Guest Analysis

Haiti cholera plaintiffs appeal ruling

On May 27, lawyers representing thousands of Haitian cholera victims filed an appeal against Federal Judge J. Paul Oetken’s Jan. 9, 2015, decision that the United Nations is legally immune from prosecution for importing cholera into Haiti and unleashing an epidemic which has killed about 9,000.

Lawyers from the Boston-based Institute for Justice and Democracy in Haiti (IJDH), the San Francisco-based Center for Law and Global Justice, and the Miami-based firm of famed immigration lawyer Ira Kurzban filed a 62-page brief which argued that Judge Oetken erred in ruling that the UN and its military force, the UN Mission to Stabilize Haiti (MINUSTAH), were immune “despite having violated their treaty obligation to provide a mode to settle private law claims,” and UN Secretary General Ban Ki-Moon and former MINUSTAH chief Edmond Mulet “are entitled to immunity in this case simply because they ‘hold diplomatic positions.’” The lawyers also argued that, by granting these immunities, Judge Oetken was violating the plaintiffs’ “constitutional rights to access the federal courts.”

Cholera is a water-borne bacteria which principally spreads via sewage. In October 2010, cholera-infected Nepalese MINUSTAH soldiers allowed feces from their out-houses to flow into the headwaters of Haiti’s largest river, the Artibonite, used for drinking, washing, and irrigation. The disease rapidly spread throughout the country, and, in the past five years, some 740,000 Haitians have been infected, resulting in 8,927 fatalities as of the latest count in April 2015.

“Rather than undertaking a bona fide investigation and containing the disease, Defendants responded by covering up key evidence and misleading the public about the UN and MINUSTAH’s responsibility,” the lawyers wrote. “Despite clear knowledge of the substandard sanitary conditions of the [Nepalese soldiers’] Meille base, Defendants repeatedly denied any connection to the outbreak and refused to conduct, or to allow others to conduct, a timely investigation. MINUSTAH also issued several statements asserting that all Nepalese soldiers deployed to Haiti in October 2010 underwent medical testing and that none tested positive for cholera when, in fact, no such tests were conducted. Despite privately acknowledging that the statements were false, Defendants never retracted them.”

“That Defendants’ acts were the direct and proximate cause of Haiti’s cholera epidemic is indisputable,” the brief continues. “Since the outbreak, several independent epidemiologists have conclusively established that the cholera in Haiti originated from the UN base. Experts in genetic analysis have matched the cholera strain in Haiti to the one in Nepal. … Despite this evidence, the UN continued to deny responsibility.”

The lawyers first filed suit within the UN’s grievance system on Nov. 3, 2011, but their petition was backhanded 15 months later in a two-page letter which said simply stated that the claims were “not receivable.”

Unable to make a claim within the UN’s framework, the lawyers had to resort to the U.S. court system. On Oct. 9, 2013, they filed a class-action lawsuit in U.S. District Court in New York against the UN and its officials on behalf of five Haitian plaintiffs affected by cholera and now living in New York State. They charged “common law negligence, recklessness, wrongful death, negligent supervision, and negligent infliction of emotional distress” and sought “remediation of Haiti’s waterways and provision of sanitation infrastructure needed to control the continuing epidemic, as well as damages for the deaths and injuries caused.”

The lawyers had great difficulty serving papers on UN officials, who refused to receive the summonses. Judge Oetken finally heard oral arguments in a packed court-room on Oct. 23, 2014. The UN never showed up. Arguing for their immunity from the lawsuit were only U.S. government lawyers.

The crux of this case is whether the UN can invoke the Convention on the Privileges and Immunities of the United Nations (CPIUN). “The UN and MINUSTAH cannot lawfully hide behind the CPIUN when they refuse to comply with their obligations under that treaty,” the lawyers argue in their appeal. “Their refusal to provide a claims commission or other mechanism to address the claims of cholera victims violated Section 29″ of the CPIUN, which requires a way to make claims. The UN provides no such avenue, but Judge Oetken found “the violation of Section 29 to be of no consequence,” the lawyers pointed out.

It may be months before the Appeals Court acts. During that time, the cases of sickness and death from cholera in Haiti will spike as they always do when rains drench the sanitation-challenged nation during hurricane season, which has only just begun.

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