Legal Perspective

Responsibility and Accountability: The Haitian Epidemic and the United Nations

By Adam Houston, Jerry Stenquist, Beatrice Lindstrom, Katharina Rall, and Alok Pokharel, Visiting Focus Bloggers 

Photo credit:  Ben Depp

Photo credit: Ben Depp

This piece is the second in a series on the cholera epidemic sweeping Haiti. This perspective was written by staff and legal fellows at the Institute for Justice & Democracy in Haiti (IJDH).

The Haitian cholera epidemic is the most serious of the 21st century, with over 600,000 cases and 8000 deaths since October 2010.  As affirmed repeatedly, including by the UN-mandated independent panel of experts tasked with investigating the source of the epidemic, the scientific evidence indicates that the epidemic originated from a UN base situated on a tributary of the Artibonite River in Mirebalais.

Prior to the outbreak, it was well known that sanitary conditions in Haiti were highly conducive to the spread of cholera. The bacteria itself was absent from the country, however, as it had been for all of recorded history. The UN’s failure to take reasonable steps to prevent the readily apparent risk of introducing the disease was subsequently described as being “like throwing a lighted match into a gasoline-filled room.” The UN deployed troops to the UN Stabilization Mission in Haiti (MINUSTAH) from a cholera-endemic country in the midst of an outbreak without testing or treating them for the disease, and stationed them on a base where substandard sewage facilities allowed infected human waste to leak into the Artibonite, Haiti’s central waterway and the primary source of water for tens of thousands of Haitians.

Even UN Special Envoy to Haiti Bill Clinton has acknowledged the UN’s role as the “proximate cause” of the epidemic. While the scientific evidence around the origins of the epidemic provides a sound basis for establishing legal responsibility, however, victims who have lost family members or been sickened themselves have not been able to obtain justice because UN Peacekeeping missions are granted broad immunity from legal proceedings. This immunity is established in the Convention on the Privileges and Immunities of the UN (“CPIUN”), and is intended to play a key role in protecting missions from corrupt or politically biased judicial interference that might impede the UN’s ability to carry out its purpose of “promoting and encouraging respect for human rights.”

There is, however, a fine line between immunity and impunity. On one side of that line, it serves to protect the UN’s ability to fulfil its duties; on the other, it impedes the UN’s own ability to promote the rule of law. It also prevents individuals whose rights have been violated from pursuing due recourse. International human rights law and many national laws guarantee a victim’s right to an effective remedy, which includes fair and transparent adjudication of claims by an impartial body.

The need to provide a remedy is also explicitly recognized under Article 29 of the CPIUN, as well as addressed directly in agreements between the UN and its Member States. MINUSTAH’s operations in Haiti are governed by a Status of Forces Agreement (“SOFA”). Under this agreement, in exchange for immunity from suit in Haiti, the UN agrees to respect Haitian law, to protect public health, and to establish an alternative mechanism for resolving disputes called a Standing Claims Commission. In other words, issues that would otherwise be within the jurisdiction of Haitian courts now fall within the domain of the Commission. In practice, however, the UN has never established such a Commission, in Haiti or anywhere else, despite making similar contractual provisions over decades of peacekeeping operations. Since the UN claims immunity from domestic courts, the failure to establish the agreed-upon Commission creates an accountability vacuum and leaves victims without a remedy.

In November 2011, 5,000 cholera victims filed a petition for relief at the UN, seeking access to clean water and sanitation, compensation, and a public apology. After 15 months of silence, the UN rejected the claims as “not receivable” on the grounds that to accept the claim would “require a review of policy.” This decision has been widely criticized in the media and by decision-makers around the world, including members of the US Congress, while the characterization of improper disposal of human waste as a policy matter has also been questioned. The legality of the UN’s actions has been further questioned in a new report.

Meanwhile, although the UN’s efforts to promote anti-cholera initiatives in Haiti should be applauded, such initiatives remain seriously underfunded; the UN itself has provided only 1% of the total funding needed to eliminate the the disease it introduced.  Such resources are gravely insufficient to address the ongoing threat of cholera in Haiti, particularly amidst concerns that the previously unknown disease is becoming endemic to the country. Furthermore, the UN has failed to implement recommendations made by its own panel in the wake of the epidemic. Consequently, although championing accountability and rule of law in its Member states is at the core of the UN’s mission, its refusal to hold itself to similar standards and provide redress for the consequences of its actions continues to raise important questions with critical ramifications both for those Haitians who have been or will be impacted by cholera, and for other countries around the world that are the site of UN operations or that look to the UN for guidance on matters of justice and human rights.