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