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Reputation and the Accountability Gap

  • Kristen Boon (a1)

Extract

In her recent article on the reputation of international organizations (IOs), Kristina Daugirdas concludes that reputation's constraining effect has some serious shortcomings in the context of sexual exploitation and abuse (SEA). This essay extends those conclusions to recent mass torts cases against IOs. In particular, it argues that member states and IOs have independent and overlapping concerns that have contributed to devaluing the relevance of a “good reputation,” particularly when it comes to providing compensation for wrongful conduct. IOs, it seems, do not want to develop a reputation for deep pockets. Nonetheless, this essay also demonstrates that when compensation is not at issue, there are instances in which reputation matters to IOs. It concludes by discussing recent cases related to responsibility and organizational immunities and suggests that the trend of narrowing immunities may change the reputational calculus for IOs and member states significantly.

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Copyright

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

References

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1 Kristina Daugirdas, Reputation as a Disciplinarian of International Organizations, 113 AJIL 221, 222 (2019).

2 Thanks to Michael Byers for this point. Cf. M. Cherif Bassouni & Douglass Hansen, Africa Debate: Is the ICC Targeting Africa Inappropriately?, ICC Forum (Mar. 17, 2013); Zaya Yebo, Is Africa on Trial? Global Pol'y F. (Apr. 8, 2015).

3 See, e.g., Layton Charra, Burundi's Challenge to the ICC's “Africa Bias”, 39 Mich. J. Int'l L.: Associate Editor (Nov. 2017) (“As long as the ICC's prosecutorial activities are concentrated in Africa, the institution will continue to be perceived as reinforcing global structures of inequality. Thirty-four of the ICC's member states are African, indicating that the continent was largely on board with the project at its inception, but perhaps now believes that its hopes in the institution were misplaced. This predicament only emboldens the dictators from whom Africans seek protection and allows them to exploit disappointment in the ICC for their advantage, as is evinced by the many indications of withdrawal.”).

4 For example, most of the African cases were referred by African states themselves. Nonetheless, the perception of bias remains. See, e.g., Alexandra Zavis, Only Africans Have Been Tried at the Court for the Worst Crimes on Earth, L.A. Times (Oct. 23, 2016).

5 The same conclusions may also apply to the International Financial Corporation, as illustrated by the Jam case, discussed infra note 32.

6 See Comments and Observations of the United Nations on the Int'l Law Comm'n, Draft Articles on the Responsibility of International Organizations, UN Docs. A/CN.4/637/ and Add.1, at 161–62 (Feb. 17, 2011) [hereinafter Comments].

7 However, there is precedent for the UN providing lump sum compensation. See Exchange of Letters Constituting an Agreement between the United Nations and Belgium relating to the Settlement of Claims filed against the United Nations in the Congo by Belgian Nations, 1965 U.N. Juridical Y.B.: Part One, Chapter II, 39–42 (Feb. 20).

8 See, e.g., Colum Lynch, Trump Won't Pay a Penny for UN Cholera Relief Fund in Haiti, Foreign Pol'y (June 1, 2017).

9 Nick Cumming-Bruce, UN is Rebuked by Own Expert for Neglecting Kosovo Poisoning Victims, N.Y. Times (Mar. 19, 2019).

10 Id.

11 UN's Ban Apologizes to People of Haiti, Outlines New Plan to Fight Cholera Epidemic and Help Communities, UN News (Dec. 1, 2016) (“In December 2016 Ban said: ‘On behalf of the United Nations, I want to say very clearly: we apologize to the Haitian people. We simply did not do enough with regard to the cholera outbreak and its spread in Haiti. We are profoundly sorry for our role. Eliminating cholera from Haiti, and living up to our moral responsibility to those who have been most directly affected, will require the full commitment of the international community and, crucially, the resources necessary.’”).

12 Id.

13 N.M. and Others v. UNMIK, Kosovo Human Rights Advisory Panel (Dec. 2016).

14 For the current status of these funds, see Haiti Trust Fund Fact Sheet, UN Dev. Grp.: Multi-Partner Tr. Fund Office; Lead Contamination Kosovo – Dialogue with the Secretary General and Lead Contaminations Documents, UN Hum. Rts.: Office of the High Commissioner (Mar. 13, 2019).

15 José Alvarez, The UN in the Time of Cholera, 108 AJIL Unbound 22, 23 (2014).

16 See, e.g., Robert McMahon, The Impact of the Oil-for-Food Scandal, CFR Backgrounder (May 11, 2006) (additional related materials). See also UN Sec'y-Gen. Press Release, Secretary-General Waives Legal Immunity of Staff Member Under Investigation for Procurement Misconduct, UN Docs. SG/SM/10710-ORG/1475 (Nov. 2, 2006).

18 See, e.g., United States v. Bahel, 662 F.3d 610, 610–26 (2d Cir. 2011).

19 Reparation of Injuries Suffered in Service of the United Nations, Advisory Opinion, 1949 ICJ Rep. 174, 180 (Apr. 11).

21 James D. Fry, Coercion, Causation, and the Fictional Elements of Indirect State Responsibility, 40(3) Vand. J. Transnat'l L. 611, 638 (2007).

22 See, e.g., Comments, supra note 6, at 161 (noting that IOs have no taxing power).

25 Behrami v. France, Application No. 71412/01 & Saramati v. France, Germany and Norway, Application No. 78166/01, 693 Eur. Ct. H.R. (2006).

26 Larsen, supra note 24, at 509.

27 Frédéric Mégret, The Civilianization of War: The Changing Civil-Military Divide, 1914–2014 at 310, 319 (Andrew Barros & Martin Thomas eds., 2018).

29 Id. at 4.

30 Mother of Srebrenica v. The Netherlands, Nos. 200.158.313 & 200.160.317, Gerechtshof [Hof] [Court of Appeals] Den Haag, 2017 (Neth.). The State of the Netherlands v. Mothers of Srebrenica, No. 17/04567, Supreme Court of the Netherlands, 2019.

31 R. v. Secretary of State for Defense, [2007] UKHL 58 (appeal taken from [2006] EWCA Civ 327). See also Al-Jedda v. the United Kingdom, App. No. 27021/08 (Eur. Ct. H.R. 2011) (same).

32 Georges v. United Nations, 834 F.3d 88 (2d Cir. 2016).

33 Jam v. Int'l Fin. Corp., 139 S. Ct. 304 (2019).

34 See, e.g., Waite and Kennedy v. Germany, Application No. 26083/94; Beer and Regan v. Germany, Application No. 28934/95, ECHR 1999-I

35 By this, I mean ARIO and the Articles on the Responsibilities of States for Internationally Wrongful Acts exist side by side but are not unified. Moreover, individual responsibility exists in the criminal domain internationally, while there is no other developed responsibility regime for nonstate actors such as corporations.

36 This was the conclusion reached by the Institut de Droit International on the Legal Consequences for Member States of the Non-fulfillment by International Organizations of their Obligations towards Third Parties (Session of Lisbon, Sept. 1, 1995). See also d'Aspremont, supra note 23, at 95, who discusses exceptions to this general principle.

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