Do Sexual Assailants In The United Nations System Enjoy Impunity?
Recent changes to the United Nations’ internal investigations processes are meant to respond to a growing number of sexual harassment complaints within the system. But will they make a difference?
By Masum Momaya
On 1 July 2009, the United Nations (UN) made some changes to its internal justice system of handling employee disputes. In part, the changes are a response to a number of sexual harassment complaints raised by UN employees. Among the changes are a mandatory course on sexual harassment for UN staff and an overhaul of investigations to be more professional and independent amidst the “bastion of bureaucracy” that the UN is reputed to be. 
UN mechanisms for dealing with the issue date back to 1946, although the UN did not have an official sexual harassment policy until 1992. 
The policy changes come on the heels of a 21 May 2009 Wall Street Journal (WSJ) investigative article detailing problems with the system - as evidenced through several high-profile and worrisome sexual harassment cases at UN over the last few years.
The WSJ article explains that “[m]any United Nations workers who have made or faced accusations of sexual harassment say the current system for handling complaints is arbitrary, unfair and mired in bureaucracy.”  According to the WSJ investigation, “[c]ases can take years to adjudicate [and] accusers have no access to investigative reports.”  Moreover, many UN employees have diplomatic immunity from criminal prosecution or civil litigation; thus, the internal justice system – flawed and all – is the only option for workers to turn to.
Sexual Harassment and Impunity for Assailants
In 2003, a Syrian woman working as a secretary to the male chief of the Kuwait office of the United Nations Development Programme (UNDP) filed a complaint alleging that her boss had made sexual advances towards her and then refused to renew her contract when she didn’t respond to his advances.
A UNDP investigation found evidence of such advances, but the complainant’s boss resigned shortly after the investigation report was filed. Authorities did not refuse his resignation, and no disciplinary action was pursued. The complainant, who had lost her job, received only $10,000 in damages. 
In 2004, a French woman working as a legal officer in Gaza for the UN complained that a director of operations, to whom she reported, sexually harassed her. A probe by the local UN agency in Gaza, which was led by the accused’s friend, cleared the accused, but the complainant took her case to the UN’s main investigative unit, the Office of Internal Oversight Services (OIOS). However, the accused reached his mandatory retirement age and left before the OIOS investigation was complete. Meanwhile, the complainant’s contract ran out and wasn’t renewed. 
By 2006, the OIOS had found some evidence of sexual harassment and concluded that it would have “recommended counseling” if the accused was still with the organization; however, as he had already retired, nothing could be done. The complainant pressed on, though, taking her plea for an equivalent job and compensatory pay to UN Secretary-General Ban Ki-moon, who rejected the appeal and sent it back for review to the local agency in Gaza that had initially dismissed the case. Three years later, as of this writing, her appeal is still pending. 
A high-profile 2004 case involving Ruud Lubbers, then head of the UN’s main refugee agency and former prime minister of the Netherlands, ended similarly. Although an OIOS investigation concluded that Lubbers had indeed sexually harassed a longtime American female staffer, then UN secretary-general Kofi Annan concluded that the findings could not be sustained. Lubbers denied any wrongdoing and resigned in 2005. Meanwhile, the American staffer faced retaliation, included threats of losing her job. When she filed a lawsuit in a New York court seeking damages, a federal US judge ruled that Lubbers had diplomatic immunity and dismissed the case. 
In subsequent years, several other female UN employees pursued their complaints of sexual harassment and successfully “won” their cases. However, officials were not able to take any action because, in each case, the accused had diplomatic immunity.  Such outcomes point to a gapping loophole in the system, and it is unclear whether any of the 1 July 2009 overhaul addresses this issue.
Advocates who have been pushing for reform are skeptical as to whether the changes will make any difference at all. According to the Wall Street Journal, Yasmeen Hassan, an attorney from Equality Now, who has advocated for the changes, “says she has “no faith” that the new system will be better, in part because complainants apparently still won’t have access to investigative reports to help with appeals.”
