Should the United Nations Be Liable for the Haiti Cholera Epidemic?

Posted in: Injury Law

In January 2010, a massive earthquake struck Haiti, killing over 200,000 people, displacing an additional 1.5 million, and causing significant damage to the country’s buildings and infrastructure. Moreover, several months after the earthquake there was a widespread outbreak of cholera, the first such outbreak in that country in modern history. Initial findings suggested that the epidemic was triggered by United Nations peacekeepers who arrived from Nepal around the time of the first reported cases. Cholera is endemic in Nepal, and improper sanitation practices by the U.N. camps where they were staying were exacerbated by the damage from the earthquake, leading to a situation highly likely to start the epidemic. Independent sources—including the Centers for Disease Control, the American Society for Microbiology, and Yale Law School and School of Public Health—corroborated that finding.

The U.N. initially denied causing the cholera outbreak and appointed an independent panel to investigate. The U.N. has maintained a continual presence in Haiti since 1994, and its subsidiary the United Nations Stabilization Mission in Haiti (MINUSTAH) had existed there since 2004. The appointed panel initially found the evidence inconclusive, but it has since confirmed that the U.N. soldiers from Nepal were most likely the source.

In 2011, Haitian civil rights groups filed a complaint with the U.N. seeking damages for allegedly causing the cholera epidemic. The international organization deferred responding at all for over 15 months, and when it did finally respond, it invoked its immunity from “public” claims under Section 29 of the Convention on the Privileges and Immunities of the United Nations, which was adopted by the General Assembly in 1946. That Section provides that the United Nations will address only “disputes arising out of contracts or other disputes of a private law character.”  The U.N. asserted that the cholera claims are public because of the political and policy issues they present, and thus that the claims are not entitled to consideration by the organization. There is no appeals process for that type of decision, so the outcome appeared bleak for the Haitian cholera victims.

Earlier this month, however, lawyers for Haitian cholera victims filed a class-action lawsuit against the United Nations in the U.S. District Court for the Southern District of New York. The lawsuit alleges not only that the U.N. was reckless in causing the cholera epidemic, but also that the international organization intentionally delayed investigations of the outbreak and “obscured discovery of the outbreak’s source.” It seeks compensation for an entire class comprised of victims of Haiti’s cholera epidemic.

In this column, I will first discuss the rationale behind the U.N.’s invocation of immunity against the claims. I will then weigh those considerations against the significant interest of the Haiti cholera victims to be adequately compensated for suffering, illness, and death. Because of the egregiousness of the peacekeepers’ conduct, I argue that the U.N. should be held accountable for the epidemic. However, because of the lack of basic infrastructure in Haiti, and in the interest of encouraging humanitarian work, I conclude that a declaratory judgment against the U.N. might best serve the needs of everyone involved.

Factors Weighing for the U.N.’s Immunity

At the time of this writing, the U.N. has not filed an answer to the complaint filed in federal court. However, Professor Kristen Boon described three factors that most likely led to the U.N.’s invocation of immunity after the Haitian victims first presented their claims directly to the organization:

  • First, the UN has taken the position that cholera was not conclusively introduced by the Nepali peacekeepers, and consequently, an open question remains as to ultimate responsibility.
  • Second, the financial implications for the UN are profound.  Not only will a settlement create a huge financial burden on the organization, but it might deter future peacekeeping efforts.
  • Finally, the case is precedent setting. It will unquestionably influence how mass claims against the UN are lodged and resolved in the future.

The first point is rendered moot in light of recent strong evidence that the Nepali peacekeepers did in fact cause the epidemic. The other two points still apply and are significant considerations.

In the United States, many jurisdictions have enacted “Good Samaritan laws,” which seek to protect from liability those who voluntarily stop to render aid to someone in need. Many of these statutes provide that a person who voluntarily renders aid is not liable for any injury that results from his or her negligent conduct or omission. However, a person whose conduct amounts to recklessness or “gross negligence” is often not subject to protection from liability under these statutes.

