The danger of two-tiered justice: Lessons from the Haiti cholera case

During a visit to Kenya in July, the United Nations (UN) Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, urged the Kenyan government to help realize Kenyans’ constitutional rights to water and sanitation by adopting the country’s pending water bill. The bill has the potential to create a framework for devolving services to counties while promoting adequate minimum standards and sustainability. ‘The Kenyan government must seize the opportunity,’ said the Special Rapporteur. ‘The rights to water and sanitation should not remain a dream for so many.’[1] But what happens when the UN itself prevents the realization of these rights? An on-going case brought by Haitian victims against the UN provides surprising lessons for other countries in the Global South.

Haitians continue to dream of access to clean water and sanitation as they face a cholera epidemic that has killed over 8,600 people and infected more than 705,000 [2] since UN peacekeepers recklessly dumped faecal waste containing vibrio cholerae bacteria into a tributary of the Artibonite River—a primary source of water for bathing, washing and drinking—in October 2010. Unlike Kenya, which has recorded several outbreaks since the 1970s,[3] Haiti had never experienced cholera before.

Cholera has been so deadly in Haiti because the vast majority of Haitians lack access to improved water sources that would protect them from contracting the disease. This lack of clean water is a legacy of Haiti’s colonial past. Immediately after the 1804 Revolution, France imposed debilitating ‘compensation’ payments on Haiti for its loss of enslaved people, leaving the newly independent nation unable to invest in infrastructure development. Although successive dictatorships might be blamed for the government’s subsequent failure to improve the water and sanitation infrastructure, interference in Haitian affairs has also played a damaging role. Haiti’s history is marked with interventions by the United States (US) even after its invasion and occupation of Haiti between 1915 and 1934. In 1998, for example, the Haitian government secured a $54 million loan from the Inter-American Development Bank (IDB), targeted at financing overdue improvements in the country’s water and sanitation systems.[4] In contravention of the IDB Articles of Agreement, the US blocked the loan in an attempt to curb support for then president Jean-Bertrand Aristide.[5]

More recently, the Haitian government’s efforts to implement a 2009 law reforming the water and sanitation sector [6] were cut short by the 2010 earthquake, which further weakened already ineffective public systems and aggravated chronic violations of the rights to clean water and sanitation. The international aid provided in response to the quake largely bypassed the state, making sustainable improvements elusive. Against this history, the UN’s introduction of cholera, and its refusal to accept responsibility, is among the gravest violations.

Haitians are fighting for justice following the UN’s introduction of cholera to their nation. In November 2011, over 5,000 cholera victims attempted to file a claim with the claims unit of the UN Stabilization Mission in Haiti (MINUSTAH) and with the UN Secretary-General. They sought: (1) measures to be taken by the UN to improve the water and sanitation system and to provide adequate health services in order to prevent the further spread of cholera; (2) compensation; and (3) a public apology.[7] When it finally responded in February 2013, the UN asserted that the claims were ‘not receivable’ because they ‘would necessarily include a review of political and policy matters.’[8] Following this unsatisfactory response, in October 2013 Haitian and Haitian-American cholera victims filed a groundbreaking lawsuit in a New York federal court. The lawsuit seeks installation of an adequate water and sanitation system and compensation for victims. However, the UN has not appeared in the case, and instead asked the US government to intervene and seek the dismissal of the case, taking the position that it is immune from the suit. This, despite the fact that by rejecting the claims, the UN has breached an agreement between the UN and the Haitian government which obligates the UN to set up a commission to hear and compensate any private law claims, such as personal injury claims, that result from MINUSTAH’s activities.[9] In late September, the judge granted the plaintiffs’ request for oral arguments to address jurisdictional issues, including this question of immunity.[10] The court’s decision to hear these arguments—coincidentally, on the day before UN Day (23 October 2014)—demonstrates that despite the UN’s objections, the nature of its immunity is an open question for the court.

There is precedent for the UN to establish a mechanism for compensating victims of its wrongdoing.[11] Between 1965 and 1967, the UN responded to demands from the governments of Belgium, Greece, Italy, Luxembourg and Switzerland, compensating their citizens for injuries and deaths resulting from UN peacekeeping operations in the Congo. The UN paid out $1.5 million to the Belgian government alone, which was to disburse the funds to 581 citizens.[12] In a 1965 letter regarding this compensation, the then Secretary-General wrote, ‘It has always been the policy of the United Nations, acting through the Secretary-General, to compensate individuals who have suffered damages for which the Organization was legally liable.’[13]

HAS THE POLICY CHANGED?

In response to questions about this apparent incongruity, the UN emphasizes that it has established, along with the Haitian government, a Joint High-Level Committee for the Eradication of Cholera and is soliciting donor support for a $2.2 billion cholera elimination plan. However, in early October 2014, the Secretary-General reported that this 10-year plan had received only 10 percent of the necessary funding.[14] Meanwhile, MINUSTAH’s budget since July 2010 has exceeded $2.19 billion—a seemingly high peacekeeping budget for a country where there has been no armed conflict in recent history.[15] Slow funding for the cholera response, then, is not about a lack of money but a lack of political will.

