Allison Shelley / Courtesy Reuters Boys on their way to fill water jugs pass a cross marking a burial site for earthquake and the cholera victims outside Port-au-Prince, January 10, 2011.

Haiti Strikes Back

By Taking the UN to Court, the Country Might Save Itself

One October night in 2010, Jacqueline Olonville woke up with sharp pains in her stomach. She rushed to the toilet behind her home in the village of Bocozelle, Haiti, but she could not relieve the pain or stop the relentless diarrhea that soon followed. When she tried to stand up, she began vomiting. Her legs gave out underneath her. Some of her older children heard her cries. They borrowed a neighbor’s motorbike and rushed her across the pitted dirt roads to the nearest hospital. There, they found a panicky staff already tending to dozens of others in similar distress. It was a massive outbreak of cholera.

The World Health Organization labels cholera as “easily treatable.” The main remedy is rehydration, often with oral salt solutions and sometimes with intravenous fluids and a course of antibiotics. But treatment works only if it is provided soon after infection, and many in Bocozelle never reached the clinic in time. Hospital staff, desperate to avoid further contamination, quickly placed the bodies of the dead in bags and took them to a pit to be buried with other cholera victims.

In both its origins and its effects, cholera is a decidedly foul disease. The process starts when the bacterium Vibrio cholera gets into a water supply through fecal contamination. Anyone who drinks the water can become infected, which causes acute watery diarrhea, which, in turn, spreads the pathogen with ruthless and disgusting proficiency. Left untreated, the diarrhea caused by cholera quickly drains the body and can cause death within hours. Extremely virulent, and with a short incubation period of two hours to five days, cholera also moves quickly, potentially spreading across an entire region in just days.

To understand what that means, take the case of Haiti. Before mid-October 2010, hospital admission records along the valley of the Artibonite River, Haiti’s longest river, show only occasional treatments of patients for diarrhea. Then, on October 18, an agricultural worker fell ill with diarrhea and was declared dead on arrival at Albert Schweitzer Hospital in Deschapelle. St. Nicholas Hospital in St. Marc, which is several kilometers south of Bocozelle, went from zero cases of diarrhea on October 18 to 18 cases the next day. The hospital then saw 404 cases on the 20th, with 44 deaths. “I had to fight my way through the gate as a huge crowd of worried relatives stood outside, while others screamed for access as they carried dying relatives into the compound,” one witness described. “The courtyard was lined with patients hooked up to intravenous (IV) drips. It had just rained and there were people lying on the ground on soggy sheets, half-soaked with feces.”

Hospitals were unprepared for the onslaught and did not have adequate supplies of rehydration salts or “cholera cots” -- beds with holes in the middle to allow the volumes of diarrhea to exit from patients unable to control their bowels. Instead, patients defecated in the beds or on the way to toilets, and the floors were often covered in human waste. Given those conditions, it is not surprising that the disease hasn’t ever really let up. By early 2014, cholera had killed over 8,500 Haitians and infected nearly 700,000. That figure represents nearly one in every 15 people in the country. In the United States, that same rate of infection would amount to 22 million cases, more than the population of the New York metropolitan area.

Back in Bocozelle, Olonville, who survived, is now 54 years old. She is back to work selling plantains and cold drinks out of a battered royal blue cooler set up next to the road that runs through Bocozelle. Behind her is her home, a small concrete square with a paper copy of the Haitian flag taped beside the door. Just south of there, the road meanders past emerald green rice fields. Cows graze on the edges of the fields and young people bend over to pull up rice shoots. So much of Haiti’s countryside is dusty and dry, with every available tree cut down to make charcoal. But these fields are flooded by cool, clear water flowing from a complex series of canals that originate in the Artibonite River. The river also leads to the Bocozelle town pump, the water source for Olonville and everyone in her community until October 2010.

