In the wake of a new cholera outbreak in Haiti following Hurricane Matthew, the United Nations Secretary General Ban Ki-moon announced a plan to raise 400 million dollars to treat and eradicate this disease and to provide financial assistance to affected communities and individuals, including victims of the 2010 outbreak that killed over 9,500 people and infected 800,000 others. [NY Times; UN Radio; Partners in Health] The announcement, and acceptance of “moral responsibility,” comes six years after UN peacekeepers caused the contamination and amid heightened criticisms of the UN response. The UN Special Rapporteur on extreme poverty and human rights, Phillip Alston, among others, has called on the UN to accept legal responsibility, ensure its own accountability to victims, and avoid further damaging the integrity of the UN system. [NY Times; NPR]
Although members of the international community, civil society, and the media welcome the effort to improve the United Nations response in Haiti, criticisms of the plan center around the lack of acknowledgement of responsibility in creating the epidemic and the absence of a public apology. [OHCHR Press Release: Lawyers; IJDH Press Release]
The United Nations’ New Plan
The United Nations unveiled a new two-track approach to respond to cholera in Haiti that will raise 400 million dollars over the next two years. [UN Radio] UN Secretary General Ban Ki-moon explained that the plan includes 200 million dollars that will be directed to assisting families and communities most affected by the outbreak since 2010, and 200 million dollars that will be focused on treating and eliminating cholera in Haiti and improving sanitation and access to clean water in the region. [UN Radio] It is unclear whether an apology, or public recognition of legal responsibility will be part of the plan. [NY Times]
Views of the Special Rapporteur
The new plan’s announcement highlighted differences of opinion between the office of the Secretary General and human rights experts including Special Rapporteur Alston, who has accused UN lawyers of providing “flawed and unfounded legal advice” and described the UN’s resulting failure to accept legal responsibility as “morally unconscionable, legally indefensible … politically self-defeating [and] entirely unnecessary.” [OHCHR Press Release: Lawyers; OHCHR Press Release: Statement] Meanwhile, the Secretary General stressed the international community’s “moral duty” to assist Haiti, and his deputy stated, “I am of the view that you can combine a firm legal position with compassion and practical demonstration of solidarity with the Haitian people.” [UN News Centre: Moral Duty; UN News Centre: Right Thing]
A draft version of Alston’s report on the cholera outbreak, the UN’s involvement, and the UN response leaked in August and was published in the New York Times. [NY Times] Only after the leak did the UN Secretary General acknowledge “moral responsibility” and the UN introduced the current plan. Alston then revised his report to include a section on how the UN has responded since his report was leaked in August and in what ways the response from the UN is still lacking. Alston’s final report was published by the UN. See Report of the Special Rapporteur on extreme poverty and human rights, UN Doc. A/71/367, 26 August 2016, paras. 74-77.
Phillip Alston commended the United Nations Secretary General and Deputy Secretary General for setting up the Haiti cholera Response Multi-Partner Trust Fund (MPTF). [OHCHR Press Release: Lawyers] However, Alston also expressed his disappointment that the UN has not included admitting factual or legal responsibility, providing a legal settlement, or offering an apology in its new plan to improve its response in Haiti. See Report of the Special Rapporteur on extreme poverty and human rights, para. 75. Alston opined that attempts to avoid responsibility for the cholera outbreak are irrational, since the UN is immune from national lawsuits, call into question its credibility. [OHCHR Press Release: Lawyers] Indeed, in presenting his report to the 71st General Assembly last month, Alston recognized the “valiant and dogged efforts” of organizations including the Bureau des Avocats Internationaux and the Institute for Justice and Democracy in Haiti, which have been pursuing litigation in United States courts to hold the UN civilly liable for introducing cholera to Haiti.
