Published By The Haiti Support Group
Blueprint For Action, Precedent For Justice?
As the flames consumed the child-size mock coffin, it all became too much for one woman. Pleading and pointing at the fire, she moved amongst the crowd who had set it alight in protest at the death and destitution cholera has brought to so many in Haiti. Then she started to walk towards the fire, moving her head and hands in a sort of distraught dance, before being restrained by others, afraid she would throw herself into the flames.
“Her child died of cholera. When we burnt the coffin, she relived the moment her child’s body was cremated,” explained one protestor. “MINUSTAH has brought nothing but repression, rape and cholera to Haiti. They call it the United Nations. We call it the United Mafia.”
All over Haiti, from tiny villages to Port-au-Prince, there are individuals like that woman. They remain distraught, destitute and despairing at what the cholera epidemic has done to their families – viciously eliminating the hope and promise of a child, the skill and support of a breadwinner, the love and life of a mother. “The way to make people angry is to lie to them – and the UN certainly has,” says Brian Concannon, the Director of the Institute for Justice and Democracy in Haiti (IJDH).
It is for such victims, the 7,040 dead and the 530,953 sickened so far, that both IJDH in Boston and its sister organization, the Bureau des Avocats Internationaux (BAI) in Port-au-Prince, have each filed a Petition for Relief with the UN. The petition demands compensation for individuals, restitution in the form of substantial water and sanitation infrastructure investment in Haiti and a public apology.
The demand that the UN pay for the infrastructure is a masterstroke, turning the spotlight on what the UN itself claims, in seeking to deflect blame, is the real cause of the epidemic: lack of access to clean water and the most basic sanitation. “There were 5,000 complainants when the suit was filed and we have another 10,000 signed up but the whole nation would benefit from the water investment,” says Mario Joseph, BAI’s lead lawyer.
A layman would call this a crime against humanity. The culpability for what by any standards appears to be a case of criminal negligence of enormous proportions seems established beyond reasonable doubt. However, it remains a suit that will test the most astute of legal strategists, circumscribed as it is by an all-embracing UN legal impunity in both domestic and international courts. That immunity is the main reason the UN has not been forced to pay even minimal compensation to Haitian families or to do the decent thing: provide Haitians with clean water.
Both Article 105 of the United Nations Charter and MINUSTAH’s Status of Forces Agreement (SOFA) under which it operates in Haiti, afford UN personnel broad immunity in domestic courts. Both are reinforced by Article II, section 2 of the Convention on the Privileges and Immunities of the United Nations, whose title speaks for itself, but in legal terms requires the UN to expressly waive the immunity of the organisation or its employees before a court can establish any right to hear a case.
Domestic and international courts have repeatedly upheld the UN’s immunity, on the supremely ironic grounds that the UN must be protected from legal proceedings that prevent it from executing its “protection duties.” In other words, for the UN and its employees to be protected, Haitians must die and be damaged without legal redress.
The IJDH/BAI lawsuit seeks to force the UN to take the first step when faced with a legal claim and establish the three-person Standing Claims Commission (SCC) called for under the terms of SOFA. Yet even this is an uphill task. Since November 3, 2011, when the petition was filed, there has been no response from the UN beyond acknowledgement of receipt of the claim. Indeed, in the eight years the UN has operated in Haiti and in the decades that similar agreements have applied elsewhere, no SCC has ever been set up.
Even if the SCC was established, some believe the UN would effectively be judge, jury and jurisdiction while being asked to adjudicate a claim which could cost it billions of dollars, not to mention further ridiculing its own image as the primary standard bearer for human rights and the advancement of “the rule of law.”
Others are more optimistic. Just establishing the three-person SCC, with appointees mutually agreed on by the Haitian government and the UN, would set a precedent, should change everything and could create a system where the UN “can be held accountable,” according to Dianne Post, an international human rights lawyer who tried to sue the UN Mission in Kosovo in 2005.
If the UN fails to respond or establish the SCC, one option is to try going to the Haitian courts. One coalition of Haitian civil society groups, the Collective to Mobilize for Reparations for Cholera Victims, has already done just that through lawyer Patrice Florvilus. The Haitian judicial system “has a duty to press the UN on this issue,” he asserts. “If the Haitian state does not want to co-operate, we will say it is complicit with MINUSTAH and sue the Haitian government.”
Mario Joseph of BAI agrees on the principle, if not the legal strategy. “The Haitian state invited these organisations,” he states. If a Haitian court did agree to hear the case, the Civil Code includes specific provisions on injury caused by the neglectful transmission of a contagious disease. But whether in a US or Haitian court, just trying to get the case heard should help publicize the scandalous facts. It would deny the UN its most potent weapon to date – the secrecy and obfuscation of the “no comment,” “no definitive proof,” defence (see main story).
To date, both cholera lawsuits by IJDH and BAI, have been model templates for linking internal and external forces in pursuit of justice in Haiti. Popular pressure on the streets, publicity in the press, scientific papers on the web, the facts exposed in the Petitions themselves, have all played a crucial role in getting the campaign for justice this far.
How much further it goes may depend crucially on much more of the same– publicity and pressure. And that means it depends on us. So on behalf of that distraught mother in the street, and the many thousands of others she represents, take action now and demand justice (read more, learn more, do more, go to: www.ijdh.org/projects/cholera-litigation).