Human Rights Quarterly

I. INTRODUCTION

Haiti had to deal with numerous problems over the years—including a number of tropical storms and hurricanes, a massive earthquake in January 2010 that killed between 65,000 to 316,000 people, and other external shocks such as the worldwide food price inflation in 2008—however, one of the few issues that Haiti had not contended with in its recorded history was cholera. This situation changed in October 2010. Between 2004 and 2018, the UN has fielded a peacekeeping mission in Haiti, the United Nations Stabilization Mission for Haiti (MINUSTAH),¹ and some of those peacekeepers brought cholera with them.² The UN did not properly screen its peacekeepers for cholera,³ and poor sanitary practices at the UN base contributed to raw fecal waste carrying cholera flowed directly into a stream, the Meille River, that runs into a tributary that feeds Haiti's main river, the Artibonite. Given that vast numbers of the population rely on the Artibonite River for washing, cooking, cleaning and drinking, cholera quickly spread around many parts of the country. Over 820,000 people have been infected and 9,792 people died of the illness; however, the real death toll could be the triple of the official figures because of the underreporting in the initial outbreak.⁴ The illness completely upended the life of whole communities: "children have lost parents and breadwinners, resulting in severe instability and lost schooling, and families continue to struggle to pay off debt for medical care and burial expenses, and such debt has often plunged them deeper into poverty."⁵ In [End Page 568] January 2020, Haiti celebrated one full year of being free of cholera, with no new case reported since 24 January 2019.⁶ However, if the illness has been stopped in its tracks, the issue of reparation to the cholera victims has not progressed, which has led a group of fourteen UN mandate-holders to send an allegation letter to the UN Secretary-General and Haitian government critiquing the ongoing failure to deliver effective remedies for victims of cholera in Haiti. If the worldwide coronavirus crisis brings relief efforts back to the forefront of the international community efforts in Haiti, "this new threat cannot mask past failures and ongoing violations" in the words of the UN mandate-holders.⁷

At first, the UN relied on its absolute immunity from the jurisdiction of national courts to avoid accountability for introducing cholera into Haiti. The UN has also failed to set up alternative dispute resolution mechanisms in Haiti, leaving victims without any possible avenue to voice their complaints.⁸ This policy has been dubbed "morally unconscionable, legally indefensible, and politically self-defeating" by a UN Special Rapporteur.⁹ Furthermore, "recent scholarship has contested the reliance on absolute immunity" by organizations such as the UN,¹⁰ and practitioners on the ground, representing 5,000 victims of cholera, have challenged that immunity through the New York District Court. If the legal challenge by the Bureau des Avocats Internationaux and the Institute for Justice and Democracy in Haiti did not result in an effective re-assessment of the United Nations absolute immunity, [End Page 569] it certainly contributed considerable pressure on the organization to modify its stance on the issue.¹¹

On 1 December 2016, in a dramatic turn of events, the UN Secretary General Ban Ki-Moon finally apologized for the cholera epidemic in Haiti—in English, French and Haitian Creole. If the apology fell short of recognizing the United Nations responsibility in the actual outbreak, emphasizing rather a "moral responsibility to act" and a "collective responsibility to deliver," it actually led to a "New Approach" by the UN, including a $400 million plan as a "concrete and sincere expression of the Organization's regret."¹² The United Nations launch of the New Approach presented a critical opportunity to repair victims' injuries and restore trust in the UN.¹³ In the words of the Secretary-General, it became "an important test" of the United Nations commitment to its own principles.¹⁴ The plan has two tracks: The first track focuses on intensified efforts to prevent and eradicate cholera, and the second track promises to deliver "a package of material assistance and support to those Haitians most directly affected by cholera" to be developed in a victim-centered manner,¹⁵ including through consultations with victims. The plan is woefully underfunded—only 4 percent of the amount promised raised so far—with the UN opting for relying solely on charitable donations to fund the efforts.¹⁶ The result is that more than ten years after the initial cholera outbreak, and four years after the UN Secretary General apology, victims are still waiting for justice.

