- News & Reports
- Take action
- Donate to CHAN Site
Institute for Justice and Democracy in Haiti
Updated: 2 hours 32 sec ago
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.
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.
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.
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
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.
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.
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
DELAMA GEORGES, et al.,
UNITED NATIONS, et al.,
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
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.
Case 1:13-cv-07146-JPO Document 62 Filed 01/09/15 Page 2 of 8
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”).)
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
Case 1:13-cv-07146-JPO Document 62 Filed 01/09/15 Page 3 of 8
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
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.
Case 1:13-cv-07146-JPO Document 62 Filed 01/09/15 Page 6 of 8
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.
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”).
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.
Dated: January 9, 2015 _________________________________
New York, New York J. PAUL OETKEN
United States District Judge
Case 1:13-cv-07146-JPO Document 62 Filed 01/09/15 Page 8 of 8
FOR IMMEDIATE RELEASE
Mario Joseph, Av., Bureau des Avocats Internationaux, (in Haiti), firstname.lastname@example.org, +509-3701-9878 (French, Creole, English)
Brian Concannon, Jr., Esq., Institute for Justice & Democracy in Haiti, email@example.com, +1-541-263-0029 (English, French, Creole)
Beatrice Lindstrom, Esq., Institute for Justice & Democracy in Haiti, firstname.lastname@example.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.
FOR IMMEDIATE RELEASE
Mario Joseph, Av., Managing Attorney, Bureau des Avocats Internationaux (BAI), Mario@ijdh.org, +509 2943 2106/07 (in Port-au-Prince, speaks French and Creole)
Brian Concannon, Jr., Esq., Executive Director, Institute for Justice & Democracy in Haiti (IJDH), email@example.com, +1 541 263 0029 (in Boston, speaks English, French and Creole)
Legal Experts Issue Briefing Paper on Haiti’s Current Political Crisis
Say Compliance with Law Critical to Ensure Fair and Inclusive Elections
(Boston, MA, January 9, 2015) The Institute for Justice & Democracy in Haiti (IJDH) and the Bureau des Avocats Internationaux (BAI) issued a briefing paper today entitled Ensuring Fair Elections in Haiti: Legal Analysis of Recent Developments, which provides in-depth legal analysis of Haiti’s rapidly developing electoral crisis. Elections are several years overdue in Haiti, and the crisis is coming to a head as one-third of the Senate and all 99 seats of the House of Deputies are scheduled to term out on January 12, 2015. Another one-third of the Senate already termed out in 2012.
Mario Joseph, Managing Attorney at BAI, warns that “Haiti’s electoral crisis undermines the government’s democratic functioning and cripples governance.”
As the briefing paper explains, several political stalemates have prevented elections from being held since Haitian President Michel Martelly took office in 2011, many of which have revolved around the unconstitutional composition of the electoral councils tasked with organizing elections. Amidst months of nation-wide demonstrations and public pressure following another stalling of elections in October 2014, President Martelly convened a Consultative Commission and announced a negotiated agreement in December 2014 to conditionally extend parliamentary terms. The Commission’s recommendations include establishing a new constitutional Provisional Electoral Council (CEP), releasing political prisoners and amending the 2013 Electoral Law.
The briefing paper focuses on the constitutional and legal issues at stake as the country prepares for the upcoming elections. The December negotiated agreement and the government’s implementation of some of the recommendations made by the Commission are a positive step towards addressing the political impasse. But an election date still has not been announced, there is little announced progress towards a Constitutional CEP and the President has asked Parliament to approve an unconstitutional electoral law.
Joseph warns that “fair elections will require an impartial, independent and constitutional CEP to facilitate the free participation of all political parties, and propose an electoral Law.” Joseph adds, “President Martelly’s repeated appointments of unlawful electoral councils to maximize executive influence raise concern over his undue influence in the elections.”
The paper also discusses the role of the international community. According to Brian Concannon, Executive Director of IJDH, “Progress in earthquake reconstruction, stabilizing Haiti’s democracy and ending poverty will only be possible if the upcoming elections in Haiti are prompt, fair and inclusive. The international community must not repeat the errors of the past. U.S. support for the 2010/2011 flawed elections set Haiti on its way to its current political crisis. The international community can support rule of law and democracy by conditioning election funding on a lawful and independent electoral council that can run fair and inclusive elections.”
The briefing paper is available at: http://www.ijdh.org/2015/01/topics/politics-democracy/ensuring-fair-elections-in-haiti-legal-analysis-of-recent-developments/
Click HERE for the pdf version.
Ot Charlot Lucien e envite Dr. Barbara Roussel pale de jou trajik sa a.Remembrance Haiti’s Earthquake 2010
8 janvye 2015
January 9, 2015
Click HERE for the pdf version.
ENSURING FAIR ELECTIONS IN HAITI: LEGAL ANALYSIS OF RECENT DEVELOPMENTS
Haiti faces an electoral crisis that undermines the government’s democratic functioning and cripples governance. Legislative elections that were constitutionally required in 2011 and 2013 have been stalled, and as a result, the terms of most members of Parliament were set to expire on January 12, 2015, with no one to fill their seats.
On December 29, 2014, after months of nation-wide protests and international pressure, Haitian President Michel Martelly, representatives of both houses of Parliament and the Superior Council of Judicial Power agreed to extend the mandate of parliamentarians on the condition that amendments to the 2013 Electoral Law are passed by January 12, 2015. As of the publishing of this paper, a new electoral council had not been appointed to prepare the electoral law amendments, which must also be ratified by Parliament, casting doubt on whether parliamentary terms will be extended or whether President Martelly will be ruling without any parliamentary oversight.
This briefing paper explains the electoral crisis and analyzes the constitutional and legal issues at stake as the country prepares for the overdue elections. The current electoral crisis includes:
- One third of the Senate already termed out in 2012. With ten vacant seats, the Senate does not have a quorum to conduct business unless fifteen of the remaining twenty members participate. So six Senators can prevent a vote by refusing to participate.
