Uncontrolled vomiting hits first, along with profuse, watery diarrhea.  Within minutes, your body begins to dehydrate, your muscles will clench and cripple.  Your kidneys will fail next.  Then your brain goes into a coma, and your body goes into shock.  You’ll come out of it though, eventually, if you find treatment right away.  But if you can’t find treatment, you could die.  If treatment comes too late, you could die.  If the symptoms strike so fast that you have no idea what hit, it’s likely you will die.cholera - 5

This is cholera, a disease that has infected close to a million people in Haiti, and depending on which numbers you credit, has killed between 10,000 and 30,000.  Though easily prevented and treated, its onset is sometimes so sudden and severe that victims can die of systemic shock within an hour of the first stomach cramp.
Not a trace of cholera in Haiti had been reported in more than a century worth of health data.  But it exploded upon arrival in October, 2010.  One hospital near the epicenter of the outbreak admitted more than 400 cholera patients in a single day – just three days after the first reported fatality.  Forty-four of those patients were dead by nightfall.

It took only a few weeks for cholera to reach every corner of the country.  It seeped into neighboring Dominican Republic almost as fast, and eventually sickened people in the US, Mexico, Venezuela, Cuba, and a long list of other countries across the Caribbean.  Haiti has become ground zero for the world’s deadliest cholera outbreak.

cholera - 3How did this happen?  The United Nations failed to screen Nepali peacekeepers for cholera before deploying hundreds of them to Haiti, despite knowing that the disease was endemic to Nepal and flaring there at the time.  It also transferred human waste from sites where infected peacekeepers were stationed to a MINUSTAH base situated on a tributary of the Artibonite River.  MINUSTAH is the stabilization mission the UN Security Council established under an agreement with Haiti in 2004.  The Artibonite is Haiti’s largest and most important river, and the sole water source for tens of thousands of people.  Children routinely played in the river, families used it to bathe, and farmers used it for growing crops they fed loved ones or sold at the local market.

The UN also ignored reports about hazardous defects in the sewer system at MINUSTAH.  Cracked sewer pipes leaked infected fecal matter into the river, and open disposal pits built along the river’s edge leached into the ground.  Haiti’s frequent torrential rains caused the pits to overflow, pouring toxic sludge directly into canals that feed the Artibonite.  The UN knew about these conditions for years and did nothing.  It did, however, cover up what it knew, and falsely report that it had screened incoming peacekeepers for cholera, when in fact, it had not.

cholera - 4A lawsuit against the UN is now pending in the US Second Circuit Court of Appeals.  Brought on behalf of 5000 cholera victims by the Bureau des Avocats Internationaux in Haiti, and the Boston-based Institute for Justice and Democracy in Haiti, the case asserts that the UN recklessly introduced cholera to Haiti and failed to properly maintain MINUSTAH’s sewer system.  The suit also claims that the UN breached international agreements in failing to provide a “complaint process,” that is, a way for cholera victims to obtain a remedy for the UN’s wrongdoing.

The legal case against the UN builds on well-established principles of tort and contract law.  From a slightly different perspective, however, the cholera epidemic can also be framed as a human rights violation against displaced people, including displaced earthquake survivors, migrants looking to escape Haiti’s 3 year drought, and anyone who was uprooted, actively or perhaps even constructively, as a result of the cholera epidemic itself.  The Guiding Principles on Internal Displacement would apply under this approach, and support the pending case for UN accountability.  Here’s a sketch of how that might work.

A.  The Guiding Principles on Internal Displacement

The Guiding Principles on Internal Displacement establish an international human rights framework for protecting internally displaced people.  They present a comprehensive set of norms that address risks to people who are uprooted from their homes or anticipate having to flee, but who are not considered “refugees” under international law because they have not crossed an international border.  The Guiding Principles prohibit the threat of arbitrary displacement, dictate minimum standards that apply during displacement, and affirm a right to durable solutions after displacement.

The Guiding Principles are not legally binding in the same way a treaty or convention would bind its signatories.  Rather, they codify rights and obligations already established under international law in documents such as the Covenant on Civil and Political Rights, the Covenant on Economic, Social and Cultural Rights, and the American Convention on Human Rights.  Along with an accompanying Handbook and Annotations, the Guiding Principles explain what human rights look like in the specific context of displacement.

B.  Inter-dependent Human Rights: Connecting One Right to Another

Like all human rights instruments, the Guiding Principles recognize that certain rights must be fulfilled before others can be realized.  For example, the right to an “adequate standard of living” recognized in Principle 18, includes a right to safe housing, clean water, appropriate sanitation, and adequate medical care.  These commodities are “absolutely essential for survival,” the Annotations explain, thereby linking them to the “inherent right to life” articulated in Principle 10.

