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How does imperialism relate to Haiti’s current crisis?

January 15, 2015 - 09:30

This article summarizes conflicting views of what led to Haiti’s current political crisis, from lack of international intervention to excessive intervention in the small country. It not only cites our briefing on the crisis and CEPR’s 5th earthquake anniversary report, but even ties in Haiti’s battle for independence. A very interesting analysis.

Click HERE for the original article.

Haiti: There’s Nothing Wrong With American Imperialism That Can’t Be Solved With What Is Right About American Imperialism

Greg Grandin, The Nation
January 15, 2015

Haiti’s been under effective occupation by the United Nations Stabilization Mission In Haiti (MINUSTAH, in French) for ten years, since 2004, after the United States, Canada and France came together to drive out Jean-Bertrand Aristide. Over that decade, MINUSTAH troops haveshot at protestersintroduced cholerarapedraped again and engaged in other acts of predation. Meanwhile, the “international community,” again led by Washington, Paris and Ottawa, carried out a second coup—an electoral coup—in 2010-11, engaging in heavy-handed vote manipulation to install Michel Martelly as president. After Haiti’s devastating earthquake that claimed hundreds of thousands of lives—the five-year anniversary of which just passed—even Bill Clinton apologized for forcing Haiti to gut its rice industry to benefit US agro-industry.

And yet The Washington Post, in a recent editorial, thinks Haiti needs even more intervention:

From time to time, Haiti’s chronic political dysfunction erupts in crisis and violence, compelling the international community to re-engage with an impoverished country it might prefer to disregard. Haiti is at just such a juncture right now. Policymakers in Washington and elsewhere should pay prompt attention, before the predictable calamity arrives… . Recognizing that the standoff has become dire, Secretary of State John F. Kerry has urged a negotiated settlement that would “open the door for elections to be scheduled as soon as possible.” Yet without more aggressive mediation by U.S., United Nations, French, Canadian and other diplomats, the chances of such a settlement are slim…. As Mr. Kerry pointed out, too much progress has been made since then toward rebuilding Haiti to risk extinguishing all hope amid renewed political violence. To dismiss Haiti as a basket case or shrug off its troubles as insoluble is to forget a history that suggests that without outside help, the country can deteriorate into anarchy, at which point ignoring it is no longer an option.

To paraphrase Clinton, there’s nothing wrong with American imperialism that can’t be solved by what is right with American imperialism.

Here’s the “too-much-progress” that has been made in the last decade, drawn from the Center for Economic and Policy Research’s “Haiti by the Numbers”:

Extreme poverty in rural Haiti in 2000: 38 percent

Extreme poverty in rural Haiti in 2012: 38 percent

Number of people still living in tent camps, as of September 2014: 85,432

Number of individuals living in informal settlements on outskirts of Port-au-Prince, not counted in official displaced population, according to Haitian government: 300,000

Total amount awarded in contracts and grants by USAID: $1.5 billion

Percent that went directly to Haitian organizations: 1

Percent that went to firms located inside the beltway (DC, Maryland and Virginia): 56

Total amount awarded to Chemonics International, a [DC-based] for-profit “development” company, since the earthquake: $216 million.

Martelly is running a neo-Duvalierist restoration, as Jeb Sprague and Dan Beeton, among others, have argued. Elections are more than three years delayed, he’s appointed more than 130 mayors and has stacked the government, including the electoral council, with his supporters.

The Institute for Justice and Democracy in Haiti has just put out a policy briefing that is a good corrective to the Post’s paternalistic interventionism, pretty much a point-by-point guide of everything the United States, France and Canada doesn’t want to see happen in Haiti (because to do so would be to bring Aristide supporters back into the political arena):

• Encourage the Martelly administration to work in good faith with the Parliament and opposition groups to form a consensus government;

• Call for the establishment of a Provisional Electoral Council that complies with Art. 289 of the Constitution and is selected in a fair and inclusive manner in order to ensure credibility;…

• Call on the Haitian government and Provisional Electoral Council to ensure inclusion and full participation of all political parties in all facets of the electoral process;

• Work with human rights groups to identify and encourage the immediate liberation of all political prisoners, and promptly denounce any future arrests of Martelly regime opponents unless clearly justified; and

• Secure the Haitian public’s right to freedom of assembly and expression by refraining from use excessive force on demonstrators and condemning arbitrary arrests and use of force by Haitian police.

A few years ago, Keane Bhatt and I also put together a ten-point essay on why MINUSTAH should get out of Haiti and why UN troops should not be given immunity for their many crimes. More recently, we sent in this letter to the Post, which appears here as published:

The December 28 editorial “Haiti’s broken politics” concluded that, absent international intervention, Haiti will crumble into anarchy. In fact, Haiti’s crisis is, in large part, a consequence of U.S. and international intervention. This country has been occupied by U.N. soldiers for more than a decade. And it was U.S. pressure that led to the 2010 elections, months after the earthquake and weeks after the eruption of a virulent cholera outbreak, introduced by those U.N. troops. Fewer than 23 percent of registered voters cast a ballot. President Michel Martelly has never had a democratic mandate. It was only after a nine-member team from the Organization of American States, controlled by the United States and its allies, reversed the first-round results—in an unprecedented maneuver and without justification—that Mr. Martelly even made it to the second round. Since taking office, Mr. Martelly has failed to schedule elections, now more than three years delayed. He has appointed more than 130 mayors, sidestepping the democratic process. He stacked the electoral council with his supporters. The six “opposition” senators blamed in the editorial are a convenient scapegoat. These senators (and the thousands who have been protesting daily) are demanding legitimate, fair elections rather than a repeat of 2010. The international community indeed plays a role in shaping Haiti’s political future. But it is not one that it should be proud of.

What is at stake here is fear of democracy, as it has been in Haiti ever since that night of August 21, 1791, when Dutty Boukman, a vodou high priest, gave the signal to revolt. “The god of the white man calls him to commit crimes; our gods ask only good works of us,” Boukman reportedly said; “throw away the image of the god of the whites who thirsts for our tears and listen to the voice of liberty that speaks in the hearts of all of us.” Thus began the thirteen-year-long Haitian Revolution, resulting in the overthrow of Haitian slavery and the establishment of the second republic in the Americas.

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This was the ceremony that Pat Robertson was referring to when he said, five years ago after the earthquake, that Haitians “swore a pact to the devil” for their freedom and “ever since, they have been cursed by one thing after another.” Robertson is nuts, but he’s right: there was a deal made, not with the supernatural but the financial, though these days it is hard to tell the two apart. Haitians agreed to pay France reparations to lost property—that is, the slave system they destroyed. Over the last decade, there’s been a movement to demand that France pay Haiti reparations for the reparations it extracted, which according to one tally amounts to$21,685,135,571. And 48 cents. This figure doesn’t count “interest, penalties or consideration of the suffering and indignity inflicted by slavery and colonization.” France of course refuses to pay, though a few years ago pranksters impersonating government officials set up a fake web page and released the following statement: “the historic debt of 90 million gold francs Haiti paid to France following the former’s independence at the dawn of the 19th century…. the 90 million gold francs, which Haiti paid France from 1825 until 1947, will be reimbursed in a yearly budget over the course of 50 years. Economic advisors working with the ministry have calculated that the total sum amounts to €17 billion including adjustments for inflation and a minimal interest rate of 5 percent per annum.” Paris issued an immediate denial.

