Legal Liability and Humanitarianism: A Game Changing Idea?

The ultimate goal of humanitarian assistance is to alleviate suffering in situations of disaster or conflict. Haiti has suffered through internal conflicts and natural disasters and has therefore been the recipient of much humanitarian aid. Following the 2010 earthquake, for instance, billions of dollars of aid was spent on disaster relief in Haiti (the New York Times reports that, by December 2012, $7.5 billion had been promised to Haiti for humanitarian aid and general reconstruction purposes).

The delivery of Haitian quake relief aid has been criticized on multiple levels. Most of the arguments center on the theme of inefficient delivery. One argument, however, stands apart: over a thousand Haitians are demanding compensation from the UN for harms that befell them due to problems with the delivery of UN assistance. More specifically, these claimants (convincingly) allege that UN peacekeepers from Nepal triggered a cholera epidemic in post-quake Haiti. The Nepalese troops introduced the disease to the water supply as the result of poor sewage management at their base.

Fundamentally, these Haitians and their lawyers are demanding that the UN be held liable for the humanitarian services it provided. This demand breaks with a long-standing tradition that holds humanitarians above reproach and beyond the reach of the law.

Humanitarianism and humanitarian assistance have existed in one incarnation or anther for at least a century. For most of that period, humanitarian activities were shrouded from criticism by the undeniable nobility of its fundamental goal. Over the last 20 years, however, policy-makers and academics have recognized that humanitarian actions can lead to undesirable and unintended consequences. This has led to calls for accountability: demands for humanitarians to evaluate the actual and potential outcomes, good or bad, of their actions.

To date, however, humanitarian accountability has largely been an academic discussion limited to the pages of journal articles and books. These sources recognize that accountability in the humanitarian sphere is necessary. The most oft-repeated point is that humanitarians must “do no harm” but that is where the advice ends.

In summary, the literature is calling for greater assessment and evaluation in the humanitarian sphere. In contrast, the Haitian litigants are calling for humanitarians to be held legally liable for their actions.

What would being held legally liable mean for humanitarians and humanitarianism? While a strong case can be made that accountability in the humanitarian sphere can improve the delivery of assistance I don’t think the same can be said for liability. Providing humanitarian assistance is expensive and dangerous under even the best circumstances. If humanitarians and humanitarian organizations are liable for their actions their costs and risk increase dramatically. That said, I think it’s fair to question whether liability and humanitarianism can coexist. Will increased cost and risk force humanitarian actors out of the market? As someone with a great deal of respect for humanitarianism and the principle that no individual or organization should be above the law, I’m troubled by this thought.

Fortunately, at this point, unpacking the effect of liability on humanitarianism is only an academic exercise. Ban Ki-moon announced last Thursday that the UN will not compensate the victims of the cholera epidemic since UN lawyers have deemed the claim “non receivable” due to diplomatic immunity. Yet, despite the lack of a real-world scenario forcing the exploration of the interaction of liability and humanitarianism, I argue that it is still an issue worth examining since the Haitian claim highlights that this interaction will likely not remain a moot point for long.

Stephanie Soiffer

Ph.D. Candidate

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