- The terms of some 130 local mayors also expired in 2012. Those seats have been filled by “municipal agents,” who were unconstitutionally appointed by President Martelly.
- The terms of all 99 seats of the House of Deputies and one third of the Senate (10 out of 30 seats) are set to expire on January 12, 2015; under the December 29 agreement, they would be extended until April 24 and September 9, 2015, respectively.
- Presidential elections must be held by the end of 2015.
Although elections must be held as soon as possible to usher in new, democratically-elected legislators and mayors, the elections will only remedy Haiti’s political crisis if they are run fairly by a lawfully-constructed electoral council, the body responsible for overseeing elections. The current Provisional Electoral Council (CEP) was not constituted in accordance with the Constitution. The Consultative Commission, recently convoked by President Martelly amidst national and international pressure, has made a number of constructive recommendations to move past political and legal roadblocks and hold elections in 2015. Among the recommendations are replacing Prime Minister Laurent Lamothe, creating a new CEP and liberating political prisoners. These recommendations and the government’s quick implementation of some of the recommendations are a positive step towards ending the political impasse and holding elections in 2015.
But the political crisis was not created overnight, nor can it be resolved overnight. Fair elections will require an impartial, independent and constitutional CEP to facilitate the free participation of all political parties. This government’s repeated election-related initiatives that failed to comply with the Constitution and maximized executive branch influence over the elections provide substantial justification for informed vigilance by all who seek a sustainable resolution of Haiti’s political crisis.
BACKGROUND: ELECTIONS DELAYED, RIGHTS DENIED
Haiti’s elections have been delayed for many reasons, but the principal roadblock has been the lack of a constitutionally-mandated electoral council to oversee the election process. The failure to hold timely legislative elections, and the ensuing difficulties in reaching a quorum in the Senate, has effectively allowed President Martelly to rule without legislative oversight for most of his term. For example, in November 2013, the Senate held a vote of no confidence on three key ministers. The Senators present overwhelmingly voted no confidence in the ministers, but fell just short of the 16 votes necessary to force their resignation due to the vacancy of one third of the Senate. As a result, the vote had no legal effect and the ministers were able to stay in office despite the lack of support from the legislature.
Permanent vs. Provisional Electoral Council
Haiti’s Constitution provides for two types of electoral councils: provisional and permanent. The electoral council plays a crucial role in elections. In addition to organizing and overseeing elections, including determining the results, the council drafts the electoral law that dictates the terms of elections, which is submitted to Parliament for final approval. The Provisional Electoral Council was an interim solution placed in Haitian’s 1987 Constitution to oversee the first election of a President, local officials and a complete Parliament. After the first election, the Provisional Electoral Council would no longer operate and a Permanent Electoral Council would then be established for future elections according to Article 192 of the Constitution. In practice, a Permanent Electoral Council has never been properly constituted; a Provisional Electoral Council has run every Haitian election since 1990.
The Provisional Electoral Council is to be comprised of nine members pursuant to Article 289 of Haiti’s Constitution, chosen from nine different sectors of society (Executive Branch, Catholic Bishop’s Conference, Advisory Council, Supreme Court, human rights organizations, the University Council, journalists associations, Protestant religions, and the National Council of Cooperatives). The Constitution recognizes that in a situation like the current one, where the three branches of government are not fully operational, public confidence and fairness will be enhanced if the Council is chosen from a broad spectrum of public actors, rather than by government branches with limited legitimacy and independence.
Amendments to Haiti’s Constitution, finalized in 2012, simplified the procedures for choosing the Permanent Electoral Council. The permanent council is to be comprised of nine members as well, but each branch of government – Executive, Judicial and Legislative – appoints three members. The term of each member is nine years.
Controversial Electoral Council Appointments
Haitian parliamentarians, political opposition and human rights groups claim that President Martelly has stalled elections since he came into office in May 2011 by establishing electoral councils that did not comply with the law and that provided the Executive branch with unfair influence in the election process. Political stalemates resulted when critics resisted these unlawful and unfair initiatives.
Permanent Electoral Council in 2012
President Martelly attempted to appoint a Permanent Electoral Council in 2012, but many of the appointments were fraught with controversy. The President of the Council, a close Presidential ally and former Minister of Justice, was forced to resign following a rape accusation by an electoral council employee. According to some members of Parliament, the judicial branch’s selections were not independent because President Martelly illegally named three Supreme Court justices in 2012 (Chief Justice Anel Alexis Joseph was over the maximum age of appointment and the other two were not selected from the official lists submitted by the Senate as required by Article 175 of the Constitution). These appointments allowed President Martelly to influence the nomination of the Superior Council of Judicial Power, a new judicial council headed by Justice Joseph, which selected the Permanent Electoral Council’s judicial members.
Moreover, the legislative appointments must be approved by two-thirds of both the Senate and House of Deputies. Without one-third of its Senators, the Senate opposed forming a nine-year permanent council that would include three representatives from the legislature selected by a Senate that was not fully operational. President Martelly attempted to convene the Permanent Electoral Council with only 6 of the 9 seats filled, but the council lacked legality and credibility, and was never operational.
Collège Transitoire du Conseil Électoral Permanent (CTCEP) in 2013
To remedy the electoral council crisis, President Martelly appointed a compromise entity in April 2013, the Collège Transitoire du Conseil Électoral Permanent (known by its French acronym “CTCEP”), charged with drafting a new electoral law. The appointments were theoretically made in accordance with the Article 192 method of appointing a Permanent Electoral Council – each branch of government selecting three members, but with an understanding that they would only serve until the election was completed. Similar to the appointment of members to the Permanent Electoral Council in 2012, however, the Executive branch largely controlled the CTCEP appointment process for the Executive and Judicial appointments, and influenced the Legislative appointments. The Senate found it difficult to meet quorum with one-third of its seats vacant. The CTCEP submitted a proposed electoral law to a Presidential commission on July 1, 2013. After growing tensions and accusations of intentional delays, both chambers passed the electoral law at the end of 2013.
