71st session of the General Assembly
Third Committee, Item 68 (b&c)
25 October 2016
Mr President, distinguished delegates,
Exactly six years ago, United Nations peacekeepers brought cholera to Haiti for the first time in that country’s history. Soon, 10,000 people will have died as a result, and 800,000 will have been infected. Eight per cent of Haiti’s total population has thus been affected.
1. The abdication of responsibility
For most of those six years, despite valiant and dogged efforts by civil society groups such as the Bureau des Avocats Internationaux and the Institute for Justice and Democracy in Haiti, the UN opted to abdicate its responsibility. It:
- refused to accept factual responsibility for the introduction of the epidemic;
- contested the scientific evidence on the basis of a self-evidently flawed and unjustified assessment;
- insisted that no legal claim for negligence could be brought against it, despite the clear provisions of the relevant treaty and its agreement with Haiti;
- refused to countenance the payment of any form of compensation even to the relatives of those who had died;
- issued no apology; and
- did not do enough to promote and strengthen efforts to achieve eradication.
2. The negative consequences
This approach was a disaster because it:
- flouted the applicable international law;
- enshrined a double standard which exempts the UN itself from having to respect human rights;
- reinforced the perception that UN peacekeeping operations can trample with impunity on the rights of those being protected;
- undermined the credibility of the Organization;
- jeopardized the UN’s immunity by making it synonymous with impunity, and thus rendering it indefensible; and
- left the UN vulnerable to eventual claims for damages and compensation in this and subsequent cases, because the legally required settlement will never have been provided.
In the report I am presenting today (A/71/367), I characterize the UN’s approach as “morally unconscionable, legally indefensible … politically self-defeating [and] entirely unnecessary”.
Since September 2014, a group of mandate-holders, including those responsible for Haiti, water and sanitation, health, and housing, have challenged the UN to do more. These efforts culminated in my meeting with the UN Secretary-General in January 2016, a meeting in April 2016 at which I briefed senior officials, and finally the submission of my report in August. A detailed timeline of events is annexed to this statement.
A draft of the report that I am presenting today was submitted to the UN in New York for comments on 8 August. It was leaked by someone in the Organization to The New York Times, but this turned out to have the wholly beneficial effect of galvanizing the UN to announce on 18-19 August a “new approach,” which I was informed would address many of the concerns I had expressed.
Today, I want to review what has happened in the intervening period. There is some extremely good news and some very bad news. But the bottom line is that all of the bad news could be eliminated if one single simple decision is taken to acknowledge the Organization’s legal obligations. None of this has any effect on the UN’s immunity from suit in national courts which has been powerfully vindicated.
3. The good news
The good news, and it is remarkable and a cause for celebration, is that the UN has, since late August, reversed course on some of the most problematic aspects of its Haiti cholera policies. In particular, through the courageous leadership of the Secretary-General and the Deputy Secretary-General, the UN has set up a two-track Haiti Cholera Response Multi-Partner Trust Fund (MPTF) which aims to: (i) intensify efforts to treat and eliminate the disease; (ii) develop a framework proposal to Member States for material assistance to those Haitians most affected by cholera after the 2010 outbreak. The goal is to raise at least $400 million for the MPTF, to be roughly evenly divided among the two tracks.
The devastation caused by Hurricane Matthew has both exacerbated the problems and complicated fund-raising, but the Trust Fund is now up and running. And, in response to the review of the scientific literature contained in my report, there has been an extremely important de facto abandonment of the long-held position that it was unclear whether or not the UN forces had introduced cholera. More generally, the ‘new approach’ adopted since August has given new energy to efforts in this area after a prolonged period in which the institution’s head remained buried in the proverbial sand.
4. The bad news
The bad news can be summarized all too easily. In brief, there has been:
- no formal acceptance, as a factual matter, that the UN was responsible;
- no apology has been made, as of today, although I remain hopeful;
- no recognition of legal responsibility;
- no agreement on the use of terms such as ‘compensation’ or ‘reparations’; and
- no legal settlement, as required by law.
5. The blocking role of the lawyers
In light of the undoubted political will of the Secretary-General to resolve this festering sore by taking all necessary and feasible measures, the question is why the relevant steps have not been taken? While no-one in the Organization has been prepared to publicly acknowledge the fact, it is clear from all of the inquiries I have made that the most significant obstacle in the way of resolving the matter in a way that comports with the rule of law, respects human rights, restores the UN’s credibility, and honors the victims, is insistence by the UN’s Office of Legal Affairs (OLA) that the UN must, at virtually all costs, avoid accepting responsibility in this or any comparable case. The position is compounded by what a former Assistant Secretary-General for Legal Affairs has described as the “complete veil of silence [that] has been drawn over this issue to the point that no official will discuss the matter on or off the record.” In fact, OLA has never made public the relevant advice, nor has it even been provided to other UN offices. There has been no satisfactory official explanation of the policy, no public attempt to justify it, and no known assessment of its consequences for future claims. In sum, the procedure is the antithesis of the accountability, transparency and respect for the rule of law that the UN urges others to follow.
