Lawyers For Haiti Cholera Victims Tell UN: “Immunity Cannot Mean Impunity”

Published By  Kim Ives, Haiti Liberté

Public forum in New York hears from doctor, lawyers on front lines of battling cholera

Last November, the International Lawyers Bureau (BAI), based in Port-au-Prince, and the Institute for Justice and Democracy (IJDH), based in Boston, filed a complaint at the United Nations’ headquarters in New York demanding reparations from the world body for starting Haiti’s cholera epidemic, today the worst in the world (see Haïti Liberté, Vol. 5, No. 17, 11/9/2011).

The water-borne disease has sickened about 523,000 Haitians and killed over 7,000. Those numbers will be spiking in the coming weeks now that the rainy season has arrived.

The suit requests UN financial compensation for 5,000 Haitians who are cholera survivors or close family members of someone killed by the disease. The petitioners also call on the UN to take constructive action to prevent cholera’s spread and to formally accept responsibility for importing cholera into Haiti.

Until now, the UN has not officially replied to the complaint, saying it is still “being studied,” and continues to deny responsibility. Just last week, the UN Secretary General’s spokesman said that “it was not possible to be conclusive about how cholera was introduced into Haiti.”

But Dr. Evan Lyon disagrees. “There is no doubt” that UN Nepalese troops brought cholera into Haiti when they returned there in October 2010 from Nepal, where the disease is endemic, he said. “From a micro-biologic and genetic point of view, epidemiologically,… the strains in Haiti and Nepal are identical. It’s like matching, in criminal forensics, a blood sample or some other piece of tissue; you can tell where it comes from.”

Dr. Lyon, who fought, as part of Partners in Health, on the front-lines against the disease when it exploded in Haiti’s Artibonite River basin, was speaking to a room-full of UN diplomats and journalists at 777 UN Plaza in Manhattan on April 9 in a conference organized by the Global Policy Forum, an independent policy watchdog that monitors the UN’s work. Speaking with him at the event were the BAI’s lead lawyer Mario Joseph and Brian Concannon, Jr., the head of the IJDH.

They were also joined by Abby Goldberg of the New Media Advocacy Project (NMAP), who presented a beautifully crafted six-minute video entitled ‘Fight the Outbreak: Cholera in Haiti & the United Nations’ http://vimeo.com/39599088 .

The presentations were followed by a question and answer period where the audience repeatedly asked who in the UN was refusing to accept responsibility for the outbreak and why. We present here the abridged remarks of Dr. Lyon, who now teaches medicine at the University of Chicago, and Mr. Joseph.

Dr. Evan Lyon

Cholera is really a 19th century problem. It’s not a modern medical problem. It’s a solvable problem. Medicine has a very small role to play actually in the control of the cholera epidemic. It’s more an infrastructure, water and sanitation problem than a medical problem.

Cholera was understood to be a water-borne illness before germs were understand to cause illness. Before germ theory, in 1854, a man named John Snow made a map of a cluster of cholera outbreaks along Broad Street in London. He found a pump where most of these cases were clustered. He took the handle off the pump, and that’s assumed to be one of the first effective public health interventions around infectious disease.

Now unfortunately we’re faced in Haiti with an epidemic which is rampant, it’s not going anywhere, and it has now infected close to 5% of the population. There are an estimated 500,000 cases in a country of 9 million people. If that were the United States, that would be 12.5 million people sick. That’s the city of New York.

Everyone in Haiti has been touched by the disease. It’s very fast and very frightening. And again it’s not going anywhere.

To prevent the illness with proper water and sanitation is really the only option. Medicine can save lives, but to stop the epidemic, there needs to be better infrastructure and better capacity to provide safe clean water to people, and, of course, sanitation.

There is no municipal sewage system in the entire nation. Only half of people have access to any improved water source in rural places. That’s probably 25% of all people. So most people are living, predictably, without any access to clean water…

In 2007, along with a team from NYU here in the city, some colleagues in Haiti, and other partners in Washington, DC, we did a study [on water]… in Port-de-Paix, a city of about 100,000 people in the north of Haiti. We spent several months studying the problem, including a household survey and water sample testing.

