedings and harassing the people who work there, so I’ll have plenty to add on the subject soon, but if you’re looking for a good sum-up of the situation, go read Giry’s piece.

In outlining the political challenges (both domestic and international) to the effective delivery of justice for Khmer Rouge crimes, Giry raises a number of troubling issues that apply to international justice efforts more widely. The existence of “few degrees of separation between the crimes of yesterday and the leaders of today” describes any number of post-atrocity societies, constraining prosecutorial choices and incentivizing political interference. Similarly, in the presence of incentives to interfere, corruption issues around an accountability process are always a possibility.

However, it is Giry’s description of the role of the UN and donor governments that I find most disturbing in its potential broad applicability. She characterizes the international actors participating in the Tribunal’s work as “eager to present themselves as guardians of international justice for as small a political price as possible.” Unfortunately, this sentiment echoes a number of conversations I’ve had with people here over the last two and a half weeks.

The hybrid tribunal model (in which a domestic government and international actors work together to create and staff a court) is intended to supplement the capacity of local judicial institutions to a degree sufficient to produce justice that meets international standards. But if the international partners can’t be bothered to object when these standards are violated, what’s the point?

 

Today in Headlines We Thought We Misread: Zimbabwe Sends Peacekeepers To Syria

I learned today (h/t Peter Dörrie) that Zimbabwe is deploying military personnel to the United Nations Supervision Mission in Syria (UNSMIS).

Know what country’s soldiers you’re definitely not picturing when you hear the term “UN peacekeepers”? That’s right, Zimbabwe.

I would think this was just another item to be filed under “Confusing Choices Made by the International Community in Handling the Syria Crisis” (see, e.g., sending an accused war criminal to head the Arab League observer mission), but Zimbabwe currently has military personnel in the UN missions to Darfur (UNAMID), Côte d’Ivoire (UNOCI), and Liberia (UNMIL), and police in South Sudan (UNMISS), Timor-Leste (UNMIT), and Liberia.

The Zimbabwe Congress of Trade Unions (a major opposition force in Zimbabwe politics) has called on the United Nations to stop using Zimbabwe’s armed forces in its peacekeeping missions on the grounds that their human rights record renders them unfit for service. The army has most recently been accused of abuses against miners in the Marange diamond fields, while the police are alleged to have beaten and tortured civil society activists who viewed a video of the Arab Spring protests in 2011.

So this should definitely help the Department of Peacekeeping Operations with that whole catastrophic image problem thing…

 

WTF Friday, 6/1/2012

This week’s winner, hands down:

That up there on the right in this BBC story on UN action in Syria is the United Nations Space Command logo from the video game Halo.

The BBC apologized, but offered no explanation of the error. Also no word on whether the United Nations Security Council will be adopting the obviously much cooler Halo logo. (Currently they share the globe and wreath emblem with the rest of the UN system.)

WTF Friday, 12/17/2010

Thanks to Nathan for starting us off this week: “I thought you might continue the thread of Haiti-related WTF Friday posts with this gem. Directly after Paul Farmer writes a piece in Foreign Policy criticizing the reconstruction effort because the Haitian government has only been given 0.3% of the aid money (the rest going to the Interim Commission, etc.), Sec. Clinton gives a speech about her “growing frustration” with the Government of Haiti’s failure to coordinate the reconstruction efforts, which Canadian Foreign Minister Lawrence Cannon follows up by saying the international community ‘cannot do everything.’ I guess the government was supposed to make that 0.3% go a long way…”

IPS reports “U.N. Deplores Escalating Violence in Côte d’Ivoire.” This is a sharp turn from their regular stance of “condemning” violence. Either way, the U.N. appears to have consistently been “not down” with violence. Well, sort of

Lastly, sorry for some of the unfortunate links on the bottom of this page (you’ll see), but these pics are just classic Jong-Il.

U.N. Home Security Systems

Friend of Wronging Rights Adam Sacks has a hilarious new video up on the UCB/Babelgum collaboration site:

Adam was worried I wouldn’t like the video when it was done, because it was “kind of mean about the U.N.” I think Adam has not been paying attention.

(Full disclosure: I consulted on one of the jokes that appears in tiny text at the top of the screen. Fuller disclosure: I don’t think I made it any funnier. Fullest disclosure: that is not going to stop me from bragging on the internet about my brush with greatness.)

WTF Friday, 11/5/10

The military junta in Burma has decided to cancel elections in several regions populated by ethnic minorities, shunning the ever-popular dictatorial move of rigging elections. Nice. Way to cut out the middle man.

BBC has apologized to Bob Geldof for running a series of reports insinuating that Live Aid money has been used to purchase weapons. This was in March. It is now November. Timely. Especially considering that, according to the BBC, there is “no evidence for these statements.” I think they at least owe him a fruit basket.
Zimbabwe has reached the 5-peat for the lowest ranking on the UNDP Human Development Index despite the life expectancy for the country increasing from 37 to 47 since a few years ago. Kinda calls into question the whole point of this list…

Real World: United Nations


Adam pitches a sister show to Dictator House.
Excerpts from The Real World: United Nations:

Iraq’s room

Iraq: America, get out already!

America: I was just helping you hang some curtains.

Iraq: They’re up. They’re a little crooked, but they’re up. And hopefully better than those old Venetian blinds you tore down. But whatever, you need to get out. Also, can I borrow 100 bucks?

America: I thought you were getting a job at the gas station.

Iraq: That’s not working out as well as we hoped. Give me some money.

House meeting

Turkey: I just want to say again, I didn’t drink the Armenian coffee, and that it was a long time ago, but that most importantly I deny drinking it.

America: Hey Turkey, relax, no need to bring it up. No one is saying you killed the pot of Armenian coffee.

France: Actually, I think he did.

Russia: Me too.

Italy: He totally finished it off.

America: Look, the important thing is we move past whatever Turkey did or did not do so we can play his Xbox 360.

Germany: This is bull! I’m not always included in house meetings because of that time I ate all the bagels, but you’re willing to let Turkey off the hook?

Read the whole thing here.