The following piece was published 21 October 2013, SBS World News Australia Radio.
By Ildi Amon
Should the United Nations be held legally accountable for the deaths of thousands of people from a cholera epidemic in Haiti?
That's the question at the centre of a claim filed in a United States court.
It alleges the UN caused the cholera outbreak because of a lack of proper sanitation at camps used by peacekeepers it sent into Haiti from Nepal.
Ildi Amon reports.
The cholera outbreak in Haiti at the centre of the legal action has left at least 8000 people dead, and 700-thousand others sick since October 2010.
The United Nations is being sued over the outbreak by a United States-based group calling itself the Institute for Justice and Democracy in Haiti.
The institute's director, Brian Concannon, says the UN must be held accountable because the cholera outbreak began after the world body sent peacekeepers into the Caribbean island from Nepal.
"The UN flew people from Nepal where there was a known cholera epidemic to Haiti that was known to be vulnerable to cholera without doing any testing or treatment for cholera. Once there they were put into a base where sewage was being discharged directly into the top of Haiti's river system. This wasn't a one-time mistake where a single pipe broke this was a system that was routinely discharging sewage into the river for weeks, possibly months, possibly longer. In the context of a mission that has throughout its time had a series of scandals over the disposal of its waste. So this was the UN because of its impunity problem not taking the ordinary care that an individual or business would take just knowing that there would be consequences for polluting the environment. And that's why this case is important not only to make the UN to stand up to its principles about the rule of law but also for the UN to exercise reasonable care to prevent harm to populations that it serves."
Medical studies have found the strain of cholera in Haiti is one that's commonplace in Nepal.
But legal experts say those seeking to make the UN held liable for the outbreak face an uphill battle.
Associate Professor of law at the Australian National University Don Anton says the international Convention on the Privileges and Immunities of the UN provide it with almost absolute immunity from legal action in courts of nations that are member states.
"Well the narrow exception is a waiver. So that if the UN consents to be sued it can be sued. Clearly that's not going to happen in this case, at least in its present posture."
UN spokesman Martin Nesirky says the Institute was told in 2011 that the world body would not accept a claim against it over the Haiti matter.
"The United Nations advised the claimants' representatives that the claims are not receivable pursuant to Section 29 of the Convention on the Privileges and Immunities of the United Nations."
But the Institute for Justice and Democracy in Haiti's Brian Concannon argues the UN does not have immunity from prosecution.
"It's more of a qualified immunity because the UN has a requirement to set up an alternative justice system for people harmed by its operations. And in this case the UN is refusing to set up an alternate system and that opened the door for going into federal court. We first tried to work within the UN system back in November of 2011 we filed internal complaints on behalf of cholera victims but the UN has said that it will refuse to even consider those claims because considering them would entail a review of UN policies."
Don Anton from the ANU says the UN may be forced to respond differently if the Haiti government lodged a claim with the International Court of Justice.
"If Haiti would become involved and raise this matter with the UN and insist that it would be brought before the ICJ and the legal issue that would be brought is not liability per se but whether or not the cholera claim is in the nature of a public or private law claim. If it's a private law claim then it's cognisable under section 29 of the Convention. So that's what they would be arguing about if the ICJ was of the view that it's a private law claim it would go to claims commission of some sort."
The law suit lodged on behalf of victims in a New York court lists the defendants as the United Nations, the UN Stabilisation Mission in Haiti, and at least two of its officers.
It argues the cholera outbreak resulted from their negligent, reckless and wrongful conduct.
Brian Concannon thinks the case against the UN is clear.
"There's never been a case where the liability was so clear and the damage so great and where the UN was so adamant in refusing to give the victims an alternate mechanism. In addition there's a developing body of law in courts throughout the world that are limiting the immunity of international organisations where an alternative remedy is not available."
Earlier this year, the Institute for Justice and Democracy in Haiti said it was seeking $100,000 for the family of each victim who died and $50,000 for each survivor.
This would amount to several billion dollars.
But now the Institute wants a jury to set a compensation figure.
While the UN organisation itself has so far refused to accept the claim, the legal action does has some support within the world body.
The UN High Commissioner for Human Rights Navi Pillay says Haiti's cholera victims should be compensated.
"I have used my voice both inside the United Nations and outside to call for the right for an investigation by the United Nations, by the country concerned, and I still stand by the call that victims of those who suffered as a result of that cholera be provided with compensation."
A day after the lawsuit was filed the UN Security Council voted to reduce the size of its peacekeeping mission in Haiti and acknowledged the UN's efforts to combat cholera.
But there has been no indication that the UN has changed its stance on refusing to accept the compensation claim.