And that is what made the town so welcoming for a waterborne disease like cholera. In Bocozelle and in much of the rest of Haiti, river water is used for bathing, drinking, and washing. Haiti has no municipal sewage system and most people live without access to any kind of treated water. One Water Poverty Index survey of 147 countries across the world ranked Haiti dead last. With Haiti home to so many charitable non-governmental organizations -- Haitians sometimes wryly refer to their country as the “Republic of NGOs” -- the fact that the country still has no clean water might seem surprising. But it takes government-scale efforts to launch systemic water, health, and sanitation reform. One Haitian proverb is often cited to explain the recurring cycle of private humanitarian assistance unaccompanied by efforts toward building responsive government systems; the process, they say, is like washing your hands but drying them with dirt.

SORRY WE’RE NOT SORRY

To the casual observer of this troubled country, an infectious disease outbreak was sad but unsurprising news. Haiti has endured more than its share of public health crises in the past century, from the HIV pandemic that hit Haiti hard in the 1980s to the massive earthquake that rocked Port-au-Prince in January 2010. But cholera had not been among Haiti’s many woes. In fact, the country had not reported a single instance of cholera in over a century. What triggered this sudden, deadly onset?

It was not hard to track the path of the infections. The first hospitalized cholera patients lived in Meille, a small village a few kilometers south of Mirebalais. The villagers consumed water from the Meille Tributary, which flows into the Artibonite. From there, the cholera outbreak traveled down the Lower Artibonite and spread out into the valley surrounding it. Just a few hundred meters upstream from the homes of those first sickened in Meille sits a United Nations camp that houses troops serving as part of the UN mission in Haiti, known by its French acronym, MINUSTAH.

Days after cholera-stricken Haitians began flooding into hospitals, Associated Press reporter Jonathan Katz visited the UN camp and observed an overflowing sewage tank, a smell “like a toilet had exploded,” and dark, foul-smelling liquid pouring out of a broken pipe toward the river. Katz also saw uncovered waste pits of feces sitting uphill from the river and observed waste from the UN base being transported to the pits by a private contractor. Area residents said that, during rainfall, the sewage pits routinely overflowed into the Artibonite tributary. “Frankly, the place was a sanitation clusterfuck,” Katz later wrote in a blog.

MINUSTAH issued a statement saying there was no reason for concern. But during his visit, Katz saw UN military police at the base testing for cholera. The camp was populated with troops from Nepal, and three groups of new contingents of peacekeepers had arrived from their home country between October 9 and October 16. The troops had come from the Katmandu valley, which, in the previous two months, had reported a surge in cholera.

That was all the information most Haitians needed to blame MINUSTAH. It also didn’t help that the major UN presence in Haiti, which is both enduring (now ten years old) and vast (over eight thousand uniformed UN personnel), has courted a steady stream of controversy. MINUSTAH’s 2004 arrival in Haiti came on the heels of the forced exit of President Jean-Bertrand Aristide, which many Haitians still resent as a U.S.-supported coup. After its arrival, MINUSTAH provided little or no protection to the civilians targeted by the post-coup government. In addition, MINUSTAH troops have been implicated in several incidents of political violence and in multiple allegations of sexual assault against young Haitians, but they enjoy immunity from prosecution guaranteed by a Status of Forces Agreement between the UN and Haiti’s post-Aristide government 

Within weeks of the first wave of illness, then, anti-UN demonstrations broke out in several Haitian towns. Graffiti referencing Edmond Mulet, the UN’s special representative in Haiti, appeared on walls in Port-au-Prince: Mulet = Kolera. Meanwhile, the UN continued to deny responsibility. Worse, in the eyes of many Haitians and health-care providers, the organization failed to do much to help the hundreds of thousands of Haitians falling ill. “Is the UN doing everything they could to stop the epidemic now that it’s started?” asked Evan Lyon in 2012. Lyon is a doctor with Partners in Health, the organization co-founded in Haiti by the anthropologist and physician Paul Farmer. “They are not,” Lyon said “The response has not been up to the problem. If it was, people would not be dying at the rate they are dying.”

