What should the UN do about cholera in Haiti?
I highlighted the recent disagreement over whether the UN can and should claim responsibility for the cholera outbreak in Haiti. The evidence of their fault is overwhelming and there is no real disagreement over that fact. It is also generally agreed that the UN should take the lead in the recovery and rebuilding work related to the outbreak. They caused it, so they have to fix it. The consensus comes apart slightly over the area of paying victims. The article on Monday was meant to highlight some of the dissenting opinions and arguments.
That elicited an email exchange with Brian Concannon, the Director of the Institute for Justice & Democracy in Haiti (IJDH). His firm is trying to bring forward a lawsuit against the UN on behalf of some of the victims. IJDH is calling on the UN to 1) Accept guilt and apologize to the victims; 2) Pay damages to the victims; 3) Do everything in its power to support the building of water and sanitation infrastructure that will prevent future cholera outbreaks.
Concannon said that the UN can be held responsible without damaging its work in other countries or overall mission. Here is his explanation and points that refute the blog post from Victoria Fan and article by Juliette Kayyam.
First, there is no question that, as a general rule the UN is responsible for harms it causes during its peacekeeping missions. That is absolutely clear on the books, and in practice- the UN has been compensating people harmed by peacekeeping for decades. So the UN responding to our claim within its system would not imperil its immunity as Kayyem avers. The UN responds fairly to claims every day without sacrificing immunity. The UN is imperiling its immunity by not responding fairly in our case, because that leaves us no option but to go to a national court, where a judge outraged by the UN’s outrageous behavior might chip away at the immunity.
The UN did not justify its denial on the basis of immunity, but policy. It said considering claims would involve a consideration of its policies, which is not allowed. This follows a common, and reasonable, distinction between “private law” claims like car accidents and “policy challenges”- governments typically allow suits on the former, deny them on the latter. If I get hit by a Post Office truck with faulty brakes tomorrow, I can sue the government. If I am injured by the cessation of Saturday mail delivery, I cannot sue for my damages, because that is a policy, which the government doesn’t allow to be challenged in its courts. The UN says that our suit is more like a policy case than a mistake case, which raises two concerns. First, is pumping untreated sewage into a river really a policy, not a mistake? Second, the “policy” rule is an exception to the general requirement of compensation, and the UN’s characterization of its dumping sewage as policy ensures that the exception will swallow the rule. Under this radically broad interpretation, a car accident is a policy because it requires consideration of the UN’s policies on maintaining vehicles.
Victoria Fan’s argument that Haiti had problems before has no legal or moral merit, because the UN knew all those vulnerabilities when it made the decision to pipe the sewage into the river. Let’s say I ride my bike through the Common on a day when many elderly people are about. I decide to fast, ringing my bell, and hit several people. Can I say that they would have heard my bell better or gotten out of the way faster, or had fewer broken bones if they were not as vulnerable?
It is fair to say that responding fairly to Haitian cholera victims would require cuts elsewhere. I would suggest a source close by- cutting the peacekeeping mission in half would generate enough to finance a year of infrastructure building. But even if it were to affect other peacekeeping missions, shouldn’t we think about who should bear the cost of harm of missions? In this case, it is the people least morally responsible and least economically able to bear the cost.
Concannon continued in a second email…
[T]hroughout the whole course of the debate on cholera, the UN’s best strategy has been to find people who trust it to come to its defense without knowing the facts. Their bridges with the journalists get burned when the journalist looks into the facts, but then the UN finds new people to deceive. This was striking in the response to the UN’s denial, where everyone who had followed the case, and several people new to it who looked into the issues, all reported in a balanced way. Juliette Kayyam, who didn’t try to contact us, and apparently didn’t read the treaty section she used as the basis of her article (she called it an article, not a section) accepted the UN’s word for it. It isn’t a surprise that a busy columnist didn’t have time to track down everything, but that kind of work should not have equal billing with the more serious and experienced treatments.
As Jonathan Katz keeps saying, at the beginning of the outbreak all the journalists were giving the UN the benefit of the doubt on the causation. It took over a year of pounding on the facts, by a few journalists, some scientists and us, to get people to look seriously enough to see how weak, and disingenuous, the UN’s case was. Last summer when they got that crazy Maryland study out, the people who had been following cholera were suspicious enough to ignore it. But they suckered NPR in, so the story got a lot of credibility. Now they get new people to report that: 1) our case is just about compensation, when it is even more about infrastructure, 2) this case is defending the principle of immunity when it wasn’t, and 3) the UN is really doing something concrete to provide infrastructure when they have not.
There are certainly legitimate issues for debate regarding our claim, and I encourage debate on them, but it is important to stick to established facts.
