International Organizations and the Fight for Accountability: The Remedies and Reparations Gap by Carla Ferstman, Oxford University Press, 2017.
Reviewed by Isa Qasim
In 2010, United Nations peacekeepers from Nepal arrived in Haiti to assist with the country’s recovery following a magnitude 7.0 earthquake. Instead of fulfilling this mission, the Nepalese peacekeepers’ presence made the situation much worse. At the time, Nepal was suffering from a cholera outbreak, and the U.N. had neglected to screen the peacekeepers for the disease. While in Haiti, the peacekeepers’ base had poor sanitary conditions; sewage frequently leaked into a nearby river that, in turn, flowed into the largest river on the island. The result was a massive epidemic that has devastated the country, causing the deaths of at least 10,000 Haitians.
For six years, the U.N. refused to acknowledge any responsibility for bringing cholera to Haiti. Victims of the cholera outbreak brought a putative class-action suit against the U.N. in United States federal court, alleging tortious negligence in the organization’s screening and housing of the Nepalese peacekeepers. In 2016, the Second Circuit court dismissed the suit (Georges v. United Nations), on the grounds that the U.N. was immune from legal process. A report from a U.N. special rapporteur estimated the liability from such a suit would have been $40 billion. In response to public outcry, Secretary General Ban Ki-moon announced the creation of a $400 million voluntary fund to compensate the cholera victims in Haiti. As of the summer of 2017, less than $10 million had been raised and no significant further contributions are expected. The over 600,000 Haitians infected by this preventable disease will most likely never receive adequate restitution for the harms they have suffered.
It is this type of injustice that Carla Ferstman seeks to address in her recently published book, International Organizations and the Fight for Accountability: The Remedies and Reparations Gap. In this work, Ferstman focuses on a surprising gap in human rights and international humanitarian law: the inability of those injured by international organizations to achieve restitution for the harms they have suffered. A combination of theoretical hurdles, narrow readings of obligations, expansive immunities, and inadequate internal processes makes it functionally impossible for many people whose rights have been violated by international organizations to achieve “justice”—which Ferstman defines as comprehensive reparations that include formal apologies, full compensation, rehabilitation, and assurances against reoccurrence (p. 84). As the Haiti example illustrates, this lack of recourse is a pressing issue, both for the individuals harmed and for the long-term credibility and effectiveness of international organizations.
Ferstman lays out a detailed conceptual landscape of the problem. Her work is divided into two parts. The first draws on jurisprudence, treaties, and practices to argue that international organizations are legally responsible for violations of human rights and international humanitarian law, and that they have an obligation to provide an effective process to claim reparations for said violations. The second half of the book surveys the current processes in place that enable, or more often forestall, victims in their quest to obtain reparations. In her conclusion, Ferstman offers some preliminary thoughts on how reforms could be made to improve access to justice. Structuring the book in this manner makes it a convenient reference for the scholar or lawyer who, for example, would like to quickly check how domestic courts have interpreted international organization immunity. However, this approach also obscures her central argument by including analysis of peripheral cases, like how international organizations address internal employment disputes. Her approach to reforms is decidedly legalistic, with little attention paid to prudential or political concerns or difficulties. The work is focused primarily on the U.N., although examples are also drawn from the African and European Unions, the WHO, the WTO, and other adjudicative bodies.
In the first section, Ferstman uses a variety of texts, especially International Court of Justice opinions and the Draft Articles on the Responsibility of International Organizations, to argue that international organizations have international legal personality, at least in certain contexts. By right of this personality, they can “assert rights, negotiate, and be held responsible for acts considered to be internationally wrongful” (p. 42). Such internationally wrongful acts include violations of human rights and international law such as sexual abuse by peacekeeping forces, uncompensated seizure of land and property during development projects, and refoulement—sending refugees back to countries where their safety is at risk. Drawing an analogy to a State’s obligation to provide domestic remedies for human rights violations, Ferstman argues that international organizations should be understood to be “obligated to afford reparation to injured individuals, both for human rights and international humanitarian law abuses” (p. 68). What is more, this implies a “connected obligation . . . to ensure that adequate and effective procedures are in place to give the obligation effect” (p. 68).
The second section of the book then seeks to evaluate how well international organizations meet this obligation. Generally speaking, they do not, according to Ferstman. Ferstman describes in detail the venues through which an individual could seek restitution from an international organization—internal adjudication, domestic courts, international and regional courts, and direct agent responsibility. Except for a few tangential cases, like internal employment disputes, none of these avenues provide an effective means for an individual to obtain reparations. The precise reasons are idiosyncratic to each venue, but the unifying themes are the presence of an international legal system that does not accord standing to injured individuals, broad interpretations of organizational and agent immunity, organizational resistance to anything beyond nominal compensation, and State disinterest in holding their agents responsible. Harmed individuals are rarely able to get a hearing and, if they do, will almost certainly be inadequately compensated. A recent example of this lack of accountability occurred at the M’Poko Camp for internally displaced persons in the Central African Republic, where French soldiers on a U.N. mission engaged in widespread sexual abuse. Internal U.N. processes were fragmented and ineffective and the Status of Forces Agreement for the mission prevented individual legal action against the soldiers, leaving the victims with no forum in which to seek restitution. International organizations are falling well short of Ferstman’s proposed obligation that they provide effective adjudicatory mechanisms that provide full reparations.
