Save the Children report on aid worker/peacekeeper abuses

A topic that I have been meaning to blog on for a while now, the UK-based NGO Save the Children recently produced a report on a topic of huge importance, and with major areas of overlap with the GAL project: the abuse of power by the officials of international organizations engaged in humanitarian or peacekeeping functions. The report, entitled "No One to Turn To: The under-reporting of child sexual exploitation and abuse by aid workers and peacekeepers", is, as the subtitle suggests, confined to cases of the sexual abuse of children; however, many of the issues that arise in that context are of broader relevance for the question of the accountability of international organizations and their staff to third parties for rights violations.

The report makes three sets of general recommendations, two of which are of interest from a GAL perspective. Firstly, it proposes that wherever aid workers or peacekeepers are deployed, an "effective local complaints mechanism" should be established by the UN, with the participation of the national government in question and leading NGOs. This would ensure that those wishing to make a complaint could do so; that any such complaints were being investigated; and that all possible action was taken against the alleged perpetrator.

The second set of recommendations - and those that caught the imagination of the media - relate to the establishment of a new "global watchdog", located within the existing international structures (the Executive Committee on Humanitarian Affairs, the Executive Committee on Peace and Security, and the UN and NGO Task Force on Sexual Exploitation and Abuse). The proposed watchdog would have two main functions: firstly, to "monitor and evaluate the quality" of efforts by Task Force members to address the problem of child sexual abuse committed by members of their own organizations; and secondly to report back to the task force "on progress made and the challenges faced" in combatting such abuse.

Almost despite the subject matter, then, it seems plausible to suggest that the report and its recommendations fall largely within the realm of global administrative law; indeed, aside from the proposed creation of two administrative accountability mechanisms at different levels, the report does call for, for example, increased transparency from UN agencies and NGOs in sharing their internal statistics on reported abuse, and the responses taken (even if this information, in the first instance at least, is to remain confidential within the Task Force - p. 24). The elephant in the report, as it were, is, however, the vexed but important question of criminal liability, which is addressed only in passing, if at all. Instead, the issue of abuse is by and large treated as an administrative - indeed managerial - problem for the organizations involved; and it is in this that the report is ultimately a little disappointing.

Thus, the complaints mechanism remain a tool of essentially administrative oversight because it "would not in itself respond to allegations, but rather monitor and pursue the actions of others to ensure that the response was timely and effective" (p. 23) - including the local judicial system, but "only where it has jurisdiction". The issue of immunity is left entirely unaddressed; instead, where the local judiciary is unavailable or ineffective (as will often be the case in post-conflict or crisis settings), the international organizations present are encouraged simply "to take whatever steps are necessary to either create or strengthen a minimum protection response". This strikes me as neither a particularly robust nor far reaching "solution" to what is clearly an important and widespread problem.

Likewise, the global watchdog would not have any powers to actually investigate claims of abuse, but rather is simply there to monitor and evaluate the efforts of organizations in responding to the problem of child sexual abuse. In this, then, it remains an administrative oversight mechanism (if itself an administrative body); indeed, it's proposed role seems structurally identical to that of the individual complaints mechanism, simply extended from the micro- to the macro-level. There is, of course, the now ubiquitous "reporting requirement", along with the somewhat curious admonition that the watchdog should not simply point to deficiencies, but also "commend progress" - with perhaps even an annual award to the agency that has achieved most in this regard. Again, we might question here whether the proposals are robust and far-reaching enough to confront the gravity and urgency of the issue at hand.

This general feeling - that robust legal mechanisms and criminal liability - plays second fiddle throughout the report to a more managerial approach is confirmed by the tone and content of many of the justificatory passages. For example, in introducing the proposal for the new global watchdog, the report states that

[a] watchdog is a proven method of quality control in other sectors. It could help motivate international organisations to prioritise this issue by acknowledging progress and exposing inadequacies. It would trigger the leadership and managerial courage needed to put policies and guidance into practice.

And on the reporting mechanism:

Publishing data on allegations of abuse, and how they are responded to, international organisations would be open to evaluation by the general public, who they depend on for political and financial support. The conduct of staff would become a measure of organisational performance, much in the way that good financial management is within current reporting procedures in many international agencies.

