Remedying UN Abuses by Forcing the Host State’s Hand: Current Case Calls for the Haitian Government to Trigger a Standing Claims Commission

[Frédéric Mégret is an Associate Professor of Law at McGill University Faculty of Law.]

On the 26^th September, a group of diligent Haitian lawyers headed by human rights defender Patrice Florvilus requested an emergency injunction (“en référé”) before the Tribunal de Première Instance de Port-au-Prince against the State of Haiti, that would compel it to trigger the creation of the standing claims commission, as anticipated by the Status of Forces Agreement in effect with the United Nations since the creation of MINUSTAH in 2004. The goal of triggering such a commission is indirectly to force the United Nations to finally own up to its responsibilities following the cholera epidemic caused by peacekeepers in 2010, and which has caused more than 10, 000 casualties.

As attempts to challenge the UN’s immunities before domestic courts have faltered, this is a remarkable attempt to deal with the accountability fallout of that crisis through a type of mechanism whose principle has always been anticipated in SOFAs but has, extraordinarily, to this date never been set up, much to the prejudice of victims of UN failures and abuses. It is also a quite striking effort to use the resources of domestic law to potentially decisive international effect. Nonetheless, almost a month later, victims and their lawyers still await the outcome of that ‘urgent’ request, whilst the Haitian government has asked the judge to consider himself incompetent. I want to suggest a few thoughts about how this sort of case could lead the way in terms of seeking to hold the UN accountable and how it underlines three crucial issues.

First and most specifically, it highlights the potential role of the host state in securing the accountability of peace operations. In a forthcoming article in the International Organizations Law Review as part of a symposium issue co-edited with Kristen Boon, I argue that the attention to remedying UN abuses in peace operations, both of the cholera in Haiti or sexual violence types which have most garnered headlines, has historically and structurally largely written off the role of the host state. Internationally, accountability demands are typically understood as addressed to the UN as such, as if the host state did not particularly have a role to play. At best, the debate has focused on the respective roles of the troop contributing state and the UN. However committed one may be in principle to the idea of UN accountability, the time may have come to concede that efforts to bypass UN immunity are extremely constrained by the structure of international law.

By contrast, local actors often address strong demands to the host state as its obvious interlocutor, and this has certainly been the case with Haiti where civil society, lawyers and some parliamentarians organizations have long been active in clamoring for reparations. In this context, I argue that the tendency to ignore the host state in international law discourse is acutely problematic, not least because it tends to reproduce some of the very features that are the cause of human rights abuses in peace operations in the first place: a structural imbalance between local populations and outside interveners; a host state that is imagined as lethargic; and an ensuing sentiment of impunity among outside “saviours.”

In fairness, however, I also recognize that host states have often been nowhere to be seen when it comes to taking up their citizens’ claims against international organizations, notably in peace operations, often capitulating their sovereign authority in the light of abuses. In perusing what may be some of the causes of that inertia, I trace them to a variety of factors: a weak cultures of rights, the fact that marginal victims (notably women, children and the poor) are often among those most impacted, but also the problematic dependency of the host state (and its coopted elites) on intervening peace operations. I nonetheless make the case that, in the rush to provide functional remedies for ‘victims’, we should not give up on the host state or risk crafting solutions that make worse some of the very pathologies that one is seeking to remedy.

Second, the case also illustrates much more broadly the continued relevance of what might be described as sovereign protection in the context of human rights claims and the need to remedy them. Over the last 60 years, tremendous efforts have been developed to provide an international architecture of international human rights protections. This architecture has largely replaced a now relatively arcane earlier model of rights protections, focused on the state’s intercession on behalf of its nationals in foreign states, typically in the form of what is known as diplomatic protection. With the new supranational human rights guarantees, the need for sovereign protection in defense of rights came to be largely neglected, as victims of human rights abuses were supposedly put in control of their own grievances, which they could increasingly bring against their own state before international bodies (this was, of course, a best case scenario applicable only in some regions in the world, but its allure was sufficient to largely displace other ways of thinking about human rights protection). Reprising an old Arendtian intuition that the worst thing that can happen to human beings from a human rights point of view is to not have a sovereign interceding for them, by contrast, I argue that the time may have come to reassess our disproportionate reliance on supranational remedies, and to rediscover anew the occasional merits of the robust taking up of one’s cause by one’s sovereign, as has been done recently for example in relation to migrant workers.