There is a discussion in the literature on whether or not gross human rights violations occurring during natural disasters should be addressed through transitional justice processes, and in parallel, "there is international [End Page 570] legal momentum behind claims for reparations and compensation."¹⁷ The actual role of the United Nations in the Haitian tragedy, an actor whose mandate included bringing stability to the country, makes this discussion all the more relevant. If other instances of natural disasters are met with a relative sense of fatality by Haitians, the discussion took a different turn in Haiti once the clear source of the epidemic has been established as the United Nations Nepalese camp near Mirebalais. One could argue that all-natural disasters include injustices and that massive violations of human rights should be properly dealt with, but the case of the cholera epidemic became an emblematic case for Haitians in terms of reparations and compensation.

This article engages directly with the literature on compensation and reparation in transitional justice, especially in its socioeconomic dimension, as well as the development literature on cash transfers, to inform the current debate on how the international community should compensate cholera victims in Haiti. This article makes the point that debates around transitional justice—understood as efforts "to redress the legacies of massive human rights abuses"¹⁸—can inform the process of finding a right and just solution to this issue. This article is based on participative action research conducted by two of the authors in the most cholera affected communities in Haiti.¹⁹ We followed a team of local lawyers from the Bureau des Avocats Internationaux in March 2017 who were meeting local support groups for cholera victims and discussing possible compensation avenues with these communities. As such, this article aims to bring the voices of the victims to the forefront, connecting their message with debates on transitional justice. One of the main findings of our research is the unmitigated desire from local communities to access individual reparations instead of the standard collective reparation that is usually presented as the de facto solution for the compensation issue. The UN has outlined two potential approaches to material assistance, namely community projects in areas most affected by cholera (the community, or collective approach) and payments to the families of those who died (the individual approach). The UN has pledged to consult with victims in developing the material assistance package, but in practice the UN "has foreclosed that possibility [monetary payments] seemingly without [End Page 571] carrying out consultations or producing a detailed feasibility assessment" according to the fourteen UN-mandate holders.²⁰ Hence, according to the same mandate-holders, "compensation is ordinarily a central component of the right to an effective remedy, and development projects are simply not a replacement for reparations."²¹

This article is divided into three main sections. The first section locates the debate around reparations in the transitional justice literature, high-lighting the growing call for a socioeconomic turn in the field. We discuss our fieldwork findings in the second section. We focus on the community meetings in Mirebalais and how participants have discussed the importance of consultation, but also their positions on individual and collective reparations. The third section further links the discussion around individual reparations with the development literature on cash transfer, demonstrating that individual reparations are not a utopian ideal, but a discussion supported by the evidenced-based research on what works in the development field.

II. LOCATING REPARATIONS WITHIN THE TRANSITIONAL JUSTICE LITERATURE: TOWARDS A SOCIOECONOMIC TURN

As strategies dealing with human rights violations, reparations are aimed at addressing grievances in post-conflict societies. They are generally conceptualized as "rights-based political projects" seeking to give victims "due recognition and enhancing civic trust amongst citizens and between citizens and institutions."²² As such, reparations are usually considered to be a victim-centered transitional justice mechanism, responding directly to the victims' needs and priorities.²³ For some, victims have forced their way to the front of the transitional justice scene precisely through the mechanism of reparations, prompting the field to look beyond traditional justice and truth-telling debates.²⁴ Debates around reparations have taken into account both the practical limitations regarding distribution, coverage and budgeting as well as philosophical complexities surrounding the rebalancing of power between victims, perpetrators and the state.²⁵ As such, understandings of [End Page 572] reparations have shifted towards a comprehensive process for dealing with victims issues with the aim of "relieving the suffering of and affording justice to victims by removing or redressing the consequences of wrongful acts and by preventing and deterring violations."²⁶ As reparations remain concerned with victims as primary beneficiaries, they have progressively been identified as channels for improving their socioeconomic situation, prompting a "socioeconomic turn" in transitional justice debates.²⁷

