Pooja Bhatia, Economist.com
November 10, 2011
THERE are few chinks in the legal armour of Minustah, the UN peacekeeping force in Haiti. Its Status of Forces Agreement grants troops immunity from civil and criminal courts. Although the deal provides for an outside commission to hear Haitians’ complaints and demands for redress, such a body has never been set up. The internal claims office at its base in Port-au-Prince dwells in obscurity. For the most part, Minustah is subject only to the regulation of its own good intentions.
This week marked the first serious challenge to Minustah’s immunity. On November 8th the Institute for Justice and Democracy in Haiti (IJDH), a Boston-based advocacy group, submitted 5,000 claims to the organisation for damages totalling at least $250m on behalf of Haitian cholera victims, on the grounds that Minustah imported the disease into the country. The UN’s response to the petition could affect peacekeeping missions around the world, which generally enjoy immunity from legal action.
Since arriving in Haiti in October 2010, cholera has sickened nearly 500,000 people and killed more than 6,600, according to local health officials. The death rate has tapered off, but the disease remains a lethal threat because of Haitians’ poor access to clean water, sanitation and health care.
When the disease first appeared on Haitian soil, the UN denied any link. Three months later Ban Ki-moon, the UN’s secretary-general, appointed a panel of experts to investigate. In May the commission officially determined that the outbreak was “not the fault of, or deliberate action of, a group or individual.” The experts “found that it was not possible to determine conclusively how cholera was introduced,” said Kieran Dwyer, a spokesperson for the UN’s peacekeeping operations. “On the scientific evidence, we don’t know if it was the UN troops or not.”
A close read of the panel’s report, however, suggests otherwise. The experts pinpointed the origin of the outbreak to the Meille River, a tributary of the region’s main water source, near a peacekeeping base where sanitation conditions “were not sufficient to prevent faecal contamination” of the river. They noted that the battalion was deployed from Nepal shortly after endemic cholera had flared up in the Kathmandu Valley, and that asymptomatic soldiers, who can still carry cholera, were not tested. They cited epidemiological studies showing genetic similarities between Haiti’s strain of cholera and the South Asian strain endemic in Nepal. And they dismissed every other alternate theory on the origins of cholera in Haiti. Despite the report’s cautious conclusions, the evidence it contains is so persuasive that the IJDH’s lawyers relied on it almost exclusively to make their case. “Though [the authors] don’t go as far as saying Minustah is responsible, it’s really difficult logically to see what other options are available,” says Beatrice Lindstrom, a lawyer for an IJDH affiliate.
Using these findings to win compensation for cholera victims, however, will not be easy. “Our biggest concern is that there isn’t anybody that is publicly authorised to take such complaints,” Ms Lindstrom adds. The IJDH’s lawyers used a standard claims form downloaded from the internet. After calling the UN’s headquarters in New York and the Minustah base in Port-au-Prince dozens of times, they were told that Minustah’s Claims Unit would receive their petition and the sheaf of claims forms accompanying it. But that office has mainly dealt with smaller complaints, such as property damage, rather than a budget-busting request to pay damages for starting an epidemic. Mr Dwyer said the UN would have to examine the claim before commenting on it.
The petition puts the UN in a quandary. If it ignores or rejects the claim, it will appear to be whitewashing its responsibility. “This is an opportunity for the UN to demonstrate that it’s not above its own laws,” said Brian Concannon Jr, the IJDH’s director. “Providing justice to Haiti’s cholera’s victims will establish the mission’s credibility and enhance its ability to convince Haitian actors that they need to obey the law.”
On the other hand, peacekeepers have immunity for good reason. The justice systems in many countries where they operate, including Haiti, are dysfunctional and politicised. Many UN member states might pull back their troops if they could be hauled before dubious courts too easily. But as Minustah’s own Status of Forces Agreement suggests, legal immunity shouldn’t imply a vacuum of accountability.
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