Meanwhile, in the real legal world, last Friday, a New York district court just ruled against Haitian cholera victims, in a lawsuit demanding that the UN pay restitution:

One way or another, it sees, Haitians continue to pay and they continue to be cursed, now because of the neoliberal concessions Aristide had to promise Clinton before the US would restore him to power after the first coup against him (only to have the US intervene and stage a second coup that drove him back out of power).

In any case, here’s Wikileaked cable from 2008, from the US ambassador to Haiti, Ambassador Janet A. Sanderson. She calls MINUSTAH an “indispensable tool in realizing core USG [or US government] policy interests in Haiti.” Sanderson says that one of the main threats that MINUSTAH is helping to contain are “resurgent populist and anti-market economy political forces,” which if unleashed would reverse the “gains of the last two years.”

Ah, those elusive and fragile gains…

 

Click HERE for the original article.

Que fait Martelly à propos de la crise politique?

January 15, 2015 - 09:08

Il y a des rumeurs qu’avec son nouveau pouvoir, président Martelly nommera Evans Paul comme Premier ministre lors d’un discours prononcé le 16 janvier. Des sources proches du gouvernement nient les rumeurs et prétendent que le président est toujours à la recherche d’une solution à la crise politique.

Partie de l’article est ci-dessous. Cliquez ICI pour le texte complet.

Martelly s’adressera au pays, l’horizon se dégage pour Evans Paul

Roberson Alphonse, Le Nouvelliste
15 janvier 2015

« Le président Michel Martelly doit effectivement délivrer un message à la nation ce vendredi 16 janvier 2015 », a confirmé Lucien Jura, porte-parole de la présidence. Le corps diplomatique, les dix sénateurs en fonction, d’anciens parlementaires, des représentants d’autres secteurs sont invités, a-t-il poursuivi, sans révéler l’objet de cette adresse.

L’intervention du chef de l’Etat intervient à un moment où l’horizon semble être dégagé en ce qui a trait à l’installation du Premier ministre nommé Evans Paul. Ce jeudi, une source de Inite proche des discussions a confié au journal « qu’un accord est presque trouvé pour accepter K-Plim ». Parce qu’il n’y a pas d’autre choix, a-t-elle indiqué.

 

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5 Years Post-Quake, Another Disaster in Haiti

January 14, 2015 - 09:37

A political crisis has been brewing in Haiti for over 3 years now, ever since the Martelly administration failed to hold elections in 2011. The crisis came to a head January 12, when the terms of 1/3 of Haiti’s Senate and of the Chamber of Deputies expired, leaving Parliament unable to reach a quorum to pass any laws. This also means that President Martelly is ruling by decree, the de facto dictator of Haiti. New protests arise every day and the UN Security Council heads to Haiti next week to find a solution. So far, it’s unclear what that might be.

Part of the article is below. Click HERE for the full text.

Haiti’s Political Earthquake Five years after the devastating earthquake, has Haiti fallen into de facto dictatorship?

Nathalie Baptiste, Foreign Policy in Focus
January 14, 2015

Five years after the now-infamous Haitian earthquake, the small country faces another crisis.

As Haitians mourn the earthquake that robbed them of their loved ones and livelihoods, they’ll also be treated to yet another meltdown of their government. With President Michel “Sweet Micky” Martelly and members of the opposition proving unable to organize parliamentary elections, the political gridlock that has been plaguing Haiti for over three years has turned into a full-fledged crisis as the country’s legislature has dissolved — leaving a de facto dictator in charge.

In the weeks leading up to the dissolution of what had been left of the Haitian government, political pundits argued and radio talk show hosts held lively debates about the political crisis. As days kept passing, a concrete resolution wasn’t even on the horizon. Tensions in Port-au-Prince were running high.

No Elections, No Peace

Glittering up above a backdrop of shantytowns and poorly constructed shacks is Petionville, the wealthy suburb of Port-au-Prince. On Bourdon Street, informal merchants sell art to the upper class and brand new hotels appear to spring up weekly along the quiet suburban streets. Petionville is home to the tiny Haitian elite, and up here Martelly is beloved.

 

Click HERE for the full text.

What Led to Haiti’s Political Crisis?

January 13, 2015 - 12:42

The current electoral crisis in Haiti can be traced back to the laws created when former dictator Duvalier went into exile. These laws were meant to check any branch of government from becoming too powerful but have been abused by many presidents to prevent other government branches from functioning. Most recently, US-installed President Martelly has used them to delay elections for over 3 years. Now that most of the terms of Parliamentarians have expired, Martelly is left with full control of the Haitian government.

Click HERE for the original article.

What Caused the Haitian Election Impasse?

Teresa Welsh, U.S. News & World Report
January 13, 2015

Haiti’s government failed to reach an agreement to schedule parliamentary elections before a midnight deadline passed Tuesday morning, leaving President Michel Martelly to rule by decree. The elections have been repeatedly postponed since 2011 as the president and opposition parties have failed to agree on terms and timing of the electoral process.

Because there was no agreement, the terms of members of Haiti’s Chamber of Deputies and Senate have expired. The system has 99 deputies and 30 senators, but they no longer have a quorum to pass laws, making them legally unable to function. It is unclear if or how a potential agreement between the president and lawmakers could reinstate their ability to legislate.

Municipal elections have also been delayed.

Haiti is in this position because of the legacy of dictatorship that ended in 1986 when Jean-Claude Duvalier, known as Baby Doc, went into exile. The Haitian constitution was then drafted to prevent one leader from dominating the country and to establish a system of checks and balances that would allow one branch of the government to prevent the functioning of another.

….

 

Click HERE for the original article.

Haiti’s Political Crisis and the Impact on Reconstruction

January 13, 2015 - 06:30

Brian Concannon, Executive Director of IJDH, was invited to participate in a Congressional briefing panel on Haiti’s political crisis. The panel was called “Roundtable Discussion: Haiti’s Political Crisis and the Impact on Reconstruction”. Brian’s planned remarks are below.

January 13, 2015

Other Featured Participants:
Amb. Tom C. Adams, Special Coordinator for Haiti, U.S. State Department
Antonal Mortime, Plateforme des Organisations Haïtiennes de Droits Humains (POHDH)
Prof. Robert Fatton, University of Virginia
Prof. Robert Maguire, George Washington University

First, I thank everyone: happy to be on a panel with Amb, Prof, Prof, but especially happy to see Antonal here. Vitally important to have Haitian voices included in these discussions.

Three Important points that I think are worth inserting into the discussion.

I. First: what is the political crisis?

Is it the challenges of implementing Sunday’s political accord, or the November recommendations 1987 Constitution.

All of us up here, and many in the room, have been involved in panel discussions on Haiti for years. Me, almost 20. Prof. Fatton and Maguire, longer. Many, if not most, of those panels have addressed how the political crisis of that moment was affecting addressing an important problem in Haiti. And I although I enjoy these discussions, I would really like to talk about something else, for example how we improve access to justice for poor victims of rape, how we deal with Haiti’s pretrial detention problem, etc . But we just can’t get to those things because are always stuck with a political crisis.

There is a strong argument to be made that the main problem facing Haiti isn’t reconstructing from the earthquake, but is constructing a a stable, complete, constitutional government in Haiti, which has never happened under the 1987 Constitution. Ambassador Adams can explain how much long-term governance problems- inability to establish land titles, capacity in the Ministries, etc., have hobbled the reconstruction effort. Even the extreme death toll of the earthquake was largely a governance issue- most of those killed died when poorly constructed homes built on hillsides that were illegally steep for buildings collapsed.

