Clearing Up Some Confusion on UN Immunity and the Haitian Cholera Claims

A number of news outlets are reporting that the UN has “invoked immunity” in response to claims for compensation from Haitian victims of a cholera epidemic that was probably introduced by Nepalese members of the MINUSTAH peacekeeping mission.

That’s not quite what happened.

The UN didn’t invoke its immunity, because it didn’t have to. The claims for compensation were not an effort to file suit in the courts of Haiti, or any other nation from whose jurisdiction the UN is immune. Rather, they were an attempt by NGOs representing Haitian victims, recognizing the UN’s immunity to lawsuits, to file a claim with the UN itself.

Let’s start from the top:

The UN has immunity from legal process under the 1946 Convention on the Privileges and Immunities of the United Nations. This means that UN officials and “experts on mission for the United Nations” (which is how peacekeepers are classified) are protected from any legal claims or charges arising out of actions performed in their official capacity.**

However, Article 29 of that Convention provides an avenue for the resolution of some disputes that courts cannot reach because of the UN’s immunity. It states that: “The United Nations shall make provisions for appropriate modes of settlement of disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party.”

In keeping with this obligation, MINUSTAH’s Status of Forces agreement with the Haitian government provided for the establishment of a three person “standing claims commission” to hear civil claims arising out of actions of MINUSTAH, or its members, outside of the Haitian courts’ jurisdiction. This never happened. (And in fact, it appears that the creation of such a commission has never happened anywhere.)

Due to the nonexistence of the standing claims commission, the victims submitted their petition to MINUSTAH’s claims unit and directly to UN HQ. The UN Office of Legal Affairs took fifteen months to review it, and responded by letter yesterday. Its position is that the cholera claims are not the sort of “dispute[] of a private law character” envisioned by Art. 29 of the Convention, but rather involve questions of public law and policy. Well worth the wait, huh?

As Kristen Boon points out over at Opinio Juris: “The upshot of this communication is that the claimants have no venue to pursue their case.” There is no right of appeal for the UN’s denial of compensation, and any attempt to bring a case in Haitian courts (which victims representatives have signaled they will pursue) will be met with an immediate invocation of immunity. -In which case, we can all look forward to some recycled headlines.

 

**This isn’t relevant for the cholera claims, but the Status of Forces agreements that the UN signs with countries where peacekeeping operations deploy include additional language stating that military personnel “shall be subject to the exclusive jurisdiction of their respective participating States in respect of any criminal offences.” This means that even when peacekeepers commit crimes in no way related to their official duties (like, for instance, raping Congolese children), they can’t be prosecuted by the host country.

 

WTF Friday 1/13/11

I must have been asleep for the past few weeks because Angelina Jolie’s movie that I thought was about a woman falling in love with the man who raped her but seems to have a slightly different (though still pretty disconcerting) angle has come out to mixed reviews. Spoiler alert: “In the film, a Bosnian Muslim woman and a Serbian Christian man find their carefree date interrupted by the outbreak of the war. Cut to: a Serbian prison camp where Muslim women are held in sexual bondage. He is the jailor and she the captive. A relationship develops — ‘consensual’ is not the right word since Danijel’s offer to make Ajla ‘his’ mistress saves her from the systematic rape of his comrades…Ajla’s physical survival is connected to her ability to sexually please Danijel…His emotional survival is linked to Ajla’s perceived redeeming love for him.” Not exactly what I expected but still feeling pretty weird about it.

Yo are you forreal with this article? It’s not all bad but I’m definitely gonna need some bullet points for this one:

  • “Haiti: Miserable, but it photographs well”
  • “The West’s eternal basket case…”
  • “The Haitians outdid the stereotypical Israeli in pushing, shoving and trampling.”
  • “A few of them wanted very much to help me with my suitcase but when I aimed the camera at them, two of them pulled a finger across their throats in a gesture that seemed to need no translation.”
  • “Photographers say that the suffering and misery in these areas photographs wonderfully.”
  • “Poverty, ignorance, disease are rampant.”
  • “Life has a different value here.”
  • “The entire country looks like one big slum”
  • “It is impossible to leave this beautiful, sad country without attending a voodoo ceremony.”
  • “…a few young men and many old black women wearing colorful dresses and red ribbons in their hair, who looked as though they had been taken from a slavery history museum…”

On a brighter note, hat tip to the FT for the pun of the week. Congrats. I’m sure it means a lot to you guys.

