Brian Concannon, The World Justice Project
August 15, 2012
The cholera epidemic introduced to Haiti by United Nations troops provides an important test to the United Nations’ commitment to the rule of law, and a potentially precedent-setting challenge to immunity agreements for international organizations.
Cholera was introduced into Haiti by peacekeepers from the UN Stabilization Mission for Haiti (MINUSTAH), who were deployed from a cholera-epidemic zone in their home country without being tested or treated for cholera, and stationed at a base that leaked human waste into Haiti’s largest river system in at least two places. The epidemic started just downstream of the base, and spread quickly throughout the country. Haiti’s cholera epidemic — now the world’s worst cholera epidemic — has killed more than 7,300 people and sickened more than 500,000 since it began in October 2010.
MINUSTAH, like other UN Peacekeeping missions, enjoys protection from national court jurisdiction through its Status of Forces Agreement, or SOFA, with Haiti. Peacekeeping mission immunity serves an important purpose of protecting missions from harassment in potentially corrupt or biased national courts that could impede the mission’s ability to carry out its operations. But the rule of law and UN credibility require that this immunity not becomeimpunity– that those claiming injury from UN peacekeeper malfeasance have an opportunity to pursue claims against the organization. MINUSTAH’s SOFA, like most SOFAs, recognizes the need for an alternate claims procedure, and provides for a Standing Claims Commission to resolve disputes. This of course is consistent with the UN Charter’s mandate that the organization “promote the advancement of human rights.”
In practice, however, the UN has never established a Standing Claims Commission, not in Haiti nor in any of its missions in over 60 years of peacekeeping. This contributes to what the New York Times called the organization’s “culture of impunity.” The UN has made some efforts to reconcile peacekeeper impunity with international law obligations, including the International Law Commission’s Draft Articles on the Responsibility of International Organizations, submitted to the General Assembly in 2011. But it has still never provided justice to victims of large-scale peacekeeping mission malfeasance.
Last November 5,000 Haitian cholera victims filed a set of claims that provides the starkest test of UN commitment to the rule of law in peacekeeping operations. The victims are asking the UN to provide the clean water and sanitation infrastructure necessary to control the epidemic, compensation for their losses and an apology. The liability is so clear — ABC News called it a “mountain of evidence”, UN Special Envoy for Haiti Bill Clinton acknowledged that UN troops were “ the proximate cause ” of the epidemic – and the damages so great, that the UN’s failure to even provide the victims their day in court is an unequivocal position in favor of impunity.
The cholera victims file their claims with the UN itself, demanding that the organization provide a fair, neutral mechanism for resolving their claims. If the UN fails to do so, the victims have vowed to take their case to a national court. There are jurisdictional hurdles for the victims in any national court—as the Dutch Supreme Court informed the Mothers of Srebrenica in April– but the UN’s failure to provide a remedy where so many have been hurt by such obvious recklessness may be the springboard the victims need to surmount those hurdles.