Cholera in Haiti: UN Report of the Special Rapporteur on extreme poverty and human rights
Note from Aid.Works:
The text of the “Report of the Special Rapporteur on extreme poverty and human rights” written by Philip Alston is taken from an optical scan of the document, which was obtained by journalist Jonathan M. Katz two months ahead of its planned date of publication. Katz subsequently shared the document via the New York Times Magazine on August 19, 2016. This is not a final version of the report. If you note errors in transcription, please comment below. Footnotes are excluded but can be found on the original document.
The two photos shared here picture Claudette Brianvil, the first known cholera victim in Port-au-Prince. She was a mother of four. She died on November 9, 2010. The photos are not an original part of the report.
Report of the Special Rapporteur on extreme poverty and human rights
Item 68b of the provisional agenda
Promotion and protection of human rights: Human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms
Note by the Secretary-General
The Secretary-General has the honour to transmit to the General Assembly the report of the Special Rapporteur on extreme poverty and human rights, Philip Alston, submitted in accordance with Human Rights Council resolution 26/3.
Cholera arrived in Haiti in October 2010, soon after the arrival of a new contingent of United Nations peacekeepers from a cholera-infected region. The scientific evidence now points overwhelmingly to the responsibility of the peacekeeping mission as the source of the outbreak. 9,145 persons have so far died and almost 730,000 have been infected. To date, the United Nations has denied responsibility for the outbreak, rejected all claims for compensation, refused to establish any procedure to resolve the resulting disputes, and has relied upon a claim of absolute immunity in defending litigation brought by victims. This policy of abdicating responsibility relies on a claim of scientific uncertainty that is no longer sustainable and an unpublished legal opinion that the resulting claims are not “of a private law nature” and are thus not receivable. Based on what is known of the legal analysis, it is deeply flawed.
The UN’s policy is morally unconscionable, legally indefensible, and politically self-defeating. It is also entirely unnecessary. In practice, it jeopardizes the immunity by encouraging arguments calling for it to be reconsidered by national courts; it upholds a double standard according to which the UN insists that Member States respect human rights, while rejecting any such responsibility for itself; it leaves the UN vulnerable to eventual claims for damages and compensation in this and subsequent cases which are highly unlikely to be settled on terms that are manageable from the perspective; it provides highly-combustible fuel for those who claim that UN peace-keeping operations trample on the rights of those being protected; and it undermines both the overall credibility and the integrity of the Office of the Secretary-General.
This report outlines why a new approach is urgently needed and suggests what it might look like in broad outline. The starting point is that there should be an apology and acceptance of responsibility in the name of the Secretary-General. Consideration then needs to be given to constructing a policy package to address the need for compensation to the victims.
II. The source of the outbreak, and the United Nations’ response
A. The scientific evidence
B. The United Nations’ response
C. The United Nations’ legal response
D. Responses to the United Nations position
E. The role of States
1. This report, on the responsibility of the United Nations in relation to cholera in Haiti, is submitted in accordance with Human Rights Council resolution 26/3.
2. Cholera arrived in Haiti in October 2010, just a few days after the arrival of a new contingent of peacekeepers to join the United Nations Stabilization Mission in Haiti (MINUSTAH). They had come from a country in which an identical strain of the disease was prevalent. More than 9,000 persons have so far died in Haiti as a result of the epidemic that ensued. The scientific evidence points overwhelmingly to the conclusion that the arrival of Nepalese peacekeepers and the outbreak of cholera are directly linked to one another. But the United Nations has never acknowledged its responsibility for the outbreak, rejected all claims for compensation, refused to establish any procedure to resolve the disputes over its responsibility, and relied upon a claim of absolute immunity in litigation brought by victims seeking redress in United Slams courts after having blocked all other attempts at resolution, In essence, the United Nations has proceeded as though its responsibilities are limited to containing the epidemic, rather than recognizing its responsibility towards all those who have died or been affected by the disease. To justify this policy of abdicating responsibility, the United Nations has relied solely on an undisclosed internal legal opinion, the thrust of which has been divulged, but the tent of which presumably remains confidential. In the view of the Special Rapporteur, and of the vast majority of expert commentators, the legal approach adopted by the Organization is deeply flawed.
3. The Special Rapporteur considers that the United Nations’ existing approach of simply abdicating responsibility is morally unconscionable, legally indefensible, and politically self-defeating. The abdication approach is not only unsustainable, it is also entirely unnecessary. There are powerful reasons why the Secretary-General should urgently adopt a new approach, one that respects the human rights of the victims, while protecting United Nations’ immunity, honoring its commitment to the rule of law, and upholding the integrity of the peacekeeping system.
A. The role of the Special Rapporteur
4. The present report is submitted by the Special Rapporteur on extreme poverty and human rights. Cholera has proven to be a major challenge for the poorest country in Latin America and the Caribbean. Haiti ranks 163rd out of 188 countries on the Human Development Index for 2015, and United Nations Development Programme estimates that over 42 per cent of its population live in or near multidimensional poverty. World Bank figures are even more distressing, indicating that more than 6 million (59%) Haiti’s population, of 10.4 million live under the national poverty line of US $2.42 per day and over 2.5 million live under the national extreme poverty line of US $1.23 per day.
5. Cholera has thus far infected at least 4% of Haiti’s entire population. It has had its greatest impact on those living in poverty who are poorly placed to cope with the consequences of the disease or to take the precautions necessary to reduce the risks involved. It has also diverted scarce resources in an already impoverished country.
