November 12, 2013 | Backgrounder on United Nations
A U.S. nongovernmental organization has filed a lawsuit against the United Nations, seeking compensation on behalf of victims of a cholera outbreak in Haiti, as well as funding to support programs to eradicate the disease and improve sanitation. Evidence strongly indicates that U.N. peacekeepers were the source of the cholera and, due to negligence or deliberate disregard, U.N. officials and peacekeepers were responsible for its introduction into the broader Haitian population. Haitians deserve great sympathy for their plight, but a successful lawsuit could invite similar lawsuits, regardless of merit, thereby making the U.S. and other U.N. member states vulnerable to significant financial costs, while leaving those actually responsible largely or entirely unpunished. A very likely consequence would be to discourage future U.N. operations, which, while having a spotted record, are often the best or only response to humanitarian crises. The U.S. should support efforts to eradicate cholera in Haiti and reduce the chances of future tragedies by improving accountability for U.N. officials and troop-contributing countries, strengthening health-screening and sanitation standards, and improving the efficacy of U.N. peacekeeping.
Nonetheless, because the U.N. enjoys broad treaty-based privileges and immunities, the lawsuit is likely to be dismissed. Although Haitians deserve great sympathy for their plight, dismissal of the suit would be the best outcome. A successful lawsuit could invite similar lawsuits, regardless of merit, thereby making the U.S. and other U.N. member states vulnerable to significant financial costs, while leaving those actually responsible largely or entirely unpunished, and discouraging future U.N. operations. Instead, the U.S. should focus on improving accountability for U.N. officials, holding troop-contributing countries responsible for the actions of their troops, and more stringently scrutinizing U.N. peacekeeping operations to improve their efficacy.
Possessed of a turbulent history, few countries have been as poorly governed as Haiti. Although the international community has long provided assistance to Haiti, direct U.N. involvement accelerated after the organization provided election observers at the request of the Haitian provisional government in 1990. In response to a coup and a deteriorating humanitarian situation, the U.N. Security Council approved the first of five peacekeeping missions in 1993. Since then, Haiti has effectively been a ward of the international community wracked by political crises, poverty, and insecurity.
Despite these investments, Haiti remains the poorest country in the Western Hemisphere, and one of the world’s least-developed and worst-governed countries. The situation in Haiti was set back further by the devastating January 2010 earthquake that killed over 200,000 and left another 1.5 million homeless. Haiti ranked 161 of 186 countries on the U.N. Development Program’s 2013 Human Development Index. Haiti has a per capita gross national income adjusted for purchasing power parity of $1,070 (world average $10,184), an adult literacy rate of 48.7 percent (world average 81.3), and life expectancy of 62.4 years (world average 70.1).
Ten months after the 2010 earthquake, Haiti was ravaged by cholera for the first time in over a century. Approximately 8,300 Haitians have died and 680,000 more have been sickened from cholera.
Infections first occurred in the vicinity of an outpost of U.N. peacekeepers from Nepal—where cholera is widespread—and quickly spread across Haiti. A U.N. investigation concluded that the cholera cases involved a single strain of the disease, indicating a single source, and that the strain was closely related to strains contemporaneously circulating in South Asia. Subsequent studies and reports, including one by the scientists that originally conducted the U.N. report, confirmed these conclusions and identified the Nepalese peacekeepers as almost certainly the source of the cholera outbreak.
Nonetheless, the U.N. has repeatedly refused to admit responsibility. Earlier this year, the U.N. dismissed claims for compensation for the Haitian victims of cholera, stating: “[T]he claims are not receivable pursuant to Section 29 of the Convention on the Privileges and Immunities of the United Nations.”
The rejection by the U.N. led the Institute for Justice and Democracy in Haiti (IJDH) to file a lawsuit on October 9, 2013, in Manhattan’s Federal District Court on behalf of victims of cholera in Haiti. The suit alleges that U.N. peacekeepers from Nepal introduced the disease in 2010, which had not been present on the island in over 100 years. The lawsuit blames the U.N. for failure to adequately test the peacekeepers for the disease, negligence in constructing and maintaining sanitation equipment, and failure to observe procedures that allowed the disease to spread to the Haitian population.
