July 31, 2018

Dr. Natalia Kanem
Executive Director
United Nations Population Fund
605 Third Avenue
New York, New York, 10158

Dear Dr. Kanem:

We are writing to you again in reference to the troubling matter of Diego Palacios, United Nations Population Fund (UNFPA) Representative for India.

In a letter on June 19, 2018, we urged you to take swift, necessary action in the case of sexual assault and sexual harassment alleged to have been committed by Mr. Palacios. An open criminal case against Mr. Palacios has remained stalled for nearly five months, impeded by UNFPA’s assertion of immunity and refusal to cooperate with local authorities. We wrote to you in our role as a friend of the victim, seeking answers to pressing questions relating to the assertion of immunity, the refusal to cooperate with police, and the failure to sanction clearly bad-faith actions of UNFPA staff. We copied you as well on our letter to the Permanent Mission of India to the United Nations. We have met with the Mission to discuss this case and are following new developments, including disturbing revelations of gross oversight by your offices in India. Yet we have still received no response from you. In a matter of criminal sexual offense, time is exceedingly important, and your lack of engagement on this case is a reprehensible abdication of your responsibilities.

It is critically important, and a matter of urgency, that as Executive Director, you exercise your authority and leadership by correcting the actions of the UNFPA country office in India and by asking the Secretary-General to intervene on the question of immunity, in order to restore UNFPA’s damaged credibility.

You have been made aware of the details of the case: Ms. Prashanti Tiwari was hired as the manager of Gender Alliance, a project funded by UNFPA through a local civil society partner, to advance the rights of women and girls facing gender-based violence in Bihar, India. In March of 2017, Ms. Prashanti met Diego Palacios, UNFPA’s Representative for India, who visited Bihar and met with local partner organizations. Mr. Palacios was immediately inappropriate in his behavior, staring at Ms. Tiwari, making remarks about her physical appearance, and, on two occasions, trying to touch her surreptitiously. On the evening of March 29, after pressuring Ms. Tiwari into accompanying the UNFPA team to an evening work event at a local hotel, he pulled her aside and propositioned her, offering her a contract in exchange for a “mutual” arrangement to “satisfy” his “physical needs.” Ms. Tiwari firmly refused, but as she was leaving the hotel, Mr. Palacios committed sexual assault by pressing himself against her in an elevator and groping her body. Multiple witnesses saw Ms. Tiwari in tears after the assault that night as she grappled with what had just happened.

Even worse, according to Ms. Tiwari, were the UNFPA-orchestrated months of abuse that followed: she learned that she was expected to maintain silence and that UNFPA, whose stated high ideals of protection and equality she had been working to promote, permitted and even condoned the behavior of its highest-ranking employee in the country. Following the criminal assault on March 29, 2017, Mr. Palacios pursued his victim relentlessly, but Ms. Tiwari never made an official report, fearing the power and position of her assailant and not wanting to lose her job. Towards the end of the year, while Ms. Tiwari’s project was under consideration for renewal by Mr. Palacios’ office, the same office attempted to terminate her post with her NGO. Shortly thereafter, in January of 2018, Ms. Tiwari was offered a post in Delhi as a UNFPA consultant, so that she would be forced to work under Mr. Palacios’ direct supervision. Realizing that Mr. Palacios would not leave her alone, and unable to maintain her silence, Ms. Tiwari decided she had to act. She confronted him and then went public with her accusations, filing a complaint with the Bihar police in February 2018. The police immediately registered her complaint, which alleged several violations under the Indian penal code, including assault or criminal force against a woman, sexual harassment, criminal intimidation, acts to insult the modesty of a woman, and criminal conspiracy. Five months later, in July, this case remains stalled.

Why is the case stalled? While the allegations against Diego Palacios are about an individual and his actions, the response of UNFPA has also come into focus and has proven to be irregular, intentionally misleading, and clearly biased in favor of the organization’s own reputation. Through its actions and inaction, UNFPA has willfully created a massive delay. As you are well aware, every minute of delay from the moment a sexual assault case file is opened reduces the likelihood of a successful prosecution.

We highlight these especially egregious examples of UNFPA’s interference with justice:

1. UNFPA agents have attempted to coerce local civil society to control Ms. Tiwari

AIDS-Free World has learned that in early 2018, the civil society partner through which Ms. Tiwari obtained her original contract to work on a UNFPA-funded project received notice from the UNFPA India office (headed by Mr. Palacios) that they were expected to end Ms. Tiwari’s contract, even though Ms. Tiwari earned great acclaim for her work and had positive work reviews. A statement to this effect has been registered with local authorities.
This cleared the path for Mr. Palacios to put pressure on Ms. Tiwari to accept a contract with UNFPA India that would place her under his direct control, while also conveying the unambiguous message that her livelihood depended on staying in his good graces.