Provisional Electoral Council (CEP) in 2014
In March 2014, President Martelly and some political parties, parliamentarians, and members of civil society signed the El Rancho Accord, which proposed to hold elections on October 26, 2014, rename the CTCEP to a Provisional Electoral Council, and approve necessary amendments to the 2013 electoral law. The Accord was not approved by the Senate and was widely denounced as a maneuver by the President to circumvent the legislature’s exclusive prerogative to approve the electoral law. Although many civil society organizations signed the Accord, many others refused, including every political party with a record of electoral success, other than the President’s party.
Many parliamentarians, including six of the twenty sitting senators (known as the G6) opposed the Accord on constitutional grounds, because the proposed CEP a) would in essence be the former CTCEP composed under the permanent council procedures, although each government branch was permitted to replace one of their appointed members; and b) would be authorized to bypass the legislature and pass electoral law amendments. As a result of these objections, the Senate never voted on the El Rancho Accord.
Despite the Senate’s constitutional objections and refusal to approve the El Rancho Accord, President Martelly implemented a new CEP in May 2014 based on the Accord guidelines, which contained 7 of the 9 members from the CTCEP. In protest, the G6 senators, opposition groups and human rights groups called for a new, constitutionally-mandated CEP. The G6 refused to participate in a vote on the proposed electoral law, as it had been prepared by the President rather than the CEP, as required by the Constitution. There was no vote on the electoral law and elections did not take place on October 26, 2014.
Amidst growing political protests and public calls for the government to step down, President Martelly appointed an eleven-member Consultative Commission on November 28, 2014, to propose a solution to the political crisis.
RECOMMENDATIONS OF THE CONSULTATIVE COMMISSION
On December 8, 2014, the President’s Consultative Commission released recommendations for resolving the political crisis and moving forward with elections. The Commission’s recommendations respond to calls from opposition parties and human rights groups and address some of the legal issues, but will need to be fully implemented in a manner consistent with the Constitution if there is to be real progress towards inclusive and fair elections. The Commission’s key recommendations are:
- The immediate release of political prisoners;
- The dismantling of the current Provisional Electoral Council (from the El Rancho Accord) and establishment of a new Provisional Electoral Council in accordance with the Constitution;
- The resignation of Prime Minister Laurent Lamothe and the formation of a consensus government;
- The resignation of the president of the Superior Council of Judicial Power, a judicial council tasked with securing judicial independence and appointing members of the judiciary; and
- Voting on the amendments to the 2013 Electoral Law.
President Martelly announced that he accepts the recommendations of the Consultative Commission. At the time of this publication, implementation of several of the recommendations has begun, including the resignation of the El Rancho CEP, the release of an estimated 20 political prisoners, and the resignation of the Prime Minister. These recommendations and the status of implementation are discussed more fully below.
LEGAL ANALYSIS OF KEY RECOMMENDATIONS
Establishment of a Constitutional Provisional Electoral Council
The Consultative Commission recommended the establishment of a constitutional CEP by January 12, 2015, to oversee elections. This recommendation echoes what the political opposition has consistently called for since the President created the Permanent Electoral Council in 2012.
The CEP created after the El Rancho Accord was unconstitutional; it was essentially the former CTCEP appointed according to the Permanent Electoral Council process. The El Rancho Accord allowed each of the three branches to withdraw and reappoint one seat. With 7 of the 9 CTCEP members, the new CEP was essentially the CTCEP. As a provisional council, the CEP should have been established in accordance with Article 289, as the Commission recognized, which calls for the nine members to be selected from nine different sectors of society.
The Executive branch’s repeated efforts to control the Permanent Electoral Council, CTCEP and the CEP have contributed to widespread concern that the CEP will not allow for fair and inclusive elections. In 2010 elections, the CEP that was hand-picked by then President René Préval and marred by corruption allegations arbitrarily excluded over a dozen political parties without providing an explanation adequately grounded in Haitian law. In light of the exclusions and other irregularities, voters deemed the elections unfair and refused to vote. Less than 23 percent of voters participated in the 2010 Presidential and Parliamentary elections.
On December 18, 2014, the nine current CEP members sent a letter to President Martelly announcing that they would resign upon the appointment of a new CEP. On January 7, 2015, the Martelly administration announced that a new CEP would be appointed within 48 hours. The reconstitution of the CEP is a welcome and necessary step towards fair and inclusive elections. But in order to ensure public confidence necessary for successful elections, it is essential for the CEP to be impartial, independent, and free to run fair elections that ensure participation of all eligible political parties.
Release of Political Prisoners
The release of political prisoners is also a welcome and critical step to ensuring that elections are inclusive and that political opponents to the government can exercise their political and civil rights without intimidation and unlawful punishment. Since President Martelly took office, leaders of the political opposition, activists and human rights defenders have face increased harassment, threats and in many cases, arbitrary arrest and prolonged detention. The leading role played by the judicial branch in this persecution indicates a troubling lack of judicial independence and failure to provide human rights protections and legal remedies for political opposition groups.
Since the recommendations, an estimated 20 political prisoners have been released. Among them, Enold and Josué Florestal (the Florestal brothers) were released on December 19, 2014. The Florestal brothers were arrested in connection with a murder case after they filed a lawsuit in 2012 against President Martelly’s wife, Sophia Martelly, and son Oliver Martelly, for corruption. In October 2014, the Florestal brothers and their lawyer, André Michel (an outspoken leader of RNDP, the political party that finished second in Presidential elections in 2011, 2006, 2000 and 1991), were indicted in the 2010 murder case with little to no factual justification. On December 17, 2014, the case was referred to the court of appeals, which ordered the brothers’ liberation.
Biron Odigé and Rony Timothée, leaders of the opposition organization FOPARK, were also released from custody after being apprehended after participating in a demonstration on October 26, 2014. Lawyer Evel Fanfan confirmed that 17 of 18 individuals arrested in connection to an October 17, 2014 demonstration have also been released.