Although the alleged conduct by U.N. peacekeepers in Haiti is not subject to these state laws, the rationale behind finding immunity is consistent with the public policy of enacting Good Samaritan laws. If a person—or in this case, an international aid organization—may be financially liable for injury it inadvertently caused in the course of providing aid, then the risk of liability could potentially serve as a deterrent to providing aid in the first place.

The U.N. has already stated that it is committed to helping Haiti recover from both the earthquake and the cholera epidemic. Its strongest argument for immunity is that it would have more resources to allocate to helping the country if it does not have to deal with simultaneous litigation. Even a modest settlement or verdict against the organization could hinder its humanitarian efforts worldwide, including in Haiti. Indeed, when the victims petitioned the U.N. for compensation for the victims initially, they asked for $50,000 for each injured and $100,000 for each deceased. With over 650,000 infections and 8,000 deaths, that total would be over $800 million, or over 10 percent of the U.N.’s annual budget allocated for peacekeeping operations.

Haitian Cholera Victims Deserve Compensation

Perhaps the most fundamental tenet of injury law is that when one party causes injury to another party, the injured party may be entitled to compensation for his or her losses. Different jurisdictions recognize assorted exceptions to this general rule, but the principle holds true in the case of the cholera epidemic.

The U.N.’s strongest argument against liability was that of causation; at first, it was not completely clear whether the U.N. peacekeepers had actually caused the epidemic. However, once the U.N.’s own independent investigators, as well as those from other disinterested organizations, established causation with near certainty, that argument could no longer stand.

No one disputes that the people in Haiti are suffering greatly from a cholera epidemic. Often, natural disasters such as weather and illness cannot be attributed to a person or entity for the purpose of remuneration. But in this case, with causation all but proven, both morality and law would seem to require that the responsible party compensate the victims for their losses.

Weighing the Relative Interests

The facts alleged in the complaint support a conclusion that the behavior of the U.N. peacekeepers constituted more than mere negligence—recklessness or gross negligence. According to the complaint, the U.N. did not adequately screen or treat its workers from Nepal, where cholera is endemic, before sending them to Haiti. Coupled with a sanitary system in the U.N. encampment that allegedly failed to meet local standards, the peacekeepers were all but guaranteed to spread cholera in the country they were supposed to be aiding.

If these facts alleged in the complaint (and supported by some of the third-party investigators) are true, then the conduct of the U.N. surely constitutes reckless disregard for a high risk of creating a public health crisis. If the misconduct rises to this level, then even applying Good Samaritan principles would not immunize the U.N. for this level of culpability.

On the other hand, one might ask what the claimants could do with any damages they receive from a lawsuit. With a substantially deficient infrastructure upon which to rebuild, many of the families and individuals represented in the lawsuit do not have a way to utilize any compensation they might be awarded. The U.N. could point to this fact and argue that its own endeavors in the country are in the best position to help, regardless of whether it caused the epidemic in the first place.

Balancing the relative interests against each other, I believe it would be unjust not to hold the U.N. liable for its reckless conduct in Haiti (political and diplomatic considerations aside). To grant the U.N. immunity would effectively condone highly dangerous conduct simply because the international organization is simultaneously attempting to carry out humanitarian work. At the same time, however, I maintain that it is in the Haiti’s best interests to continue working with the U.N. and other aid organizations to rebuild the country. Their experience and support are more likely to result in lasting improvement than are mere financial awards for the victims of the epidemic.

A declaratory judgment against the U.N. for its misconduct would be the best solution to balance these objectives. It could provide a means for the U.N. to settle or resolve any claims while continuing to work with the country to rebuild. Although it would not provide the cholera victims with financial compensation, it would ultimately help the U.N. and other aid organizations provide longer-term solutions to all of the people of that country. Moreover, a declaratory judgment against the U.N. would serve as a clear warning to exercise care in carrying out its aid missions.

Although some might criticize this proposal as a mere slap on the wrist for the U.N., I believe it strikes the necessary balance between encouraging humanitarian aid and discouraging reckless conduct while delivering that aid.