The field of transitional justice has strong roots in the criminal justice field and has had a strong legalistic influence in its foundations. Some have criticized the mainstream literature for marginalizing economic, social, and cultural rights as a space for engagement, as well as ignoring the socioeconomic dimensions of past abuses both in theoretical literature and in practice.²⁸ In this regard, some argue for the "expansion of transitional justice into the realm of redistributive justice," highlighting discrimination and marginalization at play through unequal access to socioeconomic rights.²⁹ One could argue that ignoring the socioeconomic dimension of transitional justice limits debates on the possibilities and impact of reparations while damaging the prospects of transitional justice mechanisms to deliver effective justice and protection to victims. Transitional justice's bias towards civil and political rights is evident in the general claim that the realization of economic, social, and cultural rights will come out of the fulfilment of civil and political rights.³⁰ Furthermore, "post-conflict violations of economic and social rights exacerbate earlier structural violence configurations, leading to double-victimization" and even reducing the possibility of successful prosecution as victims lack socioeconomic assistance.³¹ The invisibilization of economic concerns in transitional justice leads to a focus on "negative peace" rather than a "positive peace" challenging the institutions of structural violence in a given society.³²

The debate on reparations and transitional justice offers the opportunity to explore possibilities for broadening the field towards socioeconomic [End Page 573] justice. Reparations may offer a meeting point between development and transitional justice that extends the field into socioeconomic and reparative realms. Both transitional justice and development practitioners focus on "giving victims a voice in decision making," converging in the concern with how programs and projects are carried out.³³ As mentioned previously, in both cases, social exclusion is perceived as one of the central issues in the reproduction of structures of inequalities. Lars Waldorf analyses various proposals regarding the connection between transitional justice and development, recognizing that the former is centered on corrective justice and the latter on distributive justice.³⁴ His analysis points towards transitional justice measures that promote inclusive, participatory citizenship and social integration for victims and survivors, establishing programmatic links between transitional justice and development. The main question in this regard is whether extending transitional justice into socioeconomic considerations is enough to counter the effect of neoliberal policies in post-conflict societies, particularly its damaging competition and erosion of resources for welfare and development.³⁵ Equally problematic are situations where reparation activities are mandated or overseen by international actors, who tend to act in heavy-handed, securitized, top-down manner, which disconnects them from local aspirations of those living in post-conflict societies.³⁶ When reparations are viewed as imposed from an outside actor they are unlikely to contribute to peace consolidation. To avoid this, reparations require a negotiated process between victim and perpetrator, with local oversight so that reparations are deemed legitimate. This also means to take victims' preferences seriously, especially in regard to the choice between collective or individual reparations.

Both collective and individual reparation schemes have specific aims. For Naomi Roht-Arriaza and Katharine Orlovsky, individual reparations recognize specific harm to an individual and the fact that all individuals' lives are worthy and important as a rights bearing citizen, while collective reparations seek to intrinsically respond to collective harms.³⁷ Individual reparations are integral to regaining civic trust while collective reparations seek to reinforce social solidarity and to maximize the effectiveness of existing state resources. Beyond the obvious monetary compensations, individual [End Page 574] reparations may include restitution of access and title to property taken or lost, access to employment, a pension, or can include medical psychiatric or occupational therapy aimed at rehabilitation.³⁸ In contrast, collective reparations can include, inter alia, the restitution of cultural or religious property, rebuilding destroyed or damaged infrastructure, development projects, as well as compensation in the form of services to the community.³⁹ For Chandra Sriram and Jemima García-Godos a way to avoid any limitations inherent to one of the reparation schemes is by combining individual and collective reparations, providing a variety of measures that can fulfil the needs and interests of victims and be also compatible with development orientated policies and programs.⁴⁰ However, as funding and commitment are notoriously shifty and unpredictable, this limits the ability of actors to provide effective reparations, turning the collective versus individual reparation debate into a choice.