II. Second Point: Should we be reversing the question: if the most important problem is governance, then perhaps we should be worrying about how reconstruction is impacting governance?

Is the international community’s earthquake assistance effectively supporting long-term government capacity to deliver basic government services? Is the international community taking steps that might help advance a specific aspect of the reconstruction, but do so at the cost of reinforcing unconstitutional rule in Haiti?

III. Third Point: Importance of rules

If you have a hammer in your hand, every problem looks like a nail. If you have a law degree, every problem looks like a rules violation. But I really do think rules are important here, especially the rules set down in the Constitution. That is actually a fairly uncontroversial statement applied to the US, but is somehow more controversial when applied to Haiti.

For example, what if President Obama announced ahead of the 2016 elections that his successor would be elected by direct voting, not the Electoral College. I would have good reasons for supporting that decision. It is more small d democratic, and may increase the chances that the candidate I support would win. Others would have good reasons to oppose it, especially tv viewers in swing states who want to see even more campaign ads. But no one would even assert those policy and political arguments. We would all oppose the President’s plan simply because the constitution says that we chose Presidents through the electoral college. This might run against my short term political interests, but I understand that the long-term stability of the US is enhanced by complying with the constitution.

The analog in Haiti is the electoral council. This is a complicated issue- we tried to make sense of it all in the briefing we put out last week, and it was a challenge to capture all the complexity. And many of the problems predate the current administrstion. But the President has proposed a series of electoral councils that have their advantages, and may be justified by policy and political concerns. But they fall short of constitutional requirments in in very important ways. I think that Haiti attaining the stability that we take for granted in the US requires all of us-political leaders in Haiti, but also everyone in the US engaged with Haiti- political leaders, government officials, commentators and advocates- to apply the same level of respect for Constitutional rule in Haiti as we would in the US.

24 Hours to Appoint a New Provisional Electoral Council

January 13, 2015 - 04:40

Haitian President Michel Martelly has finally begun the process of convening a lawful Provisional Electoral Council (CEP), which should be appointed by 9 sectors of Haitian society, according to Haiti’s Constitution. The problem? The terms of most members of Parliament have expired, so they won’t be able to establish a quorum and vote on this new CEP!

Part of the article is below. Click HERE for the full text.

Haiti – Elections : 24 hours to present candidates for the CEP !

HaitiLibre
January 13, 2015

Following the agreement concluded Sunday, 11 January between President Martelly and various political parties for the holding of elections, the General Secretariat of the Presidency, in a press release informs the population in general that the President of the Republic is working to the formation of the Provisional Electoral Council (CEP) which must organize the upcoming legislative, municipal and local elections in greater transparency.

 

Click HERE for the full text.

Haitians Protest Missing Clinton Foundation Earthquake Money

January 12, 2015 - 17:34

Ever since the 2010 earthquake in Haiti, everyone has had a crucial question in mind: Where did all the aid money go? The Clinton Foundation is one group that could answer this question, as they allegedly led the fundraising and recovery efforts. A group of Haitians, rightfully upset at the scant results of those efforts, gathered in from of the Foundation’s offices to demand answers.

Part of the article is below. Click HERE for the full text and video.

Clinton Foundation HQ Protested For ‘Missing Money’ In Haiti Recovery

Washington Free Beacon Staff, The Washington Free Beacon
January 12, 2015

The Clinton Foundation is facing protests due to its mismanagement of resources for the post-earthquake recovery efforts of Haiti.

Five years after a disastrous earthquake ripped through the small island nation, disturbing reports of a lack of progress in the country’s recovery have angered many Haitian Americans.

The country is still in ruin. Only 900 homes have been built in the last five years even though over $10 billion was donated from the international community to help rebuild Haiti.

 

Click HERE for the full text and video.

A Disappointing Ruling on Cholera in Haiti

January 12, 2015 - 14:28

While the UN is leading (unsuccessful) efforts to eradicate cholera from Haiti, it has still not accepted responsibility for causing the epidemic and continues to dodge accountability in court. On January 9, 2015, a judge ruled that the UN is absolutely immune from suit unless it expressly waives immunity. IJDH and BAI lawyers leading this case plan to appeal the decision. Two other lawsuits against the UN are pending.

Part of the article is below. Click HERE for the full text.

U.N. immune from accountability for cholera in Haiti, says U.S. court

Tom Murphy, Humanosphere
January 12, 2015

Victims of the cholera outbreak brought to Haiti by U.N. peacekeeping troops from Nepal cannot sue the body in U.S. courts, a district judge ruled. Judge J. Paul Oetken of U.S. District Court in Manhattan agreed with the U.N.’s own assessment that it was immune from such a lawsuit, at the end of last week.

Oetken cited the issue of immunity and concerns that allowing the case could open the door to more lawsuits against the U.N. as reasons for throwing out the case.

“Where such an express waiver is absent, the U.N. and (its operation in Haiti) are immune from suit,” he wrote in his decision.

Human rights activists and lawyers with the Boston-based Institute for Justice and Democracy in Haiti, IJDH, brought forward the lawsuit saying that the U.N. did not fulfill its obligation to allow victims of the cholera outbreak to seek justice. They plan to appeal.

“We are disappointed that the U.S. government and the Court accepted this position, but more disappointed that the U.N. would take it. It goes against everything the U.N. is supposed to stand for,” said Brian Concannon Jr., director of IJDH and counsel for the plaintiffs, in a statement.

 

Click HERE for the full text.

MINUSTAH Troops Dodge Accountability for Rapes

January 12, 2015 - 13:55

Though rape is a known problem among UN peacekeepers, they are often able to dodge accountability because the current process sends rapists to their home countries to be judged and prosecuted. The victims don’t get to testify abroad and often never know if their attackers faced justice. Many women are also left with children that they can’t afford to care for without the father’s help. Mario Joseph, of BAI, represents some of these women in their quest for justice.

Part of the article is below. Click HERE for the full text and video.

United Nations in Haiti: Justice Invisible for Victims of Rape

Lisa Armstrong, 100 Reporters
January 12, 2015

Audrey was not afraid of the men in the apartment, where she’d gone to sell her lotions, soaps and cosmetics, because they were United Nations peacekeepers.

“I know that they are militaries and policemen, and I know they are there to protect and serve,” sayas Audrey, 24.

Even when the seven men, who were Argentinian and Nigerian peacekeepers sent to Port-au-Prince as part of the United Nations Stabilization Mission in Haiti (MINUSTAH), began joking that all Haitian women were prostitutes, Audrey wasn’t afraid. Then, six of the men left the apartment, leaving Audrey alone with an Argentinian peacekeeper. He bolted, she says, and blocked the door. He ripped off her clothes, and, Audrey says, he raped her.

Audrey never reported the attack, out of shame and fear of the stigma attached to rape victims. She also knew that since Haitian men were rarely arrested or prosecuted for rape–rape was not even classified as a crime in Haiti until 2005–the police would hardly take action against someone as powerful as a UN agent.

 

Click HERE for the full text and video.

Le Parlement d’Haïti ne peut plus fonctionner

January 12, 2015 - 13:33

Trop de sénateurs ont manqué la séance prévue pour 11 janvier 2015. La séance aurait étendu les mandats des député et d’un tier du Sénat. Maintenant, le Parlement d’Haïti ne peut plus obtenir le quorum nécessaire pour adopter des lois. 

Partie de l’article est ci-dessous. Cliquez ICI pour le texte complet.

