A Call for U.N. Accountability for Cholera in Post-Earthquake Haiti Part II: The Challenge of U.N. Immunity
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In response to the second anniversary of Haiti’s January 12, 2010 earthquake, this post is the second in a four-part weekly series examining the implications of ongoing efforts to establish U.N. accountability for allegedly causing Haiti’s deadly cholera epidemic in the months following the events of January 12, 2010. This post was authored by O’Neill Institute Research Associate, J.P. Shuster, with support from O’Neill Institute Law Fellow, Ana Ayala.
Two years ago today, Haiti’s 7.0 magnitude earthquake devastated Port-au-Prince, as well as numerous cities across the impoverished Caribbean nation, and tragically redefined mass suffering in the Western Hemisphere. The quake – the largest trembler to hit the island of Hispaniola in over 200 years – caused the deaths of an estimated 100,000 to 230,000 people. It physically destroyed Haiti’s Presidential Palace, its Parliament, law courts, most of its ministerial and public administration buildings, and 50 hospitals and health centers. In total, the event directly affected the lives of 1.5 million people, or fifteen percent of the country’s population.
In October of the same year, as Haitians struggled to recover from the harrowing events of January, a deadly outbreak of cholera in Haiti’s Central Plateau region began unleashing further misery and with shocking speed. The disease swiftly killed two thousand people in the first 30 days alone. So far, over 7,000 Haitians have died while over 515,000 individuals – more than 5 percent of the country’s total population – remain infected.
Perhaps most disconcerting, a string of epidemiological studies conducted in the past fourteen months have all suggested that the U.N.’s peacekeeping mission in Haiti, known by its acronym MINUSTAH, is likely responsible for the outbreak. In particular, the studies note that a Nepalese battalion of the U.N. mission failed to prevent cholera-infected fecal matter from flowing out of a faulty septic tank at the battalion’s base in the Central Plateau town of Meille into Haiti’s vital Artibonite River. Even the U.N.’s independent panel of experts report found that the particular strain of cholera currently infecting Haitians perfectly matched a strain of cholera isolated in Nepal months before Haiti’s outbreak. In essence, one of the entities most critical for protecting the health and safety of Haitians now stands connected to not only the international spread of cholera, but also the emergence of what has become the largest active epidemic of that disease in the world.
Legal action against the U.N. for allegedly spreading cholera to Haiti has followed. This past November 3, a Haitian non-governmental organization, the Bureau des Avocats Internationaux (BAI), and its U.S. partner, the Institute for Justice and Democracy in Haiti (IJDH), took the unprecedented move of filing a petition with the Claims Unit of the Office of the United Nations Secretary-General in Haiti on behalf of 5,000 victims of cholera and their families. (For discussion on the BAI/IJDH petition for relief, see here). In particular, the BAI/IJDH complaint has alleged that the U.N. failed to screen its armed personnel for cholera; that it willfully obscured the outbreak’s source; and that it delayed responding to epidemic. According to the complaint, such actions amounted to negligence, gross negligence, recklessness, and deliberate indifference for the lives of Haitians. The lawsuit, if entirely successful, could cost the U.N. multiple billions of dollars in damages.
At present, the spread of cholera infections appears to be at least temporarily declining.
The United Nations Office for the Coordination of Humanitarian Affairs has found that the number of cholera infections has declined from 500 cases nationwide per day to 300 cases between November and December 2011. It also found that fatality rates have dropped from an initial 5 percent to 2.2 percent in nine out of ten of Haiti’s geographic departments. However, fears remain that the infections have declined with the dry season and that the upcoming rainy season will bring a spike in infections from the waterborne illness.
Meanwhile, public acknowledgement of responsibility from the U.N., much less compensation, has remained frustratingly elusive for victims of the epidemic. At present, the U.N. has taken no action on the BAI/IJDH petition for relief. What is more, the U.N.’s head of Humanitarian Affairs in Haiti has made statements regarding the regional commonality of Haiti’s strain of cholera that directly contradict the U.N.’s own expert report. Some development experts have alleged that the statements were meant to intentionally mislead the public about the U.N.’s role in causing the epidemic.
Regrettably, the legal challenges to obtaining justice for Haiti’s cholera victims remain extraordinarily difficult due largely to the U.N.’s widely accepted immunity from domestic lawsuits. A hard look the complaints lodged against the U.N. so far reveals that obtaining the relief sought will chiefly depend on the U.N.’s willingness to produce a judgment against its own interests via an internal review process or on whether an independent arbiter – domestic, regional or international – can obtain an unlikely express waiver of the U.N.’s powerful employee immunities.