The evidence presented in the IJDH lawsuit and reported elsewhere strongly indicates that: (1) U.N. peacekeepers were the source of the cholera outbreak; (2) U.N. and MINUSTAH were responsible for the introduction of cholera to Haiti through inadequate sanitation design, maintenance, and oversight; and (3) the U.N. repeatedly sought to deny and obfuscate its responsibility and role in the cholera epidemic.
Nonetheless, the IJDH lawsuit will likely be dismissed because the U.N. enjoys broad privileges and immunities under the 1946 Convention on the Privileges and Immunities of the United Nations and the Status of Forces Agreement between the U.N. and the government of Haiti:
The U.N. does frequently pay small claims resulting from damages caused by its officials and peacekeepers, such as those for traffic accidents, including a number in Haiti. However, these claims have been settled individually and not through a standing claims commission as outlined in the SOFA. In fact, a U.N. peacekeeping spokesperson has affirmed that the U.N. has never established such a commission.
Further, even if the U.N. waives its Article 2 sovereign immunity, it is unclear if a U.S. court would have jurisdiction over the case. U.S. courts generally do not hear claims relating to violations of foreign law on foreign soil involving only foreign nationals.
Although the U.N. has almost certainly contributed to the terrible situation in Haiti, the U.S. government should oppose weakening the privileges and immunities of the U.N. in situations like Haiti. The U.N. and its affiliated organizations are engaged in a multitude of activities that could result in casualties, property damage, or other negative consequences. The Haiti lawsuit would set a precedent that could open up the organization to other claims that could impose an immense financial burden on the member states that pay the expenses of the organization.
As an illustration, if the U.N. agreed to pay full compensation and restitution to Haitians harmed by cholera, that is, paying the full $50,000 in claims allowed under resolution 52/247 to the nearly 700,000 alleged victims in Haiti, payments would total more than $32 billion. This figure does not include possible claims arising from the spread of cholera from Haiti to other countries. Moreover, claims could possibly be much higher if the $50,000 limitation is not applicable. Resolution 52/247 endorses the view expressed in a 1997 Report of the Secretary-General that “no financial limitations are proposed with regard to claims arising as a result of gross negligence or willful misconduct.”
Considering Haiti’s low per capita income, many individual claims would certainly fall short of $50,000, and the extent of the damages in Haiti are extreme, but it does provide a stark demonstration of the potential financial exposure that allowing the lawsuit to proceed would create for an organization with 15 peacekeeping operations and numerous political missions and humanitarian projects around the world.
The potential impact of a successful legal case on future U.N. peacekeeping and humanitarian missions goes beyond financial exposure. Although U.N. operations can be ineffective or even damaging, as attested by the situation in Haiti, they can also be a useful—or the only—option for addressing humanitarian crises. Member states would likely be far less willing to approve U.N. field activities if they were vulnerable to significant financial risk. Despite frequent mismanagement and often dubious impact, there is little doubt that U.N. paralysis would result in suffering in some instances where it might otherwise be mitigated.
It is also important to note that those directly responsible for the epidemic—the U.N., MINUSTAH officials, and the Nepalese government that provided infected peacekeepers—would be unlikely to bear the full or even the bulk of the burden of compensation. The cost almost certainly would be passed on to all U.N. member states through the budget process, that is, the U.S. would be responsible for 22 percent (its regular budget assessment) or 28.4 percent (its peacekeeping assessment) of these claims, and other member states would be charged amounts commensurate to their shares of the budget. Nepal is assessed 0.006 percent of the regular budget and 0.0006 percent of the peacekeeping budget.
But concern over the ramifications of the Haiti lawsuit does not justify indifference or inaction. The U.S. should propose changes to increase accountability of U.N. officials and troop-contributing countries and support efforts to alleviate the cholera crisis in Haiti. Specifically, the U.S. should:
Outrage over the negligence of U.N. officials and peacekeepers, which is the most likely source of the cholera epidemic that has resulted in massive suffering and thousands of deaths in Haiti, is justified. However, a successful lawsuit requiring the U.N. to pay compensation would not punish those directly responsible. Worse, it would likely lead to a reduction in U.N. field activities, which could lead to even broader suffering. Although the U.N. has a mixed record in peacekeeping and has played a role in several terrible tragedies, including Haiti, the U.S. has an interest in preserving the ability of the U.N. to respond to crises where it is unwilling or unable to respond directly. The U.S. also has a responsibility to try to prevent future tragedies and provide a remedy to those suffering from cholera in Haiti today. It can do this by advancing key reforms to U.N. procedures, enhancing accountability for the U.N. and troop-contributing countries, leading an effort to reprogram existing U.N. resources to assist anti-cholera efforts in Haiti, and using its privileged position on the U.N. Security Council to more thoroughly scrutinize and vet U.N. operations.—Brett D. Schaefer is Jay Kingham Senior Research Fellow in International Regulatory Affairs in the Margaret Thatcher Center for Freedom, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation. He is editor of ConUNdrum: The Limits of the United Nations and the Search for Alternatives (Rowman & Littlefield Publishers, 2009).
