If it has been that difficult for whistleblowers with the means and wherewithal to speak up, it’s exponentially worse for victims in poor countries to fight the UN’s immunity, a freedom granted to them through the 1946 Convention on the Privileges and Immunities of the United Nations.
“Today, in the 21st century, there’s no reason for the UN to enjoy an absolute immunity that harkens back to the days of kings and queens,” says Patrick Flaherty, a lawyer who specializes in whistleblower protection. “Unless that is addressed, there will be no effective oversight.”
Flaherty is one of the lawyers seeking retribution for the wrongful death of some 1,500 victims of cholera, a disease introduced to Haiti in 2010 by Nepalese UN peacekeepers. It’s the deadliest outbreak in the world and has killed nearly 8,500 people and sickened more than 750,000 people in Haiti. The plaintiffs say the UN is accountable according to a 2004 agreement in which it said it would compensate innocent third parties it harms while MINUSTAH was in country. The agreement provides for complaints before a Standing Claims Commission, composed of one person from the UN, one from the host country and one person appointed by mutual agreement. The commission is empowered to hear a complaint and compensate the victim, in a public recognition of wrongdoing.
The commission, however, has never been established. “The UN has relied on its absolute immunity to throw people under the bus,” said Ira Kurzban, another lawyer on the case. “Every agreement they have signed worldwide has this provision.”
There is only one case in MINUSTAH’s recent history when members of the mission were held accountable publicly. In 2011, a video was recorded on a cell phone of several Uruguayan troops laughing as they pinned down and sexually assault a young man later identified as 18-year old Johnny Jean. The video went viral and created an international outcry, resulting in three investigations, one by the Haitian authorities, a second by MINUSTAH and a third by the Uruguayan Defense Ministry. The Uruguayan defense minister, along with the Uruguayan president, also sent a letter of apology to the Haitian president over the incident and promised to compensate the victim.
The accused peacekeepers were repatriated and, in an all but unheard of bid for justice, the victim eventually flew to Uruguay to testify against his abusers; four of the five men accused were convicted, two years later, for “private violence,” which carries a more lenient sentence than a rape or assault charge. Still, some considered it a minor victory because, unlike the victims in the 2007 Sri Lankan incident, Jean was recognized as such by a public trial that acknowledged a crime had been committed.
The Sri Lankans repatriated 113 of their peacekeepers, including three commanders who were simply replaced by other Sri Lankan peacekeepers, all at the expense of the UN. Each contributing country now receives $1,332 per person per month, exponentially more than many of the peacekeepers earn back home, so peacekeeping is, for them, like so many poor countries, a cash cow. The government pays its soldiers based on their rank and experience. In addition, the UN compensates contributing countries a small stipend to cover other expenses. (MINUSTAH’s budget runs $850 million a year.)
“When the original unit of 113 was pulled out of Haiti, the UN cited that as a model for the rest of the UN membership which contributed peacekeepers. No other country at that time had taken such stringent measures when confronted with allegations of this nature,” says Sri Lanka’s Permanent Ambassador to Haiti, Dr. Palitha Kohona. Since, in Sri Lanka, the sex was considered to be consensual and thus not a criminal offense, the charges were limited to breach of the UN and Sri Lankan military codes of conduct, Kohona says, adding that several officers were asked to leave the military, others were demoted and eight were disciplined in such a way that they would have difficulty with future promotions and postings.
Contributing countries have a 10-day limit to take action against any UN personnel under their command accused of sexual assault and abuse. Kohona says the Sri Lankans reported to UN headquarters, but the UN’s internal oversight office says it has never seen the report. When asked for a copy, the Sri Lankans deferred to the UN peacekeeping operations unit to provide it, but repeated written requests to obtain a copy of the report went unanswered.
A long-time UN observer said that to some extent, the UN rules set “the fox to guard the chicken coop,” as members themselves set the rules governing conduct, order and discipline of UN forces overseas. The host country actually has no say in the matter once UN boots are on the ground.
