In 2010, Haiti was devastated by a 7.0 magnitude earthquake. Later that year, the tragedy was compounded by a cholera outbreak that continues today. As part of the peacekeeping operation present in Haiti since 2004, one of the units from Nepal was improperly screened and brought cholera to the country. Though the unit was not one of those deployed in response to the earthquake, the harm they caused further complicated an already complex humanitarian situation.
On the ground there were no effective sanitation systems in place. And so human waste from the Nepali unit was dumped directly into the Meye (or Meille), a tributary of the Artibonite River, the most important river in Haiti. Tens of thousands of Haitians rely on this river for drinking and washing water. It was a fatal mistake that Haitians have paid for ever since.
In the subsequent months and years, hundreds of thousands of Haitians have been infected with cholera, and more than nine thousand have died. To date, over one in twenty Haitian men, women and children have been infected.
Although a study released earlier this month suggests that the actual figures of deaths from cholera are even higher than those official numbers.
An internal U.N. investigation commissioned by the Secretary General found that
Prior to this outbreak, cholera had not been present in Haiti for at least a century, perhaps not ever.
Despite this overwhelming evidence, as found by the U.N.’s own investigation, the United Nations refused to take official responsibility for its negligence.
The U.N. has launched a ten year cholera-elimination plan, though sufficient funds to fully activate the plan have yet to materialize. And some limited progress has been made. Recently, the Ministry of Public Health and Population in Haiti has said there has been a reduction in the prevalence of cholera.
From January 1 to February 27 of this year 7,782 cases and 96 deaths have been recorded, with a gradual reduction from week to week. However, compared to last year in the same period, the number of cases has increased. Thus, the situation is still dire. Experts warn that the disease is at risk of being endemic in Haiti.
SUING THE UNITED NATIONS
Since the outbreak began, legal action against the U.N. has been instigated by several Haitian parties.
Haitians have submitted petitions to the U.N. mission to Haiti in November 2011 and to the U.N. Office of Legal Affairs in May 2013. They sought to have the organization accept responsibility for the outbreak and its devastating consequences on the local population. All petitions were denied by the U.N.
The Institute for Justice and Democracy in Haiti (IJDH) has also acted on behalf of victims of the cholera epidemic. In November 2011, the IJDH, on behalf of 5,000 cholera victims, called for the U.N. to end cholera by
- installing a national water and sanitation system;
- paying reparations to cholera victims and their families;
- and to publicly apologize for bringing cholera to Haiti.
In response, the U.N. has claimed that they are immune from all legal action. Most recently, the IJDH sued the U.N. in federal court in New York in a case entitled Georges v. United Nations regarding the U.N.’s claims of immunity. The United States District Court for the Southern District of New York dismissed the lawsuit in January 2015, holding that the U.N. is indeed immune from lawsuits under a 1946 treaty. The Haitian plaintiffs appealed that dismissal and, earlier this month, the Federal Court of Appeals heard further arguments in New York on March 1, 2016.
THE LEGAL ARGUMENT
The IJDH represents 5 plaintiffs in this case, 2 of them Haitian-Americans who currently reside in the United States. The main argument was over the question:
Does the U.N. have absolute immunity?
Within that question, the issue of jurisdiction arose. If the U.N. is immune, then the United States court does not have jurisdiction to address this case. The U.N. did not appear at the argument at all for that reason, insisting it had no obligation to do so. The United States Government did, however, appear through an Assistant United States Attorney, as an amicus curiae, or a party that’s not directly involved but offers their opinion.
The U.S. government argued that only member states could pursue an action of this sort and even then, only in the International Court of Justice (ICJ), not within the US legal system. Because the two plaintiffs are private individuals and not, obviously, member states they would not be able to raise the issue in the ICJ.
The IJDH argued that because the U.N. is headquartered in New York and because both defendants reside in New York, the court had jurisdiction over the parties. Of course, this is contingent on the argument that the U.N. does not have absolute immunity.
The immunity argument is based on a 1946 international convention, the Convention on the Privileges and Immunities of the United Nations (the “Convention”).
Section 2 of the Convention provides the U.N. with legal immunity. However, the IJDH argues there is another section of the convention (Section 29) that is linked to Section 2, which requires the U.N. to establish alternative means of legal recourse when the U.N. stands accused but is immune from direct legal action.
The argument is that the convention sought to avoid exactly these sorts of situations, where private citizens have been wronged but they have no means of recourse. The IJDH argued that one acts as a counterbalance to the other to ensure citizens have access to justice.
Because the U.N. has not set up any way for the citizens of Haiti affected by the cholera outbreak to take action against the U.N., the IJDH argued that the U.N. forfeited the immunity that might otherwise have protected the organization from legal action.
The U.S. argued that the two passages are not linked and that the U.N. is in any event protected by a continuing immunity. That is, the failure to meet Section 29 (providing an alternative legal recourse) does not void the immunity guaranteed in Section 2. Moreover, it argued, even if Section 29 were enforceable, which it may be, it would be enforceable not by individuals, but by states, and not in this court system.
The U.N. itself has made statements that these sorts of complaints are not even able to be considered because that would require a wider examination of internal policy.
THE MORAL ARGUMENT
Of course, that is not to say that the U.S. and the U.N. are not sympathetic to the Haitians who have suffered and who have died. The government’s lawyer began by saying “the United States understands that this case concerns humanitarian tragedy and the U.S. is sympathetic to the victims of the cholera epidemic in Haiti. And to that point, the United Nations itself has spent more than 140 million dollars since the outbreak began trying to eradicate cholera.”
The U.N. also has a valid concern that this case could establish a dangerous precedent. If its immunity were forfeited here, it could forfeited in other cases leading to a disabling avalanche of litigation.
Indeed, if too many cases were filed, the U.N. might not have the financial capacity to continue its humanitarian operations. And their operations are a force for good. That point must not be lost. The U.N. has helped to stabilize Haiti in the wake of the earthquake and the political turmoil that has followed.
Sympathy and other good intentions, however, is not the same as admitting guilt and offering some, if only symbolic, nod to the victims.
Beyond the legal arguments, there is, perhaps a more weighty moral consideration to make. Several independent experts, appointed by the U.N.,strongly argued in a letter to the U.N. that a lack of legal action “undermines the reputation of the U.N.”
In another letter to the U.N., experts said “Without wishing to take a position on the merits of the invocation of immunity in these contexts, we would only note that the result of the claim so far successfully made by the United Nations is to leave the victims without an effective remedy, while there does not seem to be any prospect for a proper accountability.”
Similarly, Lindstrom made the argument that the U.N. is an entity created by international human rights law to promote human rights and treaty obligations. To back down from those very same obligations may perhaps send the wrong message to the world about the importance of human rights.
The U.N. is ignoring the fact that it is violating the human rights law that it itself established, including the human right of access to clean water and the right to an adequate standard of living. The U.N. failed to ensure that right for Haitians, actively contaminating clean water and detracting from their standard of living. So, further, failing to take responsibility for this action may prove to lead to even further damage to international trust in the long term.
The U.N. serves the global public and its reputation is critically important. It serves us all if the U.N. takes the appropriate steps to thoroughly learn from its failures and, through its response, models best practice.