12 Dec UN Apologies for Cholera Outbreak: “Moral Responsibility” and Legal Escapism”
[Pierre Bodeau-Livinec is Professor of Public Law at University Paris-Nanterre and the Managing Editor of The Law and Practice of International Courts and Tribunals.]
As Kristen Boon very aptly points out, apologies given on December 1 by Secretary-General Ban Ki-moon for the role of the United Nations with regard to the cholera outbreak in Haiti can only be welcomed as a highly significant “change of direction” in the conduct adopted by the UN since 2010. At the same time, the Secretary-General’s statement and the report introducing “A new approach to cholera in Haiti” raise a number of questions – and doubts – from the standpoint of international law, especially as far as issues of responsibility are concerned. This post purports to offer modestly some preliminary elements of reflection and background on some of these issues.
The first one relates to the (non-)admission of any legal wrongdoing or, to put in the terms of the 2011 ILC’s Articles on the Responsibility of International Organizations, of any “internationally wrongful act” actually committed by the UN in relation to the cholera outbreak. Obviously, the language used by the Secretary-General to offer the apologies of the Organization has been carefully crafted to avoid giving any sense of a legal acknowledgement in that respect: albeit speaking “very clearly” and in three successive languages (Creole, French, and English), Ban Ki-moon rather obscurely offers apologies, “on behalf of the Organization”, “for our role.”
The report fails to provide further clarification in that respect. While one will easily accept that the package of material assistance genuinely “represents a concrete and sincere expression of the Organization’s regret for the fact that the people of Haiti suffered yet another blow” (Report, para. 6), the primary concerns of the UN largely seem to ignore legal considerations. Justified by a sense of “moral responsibility to the victims of the cholera epidemic”, the new approach intends to provide material support to the Haitian people and “to protect the integrity of its peace operations in the future” (Report, para. 4). By contrast, the report fails to provide, even summarily, any legal assessment of the involvement of the Organization in the cholera outbreak. As to the crucial question of the source of the epidemic, it merely quotes the conclusion made by the independent panel of scientific experts that “personnel associated with the Mirebalais MINUSTAH facility were the most likely source” of the outbreak (Report, para. 22). The Organization makes no further comment and forgets that the experts, in the same article, expressly stated that “The response of the UN to date has been not to focus on the legal issues of the introduction of cholera”. In a rather paradoxical twist, it could even be argued that the “New Approach” report marks a legal step backwards if compared with the famous letter sent by the former UN Legal Counsel on 21 February 2013: as is well-known by those who have followed the cholera affair, the letter refers to undetailed “political and policy” considerations in order to deny the claims made by lawyers of Haitian victims of cholera as not receivable under Section 29 of the 1946 Convention on the Privileges and Immunities of the UN; it did not induce that the claims were legally unfounded.
One may however argue that responsibility does not need to be expressly acknowledged to exist as a matter of international law. Providing reparation may also serve as substantiating a form of responsibility which would not say its name: as explained by the ILC in providing examples of satisfaction as a mode of reparation, “Although [those] examples […] do not expressly refer to the existence of a breach of an obligation under international law, they at least imply that an apology or an expression of regret by an international organization would be one of the appropriate legal consequences for such a breach” (Commentary to Art. 37 of the ARIO, para. 1, available here). The commentary then refers to expressions of regret offered by the Secretary-General with regard to the fall of Srebrenica and the 1994 genocide in Rwanda. Arguably, the apologies given by the Secretary-General on 1 December could fall in a similar category and be considered as an implicit form of reparation for the harm suffered by the Haitian community. It remains however that the United Nations has not endorsed such a view: in its own comments on the Draft Articles on the Responsibility of International Organizations, the United Nations came back to the Srebrenica and Rwanda precedents mentioned by the ILC in the context of satisfaction but refrained from “attempting to qualify the nature of those expressions of regret in relation to events still loaded with heavy moral and political implications”.
The “New approach” of the United Nations to the cholera outbreak in Haiti obviously calls for a more detailed legal analysis. It leaves completely aside, for example, important issues as to the respective obligations of the Organization and its Member States in “ensuring the fulfilment of the obligation to make reparation” (Article 40 ARIO). As it stands, it regrettably tends to show that the Organization consistently avoids facing the legal consequences of its conduct in Haiti, as if “responsibility” in the legal sense would still be too bad a word in the UN corridors.