The Haiti Cholera Case against the UN

Two years ago this month, an unprecedented cholera outbreak in Haiti left more than 7,500 Haitians dead.   As the New York Times reported in a front page article in May 2012,

Lightning fast and virulent, it spread from here through every Haitian state, erupting into the world’s largest cholera epidemic despite a huge international mobilization still dealing with the effects of the Jan. 12, 2010, earthquake….  Epidemiologic and microbiologic evidence strongly suggests that United Nations peacekeeping troops from Nepal imported cholera to Haiti, contaminated the river tributary next to their base through a faulty sanitation system and caused a second disaster.

A BBC report from earlier this week indicates that the cholera epidemic continues.

A year ago, a Boston based group called the Institute for Justice and Democracy in Haiti (IJDH) filed a trail blazing class action against the UN on behalf of over 5,000 plaintiffs.  The petition asks for compensation for the victims ($50,000 for injured and $100,000 for deceased), better water sanitation, and a public acknowledgement of responsibility.  IJDH alleges that the cholera outbreak is a violation of Haitian law and certain international obligations, such as the right to life.

IJDH filed the complaint under a standard clause in the Status of Forces Agreement (SOFA), signed by the UN and Haiti, that provides for a third party claims procedure before a standing claims commission for disputes of a private-law character.  No such commission has been established in Haiti, nor, it appears, anywhere despite a 1996 decision by the Secretary General that the standard provision should be retained so that the UN does not act as its own judge.  To date, according to the lawyers, the UN acknowledged receipt of the claim, but it has not responded on the substance.   Moreover, there is very little information available on the procedure through which the UN considers such claims internally.  The IJDH lawyers, understandably, have expressed dismay by the lack of transparency with which the case is being assessed.  Indeed, the UN’s handling of this high profile claim stands in stark contrast to its stated position on the rule of law and procedural regularly in other contexts.

The UN’s delay may be attributable to a few factors:

• First, the UN has taken the position that cholera was not conclusively introduced by the Nepali peacekeepers, and consequently, an open question remains as to ultimate responsibility.
• Second, the financial implications for the UN are profound.  Not only will a settlement create a huge financial burden on the organization, but it might deter future peacekeeping efforts.
• Finally, the case is precedent setting. It will unquestionably influence how mass claims against the UN are lodged and resolved in the future.

An alternate theory of the case (although one not raised by the IJDH) might conceivably be that the UN is liable under the 2011 Draft Articles on the Responsibility of International Organizations.  These Articles create norms regarding the breach of international obligations by act or omission for International Organizations (IOs).

Although relevant, in a general sense to IO accountability, there are a few obvious hurdles to applying the Draft Articles in this case.

• First, the Draft Articles anticipate state to state, IO to IO, or state to IO claims.  They are not structured around individual claims unless there is a breach of an erga omnes obligation.  This restrictive approach to individual claims was heavily criticized during the development of the draft articles, but it remains a real constraint on the standing of individual applicants without state or IO backing.
• Second, the claimants would have to prove the UN breached a primary rule of international law, such as the right to health or a provision of the SOFA, before the secondary rules of responsibility apply.
• Third, due to the preceding earthquake and its catastrophic effects on the infrastructure in Haiti, the UN might argue its duty was excused or modified.
• Fourth, there might be an issue of attribution, in that multiple actors played a role in the failure to contain the cholera outbreak, including independent contractors, peacekeepers from Nepal, the Haitian state and the UN itself.
• Finally, the Draft Articles are not binding.  The International Law Commission (ILC) described them as under “progressive development.”

Whether or not the Draft Articles on the Responsibility of IOs are eventually applied however, the UN itself has generally resolved private law claims from peacekeeping missions on an ex gratia basis, providing compensation for injuries sustained during peacekeeping missions without acknowledging liability.  Moreover, this case gives a taste of the types of claims which may eventually be brought against the UN – and other IOs – pursuant to the Draft Articles.

This is clearly a very difficult case for the UN, and one which brings it increasingly into the public eye as it grapples with a multi-billion dollar claim.   If, when and how the UN will compensate for this very public tragedy in an already beleaguered nation, however, remains to be seen.

Want to know more?   For those of you in the New York area, come to the 9 a.m. Haiti Cholera panel at the International Law Weekend on October 27.  Lawyers from the IJDH will be discussing the status of the petition and their efforts to address the issue with the UN.