As Appeals Court Upholds “Immunity” Plea: New Internal Report Slams UN Cholera Cover-Up

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A Haitian cholera patient in 2010: “the fact is that cholera would not have broken out but for the actions of the United Nations,” wrote Philip Alston, UN Special Rapporteur on Human Rights.

UN officials are frantically fending off questions about their organization being to blame for importing cholera into Haiti following the leak last week of an internal Special Rapporteur draft report which slams their “existing approach of simply abdicating responsibility [as] morally unconscionable, legally indefensible, and politically self-defeating.”

On Aug. 18, the day after freelance reporter Jonathan Katz (the AP’s former Haiti correspondent) leaked excerpts of New York University law professor Philip Alston’s draft report in the New York Times, a New York State Appeals court upheld a lower court decision granting the UN “immunity” from a class-action suit being brought on behalf of Haitian cholera victims. (Alston’s full report was published in the New York Times Magazine on Aug. 20).

UN Secretary General Ban Ki-moon’s deputy spokesman Farhan Haq stated that the UN “needs to do much more regarding own involvement in the initial outbreak,” stopping short of admitting responsibility or specifying what exactly “much more” is.

On Aug. 19, Mr. Ban issued a statement saying he “deeply regrets the terrible suffering” the cholera epidemic has caused Haitians and assumed “a moral responsibility to the victims” by “building sound water, sanitation and health systems.”

New York University law professor Philip Alston: “The bottom line is that continued United Nations reliance on the argument that the scientific evidence is ambiguous or unclear as a way of avoiding responsibility is no longer tenable.”
New York University law professor Philip Alston: “The bottom line is that continued United Nations reliance on the argument that the scientific evidence is ambiguous or unclear as a way of avoiding responsibility is no longer tenable.”

But Haitian victims represented by the Institute for Justice and Democracy (IJDH) are suing the UN to take legal responsibility for unleashing the world’s worst cholera epidemic and to pay restitution to its victims, which is precisely why the UN is still hedging.

“Any restitution will ultimately have to come from member states,” notes Katz in the New York Times Magazine. “None is more invested than the United States, which supplies more than a quarter of the United Nations peacekeeping budget, an expenditure that Washington, perennial congressional grumbling notwithstanding, has generally considered well spent: It allows the United States to outsource many overseas military missions it would otherwise feel pressure to undertake itself. The Bush administration led the way in creating the UN Stabilization Mission in Haiti, or MINUSTAH, putting together a blue-helmeted force to replace U.S. soldiers and Marines whom Bush sent to Haiti after a 2004 coup d’état.” (This explains why in New York State court hearings, only U.S. government attorneys defend the UN’s “immunity.” The UN has never deigned to appear.)

Mr. Alston is also explicit. “Fears have been expressed that the success of the current litigation could ‘bankrupt’ the United Nations itself, or at least its peacekeeping operations,” he wrote in his report.

The IJDH is asking $100,000 for deceased cholera victims and $50,000 for each victim who suffered illness and injury, which, multiplied by the current official figures of 9,145 dead and 779,212 infected, would amount to almost $40 billion. “Since this is almost five times the total annual budget for peacekeeping worldwide, it is a figure that is understandably seen as prohibitive and unrealistic,” Alston writes. “At a time of widespread budgetary austerity, shrinking support for multilateral development and humanitarian funding, and the prioritization of funding for the refugee crisis, it is perhaps not surprising that both the United Nations and Member States [i.e. the U.S.] have in effect put the Haiti cholera case into the ‘too hard basket’ and opted to do nothing. But again this is short-sighted and self-defeating.”

The UN’s Special Rapporteur warns of “the consequences that could follow if national courts become convinced that the abdication policy is not just unconscionable but also legally unjustified” and urged the UN “to offer an appropriate remedy.”

The IJDH originally tried to seek redress for Haitian victims within the UN grievance system in November 2011. Almost a year and a half later, their petition was rebuffed with a mere two page letter. That is when the IJDH resorted to the U.S. court system to get restitution and force UN investment in rebuilding Haiti’s water and sanitation systems.