Une dernière séance avortée, la 49e législature part dans l’indifférence

Le Nouvelliste
12 janvier 2015

Il est 12 h 30 le lundi 12 janvier 2015. A la barrière d’entrée principale du batiment logeant le Palais législatif au bicentenaire, des agents de sécurité (les uns tout de bleu vêtus et d’autres en bleu et blanc) montent la garde. Dans la cour, d’autres brigades du Parlement font le va-et-vient. Aucun véhicule aux vitres teintées et plaque officiel n’y est remarqué. Aucun parlementaire. Les quelques rares employés sont en train de vider les lieux. << Il n’y a plus de Parlement depuis hier soir ! >>, se désole sac en main une employée du Sénat visiblement attristée. << A cette heure, on nous a déjà donné la feuille de présence pour prouver que nous avons été la aujourd’hui, se plaint un autre employé, inquiet de l’avenir de son jonb. Notre poste est trés menacé ! >>

 

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Where Did Earthquake Aid Go? Not to Haitians

January 12, 2015 - 13:12

This article discusses everyone’s top question since the 2010 earthquake in Haiti: Where did the aid money go? Not only in reconstruction efforts but also in the effort to eradicate cholera from Haiti, the money rarely goes to the Haitian government or Haitian contractors. This makes all these efforts a lot more expensive than they have to be. This, along with lack of confidence in the Haitian government makes donors reluctant to keep giving.

Click HERE for the original article.

5 Years After Haiti’s Earthquake, Where Did The $13.5 Billion Go?

Richard Knox, NPR
January 12, 2015

Haiti’s magnitude 7.0 earthquake of Jan. 10, 2010, left 220,000 people dead, 300,000 injured and rubble nearly everywhere.

The catastrophe also unleashed an unprecedented flood of humanitarian aid — $13.5 billion in donations and pledges, about three-quarters from donor nations and a quarter from private charity.

Joe Raedle/Getty Images

But today Haiti is a long, long way from realizing the bullish goal of “building back better.”

“There have certainly been improvements,” says Brian Concannon of the Institute for Justice and Democracy in Haiti, a nonprofit in Boston that fights for human rights on the island. “The rubble is off the streets. Haiti’s back more or less to normal. But there have not been the improvements there should have been, given the resources.”

Unfortunately, “normal” in Haiti includes perpetual political turmoil. As NPR’s Carrie Kahn reports, the earthquake’s anniversary, on Jan. 12, is also the day when the terms of all but 10 senators expire, leaving President Michel Martelly in total charge of the government. A political impasse threatens to put legislative and local elections on hold for 39 months if a deal can’t be reached by Monday evening.

That kind of political morass is one big reason — though by no means the only one — why the billions in relief and recovery aid haven’t been enough to rescue Haiti from the disasters that fate keeps flinging its way.

The outside world’s response to Haiti’s continuing cholera epidemic offers a revealing window on this disheartening dynamic.

Cholera was unknown in Haiti for the past century or more — until 10 months after the 2010 earthquake. Then it exploded along Haiti’s largest river, the Artibonite River, and spread quickly throughout the nation.

The source is clear to public health experts: Cholera was brought to Haiti by Nepalese soldiers quartered in a United Nations peacekeeping camp that spilled its waste into a tributary of the Artibonite.

Over the past four years, cholera has struck more than 720,000 Haitians and killed almost 9,000.

Joe Raedle/Getty Images

The U.N. has, so far, refused to acknowledge responsibility for the cholera catastrophe, but two years ago U.N. Secretary-General Ban Ki-moon launched a plan to eradicate the disease. The U.N. says the 10-year effort will cost $2.2 billion.

That’s less than the $2.5 billion the U.N. has spent on its Haitian peacekeeping mission since the outbreak of cholera. But over the past two years, the U.N. has persuaded member nations to pledge less than a fifth of the amount needed to eradicate cholera, a report from the U.N. Special Envoy to Haiti said this month.

At current donation levels, it will take 40 years to eliminate the cholera in Haiti, says the U.N.’s own coordinator for the response in Haiti, Pedro Medrano.

Why?

Lack of confidence in the Haitian government is one reason. The original plan was to set up a trust fund that would be controlled by the Haitian ministries of health and environment.s

Joe Raedle/Getty

But that’s not the way foreign aid to Haiti works. With few exceptions, donor nations and non-governmental organizations insist on keeping control of their projects, which are set according to their own priorities.

Jake Johnston of the Washington-based Center for Economic Policy and Research cites post-earthquake aid from the USAID, as an example.

“USAID has spent about $1.5 billion since the earthquake,” Johnston told Goats & Soda. “Less than a penny of every dollar goes directly to a Haitian organization.”

A growing reliance on U.S. and other international contractors helps explain why the payoff of foreign aid in Haiti often seems so low. For instance, it cost more than $33,000 to build a new housing unit in one post-earthquake program, a report from the Government Accounting Office said last year. That’s five times more than one nonprofit, called Mission of Hope, spends per house, using local contractors.

“International companies had to fly in, rent hotels and cars, and spend USAID allowances for food and cost-of-living expenses,” Johnston wrote in the Boston Review last year. So-called danger pay and hardship pay inflated salaries by more than 50 percent.

Interestingly, the only part of the Haitian government that receives direct funding from the U.S. government, the health ministry, has racked up impressive post-earthquake gains in childhood vaccination rates and access to life-saving HIV treatment.

So far, however, the idea of setting up a trust fund to allow the Haitian government to eradicate cholera, by providing clean water and sanitation has been a deal-killer among international donors.

A 2013 donor conference on cholera eradication was scuttled because of resistance to the idea. Even after the trust fund was abandoned, a donor conference last Octoberfailed miserably to raise needed pledges.

So as Haiti approaches the fifth anniversary of its cholera epidemic later this year, the main hope for eradication rests on political and legal pressure on the U.N. to come up with the money.

In December, 77 U.S. congressmen sent a letter to Ban Ki-moon demanding that the U.N. “create a fair process to adjudicate the claims made by cholera victims that allows for remediation of the affected communities.”

Meanwhile, Haitian plaintiffs and their advocates suffered a setback on Friday in their legal attempt to hold the U.N. accountable for the cholera epidemic. U.S. District Court Judge J. Paul Oetken rejected a class-action lawsuit that seeks to compel the U.N. to compensate victims and fund cholera eradication.

The U.N. and its agents are “absolutely immune from suit in this Court,” Oetken ruled.

“The Court’s decision implies that the U.N. can operate with impunity,” said lawyer Beatrice Lindstrom of the Institute for Justice and Democracy in Haiti, which represents the plaintiffs. “We don’t think that is the law, and we don’t think the Court of Appeals will find that either,” .

Concannon, executive director of the Institute, says the plaintiffs are prepared to take the case to the U.S. Supreme Court, a process that he estimates could take two years.

“If we do get a final order that the U.N.’s immunity doesn’t apply, we would expect the U.N. to put in clean water and sanitation and compensate the victims,” Concannon says.

That’s the optimistic view.

 

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Sexual Exploitation Runs Rampant in MINUSTAH

January 12, 2015 - 13:10

MINUSTAH is one of only 4 UN missions worldwide where sexual exploitation rates are increasing. The numbers are staggering, and this is despite known under-reporting because of the power these peacekeepers hold, and because reporting leads to loss of crucial income for the victims. This problem is attributed to poverty, racism and political instability. It could be solved with better protection of whistleblowers, who are often better at detecting misconduct than any agency tasked to do so but don’t report it due to fear of retaliation.

