The Government Accountability Project (GAP), which represents two staff members (one current and one former) at the Office of the High Commissioner for Human Rights (OHCHR) is concerned about the handling of allegations of child sex abuse by non-UN peacekeeping troops. We are troubled by and question the terms of reference set out for the External Panel appointed Monday, June 22, by Secretary General Ban Ki-moon.
First, the External Panel will conduct a review – or an assessment (the terms are used interchangeably) – as opposed to an investigation. This is an important distinction in law, as a UN investigation is an official process with clearly defined rights, responsibilities and authorities for investigators, witnesses and subjects. According to the Provisional Investigations Manual of the Office of Internal Oversight Services (OIOS), a UN investigation is:
A legally based and analytical process designed to gather information in order to determine whether wrongdoing occurred and, if so, the persons or entities responsible.
In contrast, a review is an ad hoc process that, in these circumstances, will conclude with recommendations that may or may not be acceptable to the Secretary General, rather than specific findings of fact that lead to accountability. In short, a review produces expert opinions, but an investigation produces probable facts. Given the harm likely done to hungry children obliged to submit to sexual abuse in return for food, clothing and petty cash, GAP argues that the allegations in this circumstance warrant an official investigation with all of the attendant authorities needed to find the truth.
Article 5 of the terms of reference for the Review, for example, demonstrates a fundamental weakness in the process announced. The article sets out the terms under which the Panel may access documents as it works, most notably those held by OIOS. Such access is to be allowed “…to the extent consistent with OIOS’ mandate.” Because OIOS is nominally independent, however, no document either produced or collected by its personnel may be officially provided to an ad hoc external review without explicit authorization.
In this circumstance, however, the official who would normally authorize the transmittal of such documents, to the panel or otherwise, is the USG for OIOS. She is, at present, implicated in potential abuse of authority due to her participation in meetings and discussions now alleged to be improper and related to the irregular investigation of an OHCHR official for reporting the abuse by non-UN troops in the CAR to French law enforcement.
Secondly, as representatives of UN personnel who have suffered retaliation for their efforts to address the allegations in a timely way, despite the cumbersome and dubious procedures of the OHCHR, GAP is concerned about confidentiality with respect to the Panel. The operations of the Panel may become a mechanism that transmits the information held by whistleblowers and witnesses to the officials responsible for mishandling allegations of child sex abuse.
Finally, the terms of reference are circumscribed with respect to identifying retaliation. The panel will assess:
…whether, at any stage, there was any incident of abuse of authority by senior officials, in connection with the Allegations, including in connection with the communication of the Allegations to one or more third parties, taking into account the procedures applicable to protection from retaliation and abuses of authority.
The applicability of OHCHR reporting procedures (which preclude a full reporting to law enforcement) in a situation where gross sexual abuse is visited on child victims, and the abuse is ongoing even as human rights officials interview the victims, is precisely what should be assessed.
This technique is familiar to UN observers. It is a predictable remedy for a politically embarrassing controversy. The review is announced with great fanfare, and an introductory statement sounds the categorically correct notes of concern, disappointment, determination, zero-tolerance, etc. Specific implementation of remedial measures, however, turns out to be less noble. Independent reviewers are later discovered to be less than autonomous of the UN, the inquiry is only a superficial evaluation, and problems are scrutinized within the framework of existing rules, when it is the framework itself that is really at issue.
Even so, often the circumstances that force even this much self-examination are so appalling that the opinions ultimately produced are quite critical. This may be true in this case, too, and we can certainly hope that real reforms emerge from this process.