A new Haitian cholera vaccination program. Image by UN/MINUSTAH/Logan Abassi

In this post, we’re trying something attempted once before at Just Security. Below, we present an almost line-by-line annotation of last night’s New York Times story on UN acceptance of moral—but not legal—responsibility for UN peacekeepers having caused a cholera epidemic in Haiti. This issue transcends Haiti and issues of public health—it goes to the heart of UN legal responsibility for wrongful actions by peacekeepers across a range of situations now and in the future. And the story involves a potentially controversial position adopted by the US administration in this ordeal.

We fully understand that reporters are under pressure to communicate complicated ideas to a wide audience, and often under tight deadlines and subject to editorial control. With this in mind, the following is intended to identify legal implications of the news being reported, the significance of some of the revelations, and paths for further investigative reporting. (And, yes, we hope to make more of a habit of publishing these types of dissections of media reporting on national security issues.)

Also, full disclosure: Philip Alston and one of us (Ryan) are faculty directors and co-chairs of NYU Law School’s Center for Human Rights and Global Justice, where Just Security is also housed. That said, Just Security is editorially independent from the Center.

U.N. Plans to Pay Victims of Cholera Outbreak It Caused in Haiti[1]
by Somini Sengupta and Jonathan M. Katz
New York Times

[1] Yes, headlines need to be short and to the point, but this title leaves the reader with an overly positive impression, and ignores that the UN’s action is being taken on the back of a failure to admit any legal responsibility. The headline also doesn’t capture the implication for peacekeeping more generally. An example of a more accurate title might be something like: “U.N. Plans to Pay Victims of Cholera Outbreak It Caused in Haiti—But Won’t Admit Legal Fault of Peacekeepers.”   

UNITED NATIONS — Ever since United Nations peacekeepers introduced a devastating cholera epidemic to Haiti in 2010, Secretary General Ban Ki-moon has insisted that the global body is immune from legal claims[2]. In the past few months, he has acknowledged a “moral responsibility” for the epidemic[3], but he has stopped short of saying sorry[4].

[2] Immunity is not what’s in question in today’s news. Instead, it’s a dispute over whether the UN should acknowledge legal responsibility (different from immunity) for causing the cholera outbreak. This dispute is most clearly expressed in the disagreement between the UN Special Rapporteur Philip Alston and other UN officials. But both Alston and the UN seem to agree that the UN enjoys complete immunity and thus could not be sued in national courts. Framing the story as though the Secretary-General is insisting on immunity—against some (unstated) critics—also amplifies the most egregious mistake in the NYT story (see #11 below).

[3] This is factually inaccurate in a significant respect. The Secretary-General expressed “a moral responsibility to help the Haitian people stem the further spread of this cholera epidemic.” That is very different than acknowledging a moral responsibility for the epidemic.

[4] It would be legally more accurate to use a term like “apologize” instead of “sorry.” Indeed, the NYT story becomes unnecessarily confusing when it reports below that the UN Secretary-General has already expressed “deep regret.” Many readers will be left to wonder what the difference really is between “deep regret” and “sorry.” There may actually be no difference between saying “sorry” and expressing “regret.” Neither are key terms of art in international legal practice, and might even be interchangeable. Saying sorry is not necessarily  significant in legal terms. For example, an official can express “sorrow” (and words like, “I am sorry”) for harm caused by a third-party. The important question that close observers want to know is whether the Secretary-General will “apologize” for the UN actions. If he does, it could go a long way to indicating, or implicating, acceptance of legal responsibility.

Now, with barely two months left in his term, Mr. Ban’s administration is scrambling to compensate[5], for the first time, those who have suffered, with a plan to give them or their communities cash payments from a proposed $400 million cholera response package. He also wants to make good on an unfulfilled promise to eradicate cholera from Haiti as the disease continues to claim lives.

[5] The use of the term “compensate” is problematic in this sentence and gets to the very heart of the matter. The Secretary-General’s administration currently will not use the word “compensate” or “compensation”—indeed, that is part of the disagreement (as the NYT acknowledges nine paragraphs later). The term “compensation” (like the term “reparation”) is associated with a remedy for a legal wrongdoing. Indeed, Alston’s letter to the UN Deputy Secretary-General, which the NYT published alongside its story, discusses in some detail use of the term “compensation.” The Secretary-General would instead likely refer to the funds as “condolence” payments or “assistance.” Ironically, in contrast with the NYT statement that “Mr. Ban’s administration is scrambling to compensate” the victims, a more precise statement is: Mr. Ban’s administration is scrambling to suggest it is not “compensating” the victims.     

But the United Nations does not have the money it needs for the proposed package, and is facing criticism that it is still avoiding legal culpability[6] for one of the worst calamities to ever befall Haiti, the Western Hemisphere’s poorest country.