Currently, given the outcomes of these cases, a repeated message is sent that, even with evidence of sexual harassment, disciplinary measures are rarely taken, not taken in a timely manner, or foregone altogether because of contract expirations or diplomatic immunity; therefore, sexual assailants within the UN system seem to enjoy impunity.
“Investigators must be trained and supported, and investigations must be proactive”
Canadian Ethics Professor Michel Gorodo completed an evaluation of investigative division of the OIOS in 2007. He found many problems with the internal workings of the OIOS, including failure to invest in human resources and training for employees, micro-management and heavy-handed centralized control.  The 01 July 2009 revamp seems to acknowledge this need for more training and a higher degree of professionalism. 
Similar to the WSJ article, Gorodo concluded that probability of harassers getting caught was very low; that punishments, if enacted at all, were not severe; and that investigations have generally been taking a very long time to complete. Also, he found that investigations were highly reactionary and recommended the creation of a Sexual Exploitation and Abuse Task Force to proactively conduct investigations and analysis aimed at “responding to this highly visible and urgent area of misconduct” (p. 44).  The key, Gorodo argued, is increasing the probability that people will get caught and punished in a timely manner. “The current reactive investigations will not do this,” he concluded (p. 56).  Although UN spokespeople have made it clear that reforms are underway, details have not been specified. Thus, it is unclear whether any of the most recent reforms include the creation of such a task force or any other proactive measures or mechanisms.
Diplomatic Immunity an “Out”
The Government Accountability Project, a whistleblower protection and advocacy organization, has suggested that prosecution of assault perpetrators should be referred to the relevant national authorities for criminal prosecution so that diplomatic immunity doesn’t become an “out” for harassers.
Historically, diplomatic immunity, which ensures that diplomats are not susceptible to lawsuits or prosecutions under the host country's laws, has enabled diplomats to carry out their work in situations of tense government relations or armed conflict – but it has also been abused.
The 1961 Vienna Convention on Diplomatic Relations, which codifies diplomatic immunity into international law, states that it is possible for a diplomat’s home country to waive immunity, especially when the diplomat has committed a serious crime. Thus, this convention leaves open the possibility of harassers being tried in own countries. In some countries, though, sexual harassment, while shunned, is not actually illegal.
Sexual Harassment Plagues Many Institutions
Coined in the 1970s, the term sexual harassment has been used to describe a wide-ranging and sometimes nebulous category of speech and behavior that often includes “unwelcome, sexually determined behavior such as physical contact and advances, sexually colored remarks, showing pornography and sexual demand, whether by words or actions.”  Even where sexual harassment is legal, it is often difficult to prove decisively, and policy and trainings have not been very effective in curbing it because of its murky nature and poor monitoring mechanisms.
Generally, most institutions - large and small - have inadequate, reactionary processes to deal with sexual harassment, making many workplaces and advocacy spaces, at best, uncomfortable and, at worst, violating for women and men who, sometimes ironically, are working on issues of fairness, equality and justice.
To complicate matters further, critics point out that sexual harassment policies inhibit free speech and regulate sexuality overall, which, in the long run, will not solve the problem. They argue that more candid discussions of sex and sexuality, rather than punitive measures, are the only way to solve the problem in the long run. 
Meanwhile, the prevalence of sexual harassment continues to present challenges for those who work in the United Nations system. It also sets a poor example for those who look to the United Nations to uphold human rights. Ironically, CEDAW, the United Nations Convention of the Elimination of All Forms of Discrimination Against Women, which most of UN member states have signed, includes strong language condemning sexual harassment and encouraging governments to take proactive measures to curb and punish it.
As the WSJ concluded, while it is “impossible to know whether sexual harassment is a bigger problem at the U.N. that at other large multinational organizations,” some clear avenues for reform, including strengthening the investigations process and examining issues related to diplomatic immunity, must be taken to counter the perception – and the reality – that sexual assailants seem to enjoy impunity in the United Nations system.