2. UNFPA published an unfounded, immediate public denial of allegations

In February 2018, when Ms. Tiwari made her allegations public, UNFPA India immediately posted a public denial of the allegations on its website, asserting that Mr. Palacios did not meet Ms. Tiwari on the date in question. Ms. Tiwari was able to produce photographic evidence to the contrary, prompting UNFPA to take down the post, but not before it was seen widely, and the denial was reported in local media.
This public denial constitutes gross misconduct by the staff of UNFPA India who drafted and posted this message, but, worse, it shows incontrovertibly that UNFPA prejudged both the victim and the allegation and attempted to influence public opinion in an ongoing criminal investigation by baselessly declaring the innocence of the accused. UNFPA has not, to our knowledge, taken any action to sanction the person or persons responsible, nor removed them from any further decision-making roles in the ongoing case.

3. UNFPA improperly asserts immunity for the accused, shielding him from the law

The Secretary-General has made clear that UN officials who commit sexual crimes do not benefit from UN immunity. His Spokesman noted on February 21, 2018, in the UN Noon Briefing to press, that “if you commit a crime, that is by definition not part of your function and therefore [is] not covered by immunity.” Diego Palacios is a UN official who stands accused of crimes and offenses under the Indian penal code, including “Assault or criminal force to woman with intent to outrage her modesty” under Section 354 and “sexual harassment” under Section 354A and thus does not benefit from immunity for these acts.
On February 20, 2018 UNFPA responded to a Note Verbale from the Ministry of External Affairs, which asked UNFPA to comment on the allegations brought by Ms. Tiwari. UNFPA’s response asserted that the accused, Diego Palacios, is a UN official “immune from legal process” and “no such request [to waive immunity] has been transmitted to the Secretary-General.” UNFPA, a UN entity under the leadership of the Secretary-General, asserted immunity in a manner that is inconsistent both with the statement of the Secretary-General and the established practice of the UN, which clearly requires the Secretary-General—and not the staff of the UNFPA country office—to make all determinations relating to the application of immunity. The Secretary-General alone has the right and duty to waive immunity; it stands to reason that he is also responsible for determining whether immunity applies.
UNFPA has recently granted the Indian government the opportunity to interview the accused, Mr. Palacios, by videoconference. However, his immunity remains intact, and the interview can be easily stopped, impeded, or influenced by the assertion of immunity and refusal to cooperate with tough police questions.

4. UNFPA improperly asserts the immunity of witnesses and tampers with testimony

On May 7, 2018, the Ministry of External Affairs asked UNFPA to direct its staff to cooperate with the Indian police, who wished to interview them as witnesses.
On May 9, 2018, UNFPA wrote back to the Permanent Mission of India, but informed the Indian government that immunity for UNFPA witnesses is “expressly maintained,” and UNFPA would only allow the police to conduct one interview with one key witness, “on United Nations premises. … A United Nations staff member will attend the interview with [the key witness].”
UNFPA has insisted that UN personnel must oversee the interview with the key witness, and that it must be conducted on UN property that contains recording and monitoring devices controlled by the UN. These irregular and unreasonable conditions imposed on police authorities by UNFPA have the effect of severely restricting the witness’s ability to speak freely and confidentially. UNFPA has implicitly sent a message to its employees who might give testimony in any case of sexual assault and harassment: we are watching you.
This key witness interview has not, as of July 31, been carried out; the delay is unacceptable.
Recently, we have learned that a second witness in the Delhi office is to be interviewed. That interview is also delayed.

5. Diego Palacios, the accused, asserted his own immunity, acting in his capacity as head of UNFPA India

As noted above, on February 20, 2018, UNFPA responded to a request from the Ministry of External Affairs for comment on the accusations against Mr. Palacios. In its response, UNFPA asserted the immunity of the accused and of witnesses and severely restricted the ability of Indian authorities to conduct a criminal investigation, which had the effect of protecting Mr. Palacios from accountability before the law.
This official communication from UNFPA to the Indian Ministry of External Affairs bore no typed, named signatory. However, it appears to bear the handwritten signature of Mr. Palacios, the initials DP; this signature is nearly identical to that found on other official documents signed by Mr. Palacios. In the absence of a typed, named signatory, and the obvious presence of the initials of the accused, who was at the time still fulfilling his role as the head of UNFPA India, it is clear that Mr. Palacios was allowed to make determinations, sign official correspondence, and take actions that had a direct bearing on his own case—including the assertion of his own immunity against police investigation.