The first among the many challenges for obtaining swift relief, however, is purely logistical. The U.N. has yet to establish the standing claims commission called for in MINUSTAH’s Status of Forces Agreement (SOFA) to adjudicate private law complaints against U.N. staff. However, other U.N. peacekeeping missions have also failed to establish the requisite commissions called for in their respective SOFAs but still provided a path to relief when private citizens brought claims against mission personnel. Those missions ultimately set up claims review boards to settle the complaints. Until MINUSTAH establishes a standing claims commission, or a functional equivalent, the chances of obtaining a meaningful examination of private complaints against the U.N. will remain beyond reach.
Second, due to the weighty consequences at stake for the U.N., any claims dispute mechanism that operates entirely internal to the U.N. will most likely lack the impartiality necessary to provide petitioners an objective evaluation of their complaints. For example, a finding in favor of the petitioners in the BAI/IJDH complaint would require the U.N. to commit to paying billions of dollars in victim payouts and public health infrastructure costs. Moreover, it would require the U.N. to immeasurably tarnish its own image as a leader for the protection of global health by admitting to criminal negligence and causing the deaths of more than 7,000 citizens of an impoverished country it was entrusted to protect. An expectation that the U.N. will generate such a finding by its own volition borders on the illogical. Therefore, the better alternative for petitioners is to move proceedings to a forum external to the U.N. to ensure a timely and independent examination of U.N. liability.
In fact, concern about the U.N.’s willingness to provide timely and effective relief has prompted BAI/IJDH attorneys to announce that they will take their petition to domestic courts in Haiti or the United States if the U.N. does not at least provide a timetable for responding to their submission. Meanwhile, a Brazilian non-governmental organization, the Faculdade de Direito de Santa Maria (FADISMA), has gone directly to international fora by filing a complaint with the Inter-American Commission on Human Rights (IACHR). In particular, FADISMA has asked the IACHR for a finding that the U.N.’s conduct in Haiti has violated the rights to life and freedom from inhumane treatment under Articles 4 and 5 of the American Convention on Human Rights (American Convention). FADISMA has also asked the IACHR to find that the U.N. violated the purpose of the international organization to promote and encourage respect for human rights under Article 1, paragraph 3 of the Charter of the United Nations.
However, should Haiti’s cholera victims forgo the U.N.’s internal claims procedure and seek more impartial relief in a domestic or international court system, they will face a separate set of challenges to obtaining meaningful redress. Removal to Haiti’s court system – perhaps the most logical preliminary venue – poses major logistical barriers to obtaining efficient relief. Haiti’s judiciary already lacked professional and physical capacity to adjudicate complex claims prior to the January 12, 2010 earthquake. In the wake of the human and structural toll of that catastrophe, Haitian courts likely remain too overwhelmed to provide a timely determination on the complicated issues that the cholera epidemic raises.
Moreover, Article 105 of the United Nations Charter and the SOFA for MINUSTAH both afford U.N. personnel broad immunity from suit in domestic courts that would initially allow the U.N. to avoid responsibility. Domestic and international courts in jurisdictions around the world have overwhelmingly agreed that good reasons exist for providing the U.N. immunity. Such courts weigh strongly the fact that the U.N. operates in economically harsh and often violent country contexts and must have assurances that the threat of domestic court proceedings does not prevent it from executing its protection duties. In addition to the broad immunity provided in the U.N Charter, Article II, section 2 of the Convention on the Privileges and Immunities of the United Nations requires that the U.N. expressly waive the immunity of its employees before a domestic court can overcome the immunity provided in the U.N. Charter. The U.S. court system, arguably a legal bellwether for the region, has consistently refused to extend subject matter jurisdiction to claims against U.N. officers and employees due to the aforementioned immunities clauses, as well as section 7(b) of the U.S. International Organizations Immunities Act.
Unfortunately, international forums cannot circumvent the U.N.’s far-reaching employee immunities any more readily than a domestic court. In fact, direct appeals to an international forum carry increased procedural burdens. Although the FADISMA petition to the IACHR, as one example, should be praised for its bold demand for justice for Haiti’s cholera victims, the organization’s complaint relies on an invented theory of the IACHR’s competence to hear claims lodged directly against international organizations. In actuality, the IACHR can only admit claims lodged against member countries of the Organization of American States, and the IACHR may only do so once it has determined that petitioners have exhausted all available domestic remedies (this would include any and all remedies potentially available in Haiti’s domestic court system).
