By Bailey Kennedy
If a government commits a tort, it can be sued — but the United Nations cannot be. That’s because it is generally understood that the UN has absolute immunity, meaning that no national court has jurisdiction over the UN. This immunity is justified on the basis that the UN cannot effectively fulfill its role in the world if it is constantly at risk of being hauled into court around the globe. Moreover, at the time the UN was founded, it was understood to be an organization that would promote peace, security, and health across the globe — and why would such an organization need to be sued?
There may be some truth to the claims that the United Nations would be hampered if it could be sued in any court in which it operates. With 37,000 employees operating in every sovereign country in the world, the UN is unsurpassed in complexity. If the UN lost its immunity privileges, could it find itself defending lawsuits in every country in the world? Perhaps.
Still, recent cases illustrate the dangers associated with absolute immunity for the United Nations. In at least two major incidents in the last two decades, the United Nations has been responsible for major public health crises, and victims of the crises have found themselves with no recourse in any court system. While its founders may never have dreamed that the UN would one day be responsible for damaging public health in any of the countries in which it operates, that’s the world we find ourselves living in — and an organization that causes injuries and deaths must give its victims at least some recourse for justice. If no such remedy is available, the UN cannot operate effectively around the globe.
One case in which the UN caused public health harms is relatively well-known. In 2010, Peacekeepers sent by the United Nations to Haiti caused a cholera outbreak which led to over 10,000 deaths. In causing the outbreak, the UN behaved recklessly, and failed to take basic sanitary precautions that could have prevented it. Unfortunately, the lack of care taken in Haiti was not isolated — evidence suggests that the UN has failed to take basic sanitary precautions in other missions. Despite this pattern, the UN has rejected legal responsibility for the outbreak in Haiti, and fallen back on claims of absolute immunity. While the outbreak was by no means intentional, it seems at least plausible that the United Nations felt comfortable in acting as it did at least in part because of its knowledge that it had absolute immunity. Studies later found that the outbreak could have been avoided by low-cost measures such as screening Peacekeepers for cholera before deployment. If the UN had a functioning tort claims system, it would be incentivized to take low-cost preventative measures like this, in the knowledge that later harm could be prevented.
The less well-known case of lead-poisoning in Kosovo reiterates the fact that the lack of accountability under which the UN operates encourages the organization to take risky steps that it might otherwise avoid. The lead poisoning saga began in 1999, when, in the wake of the Kosovo war, the United Nations housed about 600 Roma in a refugee camp on a site known to be contaminated with lead. Although Peacekeepers began to take measures to protect themselves from lead-poisoning in 2000, the contaminated camp was not closed until 2013. In the meantime, much damage was done. Children who grew up in the camps suffered from acute effects of lead intoxication — and even died. Recognizing that the UN’s conduct in Kosovo was far from spotless, the UN created a Human Rights Advisory Panel (HRAP) specifically to investigate allegations of human rights abuses committed by the UN. But although HRAP recognized the UN’s culpability, and urged it to compensate victims, the UN continues to refuse to accept its own legal responsibility in the case.
These two cases illustrate the danger of having an organization like the UN operate under a system of absolute immunity. In theory, the UN can be held accountable to people that it harms via a third-party claims system — but in practice, it is almost impossible for the UN to be held accountable for large scale torts. It is certainly true that the UN occupies a unique role in the world, and must have the room to manage its duties effectively; it is also true that an organization operating without accountability can cause significant damage to public health and public trust. Amid the COVID-19 pandemic, it is more apparent than ever that we need functioning global organizations. The creation of an effective, and enforceable, mechanism for UN torts would help ensure the organization’s credibility and longevity. So it’s time for the UN to step up to the plate and create a mechanism that will allow for the resolution of any claims that might arise.
In an ever more interconnected globe, the UN is a deeply significant player in the public health realm — yet some people in Haiti and Kosovo have only experienced the UN as a force that damages public health. It’s time for that to change.