US Supreme Court Rejects Cert Petition--Brzak v Lubbers et al [UNHCR]

Greetings All--the US Supreme Court today without comment rejected the certiorari petition of UNHCR Staff Members Cynthia Brzak and Nasr Ishak.

The order can be found at: http://www.supremecourt.gov/orders/courtorders/100410zor.pdf ; page 74.

Despite this disappointment, Nasr, Cynthisa and I take some solace in the fact that the 2nd circuit decision from last March which they appealed against has recently been relied upon by the 2nd Circuit itself to allow a civil action for damages to proceed against a former Kuwaiti diplomat to the UN in NYC who with his wife had brutalized and raped their Indian housekeeper, and who had tried to avoid suit on the basis of their diplomatic immunity--small consolation, but progress nonetheless. That case can be found at: http://www.leagle.com/unsecure/page.htm?shortname=infco20100924081 . Had Lubbers' assault of Cynthia happened in NYC instead of Geneva, the outcome might have been a different story.

There was also a recent decision in the Third Circuit Federal Court of Appeals (http://caselaw.findlaw.com/us-3rd-circuit/1535113.html ) which used our argument put to the 2^nd circuit (but not reached by the 2^nd circuit in Cynthia and Nasr’s case) that the level of immunity to be ascribed to international organisations under the IOIA is the same as that provided by the Foreign Sovereign Immunities Acts, and that the applicable immunity is that that existed under US law at the time the cause of action arose (until now, US courts have maintained that the IOIA immunity was equivalent to that which existed at the time of the adoption of the IOIA in 1945—i.e., absolute immunity, without exception), and also found: “the IOIA confers the same immunity on international organizations as foreign governments receive under U.S. law, which is the restrictive immunity now codified in the FSIA.” Again, a bit of progress towards ending the impunity of UN immunity.

In any event, we thank you for all your interest and support. This case may be over, but the work to hold the UN accountable before the law continues. We will continue to update you on our efforts.

Best,

Ed

----- Original Message -----

From: Edward Patrick Flaherty

To: Edward Patrick Flaherty

Sent: Wednesday, March 03, 2010 3:37 PM

Subject: 2nd Circuit Decision--Brzak v Lubbers et al

Hi All—just received the decision from the 2^nd circuit (attached)—as you all may have heard by now, we got dinged—the Court focused on the lesser arguments and gave the constitutional arguments short shrift.

Cynthia and Nasr are unbowed. While disappointed with the judgment, it was not unexpected, and they are more determined than ever to fight on and vindicate their fundamental rights--they in fact have no choice as the retaliation and harassment which gave rise to the original complaint, perpetrated against them both by UNHCR and UN officials, continues unabated through the present day, and probably even more severe.

The case will now go back to where it began its judicial odyssey--the US Supreme Court--we are confident and hopeful that the Court will take the case and accept our arguments that the immunity afforded the United Nations, which is not a sovereign state nor its officials real diplomats, violates the constitutional and other rights of Cynthia and Nasr, and must be struck down.

Thanks for your continued interest.

Best,

Ed