No Immunity from Cholera

Pressure is mounting on the United States to push the United Nations to respond more effectively to the cholera epidemic that broke out in Haiti in the aftermath of the 2010 earthquake. The epidemic has reportedly killed at least 9,200 and, by some estimates, perhaps as many as three times that number. Hundreds of thousands more have been infected. And the devastation isn’t over; Haiti continues to struggle to contain a disease that it had not previously faced for over a century.

Evidence points to United Nations peacekeepers as the most likely source of the disease in Haiti. An expert panel commissioned by the United Nations itself pointed the finger at the “haphazard” disposal of human waste at a UN base close to the epicenter of the outbreak, near a tributary to Haiti’s largest river—the primary water source for tens of thousands of people. Most recently, news outlets reported that an internal UN memo stated that improper disposal of human waste was a widespread problem at other UN bases across Haiti as well.

Despite this evidence, however, the United Nations has refused to accept responsibility for the outbreak and has resisted efforts to hold itself accountable. To date, the United States has supported the organization in its resistance. However, several groups, including the New York City Bar Association, have called on Washington to take concrete steps to ensure that the United Nations provides a mechanism that victims can use to fairly settle their claims against the organization. In a letter sent to U.S. Secretary of State John Kerry last week, a bipartisan group of 158 members of Congress urged the State Department to “immediately and unreservedly exercise its leadership” to ensure “a more just UN response.”

Victims of cholera have brought suit against the United Nations in federal court in New York, where the body is headquartered, and the case is currently being appealed. UN spokespeople claim that the organization is protected from suit under a 1946 international convention that grants it immunity. However, that same convention requires the United Nations to provide an alternative mechanism to hear and resolve claims against it. The organization’s status of forces agreement, which establishes the framework under which it conducts its peacekeeping operations in Haiti, also requires the United Nations to provide mechanisms with which to resolve third party claims.

When cholera victims petitioned the organization to fulfill its treaty obligations, however, the United Nations summarily rejected the claims as “not receivable” because it regarded those claims as necessarily involving “political and policy matters”—a legal position that it has not explained further and that many observers have questioned. On the basis of that position, the United Nations has refused to discuss potential remedies to compensate victims, and the United States has actively supported the body’s subsequent claims of immunity. In short, the United Nations seems to be using its immunity to deny victims of the cholera epidemic any recourse.

Remarkably, in an unprecedented 2015 letter to the secretary-general that the UN Office of the High Commissioner for Human Rights made public earlier this year, five of the United Nations’ own appointed human rights experts sharply criticized the organization’s position. They emphasized that the response “undermines [its] reputation,” calls into question “the ethical framework within which its peacekeeping forces operate,” and “challenges [its] credibility … as an entity that respects human rights.”

By invoking legal immunity, the United Nations is arguably placing that very immunity in jeopardy. The principle that treaty promises must be fulfilled is a fundamental precept of international law. When a party fails to fulfill its treaty obligations, other parties to that treaty need no longer fulfill their own obligations. A government or court might well find that the United Nations has breached the 1946 convention, and decline to extend immunity to the organization unless it provides an appropriate dispute resolution mechanism for Haiti’s cholera victims.

The United States must do more to urge the United Nations to take responsibility for its actions. There are good reasons why international organizations enjoy certain privileges and immunities, which enable them to carry out core functions without being undermined by vexatious litigation in domestic courts around the world. If the UN worked with Haiti to create the “standing claims commission” that the status of forces agreement between them demands, the United Nations could ensure that those privileges and immunities are left undisturbed.

Even then, however, the United States and other UN member states must help ensure that the United Nations has funds to compensate Haiti’s cholera victims. The UN’s Office of Legal Affairs has made it clear that the United Nations is obligated to pay for legal liabilities that it incurs or settles, and that obligation is necessarily indirectly borne by the organization’s member states. As the largest financial contributor to the United Nations, the United States can play a powerful role in bringing together representatives of the United Nations, other member states, and cholera victims to establish compensation mechanisms that are fair to victims, practical for the United Nations, and acceptable to the member states.

However, stronger leadership will be necessary to achieve that result. During oral argument before the federal appeals court in March, the judges asked the attorney representing the U.S. government what the United States has done to ensure that the United Nations complies with its obligations to the victims. The attorney was not able to point to anything in response.

Haiti and its cholera victims deserve better. The United States should use its influence within the international community to urge the United Nations to meet its obligations. Otherwise, the organization may find itself compromised or Haiti’s cholera victims may find themselves without any remedy—a potential result that Judge Barrington Parker aptly described at the recent oral argument as “very, very bad.” Bringing justice to the victims of cholera is not only good for U.S. legal and foreign policy, but will also ensure that international law and human rights are afforded the respect they deserve.