On March 7, the U.S. Government filed a Statement of Interest asserting that the UN has immunity from suit and service in the case. On May 15, Plaintiffs responded with a brief that argues that the UN does not enjoy immunity when it has breached its treaty obligations to provide victims access to an out-of-court process for settling their claims. A total of 25 prominent international law and human rights experts — several with UN connections — signed on to amicus briefs filed on the same day in support of Plaintiffs. On July 7, the U.S. Government submitted its reply that insisted on UN immunity. Plaintiffs submitted a surreply August 28th, reiterating that the UN’s failure to establish an alternative mechanism for adjudicating victims’ claims violates its legal obligations and denies victims the basic right to a remedy. Under these circumstances, the UN cannot successfully assert immunity. The surreply constituted the final briefing on the issue. On October 23, 2014 the judge heard oral arguments on the question of UN immunity. We now await the judge’s decision.
In October 2010, the United Nations Stabilization Mission in Haiti (MINUSTAH) introduced a cholera epidemic that has infected hundreds of thousands (approximately 7% of the population) and killed over 8,600 Haitians.
In November 2011, the BAI and IJDH filed groundbreaking claims against the United Nations (UN) on behalf of 5,000 Haitian cholera victims demanding accountability for the cholera epidemic in Haiti. The claims demanded that the UN:
- Install a national water and sanitation system that will control the epidemic;
- Compensate individual victims of cholera for their losses; and
- Issue a public apology from the United Nations for its wrongful acts.
In February 2013, the UN rejected the claims as “not receivable,” a decision that has been widely criticized as legally unjustified. Following the UN’s persistent refusals to engage or resolve the case out of court, BAI, IJDH, and Kurzban, Kurzban, Weinger, Tetzelli & Pratt, P.A. (KKWT) filed a lawsuit against the UN in federal court in the Southern District of New York in October 2013. The named plaintiffs in the suit are five Haitians and Haitian-Americans whose family members died of the disease or who were infected but managed to survive life-threatening cholera. The plaintiffs are asking the court to certify the case as a class action, which will allow the plaintiffs to represent and obtain relief for the hundreds of thousands Haitians and Haitian-Americans who suffered injuries or died from cholera. The 67-page complaint details extensive evidence demonstrating that the UN knew or should have known that its reckless sanitation and waste disposal practices posed a high risk of harm to the population, and that it consciously disregarded that risk, triggering an explosive epidemic. The plaintiffs seek damages for personal injury, wrongful death, emotional distress, loss of use of property and natural resources, and breach of contract.
The UN continues to deny responsibility despite overwhelming evidence of its wrongdoing and mounting public pressure for accountability and action.
The New York Times has called the cholera litigation “the most organized challenge to UN immunity yet.” The case has universal implications beyond Haiti because it challenges the UN to comply with its legal obligations of establishing settlement mechanisms and upholding its commitment to be a global leader in accountability and promotion of human rights for all.
- Transcript of oral arguments on UN Immunity, October 23, 2014
- Surreply to the US Government’s Response on UN Immunity, August 28, 2014
- US Government Response to IJDH’s opposition to the US Government Statement of Interest, July 7, 2014
- Amicus Curiae Brief from European law scholars and experts in support of cholera victims, May 2014
- Amicus Curiae Brief from prominent international law scholars in support of cholera victims, May 2014
- Opposition Brief to the US government’s March 2014 Statement, May 2014
- US Government Statement of Interest, March 2014
- Amicus Curiae Brief on Behalf of Fanm Ayisyen Nan Miyami (FANM) and the Haitian Lawyers Association in Support of Plaintiffs’ Motion on Service, February 2014
- Motion for Affirmation that Service has been Made, February 2014
- Certificates of Service (MINUSTAH, Ban Ki-moon, Edmond Mulet), January 2014
- Complaint, October 2013
UN Claims Process
- UN’s dismissal of BAI/IJDH challenge, July 2013
- (another version: UN Secretary General Ban Ki-Moon’s Letter to US Congress)
- BAI/IJDH challenge to UN dismissal (English and French), May 2013
- UN dismissal of BAI/IJDH claims, February 2013
- Acknowledgment from Office of Legal Affairs, December 2011
- BAI/IJDH petition submitted to the UN on behalf of 5,000 clients (English and French), November 2011
All pleadings in the case are also available on Pacer, under case number 1:13-CV-07146.