Haiti’s water supply has always had an underlying vulnerability, and the world community understands this. In Port-de-Paix, in the summer of 2007, people were living on nine liters of water a day. International standards say, for survival, one should have access to 20 liters a day. For health, it’s better to have 50 liters a day. Long term, these are households which are living on nine liters a day or half of what’s estimated for basic survival in refugee settings and displacement settings.

Fourteen of the 19 samples we tested were contaminated with infectious material. People were spending 12% of household income for water. Accessibility both physically and financially were very low. There were vulnerabilities for women and others collecting water. It was a really dramatic situation which has yet to be remedied.

A cholera strain, that is frequent in Southeast Asia, had a documented outbreak in Nepal some months before October 2010. Peacekeeping troops carrying that germ came to Haiti. There was a basic breakdown in sanitation, and the germ was introduced into the water system.

There is no doubt, from a micro-biologic and genetic point of view, epidemiologically, that the strains in Haiti and Nepal are identical. It’s like matching, in criminal forensics, a blood sample or some other piece of tissue; you can tell where it comes from. And the germ that is now epidemic in Haiti, that is causing the largest outbreak in the world, is identical to the strain that is from Nepal, and we also know that the soldiers moved from Nepal to Haiti. So that is, without any doubt, the proximate cause of this outbreak.

With Haiti’s poor water and sanitation systems, it blew up very quickly… None of my colleagues or myself , none of us had ever treated cholera until this outbreak. Very quickly it spread down the river valley. I work with a group in St. Marc. We went from no documented cases on Oct. 18, [2010,] to 18 documented cases of diarrheal disease the next day, to 400 cases on the Oct. 20.

Mortality was around 9% in that first wave of the epidemic. We didn’t have the means or the knowledge to deal with it on a medical or community level. There have been major improvements, and now mortality is closer to 1%. But that still is drastic considering the size of the epidemic.

If someone reaches medical care in time, there’s very low mortality. Interventions are quite simple: hydration with oral fluids, salt water, and sugar. If that fails or isn’t possible, intravenous hydration is needed, which is a little harder logistically, but not rocket science. It’s very doable. Antibiotics may play a role, but even that’s unclear.

There is a vaccine available. There is currently not enough vaccine in the world to treat this epidemic. Should the world decide to invest in it at the level needed, there are some vaccine trials that may start soon. They have been hampered by a variety of logistical concerns.

The world was really not ready for this epidemic. Certainly, Haiti was not ready for it.

The epidemic will be around for at least a decade. Best estimates are that, even with improvements to water and sanitation, even with an adequate response for treatment, and what’s available for prevention, the epidemic will last for some time.

One of the reasons for that is because there is no immunity. Haiti has not seen cholera in many generations. Haiti was largely spared from the global pandemics that were lead killers in the 19th century. But now, with this large, fast moving epidemic, in a context where there is no immunity, people have not been exposed to the germ, so noone is protected. The vaccine would help jumpstart that process and allow people some limited protection based on exposure.

If there were investment in water and sanitation, it would change generations of lives in Haiti. Although there aren’t great statistics in Haiti, there are 15 to 20 thousand deaths from diarrheal illness in Haiti each year, most of that among children. It’s estimated that 16% of under 5 mortality is from water-borne disease.

If we could, as a world community, invest in water and sanitation, we could change the primary dynamic of this epidemic. There would be side-benefits for generations, literally. We would save, potentially, tens of thousands of lives per year if there were meaningful water improvements…

Medical people are not the answer to this problem. Public health, sanitation and infrastructure are the answer.

Lawyer Mario Joseph

We filed a complaint with the UN on behalf of 5,000 victims of cholera in November, 2012. The cholera victims ask the UN to provide three things. First, the clean water and sanitation infrastructure necessary to control the epidemic. Second, compensation for the victims, many of whom lost everything they had, or were forced from poverty into starvation by the loss of the family wage earner. Third, the victims want an apology to the people of Haiti for the reckless introduction of cholera into our country.

We filed the complaint with the MINUSTAH claims commission in Haiti and the UN General Secretariat in New York. We received a response acknowledging UN receipt of the complaint in December, but have not heard anything else from the UN.

