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Protecting Whistleblowers since 1977

UN’s Immunity Upheld in Brzak Case

, March 05, 2010

In a disappointing decision, the 2nd U.S. Circuit Court of Appeals ruled on March 2 that the United Nations is immune from a lawsuit filed by a UN employee who claimed that the former U.N. High Commissioner for Refugees Ruud Lubbers sexually harassed and retaliated against her.

Numerous Intergovernmental Organization (IGO) whistleblowers and employees have previously attempted to hold IGOs such as the United Nations accountable through filing lawsuits in national courts. In most cases, these lawsuits have been dismissed due to the immunity privileges of IGOs.

Many whistleblowers have maintained that, when an IGO lacks a functional justice system (as was previously the case at the UN), its employees should have access to national tribunals to defend their rights. In this case (CYNTHIA BRZAK, NASR ISHAK, v. UNITED NATIONS, KOFI ANNAN, RUND LUBBERS, WENDY CHAMBERLIN), the judge ruled against this argument, stating that “Although the plaintiffs argue that purported inadequacies with the United Nations’ internal dispute resolution mechanism indicate a waiver of immunity, crediting this argument would read the word ‘expressly’ out of the CPIUN [the Convention on Privileges and Immunities of the United Nations]. The United Nations has not waived its immunity.” The court also rejected Brzak’s arguments that granting immunity would violate her First Amendment and due process rights.

 

In an interesting twist, the court ruled that Mr. Lubbers was also immune, as, according to the CPIUM, “The Secretary-General and all Assistant Secretaries-General shall be accorded the privileges and immunities . . . accorded to diplomatic envoys, in accordance with international law.” However, former diplomatic envoys, such as Lubbers, retain immunity only “with respect to acts performed by such a person in the exercise of his functions” as a diplomatic envoy. The court ruled that Lubbers was immune for six of Brzak’s seven claims, which included that he retaliated and discriminated against her. In the only bright spot, the court ruled that Brzak was free to refile her “battery” claim in state courts.

In other words, the UN Secretary General and Assistant Secretaries-General are free to retaliate against their employees and undermine their due process rights at will, without fear of repercussions in national courts, even if the organization lacks a functional justice system. Lovely. Though, if they go so far as to actually beat their employees, there is a slight chance that they may, one day far in the future, be held accountable for their actions by a U.S. state court.

According to news reports, in 2004 the UN’s internal investigations body found that Lubbers did engage in unwanted physical contact with Brzak, had a “pattern of sexual harassment” and had tried to intimidate the investigators. The report suggested that Lubbers be disciplined for misconduct and abuse of authority. Then Secretary-General Kofi Annan failed to fire Lubbers (who has since resigned). 

In contrast to this decision, the immunities of another IGO, the Inter-American Investment Corporation (IIC ) were recently pierced in the US District Court of Appeals by an independent banking consultant.