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HAITI: is the UN thwarting justice?

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Cholera patients in HaitiCholera patients in Haiti
Haiti, Cholera and the United Nations: Negligence and the Rule of Law*
29 FEBRUARY 2012
By Lau­ren Carasik, Com­mon Dreams

When the United Nations Secu­rity Coun­cil vis­ited Haiti last week to assess its recon­struc­tion progress, it should have eval­u­ated the impact of the UN’s refusal to accept respon­si­bil­ity for the claims brought by vic­tims of the cholera intro­duced to Haiti by UN peace­keep­ers. Like any entity, the UN has a right to defend itself against claims lev­eled against it. In this case how­ever, the UN should con­sider whether efforts to thwart account­abil­ity under­mines its over­ar­ch­ing global mis­sion of pro­mot­ing the rule of law and fight­ing poverty.

Cholera, not seen in Haiti in almost a cen­tury and not endemic to the coun­try, hitched its way into Haiti through the UN sta­bi­liza­tion force, known by its French acronym, MINUSTAH. The Inde­pen­dent Panel con­vened by the UN to inves­ti­gate the source of the out­break essen­tially con­ceded that cholera was brought to Haiti by its forces and was spread through its neg­li­gent over­sight of waste dis­posal. Since cholera began its deadly march in Octo­ber, 2010, the epi­demic has claimed 7000 lives, sick­ened hun­dreds of thou­sands, and made life more mis­er­able for the mil­lions of Haitians already strug­gling to eke out a liv­ing in grind­ing poverty. Haiti now suf­fers the high­est rate of cholera infec­tion in the world, at 5% of the population.

Despite the strong evi­dence of malfea­sance, the UN endeav­ors to insu­late itself from lia­bil­ity by lay­ing the blame for the spread of cholera on the con­di­tions in Haiti that made it a par­tic­u­larly hos­pitable vec­tor for trans­mis­sion of the dis­ease. This defense flies in the face of tra­di­tional the­o­ries of tort lia­bil­ity, which require that wrong­do­ers take their vic­tims as they find them. In essence, the “eggshell skull” rule holds that neg­li­gent actors can­not escape lia­bil­ity for the harms they cause by point­ing to the par­tic­u­lar vul­ner­a­bil­ity of their vic­tims. This is exactly what the UN has done in this instance in attempt­ing to attribute the epi­demic to a “con­flu­ence of fac­tors” endemic to Haiti rather than its own conduct.

As the poor­est coun­try in the West­ern Hemi­sphere, Haiti’s woe­fully inad­e­quate infra­struc­ture for health and san­i­ta­tion could sur­prise no one. The UN, along with the Cen­ters for Dis­ease Con­trol and oth­ers had been warn­ing of a cholera out­break since the earth­quake. Cog­nizant of the frag­ile con­di­tions in Haiti, and the risk for the spread of cholera that such con­di­tions pre­sented, the UN should have taken height­ened pre­cau­tions to ensure that its peace­keep­ers were not car­ry­ing poten­tially epi­demic dis­eases, and fur­ther exer­cised sound over­sight of the waste dis­posal pro­ce­dures. The Inde­pen­dent Panel’s own rec­om­men­da­tions for future safe­guards demon­strate that such pre­cau­tions were fea­si­ble. Wrong­do­ing on the part of the United Nations is beyond dis­pute: the UN tac­itly admits as much in its report. By any stan­dard, the UN was negligent.

The UN’s defense, that Haiti’s vul­ner­a­bil­ity absolves it of lia­bil­ity, would be laughed out of court, if the UN would ever per­mit the adju­di­ca­tion of claims lev­eled against it. Instead, the UN has con­structed a web of pro­ce­dural pro­tec­tions designed to ensure that it will never face a full and fair hear­ing on com­plaints about its con­duct. The Sta­tus of Forces Agree­ment between Haiti and the United Nations con­fers broad immu­nity to MINUSTAH troops for crim­i­nal wrong­do­ing. Civil claims against the UN are osten­si­bly to be resolved by a three per­son Stand­ing Claims com­mis­sion estab­lished by the United Nations, a tri­bunal which has yet to be con­sti­tuted, despite the fact that MINUSTAH troop have been occu­py­ing Hait­ian soil since 2004.

It is notable that the UN has never estab­lished a stand­ing claims com­mis­sion in its other mis­sions, or oth­er­wise allowed claims of large scale malfea­sance to be tested in any fair forum. While the UN has a legit­i­mate inter­est in ensur­ing that spe­cious claims are not per­mit­ted to dis­tract from its mis­sion, it should not be given a free pass to com­mit acts of neg­li­gence with com­plete impunity. As an insti­tu­tion that pro­motes the rule of law, the UN should apply those ven­er­a­ble stan­dards to its own conduct.

The UN’s attempt to evade respon­si­bil­ity for the intro­duc­tion of the cholera epi­demic to Haiti and its dev­as­tat­ing after­math is incon­sis­tent with the UN’s over­ar­ch­ing mis­sion of advanc­ing the rule of law among its mem­ber states, with­out excep­tion. The UN should take seri­ously its oblig­a­tion to model good global stew­ard­ship: when pro­vided with the oppor­tu­nity to set an excel­lent exam­ple, the UN should seize the oppor­tu­nity to demon­strate that no one is above the law.

Lau­ren Carasik is a Clin­i­cal Pro­fes­sor of Law and the Direc­tor of the Inter­na­tional Human Rights Clinic and the Legal Ser­vices Clinic at West­ern New Eng­land Uni­ver­sity School of Law.

* This article was fiorst published by Common Dreams

To see more about IJDH’s Cholera Lit­i­ga­tion: http://ijdh.org/projects/cholera-litigation