In Which I Wade Further into the McClelland Morass, Demonstrating That I Have No Sense of Self-Preservation

Since Mac McClelland published the article on PTSD that I discussed in my previous post, writer Edwidge Danticat has come forward with troubling allegations that McClelland did not have permission from “Sybille,” the rape victim she mentions in the article, to tell her story.  In an article in Essence, Danticat writes:

In her essay, Ms. McClelland writes that K*’s trauma led in part to her own breakdown. Nevertheless, during Ms. McClelland’s ride along with K*, on a visit to a doctor, Ms. McClelland, as has been reported elsewhere,  live-tweeted K*’s horrific experiences. The tweets put K*’s life in danger because they identified the displacement  camp where K* was living–with details of landmarks added–her specific injury, her real name, and suggest that she is a drug user.

When K* found out about Ms. McClelland’s tweets, even before Ms. McClelland’s original Mother Jones article was published, K* wrote a letter to Ms. McClelland and Mother Jones magazine asking that Ms. McClelland not write about her. Her lawyer emailed the letter to them on November 2, 2010.

The full text of the letter in K*’s own handwriting is attached and is written in Haitian Creole.  It says:

You have no right to speak of my story.
You have no right to publish my story in the press
Because I did not give you authorization.
You have no right.  I did not speak to you.
You have said things you should not have said.
Thank you

Ms. McClelland has stated on this same twitter account that she had K*’s permission and K*’s mother’s permission to ride along with them, but she certainly–according to K*’s lawyer, and the driver on the ride along, and K* herself–did not have K*’s permission to tweet personal and confidential information about her. And even  if Ms. McClelland in some way thought she had K*’s consent, the attached letter should have made it clear that it was withdrawn and that she had, as the letter states, “no right” to write about K* anymore, especially in ways that her previous tweets had made K*’s and her location easily identifiable.

Obviously, if true, this is a serious lapse of journalistic ethics.  Regular readers of this blog know that I have no patience for journalists who treat rape victims unethically in order to obtain a sensationalist narrative, and if Danticat’s allegations are true, then I’m deeply disappointed in Mac.

A few other thoughts:

I have had it up to here with people claiming to be “giving voice to the voiceless,” or that their own writing is allowing someone else to “speak.”   I get that it’s just a cliche, but it seems to me that the by “voiceless”, we mean “this person is too poor/foreign/black/underprivileged to speak for themselves.” And “giving voice” seems suspiciously similar to “graciously filtering the story through my own privilege so that the the elements I think are important will become palatable.”

I can’t help but think that having one’s story told by someone else – by me, Edwidge Danticat, Mac McClelland, or whoever – bears the same relationship to telling it yourself as a $50 Barneys giftcard does to a $50 bill. With the giftcard, you’re limited by the giver’s views on where you should shop.  So it might be better than nothing, but with cash, you can go wherever you want.  Given the confusion over who said what, and what permissions were given, I wish that we were getting “Sybille’s” version of events from her directly.

[Update: in response to to some confusion expressed in the comments, I want to clarify that I'm not accusing Mac of claiming to speak for the victim - it was actually Danticat's statement that she was "add[ing] another voice to the conversation” by speaking for the victim that prompted me to write this – rather, my frustration is with the way that society generally tends to elide statements made by individuals themselves and statements made by others on their behalf.  I wrote these paragraphs in the first-person plural because I count myself among those who speak for others, (in my case, as their lawyer), and hoped that it would be clear that I was frustrated with the general cultural trope, not casting stones at these specific writers.  That apparently wasn’t clear at all – apologies. /Update.]

(And, on a related note, I think that in general, I might prefer the style of reporting Mac does, which is “voicey” and includes herself and her own experiences in the narrative.  I understand that the convention is for reporters to be “neutral,” and not make themselves the story, but I’m not sure that anyone is ever really neutral.  I find it appealingly honest for reporters to take ownership of their opinions, rather than pretending that they’re objective truth.)