The UN’s Role in Haiti’s Cholera Epidemic
Cholera exploded in Haiti in October 2010, shortly after the arrival of a new battalion of peacekeepers from Nepal, a country where cholera is endemic. Prior to their arrival, the CDC reports that Haiti had not experienced a cholera outbreak in over two centuries. The peacekeepers were neither tested nor treated for cholera prior to deployment to Haiti, despite the UN’s knowledge that Nepal was experiencing a surge in infection at the time, and that Haiti was extremely vulnerable to cholera. The peacekeepers were stationed on a base in rural Mirebalais that maintained dangerous sanitation conditions, allowing human waste to contaminate a tributary that runs just meters from the base into the Artibonite River, Haiti’s primary water source. Neighbors in the area reported foul stenches stemming from the camp, and a later UN investigation revealed that the sewage piping at the base was “haphazard” and “inadequate,” and that all base wastes were dumped into an open-air unfenced pit.
Legal Basis for UN Liability
The UN is legally responsible because its recklessness directly caused foreseeable harm to victims. As microbial geneticist Paul Keim put it, “it was like throwing a lighted match into a gasoline-filled room.” The following UN failures form the basis for our legal case:
- Failing to screen troops for cholera infection prior to deployment from Nepal, a country where cholera is endemic and which had just reported a surge in infections;
- Failing to maintain its sanitation facilities and waste disposal at the Mirebalais camp in Haiti, allowing contaminated human waste to run into the Meille, a tributary of the Artibonite River. The Artibonite is Haiti’s longest and most important river; it is a critical source of water for tens of thousands of Haitians who rely on it for drinking, bathing, washing clothes, and irrigation; and
- Failing to take immediate corrective action to properly address the outbreak of disease, willfully delaying investigation and obscuring discovery of the outbreak’s source at the cost of Haitians’ lives.
In legal terms, these failures constitute negligence, gross negligence, recklessness, and deliberate indifference for the lives of Haitian people.
The evidence that UN malfeasance caused the cholera outbreak in Haiti is overwhelming and well documented. Numerous independent scientific studies, including studies by the United States Centers for Disease Control and Prevention, by one of the world’s leading cholera epidemiologists Dr. Renaud Piarroux, and by a panel of independent experts appointed by the UN, all point to MINUSTAH as the source of the cholera epidemic. DNA testing shows that the cholera strain that is responsible for the epidemic is a perfect match to a strain active in South Asia. Furthermore, many witnesses reported on the poor sanitation conditions on the base, including members of the neighboring community, international journalist, official investigators, and the UN-appointed panel of independent experts.
Injuries and death from cholera began in mid-October 2010, shortly after the arrival of MINUSTAH troops from Nepal. In the first thirty days of the epidemic, Haitian authorities recorded almost 2,000 deaths. In July 2011, the disease was infecting the Haitian population at a rate of approximately one person per minute. The epidemic has disproportionately impacted the poor and vulnerable, especially female heads of households and pregnant women. It has become the largest single-country cholera epidemic in the world, and continues to affect about 7% of the population.
Filing Claims with the UN
In November 2011, The BAI and IJDH filed claims on behalf of 5,000 cholera victims with MINUSTAH’s claims unit in Haiti, and with the Secretary-General in New York. MINUSTAH’s operations in Haiti are governed by a Status of Forces Agreement (SOFA), which affords MINUSTAH broad protections from actions in Haitian courts. To balance this immunity, the SOFA requires the establishment of an independent Standing Claims Commission to hear claims and compensate victims who have been injured by UN activities. Despite this requirement, no commission has been established during MINUSTAH’s mandate in Haiti. In fact, no Standing Claims Commission has been established in over 60 years of UN peacekeeping anywhere, even though most SOFAs require one.
The 5,000 victims represented in the initial claim against the UN included farmers, teachers, and caretakers whose injuries or death left families without means to meet their basic needs. They included people like Claudine*, who lost her father and the family’s main breadwinner to cholera and spent her life savings to retrieve his body from a mass grave and provide him a proper burial. *Name changed to protect client’s identity.
The Petitioners requested a fair, transparent and independent hearing of their claims. 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 and reparations. The UN thus had a duty to respond to the claims by either providing reparations or allowing the claims to be heard by a fair and independent forum.
The UN Response
In December 2011, the UN Office of Legal Affairs acknowledged receipt of the Petition of Relief and promised a response “in due course.” UN spokespersons consistently refused to answer basic inquiries about the status of the claims.
