Last month, the venerable New York City Bar Association added the voices of its 24,000 local and international members to the mounting pressure on the UN to take responsibility for the cholera epidemic in Haiti that has killed 8,500 people and sickened more than 700,00. Penning a letter on behalf of the organization, president Carey Dunne urged Secretary of State John Kerry to implore the UN to respect its obligations, concluding that "It is in the legal and foreign policy interests of the United States to promote the rule of law, international law and compliance with international treaty obligations, including by the UN itself."
The cholera epidemic began in Haiti in October 2010, less than a year after the country was ravaged by the January earthquake that killed more than 200,000 people, injured countless others and left hundreds of thousands living in squalid and unsanitary displacement camps that lacked even the most basic services. The disease had never been previously recorded in Haiti.
Shortly before the cholera claimed its first Haitian victim, a Nepalese contingent of UN peacekeeping forces, known by their French acronym, MINUSTAH, was deployed to Haiti. At the time, Katmandu was experiencing a known outbreak of cholera that is nearly identical to the strain that has spread across Haiti. The disease was dispersed by inadequate waste treatment management that systematically leaked contaminated sewage into a tributary of the Artibonite River, which serves as the source of drinking and bathing water for tens of thousands of Haitians. Already rendered vulnerable to illness by poverty and inadequate water, sanitation and health facilities, cholera rampaged through the country. The disease continues to claim lives and ravage communities, and threatens other countries in the region as well, having spread already to the Dominican Republic, Mexico and Cuba.
Haitian cholera victims initially sought redress at the UN, petitioning the organization to establish a standing claims commission to resolve civil claims, as required by the Status of Forces Agreement signed by the UN and Haiti in 2004. Rejecting the petition, the UN argued that it was not receivable, since consideration of the claims would require a policy review that is prohibited under Section 2 of the 1946 Convention on the Privileges and Immunities of the UN [PDF]. But as the New York Bar Association letter claims, "It is not credible for the UN to maintain that these tort claims brought by individuals would somehow 'necessarily include a review of political and policy matters' and thus relieve the UN of its obligation to provide an appropriate alternate mode of settlement."
Contrary to the UN's assertion, its immunity is not absolute. Instead, conditional immunity is premised on the expectation that the UN would implement an internal mechanism for the resolution for civil disputes arising out of its presence in a country. Section 29 of the Convention requires the UN to "make provisions for appropriate modes of settlement of disputes arising out of contracts and other disputes of a private law character." The claims of negligence, gross negligence and recklessness are quintessentially private law claims. Yet no mechanism to resolve disputes has been established in Haiti, or any other country.
As the incalculable toll of death and suffering has continued to rise, the UN has been unable to raise [PDF] more than a fraction of the funds needed for its cholera eradication plan, including improvements to the country's fragile water, sanitation and health infrastructure. The UN's intransigence undermines its credibility and may deter other donors from making contributions, reluctant to entrust an organization that shirks its clear responsibility, both morally and legally, for causing the epidemic.
After the UN's denial of responsibility, those associated with the organization initially circled the wagons. But many close to the organization are now speaking out and urging the UN to take responsibility for the suffering it caused. In a report written in February and delivered to the Human Rights Council in March, Gustavo Gallon, UN Independent Expert on Human Rights in Haiti, lambasted the UN for its failure to take responsibility for the epidemic, and pushed the UN to set up a commission "to enable damages to be recorded, corresponding benefits or compensation to be paid, the persons responsible to be identified, the epidemic to be stopped and other measures to be implemented." Last October, UN High Commissioner for Human Rights Navi Pillay called for the cholera victims to be compensated. Kul Guatam, former UN Assistant Secretary-General from Nepal, also supports compensation, stating his "wish a creative solution could be found whereby the Haitian victims would get some modest amount of financial support on humanitarian grounds, without the UN having to give up its diplomatic immunity," which would require "some enlightened governments and foundations...to offer help, not as a matter of legal obligation, but as a matter of humanitarian consideration." Stephen Lewis, who served as Canadian ambassador to the United Nations and worked for the UN as Deputy Director of UNICEF and as UN Special Envoy for HIV/AIDS in Africa, backs the litigation against the UN, stating "I think it is unequivocal, the responsibility of the United Nations for the cholera outbreak." Bruce Rashkow, formerly of the UN Office of Legal Affairs and the US Mission to the UN, questioned how the claims could be considered to fall outside the UN's obligations to settle, and noted that "as the head of the UN legal office that routinely handled claims against the Organization for some ten years, I did not recall any previous instance where such a formulation was utilized."
Yet even after three class action lawsuits, multiple scientific studies and overwhelming evidence of its culpability, the UN continues the deafening silence on its responsibility for bringing cholera to Haiti. And it continues to evade its financial obligation to vanquish the waterborne disease from the already impoverished island and to make those who have suffered whole. The UN's legitimacy is premised on its own respect for the principles it espouses. Despite a charge that includes modeling foundational principles of democracy, accountability and stewardship for humanity, however, the UN refuses to be held to that standard itself. As Dunne's letter notes, "The position taken by the UN runs the risk of encouraging governments or courts around the world to lift the UN's immunity, which is not in the interest of either the UN or the United States."
The UN's compliance with international legal standards is critical to upholding its lofty mission of encouraging justice and the rule of law. Dunne's letter noted that his organization is "particularly concerned that the position taken by the UN in this matter is not consistent with its obligations under the 1946 Convention and runs the risk of undermining not only UN immunity worldwide but also in the US as the host State of the Organization and in New York City as host City. It also exposes the UN to charges that it is using its treaty-based immunity to deny victims of a cholera epidemic any recourse to justice." Given the compelling legal arguments for UN liability, the New York Bar Association has joined many others in imploring the US, "to call upon the UN to perform its obligations under that Convention and provide an appropriate mode for settling the cholera claims." The rising number of cholera victims have already waited long enough for justice.
Lauren Carasik is a Clinical Professor of Law, and Director of the International Human Rights Clinic at Western New England School of Law. She received her JD from Northeastern University School of Law. Prior to joining the faculty of Western New England School of Law, professor Carasik opened a solo practice solo, concentrating in disability rights and mental health law.
Suggested Citation: Lauren Carasik, New York Bar Association urges U.S. to push UN to accept responsibility for cholera epidemic in Haiti, JURIST - Forum, May 10, 2014, http://jurist.org/forum/2014/04/lauren-carasik-cholera-haiti.php
This article was prepared for publication by Brent Nesbitt, Section Editor for JURIST's Commentary service. Please direct any questions or comments to him at firstname.lastname@example.org