All that being said, if the victim asked Mac not to write about her any more, then I think that Mac should not have discussed her in the PTSD essay, even under a pseudonym.  For me, this is a somewhat closer question than it’s being made out to be, because it’s hard to draw a line between the victim’s experience of being assaulted, and Mac’s experience of riding with her that day in Haiti.  If circumstances were different, then I might feel more comfortable with what Mac wrote in the PTSD article, which was relatively brief and focused on how Mac experienced the day’s events, rather than the specifics of what had happened to the victim.  However, given that the victim apparently did not consent to the story in the first place, felt that the previous reporting had made her unsafe, and had specifically requested that Mac not write about her further, I don’t think Mac should have included the paragraph about “Sybille” in her PTSD essay.

(And this is old news, but for what it’s worth, Jina Moore pretty much sums up my feelings on the live-tweeting itself – at the time, it made me uncomfortable, even though I wasn’t aware of any of these consent problems.)

Finally, a question for my journalist friends: what do you make of the fact that Mac apparently asked her NGO intermediary for consent from the victim and her mother, and he assured her that they had consented?  Mac doesn’t speak Haitian Creole, and the other women don’t speak English, so it sounds like an intermediary was necessary.  I don’t like the idea that consent rules should be loosened for sources who don’t speak the same language as the reporters who write about them.  But if you must rely on third parties, how can you be sure that consent has been given, and given meaningfully?

WTF Friday 6/24/11

Thanks to Nathan Yaffe of the Haiti Justice Alliance for this submission about a foolish and harmful USAID agricultural program in Haiti. “Monsanto’s seeds are treated with extremely dangerous chemicals…Because of this, Monsanto and Chemonics have a moral responsibility to educate farmers about health precautions. Yet they not only failed to do so, they even distributed seeds in unmarked bags – thus endangering people and the environment without their knowledge.” Good looking out, a-holes.

Sarah Palin bailed on her planned Sudan trip with Franklin Graham. Here’s what Franklin had to say: “She would be a very good person to help draw attention to the plight of the Christians in South Sudan,” Graham told The Post. “We’ve got George Clooney, we’ve got some Hollywood-type people. I’m very grateful for what Mr. Clooney has done. But we need everybody we can find.” That is everybody you can find? Well apparently he only found Christians with a plight in South Sudan so maybe this guy needs some LASEK.

In honor of the acquittal of Geert Wilder in his hate speech trial, here are some of his greatest hits!

WTF Friday (better late than never), 4/9/11

Popular singer elected president of Haiti, at least he lives in the country

Relevant information on Sean Penn’s work in Haiti from the NYT blog’s, “The Accidental Activist“:

  • “[Penn] walked with a slightly bowlegged cowboy gait, a walkie-talkie crackling at his waistband, a cigarette dangling from his mouth.”
  • “When he is in grooming mode, he tends to shellac his hair into a high, rather splendid, Little Richard-style pompadour, but today, as on most days in Haiti, the hair had been allowed to collapse into a dusty quiff…”
  • “Penn sometimes carries a Glock, but the fire extinguisher, he claims, is a far more efficient tool for crowd control.”
  • “He had come with no medical expertise and no experience with N.G.O.’s. He did not speak Creole or French.”
  • “Let’s say that I didn’t come here with an agreement to share decisions.”
  • “For the first six months, I was country director of this thing, and I was basically pretending I knew what the hell I was doing — yelling a lot and getting things done with blackmail.”
  • “In moments of great displeasure, Penn’s lip actually curls and his eyelids droop so low that he begins to look stoned on his own contempt.”
  • “Some people have said, ‘The danger of Sean Penn is that he makes it look as if anyone can do this.’ And my answer to them is, ‘No, I just make it look like you can’t.’”
  • “He will express the hope on CBS’s “Sunday Morning” that all his critics ‘die screaming of rectal cancer.’”
  • “He will predict in self-dramatizing fashion that he will ‘end up shot in the back of the head, but it won’t be by a Haitian, it will be by another N.G.O.’”
  • “All the poetry and prose that he is fondest of quoting tends to celebrate the same romantic ideal of swashbuckling benevolence.”
  • “I love humankind; I don’t like humans.”
  • “Haiti is a foxhole, and we’re all in it.”
  • “By begging and borrowing, schmoozing and shouting, Penn has managed to build one of the most efficient aid outfits working in Haiti today [!?!?!?!?].”