Despite such overwhelming challenges, limited options for establishing U.N. accountability and obtaining compensation for Haiti’s cholera victims do exist. Although difficult attain, litigants and their supporters can vehemently pressure the U.N. to expressly waive the immunity of its suspect Nepalese battalion members. At the core of such an audacious request is an expectation that the U.N. has a moral obligation to respect the human rights instruments that the U.N. itself has helped build and champion since the end of the Second World War. Through such human rights instruments, the U.N. has insisted that every person has certain inalienable rights based on the inherent dignity and worth of the person. Importantly, Article 8 of the Universal Declaration of Human Rights asserts that every person has the right to obtain an effective remedy for acts that violate his or her fundamental rights. In addition to an express right to health in Article 19 of the Constitution of Haiti, the U.N. has also worked to define a fundamental right to health through documents like the Charter of the World Health Organization and the work of the U.N. Committee on Economic, Social and Cultural Rights.
Officially, no human rights instrument is directly binding on the U.N., insofar as the U.N. is a non-state actor. However, the U.N. has articulated its own duty to support the protections enshrined in those instruments. U.N. Peacekeeping Operations (UNPKO), which directs the activities of MINUSTAH, states in no uncertain terms, “Human rights is a core pillar of the United Nations. All staff in peace operations have the responsibility to ensure the protection and promotion of human rights through their work.” The ESCR Committee has even recognized the “particular importance” of international organizations to protecting the right to health. General Comment 14 of the ESCR Committee, which provides guidance for implementing the right to health enshrined in Article 12 of the International Covenant on Economic, Social and Cultural Rights, states that U.N. entities, in particular, “should cooperate effectively with States parties, building on their respective expertise, in relation to the implementation of the right to health at the national level, with due respect to their individual mandates.” Haiti’s cholera victims must therefore steadfastly maintain that the invocation of U.N. immunity frustrates the very purpose of the human rights frameworks that the U.N. has helped develop while weakening the authority of those mechanisms around the world.
Importantly, the U.N.’s immunity is also not absolute. A 2010 ruling from the Court of Appeal at The Hague stated that there has to be a balancing between the U.N.’s interests in immunity and the protection of the fundamental rights of plaintiffs to have access to effective judicial review. Indeed, Article V, section 21 of the Convention on Privileges and Immunities of the United Nations requires that the U.N. cooperate with the appropriate authorities of member countries to “prevent the occurrence of any abuse” of the U.N.’s privileges and immunities and to “facilitate the proper administration of justice.” Immunity was upheld in the 2010 ruling because The Hague found that the U.N.’s interest carrying out its duties outweighed the citizen’s interest in obtaining judicial review of claims concerning the U.N.’s failure to protect them from an armed aggressor. However, under The Hague’s balancing test, justifications for upholding U.N. immunity for its armed personnel cannot reasonably encompass a failure to protect citizens from the preventable spread of disease. Specifically, the interest of Haiti’s cholera victims in obtaining access to effective judicial review and respect for their fundamental right to health far outweigh any impediment that accountability would pose to the U.N.’s ability to carry out its operations. Although accountability in Haiti will be financially costly for the U.N., it can hardly be argued that liability for negligent sanitation conditions or the imposition of enhanced standards for preventing the spread of disease, such as improved pre-deployment screening of troops, limits the U.N.’s future willingness or ability to engage in peacekeeping operations.
The fact that 200 Haitians continue to die every day from the disease should obligate the U.N. to acknowledge its wrongdoing, compensate victims and contribute to a comprehensive response to the epidemic. The U.N. should expressly waive immunity to comply with the human rights protections it champions globally. In the event that litigants file in domestic court, the venue should properly balance the critical interests of the victims in obtaining relief against the minimal technical improvements the U.N. may be required to undertake and deny immunity. Most importantly, any forum that adjudicates claims for compensation from the U.N. for Haiti’s cholera outbreak should also evaluate the U.N.’s current protocol for preventing the international spread of disease via its officers and employees. Indeed, the U.N. continues deploying over one hundred thousand personnel to its 16 peacekeeping missions around the world without any change to its pre-deployment and response accountability standards.
As Haitians continue struggling to rebuild their country on today’s second-year anniversary of its tragic earthquake, the U.N. can commit to protecting human dignity in Haiti by acknowledging its role in causing the deadly spread of cholera in that country, as well as committing to improving its disease prevention and control standards to prevent further manmade exacerbations to such natural disasters in the future.