 United Nations Mission in Haiti (UNMIH), September 1993 to June 1996; United Nations Support Mission in Haiti (UNSMIH) July 1996 to July 1997; United Nations Transition Mission in Haiti (UNTMIH), August 1997 to December 1997; United Nations Civilian Police Mission in Haiti (MIPONUH), December 1997 to March 2000; and United Nations Stabilization Mission in Haiti (MINUSTAH), June 2004 to present. United Nations, “MINUSTAH United Nations Stabilization Mission in Haiti—Background,” http://www.un.org/en/peacekeeping/missions/minustah/background.shtml (accessed October 30, 2013). Budget figures from annual approved budgets.
 United Nations, “MINUSTAH Facts and Figures,” http://www.un.org/en/peacekeeping/missions/minustah/facts.shtml (accessed October 31, 2013).
 United Nations Development Program, Human Development Report 2013—The Rise of the South: Human Progress in a Diverse World, 2013, http://www.undp.org/content/dam/undp/library/corporate/HDR/2013GlobalHDR/English/HDR2013%20Report%20English.pdf (accessed October 31, 2013).
 George Russell, “Immunity or Impunity? Lawsuit Seeks to Hold UN Accountable for Haiti Cholera Epidemic,” Fox News, October 11, 2013, http://www.foxnews.com/world/2013/10/11/immunity-or-impunity-lawsuit-seeks-to-hold-un-accountable-for-haiti-cholera/ (accessed October 31, 2013).
 United Nations, “Final Report of the Independent Panel of Experts on the Cholera Outbreak in Haiti,” May 4, 2011, http://reliefweb.int/sites/reliefweb.int/files/resources/Full_Report_525.pdf (accessed October 31, 2013).
 Daniele Lantagne, G. Balakrish Nair, Claudio F. Lanata, and Alejandro Cravioto, “The Origin of Cholera in Haiti,” Journal of Disaster Research, Vol. 7, No. 6 (2012), pp. 759–767, http://www.fujipress.jp/finder/xslt.php?mode=present&inputfile=DSSTR000700060012.xml (accessed October 31, 2013). See also Transnational Development Clinic, Global Health Justice Partnership, and L’Association Haitïenne de Droit de L’Environnement, “Peacekeeping Without Accountability: The United Nations’ Responsibility for the Haitian Cholera Epidemic,” 2013, http://www.law.yale.edu/documents/pdf/Clinics/Haiti_TDC_Final_Report.pdf (accessed October 31, 2013).
 United Nations Secretary-General Ban Ki-moon, “Statement Attributable to the Spokesperson for the Secretary-General on Haiti,” February 21, 2013, http://www.un.org/sg/statements/index.asp?nid=6615 (accessed October 31, 2013).
 “Haiti Advocate Group’s Lawsuit Against the UN,” Fox News, October 11, 2013, http://www.foxnews.com/world/interactive/2013/10/11/haiti-advocate-group-lawsuit-against-un/ (accessed November 1, 2013).
 IJDH, “Agreement Between the United Nations and the Government of Haiti Concerning the Status of the United Nations Operation in Haiti,” July 9, 2004, http://ijdh.org/wordpress/wp-content/uploads/2011/11/4-Status-of-Forces-Agreement-1.pdf (accessed October 31, 2013).
 The General Assembly may approve greater compensation at the recommendation of the Secretary-General “in exceptional circumstances.” United Nations General Assembly, “Third-Party Liability: Temporal and Financial Limitations,” A/RES/52/247, July 17, 1998, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/52/247&Lang=E (accessed October 31, 2013).
 Russell, “Immunity or Impunity?”
