By Mara Pillinger, Ian Hurd and Michael N. Barnett March 28 at 9:46 AM
Lemaguel Alejuste grimaces in pain after fainting at the Samaritan’s Purse cholera treatment facility in Cabaret, Haiti. (Nikki Kahn/The Washington Post)
Who pays the costs when United Nations operations go wrong? This hypothetical question became very real in October 2010 when U.N. peacekeepers from Nepal brought cholera to Haiti. Although cholera is endemic in Nepal, the peacekeepers were not screened for the disease before their departure. Once in Haiti, they built a camp with substandard sanitation that allowed human waste to spill from open pits and cracked pipes into a nearby waterway. Soon after their arrival, the first cases of cholera appeared, leading to an epidemic that has cost over 9,000 lives and sickened more than 750,000 people.
The U.N. repeatedly denied any connection between its people and the epidemic, but the organization’s culpability was soon confirmed by a range of scientific studies, expert findings, and even a report commissioned by the secretary-general.
Though the U.N. is clearly responsible “in fact” for the epidemic, it has never been found responsible “in law.” The gap between the two is important, both for the U.N. and the people who suffered. The U.N. is protected from legal accountability for the harms it has caused by three legal and political factors: U.N. immunity, the absence of legal standing for individuals in international law, and Haiti’s position of dependence in the international system.
The cholera victims and their lawyers have attempted to hold the U.N. accountable in two ways. First, they approached the U.N. with “petitions for relief” that asked the organization to apologize, invest in clean water systems, and compensate the victims. But the U.N. refused to receive their petitions. How can the U.N. simply shut its door? While several treaties, including the Status of Forces Agreement between the U.N. and Haiti, establish that the U.N. is expected to consider such claims, none contains an explicit legal requirement that it must. Moreover, there is no process or institution through which the cholera victims can challenge the organization.
Faced with the U.N.’s rejection, the victims attempted to sue the U.N. in U.S. federal courts. This approach has been stymied by the U.N.’s immunity from legal actions in domestic courts. There is some debate among international legal scholars over how far this immunity is supposed to extend, but in practice courts around the world have interpreted it as absolute protection against any lawsuit. This practice is endorsed by the U.S. State Department, and so it was no surprise when the U.S. courts dismissed the victims’ cases in early 2015. Though this decision is being appealed, it appears that the cholera victims have hit a dead end: They cannot hold the U.N. legally responsible for the harms it caused.
How did we get here?
U.N. immunity was not originally intended to insulate the organization from all responsibility for its harms. Rather, its purpose was to protect the U.N. from national governments that might use lawsuits to harass or pressure it. It was understood originally as “functional immunity,” meaning that it covered the UN and its officials for actions taken in the performance of their official duties. For example, in the Mothers of Srebrenica case, Dutch courts ruled that the mothers of men killed in the Srebrenica massacre could not sue U.N. peacekeepers for failing to prevent the massacre.
On the other hand, the U.N. is legally responsible for harms not related to its official mandate — e.g., when U.N. peacekeepers kill someone in a car accident. Since 1945, the prevailing interpretation of U.N. immunity, advanced by courts, governments, and the U.N. itself, has expanded, with an ‘absolute’ position coming to dominate over the ‘functional.’
The second obstacle is that the international legal system gives few rights to individuals. As private citizens, the victims do not have standing — i.e., legal status and ability — to address the U.N. or to advance claims against it in other international forums. Instead, international law presumes that governments will advance claims on behalf of their citizens. If the Haitian people want justice, then they have to rely on their government.
The Haitian government has a number of legal options. It could use its position as a U.N. member to insist that the organization respond to its claims. It could use the Status of Force Agreement to establish a claims tribunal against the wishes of the U.N. Or it could encourage the U.N. to request an advisory opinion from the International Court of Justice, which, due to the particular circumstances of this case, would be binding on the U.N. However, for reasons unknown — but probably having to do with Haiti’s heavy dependence on the U.N. and the international community — the government has declined to take action. Legally, Haiti is able to hold the U.N. accountable, but practically, it cannot afford to bite the hand that feeds it.
This is a world in which international institutions such as the U.N. have more power and responsibility over the fate of people than ever before but are essentially sheltered from legal accountability when things go wrong. People who are directly harmed by the actions of the U.N. have no way to seek redress.
In some ways, this is beginning to change. Access to courts is now widely acknowledged as a human right. Some human rights tribunals are accessible to individuals; conversely, individuals can be prosecuted by the International Criminal Court. But as victims of U.N. negligence, the Haitians are still outside the legal system, looking in.
Where do we go from here?
Ideally, the U.N.’s functional operations and its accountability to individuals should not conflict, since U.N. operations should contribute to the welfare of local people. In practice, however, sometimes things inevitably go wrong. The issue in the Haiti case is: who is held responsible for those damages? The current system ensures that this is not the U.N.
Restricting U.N. immunity would carry practical implications. Being responsible for damages makes it harder for the U.N. to do its job. The victims’ lawyers demanded that the U.N. pay $50,000 per illness and $100,000 per death. At this rate, U.N. liability amounts to roughly $38 billion—over four times the U.N.’s total annual peacekeeping budget. A payout that size would dramatically undermine U.N. peacekeeping activities in Haiti (including cholera eradication) and elsewhere, potentially even shutting them down.
If the U.N. cannot afford the bill, it would be passed on to member states. While it’s hard to imagine that national governments would be willing to pay, it might make them think twice about authorizing future peacekeeping missions or contributing troops. In short, a large payout for the mess in Haiti could have consequences for all U.N. peacekeeping efforts.
Functional immunity was designed to manage this tension by ensuring that local courts would not impede U.N. operations. But the Haiti case demonstrates that U.N. immunity has shifted too far toward the organization at the expense of the people it is meant to serve.
Just outcomes are like pixilated images — they appear clear from a distance but are blurry and illusive up close. The law is a common frame for seeking justice, but it will never be perfectly able to deliver just outcomes. Sometime we need to think outside the legal box. Responsibility and accountability are not only legal concepts — they are also political and moral ones. There are a range of non-legal ways to promote accountability, including political pressure, public shaming, and media scrutiny. We see these at work when constituents call on misbehaving politicians to resign or consumers boycott companies.
In Haiti, the U.N. is unable or unwilling to acknowledge the harm it has caused and the law doesn’t obligate it to. Civil society actors may ensure that law does not have the final word.