The UN’s Apology Won’t Heal Disease, But It’s A First Step to Justice

by Beatrice Lindstrom

[Beatrice Lindstrom is a Staff Attorney at the Institute for Justice & Democracy in Haiti and counsel for plaintiffs in the lawsuit Georges v. United Nations.]

When the outgoing Secretary-General issued his long-overdue apology for the UN’s role in Haiti’s cholera epidemic, he turned a corner on six years of silence and stonewalling. At the Bureau des Avocats Internationaux—the Haitian public interest law office that has led the charge against the UN for introducing the disease to Haiti—about 100 victims and activists were gathered to watch a live-stream of the statement in Port-au-Prince. They broke into spontaneous cheers and applause when the apology was delivered.

“This was a victory for us today. It wasn’t easy. We sent thousands of letters and took to the streets to get this victory, for them to say today that they were responsible. They said that, and we thank them…” said Desir Jean-Clair, a cholera survivor who has been organizing for justice, in a statement following the apology.

A public apology has been a central demand of the victims, along with cholera eradication and compensation for families who have suffered. While the disease has caused thousands of deaths and massive suffering since UN peacekeepers contaminated Haiti’s largest river with cholera-laden sewage in 2010, the UN’s failure to own up to its actions has itself been an affront to victims’ dignity. By continuously denying responsibility in the face of overwhelming scientific evidence to the contrary, and by hiding behind immunity to avoid an independent hearing on the merits of victims’ claims, the UN turned its back on Haitians and on its own human rights principles. Against this background, an apology from the Organization’s top leadership is a fundamental component of a just UN response.

As the Secretary-General acknowledged, however, “apologies don’t heal disease” – a play on a Haitian proverb that states that apologies do not heal scars. On December 1, he also launched a $400 million plan that will bring cholera control measures to Haiti and material assistance to victims. The material assistance is intended as a “concrete and sincere expression of the Organization’s regret,” and could take the form of community projects, death benefits to surviving families, or some combination thereof. [U.N. Doc. A/71/620]. Importantly, the plan promises to “place victims at the centre and be responsive to their needs and concerns” by engaging a nationwide consultation process on remedies.

These actions will be crucial steps to fulfilling the UN’s legal and moral obligations to the victims. Under Section 29 of the Convention on Privileges and Immunities of the United Nations and the Status of Forces Agreement signed with Haiti, the UN has a well-established obligation to address claims for compensation submitted by third parties “for personal injury, illness or death arising from or directly attributed to MINUSTAH.” An appropriate remedy, even if fashioned outside of this legal framework, is critical to staving off criticisms that the UN’s obligations have no meaning.

Yet the refusal to accept legal responsibility for the outbreak, and the decision to treat the new response as an expression of “solidarity” rather than as remedies for a legal wrong, complicates the UN’s ability to actualize the new plan. Whereas the General Assembly has an obligation to meet the Organization’s legal liabilities through assessed contributions [Memorandum to Controller, 2001 U.N. Jurid. Y.B. 381], the UN is currently relying on voluntary contributions from Member States, agencies, and even private individuals. Thus far, this has not generated adequate pledges to turn the plan into a reality.

On December 16, the General Assembly unanimously adopted a resolution calling on all Member States and other actors to provide their full support for the new approach.  This is an important signal that the Organization’s membership must step up and do its part. But to actually right the UN’s wrongs in Haiti, and avoid criticisms that the Organization operates above the law, governments must now follow through on this acknowledgement with actual funding

The UN must also ensure that it does not foreclose the option of providing cash payments to victims out of a misguided aversion to anything that could resemble compensation grounded in legal liability. In his report to the General Assembly, the Secretary-General outlined a series of challenges with direct payments, including identification of victims and meeting burdens of proof in a country with limited documentation. These challenges have been overcome in other similar contexts around the world, and merit full study and victim input to inform the way forward.

As the report notes, the new response “will inevitably be an imperfect exercise.” Full funding, and involvement of victims throughout the elaboration of the plan, will be critical to ensuring that the plan still translates into justice for cholera victims and lives up to its promise of healing the UN’s credibility in Haiti and the world.

http://opiniojuris.org/2017/01/02/the-uns-apology-wont-heal-disease-but-its-a-first-step-to-justice/

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