Friday, July 12, 2024
HomeCountriesHaitiHAITI: is the UN thwarting justice?

HAITI: is the UN thwarting justice?

-

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

This article is funded by readers like you

Only with regular support can we maintain our website, publish LAB books and support campaigns for social justice across Latin America. You can help by becoming a LAB Subscriber or a Friend of LAB. Or you can make a one-off donation. Click the link below to learn about the details.

Support LAB