A Roadmap for the UN to Resolve the Haiti Cholera Dispute

In an e-mail leaked to the New York Times on August 17, 2016, a spokesperson for the United Nations Secretary-General wrote that the United Nations had accepted responsibility for bringing cholera into Haiti in October 2010. It further noted that within two months the UN would provide a "significant new set of actions" to respond to the crisis. Considering that the UN previously denied any culpability in the introduction of cholera into the country, this represented a significant breakthrough in what had become a political and legal stalemate. Haiti is among the least developed and poorest countries in the world, and frequently is devastated by natural and man-made disasters. Yet one of the few problems that Haiti had avoided for over a century was cholera. In 2010, the UN sent additional peacekeepers to its peacekeeping mission in Haiti (MINUSTAH) to assist with rebuilding the country after an earthquake, and some of those peacekeepers brought cholera with them. The UN did not screen its peacekeepers for cholera, and it did not build adequate toilet facilities in its peacekeeping camps. As a result, raw fecal waste carrying cholera flowed directly into a  tributary of Haiti’s main river. Given that vast numbers of the population rely on the Artibonite River for washing, cooking, cleaning and drinking, cholera quickly spread throughout the country. Thus far, the epidemic has killed at least 9,000 people — with reports indicating that actual figures may be higher – and sickened at least 900,000.

Over the past six years, many have called on the UN to take responsibility for its actions; however, for many years, these calls did not produce tangible results. Finally, on December 1, 2016, Secretary-General Ban Ki-moon apologized for the effects of the cholera outbreak, though he stopped short of admitting that the UN caused the outbreak in the first place. Constant pressure put on the UN by the Institute for Justice and Democracy in Haiti and its sister organization, the Bureau des Avocats Internationaux, had finally led the UN to adopt a new stance on this issue.

While significant that the UN admitted moral responsibility and subsequently announced that it would respond to cholera victims by providing material assistance for those most affected by cholera, it is likely that such a package will be negotiated opaquely with Haiti’s authorities, which is troubling. Failure to bring interest groups directly representing victims to the table could result in a resolution package that is not acceptable to the victims.

Since December 2015, when a group of experts met in Birmingham (UK) to discuss what a resolution package might look like and how it could be implemented, we have been working with experts, former senior officials, and member states to create a resolution framework that is fair, respectful, realistic, and victim-centered. Together, the group drew on a range of similar situations to create a framework that could be acceptable to cholera victims. Based on past precedent, we determined that any resolution framework requires three core components: an apology, financial remedies, and the establishment of policies to prevent future death and suffering from cholera.

First, the UN must provide an apology that includes a clear recognition of the organization’s failures. While compensation and prevention could be construed as an apology, a deliberate apology with pledges to ensure that similar wrongs will not occur in the future is crucial for the healing process between local populations and the UN. In Rwanda, Srebrenica, Sri Lanka, and other nations, a public acknowledgement of responsibility was the first step towards rebuilding the credibility of the UN. Each of these tragedies was met with a clear acknowledgment of UN failure and an expression of remorse. In the Haitian case, Secretary-General Ban Ki-Moon presented his apology in English, French, and Haitian Creole, effectively reinforcing the message that the apology was directed towards the victims. This apology was Ban Ki-Moon’s response to a central demand of the victims and represented a clear step forward in the resolution of the issue.

Second, any resolution framework needs to include financial remedies for victims. This is separate from prevention and should aim to redress the harms suffered by individuals and communities. The new UN plan for cholera includes two tracks: one to support the prevention and eradication of cholera and the second to provide material compensation to victims and to support community-based projects. The UN’s initial aim is to raise $200 million for each track over the next two years. The fear here is that with a situation of aid fatigue in the country, the compensation track may not receive adequate funding. Currently, both tracks are funded through voluntary contributions by UN member states, but we believe that compensation to the victims of cholera, in essence a collective moral responsibility, would be more appropriately funded through assessed contributions.

Two categories of victims need to be distinguished: those who died from cholera, and those who were sickened. Quantifying financial compensation for wrongful deaths is always a sensitive issue and needs to respect an individuals’ worth beyond a dollar amount of wages. However, there are ways of doing so either through local standards or through models from similar situations. In the 1990s, $5,000 was awarded to families of victims for wrongful deaths caused during political instability in Haiti, roughly translating into $8,000 in current dollars. This compensation amount could act as a baseline estimate for compensation in the Haiti cholera case.

Further complicating matters are two issues that make it difficult to identify victims in Haiti. First, in some rural communities, families have no way to register deaths from cholera or otherwise. Even when a death can be registered, it is frequently done on paper, leading to clerical errors that can encumber identification. Second, identifying legitimate beneficiaries is also difficult. However, where possible, Haitian law should be used for any decisions about the legitimacy of a dependent. Where laws in Haiti are inadequate to resolve those issues, laws from similar countries could be mapped across.

As to the second category of victims, remedies for non-fatal infections could take the form of individual or collective disbursements—although this is complicated by difficulties in determining who was sickened by cholera and who was infected by any of the other endemic diarrhoeal diseases in Haiti. If collective remedies are deemed most appropriate, local populations must be consulted with to ensure that they are effectively distributed. The UNDP has been asked to lead on this specific effort. However, we crucially believe that collective remedies should not displace efforts at individual compensation. This echoes the aim of the UN plan to create a package of material assistance that is “centred on the victims and their families and communities.” It is important that this assistance be distinct from other development projects that fall under the first track of the UN plan, so the effort is perceived as a genuine form of recompense for affected communities.

Using these approaches for individual and collective remedies, the total sum for required for compensation would likely be within the range of the $200 million envisioned by the UN. There are different methods for delivering such compensation, but in cases of mass harm like this one, a lump sum payment or a trust fund is the norm. The funds could be managed by an individual acting pro bono, as Ken Feinberg did in relation to victims of the Boston Marathon bombing and the 9/11 terrorist attacks. Alternatively, it could be managed according to the model adopted by The Global Fund. However, the UN trust fund currently in place, the UN Haiti Cholera Response Multi-Partner Trust Fund, is set to administer both tracks of the UN plan, leading to worries that it will prioritize prevention programs over compensation. Moreover, it is not clear how the fund will directly represent victims’ interests in its current format.

Third, the prevention aspect of the framework. If the Cholera Elimination Plan currently in place became fully operational, it could effectively contain and eradicate the disease. It is supported by Haiti and the UN and has been championed by experts. However, the plan is woefully underfunded, resulting, for example, in water treatment plants lacking the energy required to treat contaminated water. The new UN plan would intensify efforts to stem the transmission of cholera, improve access to treatment, and address the medium to long-term issues of water, sanitation, and health systems. This is in line with the Cholera Elimination Plan and may bolster the campaign’s success.

The suggested resolution framework emphasizes three key components that together will put to rest any questions over the UN’s role in the crisis. Moreover, it would adequately compensate the victims of the cholera outbreak and create an actionable plan to eliminate the disease from Haiti once and for all. Already, the UN has acted on the apology and prevention aspects of this proposed framework. Now, the UN must turn its focus to effectively compensating cholera victims and, in the effort to provide individual compensation, not be drowned in the sea of general development programming. For justice to be done, the voices of the victims need to be listened to. After all, they are not only the victims of this terrible outbreak, but also the actors of change on the ground—and they must be engaged in helping to deliver a cholera-free Haiti for themselves and their families.