Ban Ki-moon Explains to Congress Why the UN Won’t be Held Accountable for Cholera in Haiti

February 27, 2015

In December, Rep. John Conyers and 76 other members of congress wrote to United Nations Secretary General Ban Ki-moon, urging the U.N. to provide a settlement mechanism for cholera victims and their families and lays out the reasons why the UN should be legally obliged to provide such a mechanism.  The members of Congress add that, “while we applaud the UN’s efforts to secure more funding for cholera treatment….we wish to respectfully remind you that these efforts do not absolve the UN of its obligation to receive legal claims from victims of the epidemic and provide remediation for the affected communities.” 2 months later, Ban Ki-moon has finally sent the members of Congress a lengthy response which the defenders of Haiti’s cholera victims have characterized as “untenable as a matter of law and logic.”

In a letter, dated February 19, 2015, Ban Ki-moon responds to the 76 members of congress. Most of the letter is dedicated to outlining all the work the U.N. has done to combat cholera in Haiti.  The U.N. has indeed issued calls for cholera funding, but the Haitian government’s 10-year cholera eradication plan remains woefully underfunded. Just 18 percent of the $2.2 billion required has thus far been pledged, with less than 13 percent actually disbursed, according to the most recent data [PDF]. A donor conference in October failed to secure significant additional pledges of support.

Only at the end of the letter does Ban actually respond to the members of Congress’ request for a settlement mechanism for the victims of cholera.  After initially rejecting the claims of the victims in a terse statement with little explanation, Ban provides perhaps the most thorough explanation to date for why the U.N. will not hear the claims:

Claimants invoked Section 29 of the Convention on the Privileges and Immunities of the United Nations of 1946 (the “General Convention”) and paragraph 55 of the Status of Forces Agreement (SOFA) with the Government of Haiti, which implements Section 29(a) of the General Convention in the agreement with Haiti.

Section 29(a) is limited by its terms to the consideration of private law claims.  In the practice of the Organization, disputes of a private law character have been understood to be disputes of the type that arise between private parties, such as, claims arising under contracts, claims relating to the use of private  property in peacekeeping contexts or claims arising from motor vehicle accidents. The Organization has regularly received and provided compensation for such claims arising out of acts attributable to its peacekeeping missions and personnel.

I wish to assure you that, in the present case, the claims were thoroughly and carefully considered. After a review of the claims and the history and implementation of Section 29(a) of the General Convention, the claimants were informed that the claims were not receivable pursuant to Section 29 of the General Convention. As the claims in question raised broad issues of policy that arose out of the functions of the United Nations as an international organization, they could not form the basis of a claim of a private law character and, consequently, the claims did not fall within the scope of Section 29(a) of the General Convention. For the same reason, it was determined that these claims were not of the type for which a claims commission is provided under the SOFA, since the relevant provision of the SOFA also relates to claims of a private law character.

To read Ban’s full response, click here. Unfortunately, while this may be the most words a U.N. official has said about the legal case, it leaves much to be desired. Bruce Rashkow, a former high-ranking official in the U.N.’s Office of Legal Affairs wrote last year that the U.N. stance that cholera claims were “not receivable” was unprecedented. “Indeed, as the head of the UN legal office that routinely handled claims against the Organization for some ten years, I did not recall any previous instance where such a formulation was utilized in regard to such claims,” Rashkow wrote.

The Institute for Justice and Democracy in Haiti, which is representing Haitian cholera victims in their legal battle, provided the following response to Ban’s letter:

The Secretary-General’s assertion that the claims of Haiti’s cholera victims are an exception to the UN’s legal obligation to compensate people harmed by its negligence is untenable as a matter of law and of logic.  The Secretary-General fails to cite a single authority supporting the view that the cholera claims are not “disputes of a private law character.”  To the contrary, dozens of the world’s leading experts in international law — including many who have held positions in the UN — have reviewed the cholera victims’ claims against the UN in conjunction with the UN’s legal obligations. These experts agree that the cholera claims are private law claims, and that the UN had an obligation to settle them. The experts’ findings have been presented in a vast number of legal blogs, court briefs, and media articles, and are as applicable today as they were when the UN first dismissed the claims.

The cholera claims allege that the UN was a reckless and negligent manager of its property by discharging untreated, contaminated human waste from its toilets into the Meille Tributary. This conduct is unrelated to the UN’s peacekeeping mandate or any of the unique “functions of the United Nations as an international organization.” The challenge of properly disposing of the wastes our bodies produce is one that every single organization, and every single human, faces several times every single day. If the UN’s response to this most common activity “raise[s] broad issues of policy that arose out of the functions of the United Nations as an international organization”, then anything else the UN does can also raise similarly broad issues.  Even car accidents– the single category of personal injury claim that the Secretary-General’s letter conceded was a private law matter– could be described as involving broad issues of policy of how drivers are trained and supervised, or brakes maintained.

The case of cholera in Haiti is wholly different from a situation where a lawsuit is challenging a UN policy decision to deploy, or not to deploy a peacekeeping force. Such conduct may go to the core of the UN’s functions as an international organization.  But the proper disposal of waste that gave rise to the cholera claims does not. In this case, the UN owed the same duty of care to prevent contamination of the waterways around its base as any property owner —whether private or public — would have. In violating those duties, the UN committed a private law tort that is recognized as compensable under the UN framework.

The only difference between the cholera claims and the motor vehicle accident claims that the UN does settle is the sheer magnitude of the harm, which includes over 700,000 people sickened and almost 8,000 killed, and growing every day.  But there is no principled reason why the UN’s obligation to compensate should apply only when it injures a few people.

It is also important to note that the cholera claims are not about creating burdens, but allocating them. The burdens are created every time someone in Haiti gets sick, every time a child loses the parent who was providing for his or her school fees and food. The UN’s assertion of non-receivability is not just a technical legal assertion, it is a declaration that this burden should remain on the people least able to bear it in the hemisphere- Haitians who were desperately poor before cholera ravaged their communities—no matter how much fault the UN bears.

In January Judge Paul Oetken of the Southern District Federal Court in Manhattan dismissed a lawsuit brought by cholera victims. “The U.N. is immune from suit unless it expressly waives its immunity,” Judge Oetken wrote. The plaintiffs are currently appealing the ruling. While avenues towards accountability are being closed, Fran Quigley, professor at Indiana University’s McKinney School of Law, writes that:

A global movement ignited by Haitian human rights activists now includes passionate demonstrations in the streets of Port-au-Prince and Manhattan, petitions with tens of thousands of signatures, award-winning films, and the support of members of Congress and global leaders, including current and former UN officials. All call on the UN to take responsibility for cholera’s devastation, and to make things right.

Quigley concludes, “[t]he arc of the moral universe is long, but it bends toward justice. It will for the Haitian victims of the UN as well…”

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