Even within the UN, however, experts are increasingly recognizing that Haiti needs justice, not ineffective charity. In a June 2014 report, the Special Rapporteur on the human right to safe water and sanitation underlined ‘the obligation to investigate the allegations in order to establish responsibility for any violations and to ensure the alleged victims’ right to a remedy, including compensation, if warranted.’[16] Similarly, in October 2013, then UN High Commissioner for Human Rights, Navanethem Pillay, announced that she ‘st[ood"> by the call that … those who suffered as a result of that cholera be provided with compensation.’[17]

Haiti may be thousands of kilometres away, but as the country grapples with colonial legacies, neo-colonial infringements, corruption, socio-economic hurdles and democratization challenges, its citizens’ struggle for UN accountability may carry lessons for the African continent as well. Haiti lacks the clout to demand that the UN compensate its citizens. You cannot bite the hand that feeds you. But, by refusing to even establish a commission as stipulated in its agreement with Haiti, the UN is creating a two-tiered justice system—with one tier catering to the countries wielding the political and economic power to negotiate with it and another for those, like Haiti and other countries in the Global South, that do not.

What happens when it is the UN, the global promoter of justice and rule of law, which fails to respect its obligations in the Global South? During a recent visit to Haiti, Secretary-General Ban Ki-Moon told graduating Haitian police cadets, ‘The Haitian State will have to show the people that it can enforce the law and demonstrate that in a democratic nation; no one—including political authorities and the police themselves—is above the law.’[18] Yet the Haiti cholera case suggests that the UN itself has not abided by this bedrock principle. The immunity that enables the UN to do its important work worldwide should not include impunity to disregard its obligations to any people, regardless of where they reside.

* Brenda K. Kombo is a Public Interest Law Scholar pursuing her Juris Doctor at Northeastern University School of Law. Between June and August of this year, she was an Ella Baker Fellow at the Institute for Justice & Democracy in Haiti. She thanks Beatrice Lindstrom, Shannon Jonsson, Adam Houston, Professor Aziza Ahmed, and Professor Frank Holmquist for their insightful feedback on various drafts of this article.

END NOTES
[1]. UN News Centre (2014) ‘Rights to safe water, sanitation must not remain mirage for millions of Kenyans – UN expert’, http://www.un.org/apps/news/story.asp?NewsID=48367#.VFUcgKNQBNQ, accessed 1 November 2014.
[2]. UN Office for the Coordinator of Humanitarian Affairs (2014) Haiti: Cholera Snapshot (September 2014), http://tinyurl.com/nhsmpmh, accessed 3 October 2014.
[3]. World Health Organization (2009), Global Task Force on Cholera Control, Cholera Country Profile: Kenya, http://tinyurl.com/qeso5m3, accessed 19 August 2014.
[4]. Inter-American Development Bank (1998), Potable Water and Sanitation Sector Reform and Investment Program, Loan Proposal, http://www.iadb.org/projectDocument.cfm?id=454841, accessed 3 September 2014.
[5]. B. Lindstrom (2011) ‘Law in the Time of Cholera: Violations of the Right to Water in Haiti’, 24 January, http://tinyurl.com/klgslqm, accessed 3 September 2014.
[6]. Le Moniteur (2009) ‘Loi cadre portant organisation du secteur de l'eau potable et de l'assainissement en Haïti’, 25 March, http://www.pseau.org/outils/biblio/resume.php?d=1629, accessed 13 October 2014.
[7]. Institute for Justice & Democracy in Haiti (2014), ‘Cholera Litigation’, http://www.ijdh.org/cholera/cholera-litigation/, accessed 28 September 2014.
[8]. Ibid.
[9]. UN-Haiti (2004) ‘Agreement between the United Nations and the Government of Haiti Concerning the Status of the United Nations Operations in Haiti’, paras.54-55, July 9, 2271 U.N.T.S. 235.
[10]. IJDH (2014) ‘Hearing Set for UN Cholera Case’, 8 October, http://www.ijdh.org/2014/10/topics/health/hearing-set-for-un-cholera-case/, accessed 13 October 2014.
[11]. Yale Law School, Transnational Development Clinic (Jerome N. Frank Legal Services Organization), Global Health Justice Partnership of the Yale Law School and the Yale School of Public Health, and Association Haïtienne de Droit de l’Environnement (2013), Peacekeeping without Accountability: The United Nations’ Responsibility for the Haitian Cholera Epidemic, http://tinyurl.com/lhyxsfm, accessed 23 August 2014.
[12]. United Nations (1965) Juridical Yearbook, Documents S/6597 and S/6589, pp.40-41, http://tinyurl.com/k98zv22
[13]. United Nations (1965) Juridical Yearbook, ‘Letter dated 6 August 1965 from the Secretary-General addressed to the Acting Permanent Representative of the Union of Soviet Socialist Republics’, (Document S/6597), p. 41, http://tinyurl.com/k98zv22, accessed 2 September 2014.
[14]. Center for Economic and Policy Research (2014) ‘High-level donor conference on cholera in Haiti fails to secure much needed funding’, 9 October, http://tinyurl.com/pybzzpo, accessed 1 November 2014.
[15]. United Nations Peacekeeping, ‘Financing Peacekeeping’, http://www.un.org/en/peacekeeping/operations/financing.shtml See General Assembly documents on “Approved resources for peacekeeping operations”, UN documents A/C.5/64/19, A/C.5/66/14, A/C.5/66/18 and A/C.5/67/19.
[16]. C. de Albuquerque (2014) ‘Report of the Special Rapporteur on the human right to safe drinking water and sanitation’, para. 34, U.N. Doc. A/HRC/27/55.
[17]. T. Daniel (2013) ‘UN official makes rare case for compensation for Haiti cholera victims’, Huffington Post, 8 October, http://tinyurl.com/mxo54y2, accessed 23 August 2014.
[18]. UN News Centre (2014), ‘Ban praises Haitian police recruits, judicial institutions in strengthening rule of law’, 15 July, http://tinyurl.com/lnz5doz, accessed 28 September 2014.

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