6. The motivation for preparing the report arises from the previous joint efforts by the Special Rapporteur in close collaboration with four other mandate-holders — those concerned with Haiti, health, housing, and water and sanitation. While this report is not jointly authored, it builds upon the shared concerns of this group of mandate-holders and seeks to expand upon the positions that they have jointly expressed in previous statements. The mandate-holders drew strong encouragement from a letter sent to them on 25 February 2016 by the Deputy Secretary-General in which he welcomed their “offer to engage further on this matter and discuss what further steps the United Nations could take, in keeping with its mandates, to assist the victims of cholera and their communities.” After consultation with each of the relevant mandate-holders it was decided that a focused report to the General Assembly by the Special Rapporteur could help advance this dialogue.
B. The approach of the report
7. The report is based upon human rights principles and attaches particular importance to obligations to respect rights, to provide remedies, and to ensure accountability. But the Special Rapporteur recognizes that arguments based on human rights or international law often do not suffice to convince Member States, or even the United Nations to take the necessary steps. Human rights reports too often assume that pointing to international norms and asserting obligations is all that is required to bring about a fundamental change of policy on the part of governments or international organizations. The reality is usually much more complex. Those in authority need also to be convinced of the unsustainability and costliness of existing policies, and of the feasibility of change.
8. The report thus also relies on arguments rooted in pragmatism and self-interest. It adopts this approach not only for strategic reasons, nor because many legal analyses of the issues have already been published, but because its goal is to convince the key actors that a policy reversal is essential, entirely feasible and can be set in train immediately.
9. The arguments that arise most consistently, and seem to have the greatest purchase, are those based on fears that accepting responsibility might undermine the immunity, jeopardize its financial viability, have a negative impact on future peacekeeping, create bad precedents, or embroil the Organization in endless litigation.
10. In contrast, the starting point of this report is to underscore that the existing abdication approach cannot be justified by invoking fundamental principles and claiming that these would be jeopardized if the United Nations accepts responsibility. As exclaimed below acceptance of responsibility can protect rather than undermine United Nations’ immunity. Formal acceptance of human rights principles by the Organization is but somehow problematic, third party liability is not a concept that is alien to the United Nations, and remedies can be provided without opening a Pandora’s Box.
11. The report seeks to assuage these fears and to identify a way forward that upholds the human rights of the Haitian people, while also saving the United Nations from a singularly self-destructive approach which is undermining its legitimacy and credibility.
12. First, however, because United Nations officials have consistently disputed the issue, it is necessary to review the scientific evidence that establishes MINUSTAH as the source responsible for introducing cholera into Haiti and to demonstrate that the legal arguments invoked by the United Nations to abdicate responsibility are wholly unconvincing.
II. The source of the outbreak, and the United Nations’ response
13. Haiti’s first ever cholera outbreak began in mid-October 2010. Many scholars have repeated the claim made by the Independent Panel of on the Cholera Outbreak in Haiti (the ‘Independent Experts’) that this was the first time in 100 years that cholera had occurred in Haiti, but in fact there is no record of cholera ever having previously been in Haiti. As of 28 May 2016, United Nations figures recorded 9,145 deaths from cholera and 779,212 persons infected. Scientific studies have also claimed that the actual mortality rate is almost certainly substantially higher than reported. Between January and April 2016, 150 new deaths occurred, an increase of 18% over the same period in 2015.
A. The scientific evidence
14. Starting on October 8, 2010 a contingent of Nepalese peacekeepers, who had completed their training in Kathmandu at the time of a cholera outbreak there, arrived at MINUSTAH’s Annapurna Camp in Mirebalais, Haiti. Within days, a few villagers living in Meye who drew their water them a stream close to the camp toilets were infected. Byway of explanation, later investigations revealed that on 16 or 17 October a sanitation company under contract to MINISTAH emptied the camp’s waste tanks. Because the septic pit into which the waste should have been deposited was full, “the driver dumped the contents and a large amount of fecal waste entered the local stream and flowed on to the Artibonite River. By the next morning, many in communities were infected.”
15. As the magnitude of the disaster became known, key international officials carefully avoided acknowledging that the outbreak had resulted from discharges from the MINUSTAH camp. The implication that cholera had come from elsewhere also drew support from an environmental theory suggested by some scientific observers according to which the cholera microbe is naturally present in many backwater settings and can be activated by environmental shocks such as the earthquake that hit Haiti in January 2010 or by unusually heavy rains. Nevertheless, most scientific and media sources rejected this theory and placed the blame clearly upon the peacekeepers.
16. In order to resolve the controversy, the Secretary-General, to his credit, established the Panel of Independent Experts in January 2011. In its May 2011 report, the Panel expressly rejected the environmental theory. Instead, it found that “the evidence overwhelmingly supports the conclusion that the source of the Haiti cholera outbreak was due to contamination of the Maya Tributary of the Artibonite River with a pathogenic strain of current South Asian type Vibrio cholerae as a result of human activity”. If the experts had left it at that, the conclusion would have been that peacekeepers were responsible for the outbreak. But they went on to claim that the dumping of feces alone “could not have been the source of such an outbreak without simultaneous water and sanitation and health care system deficiencies…, coupled with conducive environmental and epidemiological conditions…”. By adding this observation the experts suggested that nature, as well as Haiti’s under-development, were also to blame. This enabled them to reach their ultimate conclusion that the “outbreak was caused by the confluence of circumstances…, and was not the fault of, or deliberate action of, a group or individual.”