The UN and Haiti signed an agreement called the Status of Forces Agreement, or SOFA, that regulates the rights and responsibilities of UN peacekeepers in Haiti. The Haiti SOFAs, like SOFAs for all UN missions, has a provision giving the UN protection against the jurisdiction of Haitian courts. But the SOFA also requires the UN to set up an alternative mechanism, called the Standing Claims Commission, to settle claims against it. MINUSTAH has not set up a standing claims commission in Haiti, or, to our knowledge, anywhere else in the world in over 60 years of peacekeeping.

There is a developing legal doctrine that “immunity cannot mean impunity.” If an international organization with an immunity agreement does not provide a fair mechanism for responding to claims against it, courts will decline to enforce the immunity provision. Right now we are asking the UN to provide our clients with their day in court. If the UN does not do so, we will ask a national court to do so. Currently we are researching avenues for justice in Haitian, U.S. and European courts.

Haiti’s cholera epidemic is a perfect illustration of the dangers of impunity. Only an organization with no fear of consequences would have acted so recklessly with a disease as dangerous as cholera. As you have heard from Evan and seen on the NMAP video, the introduction of cholera into my country was not an accident, but the result of a series of decisions made with no regard for the safety of people in Haiti. The UN made a decision not to test peacekeepers coming from a cholera zone, even though it had, itself, warned of Haiti’s vulnerability to cholera. The UN then made a decision not to safely dispose of the wastes at the Mirebalais base. It is important to note that the waste disposal problem in Mirebalais was not an isolated incident, but part of a pattern of poor waste disposal at MINUSTAH bases throughout Haiti.

The UN’s defense in this case, that “a confluence of factors” caused the bacteria the UN introduced to turn into an epidemic, would only be used as a defense for an institution with no fear of being brought to court. The UN was fully aware of these factors before it decided to not test its peacekeepers or safely dispose of their wastes. As a result, that excuse would be rejected in both the Continental law system and the English law system. Under both, knowledge of a dangerous condition is a reason for being more careful, not an excuse for being reckless.

The UN’s impunity problem in Haiti started before cholera. In its seven years, the mission and its personnel have been involved in many serious incidents of malfeasance, including widespread sexual assault, individual murders and large-scale killings. Each time MINUSTAH resists attempts to hold it accountable, and so the cycle is repeated.

Right now we are expecting that the UN will take responsibility and provide the cholera victims a fair hearing. There are several encouraging signs since we filed the lawsuit. In January several UN agencies joined a “call to action” that conceded that the only way to effectively control the epidemic was comprehensive water and sanitation. Last month UN Special Envoy to Haiti Bill Clinton conceded that UN troops were the “proximate cause” of the cholera epidemic. That is a little like someone saying that the sky is blue, except in the context of repeated UN denial, it was an important step forward. Also last month, the Representatives of Pakistan and France displayed the leadership needed for a just response to the cholera epidemic, by urging the UN to take responsibility for cholera.

This progress has not led, as far as we know, to any concrete plans for stopping the cholera’s killing in Haiti, or a financing plan for the necessary infrastructure. So it is necessary for more organization to play a leadership role and stand up for the people of Haiti.

When the cholera outbreak started in Haiti, we did not think of filing a lawsuit, because we assumed that with such clear liability and such great harm, that the UN would respond in a responsible manner. But when the UN experts report came out in May 2011, we knew we had to act. The report conceded the facts showing the UN responsible, but somehow came to a conclusion that it had no responsibility for its action. We knew then that the UN’s impunity addiction would keep it from treating cholera victims fairly, so we acted.

One place that the UN can start looking for money to save lives in Haiti is the budget of MINUSTAH, currently at over $800 million per year or $2.4 million every day. MINUSTAH has had one in ten UN peacekeepers, for seven years, in a country that has not had a recognized war in my lifetime, and does not pose a threat to other countries. Shortening MINUSTAH’s presence by just one year would, by some estimates, pay for the entire water and sanitation infrastructure Haiti needs to control cholera. That would save over 70,000 lives over a decade.

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