Maria-Elena kolovos and beatrice Lindstrom, JURIST
February 23, 2012
JURIST Guest Columnists Maria-Elena Kolovos and Beatrice Lindstrom of the Bureau des Avocats Internationaux say that for the Haitian cholera victims to be properly compensated for their injuries, the UN must respect its own rules and take accountability for its malfeasance instead of attributing the epidemic to “a confluence of circumstances” beyond its control…
The cholera epidemic in Haiti has exposed an irony in the UN’s laudable commitment to promote universal respect for human rights and justice: victims of the UN’s own wrongdoing are out of luck. The UN’s broad immunity from legal process denies victims their day in court, and in most cases, justice entirely. In November 2011, over 5,000 Haitians filed claims against the UN and the UN Stabilization Mission in Haiti (MINUSTAH), the UN peacekeeping force in Haiti, seeking damages for MINUSTAH’s introduction of cholera into Haiti in October 2010. Before 2010, Haiti had not reported a case of cholera in at least 100 years.
The evidence that UN malfeasance caused the outbreak is overwhelming and well documented. Five independent scientific studies, including studies by the US Centers for Disease Control and Prevention, Dr. Renaud Piarroux (one of the world’s leading cholera epidemiologists) and a panel of experts appointed by the UN, all point to MINUSTAH as the source of cholera. Cholera surfaced in Haiti with the arrival of a new battalion of peacekeepers from Nepal, a cholera endemic area. DNA testing shows that the bacteria is a perfect match to a strain active in South Asia. UN protocol failed to test the peacekeepers for cholera, although the UN knew that Nepal was experiencing a surge in infection at the time.
The UN’s own investigation revealed malfeasance at the peacekeepers’ base in Mirebalais: the base’s sewage piping was “haphazard” and “inadequate,” and the base dumped its wastes into an unfenced pit. These conditions created a significant and foreseeable risk of human waste contaminating a tributary that runs just meters from the base into the Artibonite River, Haiti’s central waterway.
The cost of this malfeasance is staggering: cholera has sickened over 500,000 Haitians and killed over 7,000. Haiti now suffers the worst cholera epidemic in the world, and without urgent measures, will likely endure the disease for years to come.
While the facts in the case are clear, the path to legal recourse for victims of cholera is anything but. After four months of reviewing the victims’ complaint, the UN has yet to provide a response. Although the UN essentially acknowledges that its wrongdoing likely introduced the disease, it publicly contends it is not liable because “a confluence of circumstances” — Haiti’s weak water, sanitation and health infrastructure — caused the epidemic.
Under normal circumstances, this defense would be laughed out of court. Haiti’s vulnerability to the rapid and deadly spread of infectious disease does not excuse the UN; to the contrary, it creates a heightened duty for the UN to use care and avoid clearly foreseeable risks. However, the UN need not worry that its defense is so weak because to date, the UN has not had to answer to a court for the malfeasance of its peacekeepers.
The UN shields itself from legal accountability through the Status of Forces Agreements (SOFA) it signs with the countries hosting its soldiers. The SOFA between MINUSTAH and the Haitian government, first signed in 2004, confers conditional, but broad immunity on MINUSTAH and the UN, limiting civil or criminal pursuit in a judicial court. While there are good reasons for protecting the UN from potential harassment in host country courts, immunity cannot equal impunity.
International human rights law guarantees a victim’s right to an effective remedy, which includes fair and transparent adjudication of claims by an impartial body. When immunity denies victims all access to remedy, it violates this right. To balance immunity with the right to a remedy, the SOFA calls for the establishment of a standing claims commission to hear complaints and compensate third party victims of UN wrongdoing. Despite this, no commission has been established during the seven years MINUSTAH has operated in Haiti. In fact, the world has seen no such commission in over 60 years of UN peacekeeping, even though these commissions are a standard feature of most SOFAs.
The victims in the cholera case, seeking to exercise their right to a remedy, request that the UN establish a standing claims commission. The UN’s failure to comply threatens to deprive Haitians of the legal protections that the Haitian Constitution, Haitian law, international law and UN treaty obligations guarantee.
The irony of this situation is acute. The UN has long championed accountability and rule of law, and in theory will accept liability for damages the organization causes. By barring all mechanisms for victims to seek damages and accountability, however, the UN’s broad immunity undermines the organization’s own goals and principles.
The cholera case presents an important challenge to the UN. The Haitian victims ask the UN to put principle into practice and respect its own rules. The SOFA clearly states that MINUSTAH must respect Haitian law, cooperate in health matters in accordance with international conventions and provide a mechanism to determine its liability and settle third-party personal injury claims. The UN’s choice is simple: It can rise to this challenge and demonstrate that rule of law protects the rights of poor Haitians against one of the world’s most powerful institutions, or it can shrink from the challenge and demonstrate that, once again in Haiti, “might makes right.”
Maria-Elena Kolovos is a Legal Fellow with the Bureau des Avocats Internationaux (BAI), a Haitian human rights organization that is representing the Haitian victims of cholera in the case filed against the UN. Her expertise lies primarily in the enforcement of social and economic rights, specifically the right to health. Prior to joining BAI, Maria-Elena worked at the Walter Leitner International Human Rights Clinic, the Global Justice Center and LegalHealth. She earned her law degree at the Fordham University School of Law.
Beatrice Lindstrom is a BAI Legal Volunteer. Prior to joining BAI, she worked on various human rights issues, focusing on economic and social rights and the human rights obligations of the private sector. Her experiences include litigating human rights in US courts and working on access to justice issues for the UN Special Representative on Business and Human Rights. She earned her law degree from the New York University School of Law, where she was a Root Tilden Kern public interest scholar.
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