 This general principle was recently reaffirmed by the Supreme Court in Kiobel v. Royal Dutch Petroleum Co., April 17, 2013, http://www2.bloomberglaw.com/public/desktop/document/Kiobel_v_Royal_Dutch_Petroleum_Co_No_101491_2013_BL_102043_US_Apr/1 (accessed October 31, 2013).
 Richard Knox, “Haitian Cholera Strain Spreads to Mexico,” NPR, October 23, 2013, http://www.npr.org/blogs/health/2013/10/23/239803890/haitian-cholera-strain-spreads-to-mainland-with-mexico-outbreak (accessed November 1, 2013).
 United Nations Report of the Secretary-General, “Administrative and Budgetary Aspects of the Financing of the United Nations Peacekeeping Operations,” Document No. A/51/903, May 21, 1997, p. 5, http://andrewclapham.org/hrdoc/docs/SGUNliability.pdf (accessed November 4, 2013).
 United Nations Report of the Secretary-General, “Implementation of General Assembly Resolutions 55/235 and 55/236,” Annex: “Effective Rates of Assessment for Peacekeeping, 1 January 2013 to 31 December 2015,” December 27, 2012, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/67/224/Add.1 (accessed October 31, 2013).
 Alexander S. Dragicevic, “U.N. Chief Apologizes for U.N. Failures in Bosnia,” Associated Press, October 11, 1999, http://political-apologies.wlu.ca/documents/press/2005.0055.02.pdf (accessed October 31, 2013), and Associated Press, “U.N. Chief Apologizes for Rwanda: He Admits Failure to Prevent 1994 Genocide,” December 17, 1999, http://www.deseretnews.com/article/733512/UN-chief-apologizes-for-Rwanda.html (accessed October 31, 2013).
 United Nations Department of Peacekeeping Operations, Medical Support Manual for United Nations Peacekeeping Operations, 2nd ed. (New York: United Nations, 1999), pp. 45–46 and 62, http://physiciansforhaiti.org/wp-content/uploads/2013/04/DPKO-MSM.pdf (accessed October 31, 2013).
 The base rate paid to troop-contributing countries is $1,028 per peacekeeper, per month. At this base rate, a country providing 1,000 peacekeepers to a mission for one year would be paid $12.34 million. United Nations Report of the Secretary-General, “Implementation of the Report of the Senior Advisory Group on Rates of Reimbursement to Troop-Contributing Countries and Other Related Issues,” A/67/713, January 29, 2013, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N13/220/96/PDF/N1322096.pdf (accessed October 31, 2013). Approved in General Assembly Resolution A/RES/67/261, May 10, 2013, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/67/261 (accessed October 31, 2013).
 United Nations Report of the Secretary-General, “Administrative and Budgetary Aspects of the Financing of the United Nations Peacekeeping Operations,” Document No. A/51/903, May 21, 1997.
 United Nations Department of Peacekeeping Operations, Medical Support Manual for United Nations Peacekeeping Operations, p. 16.
 UN News Centre, “UN Launches New Initiative to Eliminate Cholera in Haiti and Dominican Republic,” December 11, 2012, http://www.un.org/apps/news/story.asp?NewsID=43743&Cr=cholera#.Umfy3V_D_cs (accessed October 31, 2013).
 For instance, the Indian government has called for the U.N. mission in Kashmir, the U.N. Military Observer Group in India and Pakistan (UNMOGIP), to wind down, and the Economic Commission for Europe (ECE) was established to help rebuild and recover from World War II and promote greater economic cooperation in Europe—tasks achieved decades ago or within the capabilities of the European Union. Together, the U.N. spends $94.5 million in the 2012–2013 regular budget on these activities ($73.4 million for the ECE and $21.1 for UNMOGIP). United Nations Economic Commission for Europe, “Budget Resources,” http://www.unece.org/fileadmin/DAM/oes/nutshell/2013/Budget_Resources_2013.pdf (accessed October 31, 2013), and United Nations, “UNMOGIP Facts and Figures,” http://www.un.org/en/peacekeeping/missions/unmogip/facts.shtml (accessed October 31, 2013).
 Brett D. Schaefer, “United Nations: Urgent Problems that Need Congressional Action,” Heritage Foundation Lecture No. 1177, February 3, 2011, http://www.heritage.org/research/lecture/2011/02/united-nations-urgent-problems-that-need-congressional-action.