Responsibility in the Time of Cholera: Liability of International Organisations for Wrongful Conduct

Abstract

The reference point for the present paper is the outbreak of cholera in Haiti in 2010, which has been argued to have resulted from the deployment of Nepali peacekeepers to the United Nations Stabilization Mission in Haiti (MINUSTAH). The outbreak killed close to 8000 people and infected 6% of the Haitian population. In 2011, the Institute for Justice and Democracy in Haiti (IJDH) filed a law suit against the United Nations (UN), on behalf of over 5000 plaintiffs, claiming compensation for those deceased and injured in the cholera epidemic. It also sought a public apology and acknowledgment of responsibility for causing the outbreak of the epidemic on part of the UN. While there has been significant criticism levied at the UN, the organization has absolved itself of any responsibility by claiming immunity. Not surprisingly, MINUSTAH is not the only UN mission to have come under criticism. In 2012, an internal report of the UN leaked to the press severely criticized the dereliction of duty on part of senior UN officials in Sri Lanka during the civil war in 2009, which led to the death of many civilians. Other UN peacekeeping missions, notably the UN Stabilization Mission in DR Congo (MONUSCO) have also been severely criticized for rampant sexual abuse and exploitation cases perpetrated by its peacekeeping troops. Nevertheless, the Haiti cholera case remains a significant precedent for the potential implications it holds for future activities of the UN in the field of peacekeeping. This paper proposes to study the liability of the United Nations (UN) for wrongful acts committed during a UN authorized mission. The present paper does not seek to establish the nature of human rights and humanitarian law obligations that the UN is bound by. Rather, it begins with the assumption that given the legal personality vested in the UN such an obligation is implicit, derived from customary international law as well as principles of human rights and humanitarian law. Beginning with this assumption, the paper seeks to answer the following questions1) Whether the UN can claim immunity from prosecution and compensation for acts which are (i) manifestly wrong and/or (ii) reckless and fail to meet due diligence standards set by the organization and (iii) do not further the objective of a UN mission. 2) If the answer to the aforesaid question is yes, what are the pre-conditions that have to be fulfilled before such attribution of responsibility can take place?The paper proposes to examine the aforesaid questions by studying the interplay between institutional immunity granted to the UN as well as taking into consideration the 2011 ILC Draft Articles on the Responsibility of International Organizations. Another aspect, which will be covered is the issue of third party claims procedure and Status of Forces Agreement, traditionally signed between the UN and the host country before a peacekeeping mission is deployed.