A key player in the Executive Branch’s use of the courts to attack political opponents is Judge Lamarre Bélizaire, a President Martelly appointee. Judge Bélizaire’s appointment was illegal, because he did not meet Haiti’s 5-year legal experience requirement for judges, and had not observed a required break between employment as a prosecutor and installation as a judge. Although cases are supposed to be randomly distributed among the judges of the Port-au-Prince trial court, Judge Bélizaire has received the vast majority of politically-sensitive cases. He handled the cases of the Florestal brothers and Biron Odigé and Rony Timothée, as well as prominent and controversial investigations against former President Jean-Bertrand Aristide, who heads Haiti’s most popular political party, Fanmi Lavalas. That investigation started in August 2014 and has targeted many senior members of Lavalas. The investigation has been criticized by human rights groups across the political spectrum as illegal and politically-motivated. Judge has been suspended by the Port-au-Prince Bar Association for 10 years, starting when he leaves the bench, because of his illegal pursuit of political dissidents.
Resignation of the President of the Superior Council of Judicial Power
According to the law creating the Superior Council of Judicial Power (known by its French acronym “CSPJ”), which is tasked with promoting the independence of the judiciary, the Chief Justice of the Supreme Court serves as the CSPJ President. Chief Justice Anel Alexis Joseph’s 2012 appointment by President Martelly to serve on the Supreme Court was illegal because he exceeded the maximum legal age to hold office. By extension, his role as head of the CSPJ is also illegal, and provides the Executive with substantial leverage on the position tasked with ensuring judicial independence.
It is not clear whether the recommendation calling for the resignation of the president of the CSPJ in practice also entails his resignation from the Supreme Court. Under the Constitution, Supreme Court justices may be removed from office only if there has been a legal determination of abuse of authority, and can only be terminated during their term of office in the event of a duly determined permanent physical or mental incapacity. The Constitution does not, however, prescribe a process for removing judges who, like Chief Justice Joseph, were appointed illegally in the first place.
According to media reports, Chief Justice Joseph resigned from the Supreme Court (and thereby the CSJP) on January 7, 2015.
Resignation of the Prime Minister
Among the Consultative Commission’s recommendations, the Prime Minister’s resignation has received the most attention in the media. The resignation of the Prime Minister is a political, and not a legal issue. Although the Prime Minister’s resignation may serve to ease political tensions, inclusive and fair elections will ultimately depend on the implementation of the recommendations concerning the CEP and the respect of all of the Constitutional requirements for elections.
The Consultative Commission called for the establishment of a consensus government that includes political opposition parties. The President nominated Evans Paul, the leader of a political organization known as KID, as the new Prime Minister on Christmas Day. Under the Constitution, the President chooses the Prime Minister in consultation with the presidents of the Senate and House of Deputies. The President’s choice must be ratified by Parliament. As of the publishing of this paper, Parliament had not voted on Paul’s appointment. Opposition parties and some senators have said that Mr. Paul cannot be considered a consensus Prime Minister under the Consultative Commission’s recommendations, because he was chosen unilaterally by the President.
Voting on Electoral Law Amendments
The Consultative Commission called on the Senate and the House of Deputies — through the convocation of an emergency session — to vote on amendments to the 2013 Electoral Law. In order for the elections to proceed in accordance with the Constitution, the electoral amendments will need to be prepared by the new CEP then transmitted to the President in accordance with Article 191.1, who then submits the law to Parliament for approval. Simple approval of the current amendments by the two houses of parliament without the involvement of a legally-constituted CEP would be once again skirting Haiti’s Constitution.
The agreement to extend parliamentary terms reached on December 29, 2014, by President Martelly, leaders of both house of Parliament and the CSJP is conditioned on passing amendments to the electoral law before the terms expire on January 12, 2015. It remains unclear how a new CEP can be appointed and approve the electoral amendments, and then the amendments be voted on by both houses of Parliament before January 12. This tight time frame calls into question whether electoral amendments will be passed lawfully.
The extension does arguably contravene the constitutional prohibition of extending Parliamentary terms. Proponents note that the alternative – not having a legislature to balance the executive branch- is also unconstitutional, and highly dangerous in practice, while the extension for the Deputies merely returns to them the three months they lost at the beginning of their term as a result of election delays.
CONCERNS & WHAT CAN THE INTERNATIONAL COMMUNITY DO TO SUPPORT FAIR, INCLUSIVE AND TIMELY ELECTIONS IN HAITI?
Progress in earthquake reconstruction, stabilizing Haiti’s democracy and ending poverty will only be possible if the upcoming elections in Haiti are prompt, fair and inclusive. The government’s implementation of many of the Consultative Commission’s recommendations and the December 29 agreement are positive steps toward ending the political crisis and holding elections. But the failure to make concrete progress on the CEP- the foundation of the electoral system, the apparent attempt to have a vote on the unconstitutional electoral law and the Martelly administration’s failure to consult with opposition groups in assembling the consensus government raise serious concerns about the current process’ viability.
While the promise to create a constitutionally-mandated Provision Electoral Council under Article 289 is welcomed and necessary, the appointment process of the CEP members can be manipulated by the Executive. The Martelly Administration’s record of maximizing its influence, often illegally, in previous electoral councils raises the specter of a CEP that could be technically justified as constitutional, but would not be independent enough to inspire public confidence. Already, some political dissidents are insisting the President Martelly resign, because they do not believe that he will run fair elections. In order for the CEP to have the credibility and independence needed to organize fair and inclusive elections, the President will need to exercise substantial flexibility and demonstrate fairness in the selection process. An independent CEP is critical to ensuring full participation and inclusion of all eligible political parties.
The Haitian Constitution requires the Electoral Law to be passed by both houses of Parliament. With most of Parliament’s terms set to expire on January 12, 2015, unless there is an extension, any electoral law, and any elections run under it, will be open to challenge as unconstitutional.
To address these concerns and ensure free and fair elections in Haiti, we encourage the United States government and other members of the international community to:
- 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 to ensure the Provisional Electoral Council operates with independence;
- 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.
