The UN’s Victims’ Rights Advocate: A Hindrance to Justice
Early in his term, Secretary-General António Guterres created a new position within the UN: a system-wide Victims’ Rights Advocate (VRA).[1] This “system-wide” VRA is supported by four field-level VRAs in four of the missions with the highest rates of reported sexual exploitation and abuse.[2] The SG presented the office of the VRA as the first of a four-pronged “New Approach” to combatting sexual exploitation and abuse by UN personnel. UN Member States, deeply concerned about victims and rightly anxious for solutions, put their trust in the UN bureaucracy and welcomed the new VRA role in good faith. In fact, the SG’s proposal was just the opposite of the solution required, since a UN-organization-appointed VRA actively disrupts the pursuit of justice and rights. The creation of the position of the VRA further compounds the fundamental and unresolvable problem of the UN’s conflict of interest.
Although the VRA is appointed and employed within the UN system, the position requires deep involvement with and support to victims alleging claims against their employer, the UN, and its employees and other personnel operating under the UN flag. Their job description, by its very nature, therefore calls for the VRA to intervene on both sides of a case, working as part of and for the UN and at the same time, for victims of the UN. This is an untenable conflict of interest.
The Code Blue Campaign has analyzed the core of the VRA’s roles and functions, and has identified five fundamental reasons why this position cannot be salvaged:
- The VRA is a UN employee, and thus has a conflict of interest when representing victims.
- There is no “Victims’ Bill of Rights,” meaning that rights cannot be claimed or transformed into entitlements.
- The VRA obscures the UN’s responsibility to cooperate with national jurisdictions in allegations involving civilian personnel.
- The VRA normalizes the use of ad-hoc, voluntary or “ex-gratia” payments and assistance that further downplay legal rights and compensation.
- Interacting with the UN VRA can jeopardize future legal claims of the victim.
The position of VRA as designed can never overcome these fundamental conflicts of interest, all of which form the biased nature of UN interventions in instances of sexual offenses involving UN personnel. The conflicts of interest can only be eliminated through comprehensive solutions.[3] Until solutions grounded in independence and neutrality become reality, measures like the appointment of VRAs cannot ensure true accountability, victims’ rights, or justice.
Below is a brief examination of each of the five predominant factors that led to our conclusions.
1. The VRA is a UN employee, and thus has a conflict of interest when representing victims.
The role of the VRA is to “support an integrated, strategic response to victim assistance,” a role that has the VRA working for the UN system in furtherance of UN strategy and policies, and serving as a spokesperson for the UN’s actions. However, the VRA’s role is also “essentially to advocate for the victims of sexual exploitation and abuse.”[4] It is not possible for the VRA to serve in both capacities.
The UN has repeatedly downplayed this conflict, but it is glaring and self-evident when posed simply: who does the VRA work for? The answer is simple: the VRA is a UN employee, who reports to the UN organization, and who takes instructions from the UN. The VRA’s professional loyalty is primarily to their employer, the UN.
In any case involving an alleged perpetrator and a victim, the employer of the perpetrator is an interested party, whose interests may not be in line with the interests of the victim. The UN’s interests often include reputational risk management, maintaining control over media, and guarding against leaks – which may run in direct opposition to the best interests of the victim. When the interests of the UN and the victim are in conflict, it is inconceivable that the VRA would put the interest of the victim above that of the UN.
Take for example, the assertion that the VRA “gives voice to victims of sexual exploitation and abuse.”[5] Victims may wish to speak candidly about their misgivings with the UN.[6] But the VRA presents carefully curated comments in their role as a spokesperson for the UN, while claiming that “confidentiality” prevents them from divulging the details of what victims say to them.[7] This is less “giving voice to” and more “speaking for” victims – a dangerous proposition when the effect is to water down criticism.
2. There is no “Victims' Bill of Rights,” meaning rights cannot be claimed or transformed into entitlements.
Victims were introduced to a “Victims’ Rights Advocate,” which creates the reasonable expectation that they will be able to make choices and decisions that affect their pursuit of their rights. They cannot do this without first knowing what rights they actually hold, and under what law. To date, however, there is no victims’ “Bill of Rights” that states clearly who may be considered a victim of UN sexual exploitation and abuse, what they are entitled to, what rights they may assert, and the duration for which they can access those rights.
Rights are protected through codification in international and national law, such as international covenants, criminal and civil procedure, or administrative procedures relating to entitlements. Victims of UN sexual exploitation and abuse may have rights both in legal processes and in UN procedures, but their rights have not been codified. In the absence of a Bill of Rights, their only option is to navigate opaque UN processes, dozens of legal jurisdictions of perpetrators hailing from multiple countries, and the complex web of UN immunities to try to discover what rights they may hold – a herculean, maybe impossible task. The UN has not clarified the source of victims’ rights, defined these rights, and made clear where (in what jurisdiction) victims can seek them out and demand them. In addition, there is no system in place to challenge violations of any “rights” in the UN’s own processes – such as by appealing a UN inquiry that closes or dismisses their claims. In short, a “Bill of Rights” must not only list what rights victims have, but ensure that someone is held responsible when those rights are violated.
