‘Functional Immunity’: The Complicated Path to Justice for Sexual Assault Survivors at the UN

In May 2017, Greta* arrived back at her Geneva apartment from a shopping trip to find over a dozen messages and missed calls from Emir, her former boss. Greta was conflicted and confused. What had started out as a friendship at the start of the year had become progressively more toxic.

She decided to call him back.

Emir was more senior than her at the United Nations specialised agency they worked at, and she was afraid of how he would react the next day at work if she ignored him. Emir, who was older than Greta and married, told her that he wanted to discuss divorcing his wife. He added that he didn’t feel well and needed to talk to her in person about his feelings for her.

The past few months had been extremely disorienting and stressful for Greta. It wasn’t long after she joined this UN agency that she realised it was a poisonous place to work. An authoritative internal report described it at the time as beset by “rumour” and “sabotage”, warning senior staff that performance appraisals shouldn’t be used as “a weapon”. Greta was bullied from day one, although it got worse at the start of 2017. It was then that she went to her then direct supervisor, Emir, to complain. From there, he started showing an unhealthy interest in her. At first, she rejected Emir’s advances but, under pressure and constant harassment for several months, she had started to reciprocate some of his feelings, although nothing physical ever happened. Greta felt powerless, confused and suffered from constant migraines and suicidal thoughts.

When Emir arrived at the house that Greta shared with her landlady, they went down into her basement bedroom to talk about the situation. But Emir started pushing her, moving his hands to take off her dress. “I can’t do it,” Greta told him, “you know I can’t do it.” Greta pushed his hands away. She heard the threads of her dress crack as he tried to pull it off. “I can’t do it,” Greta repeated, “I can’t do it.” She felt hysterical and desperate but still he continued.

Afterwards, Greta felt empty and violated. “I’m feeling better but I’m still sick and need your support,” Emir told her, “If you start hating me, it will kill me.”

A couple of days later, she went to see a psychologist. “It’s probably my fault,” Greta told her. “Maybe I provoked his interest somehow. It can’t be rape because nobody was beating me.” The psychologist explained that Greta showed symptoms of trauma bonding, also known as Stockholm Syndrome.

Greta went back to work just days later. She had since completely stopped talking with Emir on WhatsApp. Seeing him walking through the office corridors as if nothing had happened was extremely painful. It was made worse when Emir informed her a week later that there was an anonymous complaint against her for “unauthorised outside activity” – referring to some consultancy work she had done for another UN agency in her free time that Greta had disclosed to him a month before. Emir told her that an official investigation was about to get underway and suggested that she resign to save her reputation. Greta was convinced that Emir had made the complaint, something he denies.

Greta found the idea of going to the police too daunting. She was still processing what had just happened and prioritised her increasingly fragile mental state. In any case, as a senior UN staff member, Emir benefits from a form of diplomatic immunity and is therefore exempt from Swiss national laws. This immunity isn’t meant to protect UN employees from prosecution for sexual crimes, something the UN and its agencies reiterate. But it does make it harder. Instead of starting a case immediately, the Swiss authorities need to ask the permission of the Director General of Greta’s UN specialised agency, who can determine whether the immunity applies after considering the circumstances of her case.

Greta filed an internal complaint against Emir alleging rape, harassment and abuse of power. Little did she know that this would lead towards a lengthy and painful closed-door investigation where her legitimacy as a victim of harassment as well as a rape survivor would be determined by two separate risk consultancy firms on her employer’s payroll, according to documents seen by VICE.

Immunity is the result of a United Nations convention dating back to its very founding. It was on the 26th of June, 1947, that US Secretary of State George C. Marshall arrived at the United Nations’ first ever headquarters – a concrete annex to a factory they shared with a weapons manufacturer in Nassau County, New York. Marshall then made his way into the green-carpeted chamber of the Economic and Social Council and signed the Convention on the Privileges and Immunities of the United Nations – a watershed moment for the fledgling international organisation.

If the UN were to survive and succeed in its goals of promoting peace, security and human rights internationally amid allied powers jostling for superiority post-World War II, and with the Cold War beckoning, it needed to be independent and autonomous.

The signing of the convention, now by 162 of the 193 UN member states, ensures this independence. It gives the organisation itself absolute immunity, its senior employees the equivalent of diplomatic immunity and the rest of its staff what is known as “functional immunity,” so-called because it is only meant to protect them while they’re performing official duties. A UN military observer in a war zone shouldn’t be arrested for too much observing, for example, or a diplomat for outlining human rights abuses to disgruntled dictators.

