It’s Not Complicated: UN Must Clarify Immunity

• by Paula Donovan (new york)
• Wednesday, September 26, 2018
• Inter Press Service

Several of his accusers have gone public, describing how Karkara sexually assaulted and harassed them. One accuser, Steve Lee, alleged that Karkara grabbed his genitals in a Montreal hotel room—clearly, a crime. In announcing the firing, the executive director of UN Women said that Karkara "cannot be protected by diplomatic immunity" and UN Women "stands ready to cooperate with any national authority that decides to investigate this matter."

So: UN Women conducted a lengthy administrative investigation before announcing it was ready to cooperate with law enforcement.

While the UN has rights as an employer, employers' rights must never take precedence over criminal matters. Shouldn't the UN, as a matter of policy, inform victims that potential crimes can be reported to and handled immediately by law enforcement?

Shockingly, it does not. The United Nations has no uniform standard when criminal allegations of sexual abuse are lodged against its personnel. Our Code Blue Campaign's work with victims in recent cases involving accused UN perpetrators—including Luiz Loures of the Joint United Nations Programme on HIV/AIDS (UNAIDS) and Diego Palacios of the United Nations Population Fund (UNFPA)—reveals that different parts of the UN deploy different policies and procedures in a thoroughly ad hoc and inconsistent manner. The only consistent feature is a systemic protection of alleged perpetrators at the expense of victims.

The United Nations is, of course, a distinctive institution that must be permitted to operate on the world stage as a fearless arbiter of international norms. Since the world body's founding, UN officials have enjoyed "immunity"—codified protections from the willful actions of vengeful localities and governments.

Upon learning of alleged sexual violence by one of its non-military personnel, the United Nations can and should quickly make two determinations.

First, could the allegation in any way be construed as an activity the UN official was conducting as part of his official UN duties? According to a 1946 convention on the "privileges and immunities" of the UN, most UN officials—including Ravi Karkara and Diego Palacios—have "functional immunity," which means they are only immune from legal process for "words and deeds" committed in service of their UN functions. The UN has affirmed the truism that sexual crimes can never be part of UN functions.

Second, is it possible that the alleged crime could have occurred? The UN has a reasonable responsibility to ascertain not if the incident happened, but whether it could have happened. The UN should determine whether the alleged offender, for example, was in the vicinity of the alleged incident.

Once the UN has determined that the alleged act could have occurred and the alleged perpetrator is not protected by UN immunity, the UN must stand aside and let the national authorities of the country where the alleged crime took place do their job. Law enforcement and legal systems must be allowed to investigate and, if necessary, prosecute. Such are the necessary protocols of justice worldwide.

It must be emphasized: This does not currently happen. In sexual abuse cases, the UN routinely misapplies immunity to hinder police investigations of its accused personnel.

Take the case of UNFPA's Palacios. After a woman named Prashanti Tiwari filed a criminal sexual assault complaint against Palacios in early 2018, the UN asserted immunity. The police investigation stalled while the UN conducted a months-long internal investigation. Because Ms. Tiwari persisted, the police investigation is now resuming, but only haltingly and with continued UN interference.

The UN takes advantage of widespread, and wrongheaded, assumptions about UN immunity, which is imbued with an almost mystical power in the public mind. The notion that a UN official cannot be arrested is so deeply embedded that the Indian government had to ask the UN for official "clarification." (It received such clarification in writing—from the accused, Diego Palacios, the senior UNFPA official in India—who declared himself immune.) The UN fosters the misapprehension by shrouding its immunity in mystery. It consistently prevents any external oversight of its actions. It refuses to disclose basic information about cases, asserting "confidentiality" over the public's and victims' rights to information.

Our thorough examinations of cases reveal that UN policies and procedures are so deficient—so rife with conflicts of interest—that the 193 governments that govern the bureaucracy must undertake a radical overhaul and pay no more heed to avowals of "zero tolerance" from the Secretary-General.

As a necessary first step, UN Member States must temporarily impanel impartial experts—not employees—to oversee the UN's responses to claims of sexual exploitation and abuse across all parts of the UN.

It would monitor every step taken in real time, from receipt of each claim, through fact-finding and investigation, to the final outcome. We submit that a "Temporary Independent Oversight Panel," reporting directly to Member States, could be well placed to gauge the level of the organization's problems and make expert recommendations on the UN bureaucracy's policies and procedures.

The UN should not be making headlines for impeding law enforcement investigations of accused sexual predators within its own ranks. It should leave criminal justice where it belongs, in the hands of national authorities, and make headlines instead for solving the grave crises that are rending the planet.

© Inter Press Service (2018) — All Rights ReservedOriginal source: Inter Press Service