In February 2013, fifteen months after the complaints were filed, the UN responded by merely stating the claims were “not receivable” because their “consideration . . . would necessarily include a review of political and policy matters.” No legal foundation or explanation was provided. Despite subsequent attempts to settle the claims directly with the organization, no further response was forthcoming from the UN.
In the media, the UN has consistently denied any responsibility for starting the cholera epidemic. It claims that a “confluence of factors,” including Haiti’s weak sanitation and health infrastructure, was responsible for causing the epidemic. This is a legally invalid defense. The weakness of Haiti’s health, water and sanitation systems were pre-existing conditions that were well known before the outbreak. Following the 2010 earthquake, a chorus of public health experts warned that outbreaks of water-borne diseases, especially cholera, would have disastrous consequences. Haiti’s vulnerability is precisely what made the cholera epidemic a directly foreseeable consequence of the UN’s reckless release of contaminants into Haiti’s waterways. Just as someone who plays with matches in a dry field cannot blame the dry field when a wildfire breaks out, the UN cannot point to Haiti’s underlying vulnerability as a defense for its own recklessness. The UN also claims that it is impossible to be certain about the origins of cholera in Haiti. This contradicts extensive independent investigations that conclusively place blame on the UN and have “closed the book ” on the question of the epidemic’s origins on a molecular level. Independent scientists, including the UN’s Independent Experts, have thoroughly debunked alternative environmental hypotheses about the source of the epidemic.
The repeated failure by the UN to consider the petitioners’ claims and to establish a mechanism to adjudicate those claims deprived Haitians of the legal protections guaranteed by the Haitian Constitution, Haitian law, and international law as reflected in the Draft Articles on the Responsibility of International Organizations and UN treaty obligations.
Georges v. United Nations
In response to the UN’s inaction, BAI, IJDH, and Kurzban, Kurzban, Weinger, Tetzelli & Pratt, P.A. (KKWT), with the assistance of pro bono legal advice from Wilmer Hale, LLP, filed a lawsuit against the UN in the Southern District of NY federal court in October 2013. Plaintiffs completed service of process on Defendants in February 2014.
The US Government and the UN are asserting that the UN is absolutely immune from liability and are seeking to have the case dismissed. Plaintiffs and amici curiae have argued that the UN cannot successfully assert immunity when it has breached treaty obligations to provide victims access to an alternative claims process. Oral arguments were heard on the issue of service of process and UN immunity in federal court on October 23, 2014.The case is currently pending a decision on the issue of UN immunity.
Despite the UN’s denial of responsibility in bringing cholera to Haiti, human rights experts are increasingly speaking out publicly on the issue and calling for justice for the victims. These statements include:
- Navanethem Pillay, while serving as the UN High Commissioner for Human Rights, in a speech at the 2013 Martin Ennals Award Ceremony for Human Rights Defenders honoring Mario Joseph stated that she “stand[s] by the call that victims of … cholera be provided with compensation.”
- Gustavo Gallón, UN Independent Expert on the Situation of Human Rights in Haiti, in his February 2014 Report to the Human Rights Council, expressed that “the diplomatic difficulties surrounding this issue must be overcome in order to assure the Haitian people that the epidemic will be halted as soon as possible and that full reparation for damages will be provided. Some clarifications as to what really happened need to be given and, if necessary, those responsible for the tragedy should be punished, in accordance with the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law … The United Nations should be the first to honour these principles.”
- Catarina de Albuquerque, Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation, in her June 2014 Report to the Human Rights Council, stated that “[t]he United Nations has rejected the accusations and claimed immunity based on the Convention on the Privileges and Immunities of the United Nations, but United Nations human rights representatives are increasingly calling on the United Nations to establish responsibility.” She also emphasized “the obligation to investigate the allegations in order to establish responsibility for any violations and to ensure the alleged victims’ right to a remedy, including compensation, if warranted.”
- Bill Clinton, Former U.S. President and Special Envoy to Haiti, during a visit to Haiti in 2012, publicly stated that the UN was the “proximate cause” of the cholera epidemic.
- Stephen Lewis, Former UN Special Envoy for HIV/AIDS in Africa, recently stated in a speech that “[t]here are few things, in the last decade of the United Nations, more illegitimate, more reprehensible, more despicable than the United Nations scurrying for cover behind the tattered, discredited banner of immunity when applied to the cholera tragedy in Haiti … The one thing we can collectively not permit is to allow the issue to go away. Every conceivable opportunity should be used to drive home the reality that in the case of Haiti and cholera, the United Nations has abandoned human rights, has spurned the rule of law, and has rendered democratic principles a travesty.”