Part of the piece is below. Click HERE for the full text.

United Nations in Haiti: When Protectors Turn Predators

Kathie Klarreich, 100 Reporters
January 12, 2015

A United Nations presence in Haiti has become as familiar as the country’s barren hillsides. Troops of some sort have been there almost continuously since 1993, including five peacekeeping missions. The most recent, the United Nations Stabilization Mission in Haiti, MINUSTAH, arrived in 2004 to provide a peaceful transition following months of armed conflict. Like its predecessors and most of the UN’s 16 peacekeeping missions worldwide, MINUSTAH, composed of troops from dozens of countries, is also charged with the protection of local citizens.

Violence continued to ravage Haiti’s capital for several years after MINUSTAH deployed but life was quieter in other parts of the country, earning Haiti the moniker “vacation location.” In the seaside town of Jacmel, 50 miles south of Port-au-Prince, the Sri Lankan MINUSTAH peacekeepers were so relaxed that they interspersed their routine security patrols with soccer games, ocean dips, and fresh fish fries.

And cheap sex. For less than $5, the Sri Lankan soldiers exploited the very population they were sent to safeguard.

 

Click HERE for the full text.

3 Big Problems in Haiti, 5 Years Post-Quake

January 12, 2015 - 10:35

This article covers the current political crisis in Haiti, what happened to the aid money donated to Haiti after the earthquake, and the cholera epidemic brought by UN peacekeepers. All three issues can be tied back to international intervention in Haiti. IJDH Executive Director Brian Concannon is cited in the article.

Part of the article is below. Click HERE for the full text with videos.

Five Years After Devastating Haiti Earthquake, Protesters Want President Martelly to Resign

Samuel Oakford, VICE News
January 12, 2015

Protests in Haiti against President Michel Martelly seen over the weekend continued on Monday, as the impoverished country marked five years since the 2010 earthquake that killed more than 300,000 people and upended the lives of millions of Haitians.

Demonstrators in the capital of Port-au-Prince, some of whom lit tires on fire and clashed with riot police, are demanding that Martelly step down before his term expires in 2016.

Martelly, who was elected a year after the earthquake struck, has not called elections in three years. Opposition lawmakers have at times blocked parliamentary efforts to address the electoral crisis, claiming that Martelly’s proposed solutions allow him to exert unconstitutional control over voting.

A third of Haiti’s 30 Senate seats remain vacant. The terms of another third of the Senate and those of the entire House of Deputies are set to expire on Monday, possibly leaving Martelly to rule the country by decree. The president has taken to appointing local officials in the absence of countrywide polls, many of whom would otherwise be elected.

Despite a tentative agreement with opposition leaders that Martelly reached late on Sunday calling for elections later this year, it remains unclear if a constitutional crisis has been averted.

 

Click HERE for the full text with videos.

Haitian Government Vision for Development Excludes Haitians

January 12, 2015 - 10:16

While land disputes have long been a problem in Haiti, particularly when they hampered rebuilding efforts, they have become increasingly worse on the island of Ile-a-Vache. In hopes of drawing tourists to the country and improving its poor economy, the Haitian government has been destroying Ile-a-Vache residents’ livelihoods to make room for tourist attractions and an airport. The residents are angry and demand their rights but the current political crisis means that President Martelly may become the sole decider of those rights.

Part of the article is below. Click HERE for the full text.

Five years after the earthquake, Haiti remains on unsteady ground

Jacob Kushner, Global Post
January 12, 2015

ILE-A-VACHE, Haiti — One day in October, 81-year-old Mascary Mesura was working in his garden of corn and coconut trees when the mayor of this small island off the southern coast of Haiti approached and told him to get out of the way.

“He said ‘the tractors are coming. We are going to build a lake to grow fish,’” says Mesura. “I asked for an explanation. I told him all the things we grow there. I was standing in my garden and he told the tractor to advance.”

The mayor, Fritz César, stood and watched while police handcuffed Mesura and his wife, forcing them to watch as their livelihood was uprooted, all 28 of their coconut trees toppled to make room for a fish pond to feed tourists.

The demolition was part of the Haitian government’s $260 million plan to develop Ile-a-Vache into a Caribbean tourism destination akin to the Bahamas or St. Martin.

 

Click HERE for the full text.

Absolute UN Immunity Violates Cholera Victims’ Rights

January 12, 2015 - 02:38

This article argues that the January 9th ruling in favor of UN immunity in the cholera case violates Haitians’ human rights. Since the UN has provided no alternate mechanism for the victims to seek justice, they had no choice but to take their case to court. If the UN enjoys absolute immunity, the victims have no way to seek justice for the countless deaths and cases of illness caused by the epidemic the UN brought to Haiti.

Part of the article is below. Click HERE for the full text.

Five years after Haiti quake, a new setback for cholera victims

Rosa Freedman, The Conversation
January 12, 2015

January 12 2015 marks 5 years since Haiti was hit by a devastating earthquake hit. Countless victims were killed, homes destroyed, and vital infrastructure reduced to debris.

Already one of the world’s poorest and most fragile countries, Haiti was particularly vulnerable to the effects of a major natural disaster. But perhaps the most deadly and destructive event that year was the introduction of cholera into Haiti for the first time in over a century.

Within the first 30 days after the earthquake, Haitian authorities recorded almost 2,000 deaths from cholera, and things rapidly spiralled out of control. To date, more than 720,000 people in Haiti have contracted cholera, and at least 8,700 people have died of it since 2010.

Attempts to clean up the disease have fared poorly, and cholera rates have spiked again in recent months, with 100 deaths recorded in November 2014.

And of course, it was not the earthquake that brought cholera into Haiti – it was the United Nations.

 

Click HERE for the full text.

Judge Rules UN Immune from Cholera Lawsuit

January 10, 2015 - 13:03

On January 9, 2015, a Manhattan Judge ruled that the UN is absolutely immune from lawsuits unless it expressly waives that immunity. While this is disappointing for Haitian cholera victims, their lawyers, and their advocates, the fight for justice isn’t over. IJDH and BAI will take the case to the appeals court next.

Click HERE for the original.

U.S. Judge Rules Haitians Cannot Sue U.N. for Cholera Epidemic

David Ingram and Louis Charbonnneau, The New York Times
January 10, 2015

NEW YORK — Thousands of Haitians killed or sickened by a cholera epidemic that they blame on U.N. peacekeepers cannot sue the United Nations in a U.S. court because the U.N. has legal immunity that only it can waive, a judge has ruled.

In a decision late on Friday, Judge J. Paul Oetken of U.S. District Court in Manhattan dismissed a lawsuit filed by human rights lawyers seeking compensation for the cholera victims.

A lawyer for the plaintiffs said they would appeal the ruling.

The outbreak has killed more than 8,600 people and infected over 707,000 since October 2010, according to the U.N.

Oetken wrote that the U.N.’s ability to block lawsuits was established by a 1946 international convention and was made clear again in a 2010 ruling from a U.S. appeals court in a case of alleged sex discrimination.

“The U.N. is immune from suit unless it expressly waives its immunity,” he wrote.

The U.N. did not expressly waive immunity for the Haitians and has not accepted responsibility for the outbreak, although it has tried to raise money for a cholera elimination campaign.

The plaintiffs plan to appeal Oetken’s ruling and show that their case is different from the 2010 case, said one of their lawyers, Brian Concannon, executive director of the Boston-based Institute for Justice & Democracy in Haiti.

