Introduction II. Cholera in Haiti A. Poverty in Haiti B. The Earthquake C. Cholera Arrives D. U.N. Investigation and Report III. U.N. Immunity A. Abolsute Immunity B. "Appropriate Modes of Settlement" C. Suit in National Courts IV. Georges v. United Nations A. A Claim Rejected B. Private Law Claim? C. Immunity Upheld in Court D. Georges was Legally Correct E. Georges was Good Policy V. A Possible Solution A. To Whom is the United Nations Accountable? B. Potential Policy Response VI. Conclusion I. INTRODUCTION
Ten months after the 2010 earthquake in Haiti, United Nations peacekeepers introduced cholera to the country, where it quickly exploded into an epidemic, killing thousands of people and sickening hundreds of thousands. A U.N.-commissioned official report on the outbreak acknowledged the circumstantial evidence implicating the U.N. and commentators are nearly unanimous in identifying the U.N. as the source of the outbreak. But it has not taken responsibility for the ongoing epidemic. From internal claims procedures to federal district court, the U.N. has consistently asserted immunity and resisted the imposition of liability. This Note departs from much of the existing literature on the topic by arguing that the U.N.'s absolute immunity is good policy, despite the apparent unfairness to the victims of the disease. Part I introduces readers to Haiti and provides the factual context to understand the severity of the epidemic. Part II explains the legal basis for the U.N.'s assertions of absolute immunity and the legal theories which nonetheless attempt to impose liability on the U.N. Part III examines the claims of Haitian cholera victims: first, their claims made directly to the U.N. and second, the lawsuit filed in federal court. This Note argues that the U.N.'s decision to not receive the claims was consistent with their internal procedures, that the district court's decision to dismiss the case was legally correct, and that both decisions--and U.N. immunity generally--are good policy. Part IV identifies the parties to which the U.N. is accountable, and from that perspective, suggests policies through which the U.N. can take responsibility for the cholera epidemic.
CHOLERA IN HAITI
"More misery in Haiti is an almost unfathomable thing." --New York Times, 2008 (1)
In 2010, a huge earthquake devastated Haiti, the western hemisphere's poorest country. After the earthquake, the longstanding U.N. presence in the country turned towards helping it rebuild. Despite the U.N.'s good intentions, it caused another catastrophe in Haiti. Peacekeepers from Nepal introduced the virulent disease cholera ten months later. With poor water and sanitation infrastructure throughout the country, the disease spread quickly, sickening 140,000 people and killing 3,000. Despite independent reports and circumstantial evidence that identify U.N. peacekeepers as the source of the outbreak, the U.N.'s own official report avoids placing responsibility on any one actor. The epidemic continues today with no end in sight.
Poverty in Haiti
Haiti is a nation-state located on the Caribbean island of Hispaniola, sixty miles east of Cuba. It is slightly larger than Maryland and only a two-hour flight from Miami. But that two-hour flight covers the distance between the Western Hemisphere's richest country and its poorest. Haiti's GDP per capita in 2013 was just USD $819, more than sixty times smaller than the United States'. (2) In recent history, a mess of trouble has brought the country to its knees: hurricanes and earthquakes, military coups and election violence, ineffective and corrupt governance, armed gangs, food shortages and widespread hunger--and since 2010, an epidemic of cholera. As a result, the economy has not grown on a per-capita basis in nearly twenty years. (3)
Slums, unemployment, scarce education, a dysfunctional government, and a lack of basic services make life precarious for the 10.4 million (4) people who live there. The country has the lowest Human Development Index of any country in the Western Hemisphere. (5) It is a place without the opportunity of developed nations, where many people cling to existence and the government itself is deeply dependent on foreign aid.
