A U.S. nongovernmental organization recently filed a lawsuit against the United Nations seeking compensation on behalf of victims of a cholera outbreak in Haiti, and at least $2.2 billion in funding to eradicate cholera. Evidence compiled since 2010 strongly indicates that U.N. peacekeepers were the source of the cholera and, due to negligence or deliberate disregard, U.N. officials were responsible for its introduction into the broader Haitian population.
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.
- The United Nations, except for a four-year hiatus from March 2000 to June 2004, has had a continuous peacekeeping presence in Haiti since 1993 to provide security in support of the government or to facilitate a political transition and self-governance, costing over $6 billion.
- The current peacekeeping operation, the United Nations Stabilization Mission in Haiti (MINUSTAH), had an authorized strength of 8,690 uniformed personnel and 1,911 civilian and volunteer personnel as of August 31, 2013. MINUSTAH’s annual budget from July 2013 to June 2014 is $576.6 million.
- According to the Organization for Economic Co-operation and Development (OECD), the international community has provided nearly $12.4 billion in official development assistance to Haiti between 1993 and 2011. Over a third of that—nearly $4.6 billion—was provided by the U.S.
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:
- Section 2 of the 1946 Convention states: “The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity shall extend to any particular case it has expressly waived its immunity.” The U.N. is instructed to “co-operate at all times with the appropriate authorities of Members to facilitate the proper administration of justice, secure the observance of police regulations and prevent the occurrence of any abuse in connection with the privileges, immunities and facilities mentioned in this Article.” However, the U.N. has discretion as to whether it will waive the immunity of its officials and to establish the means or appropriateness of settlement of disputes. The U.N. has rejected this option regarding the Haitian cholera claims.
- The status of forces agreement (SOFA) between the U.N. and the Haitian government regarding the MINUSTAH peacekeeping mission affirms the immunities and privileges outlined in the 1946 Convention. However, the SOFA is more specific and specifies that claims of property loss or “personal injury, illness or death arising from or directly relating to MINUSTAH, except those arising from operational necessity” are to be “settled by a standing claims commission.” In most instances, the claims are limited to $50,000 per individual as specified in General Assembly Resolution 52/247. The IJHD lawsuit partly justifies its pursuit of compensation in U.S. federal court by relying on the fact that a standing claims commission has not been established. It is unlikely that the IJHD plaintiffs have standing under the SOFA, however, because that agreement is between the U.N. and the Haitian government, which has not demanded that a standing claims commission be established. The Haitian government also has not joined the IJHD lawsuit.
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.
Addressing the Situation in Haiti
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:
- Urge Secretary-General Ban Ki-moon to acknowledge that U.N. peacekeepers introduced cholera to Haiti and apologize for the resulting death, illness, and suffering. Such apologies have been made previously regarding U.N. inaction that contributed to the Srebrenica massacre and the Rwandan genocide. In neither case did the U.N. pay compensation to the victims.
- Call on the Secretary-General to cooperate with Haitian authorities and waive immunities for U.N. officials if their actions or negligence led to the epidemic. There is strong evidence that U.N. officials neglected to properly construct, maintain, and supervise sanitation facilities at the peacekeeping base from which the infection is believed to have spread. They are also alleged to have failed to act in a timely manner once alerted to the problem. The Secretary-General should cooperate with the Haitian government if it wishes to investigate the matter and waive immunity for any U.N. official that the Haitian government determines should be brought to trial.
- Implement a peacekeeping-wide assessment of sanitation and screening of uniformed and civilian peacekeeping personnel to ensure that other countries are not subjected to a tragic situation such as that in Haiti.
- Make health-screening and immunization requirements more stringent. The Medical Support Manual for United Nations Peacekeeping Operations states that health screening and immunization of peacekeepers prior to deployment is the responsibility of the troop-contributing country. Once deployed, the chief administration officer is responsible for arranging medical examinations, while the force medical officer and senior medical officer of the national contingent are to “ensure that medical examination of military personnel comply with UN requirements.” These instructions and requirements should be updated in light of Haiti’s situation to require troop-contributing countries to more broadly immunize and thoroughly test prospective peacekeepers to ensure that they are not infected with communicable diseases, including cholera. A portion of U.N. payments to troop-contributing countries should be withheld pending verification of compliance. Failure to comply should result in reductions in U.N. payments for peacekeeping to remedy the situation consistent with section 6.02 (D) of the Medical Support Manual.
- Hold troop-contributing countries accountable. If compensation is deemed appropriate for damages resulting from negligence by the troop-contributing government, extracting penalties from peacekeeping payments to the troop-contributing country should be the first option. This policy is consistent with the position laid out in the 1997 Report of the Secretary-General, endorsed in Resolution 52/247, which states, “If such claims [arising as a result of gross negligence or willful misconduct] are established, the Organization would assume liability to compensate a third party, retaining the right to seek recovery from the individual or the troop-contributing State concerned.”
- Strengthen sanitation standards. Sanitation requirements and inspection procedures should be enhanced to prevent accidental exposure. The force medical officer is responsible for providing guidance and overseeing implementation of “preventive health measures, disease prophylaxis and field hygiene, including food and water inspections, sanitation and waste disposal.” The Secretary-General should announce that negligence by U.N. officials in these matters is cause for dismissal and/or waiving of immunities.
- Amend the language in future U.N. SOFAs to automatically establish standing claims commissions in peacekeeping missions. The current situation gives the appearance of avenues of redress for damages caused by U.N. action, but the failure of the U.N. to ever establish a standing claims commission indicates that the system is not operating as it should. A key reason for this likely is that a government in a country where the U.N. has a peacekeeping operation is almost always highly dependent on the U.N. for security, resources, and political support. As a result, the government will be reluctant to anger the U.N. by requesting the establishment of a standing claims commission. To avoid this complication, a standing claims commission should automatically be established when a mission stands up, although it would be prudent to tightly define the claims eligible for consideration to avoid frivolous petitions.
- Reprogram existing U.N. funding to support the elimination and treatment of cholera in Haiti and improve access to clean water and sanitation. Following the cholera outbreak, Haiti and the Dominican Republic established the Initiative for the Elimination of Cholera in the Island of Hispaniola. The overall effort is estimated to require $2.2 billion over 10 years. The U.N. system provided $141.5 million toward this initiative as of December 2012, including $23.5 million from the U.N. itself. While significant, the U.N. could provide far more by reprograming existing funding. The U.N. currently spends tens of millions in the U.N. regular budget on outdated, duplicative, or unnecessary tasks. The U.S. should call on the U.N. to scrutinize its budget, perhaps through a renewed Mandate Review, to identify resources that could be reprogrammed to address the cholera crisis in Haiti.
- Review peacekeeping operations to determine if they are leading to a resolution of crisis or, at least, whether they are on a clear path to winding down and allowing the government to assume security and governance responsibilities. The unfortunate reality is that after billions of dollars in international assistance and nearly 20 years of U.N. peacekeeping, Haiti is not significantly better off than it was in 1993. Similar criticism can be made against other long-standing peacekeeping operations. If an operation is not demonstrably facilitating resolution of the situation, the Security Council should determine whether achieving that goal is realistic. If so, the mission parameters should be revised to better attain that goal. If it is not realistic, the mission should be wound down. If stakeholders wish to continue U.N. peacekeeping operations that have not resolved the conflicts despite being in place for decades, they should be asked to assume a large share of the financial burden of continuing the operation, as Greece and Cyprus do for the U.N. Peacekeeping Force in Cyprus (UNFICYP).
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).