Within a few weeks of the cholera outbreak, the angry consensus of the Haitian populace was confirmed by several scientific studies. The U.S.-based Centers for Disease Control and the Harvard Cholera Group analyzed the genetic material of the Haitian strains of the Vibrio cholera bacterium and found that they were all identical, pointing to a common source. And, by all accounts, that common source was a strain previously isolated in Nepal, which the Haitian strains perfectly match. It turned out that UN personnel had done a shockingly bad job screening for the disease in troops headed to Haiti, even though the UN was well aware of the risk.

With international pressure mounting, UN Secretary-General Ban Ki-moon formed an independent panel of four international experts to conduct their own investigation into the source of the outbreak. The report issued in May 2011 largely echoed the findings of the other investigations, labeling the MINUSTAH camp sanitation system as “haphazard” and noting the deficient screening of troops. So case closed? Not quite. The report also insisted that the precise country of origin of the Haitian cholera strain is “debatable” and that the source of the cholera was no longer relevant to controlling the outbreak, which “was caused by the confluence of circumstances . . . and was not the fault of, or deliberate action of, a group or individual.” One brutally apt metaphor was inescapable for Haitians: the international community had just defecated all over them, and was getting a bit annoyed that Haitians would not shut up about it.

LAW AND ORDER

For more than a year after the cholera outbreak in Haiti, a status quo endured: all the signs pointed toward UN culpability, the UN deflected responsibility for its actions, and Haitians continued to fall ill and die. All the while, Haiti’s most formidable human rights lawyers debated whether there was anything they could do about it.

For Mario Joseph, the director of the Bureau des Avocats Internationaux (BAI) in Port-au-Prince, the cholera epidemic was personal. His home village of Borel is located in the Artibonite Valley, with the river serving as the Joseph family’s source of drinking water, irrigation for rice fields, and countless other daily activities. “When I was a little kid, everyone used to drink that water, use it to water their garden, wash their clothes, and it still is used like that today,” he says. “This is why I say that river is our life. It is like our soul.” Joseph, whose brothers and 77-year-old mother still lived in the area when cholera broke out, makes no effort to hide his anger toward the UN. “It gave me heartbreak to hear that the river is contaminated when my family is living close by and could have caught this sickness. It is an injustice.”

Joseph’s childhood was marked by the deprivation so common to rural Haitians. His mother was illiterate, and there was no running water or electricity in the family home. But the young Joseph was accepted into a missionary school, and then did odd jobs and tutored neighborhood children to pay his university tuition. When he earned his law license, Joseph became one of the country’s first lawyers not to come from a privileged background. He joined the fledgling BAI in the late 1990s, where he partnered with another young attorney, Brian Concannon, a Creole-speaking American who had recently left a Haiti-based job with the UN.

The first case that Joseph and Concannon worked on together was a seemingly quixotic effort to civilly and criminally prosecute dozens of military and paramilitary soldiers and officers who had carried out a brutal 1994 massacre of political opponents in the coastal community of Raboteau. The chances of success seemed negligible. The Creole proverb, Konstitisyon se papye, bayonet se fè -- the Constitution is paper, the bayonet is steel -- accurately summarizes Haiti’s troubled history of impunity for the powerful. But the two lawyers spent years digging up incriminating documents, interviewing witnesses, and haranguing reluctant government officials and judges. They also sorted out their own working relationship; initially, Joseph was convinced that Concannon worked for the CIA.

Finally, in 2000, the Raboteau case went to trial. International observers flew in to watch the proceedings while Haitians across the country listened to live courtroom broadcasts on their radios. After weeks of dramatic testimony, 53 soldiers and officers were convicted of human rights violations. They were sent to prison, and the court ordered the defendants to pay the victims the equivalent of $140 million. Joseph and Concannon had won for their clients the most significant human rights court verdict in Haitian history.

