By Somini Sengupta & Jonathan M. Katz, New York Times, Oct. 24, 2016
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. In the past few months, he has acknowledged a “moral responsibility” for the epidemic, but he has stopped short of saying sorry.
Now, with barely two months left in his term, Mr. Ban’s administration is scrambling to compensate, 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.
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 for one of the worst calamities to ever befall Haiti, the Western Hemisphere’s poorest country.
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, 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.
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,” Jan Eliasson, the United Nations deputy secretary general, said in a telephone interview.
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.
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.
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.
“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.”
“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 ofCongress 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.”
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.”
Somini Sengupta reported from the United Nations, and Jonathan M. Katz from Wilmington, N.C. Rick Gladstone contributed reporting from New York.
Posted Oct. 31, 2016