[6] Finally, this is the key to the dispute at the UN.

Roughly 9,500 Haitians have died from cholera — some researchers say the toll could be far greater — and hundreds of thousands have been sickened. The disease has surged in the aftermath of Hurricane Matthew.

The proposed package follows the first acknowledgment by the United Nations, in August, that it played a role in the initial outbreak of the disease, in October 2010.

The acknowledgment was made after a scathing report by an independent United Nations human rights adviser[7], Philip Alston, denouncing what he called the organization’s years of silence and denial, was leaked and published in The New York Times. The admission also came just before a federal appeals court in New York upheld the immunity of the United Nations from prosecution under a longstanding diplomatic treaty.

[7] The term “adviser” may mislead many readers, as it sounds informal and without significant institutional capacities. Alston is a Special Rapporteur appointed by the UN. As the UN website explains, “Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council,” and they are empowered to monitor and issue reports critical of UN member States’ human rights practices, and also to engage in fact-finding missions with the consent of a host State.

The basic details of the proposed package are still under discussion. It requires of the United Nations a delicate diplomatic balance — weighing considerations of donors who will pay for it, and of victims who have been demanding justice.

The official rollout of the package, expected in the coming weeks, is designed in part to repair the damage that cholera has done to the reputation of the United Nations, which regularly presses governments around the world to pursue accountability, and to help Mr. Ban’s legacy in particular.

“We want to do this because we think it’s the right thing to do for the Haitian people, but frankly speaking, it’s the right thing to do for the United Nations[8],” Jan Eliasson, the United Nations deputy secretary general, said in a telephone interview.

[8] The reader would be better served with a more critical analysis of this statement. Mr. Eliasson is purporting to have lived up to doing “the right thing” for Haiti and for the UN—when the definition of the right thing is the very issue in dispute. Indeed, it would be useful to compare Eliasson’s statement with the statements of the government of Haiti at the United Nations on Tuesday following the NYT story. (The Haitian government’s representative called on the UN to accept legal responsibility.)

Whether the proposed package will satisfy Haitian victims and their families who have unsuccessfully sought to sue the United Nations in the United States remains unclear. Lawyers for the victims have not yet decided whether to pursue further appeals, including to the United States Supreme Court[9].

[9] It would help to have connected this statement more directly to the the specific court case in the Second Circuit. One of the recurrent problems in the story is that it appears to conflate all “legal claims” with lawsuits or access to courts. There are two types of legal claims at issue—and the heart of the dispute is about the difference between the two. One kind of legal claim involves potential lawsuits and judicially imposed remedies–all before courts.  The other is the assertion that the UN should admit legal responsibility and provide for a “settlement” of the dispute as required by Section 29 of the Convention on Privileges and Immunities of the United Nations. Alston argues that the UN could admit legal responsibility without opening itself up to lawsuits because of the immunities enjoyed by the UN. Admitting legal responsibility would set a precedent for how the UN responds to similar acts of wrongdoing in the future, which, for Alston, is one of the strongest reasons why the UN should adopt this legal position. Others however might see this effect on future actions–even though confined only to Section 29 dispute settlement under the control of the UN–as the reason to avoid this legal conclusion.  

About $200 million of the package is meant for what United Nations officials call “material assistance” to families and communities that were most affected. (The other $200 million would help pay for cholera eradication and improved sanitation.) The officials avoid the term “compensation” partly over fear among donors that it could set a precedent.

Diplomatic officials of the United States, the biggest funder of the United Nations, have said nothing publicly about the “material assistance” part of the package, nor whether the American government would help pay[10].

[10] Alston has raised much more significant allegations about the U.S. position. He suggests (and here and here) the United States is behind the effort to deny any legal responsibility. And he suggests that the Obama administration has been careful to avoid providing its legal position in response to congressional inquiries. The US role in influencing the UN’s position could be one area for future investigative reporting.    

Also unclear is whether Mr. Ban will issue an apology — going beyond his expression of “deep regret” over the cholera outbreak. That too comes with concerns attached: Will saying sorry open the United Nations to further legal claims?

The plan is expected to come under scrutiny on Tuesday when Mr. Alston, a New York University law professor who serves as one of the United Nations’ many independent experts on human rights issues, speaks before a committee of the United Nations General Assembly.

Mr. Alston has already criticized the package, saying that one-time payments do not let victims have their day in court[11].