WTF Friday, 3/4/11

Zimbabwean man arrested for making harmless comment on Facebook. I’m thinking Facebook arrests should be based on quantity, not content, of posts. These randos from middle school blowin up my news feed know who they are…

Camping trip ’04? You guys have to to upload this album to FB already. It’s been like 7 years, bros…

Charlie Sheen and Sean Penn on their way to Haiti. Mr. Sheen, per usual, with a bizarre choice of words: “And I’m excited as hell because, you know, if I can bring the attention of the world down there, then clearly this tsunami keeps cresting.” Riiight…

WTF Friday, 1/21/11

Raise your hand if you thought this was about an actual volcano in Southern Sudan. Seriously though that’s a hot metaphor.

The title says it all: “Babies, the dead on voters roll.” People born in 1897 and lil babies born yesterday (well, 2007) are all ready to vote in Zimbabwe’s general election this year. This gives me an idea for a PSA, kind of a mix between Night of the Living Dead and Gummo warning about the dangers of voter fraud.
So apparently Baby Doc’s return to Haiti was more than just a nostalgic visit. He was actually trying to unlock a Swiss bank account worth $5.7 million. Guess he left his pin number on the nightstand? This gives me a good idea for Ocean’s Fourteen.

WTF Friday, 1/14/2011

So a quick breakdown of the guest list for Iran’s nuclear tour. The EU said no last week, while Britain, France, and Germany were never invited (awkward), nor was the U.S. (duh). China and Russia have declined (kinda rude honestly). Now only envoys representing “developing” countries such as Cuba, Egypt, the Arab League, Syria, and Venezuela (Iran’s bff’s) are expected to attend, while there seems to be no word yet on Turkey and Brazil (waiting to see if they get invited to something better).

“Well if the DR can do it, why can’t we?” The U.S. getting ready to resume deportations of Haitian immigrants.

The Tunisian government has declared a state of emergency amidst protest. A curfew has been imposed, people cannot gather in groups bigger then 3 in the open and security forces can open fire on those not obeying orders. The 1,800 tourists gathering at the airport to be whisked away by Thomas Cook may wanna divide themselves into 600 groups.

WTF Friday, 1/7/11

With the South Sudan referendum fast-approaching, George Clooney’s “Not On Our Watch” is funding commercial sattelites to monitor possible conflict in the country. Clooney has described it as “the best use of his celebrity.” Kinda just seems like he’s trying to recruit a mercenary for Ocean’s Fourteen.

The Dominican Republic has again begun deporting illegal immigrants from Haiti after suspending this practice in the wake of last year’s earthquake. Alright, looks like everything’s back to normal.

Al Shabaab has arrested regional leaders for stealing $10,000 in aid intended for drought-affected areas. If they just kicked out the remaining aid agencies they wouldn’t have to worry about this kind of embarrassment…

WTF Friday, 12/17/2010

Thanks to Nathan for starting us off this week: “I thought you might continue the thread of Haiti-related WTF Friday posts with this gem. Directly after Paul Farmer writes a piece in Foreign Policy criticizing the reconstruction effort because the Haitian government has only been given 0.3% of the aid money (the rest going to the Interim Commission, etc.), Sec. Clinton gives a speech about her “growing frustration” with the Government of Haiti’s failure to coordinate the reconstruction efforts, which Canadian Foreign Minister Lawrence Cannon follows up by saying the international community ‘cannot do everything.’ I guess the government was supposed to make that 0.3% go a long way…”

IPS reports “U.N. Deplores Escalating Violence in Côte d’Ivoire.” This is a sharp turn from their regular stance of “condemning” violence. Either way, the U.N. appears to have consistently been “not down” with violence. Well, sort of

Lastly, sorry for some of the unfortunate links on the bottom of this page (you’ll see), but these pics are just classic Jong-Il.