These elections must not repeat the errors of the past. Illegitimate elections in 2010, contaminated by a corrupt electoral council, illegal exclusion of political parties, ballot-stuffing and an arbitrary revision of the results set Haiti on its w ay to its current political crisis. A month before the 2010 elections, 45 members of the U.S. Congress warned Secretary of State Hillary Clinton that supporting flawed elections “will come back to haunt the international community” by generating unrest and threatening the implementation of earthquake reconstruction projects. The U.S. government ignored these warnings and provided the majority of the funding for those elections, directly contributing to the current crisis. The U.S. and other international donors can support rule of law and democracy by conditioning election funding on a lawful and independent electoral council that can run fair and inclusive elections.
 Amelie Baron, Political accord in Haiti seeks to avert crisis, Reuters, Dec. 29, 2014, http://www.reuters.com/article/2014/12/30/us-haiti-parliament-idUSKBN0K806L20141230.
 AlterPresse, Haïti-Parlement : Trois ministres du gouvernement échappent à la censure grace à une minorité de sénateurs, Nov. 6, 2013, http://www.alterpresse.org/spip.php?article15418#.VK_y8yf6YYp. The Minister of the Interior received 15-3 votes of no confidence, the Minister of Foreign Affairs received 13-5 votes of no confidence and the Minister of Justice received 14-4 votes of no confidence. Id.
 Haiti Const. of 1987 (Amended 2012), arts. 289, 192. An official version of the Amended 2012 Constitution could not be found, but an unofficial version is available at Constituteproject.org, https://www.constituteproject.org/constitution/Haiti_2012.pdf (last visited Dec. 30, 2014). The 2012 Amendments, published in Le Moniteur June 19, 2012, are available at http://www.haitilibre.com/article-2964-haiti-constitution-texte-officiel-des-amendements-de-la-constitution-de-1987.html.
 Id. art. 289. Parliament approved an amendment to Article 289, published in Le Moniteur October 6, 2009, which changed the CEP composition to “representatives of the public sector, political parties and civil society organizations.” That amendment appears to have been superseded by subsequent vote and caught in a quagmire of fraud allegations with 2011 and 2012 amendments. See Haiti – Constitution: Rapport du Group des juristes indépendents, HaitiLibre, Jul. 3, 2012, http://www.haitilibre.com/article-5106-haiti-constitution-rapport-du-groupe-de-juristes-independants-texte-integral.html. The original 1987 version of Article 289 appears to remain en vigeur.
 Id. art 192.
 Haïti-Conseil électoral permanent: Martelly passe aux actes et installe six conseillers au lieu de neuf, AlterPresse, Aug. 21, 2012, http://www.alterpresse.org/spip.php?article13271#.VKHRfF4ANg.
 Haiti- Elections: Swearing in, installation, and élection of members of the Bureau of CTCP, HaitiLibre, Apr. 30, 2013, http://www.haitilibre.com/en/news-8385-haiti-elections-swearing-in-installation-and-election-of-members-of-the-bureau-of-ctcep.html. See also To rebuild Haiti, Restoring Democracy is a Must, Bloomberg, April 7, 2013, http://www.bloomberg.com/news/2013-04-07/to-rebuild-haiti-restoring-democracy-is-a-must.html.
 Réseau National de Défense des Droits Humains (RNDDH), Rapport sur la situation général des droits humains en Haïti au cours de la troisième année de présidence de Michel Joseph MARTELLY, 5 (May 14, 2014) “RNDDH Report” available at http://rnddh.org/content/uploads/2014/05/Rapport-Droits-Humains-Mai-14.pdf.
 El Rancho: The Church and a Fundamentally Bad Accord, Haiti Sentinel, http://www.defend.ht/columns/blogs/the-editors-blog/5488-el-rancho-the-church-and-a-fundamentally-bad-accord.
 Haiti – Politic: Senator Desras Asserts that Parliament is Not Linked to El Rancho Agreement, HaitiLibre, Apr. 22, 2014, http://www.haitilibre.com/en/news-10989-haiti-politic-senator-desras-asserts-that-parliament-is-not-linked-to-el-rancho-agreement.html.
 Haiti – Politic: The dialogue between the Executive and the Senate ends in failure, Haiti Libre, Jun. 5, 2014, http://www.haitilibre.com/en/news-11302-haiti-politic-the-dialogue-between-the-executive-and-the-senate-ends-in-failure.html.
 Haiti-Elections: Martelly nomme un nouveau Conseil electoral proviso ire, sans l’avis du sénat, AlterPresse, May 6, 2014, http://www.alterpresse.org/spip.php?article16383#.VKHbAF4ANg.
 The full document, including other recommendations, is available here: http://www.miamiherald.com/news/nation-world/world/americas/haiti/article4393117.ece/binary/Read%20the%20presidential%20commission%27s%20report%20%28PDF%29.
 Jake Johnston & Mark Weisbrot, Center for Econ. & Pol’y Res., Haiti’s Fatally Flawed Election 2 (2011), available at http://www.cepr.net/documents/publications/haiti-2011-01.pdf.
 Haiti- Flash: Démission des 9 conseillers du CEP, HaitiLibre, Dec. 19, 2014, http://www.haitilibre.com/article-12765-haiti-flash-demission-des-9-conseillers-du-cep.html.
 Jacqueline Charles, Haiti Supreme Court chief resigns; new electoral council to come, Miami Herald, Jan. 7, 2014, http://www.miamiherald.com/news/nation-world/world/americas/haiti/article5582412.html.
 Access to Judicial Remedies in Haiti, Institute for Justice and Democracy in Haiti et al., Submission for the 112th Session of the United Nations Human Rights Committee, October 8 & 9, 2014 (Sept. 12, 2014) available at http://www.ijdh.org/wp-content/uploads/2014/09/HRC_Access-to-judicial-remedies_Sept-12.pdf; see also RNDDH Report, supra note 9.
 Haiti-Justice: La marche vers une libération complète des prisonniers d’opinions, AlterPresse, Dec. 16, 2014, http://www.alterpresse.org/spip.php?article17456#.VJHB98kw8dU.