6. UNFPA prioritizes its administrative investigation over Indian police investigation, with consequences for the victim and for justice

On February 20, 2018, UNFPA wrote to the Ministry of External Affairs that although immunity was maintained, Ms. Tiwari “is not devoid of means to effectively address her claims. … [A]ny person may bring an allegation [to the Office of Audit and Investigation Services].” This is despite the fact that Ms. Tiwari has made clear that she has exercised her right to file a criminal complaint and is seeking a criminal investigation conducted by national police under Indian law, not an administrative inquiry. Nevertheless, UNFPA asked its Office of Audit and Investigation Services (OAIS) to open an internal investigation against Diego Palacios and suggested in the quoted remarks above that an internal investigation is a substitute for justice, thereby purposely conflating the two.
UNFPA investigators approached Ms. Tiwari to ask if she would like to participate in an internal UNFPA investigation, and she initially refused, but accepted to be interviewed by the UNFPA investigators once the Ministry of External Affairs asked Ms. Tiwari to cooperate. Ms. Tiwari did not wish to deny a request from her government; however, she continued to fear that the UNFPA investigation would further delay policework or damage key evidence. Her fears were well-founded.
Ms. Tiwari asked that the identification of a number of witnesses be kept confidential to protect the witnesses and the pending legal case. OAIS noted that they “cannot guarantee” confidentiality, and since OAIS did not want to “interfere with the police investigation,” they would simply not contact these witnesses. Thus, the OAIS investigation excludes witnesses for the victim but will still issue a finding on the basis of incomplete information that could have the effect of prejudicing the police investigation or the Secretary-General’s waiver of immunity.
Despite the above written acknowledgement from UNFPA that interference is a serious concern when OAIS interviews witnesses, UNFPA’s Note to the Indian Mission of May 9, 2018, stated that the key witness in this case "has already been extensively interviewed" by OAIS—despite UNFPA being well aware that national authorities have not yet had the chance to conduct an interview. As a result, witness testimony could already be compromised.
OAIS further informed Ms. Tiwari that although the accused, who is a UN employee, must be afforded due process, the victim who alleges that he sexually assaulted her has “no corresponding right.” Mr. Palacios has already had access to Ms. Tiwari’s full statement and allegations made in the internal UNFPA “investigation” and has been able to prepare and submit his defense and response, all before the national police have been able to even question him. Ms. Tiwari has been refused access to Mr. Palacios’ statement and response, even though OAIS has admitted in an email exchange with Ms. Tiwari that there is no “explicit provision prohibiting the sharing of a subject's statement.”

Not only have UNFPA’s actions to date been questionable on the basic principles of fairness, justice and equality before the law, but they have been questionable even when scrutinized against the stated policies and practices of the UN with regards to immunity, investigations, and impartiality.

Dr. Kanem, the case of Mr. Palacios is not simply about his actions in sexually assaulting, harassing, and waging a personal campaign of retaliation against Ms. Tiwari. It is also about his protection, his impunity, and the continuing efforts by UNFPA to stall, deter, dissemble, and manipulate—actions that collectively demonstrate the truth of the adage, “justice delayed is justice denied.”

We cannot watch silently as Ms. Tiwari is further denied justice with every passing day. We cannot stand silent while the UN lays claim to a “victim-centered approach” to ending its crisis of sexual exploitation, abuse, and harassment while grossly mistreating this victim and going above and beyond to protect an alleged sexual offender. There is clear evidence of bad-faith actions and attempts to interfere with criminal accountability. UNFPA claims special expertise in ending sexual violence and abuse worldwide; it is led by you, a woman leader from the Global South, in an era when the UN has made clear its intent to transform itself through the appointment of more women leaders. But like other UN entities that are stubbornly swimming against the tide of the #MeToo movement, brazenly exhibiting double standards when it comes to their own conduct, UNFPA also stands to lose the confidence of the public, of civil society, and of the populations you serve. The only way to rectify this situation is to immediately and without reservation:

Order UNFPA personnel to desist from making any further determinations relating to immunity and taking actions that are outside the stated policies and practices of the United Nations.
Request the Secretary-General exercise his right and duty to make a determination of whether immunity applies for the accused and witnesses in this case and ask that he lift their immunities without delay for the purpose of cooperation with the justice process.
Commit to full cooperation with Indian police investigators under conditions of confidentiality and impartiality as required by law, lifting all restrictions on interviews by Indian authorities.
Promptly investigate and sanction every member of your staff who has taken part in the multiple bad-faith and coercive acts that we have listed above.

We would hope that any Under-Secretary-General of the United Nations upon learning of the wrongs committed under her watch would see fit to extend an apology to Ms. Tiwari for delaying justice, thereby sending a message to other women and girls that UNFPA’s mission and mandate are not empty platitudes.

On behalf of Ms. Prashanti Tiwari, and of the women and girls worldwide who are perplexed by the appearance that UNFPA preaches one set of standards while practicing another, we respectfully request your acknowledgment and response.

Sincerely,

Paula Donovan Stephen Lewis
Co-Director, AIDS-Free World Co-Director, AIDS-Free World

Photo: UN Photo/Manual Elias

Open Letter to UNFPA's Kanem Seeks Action on Sex Assault Case