Cholera arrived in Haiti in October 2010, soon after the arrival of a new contingent of United Nations peacekeepers from a cholera-infected region. The scientific evidence now points overwhelmingly to the responsibility of the peacekeeping mission as the source of the outbreak. So far, 9,145 persons have died and almost 780,000 have been infected.
In August 2016, after a draft of the present report was leaked to the media, it was announced that the Secretary-General was developing a new approach which would address many of the concerns raised in the report. The Deputy Secretary-General indicated that the Secretary-General has also reiterated that the United Nations has a “moral responsibility” to the victims and would provide them with additional “material assistance and support”. The Special Rapporteur warmly welcomes this initiative.
It remains indispensable, however, that the new process should also involve an apology entailing acceptance of responsibility and an acceptance that the victims’ claims raise private law matters, thus requiring the United Nations to provide an appropriate remedy. Acceptance of these two elements would in no way prejudice the Organization’s right to immunity from suit, nor would it open the floodgates to other claims.
The legal position of the United Nations to date has involved denial of legal responsibility for the outbreak, rejection of all claims for compensation, a refusal to establish the procedure required to resolve such private law matters, and entirely unjustified suggestions that the Organization’s absolute immunity from suit would be jeopardized by adopting a different approach. The existing approach is morally unconscionable, legally indefensible and politically self-defeating. It is also entirely unnecessary. In practice, it jeopardizes the immunity of the United Nations by encouraging arguments calling for it to be reconsidered by national courts; it upholds a double standard according to which the United Nations insists that Member States respect human rights, while rejecting any such responsibility for itself; it leaves the United Nations vulnerable to eventual claims for damages and compensation in this and subsequent cases, which are most unlikely to be settled on terms that are manageable from the perspective of the Organization; it provides highly combustible fuel for those who claim that United Nations peacekeeping operations trample on the rights of those being protected; and it undermines both the overall credibility of the Organization and the integrity of the Office of the Secretary-General.
The past policy of the United Nations relied on a claim of scientific uncertainty. That is no longer sustainable given what is now known. The United Nations was clearly responsible and it must now act accordingly.