No-one, of course, could deny that good managerial practice is important in all organisations, and that administrative agencies are not - or, at least, should not be - any exception in this regard; yet we are entitled to inquire as to whether framing a response to the issue of child sexual abuse by aid workers and peacekeepers entirely in these terms is appropriate. This holds even if we are concerned merely with the under-reporting of instances of abuse; however, as the third set of recommendations ("Tackling the root causes or drivers of abuse)" makes clear, the focus of the report is in fact much broader than its subtitle would suggest. They begin "To address the overall prevalence of child sexual exploitation and abuse in fragile states and emergencies...", and are perhaps the most disappointing element of the report, containing the vaguest formulations of such international organisation "staple recommendations" as "legal reform and policy development"; "capacity-building"; "awareness-raising"; "government-civil society partnership"; and so forth (pp. 25-26).

It is already becoming clear that the blanket immunity of international organisations is already being eroded by national courts where effective alternative means of redress are not provided (see, for more detail, this IILJ Working Paper by August Reinisch). While this is, at present, limited to internal employment disputes, the explicit human rights rationale animating these judgments will make it difficult, if not impossible, to refuse to set immunities aside in cases involving abuses of the rights of third parties, and a fortiori violations of the human rights of children. The Save the Children report has been useful in drawing attention to the issue it addresses as a whole; and it contains some interesting, if limited, GAL-related proposals for combatting it. Managerial improvements clearly have a part to play; however, it seems clear that far more robust administrative law mechanisms - not to mention effective provision made for individual criminal liability of those involved - have a much more important role to play in developing an overall strategy to confront the problem in question.

Radical changes in internet governance approved by ICANN

From the BBC, we learn that "a complete overhaul in the way that people navigate the internet" has been approved by ICANN (the Internet Corporation for Assigned Names and Numbers) during its recent meeting in Paris. The previously strict rules limiting the number of "top-level domain names", such as ".com" or ".co.uk", are to be relaxed, paving the way for more specific suffixes such as, for example ".sport" or ".nyc".

This will create opportunities and risks in equal measure, particularly with regard intellectual property rights. While companies will be able to fully incorporate their brand names within their web addresses, the possibilities for "cybersquatting" - the practice of unfairly registering domain names in order to make money - will be vastly increased. As the Guardian reports, however, the current move will not create anything like a free-for-all; some domain names could cost as much as ₤250,000, and all applications will have to be approved by ICANN.

Increased will of necessity create increased administrative discretion for ICANN; and the increased stakes in play will in turn mean that demands for accountability and transparency from all relevant stakeholders will only grow stronger. Perhaps it was with this in mind that ICANN published, in January of this year, a document detailing its "Frameworks and Principles on Accountability and Transparency". This document is interesting for a number of reasons, not the least of which being that it confronts ICANN's dual role as a private company fulfilling a public governance function, and the ways in which different stakeholders' expectations of accountability can conflict on that basis. In any event, this is clearly of great importance from a GAL-perspective, and deserves detailed attention in its own right; I will blog on it in more detail later in the week.

New DG at the International Organization for Migration

Until this year, the US candidate for Director General at the International Organization for Migration has been simply a shoo-in; this year, he seems to have been less of a shoo-in, but - ultimately - only marginally so. The official US candidate - Ambassador William Lacy Swing - won by a two-thirds majority vote of IOM Member States. That there was a vote at all, however, was unprecedented, with the current incumbent, Brunson McKinley, seeking re-election for a third term (another first). The other candidates were Sergio Marchi (Canada) and Luca Riccardi (Italy).

IOM has expanded greatly under McKinley, and is now a global administrative body of real importance. It is involved, for example, in the formulation and promulgation of "soft" standards (even if, to date, it rarely takes the lead in such initiatives, preferring instead to participate in projects led by other IGOs); perhaps more importantly, however, it often plays a key role in providing emergency aid relief and administering camps for internally displaced persons. It remains as yet, however, relatively understudied from an academic - and even more so from a GAL - perspective (although the word on the "GAL street" is that the forthcoming project on "international bureaucracies" by the Max Planck Institute in Heidelberg may go some way to rectifying this - I hope it does).