Since OLA’s position draws no support from longstanding practice in this area or from its own prior advice, the question is why it has taken such an uncompromising and utterly destructive position. The only plausible explanation I can suggest is a fear that any acceptance of responsibility would potentially jeopardize the immunity of the United Nations in relation to this case or future lawsuits. But there is no basis in law or practice to justify elevating an almost entirely hypothetical and speculative concern that there might someday, somewhere, be a legal challenge to UN immunity to a level at which it trumps an otherwise compelling case for respecting international legal obligations. This is impunity masquerading as legal prudence. It also raises serious questions about the ethical duties of legal advisers.
In seeking to understand OLA’s position, it seems relevant to note that the United States of America, which has a strong interest in this issue both as a close neighbor of Haiti and as the principal contributor to the UN’s peacekeeping budget, has itself never publicly stated its legal position on this issue, despite many requests that it do so. There is reason to believe that the position adopted by OLA in 2013 was consistent with views strongly pressed at the time by the United States. The reasoning behind the US position seems to be that the UN must follow American legal practice which generally takes the view that legal responsibility should never be accepted when it can possibly be avoided, because one never knows the consequences for subsequent litigation.
But the UN operates in a radically different context from the US legal system. Its reputation for compliance with the rule of law and international law, including human rights, is part of its raison d’être. It enjoys absolute legal immunity from suit in national courts, and the governing international law specifically requires it to deal with private law claims. Ironically, the US Government has itself followed exactly this two track approach since 1942 when the US Foreign Claims Act required the US Government to promptly settle meritorious claims of exactly the sort that have arisen in Haiti.
The United Nations leadership and its Member States do have a viable and principled alternative to the present course. The UN can follow the procedure clearly laid out in the Convention on Privileges and Immunities and provide an appropriate mode of settlement for the victims’ claims. This would in no way jeopardize the Organization’s immunity, it would not lead to any higher financial settlement than has already been proposed, it would not open any floodgates of future claims for crimes such as sexual abuse by peacekeepers since these are not private law matters, and it would enable the United Nations to live up to its international legal obligations as well as its commitment to the rule of law, human rights, transparency, and accountability.
The second option is to accept the lawyers’ view that all conceivable legal risks should be avoided, no matter how attenuated, speculative, and unlikely they might be. This option involves the rejection of legal responsibility even in cases in which the law and longstanding precedent would demand it. The result represents the rejection of accountability and the embrace not just of immunity, which is indeed vital, but also of impunity, which is supposed to be contrary to everything for which the Organization stands.
6. The consequences
Even informed and concerned people with whom I have spoken have asked me: “What difference does it make?” “Isn’t this just a ‘lawyers’ thing’?” Does it have any real significance for the victims or anyone else, as long as monetary payments are made?”
The answer is that in both law and in practice, it actually makes a huge difference. These are some of the consequences of following OLA’s advice:
1. The UN will never be able to formally accept factual responsibility in this case and the ambiguity about the causes of the outbreak will remain unresolved.
2. Instead of statements accepting that the UN was responsible, there will be a stream of euphemisms and platitudes formulated and approved by lawyers.
3. Instead of paying reparations, all payments will be on an ex gratia basis, which would reasonably be viewed by many as simply an act of charity.
4. All of the evidence pointing to the indispensable cathartic role played by an appropriate apology as well as recognition of responsibility for suffering, and all of the international law norms about reparations and assurances of non-recurrence, are mocked.
5. In the absence of accountability there is no incentive for UN practices to change. It was hardly surprising that an Internal Oversight report revealed that, as late as 2014, MINUSTAH forces in Haiti were still discharging their waste into public waterways.
6. When the overriding concern of an international organization is avoiding responsibility and controlling potential damage to its own reputation, the Haiti case shows what happens. Attention is distracted from the actual cause of the epidemic, appropriate action is delayed, attention is focused elsewhere, and the peacekeepers are slow to draw the essential lessons.
7. The UN does nothing to salvage its reputation which was definitively tarnished by its clear responsibility for cholera, combined with its interminable and adamant denials of responsibility. This inexorably causes grave damage to its reputation among the very people whom it is supposed to be assisting.