The VRA remains utterly ineffective in assisting victims with “rights” so long as those rights remain unknown and un-actionable.
3. The VRA obscures the UN’s responsibility to cooperate with national jurisdictions in allegations involving civilian personnel.
The VRA is meant to “work [with] local authorities and civil society organizations to ensure that every victim's rights are protected through access to appropriate and timely judicial processes.”[8] According to the Terms of Reference, the VRA should ensure that “the full effect of local laws, including remedies for victims, are brought to bear” in every allegation against any UN personnel.[9] Yet in the context of peacekeeping, UN immunity creates a bifurcated reality, where uniformed and civilian UN perpetrators are not treated equally when it comes to justice and accountability.
It is complicated – but possible – for victims of sexual exploitation and abuse perpetrated by military personnel to access justice, but practically impossible for victims of civilian perpetrators to do so.[10] The difference between uniformed and civilian personnel comes down to which entity is responsible for ensuring accountability. The UN has focused nearly exclusively on how the VRA will liaise with Troop-Contributing Countries (TCCs), who remain responsible for trying their own uniformed (military and police) personnel. The VRA should act as a sort of relay between the victims and the TCCs. But the VRA cannot play the same role in cases involving civilians, where there is no “TCC” (because civilians are not “sent” by any country) and no clear answer as to which national jurisdiction, if any, is held responsible for hearing legal claims against civilian UN personnel.[11]
In the absence of any Member State’s clear authority, the UN exercises nearly exclusive control over the fate of accused civilians, yet the pathway to justice is significantly more difficult for victims of civilian perpetrators precisely because it is riddled with discretionary decisions by the UN. These decisions include whether to clarify the status of immunity, whether to divulge details about the alleged perpetrator, and whether to cooperate with national police. State authorities – such as police, prosecutors, or courts – may or may not even be notified when victims contact the UN. Indeed, little information has been shared publicly, with the UN spokesperson informing the public in a recent case that the UN would not share these details, and advising “to check with the [local] authorities” to know whether they were informed.[12] The VRA has herself stated that for civilians, the UN offers “only disciplinary measures, because it is not a judicial system,”[13] neatly sidestepping the question of how the victim can access a real judicial system, as well as what are the UN’s obligations to cooperate and facilitate this access to legal process.
This failing cannot be overstated. The UN has only recently, as a result of sustained advocacy by the Code Blue Campaign,[14] begun to recognize that civilians commit more sexual exploitation and abuse per capita than do uniformed personnel. The UN has a greater role, ability and responsibility to facilitate access to justice for these victims of civilian personnel – but has not lived up to those needs by acceding to independent measures.[15]
Thus, for victims of sexual exploitation and abuse perpetrated by civilian personnel, UN process – wholly non-transparent, lacking in rights and lacking in means of appeal – is the only option the VRA can offer. By publicly confusing the processes for military and civilian perpetrators, and focusing on the actions of Member States and especially TCCs, the UN buries the important question of what happens to victims of civilian perpetrators – and how the UN itself is responsible for the failures in providing access to real justice in those cases.
4. The VRA normalizes the use of ad-hoc, voluntary or “ex-gratia” payments and assistance that further downplay legal rights and compensation.
Over time since their initial appointment, the UN has de-emphasized the VRA's role in facilitating access to just, legal remedies and compensation for victims, a crucial part of their Terms of Reference (as noted above). In recent statements, the UN VRA has described her role as assisting victims to combat "stigmatization" in their communities and helping them access their "hopes" and "dreams" – objectives that exist outside of justice and reparations.[16] In fact, the system-wide UN VRA has systematically shifted focus, claiming that “[victims] have been very keen on justice, but they are not waiting for justice,” and “we need to ask the victim what she or he wants and not substitute our judgment.” Yet the VRA does substitute her own judgement, by describing the pursuit of justice as a “heaven can wait” situation, and choosing to focus on immediate needs, including care for the family of the victims and how the victims can “move on.”[17]
This shift away from justice and accountability to material support has not tracked a similar evolution in the UN’s policies towards accepting any form of responsibility or legal obligation to compensate victims. Measures like the Victim’s Trust Fund have focused on general assistance schemes, with only nascent plans to use any of the fund to pay victims’ expenses in accessing justice, or to make an occasional ex-gratia (extra-legal, voluntary) payment to a victim when justice fails.[18]
Since the UN maintains that it has no legal obligation to provide any form of material assistance or compensation to victims, assistance to victims cannot substitute for the legal rights of victims, such as access to justice and court-ordered reparation. In fact, UN handouts like direct assistance for food are ad-hoc or charitable, discretionary forms of assistance that have little direct relation to the harms suffered by victims – food, shelter and schooling needs are not uniquely related to sexual violence, but common needs in many conflict-ridden countries.[19] It is a harm in and of itself to transform rights-based compensation into handouts, as it erodes the dignity of the victims. In addition, these ad hoc payments, due to the power imbalance between the UN and victims, are likely to fall short of the actual compensation due to victims.
What might be considered charitable actions by the UN are, in fact, more likely to be self-serving in the quelling and silencing of complaints.