Concannon eventually returned to the United States and founded the Institute for Justice and Democracy in Haiti (IJDH). Now working from Port-au-Prince (Joseph) and Boston (Concannon), their unique partnership has defended multiple Haitian human rights advocates and pushed for housing rights for the hundreds of thousands of Haitians displaced by the 2010 earthquake. They are also the driving force behind the ongoing prosecution of former Haitian “President for Life” Jean-Claude Duvalier for crimes against humanity.

All that might seem like enough, but one of the partnership’s signature efforts has been advocacy for a strong local and international response to the epidemic of rapes that struck refugee camps after the earthquake. One study showed that a startling 14 percent of families in the camps had at least one member who had been sexually assaulted in the months after the earthquake. Initially, the police and the prosecutors and the judges in the Haitian justice system responded to this crisis with indifference and even hostility. Urgent calls to the police were ignored. Women reporting rapes were questioned about whether they were wearing provocative clothing or somehow triggered the attack. One Haitian judge even told a women’s advocacy group that he did not believe in rape.

Together, Joseph, fellow advocates, and several energetic women’s groups connected to the BAI intervened. They accompanied victims and their families to the police stations and courts, where they insisted that police and court officials pursue the cases. They also created security patrols and held know-your-rights training in the camps. The lawyers pushed the government to move forward with prosecutions. And their U.S. partners launched an international advocacy campaign through media and official channels, including filing claims with the Inter-American Court of Human Rights. Soon, women became more willing to make official complaints. Rape prosecutions moved ahead, and several defendants were convicted and imprisoned. The number of attacks sharply diminished. Joseph and his partners were helping individuals, and they were doing so in a way that circumvented the old ways of drying one’s hands with dirt. “Where the rule of law does not exist,” Joseph says, “you have to build it.”  

SO SUE ME

In the months after the 2010 cholera outbreak, Joseph and his U.S. colleagues, Concannon and Ira Kurzban, a Miami immigration attorney and former Aristide advisor, started pondering the idea of suing the UN for the harm caused by cholera. But they could not agree to move forward. Joseph and Kurzban were ready to plunge ahead, but Concannon resisted. Although he had been known to call the Haitian human rights battle “the mother of all social justice struggles,” Concannon also had more prosaic duties. He was responsible for the IJDH budget and staff, both of which were depleted by the response to the earthquake of 2010 and the push to prosecute Duvalier, who had returned to Haiti in January 2011. The tiny IJDH, whose budget mostly goes to support the in-Haiti work of BAI, could not take on a case with such a massive scope, Concannon argued. Every day at the BAI offices in Port-au-Prince, more post-earthquake rape victims, Duvalier victims, and internally displaced camp dwellers at risk of eviction were showing up, and the organization kept agreeing to help them. Concannon also thought a lawsuit was unnecessary, as he firmly believed that the UN would assume responsibility and make things right. It took the 2011 UN-commissioned report on the outbreak to convince him that he was wrong. 

At a congressional briefing in April 2012, Concannon explained why he questioned whether lawyers had any business inserting themselves into the middle of a global health crisis:

"When the epidemic first hit, we thought we would sit out. We did not think this was a place for lawyers. We thought this was a place for people to provide medical treatment, to do the public education needed, to do the well-drilling, to stop the immediate harm. We also assumed that in a case where the damage was so great, and the liability so clear, that the UN would take responsibility. I started out in Haiti as a volunteer with the UN, and I understand how a big organization can struggle with accountability issues. But it never occurred to me that the UN would fail to take responsibility for this. . . . Eventually, though, we got tired of looking at our feet when Haitians said, 'Who is going to do something about this?'"

In 2011, Kurzban donated $20,000 so that BAI and IJDH could start work on the case, a sum they hoped would cover several months of investigation and preparation. The organizations ran through that money in a matter of weeks. BAI was deluged with thousands of cholera victims presenting distinct factual claims, medical evidence, and next-of-kin documentation. But now, funds depleted or not, IJDH and BAI were all in. In November 2011, lawyers with BAI delivered over 5,000 separate individual claims, plus a summary 37-page document called “Petition for Relief,” to the MINUSTAH base in Tabarre, Haiti. Lawyers with IJDH delivered identical documents to the New York office of the UN secretary-general. The petition requested compensation for the victims, a public apology, and the establishment of a countrywide program for clean water, sanitation, and medical treatment. “The UN is a unique global leader,” the Petition read. “It leads in setting human rights standards, in reaffirming the dignity and worth of all people, and in ensuring justice. Today, Petitioners simply ask the UN to live up to the noble ideals it promotes.”