“We are disappointed in the ruling but not discouraged, and we have always assumed that this case was going to go to the appeals court,” Concannon said in a phone interview on Saturday.

Concannon said the U.N. was not entitled to immunity under the 1946 convention because it has failed to establish any kind of settlement process for the cholera victims, as required by the same convention.

U.N. spokeswoman Vannina Maestracci said the organization welcomed Friday’s decision and was in the process of reviewing it further. “Our focus in Haiti remains on our commitment to eliminating cholera in Haiti,” she said.

U.N. peacekeepers from Nepal likely caused the cholera outbreak when they were stationed near a major river and discharged raw sewage, according to the plaintiffs and a 2011 report from the U.S. Centers for Disease Control and Prevention.

Cholera, which had not been documented in Haiti in almost 100 years prior to the outbreak, is an infection that causes severe diarrhea that can lead to dehydration and death, and is caused by poor sanitation.

The case is Delama Georges, et al, v. United Nations, et al, U.S. District Court for the Southern District of New York, No. 1:13-cv-7146.

(Reporting by David Ingram and Louis Charbonneau; Editing by Andrew Hay)

Click HERE for the original.

US Federal Judge Dismisses Cholera Victims’ Claims

January 10, 2015 - 09:39

January 9, 2015, a US judge dismissed the case of Haiti’s cholera victims against the United Nations. The judge ruled that the UN enjoys absolute immunity unless expressly waived. The UN has, instead, pleged to raise $2.27 billion but is having a very hard time finding donors.

Part of the article is below. Click HERE for the full text.

Haiti Cholera Suit Struck Down

teleSUR
January 10, 2015

A U.S. court has ruled the United Nations is immune from a class action lawsuit stemming from Haiti’s cholera outbreak.

On Friday, a U.S. federal judge dismissed a class action lawsuit against the United Nations launched by Haitians who say U.N. forces should be held accountable for their nation’s cholera epidemic.

Judge J. Paul Oetken said the U.N. enjoys immunity against such cases.

According to Oetken, the U.N. would have to waive its immunity for the case to go ahead. Beatrice Lindstrom, a lawyer with the Institute for Justice and Democracy in Haiti and supporter of the class action, has slammed the court’s decision.

“The court’s decision implies that the U.N. can operate with impunity,” she stated, according to the New York Times.

 

Click HERE for the full text.

Judge Says UN Has Absolute Immunity

January 10, 2015 - 01:26

US district Judge J. Paul Oetken has ruled that the United Nations has absolute immunity in the case for cholera victims in Haiti. In the October 2014 hearing before Judge Oetken, US attorney’s argued for immunity on the UN’s behalf. Despite the court’s decision, attorneys from BAI and IJDH will continue to fight for justice for Haiti’s cholera victims.

Click HERE for the original.

UN ‘immune’ from Haiti cholera lawsuit US judge throws out a case filed by human rights groups that blamed the UN for a deadly cholera outbreak in Haiti.

Al Jazeera
January 10, 2015

The United Nations is immune from a lawsuit seeking compensation for victims of a deadly cholera outbreak in Haiti, a US judge said in dismissing a case that government lawyers said could open international body to an onslaught of litigation.

US district Judge J. Paul Oetken noted on Friday that the UN’s charter provides broad legal immunity and that the international body has not waived it.

The suit refers to an outbreak that has killed more than 8,000 people and sickened more than 700,000 since human waste was dumped into Haiti’s principal river in October 2010.

Scientific studies have shown that cholera was likely introduced in Haiti by UN peacekeepers from Nepal, where the disease is endemic.

The lawsuit, filed by human rights groups and others, argued the UN had not screened the peacekeepers for the disease and was responsible for poor sanitation and waste disposal practices that spread it.

Seeking unspecified damages, the suit said the UN sacrificed its immunity by not giving victims any avenue for compensation.

“Where such an express waiver is absent, the UN and [its operation in Haiti] are immune from suit,” Oetken wrote.

Lawyer Beatrice Lindstrom said the rights groups plan to appeal the ruling. Two other similar federal suits also are ongoing.

“The court’s decision implies that the UN can operate with impunity,” Lindstrom said in a statement. “We don’t think that is the law.”

‘UN needed immunity’

US federal prosecutors argued against the suit at a hearing last fall. They said that the UN needed immunity to complete its global mission, and letting the case continue would subject the international body to many more lawsuits from around the world.

A spokesman for the US attorney’s office in Manhattan declined to comment on the court’s decision. The US government was not named in the suit, but federal prosecutors said they got involved because the US is the UN’s host nation.

The UN has repeatedly declined to comment on the lawsuit but has said it is working with Haiti’s government to eradicate cholera.

In December 2012, Secretary-General Ban Ki-moon announced a $2.27bn initiative to help eradicate cholera in the impoverished Caribbean nation.

In November, the head of Doctors Without Borders’ Haiti mission said the country’s health system still lacks the capacity to treat cholera patients adequately.

 

Click HERE for the original.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

January 9, 2015 - 15:13

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
————————————————————-
DELAMA GEORGES, et al.,
Plaintiffs,
-v-
UNITED NATIONS, et al.,
Defendants.
————————————————————
X

