In
the past month, GAP has been approached by three separate whistleblowers who
have raised concerns about sexual assaults involving United Nations employees
as victims, witnesses and perpetrators. (Similar disclosures have also surfaced
on the website Wikileaks, as described in a separate blog entry). Although the
specifics of these confidential cases vary, the similarities suggest that the
United Nations may have a systemic problem in how it handles this serious
physical crime.
In
each case, concerns were raised about the failure of the UN’s applicable
internal investigative body – in most cases the Office of Internal Oversight
Services (OIOS) – to adequately investigate: a) sexual assault by a UN employee
against another employee, b) sexual assault of a refugee by a UN worker, and/or
c) retaliation against the person who either reported an assault or challenged
the organization’s handling of it. Concerns have also been raised by these (and
other) whistleblowers about the failure of OIOS to disclose investigation
reports to complainants. Best practices in whistleblower protection require
that such investigative reports be provided to the whistleblower in order to protect
their due process rights. Moreover, in cases of assault – and particularly in
rape cases – scrupulous observance of the victim’s human and civil rights is
the first step in restoring a sense of physical integrity.
Ongoing
delays in the reform of the UN internal justice system have dramatically
curtailed the ability of these whistleblowers to challenge OIOS procedures in
cases of criminal assault. But even if an OIOS investigation report and/or the
reformed formal justice system vindicate the complainants, those responsible
for sexual abuse may not be held accountable. According to a Secretary-General
Bulletin regarding Special Measures for Protection from Sexual Exploitation and
Sexual Abuse, “if, after proper investigation there is evidence to support
allegations of sexual exploitation or sexual abuse, these cases may, upon consultation with the Office
of Legal Affairs, be referred to national authorities for criminal
prosecution.” (emphasis added)
Leaving the prosecution of a violent crime to the discretion of any individual
fundamentally violates the principle of the rule of law. It is an appalling lapse, and is especially
inexplicable in an institution charged with articulating and defending human
rights.
In
reference to officials and experts on mission, a review of OIOS states:
…[W]ith
respect to criminal accountability, although the Secretary-General may waive
the immunity of Organization peacekeeping personnel involved in certain
instances, waiver of immunity does not typically apply to SEA (sexual
exploitation and abuse) cases since the criminal offense is likely to not have
been committed in the performance of the official duties of the official or an
‘expert on mission,’ i.e., the status granted to members of the civilian police
and military observers... Thus, in cases where immunity does not apply, if
evidence of the crime is sufficiently substantiated, the judicial authorities
of the host country may assume jurisdiction over the case. However, should the
host country decide to close the case and forego follow-up investigation or
prosecution, the Organization has no forms of recourse or sanction. (p. 71)
Although
sexual assault cases are outside GAP’s normal purview, we are deeply concerned
about the apparent failure of the United Nations to adequately protect the
rights of assault victims employed by the UN or subjected to abuse at the hands
of UN employees, peacekeepers or contractors. Quite simply, the prosecution of
those who have sexually assaulted anyone is the unquestionable responsibility
of the justice system with jurisdiction if it is to be recognized as
legitimate. Investigation and prosecution of violent crimes is not optional.
--
Shelley Walden