The emotional and factual claims that the cholera victims and their next-of-kin made against the UN were clear enough, but the process by which they would be reviewed was not. The UN’s 2004 status of forces agreement with the Haitian government was designed to provide peacekeepers with immunity from just such claims filed in the Haitian courts. In return for the immunity, the UN had pledged to establish a standing claims commission to receive and review any Haitian complaints of injury, illness, or death attributable to peacekeepers’ actions. No such commission has ever actually been established in Haiti -- or in any country that hosts a UN mission, despite similar agreements. 

Since the UN failed to honor its promise to create a commission to hear the cholera victims’ claims, Concannon argues, it has forfeited its immunity from lawsuits. The cholera petitioners should be allowed to head to court. “It is actually a very easy case in terms of proof,” Concannon says. “We are simply relying on UN facts and UN law to ask the UN to live up to their own ideals.” Yet no tribunal in history has ever heard a case quite like this.

Joseph says that the UN’s reaction will affect the organization’s legitimacy in Haiti and beyond. “This case is important,” he says, “because it calls for the United Nations to uphold the principles they promote, especially the most basic human rights of life, health, and justice.” On that score, the organization might have already failed. The UN has called for global action to address the Haiti cholera epidemic, but in February 2013, UN Secretary-General Ban Ki-moon issued a statement saying that the claims filed by IJDH and BAI were “not receivable.” The ruling triggered an immediate reaction in Haiti and across the globe. The Haitian Kolektif Mobililizasyon Pou Dedomaje Viktim Kolera Yo (The Collective to Mobilize for Reparations for Cholera Victims) asked, “What moral right does the UN now have to speak about human rights or democracy in Haiti or anywhere else?” Editorials in major newspapers accused the UN of hypocrisy and diplomats and public health experts sharply criticized Ban’s response.

For Joseph and Concannon, his statement left them with no choice but to pursue litigation. In October 2013, on behalf of the thousands of cholera victims, they filed a class action lawsuit against the UN in the U.S. District Court for the Southern District of New York. Their complaint asks the court to order the UN to provide the water and sanitation infrastructure necessary to stop cholera, compensate the victims, and issue an apology to the Haitian people. The U.S. government responded to the suit on behalf of the UN, arguing that the complaint should be dismissed. Briefing is ongoing at the trial court level, with an appeal likely to occur no matter what decision is reached there.

As they push for a settlement or judicial ruling, IJDH and BAI continue to try their case in the court of public opinion. They have supported online petitions to the UN; promoted a documentary film, Baseball in the Time of Cholera; and lobbied international representatives to the UN. They write op-ed columns, send out endless Twitter and Facebook updates, and speak on panels an in front of the U.S. Congress wherever they can wrangle an invitation.

Meanwhile, in Haiti, Joseph has been hosting delegations of U.S. law students and human rights lawyers, giving endless media interviews about the case, and helping to organize the ground-level advocacy. When he addressed a protest on Human Rights Day, the anniversary of the signing of the Universal Declaration of Human Rights, outside the MINUSTAH base in St. Marc, Joseph exchanged his usual uniform of suit and tie for a T-shirt and baseball cap, “The Universal Declaration says everyone has the right to health, to life to education,” he said in Creole. “Do we have those rights?”

“No!” the crowd yelled in unison.

“So we are not here to celebrate today, but to demand justice. We need justice!” Joseph cried. “Can we wait?” he asked. 

