Immune. Immoral. Illegal? Cholera & Haiti

Immune. Immoral. Illegal? Cholera & Haiti
May 24, 2013 Andy Taylor

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Immune. Immoral. IllegalFrom our new Haiti Briefing 74 available here.

It took more than 15 months to write, and ultimately amounted to two sentences in one short paragraph – the penultimate – as if an afterthought in the two-page letter signed by Patricia O’Brien, the UN’s Under Secretary General for Legal Affairs.

The claim for compensation made by IJDH, the Boston-based Institute for Justice and Democracy in Haiti, and its sister organisation, the Bureau des Avocats Internationaux (BAI) in Port-au-Prince, on behalf of 5,000 of those killed and sickened by the cholera no one now doubts was brought to Haiti by UN peacekeeping troops (see Haiti Briefing No 70), was, as of 21 February, emphatically rejected, as “not receivable.” In the words of one lawyer: “That’s UN legalese for not worth considering.”

First, an update on the toll. The 5,000 Haitians on whose behalf the claim was filed are just a fraction of the 8,292 killed and 670,500 sickened to date. That in itself is widely considered an underestimate. These are just the individuals the Haitian government has managed to count in what is still, 32 months on, the world’s most potent epidemic.

After one and half pages detailing its efforts fighting cholera in Haiti, the key paragraph of the UN letter says that the victims’ claims are “not receivable pursuant to Section 29 of the Convention on the Privileges and Immunities of the United Nations.” The CPIUN, as its known, is aptly named. It includes the immunity from prosecution the UN voted itself in one of its first acts in February 1946.

The only justification for such claims coming within the purview of CPIUN comes in one further sentence in the UN letter: “Consideration of these claims would necessarily include a review of political and policy matters.” That assertion spawned mockery.

“Under this definition, any harm that the UN does anybody would be a matter of policy,” complains Brian Concannon, Jr of IJDH, co-counsel on the case. “Is the UN saying that dumping faeces in rivers is UN policy?” asks Jonathan Katz, the former AP reporter who did so much to expose the UN as the cause of the epidemic.

The UN letter makes no mention of alternative forms of redress, most notably the establishment of the Standing Claims Commission (SSC) whose institution, in the case of a private claim, is written into the UN peacekeeping Status of Forces Agreement (SOFA) with the Haitian government.

Indeed, it was the failure of the UN to make any private offer of compensation and the belief that the SSC was a façade – in 55 years of UN peacekeeping no SSC has ever been established – that led BAI/IJDH to bring the claim.

“It’s ludicrous for the UN to simultaneously claim immunity from Haitian courts, fail to follow through on its commitment to set up an SSC and also refuse to address the claims internally,” says Mario Joseph BAI’s lead lawyer in the case. “That amounts to a complete denial of justice.”

“An organization dedicated to the rule of law is itself immune from legal accountability,” concluded Armin Rosen in The Atlantic. “The UN has a troubling history of behaving as if it is above the law, perhaps because it is.”

A Straight Immorality Issue Now

IJDH/BAI’s response to the UN’s letter could not be more of a contrast. Published and dispatched on 8 May, it is a closely argued and extensively footnoted eight-page rebuttal with Section 29 of the CPIUN at its heart.

“Under relevant international law, and consistent with long-standing UN practice and UN General Assembly resolutions, petitioners’ claims are “claims of a private nature” for which Section 29 requires the UN to “make appropriate modes of settlement,” the letter reads.

The letter goes on to cite a 1996 statement by the UN Secretary General making it clear that the UN had always “assumed its liability for damage caused by members of its forces.” It also quotes Patricia O’Brien’s predecessor, who once ruled that: “As a matter of international law, it is clear that the Organization can incur liabilities of a private law nature and is obliged to pay in regard to such liabilities.”

Offering the UN a “last opportunity to accept its legal responsibility” the IJDH/BAI lawyers state that the UN’s rejection of the claim has opened the door to national courts, an option they say they will purse if they do not receive “an appropriate response” within 60 days.

Preventing any court from hearing the case would seem to be the UN’s only hope. “The case itself is easy, their liability is so obvious if we can get it into a courtroom,” says Brian Concannon. Finding such a court, most probably in Europe, where the UN has already been warned that immunity does not mean impunity, is the next challenge.

In some ways the UN’s now clearly-stated position, that their immunity is a much greater priority than the poor Haitians they failed to protect and now refuse to compensate, may make that easier. In saying less than the minimum, trying to close every avenue of redress, and avoiding any denial of liability or culpability, they may just tempt a court somewhere to allow the victims’ lawyers in.