The normative contribution of International Organizations and the Fight for Accountability turns on the importance of this obligation, yet Ferstman does not offer a strong argument in support of it. She admits that there is substantial difficulty in determining “clear rules regarding reparation to injured individuals in the case of human rights and international humanitarian law breaches” (p. 91). She insists, however, that “[t]his difficulty does not evidence an absence of rules or a legal vacuum” (p. 91). Instead, the lack of clarity is used as a shield, protecting the organizations from the consequences of their actions. Ferstman bemoans this practice and insists that, nevertheless, international organizations have an implied obligation to ensure that there are “impartial and effective procedures in place to enable injured individuals to obtain reparation” (p. 91).
One might wonder, however, if the obscurity that causes Ferstman such difficulty is a feature rather than a bug. Consider again the Haitian cholera outbreak. The judgment of $40 billion for which they were potentially liable represents five times the U.N.’s annual peacekeeping budget. The nature of some of the U.N.’s most important work—responding to emergencies, enforcing peacekeeping agreements, working to eradicate disease and hunger—are high-risk operations that carry the potential to cause serious damage should there be a mistake. The anemic contributions to the voluntary compensation fund established by Secretary General Ban show that there is little political will among member States to fund the reparations likely to result from such mistakes. It seems quite possible that international organizations’ obligations are obscurely articulated precisely so they can be shielded from claims, the cost of which member States are not interested in bearing. Such a reading of the law would be consistent with the broad immunities granted to international organizations and their employees and the lack of an effective forum for injured individuals to pursue their claims.
Ferstman acknowledges that her conclusion on international organizations’ obligations is de lege ferenda—that is, her view of what the law should be (p. 68). Given this, it is frustrating that she gives so little time to counter-arguments or prudential concerns like the one above. Ferstman’s reasoning arguably implies an obligation to provide full reparations to individuals for violations of human rights law. But without any exploration of the political, prudential, and normative contexts of these organizations, her account is too narrow to be compelling. By her own admission, her assessment is hampered by spotty evidence and questionable legal reasoning, such as her use of State international obligations to infer similar ones for international organizations. Claiming, as Ferstman does, that “necessity has not been recognized as a rationale for precluding full reparation” might lead one to conclude that it is the law that needs to change, not the practice (p. 92). While the plight of the Haitians and similar victims is undoubtedly deplorable, a more holistic analysis is needed to show that developing such an obligation would best satisfy the long-term goals of human rights law.
In the final chapter, Ferstman briefly sketches some ideas for how victims could be better afforded reparations. The suggestions include strengthening internal standards, providing more independent oversight, and enabling individuals to bring personal claims before international courts. One can sense in the discussion that what has prevented such policies from already being implemented is not a paucity of imagination but rather a lack of political will and resources. Her narrow legal viewpoint is exemplified in the final proposal, which calls for a policy of full and effective reparations to victims, which would include formal apologies to affected individuals, rehabilitation, and full monetary compensation. Ferstman acknowledges that “funding to implement reparations is a real challenge for international organizations, who struggle to have their annual budgets approved by States” (p. 214). Nevertheless, Ferstman insists that it is “important that the regular budgets of international organizations account for the . . . need to pay reparations to injured individuals” (p. 214). She suggests that “internal funds can be built . . . to insure against claims” or that private insurance companies could underwrite the risk (p. 215). But it seems unlikely that the U.N. could ever adequately save or insure themselves against a $40 billion judgment. Full reparations may indeed be important, but we have no metric for evaluating how important they are compared to other potential uses of the money. Would States continue to fund organizations with such potentially massive liabilities? Or would rigorously imposing such a law simply lead to the end of international organizations? These are just some of the pressing questions left unanswered at the end of the book.
International Organizations and the Fight for Accountability is a thorough, detailed, and well-researched work, but it is too narrowly focused to prove its central point. If one seeks a comprehensive survey of the current legal theory and adjudicative avenues for victims of human rights law violations by international organizations, this book is an excellent resource and reference. If one already believes that international organizations should have an obligation to provide full reparations to people harmed by their actions, then it will provide you with a credible set of legal arguments to deploy and develop further. The limited scope of its argument, however, means that Ferstman’s work falls short of convincing a skeptical reader of the legal necessity or prudence of such an obligation.
 Carla Ferstman, International Organizations and the Fight for Accountability: The Remedies and Reparations Gap (2017).