UN Compensates Zimbabwe Staffer, but Haitian Victims' Struggle for Justice Continues in Cholera Outbreaks Attributed to UN

Bathing and washing in a river tributary near Meille, Haiti.
Credit: Damon Winter/The New York Times

At the end of February, the United Nations (UN) issued two decisions concerning its role is the spread of cholera in Haiti and Zimbabwe. In Haiti, victims of cholera and their advocates claim that UN peacekeepers from Nepal introduced cholera to the country, but the UN has stated it will not hear their complaint. [UN]  In Zimbabwe, a UN official claims that he was fired from his post after warning senior officials about a possible cholera outbreak, and a UN tribunal has awarded him compensation.  [Al Jazeera]

The Haitian cholera epidemic has claimed almost 8,000 lives as of January, 2013.  The first cases of cholera to be reported in Haiti in the past century appeared in October 2010, months after the January 12, 2010 earthquake in Haiti.  [Foreign Policy] Shortly before cholera appeared, UN troops from Nepal arrived at a camp of the UN Stabilization Mission in Haiti, or MINUSTAH. [Foreign Policy]  There, Haitians noticed unsanitary latrines leaking into the nearby Artibonite River. Nepal, a country where cholera is almost always present, had recently experienced an outbreak of its own. [Foreign Policy; Himalayan Times]  Many Haitians pinned the blame on the Nepalese troops for introducing cholera to Haiti and protested against the UN troops’ presence there.  [New York Times;Al Jazeera]

In what some journalists labelled an “amateurish” response, the UN failed to properly investigate the source of the cholera epidemic, claiming it was choosing to use its limited resources to help those already ill. [New York Times]  In July 2012, UN-established panel of four independent experts released a report stressing that introduction of the cholera strain through fecal matter “could not have been the source of such an outbreak without simultaneous water and sanitation and health care system deficiencies,” thereby taking the blame partly away from the UN.  Dr. Alejandro Cravioto, et al., Final Report of the Independent Panel of Experts on the Cholera Outbreak in Haiti 4 (2012).  However, after a subsequent study conducted by Dr. Paul S. Keim, a microbial geneticist, determined that the Nepalese and Haitian cholera strains are virtually identical, at least one of the UN independent experts now claims that “the most likely scenario is that the cholera began with someone at the Minustah base.”  [New York Times]

The Institute for Justice and Democracy in Haiti (IJDH) and the Bureau des Advocats Internationeaux (BAI) are working with victims of the cholera epidemic to ensure justice and accountability.  Because MINUSTAH and the Haitian government have entered into a Status of Forces Agreement (SOFA), MINUSTAH enjoys protection from litigation in Haitian courts, and the victims may not pursue a suit domestically.  [IJDH]  Under SOFA, the UN is required to establish an independent Standing Claims Commission, which it has failed to do.   Therefore, in December of 2011, the IJDH and BAI, on behalf of over 5,000 Haitian cholera victims, instead filed a Petition for Relief with the UN’s Office of Legal Affairs in New York City.

In characterizing the UN’s conduct as negligence, gross negligence, recklessness, and deliberate indifference towards the lives of Haitians, the petition cited the UN’s failures to: screen the Nepalese troops for cholera prior to going to Haiti, maintain sanitation facilities at its MINUSTAH base, properly test the water quality at the base, and take immediate corrective action upon contamination. See Petition for Relief, para. 3.  The petition further requested(1) a fair and impartial hearing; (2) monetary compensation; (3) redress to prevent the future spread of cholera, including comprehensive sanitation, potable water, and a medical treatment program; and (4) public acknowledgement of UN responsibility.  Id. at para. 5.

On February 21, 2013, UN Secretary General Ban Ki-moon notified the complainants and Haiti’s president of the UN’s determination that the claim is “not receivable.” [UN]  The UN’s rejection of the claim is based in Section 29 of the Convention on the Privileges and Immunities of the United Nations, which  reads:

The United Nations shall make provisions for appropriate modes of settlement of:
(a) Disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party;
(b) Disputes involving any official of the United Nations who by reason of his official position enjoys immunity, if immunity has not been waived by the Secretary-General.

[UN; The Atlantic] The UN Under-Secretary General for Legal Affairs and UN Legal Counsel, Patricia O’Brien, cited Section 29 in her February 21, 2013 letter to the complainants, writing that “consideration of [the cholera victims’ claims] would necessarily include a review of political and policy matters.”  Although O’Brien’s letter does not provide any additional explanation, the implication is that the UN’s response to the cholera epidemic involves political and policy decisions, meaning the dispute is not strictly of a contractual or private law nature and, therefore, the UN is not required to establish a dispute settlement mechanism.

Brian Concannon, director of the Institute for Justice and Democracy in Haiti, responded by expressing concern that the UN will lose worldwide credibility in its attempts to enforce the rule of law without also respecting the rule of law itself.  Ira Kurzban, co-counsel on the case, called the decision “immoral” and indicated that the next step is to figure out where to sue the UN, possibly before the International Court of Justice.

In Zimbabwe, cholera broke out in August 2008, claiming more than 4,000 lives and infecting apprximately 100,000 people. [Wall Street Journal]  Soon after President Robert Mugabe nationalized Zimbabwe’s water supply in 2005, funds needed to treat the water and maintain the infrastructure ran low and the government stopped providing water thereafter.  The inadequate supply of clean drinking water and poor hygiene are considered the causes of the cholera outbreak.  [World Health Organization]

Months before the outbreak, Georges Tadonki, the former head of the UN Office for the Coordination of Humanitarian Affairs (OCHA) in Zimbabwe, claims he warned his superiors that the outbreak might affect as many as 30,000 people, however, the country director, Agostinho Zacarias, forced him to “put the figure very low.” [Foreign Policy]  Tadonki, who was in a purely humanitarian position, had a tense relationship with Zacarias, who had to balance support for both humanitarian work and the Zimbabwean government. Along with Tadonki, opposition figures and some NGO officials questioned Zacarias’ relationship with the Mugabe administration, and claim that Zacarias downplayed the epidemic in order to remain friendly with Mugabe.  The Mugabe government failed to recognize the presence of cholera until December of 2008, four months after the first cases appeared.  

In January of 2009, Tadonki was fired from his post at the UN and claims that the move was in retaliation for sounding the alarm about the cholera outbreak.  [Al Jazeera]  That same month, Tadonki filed a request for suspension of action, which ultimately landed his case before the UN Dispute Tribunal, an internal tribunal which hears administrative appeals brought by UN staff members.  United Nations Dispute Tribunal, Tadonki v. Secretary-General of the United Nations, Case No. UNDT/NBI/2009/36, Judgment No. UNDT/2013/032, Views of 26 February 2013, paras. 2-4.  On February 26, 2013, the tribunal found that the case involved “not only managerial ineptitude and high-handed conduct but also bad faith from the top management” and that “humanitarian considerations played only second fiddle to political issues.”  Id. at paras. 307, 309.  The Dispute Tribunal awarded Tadonki $50,000 in moral damages.  Id. at para. 346.

Furthermore, the Dispute Tribunal referred four senior officials involved in the case to the Secretary-General for accountability purposes.  Id.  Apparently, only one of those senior officials, Catherine Bragg, currently remains in her post.  [UN OCHA]  There are reports that OCHA intends to appeal the decision.  [Al Jazeera]  The UN plans to appeal the Dispute Tribunal’s decision. [Al Jazeera]