UN lawyers know that within any normal parameters of access to justice, due process and consideration of the evidence, this is a case they could not hope to defend. Any other institution would by now have felt forced to minimise the damage to its reputation by paying out-of-court, no-liability compensation, even if the immorality of leaving thousands of some of the poorest people on earth bereaved and bereft counted for nothing to them.

The UN’s stance does, at least, crystallise the hypocrisy. The world agency charged with enforcing the most basic international human rights and justice provisions, spreading the concept and practice of the rule of law and even protecting the poor and most vulnerable from disease and sickness, is denying all that to thousands in a country which its troops occupy.

“What moral right does the UN now have to speak about human rights or democracy in Haiti or anywhere else?” asked the Kolektif Mobililizasyon Pou Dedomaje Viktim Kolera Yo, [The Collective to Mobilise for Reparations for Cholera Victims], the leading local advocacy group.

“Even with a claim pending, this was always a moral as well as legal issue. Having refused to pay compensation without a legal claim, and now having emphatically rejected that legal claim in such dismissive tones, it’s become a straight immorality issue,” says one Haitian pastor. “On those grounds, given these facts, I like our chances of making the world sit up and take notice.” BAI’s Mario Joseph agrees: “The UN can’t have both humanity and impunity simultaneously.”

Rumour has it that there are some in the UN who agree but none have spoken out publicly or indeed, resigned in order to be able to do so. Indeed, those who have spoken privately to us on the issue seem terrified of the consequences of doing so.

There is, or may be, one exception. Michel Forst, the UN Special Envoy on Human Rights in Haiti, in once again lambasting the Haitian government on human rights and rule of law issues, took a valedictory sideswipe at his own bosses for failing to “throw light on the causes of the cholera epidemic” in February.

With the force of a man who understands the psychological importance of the truth for individuals trying to come to terms with needless death, Forst said that cholera victims’ families were entitled to the truth and that “silence was the worst response.” He promptly resigned.

‘A Bit like Haiti under Duvalier’

None of these ironies were lost on Haitians. Having witnessed first-hand so much of the disdain shown by UN peacekeepers – not least the gross neglect that caused the cholera epidemic — most Haitians have long given up on the idea that the UN might do the right thing.

As a result, they focused on their own government’s role in all this, particularly when the Haitian press reported that the Secretary General had telephoned President Martelly to “inform” him of the UN decision which had been “accepted.” The Kolera Kolektif accused the Martelly government of being in collusion with the UN by actually asking it to “disregard the complaints of those defending the cholera victims.”

At the very least, the Haitian government is in deep and perhaps deliberate denial. Addressing an audience at Columbia University, New York, in April, Prime Minister Laurent Lamothe insisted cholera was “disappearing.” He claimed only three cases a day were being reported when his own Health ministry was actually recording an average of 150 cases a day.

For the Martelly government, it seems, standing up for victims cannot be disassociated from those who brought the case. BAI, the country’s leading civil rights law firm, has been at the forefront of efforts to challenge the naked disregard for the rule of law, human rights and constitutional provision that has become such a hallmark of the current administration (see Haiti Briefing No. 73).

Indeed, BAI/IJDH’s most celebrated case, the crimes against humanity charges levelled at former dictator Jean-Claude Duvalier, was playing out in a Haitian courtroom just as the UN delivered copies of its letter rejecting the cholera victims’ claim as “non receivable.”

When Duvalier failed to appear in court on 21 February, the very date of the UN letter, the UN issued a sharp rebuke to the Haitian state, insisting the judicial authorities “act on their responsibilities” to bring him to book. “Such systematic violations of rights must not remain unaddressed,” insisted UN High Commissioner for Human Rights, Navi Pillay.

Even The Economist, hardly the most progressive of publications, felt compelled to headline the hypocrisy: “Justice in Haiti, Double Standards — The UN Condemns Baby Doc, but Exonerates itself.” The editorial detailed the charge sheet against the UN: its claimed immunity, its failure to establish its Standing Claims Commission (SCC), and the absurdity of the assertion that the claim would “necessarily involve a review of political and policy matters.”

The piece ended with the summary of one of the claimants’ lawyers: “We make the rules, we interpret them, we enforce them and therefore, whatever we say is right.” As The Economist concluded, “That sounds a bit like Haiti under Mr Duvalier.”