8. The position taken in this case will haunt all future cases in which the UN might be involved. Instead of providing for a mechanism capable of resolving disputes quickly and consistently with the rule of law, OLA’s approach condemns any future comparable claims to go through the long-drawn out process of public demands, shaming of the UN, and perhaps an eventual settlement of the sort that the UN is now finally contemplating after six long years of agitation, litigation, congressional pressure, and internal agonizing.
In conclusion, two steps are required if the UN is to turn the Haiti debacle into a success story for all concerned and for its own work in the future. The first is to revisit the fundamentally flawed 2013 legal advice in light of the changed circumstances, and replace it with a procedure that enables such claims to be resolved in a way that totally protects the Organization’s immunity, while avoiding the impunity that OLA seeks to enshrine for the foreseeable future.
The second is for Member States to back up their words of sympathy and concern for the victims of cholera in Haiti with generous contributions to the newly established Trust Fund.
* * *
ANNEX: Timeline of Special Procedures engagement on the issue of cholera in Haiti
On 21 February and 5 July 2013 OLA definitively rejected the claims of the victims as being unreceivable on the unexplained, and indeed inexplicable, grounds that they raised “policy or political matters” and could thus not be considered to be private law matters which would have required the UN to establish an appropriate mode of settlement. It also peremptorily refused a request to meet representatives of the victims or explore alternative approaches.
On 25 September 2014 the Special Procedures mandate-holders responsible for (i) Haiti, (ii) water and sanitation, (iii) health, and (iv) housing, expressed deep concern at the way in which the UN had handled the claims.
On 25 November 2014, Assistant-Secretary-General Medrano sent a lengthy response which provided some more detail on the legal argument being invoked to justify rejecting the claims.
On 23 October 2015, the four original mandate-holders, joined by the Special Rapporteur on extreme poverty, responded expressing particular concern at the denial of the victims’ right to an effective remedy and suggesting that informal consultations might be held.
On 15 January 2016 the Secretary-General met with the Special Rapporteur on extreme poverty. Two issues were discussed, one of which was the importance of UN engagement in response to the cholera communication.
On 26 February 2016 the Deputy Secretary-General wrote to the five mandate-holders and welcomed their offer “to engage further on this matter and discuss what further steps the United Nations could take, in keeping with its mandates, to assist the victims of cholera and their communities.”
On 15 April 2016 the Special Rapporteur on extreme poverty held a confidential internal meeting with senior UN officials to outline the concerns of the five mandate-holders and to suggest constructive ways for dealing with the issue.
On 8 June 2016 the Special Rapporteur on extreme poverty informed the Assistant Secretary-General for Human Rights that he had agreed with his colleagues that his report to the General Assembly in October 2016 would focus in detail on these issues.
On 8 August 2016, the Special Rapporteur’s draft report was transmitted to the Secretary-General and other senior officials. Comments were sought by the deadline of 19 August 2016.
On 18 August 2016 The New York Times reported the key details of the draft report and quoted a spokesman for the Secretary-General as saying in response that “over the past year, the U.N. has become convinced that it needs to do much more regarding its own involvement in the initial outbreak and the suffering of those affected by cholera,” and announcing that a “new response will be presented.” The following day, the full draft report was made available on the website of The New York Times.
On 19 August 2016, the Deputy Secretary-General responded to the Special Rapporteur on extreme poverty and indicated that the Secretary-General “is developing a new approach, which, I believe, will address many of the concerns raised in your report.”
On 5 October 2016, the Special Rapporteur on extreme poverty wrote to the Deputy Secretary-General requesting the release of the UN’s legal advice on the matter.
On 12 October 2016, the Deputy Secretary-General replied that “the legal position of the United Nations does not constrain” the new approach. That approach is not “an act of charity,” but “is based on a sense of responsibility to assist the people of Haiti and on an acknowledgement of the Organization’s own involvement in the past.” The letters of 5 and 12 October 2016 are available at http://www.ohchr.org/EN/Issues/Poverty/Pages/SRExtremePovertyIndex.aspx
Ralph, Zacklin, “Accountability and International Law,” Address to the 21st Annual Conference of the Australian and New Zealand Society of International Law, Canberra, 5 July 2013.
See the compelling and rigorous account in Ralph R. Frerichs, Deadly River: Cholera and Cover-Up in Post-Earthquake Haiti (Cornell University Press, 2016)
Jonathan M. Katz, ‘U.N. Admits Role in Cholera Epidemic in Haiti,’ New York Times, 18 August 2016, available at http://www.nytimes.com/2016/08/18/world/americas/united-nations-haiti-cholera.html?_r=0
Jonathan M. Katz, ‘The U.N.’s Cholera Admission and What Comes Next,’ New York Times, 19 August 2016, available at http://www.nytimes.com/2016/08/19/magazine/the-uns-cholera-admission-and-what-comes-next.html