By Sophie Edwards
February 27, 2018
LONDON — In the wake of revelations that some Oxfam aid workers may have committed sexual crimes while working in Haiti after the 2011 earthquake, questions are being asked about how the staff involved managed to avoid prosecution and whether NGO and United Nations staff are in effect above the law when they carry out development or humanitarian work.
The revelations have led to widespread calls, including from the United Kingdom’s Department for International Development, for an overhaul of the way the aid sector recruits and vets candidates. But it has also shone a light on a broader legal vacuum within the sector in which alleged perpetrators are able to avoid investigation from prosecuting authorities for crimes committed while working in humanitarian settings.
Despite the fact prostitution is illegal in Haiti and there were concerns some of the girls were underage, Oxfam decided not to report the case to the local police. Nor did the charity notify police in the alleged perpetrators’ home countries where it is possible they could have been investigated under child sex tourism extraterritorial laws.
Speaking on the U.K. news television program Newsnight, the then head of Oxfam Dame Barbara Stocking, justified the decision by saying she did not think that local police would have pursued the case. The president of Haiti has since described Oxfam’s failure to notify local police as an “insult” to his country, saying in an article in the Telegraph that, “The state of Haiti did not cease to exist. Our police was still there.”
Sienna Merope-Synge, staff attorney at the Institute for Justice & Democracy in Haiti, a U.S. NGO which brings together Haitian and U.S. human rights lawyers, described the Oxfam case as “the tip of the iceberg” and said it was “emblematic of broader lack of accountability and an ability to be above the law among these actors.”
This lack of accountability is even more prevalent within the United Nations, Merope-Synge and others say, where personnel have explicit legal immunity.However, while the U.N. says this does not apply to those who commit sex crimes, in practice only a handful of staff have ever been prosecuted, according to New York-based advocacy group AIDS-Free World, which is campaigning to end impunity for sexual exploitation and abuse by U.N. personnel.
In response, experts are calling for an independent way of policing the humanitarian sector, including the creation of a “Special Court Mechanism,” as proposed by Code Blue, and an international ombudsman.
Immunity in the sector
Most people are under the impression that aid workers operating in countries like Haiti, whether employed by international NGOs or U.N. agencies, cannot be investigated or prosecuted by local law authorities, according to Sharanya Kanikkannan, a human rights legal adviser working on the Code Blue campaign at AIDS-Free World. However, the picture is more complicated and international NGOs, U.N. agencies, peacekeeping troops, and civilian staff are governed by different rules and exemptions, she said.
In general, staff working for an INGO can be prosecuted in the country in which they are working unless explicitly agreed with the host state’s government. In contrast, U.N. personnel have “privileges and immunities,” including legal immunity from the national courts of host states. The U.N. has developed a system of internal administrative investigations that has become the main response to allegations of serious crimes. Kanikkannan said that in practice INGOs act as if they have the same immunity: “Every other international organization has copied the U.N. approach and has their own internal system of complaints,” she said.
U.N. immunity was originally enshrined into the organization’s founding charter to protect staff and troops working in postconflict countries where the rule of law tends to be weak. But the charter is clear that the protection is not meant for the “personal benefit of the individual themselves” and that agencies have the “right and duty to waive the immunity” of any U.N. official in cases where failing to do so would “impede the course of justice.”
Furthermore, the U.N. Secretary-General has recently clarified via Twitter that this immunity does not apply to staff who commit sexual crimes.
However, campaigners say that in reality U.N. staff accused of sexual crimes routinely hide behind immunity. Instead, allegations are overwhelmingly reported to the U.N. itself and then handled within the U.N. by its Office of Internal Oversight Services, which investigates allegations of misconduct and other breaches of staff rules, with very little transparency, campaigners say.
Merope-Synge explained how the U.N. system appears to work.
“On paper, if the Haitian authorities arrest nonmilitary peacekeeping personnel for sexual abuse then the U.N. representative would say there is no immunity and the case could continue. In reality, everyone acts as if U.N. personnel are above the law. Reports go to the U.N. itself, it then conducts an internal inquiry … staff are generally rotated out of the country, and at best they may be subject to disciplinary action,” Merope-Synge said.