17. In response to the controversy provoked by this ambiguous and inconsistent assessment the Panel published a follow-up article in 2013 seeking to clarify their view that “the preponderance of the evidence and the weight of the circumstantial evidence does lead to the conclusion that personnel associated with the Mirebalais MINUSTAI facility were the most likely source of introduction of cholera into Haiti.” They also noted that their scientific language had been accurately translated in a newspaper report that stated their conclusion as being that the outbreak “was almost certainly caused by a poorly constructed sanitation system installed at a rural camp used by several hundred UN troops from Nepal.” They went on to explain why they asserted that no-one was at fault: “we do not feel that this was a deliberate introduction of cholera into Haiti”. Rather, it was “an accidental and unfortunate confluence of events”.
B. The United Nations’ response
18. For the most part, the question of who bears responsibility for bringing cholera to Haiti has been systematically side-stepped in United Nations analyses. The first technique has been to take refuge in the passive voice whereby readers are told that ‘cholera emerged,’ or ‘a severe outbreak of cholera was confirmed,’ or as Assistant Secretary-General and Senior Coordinator for Cholera Response, Pedro Medrano wrote to the mandate-holders in 2014, cholera ‘occurred’. In other words, it just happened, and no scientific or technical explanation is needed. Another technique has been to invoke the need to move beyond the past and instead focus on the future. The past is seen neither as a vital element in devising effective policies for the future, nor as a dimension that needs to be understood if non-repetition is to be promoted. A third approach has been to replace the term ‘responsibility’ by ‘blame’ and to then portray the ‘blame game’ as unhelpful, distracting, unanswerable, or divisive, and thus to be avoided. For example, although the Panel was appointed precisely to “investigate and seek to determine the source” of the outbreak, the bottom line of their analysis was that the source was “no longer relevant to controlling the outbreak.” It was therefore time to look ahead and focus instead on preventive measures.
19. Although the report by the Panel has been central to the arguments made by United Nations officials in response to calls for it to accept responsibility, the approach taken by the United Nations has been inconsistent and somewhat unpredictable, in some contexts, the Panel’s conclusions have been challenged and their recommendations rejected; in others, their finding of no fault has been endorsed and heavily relied upon.
20. Immediately after the publication of the Panels’ report in May 2011, a United Nations spokesperson was dismissive of the report on the grounds that it did “not present any conclusive scientific evidence linking the outbreak to the MINUSTAH peacekeepers or the Mirebalais camp.” Senior officials have continued to rely on this defence. The more detailed and official response provided to the Special Procedures mandate-holders in November 2014 in a letter from Assistant Secretary-General Medrano took a different tack, however. Although the letter is long and detailed, it curiously makes no mention of the Panel’s principal finding, which was that that “the source of the Haiti cholera outbreak was due to contamination of the Meye Tributary of the Artibonite River with a pathogenic strain of current South Asian type Vibrio cholerae as a result of human activity”. In other words, MINUSTAH was indeed the source. Instead, after citing the panel’s reference to poor water and sanitation conditions and inadequate medical facilities, he suggests that the main outcome of the inquiry was the statement that the outbreak “was not the fault of, or due to deliberate action by, a group or individual.” Similarly, a regularly updated Fact Sheet describing “United Nations follow-up to the [Panel’s] recommendations” continues to make no mention of the Panel’s principal conclusion in relation to MINUSTAH. It has virtually been airbrushed out of the picture.
21. It is also noteworthy that having so enthusiastically embraced the Panel’s no fault statement, the United Nations effectively rejected some of its other key suggestions for screening and prophylaxis, an approach strongly challenged by a recent expert report.
22. Because the position taken by United Nations officials relies heavily on the claim that there remains doubt as to the source of the cholera outbreak and invokes the Panel’s report in support, it is appropriate both to assess the validity of the panel’s consistently cited assessment and to consider more recent scientific assessments. Before doing so it should be noted that there is a fundamental inconsistency in the Panel’s conclusions. After stating clearly that “the source of the Haiti cholera outbreak was due to contamination…”, the report goes on to say that “[t]he introduction of this cholera strain as a result of environmental contamination with feces could not have been the source of such an outbreak without simultaneous water and sanitation and health care system deficiencies.” Presumably, the Panel intended to say that the contamination could not alone have been the sole cause, had there not been deficiencies in the environment into which the feces were released. But that is not in fact what the report states.
23. From a legal perspective, there are essential flaws in the reasoning of the Panel in finding no fault. First, the experts’ conclusion that the MINUSTAH base was the source makes it very difficult to then conclude that no individual or group was at fault. Second, the experts provide no analysis whatsoever to support their no fault assertion. Third and most importantly, the Panel’s report adopts a scientific rather than a legal approach, but this does not prevent them from purporting to offer a legal conclusion that no fault can be found, although they neither identify any legal standard nor undertake any legal assessment of evidence. The explanation they subsequently provided – that they did not “feel” that cholera was “deliberately” introduced – completely fails to mention let alone address the central issue of negligence which lies at the heart of the legal issue of fault in this case. These flaws clearly invalidate the no fault finding on which the United Nations has consistently sought to rely so heavily in order to avoid responsibility.
