UN Irresponsibility Forces Cholera Victims Into Litigation

This piece explains why cholera victims have had to resort to litigation to force the UN to take responsibility for the epidemic in Haiti. Even though there is now no doubt UN peacekeepers brought cholera to Haiti, the UN continues to deny responsibility and hasn’t raised sufficient funds for their cholera eradication plan. The longer the UN takes to accept responsibility and take action, the less they are upholding their core values of protecting human rights, causing the public to lose respect for the organization.

In Their Court: Litigation Against the United Nations as a Last Resort for Haitian Cholera Victims

Adam Houston, Health and Human Rights Journal
June 18, 2014

In 2014, the United Nations Stabilization Mission in Haiti (MINUSTAH) — the latest and longest-lived of a series of UN peacekeeping missions to the country since 1993 — will mark its tenth anniversary. Unfortunately, MINUSTAH’s most lasting legacy in Haiti may prove to be the ongoing threat of cholera. Previously unknown in Haiti for at least a century, the disease was introduced to the country by MINUSTAH troops in October 2010; by early 2014, more than 700,000 Haitians had fallen sick and over 8,500 were dead.1 It is the largest cholera epidemic ever recorded in a single country in modern times.2 Today, the UN estimates it could kill another 2,000 people in 2014 alone; as this unwelcome import becomes firmly entrenched, it exacerbates the serious barriers to health already faced by the citizens of the poorest nation in the western hemisphere.3Despite their clear causal role in the epidemic, MINUSTAH and the UN have failed to assume responsibility, either by explicit acknowledgment or by taking adequate action to eliminate the disease and provide redress to its victims. Through their inaction on both counts, they have compounded their failure to protect the health and lives of the people of Haiti with failing to uphold their broader mandate of promoting human rights and the rule of law. The result has been the absurd situation where victims struggling to cope with cholera and its aftermath have been forced to take legal action to enforce their basic human rights against precisely the entity that came to their country for the purpose of protecting and promoting those rights.

The origins of the epidemic can no longer be considered a matter of real debate. Overwhelming scientific evidence demonstrates conclusively that the strain of cholera responsible for the epidemic arrived in Haiti with a Nepalese contingent of UN peacekeepers. Despite a concurrent cholera outbreak in Nepal, troops were deployed without taking proper steps to mitigate the risk they would take the disease with them. Once in Haiti, reckless sewage disposal practices allowed contaminated human waste to enter the Artibonite River, the primary water source for tens of thousands of Haitians. This sequence of events has been confirmed by a series of investigations, including oneconducted by an independent panel appointed by the UN itself.4

One would expect a cholera epidemic to be precisely the kind of humanitarian crisis the UN would be well-positioned to address – though of course one might also have the same expectation about prevention. In any case, its direct responsibility for this particular crisis should provide an obvious impetus to respond quickly, effectively, and in a manner respectful of those who have suffered as a result. Beyond a flurry of press releases, however, the UN has done relatively little in practical terms to address the problem it has created, to ease the suffering of those harmed, or to prevent the inevitable future harms cholera will inflict. A UN initiative launched in vocal support of a pre-existing plan to eradicate cholera from the island of Hispaniola – a plan that would not only eliminate cholera but would also save thousands of lives lost due to other waterborne diseases – was accompanied by a financial commitment of only one percent of the US$2.2.billion price-tag.5 By contrast, it continues to spend over $500 million on MINUSTAH peacekeepers annually.6 This is despite the fact that Haiti has never been in a state of war during its decade-long tenure, and has one of the lowest homicide rates in the Caribbean.7 Indeed, the UN has actively avoided acknowledging its causal role, even where a simple apology would not only cost the organization nothing, but would in fact add value to a brand already tarnished by other serious allegations, including multiple instances of sexual exploitation and abuse, leveled against MINUSTAH personnel.8