The U.N. then says it will pass substantiated cases to the alleged perpetrator’s country of nationality for further investigation and possible prosecution. However, there have been so few cases prosecuted that campaigners suspect that either this doesn’t happen or, the system is inefficient, or member countries are failing to act.
Part of the problem is also that prosecuting countries don’t realize that U.N. immunity does not apply to staff accused of sex crimes, according to Andrew MacLeod, a former chief of operations of the U.N.'s Emergency Coordination Centre and now part of Hear Their Cries, an advocacy group dedicated to eradicating child rape and sexual abuse by U.N. personnel.
MacLeod said he was pleased to see the U.N. taking a clear public position, at least in the wake of the Oxfam case, but said it may take a high-level prosecution to drive the message home.
To date, there has been very little data available, both from the U.N. and from INGOs, about the number of alleged sexual abuses reported against aid workers. It is also very difficult to find information about resulting prosecutions. In fact, Oxfam is one of the only INGOs to have regularly published data. and in the wake of the recent scandal other charities have released their own figures.
On the U.N. side, some data is available on the Conduct and Discipline in U.N. Field Missions website, but this relates solely to peacekeeping missions. However, data on allegations against staff working for agencies, funds and programmes, is released in the annual Secretary-General’s Special Measures report, which was started in 2005. The most recent report showed that in 2016, 145 allegations of sexual exploitation and abuse, involving 311 victims, were made against staff. Data from 2017 should be available in the next few weeks, a U.N. spokesperson told Devex. However, there is currently no dedicated website to track such allegations.
Furthermore, it is widely acknowledged, even by the U.N., that these numbers are low; the 2017 special measures report states “we feel certain that not all cases are reported.”
Self-policing does not work
Code Blue’s Kanikkannan said the U.N. routinely opts to investigate allegations internally instead of referring them to the relevant authorities, raising questions over whether the U.N. has the mandate or necessary qualifications to determine which cases do and do not warrant a criminal investigation.
The recent internal U.N. probe into the deputy executive director of UNAIDS, Luiz Loures, is a case in point, according to the Code Blue campaign. Loures was accused of sexually assaulting a female subordinate but was cleared of wrongdoing after an internal U.N. investigation. On Friday, Loures said he would would step down from his position next month. The case has prompted calls from Code Blue and lawyers that the U.N. should have passed the case to local authorities since it has no “sovereign authority” to investigate criminal action.
Kanikkannan also raised the question of what happens if an accused staff member leaves the U.N. before an internal investigation has finished, and if they do move on, then what information would the U.N. share, if any, with subsequent employers. This has parallels with the country director at the center of the Oxfam scandal — Roland van Hauwermeiren — who was allowed to resign after an internal investigation and then went on to take other senior roles within the sector.
The current system whereby cases are first investigated by the U.N. to assess whether there is enough evidence to pass to prosecuting authorities, also poses logistical difficulties since it leads to long delays during which time witnesses and evidence are harder to find, Kanikkannan said.
It also raises questions about conflicts of interest, according to Paula Donovan, co-director of the Code Blue campaign.
“The U.N.’s conflict of interest is obvious; it is the employer of the accused and can never be neutral,” said Donovan, who went on to add, “there is no justification for the U.N. to encourage reporting to its internal systems and to act as a gatekeeper to law enforcement.”
This was exemplified in the 2015 case against a number of French troops, who were not technically peacekeepers but had been sent to the Central African Republic by the U.N. Security Council, accused of abusing 13 children. The allegations were investigated by the U.N. and then passed to French prosecutors who later dropped the case citing a lack of evidence.
Miranda Brown, former head of east and southern Africa region at the U.N. Office of the High Commissioner for Human Rights, told Devex that the case may have been thrown out in large part because French investigators were blocked from interviewing U.N. staff and victims due to U.N. immunity protections and also due to long delays in the U.N. reporting the alleged crimes.