Critics said that failure to prosecute peacekeepers who violate the policies on sexual abuse and exploitation demonstrates a laissez-faire attitude that permits politics to trump policy.
“Name and shame has to be increased,” said a UN investigator who spoke on condition of anonymity. “You have to have the courage, as an organization, to explain in detail what happened and also what you did with government X or Y so that it’s open. Often the UN is highly selective when it comes to accountability. More than perception, there’s no accountability.”
Take the case of the Pakistani contingent of MINUSTAH. In January 2012, several Pakistani soldiers reported to their commanding officer that contingent members were sexually abusing a mentally handicapped 13-year old boy in the town of Gonaives, some 50 miles north of the Port-au-Prince, since he was eight years old, passing his name from contingent to contingent for five years. Following the chain of command, the Pakistani commander should have reported the abuse to MINUSTAH, but he decided to handle it himself, hoping it seems, that it would disappear, since he was also abusing the boy.
UN police quickly ascertained that the Pakistani military had hired two local boys to take the victim away from the town without his mother’s knowledge or permission. They found the boy unharmed: one of the kidnappers escaped but the second, Alexandre Vladimir, was arrested and jailed. Vladimir admitted that the MINUSTAH commander from Pakistan had asked him to remove the boy from the area, and that the Pakistanis had come to his home bearing gifts for his mother: $12 and a sack of rice.
Collecting evidence can be tricky because of bribes, the reluctance or fear on the part of the victim to talk, evidence tampering or lack of evidence. Had the Pakistanis cooperated, the investigation might have concluded in even less time than the unprecedented 36 days. OIOS is often criticized for the length of time it takes to complete an investigation – back then, the average was 19 months. Today it’s 18 months.
Even the Haitian Senate became involved as news of Jean’s ordeal spread, passing a resolution requesting the trial be held in Haiti.
A UN internal document obtained by 100Reporters confirmed that the UN had agreed with the Pakistani authorities’ request for the nine Pakistanis charged with the rape and abduction of a Haitian minor to be rotated out of the country, but not before three of the officers were subjected to a court-martial in Haiti. While Vladimir served time in a filthy prison in Gonaives, the Haitians offered to build a separate jail to hold the Pakistanis before their trial. But according to a source with knowledge of the meeting, a dinner between the Pakistanis and the Secretary General for Peacekeeping, Hervé Ladsous, resulted instead in the accused being sent home.
The Pakistanis refused the UN’s request that it dispatch a senior government official to Haiti, and insisted that the court-martial, conducted by members of the national contingent who themselves were implicated in the allegations, be closed to outsiders. It was, the UN said, “[A] military justice procedure…undertaken in accordance with the national laws of Pakistan.”
The UN “also received verbal assurances from the Permanent Representative of Pakistan that he would see that the Government of Pakistan provide compensation to Haitian victims, if any,” according to a confidential UN cable to the Haiti peacekeeping contingent.
Instead of showcasing this investigation, the UN let it fizzle out, away from public view. No public court martial, no compensation for the victim. Pakistani troops continued then, as they do now, to rotate through peacekeeping missions, unperturbed.
“This system is frequently unsatisfactory in that the UN has no way of compelling member states to provide full information concerning the dispensation of individual cases,” said a senior UN official, who spoke on condition of anonymity. He admitted that it was “undoubtedly frustrating” for citizens in the host country, who seldom receive a “full accounting” once troops accused of rape are sent home.
The recommendations that were included in the Pakistani report mirrored those from five years earlier, which mirrored those in-between: more training, tighter supervision, expulsion and punishment back home, repercussions for willful obstruction of investigations.
Not a single high-level administrator has been removed from office for corruption in the past few years. Of the 99 cases brought by whistleblowers to an internal UN ethics committee since it started reviewing cases in 2006, only two have been substantiated.
“No one is guarding the guardians,” says defense lawyer Flaherty. “It’s a system set up by the defendant, controlled by the defendant and run by the defendant.”