If both collective and individual reparations have their respective merits, it is important to underscore the fact that individual measures are crucial, especially as human rights standards are generally expressed in individual terms, underscoring the value of each human being and their place as rights-holders. Individual compensation can "allow victims to have agency and choice by supplying the means for whatever part of the former life and projects remain possible and may allow for new ones."⁴¹ Individual reparations "avoid considering all victims together which risks minimizing the particular harm done or making the meaning of reparations vague."⁴² Luke Moffett adds to this concern, stating that "collectivizing victims' suffering runs the risk of reducing them to 'an amorphous set of passive, voiceless survivors.'"⁴³ Individual reparations bring an opportunity to redefine as victims those whose living standards were depreciated in the day to day rights violations that took place.⁴⁴ Due to limited resources, most actors would steer the conversation towards collective reparation schemes, a tendency which is usually contested by human rights advocates insistent on individual reparations.⁴⁵ Rather than spending scarce resources on individual [End Page 575] reparations, "successor regimes often focus on future-orientated development as the field for engagement in reparations as it is perceived to benefit larger social groups."⁴⁶ In this regard, Roht-Arriaza and Orlovsky argue that the connecting point between development and reparations is social exclusion.⁴⁷ In the case of reparations, exclusion can be redressed by reinforcing the consciousness of survivors as "rights holders." At the same time, they caution that the development-as-reparations approach, when focused on its collective iteration, can undermine this ability of reparations to function as an acknowledgment of wrongdoing.

Individual reparations come with their own share of issues as well and the aim of this article is not to completely obscure this aspect of the conversation. "Individual reparations require a precise identification of the persons entitled to them as a form of delivering concrete benefits to the individual recipient."⁴⁸ This turns the determination of beneficiaries into an exercise "beset with logistical, moral and political challenges."⁴⁹ For instance, "acknowledging individuals deserving redress can give rise to competition between victims" over the individual conditions of eligibility.⁵⁰ This has to do with how the definition of victim needs to be considered within a specific social context, as it is usually charged with contested historical, political, and moral meanings.⁵¹ Reparation schemes requiring definition of a determined number of potential beneficiaries can create "hierarchies of victimhood" where one victim is worth more than the other by being entitled to higher payments or benefits.⁵² Individual reparations can also lead to contestation: those compensated potentially objecting to reparations being incomplete, those not compensated may insist on how their suffering has been denied.⁵³ Those asked to provide compensation can object to an excessively broad definition of beneficiaries, others will object that individual reparations will come at the expense of public projects that potentially improve collective welfare.⁵⁴ Having said that, issues also arise with collective reparations, especially when the developmental responsibilities of governments are displaced by actors "stepping in" and providing collective reparations.⁵⁵

Furthermore, reparations also require connections with apologies, and a public acknowledgment of the perpetration of past violations. However, [End Page 576] apologies also generate controversy when disconnected from concrete measures at the individual or collective level.⁵⁶ In their symbolic dimension, reparations need to come directly from perpetrators and states, connected to apology and acknowledgment of victim harm. Symbolic reparations turn problematic when they are "not accompanied by more tangible benefits, being interpreted as empty words without any serious commitment to victims."⁵⁷ In this regard, symbolic reparations not only require complementation with material compensation but also with other transitional mechanisms. Reparations in absence of truth-telling and recognition are likely to be interpreted by victims as an effort to buy their acquiescence, or in the worst of cases the payment of blood money.⁵⁸ Reparations without retributive justice or accountability often fail to change the living circumstances of victims and without vetting and lustration, it is impossible for reparations on their own to contribute to rebuilding trust.⁵⁹

Academic discussions regarding reparations point towards a key factor determining how reparation policies operate: the importance of context and socioeconomic needs that underpin the demands from victims of human rights violations. The sociopolitical context of each country in transition plays a determining role in shaping the conceptual framework upon which a reparations program is based, turning reparations into a social process where the past is subject to reinterpretation.⁶⁰ As reparations are the most tangible expression of the addressing of harms endured by victims, they give the victims sociopolitical agency.⁶¹ This is evident in the fact that victim's reparative demands often focus on changing of state or other actor's behavior (in our case, the UN). Recognizing the influence of a country's context for establishing reparations turn them into "sites for political, economic, and legal contestation as to their commitment in dealing with the past and preventing future violence;" reparations carry a fundamental message about which individuals and harm are deemed worthy of recognition and remedy.⁶² Seeing reparations as a contested social process implies "identifying the social actors involved in contestation and negotiation of both the terms of engagement and the content or form of reparation programs."⁶³ [End Page 577]