X
13-CV-7146 (JPO)
OPINION AND ORDER
J. PAUL OETKEN, District Judge:
Plaintiffs bring this class action diversity suit alleging various tort and contract claims against defendants the United Nations (“UN”), the United Nations Stabilization Mission in Haiti (“MINUSTAH”), United Nations Secretary-General Ban Ki-moon, and former Under-Secretary-General for MINUSTAH, Edmond Mulet. (Dkt. No. 1 (“Compl.”).) Specifically, Plaintiffs allege that Defendants are responsible for an epidemic of cholera that broke out in Haiti in 2010, killing over 8,000 Haitians and making over 600,000 ill. (Id. ¶¶ 1-2.)
Before the Court are two issues. First, Plaintiffs have been unable to serve the UN in person, and they request affirmation by the Court that service has been made, or, in the alternative, an extension of time for service of process by alternative means. Second is the question whether, under international treaties to which the United States is a party, Defendants are immune from Plaintiffs’ suit. For the reasons that follow, the Court concludes that all Defendants are immune. Accordingly, the case is dismissed for lack of subject matter jurisdiction, and Plaintiffs’ motion is denied as moot.
Case 1:13-cv-07146-JPO Document 62 Filed 01/09/15 Page 1 of 8
I. Background1
Plaintiffs Delama Georges, Alius Joseph, Lisette Paul, Felicia Paule, and Jean Rony Silfort are citizens of the United States or Haiti who claim that they or their relatives were killed or made ill by the cholera epidemic that erupted in Haiti in 2010. (Compl. ¶¶ 14-18.) The UN is an international organization founded in 1945 with the goals of “maintain[ing] international peace and security” and “promot[ing] and encourage[ing] respect for human rights.” (Id. ¶ 19.) The UN’s principal place of business is in New York. (Id.) MINUSTAH is a subsidiary body of the UN established in 2004 and based in Haiti. (Id. ¶¶ 20, 48.) Ban Ki-moon is and was, during the relevant time period, the Secretary-General of the UN. (Id. ¶ 21.) Mulet was the Special Representative of the Secretary-General and Head of MINUSTAH from March 31, 2010, to May 17, 2011 (id. ¶ 22), and is now the Assistant Secretary-General for UN Peacekeeping Operations (Dkt. No. 21).
Plaintiffs allege that in October 2010, Defendants deployed over 1,000 UN personnel from Nepal to Haiti without screening them for cholera, a disease that is endemic to Nepal and with which some of the personnel were infected. (Compl. ¶¶ 5, 59.) Plaintiffs further allege that Defendants stationed these personnel on a base at the banks of the Meille Tributary, which flows into Haiti’s primary source of drinking water, the Artibonite River. It was at this base, Plaintiffs contend, that these recently transferred personnel discharged raw untreated sewage into the tributary, causing an outbreak of cholera in Haiti. (Id. ¶¶ 6-9.)
Plaintiffs allege that Defendants have failed to establish any claims commission or other dispute resolution mechanism to resolve the claims of those who have been injured or who have lost family members to the cholera outbreak. This refusal, Plaintiffs contend, is in direct
1 The following facts are taken from the Complaint. They are assumed true for the purposes of the motion.
2
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contravention of Defendants’ responsibility under the Convention on the Privileges and Immunities of the United Nations (“CPIUN”) and the Agreement Between the United Nations and the Government of Haiti Concerning the Status of the United Nations Operation in Haiti (“SOFA”) to offer appropriate modes of settlement for third-party private-law claims. (Id. ¶¶ 10-12.)
Because Plaintiffs could not personally serve the Complaint, they moved this Court to affirm that service had been made or to permit service by alternative means. (Dkt. No. 4.) The UN did not respond to Plaintiffs’ motion; instead, the United States filed a “Statement of Interest” contending that Defendants are immune from Plaintiffs’ suit and requesting that the Court dismiss the Complaint for lack of subject matter jurisdiction. (Dkt. No. 21 (“Statement of Interest”).)
II. Discussion
A. Legal Standard
A case must be dismissed pursuant to Federal Rule of Civil Procedure 12(h)(3) if the court “determines at any time that it lacks subject-matter jurisdiction.” See also Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 250 (2d Cir. 2008) (“If a court perceives at any stage of the proceedings that it lacks subject matter jurisdiction, then it must take proper notice of the defect by dismissing the action.”). A defendant’s immunity from suit divests the Court of subject matter jurisdiction. See, e.g., Brzak v. United Nations, 597 F.3d 107, 111-12 (2d Cir. 2010) (affirming dismissal of suit against the UN for lack of subject matter jurisdiction on ground of immunity under the CPIUN); De Luca v. United Nations Org., 841 F. Supp. 531, 533 (S.D.N.Y. 1994) (dismissing claim against the UN for lack of subject matter jurisdiction on the ground of immunity from suit). The court, in determining whether it has subject matter jurisdiction, may refer to evidence outside the pleadings. Makarova v. United States, 201 F.3d
3
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110, 113 (2d Cir. 2000) (citing Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986)). In doing so, however, the court must accept as true all factual allegations in the complaint and “[c]onstru[e] all ambiguities and draw[] all inferences” in favor of the plaintiff. Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (quoting Makarova, 201 F.3d at 113) (first alteration in original). The party asserting subject matter jurisdiction bears the burden of proving by a preponderance of the evidence that it exists. Makarova, 201 F.3d at 113 (citing Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996)).
B. Immunity from Suit of the United Nations and MINUSTAH
The Charter of the United Nations (“UN Charter”) states that the UN “shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes.” U.N. Charter art. 105, para. 1. The CPIUN, which was adopted less than a year after the UN Charter, defines the UN’s privileges and immunities in more detail. See Convention on Privileges and Immunities of the United Nations, Feb. 13, 1946, entered into force with respect to the United States Apr. 29, 1970, 21 U.S.T. 1418. The CPIUN provides that “[t]he United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity.” CPIUN art. II, § 2. Because the CPIUN is self-executing, this Court must enforce it despite the lack of implementing legislation from Congress. Brzak, 597 F.3d at 111-12.
The Second Circuit’s decision in Brzak v. United Nations requires that Plaintiffs’ suit against the UN be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(h)(3). In Brzak, the Second Circuit unequivocally held that “[a]s the CPIUN makes clear, the United Nations enjoys absolute immunity from suit unless ‘it has expressly waived its immunity.’” 597 F.3d at 112 (quoting CPIUN art. II, § 2). Here, no party contends that the UN has expressly 4
Case 1:13-cv-07146-JPO Document 62 Filed 01/09/15 Page 4 of 8
waived its immunity. (Statement of Interest at 6 (“In this case, there has been no express waiver. To the contrary, the UN has repeatedly asserted its immunity.”).); (Dkt. No. 43, at 1 (“Waiver is not at issue here.”).) Accordingly, under the clear holding of Brzak, the UN is immune from Plaintiffs’ suit. In addition, MINUSTAH, as a subsidiary body of the UN, is also immune from suit. See Sadikoglu v. United Nations Dev. Programme, No. 11 Civ. 0294 (PKC), 2011 WL 4953994, at *3 (S.D.N.Y. Oct. 14, 2011).
Plaintiffs argue that the UN has materially breached the CPIUN such that it is not entitled to the “benefit of the bargain.” Specifically, Plaintiffs insist that the UN has breached section 29(a), which provides that “[t]he United Nations shall make provisions for appropriate modes of settlement of . . . disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party.” CPIUN art. VIII, § 29(a). Because the UN has failed to provide any mode of settlement for the claims at issue here, Plaintiffs argue, it is not entitled to benefit from the CPIUN’s grant of absolute immunity.
This argument is foreclosed by Brzak. In Brzak, the plaintiffs argued that the UN’s dispute resolution mechanism was inadequate to resolve their case, and that this inadequacy stripped the UN of its immunity. The Second Circuit rejected this argument on the ground that it ignores the “express waiver” requirement of the CPIUN. Brzak, 597 F.3d at 112. Here too, construing the UN’s failure to provide “appropriate modes of settlement” for Plaintiffs’ claims as subjecting the UN to Plaintiffs’ suit would read the strict express waiver requirement out of the CPIUN.
Moreover, nothing in the text of the CPIUN suggests that the absolute immunity of section 2 is conditioned on the UN’s providing the alternative modes of settlement contemplated by section 29. See Tachiona v. United States, 386 F.3d 205, 216 (2d Cir. 2004) (“When interpreting a treaty, we begin with the text of the treaty and the context in which the written
5
Case 1:13-cv-07146-JPO Document 62 Filed 01/09/15 Page 5 of 8
words are used.” (internal quotation marks omitted) (interpreting the CPIUN)). As the Second Circuit held in Brzak, the language of section 2 of the CPIUN is clear, absolute, and does not refer to section 29: the UN is immune from suit unless it expressly waives its immunity. Brzak, 597 F.3d at 112; see also Sadikoglu, 2011 WL 4953994, at *5 (“Nor does the contested status of the parties’ efforts to arbitrate or settle the current dispute strip [the United Nations Development Programme] of its immunity. The CPIUN merely requires the UN to ‘make provisions for appropriate modes of settlement of disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party.’ However, nothing in this section or any other portion of the CPIUN refers to or limits the UN’s absolute grant of immunity as defined in article II—expressly or otherwise.” (citation omitted)). Further, the CPIUN’s drafting history indicates at most the commitment that, pursuant to section 29, the UN will provide a dispute resolution mechanism for private claims; it does not, as Plaintiffs argue, indicate the intent that such a mechanism is required in order for the UN to claim immunity in any particular case. See Tachiona, 386 F.3d at 216 (“Treaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.” (brackets and internal quotation marks omitted)).
It is true that section 29 uses mandatory language, providing that the UN “shall make provisions for appropriate modes of settlement of . . . disputes . . . .” This language may suggest that section 29 is more than merely aspirational—that it is obligatory and perhaps enforceable. But even if that is so, the use of the word “shall” in section 29 cannot fairly be read to override the clear and specific grant of “immunity from every form of legal process”—absent an express waiver—in section 2, as construed by the Second Circuit.
6
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Finally, “in construing treaty language, ‘[r]espect is ordinarily due the reasonable views of the Executive Branch.’” Id. (quoting El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 168 (1999)) (alteration in original); see also Swarna v. Al-Awadi, 622 F.3d 123, 133 (2d Cir. 2010) (“[W]hile the interpretation of a treaty is a question of law for the courts, given the nature of the document and the unique relationships it implicates, the ‘Executive Branch’s interpretation of a treaty is entitled to great weight.’” (quoting Abbott v. Abbott, 560 U.S. 1, 15 (2010))). For the reasons given above, the United States’ interpretation that the CPIUN’s grant of immunity is vitiated only by an express waiver of that immunity by the UN is reasonable. Here, where such an express waiver is absent, the UN and its subsidiary body MINUSTAH are immune from suit.
C. Immunity from Suit of Ban Ki-moon and Edmond Mulet
The UN Charter provides that “officials of the Organization shall . . . enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the organization.” U.N. Charter art. 105, para. 2. The CPIUN further provides that “the Secretary-General and all Assistant Secretaries-General shall be accorded . . . the privileges and immunities . . . accorded to diplomatic envoys, in accordance with international law.” CPIUN art. V, § 19. The Vienna Convention on Diplomatic Relations is the relevant international law here; that convention states that current diplomatic agents “enjoy immunity from [the] civil and administrative jurisdiction” of the United States, except in three situations, none of which is relevant here.2 See Vienna Convention on Diplomatic Relations, art. 31, Apr.
2 Those situations are: “(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission; (b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State; [and] (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.” Vienna Convention art. 31.
7
Case 1:13-cv-07146-JPO Document 62 Filed 01/09/15 Page 7 of 8
18, 1961, entered into force with respect to the United States Dec. 13, 1972, 23 U.S.T. 3227, (the “Vienna Convention”); Brzak, 597 F.3d at 113 (stating that, under the Vienna Convention, “current diplomatic envoys enjoy absolute immunity from civil and criminal process”). Thus, Ban Ki-moon and Edmond Mulet, both of whom currently hold diplomatic positions, are immune from Plaintiffs’ suit. Accordingly, Plaintiffs’ suit against them must be dismissed. See 22 U.S.C. § 254d (requiring a district court to dismiss “[a]ny action or proceeding against an individual who is entitled to immunity with respect to such action or proceeding under the Vienna Convention”).
III. Conclusion
For the foregoing reasons, the United Nations, MINUSTAH, Ban Ki-moon, and Edmond Mulet are absolutely immune from suit in this Court. Plaintiffs’ claims against these defendants are therefore DISMISSED under Rule 12(h)(3) for lack of subject matter jurisdiction. Plaintiffs’ motion for affirmation that service has been made, or, in the alternative, for service of process by alternative means is DENIED as moot.
The Clerk of Clerk is directed to close the motion at Docket Number 4 and to close the case.
SO ORDERED.
Dated: January 9, 2015 _________________________________
New York, New York J. PAUL OETKEN
United States District Judge
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Judge Deems UN Immune from Lawsuit for Haiti Cholera Disaster