24. Finally, as noted above, the Panel sought to mitigate the responsibility by noting that the outbreak was due not to one single event but rather to a “confluence of circumstances”, including deficient water, sanitation and health care systems. But again, apart from being inconsistent with the principal finding that MINUSTAH was indeed responsible, this construction conflates responsibility for bringing cholera to Haiti on the one hand with the country’s vulnerability on the other hand. The fact is that cholera would not have broken out but for the actions of the United Nations.
25. In the more than five years since the Independent Panel of Experts submitted their report in May 2011 there have been many scientific studies that have evaluated the evidence and have added new elements to what was known at that time. It is beyond the scope of the present report to recount the analyses and conclusions of the various studies, but this task has been undertaken systematically in a book published in Jane 2016. Its author, Ralph R. Frerichs, is Professor Emeritus of Epidemiology at UCLA and the book provides a painstaking and even-handed assessment of the scientific debates that have taken place. For present purposes, it must suffice to note that the book concludes that the peacekeepers were responsible for bringing cholera. In doing so, it systematically vindicates the conclusions reached by one of the first international experts on cholera to investigate the outbreak in Haiti, Dr. Renaud Piarroux. It also depletes what it describes as a “misinformation campaign to protect the UN and the peacekeeping program.”
26. The bottom line is that continued United Nations reliance on the argument that the scientific evidence is ambiguous or unclear as a way of avoiding responsibility is no longer tenable. It might possibly have been defensible in 2010 or even 2011, but subsequent research has provided as clear a demonstration of responsibility as is scientifically possible. If the United Nations chooses to continue to contest this conclusion, it should establish an independent inquiry without delay.
C. The United Nations’ legal response
27. On 3 November 2011, a petition was lodged with MINUSTAH on behalf of some 5,000 cholera victims claiming: (i) a fair and impartial hearing; (ii) monetary compensation; (iii) preventive action by the United Nations; and (iv) a public acknowledgement of United Nations responsibility and a public apology. Sixteen months later the Under Secretary-General for Legal Affairs replied. The letter noted that “[t]he United Nations is extremely saddened by the catastrophic outbreak of cholera, and the Secretary-General has expressed his profound sympathy for the terrible suffering caused by the cholera outbreak.” It went on to make what seems to be an indirect reference to the theory that the earthquake that occurred nine months earlier was the real culprit: “The cholera outbreak was not only an enormous national disaster, but was also a painful reminder of Haiti’s vulnerability in the event of a national emergency.” After recalling the Independent Panel’s “confluence of circumstances” and no fault findings, the letter deemed the claims “not receivable pursuant to Section 29 of the 1946 Convention on the Privileges and Immunities of the United Nations”. That provision requires the United Nations to provide for modes of settlement of disputes of a private law character to which it is a party, but the Under Secretary-General considered the claims not to be of a ‘private law character’ because their consideration “would necessarily include a review of political and policy matters.”
28. The claimants challenged the non-receivability finding and requested either mediation or a meeting to discuss the matter. In July 2013, the Under Secretary-General wasted no words in dismissing such requests: “in relation to your request for the engagement of a mediator, there is no basis for such engagement in connection with claims that are not receivable. As these claims are not receivable, I do not consider it necessary to meet and further discuss this matter.” Left with no further recourse within the United Nations, the claimants filed a class action suit in October 2013 with the United States District Court for the Southern District of New York. In January 2015, the court ruled that the defendants were immune from suit. The claimants subsequently appealed to the Court of Appeals for the Second Circuit whose judgment is currently awaited.
29. While the brevity of the present report precludes a detailed legal analysis, the basic principles are clear. The United Nations has long accepted that, as an attribute of its international legal personality, it can incur obligations and liabilities of a private law nature. It also recognizes its international responsibility for damages caused by the activities of UN forces within this framework. General Assembly Resolution 52/247 (1998) on third-party liability sets up a special regime to deal with third party claims in the context of peacekeeping missions, although it sets temporal, financial and other limitations to that liability.
30. Claims of a ‘private law character’ are also referred to in the MINUSTAH Status of Forces Agreement (SOFA) which defines them as “third party claims for property loss or damage and for personal injury, illness death arising from or directly attributed to MINUSTAH”. In elaborating on this category, the Secretary-General has stated that claims received in the past include “claims for compensation submitted by third parties for personal injury or death and/or property loss or damage incurred as a result of acts committed by members of a United Nations peace-keeping operation within the ‘mission area’ concerned.” Such claims are distinguished from those “based on political or policy-related grievances against the United Nations, usually related to actions or decisions taken by the Security Council or the General Assembly”, and which often “consist of rambling statements denouncing the policies of the Organization” and claiming that financial losses resulted therefrom.
31. Claims received in the context of peacekeeping operations are often solved amicably but the United Nations keeps all such matters confidential. A former official responsible for such claims over a ten year period identified only one other case of non-receivability on these grounds, which related to Kosovo. That case was also referred to in the United Nations’ 2014 letter to the Special Procedures mandate-holders. It involved a claim for damages resulting from lead contamination in camps established by the United Nations Interim Administration Mission in Kosovo (UNMIK). The claims were rejected by the United Nations on the grounds that they amounted to a review of the performance of UNMIK’s mandate. The 2014 letter also notes two other cases in which the United Nations has rejected claims. One was against UNAMIR in Rwanda for failing to protect victims of the 1994 genocide and the other was against UNPROFOR for failing to protect the inhabitants of Srebrenica in 1995.
32. It has been suggested to the Special Rapporteur by several sources that the legal advice originally submitted to the Secretary-General took a rather different approach to these crucial issues from that which was finally adopted, but this cannot be confirmed since none of the Office’s analyses have been made public. If true, however, it might explain why the arguments adduced in order to abdicate responsibility are both per peremptory and inadequately justified.