“We have 90 days to decide whether to appeal to the Supreme Court,” following last week’s Appeals Court ruling, Brian Concannon told Haïti Liberté. “We will make that decision based on our legal analysis, but also based on whether the UN demonstrates an intent to respond to the cholera epidemic in a way that respects the cholera victims’ rights. Regardless of whether we appeal to the Supreme Court, we will continue to pursue the victims’ legal claims in whatever courts are possible until the UN respects their rights.” That may include pursuing the case in the justice system of Haiti or a European nation, he said.

Mr. Alston notes that the UN is also doing a miserable job of financially responding to Haiti’s cholera crisis. “While the United Nations has been keen to emphasize how much it has done in Haiti, the reality is that member states have so far agreed to contribute only 18% of the $2.2 billion required to implement” a cholera eradication program scheduled to run through 2022, he wrote.

UN Secretary General Ban Ki-moon: “first and foremost, there should be an apology and an acceptance of responsibility in the name of the Secretary-General,” the Special Rapporteur told him.
UN Secretary General Ban Ki-moon: “first and foremost, there should be an apology and an acceptance of responsibility in the name of the Secretary-General,” the Special Rapporteur told him.

In his Aug. 19 statement, Ban Ki-moon had to acknowledge that the UN’s cholera response efforts “have been seriously underfunded, and severe and persistent funding shortfalls remain.”

The Special Rapporteur’s report is extremely frank and hard-hitting, leaving little room for Mr. Ban to continue his diversionary policy of expressing “deep regret” and calling for international “solidarity” to help Haiti solve the public health disaster that the UN has caused.

Mr. Alston notes that “the question of who bears responsibility for bringing cholera to Haiti has been systematically side-stepped in United Nations analyses,” using three techniques: 1) “ to take refuge in the passive voice whereby readers are told that ‘cholera emerged,’ or… just happened, and no scientific or technical explanation is needed.”  2) “to invoke the need to move beyond the past and instead focus on the future.” and 3) “to replace the term ‘responsibility’ by ‘blame’ and to then portray the ‘blame game’ as unhelpful, distracting, unanswerable, or divisive, and thus to be avoided.”

As a result, UN “auditors found that poor sanitation practices remained unaddressed not only in its Haitian mission but also in at least six others in Africa and the Middle East” in 2014 and 2015, risking another health crisis like that in Haiti, the New York Times revealed in an Aug. 19 story.

The report also said the UN “upholds a double standard according to which the UN insists that Member States respect human rights, while rejecting any such responsibility for itself,” an approach which “undermines both the UN’s overall credibility and the integrity of the Office of the Secretary-General.”

Again and again, the Special Rapporteur tells Mr. Ban that he has to confess his sins, because the “scientific evidence points overwhelmingly to the conclusion that the arrival of Nepalese peacekeepers and the outbreak of cholera are directly linked to one another,” that “MINUSTAH was indeed the source” of the epidemic, and that the “fact is that cholera would not have broken out but for the actions of the United Nations.”

“The bottom line is that continued United Nations reliance on the argument that the scientific evidence is ambiguous or unclear as a way of avoiding responsibility is no longer tenable,” Mr. Alston tells Mr. Ban, whose term ends on Dec. 31, in the draft report.

The Special Rapporteur also tells UN officials to stop “stonewalling” because in his opinion and that “of most scholars, the legal arguments supporting the claim of non-receivability are wholly unconvincing in legal terms,” while the UN “has been definitively found guilty both in the scientific world and in the court of public opinion.” He also notes that “[t]he global media has been systematically critical of the United Nations,” citing many examples, including the Washington Post which opined: “by refusing to acknowledge responsibility, the United Nations jeopardizes its standing and moral authority.”

In conclusion, Mr. Alston recommends that “first and foremost, there should be an apology and an acceptance of responsibility in the name of the Secretary-General” that “should be done as soon as possible in order to provide the foundation upon which subsequent steps can be based.” Those would include “constructing a policy package to address the need for compensation to the victims” and providing “the foundation for a new approach to be adopted by the United Nations in the future in such cases.”

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