Cholera presents a direct threat to these and other rights.  In fact, the Annotations link the right to “basic shelter and housing” under Principle 18 to the right to “life” under Principle 10, by emphasizing that “an adequate amount of safe water is necessary to prevent death from dehydration, and to reduce the risk of water-related diseases.” Separately, Principle 19 recognizes a right to “medical care,” and demands that “special attention” be given to “the prevention of contagious and infectious diseases …”  The Annotations explain that attaining the “highest attainable standard” of health requires the “prevention, treatment and control of epidemic, endemic, occupational and other diseases.” Responsible authorities are directed “to prevent as far as possible epidemic, endemic and other diseases.”

C.  Internally Displaced People: Who They Are

The Guiding Principles apply to internally displaced people, or IDPs, “who have been forced or obliged to leave” their homes on account of “armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized state border.”

Regarding Haiti, this definition covers people who were displaced by the 2010 earthquake, those who are presently migrating on account of the country’s on-going drought, and anyone who was uprooted as a result of the cholera outbreak itself.  These are the people who initially come to mind, though others might also qualify as IDPs.

The risk of cholera among IDPs is often magnified on account of unsanitary living conditions, and a lack of access to clean water and functioning sanitation.  This was certainly true for the 1.4 million people living in displacement camps when the disease started to spread, just 10 months after the earthquake.  I was part of a legal team that filed a human rights petition with the Inter-American Commission on Human Rights regarding conditions inside the camps when reports began to circulate that people who lived in villages up river were dying from cholera.

In one camp, we discovered that NGOs were delivering water intermittently, but dumping it in fetid plastic barrels that were covered in mud and swarming with insects. In another case, the landholder prohibited water deliveries he previously allowed into the camps in an effort to coercively force homeless people off the land. Other camps didn’t receive water deliveries at all.

Toilets in the camps either did not exist, or were so overwrought with human waste that people took it upon themselves to dig open trenches around the perimeter of the site to defecate. Both the toilets and the trenches overflowed in the rain, inundating tents with a knee-deep mix of water and human excrement.

As of January, 2016, six years after the earthquake, more than 60,000 people still lived in displacement camps with inadequate access to basic services.  The real number of displaced people is tough to gauge, however, because officials lost track of thousands more who sought refuge with host families or in settlements outside the capital city, including in regions that drew water from the polluted Artibonite river.

Haiti’s ongoing drought has also triggered waves of internal migration, and an alarming spike in drought-induced hunger and malnutrition, especially in the hardest hit south-east region of the country.  Without a forecast for rain, the entire food harvest in some areas will be lost for the fourth consecutive year.

drought - 2.jpgIn years past, people looking to escape the drought in Haiti might have found refuge in the Dominican Republic, where tens of thousands of Haitians migrate annually with the hope of finding a route out of poverty.  But the drought stretches into that country too.  Plus, the Dominican Republic has closed its borders to Haiti and began actively deporting Haitians who were already living there.  Once bustling cross-points are now under military guard, and the Haitian side of the border is dotted with tent-camps reportedly as bad as those that sprung up after the earthquake.  These camps are located in areas that health officials have placed on “red alert” because of the number of people who have become sick or died of cholera.

Finally, because the Artibonite was a life-sustaining water source and cholera is a life-threatening disease, it would not be a surprise to learn that some families fled their homes as a matter of life or death after the UN poisoned the river.  If so, they would qualify as IDPs under the Guiding Principles.

Others might have chosen to stay, perhaps due to limited financial means or a lack of social support outside of rural Haiti.  They might not have been formally uprooted, but because they have been effectively denied the safe use and enjoyment of their homes and their land, they stand in a position similar to those who have been “constructively evicted” in violation of international law.  Consequently, they too might constitute IDPs entitled to protection under the Guiding Principles.

D.  UN Accountability Under the Guiding Principles

It is a fundamental principle of international law that people who are harmed by the breach of an international obligation, including human rights obligations, are owed a legal remedy by the party at fault.  This right derives from a number of international human rights instruments, and is expressly recognized in the 2001 Draft Articles on the Responsibility of International Organizations.  The UN has even acknowledged that it too, as an international actor, is bound by the principle of state responsibility.  This point is thoroughly addressed in an amicus brief submitted by human rights experts in the Haiti cholera case 

Consistent with this understanding, the Guiding Principles provide persuasive authority for holding the United Nations legally accountable for bringing cholera to Haiti.  Here’s why:

First, the Guiding Principles “reflect and are consistent with international human rights law and international humanitarian law.”  The underlying documents codified in the Guiding Principles formally bind signatory States, but the text of the Guiding Principles offers direction, not only to States dealing with internal displacement, but to “all other authorities, groups and persons in their relations with internally displaced persons,” including “intergovernmental and non-governmental organizations” like the United Nations.