33. In the view of the Special Rapporteur, and of most scholars, the legal arguments supporting the claim of non-receivability are wholly unconvincing in legal terms. First, the claims appear to have all of the characteristics of a private law tort claim. The victims accuse the United Nations of negligence for failure to adequately screen its peacekeeping forces for cholera, failure to provide for adequate sanitation facilities and waste management at Mirebalais camp, failure to undertake adequate water quality testing and a failure to take immediate corrective action after cholera was introduced. These are classic third party claims for damages for personal injury, illness and death, and they arise directly from action or inaction by, or attributable to, MINUSTAH. This would include a failure to exercise non-negligent supervision of the actions of private contractors. The United Nations has frequently processed claims involving alleged negligence, especially for example in relation to traffic accidents.
34. Second, the duties owed by the United Nations are directly analogous to those owed by a company or private property carrier to ensure adequate waste management and to take adequate precautions to prevent spreading diseases.
35. Third, the contention that receipt of the claims would “necessarily involve a review of political and policy matters” is self-serving and unjustified. The claims are far from being ‘political’ in the sense defined by the Secretary-General in 1995 as those, targeting actions or decisions of political organs, nor are they rambling denunciations. In terms of policies, it is true that waste management and other such internal policies might need to be reviewed, but if that prospect is enough to trigger non-receivability it would become effectively impossible ever to claim damages from the United Nations.
36. Fourth, the Haiti case is clearly distinguishable from the Rwanda and Srebrenica claims, both of which alleged a failure by peacekeepers to fulfill the essence of their mandate and raised issues of operational judgment as opposed to a failure to avoid spreading a highly infectious and lethal disease. The Kosovo case is closer to the Haitian case, but might arguably be distinguished by the facts that UNMIK in Kosovo Operated as an interim administration, and that the United Nations should not be held responsible for contamination which pre-dated its arrival. It is noteworthy that the non-receivability classification did not prevent the Human Rights Advisory Panel established by the United Nations to examine cases of alleged human rights violations in Kosovo from holding in 2016 that “UNMIK was responsible for compromising irreversibly the life, health and development potential” of the child complainants.
D. Responses to the United Nations position
37. Although the former High Commissioner for Human Rights, Navanethem Pillay, called publicly in 2013 for the Haiti victims to be compensated, the abdication approach has otherwise prevailed in the ranks of United Nations officials, under the watchful of the Office of Legal Affairs.
38. In contrast, Special Procedures mandate-holders have been consistently critical of the refusal to take responsibility. In particular, successive Independent Experts on the human rights situation in Haiti have warned since 2012 of the costs of silence and denial on this issue. In 2016 the Independent Expert called for the urgent creation of a commission “to quantify the harm done, establish compensation, identify responsible parties, halt the epidemic and take other measures…”.
39. The global media has been systematically critical of the United Nations. For example, The Economist has accused the United Nations of dodging its responsibility, the New York Times argues that it has “failed to face up to its role in [Haiti’s] continuing tragedy,” Business Insider has referred to the cholera Outbreak as “the UN’s Watergate”, the Washington Post has commented that “by refusing to acknowledge responsibility, the United Nations jeopardizes its standing and moral authority.”
40. Even some of the Organization’s traditional supporters have argued that it’s “peacekeeping brand has been stained indelibly by three major sins”, which are sexual misconduct, the negligence involved in bringing cholera to Haiti, and “the abject failure of the United Nations to own up to these lapses, and to respond to them in an effective, principled way.”
41. Scholars have criticized the United Nations’ “shabby formalistic maneuvers to avoid the very principles of the Rule of Law that they urge on the rest of the world,” its “preposterous” failure to provide a remedy, its pursuit of “peacekeeping without accountability”, its compounding of a public health disaster with a public relations disaster, its dangerous “legalism” which effectively insulate the organization from accountability”, and its “repeated failures … to provide adequate due process to those affected by its decision-making [which] has had a detrimental effect on the Organization and its activities.”
42. Among NGOs, Amnesty International has called upon the Secretary-General “to establish a fair, transparent and independent mechanism to hear the claims of cholera victims, and ensure redress, including compensation”. Human Rights Watch has been critical of the absence of any “independent adjudication of the facts surrounding the introduction of cholera and the question of the UN’s involvement”. And 34 NGOs have cited “overwhelming evidence that UN peacekeepers are responsible for the introduction of cholera to Haiti” as the basis on which to call upon the candidates for the post of Secretary-General to “pledge to ensure that victims of cholera in Haiti have access to fair remedies.”
E. The role of States
43. The OLA’s opinion has provided a convenient justification for States to avoid engagement on the UN’s responsibility for the cholera epidemic in Haiti. Although the Security Council authorized the deployment of peacekeepers to Haiti and regularly reviews the status of the mission, it has notably failed to address the issue of the responsibility for the introduction of cholera. In June 2016 a bipartisan group of 158 members of the United States Congress stated that “each day that passes without an appropriate U.N. response is a tragedy for Haitian cholera victims and a stain on the U.N.’s reputation”, and called upon the United States Secretary of State to the United Nations to compensate the victims. Leading newspapers, including the New York Times, the Washington Post, and the Boston Globe, endorsed this call to focus on the misdeeds of the United Nations. Yet there is much to be said for the view that without the acquiescence, if not the active support, of the United States and other Security Council members, the abdication approach would not have been adopted by the United Nations.