But immunity has real implications for survivors of sexual abuse and harassment at the UN, an issue that the organisation has long been plagued with. For most sexual abuse survivors, prospects for justice can be slim. Only 1.7 percent of reported rapes were prosecuted in England and Wales according to figures from the Home Office last year. But for UN employees it is made all the harder. Cases involving sexual violence are time-sensitive by nature and the extra time needed to assess whether immunity applies and then lift it can impact any subsequent police investigation or criminal prosecution. And since the initial fact-finding is conducted by UN employees rather than fully independent law enforcement officers, critics also note that it can increase the chance of evidence tampering, as well as witnesses or victims being threatened.

Stéphane Dujarric, a spokesperson for the Secretary General told VICE News, however, that it is important to clarify that immunity isn’t granted for the personal benefit of staff. “Rather, immunity is granted in the interests of the United Nations only to facilitate its operations,” he said, “and the organisation will cooperate with national authorities prosecuting such crimes as appropriate.”

The statement continued: “The Secretary General has the right and the duty to waive any applicable immunity if he believes the circumstances require it. However, we’d like to stress that the organisation does not protect staff who commit crimes.”

The release of the Zeid Report in 2005 first outlined the prevalence of sexual crimes during UN peacekeeping missions, but the majority of the abuse in the UN system comes at the hands of its civilian staff, not peacekeepers, according to current Secretary General Antonio Guterres. For example, based on a report authored by Guterres, there were 95 allegations of what the UN calls “sexual abuse and exploitation” against UN civilian staff in 2019 alone. This tally doesn’t include sexual harassment, which doesn’t fit the UN’s definition of “sexual abuse and exploitation”. An internal survey undertaken by Deloitte of 30,364 UN employees found that one in three employees had been sexually harassed, most of which were women. The UN’s 15 specialised agencies, which includes the World Bank, the International Monetary Fund and the World Health Organisation, also don’t make any of their numbers public.

There has been a recent uptake in cases against senior UN officials amidst the #MeToo movement. Prashanti Tiwari, who worked for an organisation contracted by the UN population fund, accused its division representative Diego Palacios of sexually assaulting her in an elevator in 2017. She went to local police afterwards to report the incident but Palacios’s immunity has yet to be lifted. Tiwari accused the UN of hindering the enquiry. Again in 2017, Ravi Karkara, a senior official working for UN Women, was accused of sexual misconduct with several young men. His immunity wasn’t lifted as well but he was dismissed, which one UN spokesperson called the “strongest available disciplinary measure in the UN”.

Some have tried to challenge the legality of this immunity in court. In 2004, American Cynthia Brzak accused UN High Commissioner for Refugees Ruud Lubbers (a former Dutch prime minister) of sexually assaulting her during a meeting in his office. An internal investigation substantiated her claim and four other women came forward with allegations against Lubbers, but then Secretary General Kofi Annan still refused to lift the immunity, even after the report was leaked to the press and Lubbers was forced to resign.

Instead, many survivors of sexual abuse at the UN go down the route of trying to settle their cases using the organisation’s internal justice system, which is extremely complicated and differs depending on which agency you work for. Cases involving employees from the organisation’s main body, the Secretariat, are handled by the Office of Internal Oversight Services, its dedicated investigations agency that has come under criticism in recent years. In its specialised agencies, the process differs widely but can involve hiring risk consultancy firms – which are usually employed to mitigate risk and protect companies, not serve as investigator and judge in sexual assault and harassment cases. The UN budget for corporate consultancies was over $318 million between 2002 and 2006, which is the most recent publicly available figure.

“The one thing that is consistent across the UN system is that you will always be investigated and judged by people who answer to the same employer,” says Paula Donovan, the co-founder of Code Blue Campaign, an NGO that seeks to end impunity for sexual abuse by UN personnel. “There’s always going to be that bias. It’s a closed system too so there’s no checks and balances.” Immunity covers documents, words and deeds at the UN as well which limits oversight by member states or journalists. There is no such thing as a freedom of information law at the UN, for example.

A spokesperson for the Office of Internal Oversight Services (OIOS) told VICE News that, as an organisation, they are operationally independent, with over 100 staff worldwide, and are subject to external scrutiny from various advisory committees. “The Agencies, Funds and Programmes are often centrally located and not resourced to deal with spikes in demand and are therefore on occasion dependent on the use of consultants, to deal with fluctuating demand, in difficult locations,” the statement reads. “We do not accept that we are somehow inherently biased in our approach.”

Both the OIOS and the Secretary General have no direct line authority over the specialised agencies, who are operationally independent from the UN’s main body, and so it was stressed that neither OIOS nor the Secretary General could comment on Greta’s case specifically. “While there is an effort, through the UN Chief Executive Board, to harmonise practices the specialised agencies are not required to do so,” Dujarric explains, which is why they have been known to hire outside consultants for investigations.

There’s also the issue that legal standards can differ across each UN agency explains Donovan, who once worked with a sexual abuse victim at the World Food Program where investigators used “beyond a reasonable doubt” as the case’s legal standard. “You only set the bar that high if the punishment is going to be so extreme that they’ll end up in jail for 20 years, or a death sentence,’ Donovan says, “so it’s preposterous to see this in an administrative decision.”

