Fostering human rights accountability: an ombudsperson for the United Nations?

Author:Hoffmann, Florian
 
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In recent years, the UN has assumed a widening scope of responsibilities and has gradually been transformed from an intergovernmental organization to a global governance mechanism with an ever greater direct impact on individuals. This entails that the UN is also, in principle, capable of violating human rights and occasionally does so in different operational contexts. While this has raised demands for greater UN accountability, Hoffmann and Megret argue that the existing institutional mechanisms do not allow the UN to respond to these adequately. They then explore the contribution that a UN-wide ombudsperson could make to the objective of fostering UN accountability. Ombudspersons have become recognized almost universally as an indispensable good governance mechanism, and the creation of ombudsperson institutions in peacekeeping contexts, which may theoretically scrutinize the UN's own actions, shows that the time may be ripe for a more ambitious proposal. They conclude by outlining a few concrete suggestions as to how a UN-wide ombudsperson could work and how such an institution could be created. KEYWORDS: ombudsperson, accountability, UN, human rights, peacekeeping.

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The UN is involved in more activities than it ever has been. By and large, it is probably fair to say that its engagement has helped to improve many often intractable situations around the world. However, the UN has certainly not been immune to failures. Of course, some of these are bound to arise when it comes to an organization that is, after all, expected to deal with a wide range of the world's problems.

Yet there is an increasing number of such failures that cannot easily be blamed on the imperfect structure of international society and that would seem to exceed the limits of the UN's political and operational fallibility, properly understood. These are failures that are directly attributable to an incapacity on the part of the UN to live up to its own standards, particularly those standards that have been at the heart of its activities, namely human rights.

This occasional incapacity is in itself potentially very damaging to the UN's credibility. But it has only been made worse by the UN's failure to respond adequately to the question of accountability. In this article, we propose to examine the contribution that the creation of a UN systemwide ombudsperson could make to improving the UN's human rights accountability record.

The Accountability Problematique

Before we address some of the specific institutional forms that accountability might take, it is important to understand that accountability is essentially a demand, made by civil society in general, for the UN to be more responsive to complaints about the consequences of its actions. This demand covers a wide range of alleged UN shortcomings.

At one end are some of the UN's "structural failings." Srebrenica and Rwanda, in particular, stand out as striking cases where the UN's lack of political will and its operational meekness led to catastrophic consequences for entire populations. In situations where the UN had effectively undertaken to protect civilians, its incapacity to back promises by force led to what are arguably some of the worst stains on the organization's record.

However, the UN's accountability problems are not confined to the structural level. On a much smaller scale, the UN has not escaped criticism for some of the more significant negative side effects of its activities. Peace operations, because of their breadth and because they involve the use of force, were an early case in point. Already during the UN operation in the Republic of Congo (1960-1964), for example, concerns were raised about the possibility that troops operating under UN command had violated international humanitarian law. (1) Even in the context of lower-key peacekeeping missions, and aside from routine problems concerning compensation for use or destruction of property or accusations of drug trafficking and black marketeering, (2) UN Blue Helmets have not escaped accusations of occasional grave wrongdoing. In one notorious case, three members of an elite Canadian paratroopers regiment were photographed smiling next to the blood-drenched body of a tied-up Somali, leading to charges of acts of barbarity and torture. Similar accusations later surfaced concerning Italian and Belgian troops. (3) UN Protection Force (UNPROFOR) peacekeepers were also reported to have gravely misbehaved in a hospital they were guarding in central Bosnia. (4) After a string of incidents in Cambodia, Bosnia, Macedonia, Mozambique, West Africa, the Democratic Republic of Congo, and Eritrea, and following the publication of several UN reports, (5) it has emerged that rape, child prostitution, and the trafficking of women are a common consequence of the deployment of peacekeeping troops and civilian police forces in many operational theaters.

The problem has assumed even wider proportions in cases where the UN is entrusted with the administration of entire territories. Indeed, in both Kosovo and East Timor, despite UN international administrations' remarkable achievements there, UN police forces, for example, have been accused of brutality and illegal detention. (6) The UN Mission in Kosovo (UNMIK) administration, in particular, has been accused of authoritarian behavior and of ignoring the decisions of courts, an attitude that prompted the Organization for Security and Cooperation in Europe (OSCE) to note that the applicable domestic and international law "is almost universally ignored in Kosovo." (7) Moreover, UN international administrations have generally been described as unresponsive to calls for participation by the local population in decisions affecting its future. (8)

However, peace operations are probably only the tip of the iceberg, the most obvious manifestation of a growing accountability problem at the UN. There are many less prominent operational areas in which previously "submerged" accountability shortcomings have recently been brought to the surface. One example is the management of international criminal tribunals. Here, the UN International Criminal Tribunal for Rwanda has, in particular, come under substantial criticism for repeated failures to respect the rights of the accused and to compensate adequately when such abuses became clear. (9) Another instance of an unexpected accountability void is the international refugee regime. Although the recent "sex-for-aid" scandal (10) in Sierra Leone now appears to have been exaggerated, concerns about the failure of the UN High Commissioner for Refugees (UNHCR) to guarantee human rights in the refugee camps under its control are not new and raise similar questions of UN accountability. (11) Finally, there have also been complaints, even if on a smaller scale, in a number of other areas of UN activity, including humanitarian assistance, (12) development aid, (13) and health administration. (14)

It is apparent that the accountability problematique applies to a wide range of UN activities and covers a variety of problems, from political negligence to outright human rights violations. These are normally treated as distinct issues in what is, on the whole, a very scarce literature on the topic. Yet, following a more ambitious approach that we sketched out in a previous publication, (15) we propose to deal here with the UN's various accountability incidents as part of a larger genus of problems.

Indeed, the emergence of the UN's accountability problem may be seen more generally as a consequence of the gradual transformation of the UN from a predominantly intergovernmental organization into a global governance institution, a transformation that, in a context of crumbling or fragilized state institutions, is making the UN come increasingly face to face with the people it is ultimately meant to benefit. Therefore, at the heart of this problematique lies the issue of the UN's responsiveness.

The UN's Response

Traditionally, diplomatic immunity bestowed on many UN employees and special arrangements with troop- and personnel-contributing states, not to mention mere indifference, have been seen as a barrier to a more proactive engagement on the part of the UN. (16) The UN's typical response to the problems mentioned above has been to call for improved and broader training, (17) to issue codes of conduct and guidelines, (18) or to carry out lessons-learned exercises. (19) For example, after the refugee scandal in western Africa, the Inter-Agency Standing Committee (IASC) went so far as to set up a task force that adopted a Plan of Action on Protection from Sexual Exploitation and Abuse in Humanitarian Crises. (20)

Although all these steps may represent significant progress toward mainstreaming human rights into the UN, they have essentially been soft, preventive measures. As such, although they might trigger awareness of potential human rights problems, they are insufficient in terms of ensuring human rights compliance by UN personnel in future missions and of providing concrete and effective remedies for past abuses. As one report put it, in the context of the protection of children in peace operations, "Codes of conduct and specialised training do not seem to address the problem adequately.... Perceptions based on an eroded status ... for children will not be erased by a few hours or even days of human rights training. This suggests that ... stricter preventive and punitive measures may be the only solution." (21)

Admittedly, since episodes such as those in Somalia, the UN has become more sensitive to the need to show signs that it is responsive to demands for accountability in the particular context of peace operations. Both the Security Council and the General Assembly have directly addressed such issues as the special vulnerability of women, children, and refugees in peacekeeping contexts. (22) In recent cases of sexual misconduct by the UN...

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