III. WHAT DO THE HAITIANS WANT?

The UN Development Programme (UNDP) has been tasked with undertaking consultations with victims owing to their expertise on community-based approaches. However, there is a fear that consultations might raise expectations, especially in terms of individual reparations which are deemed difficult to achieve.⁶⁴ There is also a recognition that projects undertaken under Track 1 and 2 may well be the same projects, the difference being that Track 2 has a "symbolic aspect."⁶⁵ In order to know what victims thought about reparations and their preference for specific scheme, we followed Haitian lawyers from BAI on the field. The data was gathered between 14–16 March 2017 in rural localities around Mirebalais in the Artibonite region, where cholera first broke out and where some of the most affected communities are located. We have done three separate trips to the Mirebalais region: one in La Chapelle (Lachapèl), one in Saut-d'Eau (or Sodo), and one in Boucan-Carré (Boukan Karé). Different neighboring communities were represented in each of these meetings.⁶⁶

The sessions took place in communal buildings such as a church or a school, and all victims and their families were invited to attend. Each session began with a video screening of Ban Ki-Moon's apology to the cholera victims. It was the first time that most victims had seen the video or had heard the words spoken by the former UN Secretary-General. After being explained the meaning of this apology by the Haitian lawyers, victims were told that the most important and meaningful part of the apology was when Ban Ki-Moon acknowledged that "apologies do not cure diseases," which was a way to introduce the reparation issue by the Haitian lawyers. Large and small group discussions focused on what the different communities want from the UN. Individuals explained why they wanted to be consulted, and the types of remedies they are seeking from the United Nations. As researchers, we have listened and followed discussions regarding the establishment of these groups of victims, without intervening in the process. We have opted to hold one focus group at the end of each day, to discuss the issues related to reparations without interfering too much with the work of the lawyers we were following. The focus groups were conducted in Creole (unless specific participants wanted to express opinions in French), and were translated in French or English by one lawyer from the Institute for Justice and Democracy in Haiti accompanying us on this trip. Our conclusions are [End Page 578] drawn from these focus groups, and can be grouped around three distinct themes: the benefit of consultations; the issues with collective remedies; and the benefits of individual remedies.

IV. ARE INDIVIDUAL REPARATIONS REALISTIC? INSIGHTS FROM THE CASH TRANSFER LITERATURE

Despite the overwhelming preference for individual reparations as expressed by victims, the UN has made a unilateral decision to foreclose compensation in favor of community projects. The UN has established platforms to "support the project in the communities, serving as an interface between the project itself and the targeted areas"⁶⁹ in the Cap-Haitien area. Hence, the only material assistance offered by the UN to date is twenty projects in four communes around Cap-Haïtien, and five $150,000 infrastructure projects around Mirebalais.⁷⁰ As previously mentioned, the UN Special rapporteurs pointed out that "some victims prefer monetary payments, an option that was once on the table, but the UN has foreclosed that possibility seemingly without carrying out consultations or producing a detailed feasibility assessment."⁷¹ While "compensation is ordinarily a central component of the right to an effective remedy, and development projects are simply not a replacement for reparations."⁷² When we interviewed MINUSTAH staff in 2017, we could sense that there was a lot of anxiety over opening up the option of compensations to victims, with reservations about the logistics, the potentially spiraling cost of such a program, as well as the actual efficiency of compensations in achieving development objectives on the ground. This section does not aim to answer all these questions—which could be subject to an additional article—but rather aims to bring into the conversation the growing literature on cash transfer programs in development studies, especially seeing how the UN has opted to go with traditional development projects.

