UN Accountability and the Haitian Cholera Epidemic

Stephanie Zable
Vol. 38 Associate Editor

On October 17th, a hospital in Mirebalais, Haiti accepted a patient with cholera. By October 22nd cholera was well-established along the Haitian coast,[1] and a Haitian laboratory had confirmed Haiti’s first case of cholera in over a century.[2] In the six years since, the death toll of the Haitian cholera epidemic has reached at least 9,200, though reports indicate it could be much higher.[3] Some suggest that the reason for the rapid spread and high death toll is that Haitians had no immunity to cholera, as it had never before been seen in Haiti.[4] The disease was introduced into the country by Nepalese peacekeepers working at a base for the United Nations Stabilization Mission for Haiti (MINUSTAH). The base, located only two kilometers from the first reported cases, dumped untreated sewage into the nearby river, which fed into one of Haiti’s main water supplies.[5] The humanitarian crisis caused by the rapid spread of the cholera was thus directly attributable to the UN presence. The UN, however, has not been contrite. Even after the epidemic was tied directly to the peacekeepers and a Nepalese strain of the cholera virus, the UN insisted that the epidemic was largely due to Haiti’s lack of sanitation facilities.[6] It has since admitted that its representatives did play a role; however, it has maintained that it had no legal responsibility due to its absolute immunity, as guaranteed in Section 2 of the Convention on Privileges and Immunities of the United Nations.[7] Many have argued that the UN’s immunity does not extend to this issue, or alternatively, that even if the UN is immune from ordinary legal recourse, it is still required to remedy the harm it has caused. However, these arguments have been stymied by the UN and its member states, including the U.S.[8] By failing to sufficiently address and remedy the epidemic, the UN has failed to uphold its own arguments and treaties and has violated the rights of Haitians. Haitians and NGOs have pursued myriad means of remedy, without success. In 2013, a group of Haitians who had suffered from the cholera epidemic filed suit against the UN in U.S. District Court. They sought to have UN immunity set aside, relying on Section 29 of the UN Convention, which provides that: “The United Nations shall make provisions for appropriate modes of settlement of: (a) disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party.”[9] The plaintiffs argued that Section 29 was a condition precedent to the immunity claimed under Section 2; that the UN’s violation of Section 29 by failing to make any provision to settle the Haitians’ disputes is a material breach, preventing application of Section 2; and that applying the Convention violates the right of access to the courts.[10] The Southern District of New York denied all three claims, a ruling later affirmed by the Second Circuit.[11] The Haitians have been similarly unable to find remedy under UN-specific procedures. Under the Statement of Forces Agreement (SOFA) with Haiti governing MINUSTAH, the UN agreed to establish a claims commission to settle any private law claims against the UN force that “cannot be settled through the internal procedures of the United Nations.”[12] In November 2011, an NGO filed a petition within the UN, arguing that the UN had violated the SOFA, rights guaranteed by the UNCHR, and the draft articles on the responsibility of international organizations for internationally wrongful acts.[13] The petition invoked Section 29 to demand that the UN provide a forum for dispute settlement. After 15 months, the UN denied the petition because they were not considered to be private law, which in peacekeeping operations “require criminal, illegal, or unlawful actions or activities of the mission or its members.”[14] Although the conduct at issue might fall into one of the above categories, the UN has argued that the presence of cholera was due to UN policies, and not how the peacekeepers implemented them.[15] As such, according to the official response, “these claims are not receivable pursuant to Section 29.”[16] Legally, the UN’s position is not necessarily faulty. It is subject to legal argument as to whether the conduct in question is in fact of a private nature, as required by the SOFA provisions and Section 29 of the General Convention. However, the UN has been the sole arbiter of its own argument that it is not a private claim. To those who disagree, who have not been given a full hearing in front of an impartial body, the UN’s failure to create a claims process under the SOFA violates the UN’s own agreement. More disturbingly, the UN’s actions in Haiti likely violate human rights affirmed under numerous International Human Rights laws, including the UN Charter.[17] These include rights to health, water, dignity, and remedy, and the right against arbitrary deprivation of life.[18] While the UN has made some efforts to improve the situation, it has not put sufficient effort into it,[19] and, vitally, it has done so as an element of usual strategy rather than as a remedy of its own conduct. It is treating the cholera epidemic as a typical natural disaster, not one of its own making, thereby denying its victims a reckoning and an apology. UN immunity is legally absolute, and it is understandable that the UN would choose not to waive that immunity. However, the UN can remedy its mistake through other means. It has chosen not to do so. The UN’s failure to be held accountable has the potential to undermine its reputation and its mission across the globe, particularly in areas where aid is most needed. The UN should make it a priority to eradicate cholera in Haiti, as well as to provide aid for its victims. Its legitimacy may depend on it.

[1] Dr. Alejandro Cravioto et al., Final Report of the Independent Panel of Experts on the Cholera Outbreak in Haiti at 3 (2011), www.un.org/News/dh/infocus/haiti/UN-cholera-report-final.pdf. [2] Cholera in Haiti: One Year Later, CDC, http://www.cdc.gov/haiticholera/haiti_cholera.htm (last visited Sept. 23, 2016). [3] Rick Gladstone, Cholera Deaths in Haiti Could Far Exceed Official Count, N.Y. Times (March 18, 2016), http://www.nytimes.com/2016/03/19/world/americas/cholera-deaths-in-haiti-could-far-exceed-official-count.html. [4] Jonathan M. Katz, The Killer Hiding in the CDC Map, Slate (April 14, 2016), http://www.slate.com/articles/news_and_politics/foreigners/2016/04/what_caused_haiti_s_cholera_epidemic_the_cdc_s_museum_knows_but_won_t_say.html. [5] R.R. Frerichs et al., Nepalese origin of cholera epidemic in Haiti, 18 Clinical Microbiology and Infection E158 (June 2012). [6] Katz, supra note 4. [7] Convention on Privileges and Immunities of the United Nations, Sec. 2, Apr. 29, 1970, 21 U.S.T. 1418. [8] Contemporary Practice of the United States Relating to International Law: International Organizations: United States Defends United Nations’ Immunity in Haitian Cholera Case, 108 A.J.I.L. 819, 823 (2014). [9] Convention on Privileges and Immunities of the United Nations, supra note 7, Sec. 29. [10] Georges v. UN, No. 15-455-cv, 2016 U.S. App. LEXIS 15210, at *7-*8 (2d Cir. Aug. 18, 2016). [11] Id. at *25. [12] Agreement between the United Nations and the Government of Haiti Concerning the Status of the United Nations Operation in Haiti 2004, 2271 UNTS 235, Arts. 54-55. [13] Kristina Daugirdas, Reputation and the Responsibility of International Organizations, 25 Eur. J .Int. Law 991, 1001-02 (2014). [14] Rosa Freedman, UN Immunity or Impunity? A Human Rights Based Challenge, 25 Eur. J .Int. Law 239, 248 (2014). [15] Id. at 249. [16] Daugirdas, supra note 13 at 1002. [17] Freedman, supra note 14 at 243. [18] Yale Transnational Development Clinic et al., Peacekeeping without Accountability: The United Nations’ Responsibility for the Haitian Cholera Epidemic 37-45 (2013), http://www.law.yale.edu/documents/pdf/Clinics/Haiti_TDC_Final_Report.pdf (last visited 23 Sept. 2016); Freedman, supra note 14 at 252. [19] Katz, supra note 4 (“Neither the U.N. nor its donors are anywhere close to raising the $2.27 billion it says is required to build the clean water and sanitation infrastructure needed to end it.”)