5. Interacting with the UN VRA can jeopardize future legal claims of the victim.
Victims run the risk of jeopardizing a later criminal or civil case by speaking to a VRA. Interviewing victims of sexual exploitation and abuse is a highly sensitive and potentially harmful task, because there are great risks of altering testimony, manipulating the victims and interfering with later processes.
The UN VRA herself conceded part of the problem when she said, "The more you interview somebody, the more you compromise their testimony.”[20] Every time the VRA speaks to a victim, there is a risk of altering that victim’s testimony. This should raise the alarm given that the testimony can be recorded and used by the UN, and there is no external scrutiny or review of these interviews nor can the victim control whether UN personnel have access to them. Yet the VRA continues to speak to victims even when it is unclear what the benefits of that interview are – especially when the victim is already subject to multiple interviews by UN police, UN investigators, UN protection specialists, and UN discipline officers. There appears to be little regard for “compromis[ing] their testimony.”
In addition, when VRAs offer anything to victims, they run a risk of manipulating victims themselves. When a representative of the UN, the VRA, approaches a victim who has been exploited or abused by another representative of the same organization, the victim may correctly note that the VRA and the perpetrator are part of the same organization. If the VRA then offers "assistance" on behalf on the organization in the course of discussing the exploitation or abuse – which may include offering money, gifts, educational opportunities, etc. – the act could be perceived by the victims as a kind of “settlement.” The victim may believe that this “settlement” closes the case, and prevents them from seeking further legal action or compensation.[21]
Other procedural problems could also harm victims who speak to the VRA, namely by interfering with later legal processes. Unlike other private persons, or third parties to a claim, the UN cannot be forced by a court of law to turn over its internal records, because the UN has organizational immunity, and all its work products, including the notes and recollections of the VRAs, are confidential unless the UN gives permission to release that information. The VRA thus acts to further establish the UN’s control over inculpatory facts and evidence, and to maintain a practice of withholding that information from the authorized law enforcement and judicial authorities that may have jurisdiction over such alleged crimes.[22]
References:
[2] The positions of the system-wide VRA and the field-based VRAs were introduced in the Secretary-General’s 2017 Special Measures report. The field-based VRAs have since been in flux; although in 2017, the Secretary-General’s report seemed to indicate that the posts would be full-time appointments, the 2018 report noted that the field-based VRAs assume their roles in addition to their existing full-time jobs. As of the publication of this piece, the UN has yet to publish terms of reference for the field-based VRAs, but since their function is to support the system-wide VRA, the critiques in this piece should equally apply to the field-based posts.
[3] The Code Blue Campaign is proposing, on an urgent basis, independent oversight of the UN’s response, and in peacekeeping, an independent Special Court Mechanism: http://www.codebluecampaign.com/our-solutions/
[4] https://www.youtube.com/watch?time_continue=17&v=HHVt2Jtvn8A
[5] https://news.un.org/en/audio/2017/12/638272
[6] In video, in response to a question of where the UN response will be in five years’ time: “All I hope is that during that five-year period we will see people who have had these things happen to them will rise up and be able to speak openly about their situation.” https://news.un.org/en/audio/2017/12/638272,
[7] “It would be a bit unfair of me to talk about what went on in a confidential conversation and to go into any form of detail. My role is meeting with people who have suffered, people who are still in pain, to hear what their aspirations are and to hear if there are gaps in what is going on in terms of going forward.” https://reliefweb.int/report/south-sudan/unmiss-asg-vra-media-briefing-near-verbatim-transcript-press-conference-united
[8] http://www.undocs.org/a/71/818
[9] https://www.un.org/sg/sites/www.un.org.sg/files/files/other-vacancies/VRA_TOR.pdf
[10] http://www.codebluecampaign.com/primer-privileges-and-immunities-of-the-united-nations/
[11] http://www.codebluecampaign.com/primer-privileges-and-immunities-of-the-united-nations/
[12] https://www.un.org/press/en/2018/db180525.doc.htm
[13] “And the disposition of the case, if the case goes further, there are disciplinary measures, only disciplinary measures, because it is not a judicial system. With national staff members, they can be, their disposition can be at the national level, then it will be up to the national level to release the identity of those held accountable. With regards to the troops, the disposition will be in the country which has contributed the troop and that will be again up to the legal system in terms of whether the identity will be released.” https://unmiss.unmissions.org/unmiss-asg-vra-media-briefing-near-verbatim-transcript
[14] http://www.codebluecampaign.com/archived-news/2015/12/2
[15] http://www.codebluecampaign.com/solutions
[17] http://www.codebluecampaign.com/archived-news/2017/12/07 (beginning at 09:40)
[18] https://undocs.org/a/71/818
[19] http://webtv.un.org/watch/victims%E2%80%99-rights-press-conference-3-november-2017/5634146636001/
[20] http://webtv.un.org/watch/victims%E2%80%99-rights-press-conference-3-november-2017/5634146636001/
[21] https://undocs.org/A/71/818
[22] http://www.codebluecampaign.com/primer-privileges-and-immunities-of-the-united-nations/
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(UN Photo / Staton Winter)