By George Russell
Argentinian peacekeepers with the United Nations Mission in Haiti (MINUSTAH) administer medical aid to residents of Les Cayes affected by Hurricane Matthew. (UN Photo/Logan Abassi )
The United Nations’ wall of denial about its responsibility for causing Haiti’s 6-year-old cholera epidemic is stronger than ever — and a U.N. human rights expert has put the focus directly on the Obama administration for helping to keep the barrier in place.
Philip Alston, a New York University law professor, who is currently the U.N. special rapporteur on poverty and human rights, issued a final report on the cholera crisis on Tuesday that sharply castigated the U.N. for a legal stance that is “morally unconscionable, legally indefensible and politically self-defeating.”
He also accused the world organization of “fairly systematic backing down” from a promised change of its long-held position that the specific causes of the cholera epidemic were not known, and that it is not legally responsible for the disastrous outcome of the epidemic, which has killed more than 9,000 people and, according to Alston’s report, stricken 7 percent of the country’s 10.9 million population.
Alston called the renewed hard line of non-responsibility “a huge disservice to the U.N.,” and a “terrible” precedent for the future.”
Among other things, his report said that “without the acquiescence, if not the active support, of the United States and other Security Council members, [that] approach would not have been adopted by the United Nations.” The U.S. is the only nation specifically named in the document.
In an interview with Fox News, Alston said that meetings with officials from the U.S. Mission to the U.N., the National Security Council and the State Department in the process of preparing his final report had failed to win any understanding on why the U.S. apparently backed the no-responsibility position, or “even what the [U.S.] legal position is.”
In a press release, he added that the U.S. “seems to have pressed the U.N. to adopt the position frequently taken by lawyers in the U.S. that responsibility should never be accepted voluntarily, since it could complicate future litigation.
Alston called that rationale “completely inapplicable to the U.N., which enjoys absolute immunity from suit in national courts, and whose reputation depends almost entirely on being seen to act with integrity.”
Questions to the U.S. Mission to the U.N. about Alston’s criticisms were not answered before this article was published.
Nor has the U.N. itself ever revealed what Alston called at a press conference a “phantom legal opinion” by its Office of Legal Affairs, which has anchored the U.N.’s denial of responsibility. His report hinted that the internal legal opinion may well have been changed as a result of pressure, but added, “this cannot be confirmed since none of the analyses of the Office of Legal Affairs have been made public.”
The Legal Affairs opinion “has provided a convenient justification for States to avoid engagement on the responsibility of the United Nations for the cholera epidemic in Haiti,” his report declares.
Behind all of the legal discussion is the ugly reality of Haiti’s plight: stricken in 2010 by a cholera epidemic that virtually the entire scientific world now lays squarely at the door of U.N. peacekeepers from Nepal, whose cholera-infected human waste was dumped in violation of all health procedures into Haiti’s Artibonite River. Haiti had never experienced cholera before.
The disease, while reduced from its ravages in 2011, is now an ongoing aspect of disaster-plagued Haiti’s desperately poor and unstable way of life. Cholera outbreaks flared up again in the wake of the country’s disastrous encounter in early October with Hurricane Matthew — after the destructive winds dissipated, UNICEF called cholera “the largest immediate threat in the affected areas.”
Ever since 2011, however, the U.N. has hidden behind an increasingly threadbare report from a hand-picked panel of experts who agreed with the source of the epidemic but then maintained the outbreak “was not the fault of, or deliberate action of, a group or individual.” Some members of the panel have since publicly changed their minds.
Alston acidly noted in his report that the U.N. position “completely fails to mention, let alone address, the central issue of negligence which lies at the heart of the legal issue of fault in this case.”
Meantime, waves of other scientific researchers have shown that the specific cholera strain in the Haitian epidemic was linked genetically to a strain in Nepal, and that an outbreak had occurred in that country just before its peacekeepers joined the Haitian peacekeeping force.
Then, in 2013, the U.N. invoked immunity to insulate itself from a class-action lawsuit launched by Haitians who lost family members or suffered from the disease. The U.S. State Department has backed the U.N.’s immunity defense, which was upheld in a U.S. federal appeals court in August.
The Alston report’s central contention, however, is that the U.N. does not need to give up its cherished immunity to accept responsibility for the disaster it caused. Indeed, he says, the U.N.’s internal legal framework already provides the way to do it.
“The United Nations has long accepted that. . . it can incur obligations and liabilities of a private law nature,” Alston’s report notes. And the U.N. already “recognizes its international responsibility for damages caused by the activities of United Nations forces within this framework,” it adds.
As evidence, the report cites a 1998 U.N. General Assembly resolution that “set up a special regime to deal with third-party claims in the context of peacekeeping missions, although it set temporal [time-limited], financial and other limitations to that liability.” The individual claim limit under the resolution is $50,000.
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Moreover, Alston’s report notes, “the United Nations has frequently processed claims involving alleged negligence, especially, for example, in relation to traffic accidents.”
The report lauds the U.N. for the so-called “new approach” it hinted at last August.
According to a letter the special rapporteur received at the time from U.N. Deputy Secretary General Jan Eliasson, the deal would “be elaborated through “a transparent process” involving consultation with the Haitian authorities, Member States and victims.”
Since then the U.N. has revealed that the “new approach” includes a $400 million trust fund –which still needs to be funded by U.N. member states — to provide unspecified “material assistance” to those affected by the disease and also bolster water and sanitation resources,
The report, however, calls the new policy “critically incomplete.”
“There is not yet a promise of an apology or an acceptance of responsibility,” it notes. The U.N.’s legal position, “ which is to deny all legal responsibility, is comprehensively reaffirmed.” Even the remedies are to be dispensed through political and diplomatic, rather than legal means.
“In other words,” Alston concludes, “the lamentably self-serving legal contortions devised to escape any form of legal responsibility still remain in place.”
Amid the contortions, whether the remedies will ever include the promised amounts of money is also still open to question.
In another letter to Alston on October 12, Eliasson said that the U.N. was “making every effort to engage Member States and raise funds and support” for the ostensible new approach, but that Hurricane Matthew had impeded the effort.