There has been little indication from Ambassador Swing as yet on any concrete GAL-related initiatives, although there is a decidedly managerial flavour to his words upon winning the vote: "My vision for IOM is for a collaborative organization of professionals built on trust and one that listens to Member States and which efficiently and cost-effectively helps them manage migration to the benefit of all". Not much to go on, but it could be that internal procedures are in for a shake-up in GAL-related ways (transparency, review, etc.).

Although the appointment ultimately went with past form (i.e. to the official US candidate), it will be interesting to see if the very fact of having a vote on this occasion will open up the field for future appointments. If so, the US may have lost its traditional monopoly over the Organization just at the point at which it is becoming of genuinely global importance. That, of course, may well be 10 years down the line...

A little more on the forthcoming Kadi judgment...

**UPDATE - the judgment itself has now been handed down. For an account, see here.**

While we wait impatiently for the European Court of Justice to hand down final judgment in the Kadi case - a case that, to my mind at least, has the potential to be one of the most significant developments in the emerging field of global administrative law to date - I thought it would be interesting to have a little more analysis - from a different perspective - on the affair, and on the Opinion of Advocate General Maduro in particular (my own take can be found here). This post was written by Giacinto della Cananea, Professor of Administrative Law at the University of Naples "Federico II" and Fellow of the Institute for Research on Public Administration (IRPA), who has published widely on European and global administrative law. It is an extract from a longer comment on the Kadi judgment, to be published later this year. I am grateful to Professor della Cananea for his permission to publish this insightful extract here.

1. On September 21, 2005, the Court of First Instance decided Kadi v. Council and Commission (Case T-315/01), the anti-terrorism case that has posed unprecedented questions concerning the relationship between a variety of legal orders: those of the United Nations and the EU, but also the European Convention of Human Rights. Kadi has also been the subject of public debate, in academic seminars, legal journals and blogs. The Court left standing every provision of EU regulations, although such provisions were challenged on a number of grounds, including both the right to property and fundamental procedural safeguards such as the right to be heard and the right to effective judicial protection. The underlying reason, the Court said, was not simply a compelling public interest, such as collective security, which justifies the freezing of the funds held by individuals and legal entities suspect of supporting terrorism, but also the necessity to comply with UN law. For true, the Court’s decision did not go so far as in declaring that such rights simply do not apply when the measures provided by UN resolutions are challenged. Rather, it said that in such cases less stringent criteria apply, unless jus cogens is involved.

This decision was criticised on several grounds by international, administrative and constitutional lawyers. Some of them argued that, once the Court had exposed hierarchical conception of the relationship between legal order, it should not have reviewed the legality of EU regulations. Others refused such a hierarchical conception and held that the Court was deviating from both principles and precedents. Were this analysis correct, the Court would have followed the model of the Quadi’s justice outlined by Max Weber, that is to say rule by whim.

However, the decision left open the possibility that the Court would follow the ordinary criteria when anti-terrorism measures are not introduced by UN institutions. Indeed, the Court did so when asked to review the measures decided by EU institutions and, in the case concerning the Organisation de Modhahedins du people de l’Iran (Case T-228/02), annulled the contested measures. This decision, however, did not overrule Kadi. Indeed, it was based on a clear, but questionable distinction between the cases in which UN law applies, and the other cases in which the measures adopted are the result of the choices made by EU institutions alone. This allowed the Court to ensure the respect of some fundamental procedural due process requirements (examined in my comment in 32 European Law Review 895, 2007) which had been severely limited earlier. Interestingly, this judgment was not appealed by the Council of Ministers.

2. Precisely because Kadi and other cases raise the question whether the EU protects adequately fundamental human rights, in the conclusions delivered on January 16, 2008 (Case C-402/05, Kadi v. Council and Commission) Advocate General Miguel Poiares Maduro suggested that it is the duty of the Court of Justice to reverse the judgment of the Court of first instance. He argued that the judgment is vitiated by an error in law regarding the competences of the EU, too. However, he decided to focus on what he considered as an unsatisfactory understanding of the role and value of fundamental rights within the EU. He affirmed that since the 1970’s fundamental rights form part of the legal order of the EC. Moreover, since 1992 the Treaty establishing the EU included fundamental rights among the values upon which the EU is founded (Article 6, §1).