Second, the drafting history behind the Guiding Principles is unique, and creates a reasonable expectation that the UN would willingly abide by its provisions.  New human rights frameworks typically involve collaboration between the UN, member States and inter-governmental organizations, in an effort to address areas of critical concern.  The process is often initiated by States and partner organizations, however, and the UN might not be formally involved until the negotiation parties ask for advice or logistical support.

But the Guiding Principles were different.  They were drafted at the instruction of the United Nations Commission on Human Rights, with consent from the General Assembly, after a UN led inquiry into the legal status of IDPs revealed unacceptable vulnerabilities and gaps in international protection mechanisms.

In 1992, the Secretary General appointed the first UN Representative on displaced people, Francis Deng, to lead a group of independent experts in formulating the set of standards that would become the Guiding Principles.  Deng and his panel of experts consulted with member States, but the process of preparing, reviewing and finalizing the document occurred without member States taking the lead.  This has become accepted practice in the field of human rights, leading to the development of The Pinheiro Principles and the Guiding Principles on Business and Human Rights.  It was a novel approach, however, when the Guiding Principles on Internal Displacement were drafted.

Third, in practice, the UN actively promotes compliance with the Guiding Principles both inside and outside of the organization.  The Guiding Principles themselves were drafted “to provide guidance to the Representative of the Secretary-General on IDPs in carrying out his mandate.” That mandate includes “mainstreaming” human rights into every aspect of UN operations.

In 2001, the Secretary General created the Office of the Special Rapporteur on Internal Displacement.  There have been 3 Special Rapporteurs since then, each successively charged with promoting the application of the Guiding Principles at the national, regional, and international levels, and “mainstreaming the human right of IDPs into all relevant parts of the United Nations system.”  The General Assembly consistently “encourages all relevant actors to make use of the Guiding Principles when dealing with situations of internal displacement,” and has praised the increasing number of “United Nations organizations” that apply them.

kosovo - 1Fourth, a human rights Advisory Panel established by the UN’s interim mission in Kosovo, or “UNMIK,” applied the Guiding Principles as persuasive authority in a case involving thousands of IDPs from the Roma community.  In April 2016, the panel found the UNMIK responsible for multiple human rights violations on account of its decision to house displaced people in camps built on land contaminated with lead and other poisons.  Though UNMIK expressly agreed to follow international human rights standards when exercising its functions, its responsibility towards displaced people is also grounded, as explained previously, in the existing normative standards of the treaties it agreed to follow – treaties that are embodied in the Guiding Principles.

As the only body ever established to consider rights abuses by a UN field mission, the Advisory Panel’s outcome and rationale holds considerable weight.  Legal observers have applauded “the potential precedential value” of the decision for “future accountability mechanisms,” and its contribution to an “important body of jurisprudence” concerning human rights violations by intergovernmental organizations.

E.  Reconciling Haiti’s *Primary Duty and Responsibility* Towards IDPs, with the UNs Accountability for Cholera

Under Guiding Principle 3, the “primary duty and responsibility” to protect and assist IDPs rests with National authorities.  This obligation, however, is not exclusive to other States or international organizations, which are encouraged “to meet the needs of IDPs” on the basis of “solidarity and international cooperation.”

Moreover, the “primary responsibility” doctrine should not be read to confer impunity when an organization like the UN commits a human rights violation, because there is no logical basis for exempting international organizations from the fundamental norm of international accountability.

There’s more.  The responsibility imposed on National authorities under Principle 3 is articulated as a duty that Nations owe to IDPs within their territory.  It also draws on the doctrine of non-interference, that is, a Nation’s right to govern domestically, free of outside intervention.  This is an implicit but critical take-away from the Annotations, which declare that Principle 3 is rooted in the concept of “state sovereignty.”

As a sovereign nation, Haiti enjoys exclusive control over its territory and its people, subject to the constraints of domestic and international law.  It sets the terms under which outside actors, including the UN, can operate inside its jurisdiction.  The UN, therefore, not only committed a deadly tort against the Haitian people, it unlawfully breached Haiti’s sovereignty by interfering with its ability to protect its own citizens.  Haiti’s primary responsibility towards IDPs under Principle 3 should not be read in a way that allows the UN to escape responsibility for breaching the very sovereignty that Principle 3 aims to protect.

F.  Conclusion

Despite all of this, the UN still refuses to acknowledge a legal responsibility to remedy the cholera epidemic in Haiti.  If the self-proclaimed authority on human rights refuses to acknowledge an obligation to honor the rights of IDPs, after initiating, formulating, enacting, promoting, and mainstreaming the international framework for protecting them, it has no moral standing to direct other member state or international organization to do so.

-Kathleen Bergin

(photo credits: Doctors Without Borders, Caribbean360, Getty Images, AP, Human Rights Watch)