Another group of activists have decided to challenge the UN’s version of Duvalierist impunity domestically. On 13 March, three Haitian lawyers wrote an open letter to President Martelly on behalf of victims of the cholera epidemic proposing several candidates for the SSC.

As the letter detailed, under Paragraph 55 of Section VIII of the SOFA, the Haitian government is obliged to nominate one member of the three-person SSC when “a dispute or claim of a private-law character” is made. Amongst others, the lawyers nominated the former Prime Minister, Michèle Pierre-Louis and the writer, Franck Etienne. As of early June, the lawyers had yet to receive a reply.

A Cunning Plan: A Shell Game

The UN’s letter ends with an outline of what it terms the UN Secretary General’s Initiative for the Elimination of Cholera in Haiti, launched by Ban Ki-Moon himself in New York on December 11.

The $2.2bn, ten-year, three-stage Plan represents an ambitious, laudable and integrated effort to address everything from the disastrous impact to the root causes of cholera in Haiti, most obviously some of the worst access to clean water and sanitation (WASH) in the world. We and others, including WASH experts with extensive experience in Haiti, have two main reservations. First will the Plan ever be funded, in whole or part. Two, the means and method of implementation: who will be the primary beneficiaries?

Will the plan simply reinforce private vested interests that operate profitable monopolies or duopolies in the Haitian WASH sector at the moment, particularly in Port-au-Prince? Will the Plan genuinely and determinedly expand access to, and availability and affordability of water and sanitation to those who need it most, the poorest and most excluded — the principal victims of the cholera epidemic to date?

The early signs are not good. The first two of 18 planned new sewage treatment plants in Haiti are today, just months after their inauguration, effectively non-functional. Haiti’s private sanitation companies see no reason to pay the $4 a cubic metre dumping charge, payment of which is the basis of the new plants’ economic operating model, when they can continue to fly-tip their sewage for free.

Once again, we learn that even the most minimal reform for the public good in Haiti is irrelevant if there is no political will or resources to enforce change. To date there is neither. Result: no change.

A close examination of the $215m in bi-lateral donations credited to the Cholera Elimination Plan, less than 10% of its overall cost, shows that none of this is actually new money. It was all funding pledged in the wake of the earthquake which had yet to be delivered, let alone disbursed.

Meanwhile, the UN’s own contribution to the Plan, some $23.5m, about one per cent of the total, hardly blazes a trail for others let alone comes close to making amends, given the UN’s responsibility. Indeed, UN spending on cholera treatment, mitigation and education, the basis of Phase I of the Plan is now actually falling sharply, while, recorded cholera cases were soaring even before the current rainy season began.

This divergence between needs and resources was actually recognised by the UN in its most recent six-month review of its operations in Haiti. That reported that the number of cholera treatment centres in Haiti had fallen by more than 50% to just 159 by December 2012, while the death toll in the first seven weeks of this year surged more than sevenfold to 115.

Those on the frontline believe the two things are related. Cholera is re-establishing itself in Haiti just as the UN is “consolidating,” meaning cutting back, under the guise of integrating its cholera treatment efforts into the inadequate, if not non-existent, Haitian primary healthcare system. People are dying unnecessarily.

The reality on the ground has led to boiling frustration, with Yann Libessart, the Communications Officer of Médecins Sans Frontières saying those cholera treatment centres that remain open were “degenerating into contamination zones” for lack of resources.

Asked who should fund the Cholera Elimination Plan on the day in late February that the Haitian government assumed responsibility for what is now yet another unfunded project, Libessart was acid and emphatic: “The people who are responsible for the introduction of the disease to this country.”

In yet another searing piece of analysis in Foreign Policy under the title, “The UN’s Haitian Shell Game,” Jonathan Katz demonstrated how the UN has always deflected attention from its role in causing the epidemic by celebrating its leading role in combatting it.

Present not past, future not fault finding, UN spokespersons insist. That, Katz pointed out, has now been allied with the oldest game in the aid world – shifting around the same undisbursed phantom funds to satisfy different promises to differing priorities.

As it becomes clear that even Phase One, let alone the much more expensive major infrastructure developments of Stages Two and Three of the Plan are stalled, the UN’s line and the donors’ bluff will no longer hold.

One key reason even the UN Secretary General’s personal efforts to raise funds for the Plan – for which he deserves some credit – have been so unsuccessful is that on cholera in Haiti, the UN has almost as little credibility among donors as it does amongst Haitians.

And the main reason for that lack of credibility is the same for donors as it is for Haitians: the UN’s failure to confess, compensate, and change. Until that changes, nothing else will.

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