 Will Former President Aristide be Arrest? After 10 Years of Investigations, He has Never Been Charged, Center for Econ. & Pol’y Res. Haiti: Relief & Reconstruction Watch Blog, (Aug. 14, 2014 3:37 PM), available at http://www.cepr.net/index.php/blogs/relief-and-reconstruction-watch/will-former-president-aristide-be-arrested-after-10-years-of-investigations-he-has-never-been-charged.
 Loi Creant le Conseil Superieur du Pouvoir Judiciare, art. 1, available at http://www.leparlementhaitien.info/lesenat/kr/article/47-49e-legislature/161-loi-creant-le-conseil-superieur-du-pouvoir-judiciaire.html.
 Loi Portant de Stature de la Magistrature art. 51 (2007), available at http://www.oas.org/juridico/PDFs/mesicic4_hti_loi_magis.pdf (establishing a maximum legal age of 65 for the nomination of any judge).
 Haiti Const. of 1987, art. 177.
 Charles, supra note 18.
 Haiti Const. of 1987, art. 137 (amended 2012).
 Charles, supra note 18.
 Haiti Const. of 1987, art. 111.8.
 Institute for Justice & Democracy in Haiti, Haiti’s November 28 Elections: Trying to Legitimize the Illegitimate (Nov. 22, 2010), http://www.ijdh.org/haiti’s-november-28-elections-trying-to-legitimize-the-illegitimate-ijdh/#.UjoNJBb_5Rc.
 Jason Beaubien, Weary, And Wary, Haitians Prepare For Elections, NPR, Oct. 7, 2010, http://www.npr.org/templates/story/story.php?storyId=130402973; see also Elections that Do Not Reflect the Will of the People, http://www.ijdh.org/on-the-violation-of-voting-right-in-haiti-elections-that-do-not-reflect-the-will-of-the-people-bureau-des-avocats-internationaux-canada-haiti-action-network-transafrica-forum-louisiana-justice-in/#.Ujje3dJQGuJ.
 Dan Beeton and Georgianne Nienaber, Haiti’s Doctored Elections, Seen from the Inside: An Interview with Ricardo Seitenfus, Dissent Magazine, Feb. 24, 2014, http://www.dissentmagazine.org/online_articles/haitis-doctored-elections-seen-from-the-inside-an-interview-with-ricardo-seitenfus.
 Lawmakers Urge Clinton to Ensure Haiti Elections Are Inclusive, REUTERS, October 8, 2010, available at http://www.nytimes.com/2010/10/09/world/americas/09haiti.html?_r=1.
Click HERE for the pdf version.
This article analyzes the stages of reconstruction in Haiti after the 2010 earthquake and explains why those leading the efforts must collaborate with Haitians in order to be successful.
Part of the article is below. Click HERE for the full text.Haiti: Linking up local resourcefulness and development assistance
Jean-Bernard Véron, Ideas for Development
January 8, 2015
In the aftermath of the earthquake, the international community rushed to provide its support. Dozens of aid agencies, hundreds of NGOs and thousands of good intentions, particularly on the part of the Haitian diaspora, arrived in Haiti.
The food contributions, healthcare delivery and installation of temporary shelters have saved a number of lives, as have the treatment centers when the cholera epidemic broke out.
What is the next stage? This is indeed the question that is now raised. There are many answers to this question. It is indeed not only a question of reconstruction, but also of helping this country to finally embark on the path to development. This means stemming the rise in poverty, reducing inequalities between a highly prosperous oligarchy and a population that is often at the limits of survival, giving the State the capacity to conduct its missions, and restoring a devastated environment.
However, by trying to do too many things at once, there is a high risk of achieving nothing. Consequently, it is necessary to make a choice and the one that is upheld here is called “boss masons”, agriculture and the informal economy.Reconstruct, yes, but using their methods
Individual homes, buildings, pubic premises, companies… the earthquake made no distinction. Tens of thousands of buildings were destroyed or badly damaged.
Click HERE for the full text.
What’s the status of the cholera epidemic in Haiti? What about the people displaced when their homes collapsed? How’s the economy doing? CEPR answers these questions and many more with statistics from various sources, in commemoration of the 5th quake anniversary coming up on Monday, January 12th.
Part of the report is below. Click HERE for the full text.Haiti by the Numbers, Five Years Later
Center for Economic and Policy Research
January 8, 2015
Number of people killed in the earthquake in 2010: over 217,300
Minimum number of Haitians killed by the U.N.–caused cholera epidemic: 8,774
Number of years it took after the introduction of cholera for the international community to hold a donor conference to raise funds for the cholera response: 4
Amount pledged for cholera eradication: $50 million
Amount needed: $2.2 billion
Number of years it would take to fully fund the cholera-eradication plan at current disbursement rate: 40
Number of Haitians who died from cholera through the first 8 months of 2014: 55
Click HERE for the full text.
This article covers everything from education to cholera, tying them all into the failed reconstruction efforts in Haiti after the earthquake, and foreign meddling in Haiti’s politics.
Part of the article is below. Click HERE for the full text.Haiti’s promised rebuilding is unfulfilled as Haitians challenge authoritarian rule
Travis Ross & Roger Annis, Haiti Liberte
January 7, 2015
Five years after the Jan. 12, 2010 earthquake that struck Haiti’s capital region, the loudly-trumpeted reconstruction of the country is still an unrealized dream.
2015 finds Haitians fighting tooth and nail in renewed political mobilizations to create the nation-building project that big governments and aid agencies pledged but then cruelly betrayed.
North American and European powers rushed planeloads and shiploads of soldiers and bottled water to Haiti in the days and weeks following the disaster, saying they would help Haiti “build back better.” The world was aghast at the rare glimpse of Haiti’s poverty provided by earthquake coverage. Leaders like Bill Clinton even acknowledged that the failed economic policies they had imposed over decades had impoverished Haiti and, indeed, are the source of its economic underdevelopment.
But the promises of the multi-billion dollar international relief effort and aid which will reach the grassroots have proven largely illusory.
