Injustice in a Time of Cholera

Non-receivable is the legal term United Nations officials use to dismiss a growing number of lawsuits, as claimants increasingly turn to American courts and pressure Turtle Bay to admit its role in introducing cholera to Haiti and compensate the thousands of victims. But legal eagles believe they have now found a chink in the U.N.'s blanket immunity claim.

Speak to Turtle Bay officials, diplomats and law experts about the newest legal cases against the U.N. and you will hear unease about the refusal of Secretary-General Ban Ki-moon's inner circle to acknowledge that as blue helmets came to help Haiti in early 2010 in the aftermath a devastating earthquake, they brought with them a new plague to an impoverished country that has suffered more than its share of natural and man-made disasters—but not cholera.

At least 9,000 men, women and children have died and 700,000 became sick from the disease, which thrives in the type of bad sanitary conditions that exist in Haiti. Cholera had not been seen there for 160 years before the 2010 outbreak.

Several independent reports determined that Nepalese troops introduced the cholera strain when they came to Haiti to beef up the U.N. Stabilization Mission in Haiti (MINUSTAH) after the deadly earthquake on January 10, 2010. The bacteria quickly spread through Haiti's largest river and became an epidemic.

The U.N. conducted at least two investigations as well, but only one was published. A report prepared by the U.N. peacekeeping department of field support (DFS) was never published and has not been reported on.

That "technical" report was submitted to Ban by the head of DFS at the time, Undersecretary-General Susana Malcora, as part of "standard practices," U.N. officials now acknowledge. But since the Malcora report was an "internal" document (its author is now Ban's chief of staff), it was never seen by the public.

Instead, the U.N. published a separate report, in which its medical experts found no "conclusive scientific evidence linking the outbreak" to the peacekeepers. That report concluded that "anyone carrying the relevant strain of the disease in the area could have introduced the bacteria into the river."

Regardless, when asked about three lawsuits that are pending against the U.N.—the latest was filed in U.S. District Court in Brooklyn, New York, on behalf of 1,500 Haitians on March 11—Turtle Bay officials say they will not address issues that are before the courts. The U.N. legal department claims immunity from lawsuits under various treaties, including the convention that established the world body.

Several sources, though, have described internal disagreements among members of Ban's inner circle, with some arguing for settling the cases, compensating victims and allocating added funds to improve Haiti's sanitation. In these internal debates, I'm told, the "slippery slope side" always wins.

"They're concerned that if, as an institution, they concede on Haiti, the U.N. will open its staff around the world—peacekeepers, aid workers, you name it—to endless lawsuits," said a diplomat who closely follows international legal issues. "But at one point they'll have no choice, because this is too much, what happened in Haiti. People will keep coming back to it."

The U.N. and its affiliated bodies are protected against damage claims and other lawsuits by various international treaties that are meant to ensure international workers' ability to operate globally without constant legal badgering from the people they are meant to help.

In several past cases, the U.N. waived immunity when some of its officials were accused of corruption and criminal wrongdoing. Those officials were tried in American courts, where some were convicted and sentenced to time in U.S. jails, even though they were not citizens of the country. But the U.N. has never been successfully sued as a body.

Washington sides with the claims of immunity. In early March, the U.S. Department of Justice filed with the federal court a "statement of interest" asserting that under the host country agreement that brought the world body headquarters to Turtle Bay, and according to other treaties, the U.N. enjoys immunity from suits in American courts.

"The United States has legally binding treaty obligations that require it to afford the U.N. immunity from suits and also provide immunity for U.N. officials. That's why it was important to file the brief," explained State Department spokeswoman Jen Psaki.

But lawyers in the Brooklyn case believe they may have found a way to bypass the blanket immunities and force the U.N. to defend itself in court. They are suing the U.N., Ban, the top U.N. representative in Haiti at the time of the cholera outbreak and several other Turtle Bay officials. I asked one of the lawyers, Stanley Alpert of the law firm Schlam, Stone & Dolan (who is a former chief assistant U.S. attorney in the Brooklyn Eastern District court), about the Justice Department's brief.

"This is a stock letter that they pull out of the shelf. When I was with the DOJ, we used to file such briefs automatically, without even looking at the case," Alpert said. But the Haiti case is different, he argues, "because the U.N. specifically agreed to waive its immunity."

The lawsuit cites four cases in which, it claims, the U.N. waived its immunity in the lead-up to deploying troops in Haiti, including the 2004 status of force agreement (SOFA) that it signed with the Haitian government in Port-au-Prince when it originally deployed MINUSTAH.

One paragraph in the SOFA, according to the suit, clearly states that "third-party claims for...personal injury, illness or death arising from or directly attributed to [the Agreement] shall be settled by the United Nations...and the United Nations shall pay compensation." That agreement "supersedes the convention," Alpert says, and therefore "some court on earth ought to be able to rule" in Haiti's cholera devastation.

"You know why they can get away with business as usual here? Because the victims are Haitians. They're poor, so they supposedly ought to be appreciative of what we do for them," Alpert says. "Our clients are not looking for U.S.-size compensations," he adds. "No one's looking for a windfall. They support the U.N. and what it does in Haiti. But the first rule is do no harm."

Like the two other lawsuits, the Brooklyn claimants don't specify the size of damages they seek. Instead, the suit seeks to force the U.N. to comply with terms of its agreement with the Haitian government, including waiving immunity, compensating the victims and enacting "sanitation and clean water measures" to prevent a continuance of the cholera epidemic.

The U.N. "continues to be committed to do all that it can to help the people of Haiti overcome the cholera epidemic," says Ban's spokesman, Stephane Dujarric, adding that it is "working on the ground with the government and people of Haiti both, to provide immediate and practical assistance to those affected. We have stepped up our efforts to support Haitian institutions in their cholera response."

But U.N. officials acknowledge that their own 10-year, $2.2 billion plan to monitor the epidemic, promote health, treat the sick and improve water and sanitation is falling short. Of the $448 million allocated for the plan's first two years, only 40 percent has been "mobilized" to date. The U.N. blames donors, who have failed to produce the necessary funds. Which is why lawsuits are needed, say the critics who hope the courts will force the U.N. and its members to do better.

Follow Benny Avni on Twitter: @bennyavni