“No, we can’t wait!” the crowd responded, people jumping up and down and waving their hands. The response smoothly converted into a hand-clapping, jumping chant of “Jistis ak reparasyon [justice and reparations], jistis ak reparasyon, jistis ak reparasyon!”

JUSTICE AND REPARATIONS

In part, the cholera claims face such significant barriers, and also carry so much potential, because of the sheer scope of the harm caused. When a reckless act triggers an epidemic that sickens half a million people and claims twice as many lives as the 9/11 attacks, a proper response is not going to be cheap. After all is said and done, Concannon and Joseph’s proposed remedy for the cholera litigation could cost over $30 billion. Historically, the closest analogs have been the claims against Swiss banks for retaining and concealing assets of Holocaust victims and profiting from slave labor, a $1.25 billion payout, and the $470 million that Union Carbide was ordered to pay to victims of the 1984 leak of poisonous gas from its Bhopal, India pesticide plant.

One often-mentioned potential remedy, the UN assuming the responsibility for creating a desperately needed water and sewage system in Haiti, is remarkably broad. But it also is well-tailored to address the problems that led to the tragic epidemic. “Cholera is really a 19th century problem. It’s not a modern medical problem,” Lyon says. “Medicine can save lives, but to stop the epidemic, there needs to be better infrastructure and better capacity to provide safe clean water to people, and, of course, sanitation.” IJDH estimates that a clean water and sanitation infrastructure, which would be run by the Haitian government, would save 40,000 Haitian lives in the first decade of its operation.

One of the supporters of the cholera reparations campaign is Ruth Wedgwood, a professor of international law and diplomacy at the Paul H. Nitze School of Advanced International Studies at Johns Hopkins. Formerly a U.S. member of the UN Human Rights Committee and the U.S. State Department’s Advisory Committee on Public and International Law, Wedgwood is a firmly entrenched member of the foreign policy establishment. But she does not see the cholera claims as radical. “I am no bleeding heart. But this situation scandalizes me. The major problem is that the claims are for so much money, which is what is causing the UN’s paralysis. But what is really needed going forward in Haiti is a new water system, and building that is clearly the right thing to do,” Wedgwood says. She references the recent mea culpas issued by the UN in the wake of its failure to prevent killings in Rwanda in 1994 and Srebenica in Bosnia and Herzegovina in 1995. “The UN always writes these great reports after the fact, saying we’ll do it better next time. It is next time now. All the lamentations from Srebenica, from Rwanda, don’t mean anything if there is a new situation with similar mortality that can be fixed.” 

There is some indication that all the campaigning is paying off. In late 2012, UN Secretary-General Ban Ki-moon restated the outlines of a $2.2 billion initiative to address the cholera epidemic in Haiti. The plan included a variety of measures, most notably the building of the water and sanitation infrastructure that cholera victims and their advocates had been calling for. So far, the UN and the international community have committed to pay only a fraction of the estimated cost of the program. But the existence of a high-profile cholera initiative suggests that the UN is at least feeling the pressure.

Back in Bocozelle, Jacqueline Olonville is doing her part. When she heard that the UN was likely responsible for the devastation all around her, she felt an obligation to take action. She added her name to the claims filed by BAI. She traveled to the demonstrations against MINUSTAH not only in nearby St. Marc, but also in faraway Mirebalais. Olonville even overcame her shyness to speak at the demonstrations on behalf of other victims. “MINUSTAH came here and killed our families and God’s children, so I want them to leave and give us back our country,” she told the crowd. 

Olonville has never taken a stand like this before. She confesses to having doubts about whether she is doing the right thing. As she stands on her porch, she gestures toward the homes of her neighbors, many of whom have mocked her efforts. The neighbors are angry at the UN and frightened of kolera, too, she says. But they cite Haiti’s long history of impunity for the powerful. “They say this is a lost cause, and we are wasting our time,” Olonville says. “But we are hoping this is not all for nothing and something can come from all this.”

What would that “something” be, I ask. “Jistis ak reparasyon!” she replies -- justice and reparations.

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