In his report, Alston wrote that the decision by the United Nations not to take responsibility for causing the cholera outbreak has lasting consequences, including denying the organization the opportunity to learn from the situation, which would be vital to preventing similar mistakes from occurring in the future. He also noted that avoiding responsibility perpetuates the UN’s ongoing credibility issues. [OHCHR Press Release: Lawyers]
Reactions to the United Nations Approach
United Nations Deputy Secretary General, Jan Eliasson, indicated that the new plan is emblematic of the solidarity the UN wishes to share with those affected by cholera in Haiti. [NPR] Eliasson further stated the UN’s legal position that it is immune from claims arising from the outbreak is necessary to avoid risks associated with working in “very poor and uncertain circumstances.” [NPR]
Global media suggest that without overtly acknowledging its actions, the UN has evaded its responsibility, failed to address the outbreak in Haiti, and jeopardized the institution’s credibility and moral authority. See Report of the Special Rapporteur on extreme poverty and human rights, at para. 40. Some scholars observed a double standard in which the United Nations refused to follow the same rule of law that it imposed on the rest of the world. See id. at para. 41.
Civil society has also spoken out about the approach that the United Nations has pursued in the wake of the cholera outbreak. A pledge, which contains endorsements from 37 non-governmental organizations, confirms the view that the United Nations is responsible for the outbreak in Haiti, and calls upon the Secretary General to commit to greater accountability and transparency within the United Nations. [Code Blue Press Release] In addition to the monetary improvements sought, civil society actors have emphasized the value of public recognition of, and an apology for, the United Nations actions in Haiti that lead to the outbreak, and the failure of the system to adequately attend to the harms that resulted. [IJDH Press Release]
Legal Responsibility of the United Nations
The UN’s previous and continued denial of legal responsibility for the outbreak in Haiti has been consistently in tension with a majority of expert commentator’s observations and guidance. See Report of the Special Rapporteur on extreme poverty and human rights, paras. 2, 19-23, 75. In November 2011, 5,000 cholera victims lodged a complaint with the UN Stabilization Mission in Haiti (MINUSTAH) calling for a hearing, compensation, preventative action, and public acknowledgement relating to the outbreak of cholera in Haiti; however, the UN deemed the claims non-receivable as political and policy matters under the 1946 Convention on Privileges and Immunities of the United Nations, and the UN ultimately dismissed the claims. See id. at paras. 28-29. In 2013 claims were filed in the United States, and in 2015 and 2016 US courts held that the defendants were immune from suit. See id.
Others, including many international scholars, disagreed that the claims should be categorized as political or policy matters. See id. at para. 34. Instead, they argued that the claims were akin to private law tort claims for negligence relating to the United Nations’ failure to adequately screen peacekeepers, to provide proper sanitation and waste management, to ensure water quality, and to undertake prompt remedial action. See id. Such claims, under the views of many scholars, would be typical of third-party claims for damages against the United Nations. The UN has processed negligence claims previously, for example, in the context of traffic accidents. See id.
Background on Cholera in Haiti
Cholera first appeared in Haiti in October 2010, after a contingent of United Nations peacekeepers traveling from a cholera infected area joined the MINUSTAH, impacting roughly 10 percent of the population in the region. [OHCHR Press Release] Scientific evidence overwhelmingly suggests that the cause of the outbreak was the UN peacekeeping mission. See Report of the Special Rapporteur on extreme poverty and human rights, paras. 2, 14.
In 2011, the UN Secretary General established a panel of independent experts to investigate the source of the outbreak, which concluded that it was due to contamination of a water supply through the dumping of fecal matter. See id. at para. 16. While the dumping of fecal matter suggests that UN peacekeepers held responsibility, the experts continued that the outbreak was made possible by a “confluence of circumstances,” including environmental considerations and deficiencies in the water and sanitation and health care systems, and that no one actor was at fault for its cause. See id. In 2013, the panel reassessed its finding and stated that United Nations personnel were most likely the source of the outbreak. It framed the actions as an accident and unfortunate series of events, finding again that no specific group or individual was at fault. See id. at para. 17. Reports indicated significant deficiencies in the waste management programs of MINUSTAH. See id. at para. 18.