In the face of its refusal to accept responsibility and take the necessary steps to aid those affected, 5000 victims of the epidemic and their families submitted claims to the UN on November 3, 2011. A prompt response was not forthcoming. In fact, it was not until February 21, 2013, 15 months later, that the Under Secretary-General for Legal Affairs sent a letter summarily rejecting the claims in two sentences: “With respect to the claims submitted, consideration of these claims would necessarily include a review of political and policy matters. Accordingly, these claims are not receivable pursuant to Section 29 of the Convention on the Privileges and Immunities of the United Nations [CPIUN], adopted by the General Assembly on 13 February, 1946.”9

Section 29 of the CPIUN states that “[t]he United Nations shall make provisions for appropriate modes of settlement of disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party.”10 It is exactly such a provision that is contemplated in the Status of Forces Agreement (SOFA) between the UN and Haiti, which extends legal immunity to the UN on the understanding that any such dispute will be addressed by a standing claims commission.11 As many observers have pointed out, the UN’s response failed to make clear how inadequate sewage facilities constituted matters of politics or policy, or exempted the UN from fulfilling this obligation.

What was made very clear, however, was that the UN was refusing to accept responsibility — whether moral, legal, or financial — for the damage it had caused. Since that time, the UN has continued its refusal to accept the claims, to set up a standing claims commission as required under the SOFA to investigate the claims, or even to meet with the complainants and their representatives. The UN has never put forward any legal or moral argument to support this refusal. Consequently, on October 9, 2013, a lawsuit was filed against the UN in US District Court in the Southern District of New York, not far from UN Headquarters.

Litigation is a last resort for those seeking the justice that the UN should itself be at the forefront of promoting. The two further lawsuits that have since been filed on behalf of cholera victims will at the very least help to ensure the issue does not simply fade away. At the same time, legalistic minutiae around how a court case should proceed, if it can proceed at all, serve to divert attention from a more central issue: the moral responsibility of the UN to live up to the values that form its raison d’être and whose propagation are at the core of the UN’s mandate in Haiti. As outlined in the very first article of the UN Charter, the underlying purposes of the organization include not only achieving international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights, but also maintaining the peace through conformity with the principles of justice and international law in the settlement of international disputes.12

By the time the Charter turns, much later, to the privileges and immunities of the UN under Article 105, it is clear that they are meant to be extended to the organization only as far “as are necessary for the fulfillment of its purposes.” By contrast, the UN’s conduct in Haiti illustrates how a tool designed to protect the UN’s ability to promote and respect human rights is being used to do quite the opposite. This has implications for future UN activities not only in Haiti, where there is considerable resistance to the ongoing presence of MINUSTAH, but also elsewhere in the world, where the effectiveness of the organization in promoting respect for the rule of law is affected by its ability to lead by example.

Of course, it should not need to come to this in the first place; the UN has had ample opportunity to resolve these issues in a manner befitting its stature in the international community and the values it professes. Many within the UN itself would agree; those who have publicly questioned the UN’s conduct or called for compensation for cholera victims include UN High Commissioner for Human Rights Navi Pillay, former Under Secretary-General for Peacekeeping Operations Jean-Marie Guéhenno, former UN Special Envoy for HIV/AIDS in Africa Stephen Lewis, and both the former and current UN Independent Experts on the Situation of Human Rights in Haiti, Michel Forst and Gustavo Gallón, while even greater numbers have done so in private. They know that, regardless of what happens in a court of law, the UN’s refusal to address this issue promptly and in accordance with its own values means it faces a harsh verdict in the court of public opinion.

Acknowledgments: Beatrice Lindstrom, Jeffrey Brand, Brian Concannon, Katharina Rall, and Shannon Walker provided feedback throughout the drafting of this article.


Adam Houston, JD, MA, LLM, is a Legal Fellow with the Institute for Justice & Democracy in Haiti (IJDH), Boston, MA, USA.

Please address author correspondence to the author: adam@ijdh.org.

Competing interests: The Institute for Justice & Democracy in Haiti is currently involved in litigation against the UN on behalf of the victims of the Haitian cholera epidemic.

 

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