For better or worse, the United Nations has a long history of involvement in Haiti--its seven missions there are more than in any other country. (6) The current U.N. mission in Haiti began in 2004 and is known as MINUSTAH. (7) Its mandate includes ensuring a secure and stable political environment and "supporting] ... efforts to promote and protect human rights ... in order to ensure individual accountability for human rights abuses and redress for victims." (8) Despite the billions of dollars the U.N. has invested in Haiti, the organization is deeply unpopular there. Even before cholera, allegations of sexual abuse, partisan violence, and a sense that the U.N. is not prioritizing Haiti's true development needs popularized "[t]he ubiquitous phrase ... 'MINUSTAH se an vakans'--MINUSTAH is on vacation." (9) Nevertheless, in annual resolutions since 2004, the U.N. Security Council has recognized the ongoing need for the U.N. presence in Haiti and authorized the continued mission of MINUSTAH. (10)
A 7.0 magnitude earthquake devastated Haiti on January 22, 2010, the worst earthquake in more than 200 years. (11) The earthquake devastated all aspects of society. The quake destroyed 250,000 homes and 30.000 businesses. (12) The government estimated the number of dead at 217.000 and an additional 300,000 injured people. (13) Even more were displaced. In the capital, the air stank with the smell of rotting corpses. (14) Further, the government itself was crippled:
[U]p to one third of the country's 60,000 civil servants perished. Many government buildings were destroyed or badly damaged, notably the National Palace, the Supreme Court, the Palais de Justice, the Parliament, the major courts and police facilities, and all but one Ministry. The Haitian National Police was hard hit, with 77 officers killed and hundreds injured or unaccounted for.... Half of the total 8,535 prisoners in Haiti escaped[.] (15) The lack of infrastructure in the country magnified the effects of the earthquake, particularly regarding vulnerability to disease. (16) No effective sanitation system existed before the earthquake, and in the displaced persons camps human waste sat in open sewers. (17) As the aftershocks lessened and aid organizations arrived, officials warned of the possibility of disease outbreak. (18) For months, those warnings remained conjectural.
Haiti was likely free from cholera during the entire twentieth century and may never have experienced the disease before. (19) Cholera's unwelcome arrival in Haiti was officially noted on October 22, 2010, with laboratory confirmation of the first modern case of the disease. (20) Ten weeks later, the epidemic had spread to the entire country, sickening 140,000 and killing 3,000 people. (21)
Cholera is a highly infectious disease that causes intense diarrhea that can dehydrate and kill a healthy adult within hours of infection. (22) It is a fecal-oral disease, spread through the consumption of contaminated food or water. (23)
The diarrhea itself is not painful, but the disease can be extremely dangerous:
Cholera diarrhea literally runs out of the person like a faucet. In cholera treatment centers, special cots ... constructed of heavy plastic with a 4- to 6-inch hole cut in the center [are used because patients cannot use a toilet]. A bucket with chlorine is placed underneath to collect the ... up to 20 liters [of diarrhea] per day." (24) Even survivors of cholera may be permanently injured. (25) Treatment with oral rehydration salts and I.V. rehydration can significantly decrease the fatality rate, from fifty percent to around one percent. (26) Even before the earthquake, Haiti lacked the clean water and sanitation infrastructure that could slow the disease's spread. (27) Consequently, by the time the first official case was confirmed on October 22, the outbreak was already well established along the Artibonite River, used by much of the country for drinking, bathing, and irrigation. (28) The disease spread quickly: one commentator likened the introduction of cholera to Haiti to be "like throwing a lighted match into a gasoline-filled room." (29) Epidemiological research has since identified the first hospitalized case of the disease as occurring on October 17, in a community called Mirebalais, located near a U.N. camp on a tributary of the Artibonite River. (30)
But the story of cholera in Haiti actually begins weeks earlier and nine thousand miles away, in Kathmandu, Nepal. (31) A September 23, 2010, story in The Himalayan Times reported twenty-five recent deaths from cholera in that city. (32) U.N. Troops from Kathmandu arrived in Haiti, at the camp near the first recorded cases of cholera, on October 9 through 16--without having been tested for the disease. (33) An AP reporter visited the Nepalese U.N. camp in the days after the outbreak and reported seeing a broken PVC pipe "[r]unning from a near what looked like a building of latrines ... leak[ing] a foul-smelling black liquid toward the river." (34) The U.N.'s official report on the cholera outbreak concluded that "[t]he sanitation conditions at the Mirebalais MINUSTAH camp were not sufficient to prevent fecal contamination" of the river system (35) and that contaminated river water was "the most likely cause of the outbreak." (36) Subsequent testing provided the ultimate circumstantial evidence: a genetic test confirmed that the strain of cholera responsible for the outbreak in Haiti was identical to the strain found in Nepal. (37)
Today, the cholera epidemic continues in Haiti and the Caribbean region. (38) More than 730,000 people have been sickened by the disease and more than 8,700 have died. (39) Efforts to eliminate...
Cholera in Haiti: United Nations immunity and accountability.
|Author:||Bode, Thomas G.|
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COPYRIGHT GALE, Cengage Learning. All rights reserved.
COPYRIGHT GALE, Cengage Learning. All rights reserved.