44. While the United Nations has been keen to emphasize how much it has done in Haiti, the reality in that Member States have so far agreed to contribute only 18% of the $2.2 billion required to implement the National Plan for the Elimination of Cholera in Haiti 2013-2022.
III. Addressing the major concerns
A. Agreed principles
45. Before addressing the major practical concerns that have been used to justify the abdication approach, it is important to emphasize that there is broad agreement in relation to the key principles that are at stake, even if controversy remains about their application.
46. First, it is generally agreed that the principle of United Nations immunity is a vitally important one and that any initiative by the Organization to accept responsibility for the cholera outbreak should uphold that principle.
47. Second, it is agreed that United Nations actions should comply with human rights standards. As Assistant Secretary-General Medrano informed the Special Procedures mandates holders, the United Nations seeks “to ensure that its peacekeeping operations and their personnel operate within the normative framework of international human rights law and are held accountable for alleged violations.”
48. Third, as noted above, the United Nations accepts in principle that it is liable to third parties for damages occurring in the course of its peacekeeping operations. As the Secretary-General has written, “[t]he undertaking to settle disputes of a private law nature submitted against it and the practice of actual settlement of such third-party claims … evidence the recognition on the part of the United Nations that liability for damage caused by members of United Nations forces is attributable to the Organization.”
49. Fourth, it is recognised in the 1946 Convention, in the SOFA, and in United Nations practice, that appropriate remedies should be provided where disputes arise in relation to liability for acts of a private character.
50. Given the extent to which there is agreement on this legal framework, the puzzle is why the current position of the United Nations remains so very distant from the outcome that these principles seem to require. In essence, there are two reasons. The first is the determination to abide by the (unpublished) legal opinion that declares the claim not to be of a private character. For the reasons explained above, this opinion should be reconsidered and revised. The second reason is the failure to openly acknowledge and clearly address a range of background considerations which have fueled fears that have apparently deterred the various actors from seeking to resolve the problem in a principled manner. The report turns now to examine these matters.
B. Arguments against accountability
51. Issues of fundamental principle have not, as the preceding analysis demonstrated, been at the heart of the concerns of those supporting the current abdication approach of the United Nations. Instead, a range of practical or instrumentalist concerns have been raised. These concerns are important, especially because they seem to explain the depth of the opposition to a policy which would conform to the ideals and fundamental principles of the United Nations and would accept responsibility and facilitate appropriate action.
1. Protecting absolute immunity
52. The immunity of the United Nations from suit in national courts is seen by most observers as an indispensable means of protecting it from political attacks, and avoiding putting it at the mercy of unpredictable and perhaps ill-intentioned or hostile national courts. But absolute immunity without the provision of alternative remedies is equally unsustainable, which is why the 1946 Convention provides for both immunity and remedies. In 2005, a review of peacekeeping recommended the waiver of immunity in relation to criminal acts “where continued immunity would impede the course of justice and where immunity can be waived without prejudice to the interests of the United Nations.” A similar principle should apply in the present context.
53. The irony of the United Nations’ position on cholera in Haiti is that far from strengthening its case for immunity it has provoked a backlash which has led scholars and commentators to call for immunity to be lifted, for only functional immunities to be recognized, or for national courts to adapt their approach to immunity to respect the human rights principle of access to a remedy. Support for these suggestions will only grow if an appropriate remedy is not provided in the Haiti cholera case. There is much to be said in favour of the argument supported by many scholars and invoked in the litigation that the absolute immunity conferred by Article 2 of the 1946 Convention is contingent upon respect for Article 29’s requirement that “appropriate modes of settlement” be provided by the United Nations.
2. Surrendering to the threat of litigation
54. Some officials and diplomats have suggested that although they would favor providing an appropriate remedy in this case, nothing can be done until the shadow of litigation has been lifted. To take action before then would only encourage many more suits designed to achieve the same result (the proverbial ‘floodgates’ would be opened). It follows that only when the pending suit by cholera victims in US court has been rejected and the immunity upheld can the matter be looked at in an objective and non-prejudicial light. But it seems likely that those invoking this argument are really counting on the fact that once the suit is dismissed, pressure to negotiate or reconsider will dissipate or even dissolve and stonewalling can confidently be resumed.
55. If the floodgates argument was in fact being invoked in good faith then it would augur very badly indeed for the United Nations since it would imply that there are actually many cases in which the Organization has unfairly refused to provide a remedy and that the United Nations will not budge unless litigation is initiated. In fact, if the current litigation is dismissed by the United States Court of Appeals the result will not be to put the lid on future litigation. Rather, such an outcome is likely to generate even more pressure on victims and advocates to try to persuade other authorities and courts in other countries that the United Nations’ immunity in such situations leads to an unconscionable result that needs somehow to be rectified.
3. Creating a bad precedent
56. A closely related argument is that “if the UN settles with private claimants or enters into dispute resolution processes that result in a finding that compensation is owed, it may have a chilling effect on the Organization”. But this suffers from the same infirmities as the floodgates argument. If United Nations’ practices in terms of third party liability are consistent and fair, and if claims are settled on a basis that is sustainable for the Organization, there is no reason why there would suddenly be a rash of claims that are not currently being pursued. The fear of creating a bad precedent is a classic argument to justify inaction in the face of injustice.
