UPDATE (August 2016): Since we first published this story in July 2015, the UN has acknowledged that it played a role in the 2010 cholera outbreak in Haiti, which has, to date, killed 10,000 people.
In conversations in Haiti with anyone in power, something appears to be unspeakable. A press officer at UNICEF; government officials in the Ministry of Public Health and Population or DINEPA [the National Directorate for Water Supply and Sanitation]; even a nurse at a cholera treatment centre.
What appears to be unspeakable is the cause of the cholera. I find nothing about it in many UNICEF or other United Nations documents that are publicly available. When I ask Haitian officials who should pay for the outbreak, I am usually given an embarrassed smile or a shrug in response. We all know what is not being said. To accuse the UN publicly of being responsible for bringing cholera to Haiti might damage the UN’s undeniably important contribution to clearing up and containing the epidemic.
The lawyers of the Institute for Justice and Democracy in Haiti (IJDH) have no such political muzzle. They are speaking on behalf of 5,000 people: the participants of the claims for compensation that they lodged in November 2011 with the claims unit of MINUSTAH [the United Nations Stabilization Mission in Haiti] and the UN Headquarters. They sought $100,000 for each cholera death and $50,000 for each person who contracted a non-fatal case, a UN-funded nationwide programme for clean water and adequate sanitation, and a public apology.
The UN, an intergovernmental organisation, has diplomatic immunity. But under Section 29(a) of the Convention on the Privileges and Immunities of the United Nations, it “shall make provisions for appropriate modes of settlement of…disputes of a private law character to which the United Nations is a party”.
For many outsiders, this may seem like a straightforward case. There has been copious and persuasive scientific research showing that Haiti’s cholera strain is almost identical to the one ongoing in Nepal when the MINUSTAH peacekeepers left for Haiti in 2010. Earlier theories that the cholera could have arrived from an aquatic environment after the turbulence of the earthquake quietened in the face of genetic analysis done by scientists in the USA, in Korea and elsewhere.
A report of an Independent Panel of Experts commissioned by the UN in 2011 supports this view: “the evidence overwhelmingly supports the conclusion that the source of the Haiti cholera outbreak was due to contamination of the Meye Tributary of the Artibonite River with a pathogenic strain of current South Asian type Vibrio cholerae as a result of human activity.” It goes on to say: “The Independent Panel concludes that the Haiti cholera outbreak was caused by the confluence of circumstances as described above, and was not the fault of, or deliberate action of, a group or individual.”
The first step for anyone aggrieved by UN peacekeeping missions is to approach a standing claims commission, an internal tribunal that can be set up according to agreements made between the host country and particular UN missions. IJDH tried that, but although the UN has signed 32 agreements to set claims commissions up since 1990, I’ve not found any that exist beyond on paper.
Even so, a response was delivered by the UN, 15 months later. The claims were “non-receivable” pursuant to Section 29 of the Convention on the Privileges and Immunities of the United Nations, because they are “public” and not of a “private law” nature. Ban Ki-moon, the UN Secretary General, expressed his sympathy for the suffering caused by the cholera epidemic and telephoned Haitian President Michel Martelly to inform him of the decision and to reiterate the commitment of the UN to the elimination of cholera in Haiti. In public, UN strategy has been to focus on the role of Haiti’s poor water and sanitation infrastructure, even though this was but one among nine contributing factors to the explosive outbreak listed by the Independent Panel (throwing faeces into a river was another, along with Haitians’ lack of immunity to cholera).
IJDH persisted. It found plenty of judicial experts who disagreed with the UN’s legal position. A report by Yale Law School and others says that the UN, in its refusal to establish a claims commission for the victims of the epidemic, “violates its contractual obligation to Haiti under international law” and that the UN’s “introduction of cholera into Haiti and refusal to accept responsibility for doing so has violated principles of international humanitarian aid”.
Even certain UN-appointed experts, such as a series of Special Rapporteurs who wrote a “letter of allegation” to an Assistant Secretary General, have expressed “serious concern that to this date, allegedly, individuals affected by the cholera outbreak have been denied access to legal remedies and have not received compensation”. A 2014 report by Gustavo Gallón, the UN independent expert on the situation of human rights in Haiti, called for a reparation commission for cholera victims in Haiti and “full reparation for damages”.
The letter of allegation, says Beatrice Lindstrom of the IJDH, is, as far as they know, unprecedented. Ban Ki-moon acknowledged in a visit to Haiti in 2014 that the UN, alongside the international community, has a “moral duty” to help the Haitian people stem the further spread of cholera. The IJDH decided to file a class action lawsuit in the USA, where the UN is headquartered. The plaintiffs are five Haitians and Haitian-Americans. The UN didn’t appear, asking the US government to intervene on its behalf, and in January 2015 District Judge J Paul Oetken concluded that the UN has absolute immunity from the suit and had not waived it. The case was therefore dismissed for “lack of subject matter jurisdiction”. Records indicate that another class action lawsuit filed by the offices of Stanley Alpert is ongoing.
And the UN? There is no doubt that it continues to work hard in Haiti to contain cholera. In 2013, it participated in the launch of a $2.2 billion plan to eliminate cholera within ten years. Currently the national plan is only 18 per cent funded, while a special Transitional Appeal specifically for cholera is 7 per cent funded. Donor fatigue after the earthquake is one issue, with attention and money turning to Ebola, Syria, elsewhere. Also, says Lindstrom, “it’s approached as another charity case, these poor Haitians with their lack of water and sanitation, and people roll their eyes. It’s not approached as something the UN has responsibility for, as something that Haitians are entitled to.”
An appeal has been filed. Efforts are ongoing, in courtrooms and cholera treatment centres alike. Even if the issue of responsibility is unspeakable in official corridors in Haiti, others aren’t keeping quiet. In November last year, Stephen Lewis, the former Deputy Director of UNICEF and Special Envoy for HIV/AIDS in Africa, and now a professor at McGill University, said: “There 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.”