But then there is the Haitian people – their mounting political actions and their unrelenting determination to build a country based on sovereignty and social justice. And their true and faithful international allies. Like the countries and healthcare projects mentioned earlier in this article. Like the lawyers of Bureau des avocats internationaux (BAI) and Institute for Justice and Democracy in Haiti (IJDH) who are suing the UN on behalf of the victims of cholera. Like the SOIL sanitation project and the organizations of peasants and farmers of Latin America who are working in the Haitian countryside. Like many school support projects which are an important form of the struggle for public education in Haiti.
These are the organizations which are working together with the Haitian people to help shape Haiti’s future.
Click HERE for the full text.
Immédiatement après le tremblement de terre, le monde entier avait les yeux rivés sur Haïti. Aujourd’hui, il semble que le monde a oublié les dizaines de milliers de personnes qui sont toujours sans abri, dans les camps de fortune depuis 2010. Ces personnes traitent toujours avec les expulsions forcées et les mauvaises conditions sanitaires. Seulement des solutions de logement durables peuvent résoudre ce problème.
Partie de l’article est ci dessous. Cliquez ICI pour le texte complet.
Click HERE for the English version.Haïti. Cinq ans après le tremblement de terre dévastateur, des dizaines de milliers de personnes sont toujours sans logement
8 janvier 2015
Cinq ans après le séisme dévastateur qui a frappé Haïti en 2010, des dizaines de milliers de personnes n’ont toujours pas retrouvé de logement, et beaucoup de ceux qui ont tout perdu dans cette catastrophe se sentent abandonnés face aux échecs des politiques gouvernementales, aux expulsions forcées et aux solutions à trop court terme, a déclaré Amnesty International jeudi 8 janvier 2015.
Dans son nouveau rapport, intitulé « 15 minutes pour partir ». Les violations du droit à un logement décent en Haïti après le tremblement de terre, l’organisation décrit des exemples inquiétants d’habitants expulsés de force de leurs logements de fortune dans des camps provisoires. Ce rapport montre aussi que l’aide au développement qui a afflué à la suite du séisme n’a pas abouti à des solutions de logement sûres et durables.
« Nombre de ceux qui ont tout perdu dans le tremblement de terre de 2010 se trouvent confrontés à de nouvelles difficultés quand ils sont chassés de leurs abris et de leurs camps de fortune. D’autres risquent à terme de se retrouver à la rue et de sombrer dans la misère au fur et à mesure que les programmes de soutien financier des donateurs internationaux s’amenuisent », a déclaré Chiara Liguori, chercheuse sur les Caraïbes pour Amnesty International.
Cliquez ICI pour le texte complet.
Click HERE for the English version.
Le rapport est disponible en français, anglais, et espagnol ICI.
Many Haitians are worried about new efforts by the Haitian government to open the country up for mining. They have petitioned the World Bank, a supporter of these efforts, with their concerns about the environmental and human rights impacts mining will have on the nearby communities. They also fear that lack of government resources will hinder proper oversight of these projects.
Part of the press release is below. Click HERE for the full text.Haitian Communities File Complaint about World Bank-Supported Mining Law
Center for Human Rights and Global Justice
January 7, 2015
(NEW YORK, SAN FRANCISCO, PORT-AU-PRINCE Jan. 7, 2015)—Haitian communities and organizations filed a complaint with the World Bank regarding Bank-supported activities to develop Haiti’s mining sector today. The complaint alleges that the Haitian populace has been left out of World Bank-funded efforts by the Haitian government to draft new mining legislation intended to attract foreign investors to exploit Haiti’s gold and other minerals. Complainants contend that the Bank has failed to follow its own social and environmental safeguard policies or ensure that the new legal framework adheres to international best practices. They fear that allowing the mineral sector to develop without much-needed human rights and environmental protections and without public consultation could harm rather than help Haiti.
“The mining law will attract investment from foreign mining companies and yet the government does not have the ability to monitor environmental impacts or to promote the interests of the affected communities,” said Nixon Boumba, a representative of the Kolektif Jistis Min (Mining Justice Collective), a group of six Haitian organizations and dozens of communities who filed the complaint.
Click HERE for the full text.
In December, a commission appointed by Haitian President Michel Martelly published a list of suggestions for resolving the electoral crisis. Now, it seems that one of their major suggestions is being followed, as a presidential advisor stated that a new Provisional Electoral Council (CEP) will be named this week. Opposition Senators disagreed with the current CEP because its appointment didn’t follow guidelines laid out in the Constitution.
Click HERE for the original text.Haiti Supreme Court chief resigns; new electoral council to come
Jacqueline Charles, Miami Herald
January 7, 2015
A new nine member Provisional Electoral Council in Haiti is expected to be announced within the next 48 hours, an adviser to President Michel Martelly said Wednesday, clearing the way for a possible solution to the country’s deepening crisis.
Also Wednesday, another stumbling block was removed: Haitian Supreme Court Judge Arnel Alexis Joseph resigned, said an adviser who asked for anonymity because he isn’t authorized to speak on the matter.
Joseph’s resignation came at the end of renewed talks between Martelly and opposition parties, and key senators. The Haitian Senate still must vote an electoral law for elections to be held.
Joseph’s resignation and a new Provisional Electoral Council (CEP) were among a list of far-reaching recommendations issued last month by a presidential commission that also asked for the resignation of then-Prime Minister Laurent Lamothe to calm rising political tensions.
For three years, Martelly and the opposition have been at loggerheads over long-overdue municipal and legislative elections, each side accusing the other of not wanting the vote. The impasse has triggered growing discontent, spreading and sometimes violent protests and appeals from some in the opposition for Martelly to resign.
In recent days, the international community and Haiti’s opposition parties have stepped up efforts to stave off a possible one-man rule by Martelly beginning at midnight Monday when the terms of most members of parliament expire. The day is coincidentally the fifth anniversary of Haiti’s tragic Jan. 12, 2010 earthquake.
On Christmas Day, the National Palace announced that Martelly had tapped former Port-au-Prince Mayor and political party leader Evans Paul to replace Lamothe and head a consensus government. But opposition parties and senators balked at the announcement, saying they were left out of the decision. The crisis was further accentuated when days later, Martelly signed a political accord with the leaders of both chambers of parliament and Joseph, who unlike Lamothe and the CEP members, had not yet resigned.