Over the past twenty-five years a "'quiet revolution' has seen governments in the developing world invest in increasingly large-scale cash transfer programs."⁷³ There are roughly 130 low- and middle-income countries that have at least one non-contributory unconditional cash transfer (UCT) programs in place, with even more conditional cash transfer programs operating [End Page 582] in parallel.⁷⁴ First and foremost, while cash transfers are not a panacea for development, it empowers individual recipients as decisionmakers, promoting a "rights-based approach to development."⁷⁵ Cash transfers are particularly appropriate in situations where it is either physically difficult to reach the poorest and those in need (such as in the aftermath of disasters or conflicts), or because the state infrastructure is simply excluding the poorest from its reach, as this is certainly the case in Haiti. Cash transfers are "transformative," increasing individuals' sense of self-worth, dignity, and assertiveness.⁷⁶ It was also noted that "unconditional cash transfers have significant impacts on economic outcomes and psychological well-being."⁷⁷

Chris Blattman has demonstrated that

cash grants to the poor are as good as or better than many traditional forms of aid when it comes to reducing poverty. Study after study has shown that recipients of cash grants invest the money or spend it on such basic items as food and better shelter. Poor people don't always make the best choices with their money, of course, but fears that they consistently waste it are simply not borne out in the available data.⁷⁸

Actually, a systematic review of all the evidence on the effects of cash transfers on individuals and households over fifteen years, from 2000 to 2015 (including 201 studies) reflects "how powerful a policy instrument cash transfers can be, and highlights the range of potential benefits for beneficiaries."⁷⁹

Amongst the main worries about cash transfer programs, some point that price effects are feared.⁸⁰ There are also traditional paternalistic arguments [End Page 583] at play,⁸¹ with some actors doubting that poor people can make reasonable and well-informed choices. The systemic review of the cash transfer literature demonstrates that the evidence does not support these concerns and that "for studies reporting statistically significant results, the vast majority are in the direction policy-makers intend to achieve."⁸² As previously mentioned, cash transfer programs are not necessarily a panacea, but any discussion of their limitations should happen in conjunction with a discussion of the limitations of 'traditional' development project as well.⁸³

V. CONCLUSION

The New UN Plan for Haiti includes both a commitment to consult with victims, and a preference for collective reparations, even if in principle all options are open. In our meetings, the victims clearly expressed the willingness to meet with and talk to UN officials, but also expressed a strong preference for individual reparations. For many individuals, collective projects are not always followed through (by international NGOs or by the government), and these projects also tend to favor those who are already in position to benefit from them, including through the staffing of the projects once completed. Hence, the perception is that these projects will exclude those who are not in position to benefit from these projects, including the most vulnerable segment of the population and the population living in the countryside. Finally, collective projects do not target specifically those who have been affected by the illness, and who are currently struggling to make ends meet. Individual reparations, in contrast, enable to target specific individuals and families who have suffered and continue to suffer emotionally and economically from the consequences of the illness.

Most of the participants also emphasized the need to move quickly, a call which does not seem to be heeded by the UN and other international donors so far. For one participant, "what is important is that the UN moves fast because our situation is so bad. Lots of girls cannot go to school because we had to sell land and livestock and get into debt to pay for cholera. We can't earn properly since then." For another participant, "there are still a lot of health problems (. . .) it needs to happen quickly. The UN should act quickly." The current instability, compounded by the impacts of the corona-virus pandemic, makes the situation of the poorest segments of the Haitian [End Page 584] population all the more precarious. However, calls for urgent action seem to have fallen on deaf ears, as more than four years have passed since Ban Ki-Moon's apology and only meagre resources have been mobilized to help the victims.

When trying to make sense of the UN discrepancy between words and actions, one has to take into consideration the fact that a Haitian life seems to be worth less than a life in most Western countries. For the UN Special Rapporteur Philip Alston, the only way to understand the United Nations "reprehensible conduct" in Haiti is to accept that "an element of racism is involved here," with Haiti being considered a country "which has largely been written off."⁸⁴ If a previous report by Alston helped push the UN and its Secretary General at the time to change its stance on the issue, we hope the recent letter by the fourteen UN mandate-holders might also push the UN to do what is right for the Haitian victims. [End Page 585]