4. Penalizing troop contributing countries
57. Various observers have suggested that recognition of liability in a case such as cholera in Haiti would deter troop contributing countries (TCCs) from participating in future missions. But there are several problems with this analysis. First, the reputational damage caused to TCCs by the United Nations’ rejection of legitimate claims is surely even greater than that flowing from a just settlement. A festering sore is much worse than a wound that is healed. Second, those States that are generally keen to contribute troops will be less likely to be asked if their contingents remain under the shadow of unresolved allegations. Third, in line with the General Assembly’s 1995 resolution on third party liability, the principal burden of financial settlements that are reached in response to legitimate claims should fall upon the Organization itself and not upon the individual State. Thus the most effective way to address the fears of TCCs is to ensure that an insurance scheme is in place, whether set up internally or with an external insurer.
5. Undermining the financial viability of peacekeeping
53. Fears have been expressed that the success of the current litigation could ‘bankrupt’ the United Nations itself, or at least its peacekeeping operations. These fears reflect calculations based on the amounts claimed by the litigants before the United States courts: $100,000 for deceased victim and $50,000 for each victim who suffered illness and injury. Multiplied by the current official figures of 9,145 dead and 779,212 infected, potential liability, excluding claims for those certain to die and be infected in the years ahead, would amount to or almost $40 billion. Since this is almost five times the total annual budget for peacekeeping worldwide, it is a figure that is understandably seen as prohibitive and unrealistic. At a time of widespread budgetary austerity, shrinking support for multilateral development and humanitarian funding, and the prioritization of funding for the refugee crisis, it is perhaps not surprising that both the United Nations and Member States have in effect put the Haiti cholera case into the ‘too hard basket’ and opted to do nothing. 59. But again this is short-sighted and self-defeating. The figure of $40 billion should stand as a warning of the consequences that could follow if national courts become convinced that the abdication policy is not just unconscionable but also legally unjustified. The best way to avoid that happening is for the United Nations to offer an appropriate remedy. The present report is not the place to offer a detailed estimate of what that should look like or what it might cost. But there are certain guidelines and precedents that can helpfully be kept in mind in this context.
60. First, scholars have debated whether the optimal approach for the United Nations to take is one that proceeds from the principles of human rights or from the law of torts. For academic purposes, a rich debate can and has already been had around some of these issues. From the perspective of the United Nations, neither of these regimes fits the situation perfectly and elements can be drawn item both in shaping the best response.
61. Second, the General Assembly’s 1993 resolution on third party liability is of major relevance. It sets a temporal limitation for the submission of claims, but this may be extended by the Secretary-General in exceptional circumstances. Compensation payable for injury, illness or death is to be determined by reference to local compensation standards, but cannot exceed $50,000. Compensation is not payable either for non-economic loss or punitive or moral damages.
62. Third, various precedents exist for the United Nations to make one-time lump sum payments for damages caused by peacekeeping operations. An agreement reached with Belgium in 1965 involved acceptance of “financial liability where the damage is the result of action taken by agents of the United Nations in violation of the laws of war and the rules of international law”, but was stated to be “without prejudice to the privileges and immunities which the United Nations enjoys”. Similar were also entered into with Luxembourg in 1966 and Italy in 1967.
63. Fourth, different arrangements might be contemplated for cases of death than for those involving injury. Given the ongoing nature of the problem and the complexity of compensating all of those who became ill, a programmatic approach might be an important element in relation to the second category of victims.
64. Fifth, guidance might be drawn from important precedents for lump sum settlements at the national level. Relevant examples include the arrangements set up in the United States to compensate the victims of the September 11, 2001 terrorist attacks, the USA-France agreement in 2014 to compensate Holocaust victims, and the Canadian Reparations Programme for the Indian Residential School System, created to redress the historical legacies of discrimination suffered by Aboriginal children attending those schools.
65. It is clear that the United Nations could make use of these various precedents in order to shape an approach to as part of a broader package that would provide justice to the victims and be affordable.
IV. Why the United Nations’ position needs to change
66. The Special Rapporteur has argued above that the major concerns that appear to underlie the abdication approach can all be addressed satisfactorily without jeopardizing any core interests of the United Nations or its Member States. But the case to he made in favour of action is actually much stronger than that conclusion might suggest. Thus, before outlining what a constructive and responsible approach might look like, it is important to highlight the positive reasons which argue strongly for an urgent change of policy.
67. Peacekeeping: This is an increasingly crucial part of the United Nations’ role in many parts of the world. Its potential to succeed depends on various factors, but pre-eminent among them are its legitimacy, credibility, and responsiveness. In Haiti, the reputation of MINUSTAH has been gravely tarnished by the cholera episode. And the message that the Organization is unprepared to accept responsibility for negligent conduct which gives rise to dire consequences, despite the fact that it has been definitively found guilty both in the scientific world and in the court of public opinion, will not have escaped other States that are contemplating agreeing to host or participate in peacekeeping operations. While there is a big difference between sexual abuse and negligent conduct, there is an important message for the United Nations in the Haiti context to be learned from the Independent Inquiry into sexual abuse in the Central African Republic. It warned that “[W]hen the international community fails to care for the victims or to hold the perpetrators to account” it amounts to a betrayal of trust.