An independent panel, to which Brown gave testimony, formed by the U.N. to investigate the CAR case found that complaints of child abuse had been raised as early as 2014 but were passed from U.N. agency to agency “with no one willing to take responsibility.” Even when the French government became aware of the issue — after U.N. whistleblower Anders Kompas leaked the information — the U.N. resisted French attempts to investigate. The panel’s report accused the U.N. of “gross institutional failure” and found that the U.N. internal services refused to recommend that the secretary-general waive immunity for the U.N. human rights officer closest to the case so that they could give evidence. Immunity was not waived until a year after the French authorities started looking into the case.
"The delays in lifting immunity meant it was very unlikely the French authorities would be able to convict, since they didn't have access to the victims or the person from the U.N. who uncovered the abuse,” Brown said, adding that, “it is shocking that no actions were taken to stop the child abuse itself and it took whistleblowers to bring the case to light.”
Brown is a whistleblower herself and is currently lobbying the U.N. to improve protection for whistleblowers. She claims she was blacklisted for her part in reporting the child sexual abuse and the abuse of authority by the U.N. leadership in response to the CAR allegations.
No remedy for victims
Merope-Synge, who has been working with fellow Haitian lawyers to get paternity support for 10 women who were sexually exploited and had children by U.N. peacekeepers, said that the system of de facto legal immunity denies victims justice and leaves them without a way of getting support for the health and financial consequences stemming from their abuse.
However, there are times when it could be necessary for INGOs and the U.N. to circumvent local courts in order to protect staff, according to the head of CARE International UK, Laurie Lee, although he also said that the Oxfam-Haiti case did not appear to be one such case.
“In theory, if something has happened which should be reported to the police but your clear view is that the police in the situation would do something which was unacceptable … they might just murder a suspect … you’re not going to be complicit with that sort of a thing,” he said.
“There are complexities in some of the contexts in which we work that you have to take account of,” he continued, including fear of reprisals and also the potential that the victim could also face attack, he said. However, “this can’t be an excuse for no action, but it does mean you have to think about how you do it,” Lee added.
Oxfam’s executive director, Winnie Byanyima, made a similar point when she gave evidence to British members of Parliament last week, saying that in some countries where prostitution is illegal it is the women who are pursued by the police, not the men who pay for sex, and that in some countries the law “doesn’t touch men.”
“In providing this information [to police] … we must always be conscious — are we risking the very women who have been abused by doing this?” she said.
However, Oxfam GB Chief Executive Officer Mark Goldring was clear that the charity’s position is to report such allegations.
“It is not for Oxfam to decide if it is a crime, if it’s potentially illegal it’s our job to make sure the relevant authorities are informed,” he said.
In response, Code Blue has proposed the creation of an independent, impartial Special Court Mechanism, which would take over the investigation and adjudication of all sexual exploitation and abuse cases brought against U.N. personnel. Under the proposal, victims would file complaints directly to the special mechanism, which would have “intake offices” allocated near peacekeeping bases and outposts, and could also handle allegations lodged against non-military U.N. staff and experts on mission.
The mechanism would work alongside and report to member states and be staffed by investigators, lawyers, and support staff qualified to conduct criminal investigations. A list of international judges would be on hand when needed. The court itself would be “nimble, activated when needed, and on location, enabling victims and perpetrators alike to take part in fair trials and see that justice is being done,” according to Code Blue’s materials.
For nonmilitary U.N. staff, the mechanism could forward cases on to the relevant authorities but would also be able to handle the case should those bodies request it.
“The only real solution for impartial justice is a truly neutral, independent Special Court Mechanism, with authority to be in charge from the very beginning — from receiving complaints, investigating the claims, all the way through to the final judgment of criminal cases,” Code Blue’s Donovan said.
On the INGO side, in the 1990s, a humanitarian ombudsperson was piloted but later dropped. The Oxfam scandal revive the idea of an ombudsman for each country where humanitarian agencies are active in order to investigate allegations of power abuse and misconduct, according to Dorothea Hilhorst, professor of humanitarian aid and reconstruction at the Erasmus University Rotterdam.