In the general economy of international law, international organizations are typically thought as protectors from the state. What is less envisaged traditionally is the possibility that states would be protectors from international organizations. Yet it has become increasingly obvious that it is occasionally for sovereigns to act as ‘shields’ against such institutions. In a complex international system where international organizations increasingly assume outsize governance functions, we can no longer assume their benevolence simply because they are international. In making this argument, I draw on the large body of scholarship in the last decade that has emphasized the degree to which international institutions might turn illiberal (e.g.: the famous case of the Security Council anti-terrorism committee, but also human rights violations in peace operations and international administrations) in turn requiring states to devise innovative solutions to stand up to them.

The UN’s startling behavior in Haiti or systemic sexual abuse problem and their aftermath happen to be cas d’écoles of the inadequacies of relying only on well-intentioned but ultimately doomed transnational civil society efforts, not to mention the (somewhat scarce) good will of international organizations. Not only is the potential role of Haiti in this context evident given its power to trigger the creation of a standing claims commission and generally create a diplomatic and political steer; but relying on it may better disrupt some troubling facets of the political economy of peacekeeping, and contribute to restoring Haitian sovereignty to its full dignity. Although quite different from the old horizontal state-to-state diplomatic protection, this vertical state-to-international organization sovereign protection exhibits and renews some of its fundamental features. There is also a role to play for the host state when it comes to combating a culture of sexual abuse in peacekeeping operations, whether by vetting incoming troops or more conditionally granting consent to their operation.

Third, the case is an intriguing example of domestic litigation for international objectives, what one might describe as part of an increasing movement towards “international public interest litigation.” In the 1990s, Harold Koh coined the phrase “transnational public litigation” to describe a series of cases in the US wherein individuals sued states or private agents, typically for grave violations of human rights. This was perceptive, but it was also heavily indebted to the rather idiosyncratic circumstances of the then ascendant US Alien Torts Claims Act, and focused on holding the states or individuals sued accountable as such across borders.

The Haitian type of litigation, by contrast, seems to be part of a different and perhaps more discreet type of tradition, one which consists in suing one’s own state, under administrative or constitutional law, in order to have it adopt a certain course internationally and as a matter of foreign policy. I would lump it with the case against Costa Rica requiring it to desist from participating in the invasion of Iraq on the basis of its pacifist constitution, the case against the Canadian government for the sale of armed carriers to Saudi Arabia allegedly used for repressive purposes, the lawsuit against the US alleging that military cooperation with Israel is in violation of the NPT treaty or the recent case against the Dutch government forcing it to drastically cut down its carbon emission. These are part of a very recent and promising renewed interest in atypical transnational legal strategies.

However, unlike these cases the Haitian case is part of a series of cases where the interveners are acting more directly for their own benefit in that they are of course soliciting a foreign policy change in their favor– sovereign protection. In that respect, a closer type of case may be the likes of Abbasi v Secretary of State for Foreign and Commonwealth Affairs, (2002) which sought the UK Foreign Office to exercise diplomatic protection over British nationals in Guantanamo. An even closer category, because operating entirely within territorial confines, are those cases requiring governments to solicit the delisting of some of their nationals from the Council’s terrorism sanctions lists. The fundamental logic, however, is the same. Constraining the state from below is not typically how international law enforcement or compliance is thought of. But, whilst rare, such cases show the potential of a strategy of holding one’s state to its international law commitments not in more or less hazardous international fora, but from within the relatively solid ground of domestic law and processes.

It is particularly noteworthy in this context that the Haitian diaspora has, as part of a larger trend, been vocal in its demands that the Haitian government make a move, demonstrating as early as 2013 in front of UN Headquarters to much effect. Increasingly solutions to complex and intractable legal problems will require the piecing together of domestic and international mechanisms, the mobilization of both internal and external constituencies, and the collaboration of many different types of legal expertise. From the country that invented decolonization a century before it became fashionable, comes a shining example of that legal creativity, the need to decolonize peacekeeping and rights protection, and the possibilities of constructing the rule of law from below. It is hoped that the demand will be heard, and that it will be heard promptly and fully.