Ten Years After the Outbreak of Cholera in Haiti, Justice for the Victims Has Yet to Come

[Mona Ali Khalil is the Director of MAK LAW INTERNATIONAL and an internationally recognized public international lawyer with 25 years of UN and other experience, including as a former Senior Legal Officer in the UN and the IAEA, with expertise in peacekeeping, peace enforcement, disarmament and counterterrorism.]

Today, 20 October 2020, is the tenth anniversary of the cholera outbreak in Haiti. On this sad occasion, it is important to commemorate the lives of the nearly 10,000 people who died and to reiterate the call for justice for their sake, for the sake of their families and for the sake of the hundreds of thousands who were affected.

On 20 October 2010, the outbreak of cholera was confirmed in Haiti — for the first time in a century. The lethal outbreak came on the heels of a catastrophic earthquake that killed over 200,000 people and devastated the impoverished country’s infrastructure.  From the outset, credible reports linked the outbreak to a strain of cholera originating in Nepal and traced the source of the spread to the Mirebalais camp housing the Nepalese peacekeepers serving with the UN Stabilization Mission in Haiti (MINUSTAH). 

The UN’s failed response to the cholera outbreak — including its likely role in the introduction and spread of the disease — betrayed its legal and moral responsibility as defined in the relevant legal instruments, principles and policies of the United Nations.

Immunity and accountability are two co-equal pillars of the Convention on the Privileges and Immunities of the United Nations (the UN Convention). Accountability is, in fact, required not only by the applicable law but also as a matter of established policy and practice of the Organization.  In the case of cholera in Haiti, the UN Secretariat, the other UN principal organs and UN Member States all failed to uphold the legal and moral responsibility of the United Nations. If even one of them had fulfilled its role fully, then justice would have been done. Sadly, with the notable exception of the human rights special rapporteurs, all have thus far failed to do so.

Compounding the myth that the immunity of the United Nations ultimately amounts to impunity, the UN not only asserted its immunity under Article II of the UN Convention, it also refused, contrary to the letter and spirit of Article VIII of the UN Convention, to offer the victims and their families any mode of dispute settlement.  Section 29(a) of the latter Article provides that the UN “shall make provisions for appropriate modes of settlement of…disputes of a private law character to which the United Nations is a party”.  The UN’s official position, as articulated by the former UN Legal Counsel, in her letter to the plaintiffs’ lawyers of 21 February 2013, was that the claims in question were not private law claims but rather “political and policy matters” outside the scope of the UN’s obligation to settle.

Ultimately, the plaintiffs resorted to legal action in the US courts which rightly upheld the UN’s immunity under Article II.  In writing the panel’s ruling, Judge José A. Cabranes of the United States Court of Appeals for the Second Circuit found that “the United Nations did not lose its legal immunity even if it failed to give the plaintiffs a chance to seek a settlement, as required by an international convention”.

The failure of which the ruling speaks remains a stain on the UN’s legal and moral credibility.

Is the United Nations above the law?

To be true to the objects and purposes of the U.N., the answer must be a resounding no. Any discussion of the legal framework applicable to the United Nations must begin with the UN Charter.  In its Preamble, the UN Charter expresses the determination “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”. It would be hard to imagine that the Organization is not itself bound by the same obligation to respect legal obligations and fulfill them in good faith that the Charter demands of its Member States.

Article II, Section 2 of the UN Convention stipulates absolutely and unconditionally that “[t]he United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity…”.

As mentioned above, Section 29(a) of Article VIII of the UN Convention provides that the UN “shall make provisions for appropriate modes of settlement of…disputes of a private law character to which the United Nations is a party”. The word “shall” creates an obligation as absolute as the immunity accorded in Section 2 of Article II.

There is nothing in the UN Convention that explicitly requires the Organization to fulfill its obligations under Article VIII, in order to enjoy the immunity it is accorded in Article II of the UN Convention. Nonetheless, both provisions should be fully implemented and equally respected. It is a cardinal principle of treaty law, codified in Article 31 of the Vienna Convention on the Law of Treaties, that a treaty must be “interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.  

Moreover, while the Organization is not itself a party to the Convention, it is reasonable to assume that the authors of the Convention, in drafting it, and the General Assembly, in adopting it, expected the Organization to fulfill the legal obligations ascribed to it in the same manner they expected States parties to the Convention to uphold the status, privileges and immunities accorded to it  — if not as a matter of good faith under treaty law as articulated in the UN Charter and the Vienna Convention —  then, especially where innocent lives are lost, as a matter of due process and fundamental fairness.

Who can hold the UN accountable?

