February 05, 2017

UN immunity beats back legal claims by Haitian cholera victims, battle continues

Despite a significant legal setback last summer, the fight for reparations for victims of Haiti’s cholera epidemic continues.

Four lawyers and a physician agreed during a panel discussion that the battle has been difficult and disappointing, but they will continue to seek improvements to the nation’s sanitary systems and payments from the United Nations for those who have suffered.

“The battle is far from being over,” said Dr. Joseph Pierre-Paul Cadet of the Polyclinique de West Palm Beach. “We have to keep on fighting for those unfortunate people of Haiti.”

More than 9,000 Haitians have died from cholera and more than 800,000 have been infected since the outbreak, which is still not under control, began in 2010. Experts believe the epidemic began when U.N. peacekeepers from Nepal arrived in Haiti to help with earthquake recovery efforts. The experts say some peacekeepers brought cholera with them, and it spread to Haitians when sewage from the peacekeepers’ camp spilled into a local river.

For many years, the U.N. refused to acknowledge its role in the epidemic. But on Dec. 1, 2016, U.N. Secretary General Ban Ki-moon apologized to the Haitian people. “We are profoundly sorry for our role,” Ban said, acknowledging that the U.N. “simply did not do enough with regard to the cholera outbreak and its spread in Haiti.”

While the words were comforting, it did not resolve a long-running legal dispute.

The U.N. has legal immunity from litigation under various international agreements. Nevertheless, 5,000 Haitians filed legal claims against the U.N. in 2011. Two years later, the U.N. said those claims were “not receivable.” A Haitian advocacy group then sued the U.N. in U.S. District Court in New York. The trial court dismissed the case in January 2015, and the Court of Appeals for the Second Circuit upheld that action on Aug. 18, 2016.

Advocates for the Haitian victims knew the lawsuit was a long shot. “From a legal point of view, it was kind of crazy,” said Ira Kurzban of Kurzban Kurzban Weinger Tetzeli and Pratt in Miami. “It was an almost impossible case.”

For years, Kurzban said, “the strategy of the U.N. was clearly deny, deny, deny. Our strategy was to keep it alive as long as possible.” That included keeping the issue in the public eye, which generated a lot of media coverage in recent years.

Legally, advocates tried to prove that the U.N. had breached its obligation to provide Haitians with clean water and sanitary conditions, said Paula Arias, director of the International Moot Court Program at the University of Miami School of Law.

Meanwhile, Haitian activists outside of Haiti organized themselves to pressure the U.N. “They need to do what they do to make the cholera stop,” said Soeurette Michel of the Michel Law Firm. “We’re in it to stay until we see the results.”

Arias said the lawsuit highlighted a legal gap that needs to be fixed. Michel said morale in Haiti is low and most Haitians don’t believe the U.N. will ever make things right. She accused the Haitian government of not standing up for its people against the U.N. early on.

The legal fight might continue in a European court, Kuzban said. Beyond the legal dispute, “We have to keep the conversation alive,” Michel said. “In the United States, a lot of people don’t even know there’s a cholera epidemic in Haiti.”

The panel was moderated by Meena Jagannath of the Community Justice Project and sponsored by the ABA Section of Civil Rights and Social Justice.