 Government of Haiti, Action Plan for National Recovery and Development of Haiti: Immediate Key Initiatives for the Future (March 2010), at 5. The actual number of deceased remains disputed.
 See the following reports: Renaud Piarroux, et al., Understanding the Cholera Epidemic, Haiti, 17:7 Emerging Infectious Diseases J.1161, available at, https://wwwnc.cdc.gov/eid/404.html?aspxerrorpath=/eid/article/17/7/11-0059_article#suggestedcitation; Centers for Disease Control, Press Release: Laboratory Test Results of Cholera Outbreak Strain in Haiti Announced, Nov. 1, 2010, available at, https://www.cdc.gov/media/pressrel/2010/r101101.html; Chen-Shan Chin, et al., The Origin of the Haitian Cholera Outbreak Strain, 364 N.E. J. Med. 33-42.
 Alejando Cravioto, et al., Final Report of the Independent Panel of Experts on the Cholera Outbreak in Haiti, May 2011, at 25, available at, https://www.scribd.com/doc/54653594/UN-Cholera-Report-Final.
 Dennis Sadowski, After One Year, Haiti’s Cholera Epidemic Has Become the World’s Largest, Catholic News Service, Oct. 19, 2011, available at, https://cnsblog.wordpress.com/2011/10/19/after-one-year-haiti%E2%80%99s-cholera-epidemic-has-become-the-world%E2%80%99s-largest/.
 Pet. for Relief, filed with Chief, Claims Unit, Office of the United Nations Secretary-General, Nov. 3, 2011. Available at, .
 Mark Doyle, Haiti’s Cholera Row with UN Rumbles On, BBC News, Dec. 14, 2011, available at https://www.bbc.co.uk/news/world-latin-america-16180250.
 Trenton Daniel, Haiti Cholera Cases Reportedly Drop, Associated Press, Dec. 20, 2011, available at, https://www.huffpost.com/?err_code=404&err_url=http%3A%2F%2Fwww.huffingtonpost.com%2F2011%2F12%2F21%2Fhaiti-cholera-cases-drop_n_1163010.html.
 See especially, Mark Weisbrot, Haiti: MINUSTAH Must Take Responsibility for Cholera Epidemic that Killed 7000 People, Statements by UN Spkesman Nigel Fisher “False and Deceptive”, Center for Economic and Policy Research, Dec, 19, 2011, available at, https://www.globalresearch.ca/haiti-minustah-must-take-responsibility-for-cholera-epidemic-that-killed-7000-people/28285.
 See, Matt Halling, et al., Peacekeeping in Name Alone: Accountability for the UN in Haiti, 31:1 Hastings Int’l & Comp. L. Rev. 461, 483.
 Interview with Brian Concannon, Jr., Director, Institute for Justice and Democracy in Haiti, CNN, Dec. 29, 2011, transcript available, http://www.ijdh.org/2011/12/topics/health/ijdh-director-brian-concannon-haitians-battle-for-restitution-from-u-n-for-cholera-outbreak-cnn/.
 Convention on the Privileges and Immunities of the United Nations, 1 U.N.T.S. 15, 13 February 1946, available at, https://legal.un.org/ola/Default.aspx.
 22 U.S.C. § 288 et seq. See, McGehee v. Albright, 210 F. Supp. 2d 210, 218 (1999). See also, Sadikoglu v. UNDP, No. 11 Civ. 0294 (PKC), 2011 U.S. Dist. WL 4953994 (S.D.N.Y. Oct. 14, 2011).
 FADISMA has claimed the novel theory the IACHR should have competence to admit complaints reporting violations of organizations insofar as organizations are “a derived international entity that acts within the regional stage and to whom the Member States of the [Organization of American States] also belong.” Pet. of Faculdade de Direito de Santa Maria to the IACHR, filed Oct. 2011, at Para. 10, available at, https://www.fadisma.com.br/acaopelohaiti/peticaohaiti/2011.10.17%20-%20Denuncia%20a%20CIDH%20-%20versao%20ingles-oficial-final%20%5Btexto%2Bdocs%5D%20%5BA%5D.pdf.
 See, American Convention on Human Rights, O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force Jul. 18, 1978, at Art. 46.
 See, UNPKO, “Human Rights,” last accessed Jan. 11, 2012, available at, https://www.un.org/en/peacekeeping/issues/humanrights.shtml.
 Mothers of Srebrenica v. The Netherlands & the UN, Case No. 200.022.151/01, I.C.J. (2010).