Current Secretary General Antonio Guterres has claimed to have put the issue at the forefront of his agenda. Several days into his tenure, on the 18th of September 2017, he scheduled a high-level meeting where he said: “It is a moral and organisational imperative to put an end to sexual exploitation and abuse”. This jumpstarted what has been called a “zero tolerance policy” at the UN. But critics like Donovan say it is just a symbolic public relations gesture. The only authority the UN should have in sexual abuse cases, Donovan explains, is to ascertain whether or not the offence could have hypothetically happened before referring it to the proper authorities. “But the UN always oversteps their bounds; investigating something they have no authority, training or right to investigate.”

In November 2017, Greta filed a criminal complaint of harassment with Swiss police to try to get a restraining order against Emir. Over the course of the past few months, as the investigation into him got underway, Emir messaged and called Greta incessantly, going as far as getting into contact with her friends. One day she was on the train going into Geneva city centre when she saw him in front of her in the carriage. Greta panicked and sprinted away from him on the platform at the next stop. Fearing for her safety, she saw no other option.

But by the time Greta had filed the complaint (and still mid-investigation), Emir moved country to a job at another UN agency. Out of their jurisdiction, the Swiss authorities dropped the case. Instead, Greta concentrated on the internal complaint. At the time, she still had hope that maybe the investigation would end in her UN specialised agency lifting his immunity and referring the case to the appropriate authorities. But it dragged on and on.

In the summer of 2018, Greta was in her legal adviser’s office in Geneva’s old town. Sat at a white desk on the ground floor, an investigator from a small risk consultancy firm that had taken over the investigation from Ernst and Young (who undertook the preliminary investigation) was sat across from her. To her right was her legal adviser, a veteran lawyer with 26 years of experience when it comes to handling legal cases involving UN employees.

Greta was nervous – her mental health had severely deteriorated in the last year since the lengthy investigation had begun. Her psychiatrist had since diagnosed her with severe depression and Post Traumatic Stress Disorder, and these meetings were a trigger. The last one five months earlier was awful. Greta broke down several times as she relived traumatic memories of what she now clearly saw as manipulative and grooming behaviour from Emir as well as the subsequent rape. It didn’t help that the investigator’s tone was aggressive – it felt more like an interrogation than an investigation. Halfway through, she excused herself and went to the bathroom to cry. Two days later, Greta was admitted to hospital with such a severe migraine that she couldn’t walk or open her eyes.

This was typical of internal investigations at the UN, explains Greta’s legal adviser, who has handled roughly 20 cases of sexual abuse and harassment at the UN during his career. None of his clients have lifted UN immunity, although some cases have led to a dismissal. He explains that cases lack basic due process rights as well as impartiality since hearings are closed and rulings aren’t subject to any external oversight. He isn’t even technically Greta’s attorney but rather a third party that can accompany her to these meetings. As such, there are also limits to what he can do for his clients. Investigators, for example, have the authority to throw him out of the meeting if he oversteps his boundaries.

The investigation was completed at the start of 2019 and Greta’s rape claim was found to be unsubstantiated. She and her legal adviser didn’t know what more they could have done. They had submitted written testimony from several friends and her landlady saying Greta had described the encounter to them as non-consensual and coerced on the same day it happened. One friend described how Greta had called her up highly distressed and panicked. The final investigation report, which VICE News has obtained, dismissed all of this. Greta was “non-consensual after the fact,” the report claimed, suggesting that Greta wasn’t raped but rather regretted having sex with a married man; exactly Emir’s argument.

The report did say that Greta’s harassment claim was substantiated and noted “a perceived abuse of power” on the part of Emir. It also mentioned that Emir had failed to recuse himself from the separate investigation against Greta despite the evident conflict of interest. Emir, at another UN agency with his high-level immunity still intact, saw no repercussions and denied all allegations. Greta felt dejected, believing that her case was simply swept under the rug to protect her agency’s reputation. And since the UN internal justice system had spoken, she was left with few legal options. Besides, she couldn’t physically go through another investigation, a process that had triggered countless panic attacks.

But still, she fights on. Greta filed another complaint at Emir’s new place of work in the summer of 2019, hoping that the outcome would somehow be different. Last November, she received an official response from the UN agency while on the phone with me. The email was short, barely two paragraphs dismissing her complaint on “prima facie” (at first glance) evidence, adding that the case had already been investigated. Greta paused, stuttered then broke down in tears. “It’s so insulting. So insulting,” Greta said. Then she paused and gathered herself. “There is no justice in the UN. If you make a complaint, you are really crushed.”

*Names have been changed to protect their identities.

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James Walker Dipo Faloyin