This is the constitutional background in the light of which the AG raises the question whether the legal order of the EU is hierarchically subordinated to the resolutions adopted by the UN Security Council. His answer is clear and bold. No immunity from judicial review may be accorded to the measures aiming at implementing UN Security Council resolutions, if such measures are incompatible with fundamental human rights. He added, with a reasoning that evocates the German Constitutional court’s so lange doctrine, that the role of the European Court of Justice is particularly important due to the absence of adequate judicial remedies in the UN system.

This line of reasoning is of the utmost importance and must be studied very carefully, also for its unusual and useful comparison with similar cases dealt with by courts in other jurisdictions, including the US. However, several question arise. A first one, which immediately comes to mind from an American point of view, is whether EU courts should refrain from judging on political questions, such as those concerning involved by this case. Once this option is excluded, as the AG argued, another question arises, that is to say whether the rejection of any hierarchy between the legal orders of the UN and the EU is limited to cases involving fundamental rights or has broader effects. Whether not reversing Kadi would create a gap within the legal order of the EU and would thus invite the European Court of Human Rights to fill it, is still another question.

3. I do not exclude that the Court of Justice should annul the contested measures for the plain reasons enounced by the AG. Rather, I would suggest that the Court may reverse Kadi not for such reasons, which would oblige her to confront strong arguments concerning fundamental rights as well as complex political issues regarding the relationship between the UN and the EU. Kadi may be reversed for another reason, which is based on the principles governing the competences of the EU and their exercise.

A standard, though static, way to look at the competences of the EU would be to begin by noting that the EU is based on the principle of attributed competences. It may not, consequently, act beyond such competences. Seen in this light, the fact there is not a specific provision of the Treaty which entrusts EU institutions with the task of imposing financial sanctions on individuals, as opposed to governments, entails precise legal consequences. Such sanctions are vitiated by incompetence. As a result, the Court of Justice ought to annul them.

The persuasiveness of such an approach is, however, questionable. First of all, the competences of the EC have been extended in a variety of ways (the best account, in my view, is still that of professor Weiler in his essay on the “Transformation of Europe”). As a consequence, the EC deals with a wider and more differentiated range of interests, which resembles that of the States. This is still more evident within the EU, which is constitutionally entrusted with the task of ensuring public order and public security. The dynamics of European integration, therefore, are based on interests, rather than on competences, as professors Haas and Stone Sweet have convincingly held in different periods, but using a similar neo-functional approach.

Second, it should not be forgotten that the Treaty of Rome itself provides, though Article 308, a technique for adding new competences. The Court of first instance was aware of the risks implied in the use of Article 308 alone, as far as anti-terrorism measures were concerned. Accordingly, the Court excluded it (§ 121). However, the Court said that there are “good grounds for accepting that recourse to the additional basis of Article 308 is justified for the sake of the Community institutions the power necessary, in the field of economic and financial sanctions, to act for the purpose of attaining the objective pursued by the Union and its Member States” under the Common Foreign and Security Policy (§ 128). In other words, the Court is well aware of the lack of any express attribution to impose financial sanctions on individuals and other legal entities. But it finds evidence for a more favourable interpretation in the need to achieve the common objectives.

4. In my view, the Court’s underlying argument is political, rather than legal. As a matter of fact, the argument is that “the Union and its Community pillar are not to be prevented from adapting to those new threats” deriving from individuals and groups (§ 133). However, the consequences are legally relevant. First of all, EU institutions have exercised their powers beyond the category of States engaged in international terrorist activities or offering a shelter to terrorist groups. They have thus moved beyond a fundamental boundary concerning the balance of powers. Secondly, and consequently, the power to impose economic and financial sanctions is now exercised towards individuals and other legal entities. Both of them belong to a category of subjects which differs from that of the States. The difference between such categories has not lost legal relevance, if only for procedural reasons regarding locus standi, which the Court correctly recognized in this case. It is possible that the Court hoped not to undermine the external role of the Union and for this reason it concluded that “the Council has not widened the scope of Community powers” (§ 134). However, it is not possible to ignore the contradiction. When adopting anti-terrorism measures towards individuals and groups, EU institutions at the same time bypass a fundamental boundary and impinge on fundamental rights. As a matter of fact, at least in the European legal space, both the right to property and basic procedural safeguards are included within fundamental rights (Article 6 ECHR and Article of the First additional protocol).

