Haiti Cholera Battle Against UN Moves to US Court
by Kristen
Boon
After
receiving a staunch “no” from the UN earlier this year, lawyers for Haiti
Cholera victims filed a class action lawsuit in the Southern District of New
York today. The complaint is available here. The complaint
seeks certification of a class that is composed of cholera victims who are
Haitian and US citizens. The basis of the class action is that the plaintiffs
have a right to a remedy under Haitian tort law, and includes a request for
relief on the basis of wrongful death, and infliction of emotional harm.
Moreover, in reference to international law, the plaintiffs assert:
Defendants UN
and MINUSTAH have well-established legal obligations to provide redress to
victims of harm caused by acts or omissions attributable to the Defendants,
which includes the members of the proposed Class. The Convention on the
Privileges and Immunities of the UN of 1946 (“CPIUN”) expressly requires
Defendant UN to provide appropriate modes of settlement for third-party private
law claims. The Status of Forces Agreement (“SOFA”) signed between Defendant UN
and the Government of Haiti expressly requires the UN to establish a standing
claims.
To
date, the UN has denied legal responsibility on the basis of Article 29 of the
Convention on Privileges and Immunities stating that the claim is not
receivable. Presumably, the justification is that this is a public rather
than a private law claim, although the UN’s response did not spell this out, as
I discussed in an earlier blog here.
What the UN has focussed on instead is a fund for
improved sanitation and water infrastructure.
Pressure
on the UN has mounted. On Tuesday, the UN High Commission for Human
Rights, Navi Pillay, urged
the UN to compensate the victims, although she did not state where
that money should come from. An important report produced
this summer by students and professors at the Yale Law School Transnational
Clinic has also called for compensation. In addition, the UN
Independent Panel of Experts convened in 2011 to investigate the source of
cholera in Haiti published a new academic article this
summer that concluded that MINUSTAH was the most likely source of cholera
in Haiti. The precise language they use is:
“The preponderance
of the evidence and the weight of the circumstantial evidence does lead to the
conclusion that personnel associated with the Mirebalais MINUSTAH facility were
the most likely source of introduction of cholera into Haiti.”
Even
Haiti, conspicuously silent about the potential responsibility of the UN for
this outbreak, changed its tune at the recent General Assembly meetings and
where its Prime Minister argued that the UN has moral responsibility for the
outbreak.
The
complaint deals only briefly with the question of privileges and immunities,
which is likely to be the UN’s first defense. As I noted in this blog, this will be an obstacle the
plaintiffs are unlikely to surmount. Nonetheless, I suspect the lawyers
are seeking a different kind of victory here. They are exposing the
limits of the UN’s internal justice system, forcing the public to focus on the
disastrous health consequences of the cholera epidemic in Haiti, and
highlighting the accountability gap that has emerged in light of the refusal to
establish a claims commission.