January 9, 2015 - 14:45

FOR IMMEDIATE RELEASE

Contact:

Mario Joseph, Av., Bureau des Avocats Internationaux, (in Haiti), mario@ijdh.org, +509-3701-9878 (French, Creole, English)
Brian Concannon, Jr., Esq., Institute for Justice & Democracy in Haiti, brian@ijdh.org, +1-541-263-0029 (English, French, Creole)
Beatrice Lindstrom, Esq., Institute for Justice & Democracy in Haiti, beatrice@ijdh.org, +1-404-217-1302 (English, Creole, French)

Judge Deems UN Immune from Lawsuit for Haiti Cholera Disaster
Plaintiffs Question Broad Reading of Immunity, Vow to Appeal

(Port-au-Prince and Boston, January 9, 2015)—On the eve of the fifth anniversary of the devastating earthquake that hit Haiti in 2010, a U.S. judge dismissed a lawsuit against the United Nations (UN) for its catastrophic introduction of cholera to Haiti, deeming the UN absolutely immune from suit.

“For the 8,700 Haitians who have died and the 720,000 that have suffered from cholera, this decision implies that there is nowhere in the world they can turn to seek justice,” said Mario Joseph of the Bureau des Avocats Internationaux in Haiti, a human rights lawyer for cholera victims. “That is irreconcilable with their human rights and basic notions of justice.”

The class action lawsuit, Georges et al. v. United Nations et al., was filed in the Southern District of New York in October 2013 after the UN rebuffed extensive efforts to seek justice through the UN’s settlement process. The UN rejected claims filed by 5,000 victims of cholera in November 2011 as “not receivable” without providing legal justification. That position has been widely criticized as unjustifiable in view of the UN’s legal and moral obligations.

“The Court’s decision implies that the UN can operate with impunity.  We don’t think that is the law and we don’t think the Court of Appeals will find that either,” said Beatrice Lindstrom, an attorney with the Institute for Justice & Democracy in Haiti (IJDH) who represents the plaintiffs.

The UN never responded to the lawsuit, but instead urged the U.S. Government to seek dismissal on its behalf.  The U.S./UN position included a radical, unprecedented interpretation of international agreements granting the UN immunity that ignored the UN’s promise in those agreements to settle claims filed against it outside of court.  Plaintiffs argued that where the UN refuses to comply with its own obligations under those agreements, it cannot enjoy immunity.  The plaintiffs’ position is supported by European courts and by many legal experts, including several with UN connections, who filed three amicus curiae briefs with the court and argued in support of plaintiffs at a hearing in October.

Despite calls from around the world — including from the UN’s own human rights chief — that the UN must provide remedies to the victims of cholera, the organization has persistently refused.

“The UN cannot deny that it is responsible for Haiti’s cholera, or that it has an obligation to its victims. The UN’s only defense is that no one can make it respect the law. We are disappointed that the U.S. government and the Court accepted this position, but more disappointed that the UN would take it.  It goes against everything the UN is supposed to stand for,” said Brian Concannon, Jr., Esq., Director of IJDH and counsel for the plaintiffs.

Cholera cases have surged in recent months, and a plan to eliminate cholera from Haiti remains vastly underfunded at only 12%. Without compensation for the death of breadwinners, families have had to pull their children out of school, as is the case for Lisette Paul, one of the plaintiffs in the case.

The UN continues to come under fire for its unyielding position on the cholera crisis.  In a press statement released on December 19, 2014, U.S. Congressman John Conyers (D-MI) called the cholera crisis “a stain on the world’s conscience.” Conyers led a letter signed by 77 members of Congress to UN Secretary-General Ban Ki-moon, calling on him to immediately ensure that cholera victims have access to a settlement mechanism for resolution of their legal claims.

“Today’s decision is one small part of a long struggle for justice. We won’t stop fighting until the UN cholera stops killing Haitians,” Joseph added.

Two other lawsuits filed by other groups are still pending in U.S. courts.

For more information, including case documents and background materials, see www.IJDH.org.