I add that it does not matter whether the sanctions imposed on Kadi are the result either of analogical interpretation or of the widened scope of the EU powers. What matters, rather, is that such powers are exercised by the EU institutions under EU law. If there is a proper legal basis, as the Court itself affirmed, there is no reason to distinguish between two tests, one for UN measures and another for the measures adopted by EU institutions alone. The test that the Court of Justice has used in cases when other important fundamental individual rights were at stake is based on its own procedural principles. One of such principles is proportionality, which permits individual liberties to be abridged only when necessary to protect some important collective interest and to the extent to which this is interest may not be protected in a less restrictive means. Another principle is the right to be heard. Providing individuals with a reasonable opportunity to be heard and to provide evidence and legal reasons looks particularly important when measures having unfavourable effects are taken, such as sanctions. If the sanctions provided by EU regulations comply with these procedural principles, they are lawful. Otherwise, they must be annulled. It cannot be excluded that such measures pass the proportionality test, though if not a less restrictive means, at least a really temporary effectiveness of such measures would be needed. Anyway, it is unlikely that EU measures may be judged lawful from the other point of view. Of course, as professor Dworkin has argued, we would all be safer if we ignored the rights of due process, but this would undermine intolerably the constitutional guarantees on which our polities are founded.

In conclusion, the argument based on the supremacy of UN law should be dismissed. One thing is that EU courts are aware of the political and international implications of their judgments, another is to change the standards of legality, of which the courts have to ensure the respect.

The accountability of the "international": is it really that bad?

Apologies that things have been a bit slow on here of late; the New York summer tends to make those of us from cooler climes somewhat sluggish. To get the ball rolling again, I just wanted to flag briefly an interesting discussion on the comment pages of The Guardian recently, involving columnist Simon Jenkins and a response from Robert Lloyd, projects manager for global accountability at the One World Trust.

Jenkins:

Today the word "international" suggests tailored suits, tax-free salaries, white Land Cruisers and Geneva. The Eurovision contest is run by the European Broadcasting Union with 400 staff in Switzerland, with no risk of oversight or reform. It takes after the International Olympics Committee, which now charges its host taxpayers $20-30bn for two weeks of extravaganza in the name of bogus world brotherhood...

It may seem crude to leap from such mundane activities to world peace, but the ruling assumption is the same, that internationalism legitimises itself. It rises above (never below) the nation state and its rulemakers owe allegiance only to an ideal of global community, which means whatever they choose. The ever-more numerous world bodies to which the British Foreign Office subscribes need never pass the eye of any National Audit Office... It was only when America briefly withdrew from Unesco and capped its contribution to the UN that steps were taken to curb that organisation's waste and corruption, which culminated in Kofi Annan's obscene 2000 "poverty summit", which I watched as it gridlocked New York and emptied it of lobsters and champagne.

Lloyd:

Many of the organisations which Jenkins criticised have developed innovative ways in which individuals and communities can hold them to account. The UN Development Programme has adapted the principle of a national freedom of information act and now has a policy grounded in the presumption of disclosure. The UN Environment Programme runs regional conferences with civil society organisations that feed into its governing council. The World Bank has a mechanism for project-affected communities to initiate investigations when institutional policy has not been followed...

While I agree that there is an "accountability deficit" in multilateral institutions, I disagree with the way he equates all international organisations with bureaucracy, waste and a lack of accountability... My worry is that unless we start grounding the debate on international organisations in an objective analysis of what they are doing, rather than relying on anecdotal evidence that highlights failure, we will give fuel to those people who seek to undermine multilateralism just when we need it the most.

Hmmm. While Jenkins is, of course, largely correct in much of his analysis of inefficiency and waste within international organizations, his proposed solution - "more accountability" - is neither new nor particularly helpful (for a critique of "accountability" as slogan rather than solution, and a more refined analysis of the concept, see this paper by Richard Stewart). Lloyd's response has the merit of acknowledging the problem and briefly identifying improvements that might be extended more generally - many of which, of course, have been studied in depth within the GAL project already.