In an ideal world, the UN should be the first to hold itself accountable – not only to live up to its own principles and policies but also to be a more credible advocate when it calls upon its Member States to do so. In those hopefully rare but regrettable instances where the Organization refuses mediation, arbitration or any other form of dispute settlement, what recourse do the victims, their families or other legitimate claimants have?

On behalf of its people, the Haitian Government, as the host government to MINUSTAH, had a legal right to  seek an advisory opinion from the International Court of Justice – an advisory opinion which pursuant to Section 30 of Article VIII of the UN Convention would have been binding on the parties.

Similarly, the US Government, as host government to the UN Headquarters, could have invoked Article VIII while at the same time recognizing the UN’s immunity under Article II. Far from reminding the UN of its obligations, however, the US Government was rumoured to have instructed the then Secretary-General not to accept any liability that would add to its assessed contribution under the UN regular budget.

The Security Council, which established MINUSTAH, or the General Assembly, which is responsible for its expenses, could have requested an official investigation, called for implementation of Article VIII of the UN Convention or requested an advisory opinion in accordance with the ICJ Statute.

What if there is no Member State willing to intervene or principal organ willing to act?

Once upon a time, the UN upheld the dictum “justice should not only be done but also be seen to be done”. The actions and reports of former Secretaries-General not only acknowledged the legal and moral responsibility of the Organization but also paid compensation for harm caused by its peacekeepers. In the case of Haiti, however, the UN did not live up to this legacy.

The only measure of justice came as a result of the courageous stand of Philip Alston, the UN Human Rights Council Special Rapporteur on Poverty, and several of his fellow special rapporteurs, who in his report to the General Assembly, denounced the UN Secretariat’s position.   On 1 December 2016, exactly a month before his term of office ended and more than six years after the cholera outbreak in Haiti.  then Secretary-General, Ban Ki-moon, made the following apology which he read partially in Creole in tribute to the Haitian people:

“On behalf of the United Nations, I want to say very clearly: we apologise to the Haitian people. We simply did not do enough with regard to the cholera outbreak and its spread in Haiti. We are profoundly sorry for our role.

“Eliminating cholera from Haiti, and living up to our moral responsibility to those who have been most directly affected, will require the full commitment of the international community and, crucially, the resources necessary.

“The United Nations should seize this opportunity to address a tragedy that also has damaged our reputation and global mission. That criticism will persist unless we do what is right for those affected. In short, UN action requires Member State action.”

On the same day, the outgoing Secretary-General also set up a voluntary trust fund to raise $200 million for “those Haitians most directly affected by cholera, centred on the victims and their families and communities”. The latter trust fund was the second trust fund established by the Secretary-General. The first trust fund, also for $200 million, was set up earlier “to respond to and reduce the incidence of cholera, through addressing Haiti’s short- and longer-term issues of water, sanitation and health systems and improved access to care and treatment.”

The Secretary-General’s long overdue apology was not sufficient to do right by the dead and living victims of the cholera outbreak. The apology only addresses the UN’s failings in responding to the outbreak and spread of cholera in Haiti. Most tragic of all, the UN’s apology purports to hand over such yet-to-be-funded largesse as aid and not as any form of compensation befitting the large-scale death and illness that had befallen the Haitian people. Even worse, it treated the victims as objects of charity rather than as rightful claimants of a legitimate demand for compensation.

Nearly four years later, the two trust funds are as empty and as inadequate as the apology. So much so that the UN human rights special rapporteurs recently sent a renewed appeal to the current Secretary-General, Antonio Guterres, in which they reportedly “excoriate the world body for making ‘illusory’ promises to the Haitian people. They note that having pledged $400m for a cholera clean-up mission, the UN has raised just $21m and spent ‘a pitiful’ $3m”.

Will Justice Prevail?

In a political environment plagued by multiple failings and successive crises, including the ongoing Covid-19 pandemic, it may be necessary to resort to other measures including public diplomacy and social media to raise awareness and mobilize action to ensure that justice prevails. Such measures can form yet another form of accountability — public accountability. If justice for the Haitian victims is too expensive, then civil society must ensure that injustice is not too cheap.

Justice will not visit the people of Haiti unless and until —

• the UN properly investigates its role in the introduction and outbreak of cholera in Haiti, including the reasonableness of the actions taken by the Nepalese peacekeepers before their deployment and the standards of care applied by the contractors at the Mirebalais camp;
• the Government of Haiti demands justice for its citizens — individually and collectively;
• at least one UN principal organ upholds the Charter principles and the UN Convention;
• Member States put forth the necessary resources to fund the two trust funds.

On this the tenth anniversary of the Haiti cholera outbreak, hope remains that justice will some day visit Haiti.