Sen. Steven Benoit said Alexis’ resignation isn’t enough. “There are still three illegal judges on the Supreme Court,” he said.
On Wednesday, Sandra Honoré, the Special Representative of the Secretary-General of the United Nations in Haiti and members of the Core Group, urged those on all political sides to resolve their differences.
Click HERE for the original text.
FOR IMMEDIATE RELEASE
As Haiti Commemorates Earthquake, UN Accountability Crisis Deepens
Refusal to Take Responsibility for Cholera Emblematic of Failed International Responses
BOSTON, PORT-AU-PRINCE, January 6, 2015—As the world assesses Haiti’s recovery from the devastating January 12, 2010 earthquake, the UN’s refusal to respond justly to the cholera epidemic it brought to Haiti after the earthquake stands as a stark example of misguided priorities, mismanaged efforts and a refusal to honor commitments. Cholera cases have recently surged in Haiti—nearly 100 deaths were recorded in November 2014, making it the deadliest month on record since January 2013.
“The cholera epidemic is an excellent sincerity test for the UN, and the UN has flunked that test,” said human rights lawyer Mario Joseph of the Bureau des Avocats Internationaux in Haiti, the lead lawyer for cholera victims. “Cholera is a man-made disaster that could have been easily avoided by minimally adequate sanitation at the UN bases, or stopped with 19th century technology. The UN has failed on both fronts, and Haitians are suffering the consequences.”
Since it was introduced to Haiti in 2010, cholera has sickened over 720,000 and killed 8,700 people in Haiti alone— more than the total number of people killed by Ebola worldwide over that span.
The UN is coming under increasing fire for its botched response to the cholera epidemic, that experts say started when MINUSTAH, the UN peacekeeping force in Haiti, discharged raw sewage from one of its bases in Haiti. 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.
The UN has repeatedly refused to consider claims filed by cholera victims seeking investment in water and sanitation, compensation, and an apology. After exhausting other avenues, victims filed a lawsuit in U.S. federal court in October 2013, and the court held a hearing on whether the UN can claim immunity from the suit in October 2014. The UN refused to participate at the hearing, and the decision on immunity is currently pending.
In a speech delivered at McGill University in November, former UN Special Envoy for HIV/AIDS and former Deputy Director of UNICEF Stephen Lewis said, “In the case of Haiti and cholera, the United Nations has abandoned human rights, has spurned the rule of law, and has rendered democratic principles a travesty.”
Attorney Beatrice Lindstrom of the Institute for Justice & Democracy in Haiti (IJDH) who represented the cholera victims at the hearing and has written on the obligations of disaster responders under international law, emphasized that “the responses to both the earthquake and the cholera epidemic were plagued by an approach that emphasized charity at the expense of justice. Actors that should have been setting an example simply refused to comply with their obligations under international law. As a result the relief effort stumbled while the cholera epidemic prospered.”
International disaster responders have mostly agreed that aid must be delivered in a manner that prioritizes Haitian participation, transparency and accountability. Yet only 0.6% of earthquake aid was channeled through Haitian organizations, Haitians lacked information about aid initiatives, and as the cholera case demonstrates, accountability mechanisms were non-existent.
“Had earthquake responders respected their international law obligations, their efforts would have been more sustainable, more accountable to the Haitian people, and a better investment of taxpayers’ generosity. Had the UN complied with its legal obligations for recklessly introducing cholera, the epidemic would be over,” said Brian Concannon, Jr., Esq., Executive Director of IJDH and one of the lawyers representing victims in a lawsuit against the UN.
For more information about cholera in Haiti and the pending litigation against the UN, please visit: http://www.ijdh.org/2014/12/topics/health/cholera-litigation-faq/
Le mois dernier, une commission consultative Présidentielle en Haïti a recommandé que le président de la Cour de cassation démissionne. Il semble que cette recommandation sera suivie bientôt. Les recommandations étaient destinées à aider à mettre fin à la crise electorale.
Partie de l’article est ci dessous. Cliquez ICI pour le texte complet.Haïti – Crise politique Démission imminente de Me Anel Alexis Joseph
January 6, 2015
La démission de Maitre Anel Alexis Joseph serait imminente selon les nouvelles qui circulent sur les réseaux sociaux. Ce ne serait plus qu’une question d’heure selon le journaliste Daly Valet qui l’a confirmé sur sa page facebook. Maitre Anel Alexis Joseph aurait réclamé des dédommagements pour ses dix années passées comme juge à la cour de cassation. Alors que certains pensent que cela contribuerait à un dégel de la situation, d’autres estiment que cela n’aurait aucun impact pour un réel dénouement de la situation.
Cliquez ICI pour le texte complet.
In the pdf linked below, the UN Office of the Special Envoy to Haiti provides a breakdown of funding for the plan to eliminate cholera from Haiti. As of December 2014, the National Plan is funded at only 12.9%.
Un groupe du 6 senateurs est souvent blâmé à tort pour l’actuel crise électorale en Haïti. Le groupe a envoyé une lettre au Président du Sénat haïtien pour expliquer sa position. Le groupe espère aussi que le Président du Sénat va expliquer sa position à la Nation haïtienne.
Partie de l’article est ci dessous. Cliquez ICI pour le texte complet.Haiti Politique Le G6 pose ses conditions
January 6, 2015
Après la tentative ratée de l’Assemblée Nationale en session extraordinaire due à l’infirmation du Quorum de la Chambre haute et la nouvelle convocation pour mercredi, les sénateurs de l’opposition ont envoyé cette lettre au Président du Sénat. Voir ci joint
Lettre du G6 :
« Honorable Sénateur Dieuseul Simon Desras
Président de l’Assemblée Nationale
Monsieur le Président,
En formulant le vœu que 2015 soit pour nous autres Sénateurs un moment d’Unité et d’Engagement pour la cause nationale, nous vous prions de prendre connaissance de notre Position politique et d’en informer la Nation haïtienne.
Cliquez ICI pour le texte complet.