[11] This comes close to being the opposite of what Alston actually states as his position. His letter is explicit that he agrees that the United Nations rightfully retains “absolute legal immunity from suit in national courts.” His point is that the UN can admit legal responsibility without having to worry about victims having their day in court. Of course, UN lawyers might contest that position. For example, they may worry that admitting responsibility in a case like this puts the payment out of the zone of discretion and raises legal risks for the UN. Regardless of who is correct in that regard, it is important to frame their positions accurately. If Alston were calling for victims’ having their day in court, his position would be far outside the legal mainstream on the issue of immunity. That’s how the NYT seems to paint it, however–we assume unwittingly.   

“It will be a travesty of justice if, having moved so far in such a short time, the United Nations finds itself at the last moment unable to accept the principle of accountability, the avoidance of which has motivated the long years of total denial, and if it is similarly unable to embrace the principle of respect for the rights of victims to compensation as opposed to charitable payments,” he wrote to Mr. Eliasson on Oct. 5.

Payments made without addressing the organization’s legal responsibility, Mr. Alston said, would only perpetuate the “veil of silence” that has surrounded United Nations policy on the issue.

Mr. Eliasson, for his part, diplomatically disagreed, saying in a letter responding to Mr. Alston that it was incorrect “to see our approach as an act of charity.”

He reinforced that view in a telephone interview, saying it was important for the United Nations to assert “a strong legal position with compassion and solidarity[12].”

[12] This is good spin. Understood in its proper context, Eliasson’s statement conveys that the UN must express a categorical denial on the law but with empathy.  The NYT reproduces the spin, without sufficient scrutiny to inform its readers.

“What can we do to put things as right as possible for the Haitian people and the United Nations?” he said. “I tell you, a lot of people have felt ill at ease about this for a long time.”

United States government lawyers represented the United Nations in the federal court case affirming its legal immunity, and judges have cited the Obama administration’s interpretation of the diplomatic immunity convention as a major influence on their decisions.

A State Department spokesman, Drew Bailey, said the department “has no comment on this issue due to ongoing litigation.”

After the appeals court’s decision, 158 members of Congress wrote to the administration asking it to press the United Nations to “provide cholera victims with access to an effective remedy.”

The letter did not define precisely what that remedy should be, but said a failure to act could be perceived as a limited American commitment to an accountable and credible U.N.[13]”

[13] This rendition of the congressional letter makes it look rather weak. It also misses the key element: The letter’s opening paragraph urges the administration to ensure that the UN admits its legal responsibility, not just a moral one. The congressional representatives thus oppose the position of the UN Secretary-General, and perhaps of the U.S. government. In particular, the letter urges the administration to have the UN “comply with its legal and moral obligations to provide cholera victims with access to an effective remedy.” It also expressly supports UN Special Rapporteurs’ call for an independent mechanism “to ensure adequate reparation.” What is more, it is fairly unremarkable that the letter “did not define precisely what the remedy should be.” Congress would be wise not to presuppose the remedy, and leave that specific question for the settlement procedures. Finally, the NYT conspicuously does not cite another significant letter (which is referenced prominently in the Alston letter that the NYT made available). That letter–by Senators Leahy, Markey, Menendez, and Rubio–asks the UN Secretary-General to issue a “public apology,” to “compensate” current and former “victims,” and to do so “consistent with the requirements for the settlement of disputes of a private law nature enshrined in Section 29 of Article VIII of the Convention on Privileges and Immunities of the United Nations.”

Cholera, an infectious and potentially fatal disease spread via contaminated drinking water, had never been present in Haiti until United Nations peacekeepers on assignment from Nepal, where cholera is common, disposed infected waste into a river. The disease spread ferociously in a nation still traumatized by a devastating earthquake that had already wreaked havoc on water and sanitation systems.

“Cholera is now endemic to Haiti,” said Louise Ivers, the senior health policy adviser at Partners in Health, a medical aid group that has worked in Haiti for years. “If there had been massive influx of resources in the first year, the first two years, the first three years, it certainly would have been a lot easier to address.”

There had been widespread expectations that Mr. Ban would make a statement about the United Nations’ responsibility for the cholera crisis in his recent trip to Haiti in the aftermath of Hurricane Matthew. Instead he spoke more generally about the organization’s cholera eradication plan, which is grossly underfunded.

Dr. David Nabarro, the British physician appointed by Mr. Ban to lead the anti-cholera effort, said in a telephone interview that in his discussions with governments around the world, “there is a relief on their part that we are approaching this in a much more comprehensive way.”

Dr. Nabarro said the $200 million for payouts could be money for families of the dead — it would amount to roughly $21,000 for each of the estimated victims. Or it could be spent on helping the hardest-hit communities, with benefits such as scholarships or health insurance.

In the end, said Dr. Nabarro, who is one of six candidates vying to be the next head of the World Health Organization, it will depend on what donor nations are willing to pay for.

“Most people recognize this is something the United Nations has to deal with. It’s an unfinished story,” he said. “That doesn’t obviously translate immediately into money.”