68. The rule of law: The Secretary-General and the Deputy Secretary-General have given strong voice to the resolutions of the General Assembly underscoring the central importance of respecting the rule of law. Yet, the UN’s approach in this case undermines the rule of law and diminishes the UN’s credibility as an advocate for its respect. By failing to take even minimal steps to hold itself accountable and compensate those affected or even to explain the reasons for its refusal to do so, the UN replicates the very behaviour it seeks to modify elsewhere. The rule of law requires that the UN abide by its treaty obligations, including those under the SOFA, as well as fundamental human rights such as providing an effective remedy to those harmed by the Organization. It also requires that it act consistently and respond in comparable fashion to all legitimate private law claims made against it. The Organization should be leading by setting a good example.
69. Human rights: One of the most impressive human rights achievements in recent years emerged from a similar time of crisis Within the Organisation as a result of its role in the final months of the civil war in Sri Lanka in 2010. In response to concerted criticism, the Secretary-General first commissioned an Internal Review Panel to explore whether the United Nations had met its responsibilities to prevent and respond to serious violations of human rights and humanitarian law. He then followed up by announcing his Human Rights up Front initiative which “aims to help the UN act more coherently across the pillars of the Organization’s work – peace and security, development, and human rights”. As the Deputy Secretary-General has noted, “Human Rights up Front is about improving how the UN system functions and how staff members are to perform.” Yet the refusal to address the human rights violations that have occurred in Haiti as a result of the cholera epidemic stands in stark contrast to the excellent intentions of that initiative. Unless action is taken, the message is that a double standard applies according to which the United Nations can insist that Member States respect human rights, while rejecting any such responsibility for itself even in a particularly egregious situation.
70. Remedies: The provision of remedies for wrongdoing is an essential dimension of the law relating to immunity, of human rights law, of the rule of law, and of the principle of accountability. The High Commissioner for Human Rights regularly and rightly admonishes states which refuse to provide a remedy to those whose human rights have been violated, yet in the Haiti case the United Nations has refused even to contemplate a range of remedies which could reasonably and feasibly be provided. Similarly, in the transitional justice context, the United Nations consistently calls upon States to acknowledge wrongdoing, to ensure meaningful processes for the vindication of claims, and to provide victims with redress. Yet in the Haiti case the victims are told that a handful of broadly-focused development projects should provide sufficient redress. Even in the context of armed conflicts, various United Nations bodies have urged States to provide forms of compensation, whether ex gratia or otherwise, to the killed or injured even though the legal obligation to provide such compensation is not uncontested.
71. The Office of the Secretary-General: It is vital that the integrity of the Office of the Secretary-General be upheld. The current Secretary-General has visited and grieved with cholera victims in Haiti, has talked of the Organization’s moral duty, and has generally expressed deep concern about the issue. But he has consistently stopped short of taking any of the steps that are required if the United Nations is to move beyond its policy of abdicating responsibility. From the outside, and to many on the inside, the reason seems to be that the legal advice given by the Office of Legal Affairs has been permitted to override all of the other considerations that militate so powerfully in favour of seeking a constructive and just solution. Rule by law, as interpreted by the Office, has trumped the rule of law.
72. In summary, what is at stake is the Organization’s overall credibility in many different areas. Its existing position on cholera in Haiti is at odds with the positions that it espouses so strongly in other key policy areas. It has a huge amount to gain by rethinking its position and a great deal to lose by stubbornly maintaining its current approach.
V. The Way Forward
73. The abdication approach has thrived because sterile legal formalism, facilitated by a failure to explore constructive options, has been permitted to prevail. But that approach is contrary to both the interests of justice and the interests of the United Nations.
74. There are strong grounds for now adopting a new approach. First, the element of doubt as to the United Nations’ responsibility for the introduction of cholera has been definitively removed. A series of studies and statements subsequent to the Independent Expert Panels’ report, as well as their own clarification, leave no reasonable doubt and the United Nations’ position must reflect that reality. A policy that might arguably have been justified in years gone by, is clearly no longer supported by the scientific facts.
75. Second, the existing policy was formulated some six years ago, and pays no heed to the important lessons that have emerged from both the Human Rights up Front initiative and the Panel report on the Central African Republic.
76. Third, there is new a much stronger commitment to taking the rule of law seriously in the context of the approach adopted within the United Nations itself, and this needs to be reflected in the response to cholera in Haiti.
77. This report is not the appropriate content in which to spell out in detail the steps that should now be taken to right the wrongs that have occurred. But it is possible to sketch in broad outline the principal steps that should be considered.
(1) First and foremost, there should be an apology and an acceptance of responsibility in the name of the Secretary-General. This should be done as soon as possible in order to provide the foundation upon which subsequent steps can be based.
(2) Consideration needs to be given to constructing a policy package to address the need for compensation to the victims.
(3) The development projects which the United Nations has initiated since the outbreak of cholera can be a part of the overall package, although consideration should be given to tailoring them mere appropriately towards the specific rights and needs of those who have been infected. But these project-based initiatives should not be seen as a substitute for personal compensation, especially for those who have died as a result of the outbreak. The funding arrangements for this compensation could be shaped in light of the elements identified above.
(4) The process that is followed once the initial step has been taken will be important and should reflect a newfound commitment to consulting with all stakeholders on as transparent a basis as possible.
(5) The process outlined here should provide the foundation for a new approach to be adopted by the United Nations in the future in such cases.
78. While the Secretary-General can and should of his own accord take the important step of accepting responsibility, support from key Governments will also be crucial. States that provide substantial support to the peacekeeping budget, particularly the United States which is the principal contributor, should actively support a resolution to this ongoing crisis that respects the rights of the victims of this tragedy and best serves the reputational and other interests of the United Nations.