2. The regulation and the legal accountability of NGOs

Historically, the first official mention of the term ‘NGO’ in a legal document is Article 71 of the 1945 UN Charter, which, however, omits to provide a definition of what an NGO is.Footnote ²⁰ Defining the term ‘NGO’ is tough because of the diversity of the NGO sector and considering that multiple and, sometimes, even conflicting definitions of NGO, exist across disciplines.Footnote ²¹ According to Kamminga, NGOs are best defined negatively emphasizing what they are not: (i) they are private actors, not controlled or established by states; (ii) they are not revolutionary forces that seek to overthrow governments with violence, like liberation movements or armed opposition groups; (iii) they do not aim to acquire state powers, as opposed to political parties; (iv) they are not for profit, in opposition to companies; (v) they are not disrespectful of the law – although they might occasionally engage in civil disobedience – and this criterion distinguishes NGOs from criminal organizations.Footnote ²² NGOs are important actors for the promotion of human rights, sustainable development and social justice: their contribution to standard-setting, reporting, fact-finding and for the overall promotion, implementation, and enforcement of international norms, especially human rights, is significant.Footnote ²³ In addition to advocating on behalf of those unheard or unable to speak for themselves, NGOs play humanitarian and disaster-management roles bringing aid to those affected by armed conflicts, natural disasters, and famines.Footnote ²⁴ Likewise, NGOs are key players in the field of international development and, in some countries, like in Bangladesh, they operate as a parallel government as they invest more money in development than the national government.Footnote ²⁵ In recent years, there has also been an expansion of NGO activities at sea, ranging from protests aimed at scrutinizing the environmental impact of business actions to search and rescue operations for migrants.Footnote ²⁶

Regulating NGOs, while promoting their legal accountability through regulatory intervention, is a challenging task. All NGOs are constituted and regulated under domestic laws. When NGOs operate transnationally, they are subject to the regulation of the home country (where the NGO is legally headquartered to operate overseas) as well as to the regulation of the host countries (where the NGO operates on the field, for example providing services to the local communities). Although differences exist across countries in their regulatory approaches towards NGOs, governments typically regulate three core aspects: first, NGO registration and dissolution; second, NGO ability to engage in advocacy and political activities; and, third, the scope and the extent to which an NGO can engage in economic activities.Footnote ²⁷ Increased state regulation is rarely a viable route to promote more NGO accountability, because it carries the risk of restrictive and intrusive policies by governments that wish to curb NGOs’ activities for pure political reasons. Restrictions on NGOs’ activities are on the rise worldwide and this trend is not limited only to authoritarian or illiberal nations.Footnote ²⁸ According to the International Centre for Not-for-Profit Law, 161 restricting laws have been introduced worldwide since 2012 preventing NGOs from raising donations, providing services to those in need, and operate as watchdogs over governments.Footnote ²⁹ In December 2019, the Council of Europe reported that restrictions cover different kinds of NGO activities ranging from strict disclosure requirements about NGO funding to the criminalization of NGO boats rescuing migrants in the Mediterranean Sea.Footnote ³⁰ For CIVICUS (a global network of civil society organizations), the regulatory environment for NGOs has worsened as a result of the restrictions on freedom of assembly, freedom of thought and speech introduced worldwide, through emergency legislation, to tackle the Covid-19 pandemic.Footnote ³¹

In addition to the restrictive laws, a further issue is represented by the limited capacities of national charity regulators and watchdogs, like the Charity Commission for England and Wales, to enact accountability at the sectoral level. To elaborate, the regulation and oversight of the NGO sector is performed, at the national level, by charity regulations whose power is to grant and revoke the charity status and also issue disciplinary sanctions in cases of misconduct. Yet, charity regulators are often underfunded to perform their oversight and regulatory tasks,Footnote ³² have limited geographical and jurisdictional scope to assess NGOs’ misconduct overseas,Footnote ³³ and do not provide an avenue to ascertain NGOs’ liability nor do they offer victims of NGOs’ abuses reparations.Footnote ³⁴

Looking at international law, the regulation and accountability of NGOs is equally challenging. In general, the role and status of NGOs has been formally acknowledged in some international treaties, including the UN CharterFootnote ³⁵ and the Geneva Conventions.Footnote ³⁶ At the regional level, there has been a more comprehensive attempt to regulate the status of NGOs through the European Convention on the Recognition of the Legal Personality of International NGOs.Footnote ³⁷ International law does not place any involuntary and direct obligations upon NGOs from which their liability could arise for a shortfall in compliance. Under international law, the global system is state-centric and NGOs, like any other non-state actor, do not possess legal personality.Footnote ³⁸ For this reason, NGOs cannot be subject to the same accountability standards meant for states, for example the international human rights regime. It is worth noticing that the issue of NGO accountability was not even included in the study on the responsibilities of international organizations conducted by the International Law Commission in 2011.Footnote ³⁹ According to the Special Rapporteur Giorgio Gaja, NGOs were not included in this study because ‘they do not generally exercise governmental functions and moreover would not raise the key question of the responsibility of member states for the conduct of the organization’.Footnote ⁴⁰ There are, however, some international obligations which emerge from a series of partnership, co-operative and consultative arrangements that exist between NGOs and international organizations, notably the UN Economic and Social Council (ECOSOC) Resolution 1996/31,Footnote ⁴¹ which replaced ECOSOC Resolution 1296,Footnote ⁴² that prescribes a series of obligations for NGOs to gain and maintain their consultive status at ECOSOC.Footnote ⁴³ Essentially, NGOs undertake these obligations in exchange for being granted participatory rights at UN meetings, with penalties in the event of non-compliance, consisting either of the suspension or withdrawal of the consultive status.Footnote ⁴⁴ In that respect, Noortman noticed that the ‘apparent neglect for NGO responsibility/accountability in international legal discourse can be understood and explained by the combination and preoccupation with (the absence of) international legal personality and extant normative focus on NGO rights’.Footnote ⁴⁵

Another reason why the demand for greater accountability has been ignored in the international legal discourse is that NGOs are stereotypically seen as the ‘good guys’ among the different actors populating the international arena.Footnote ⁴⁶ Traditionally viewed as morally impeccable and selfless champions of human rights accountability, nobody ever questioned the human rights impact of NGOs on the populations they work with, their legitimacy to speak in international forums, and their transparency.Footnote ⁴⁷ Interestingly, this neglect makes NGOs underregulated, under international human rights law, compared to other non-state actors such as multinational companies. Indeed, the human rights responsibilities of multinational companies date back to the 1970s with the emergence of the ‘New International Economic Order’,Footnote ⁴⁸ and the creation of a set of non-legally binding standards, notably the 1976 OECD Guidelines for Multinational Enterprises (OECD Guidelines)Footnote ⁴⁹ and, more recently, the UN Guiding Principles on Business and Human Rights (UNGPs).Footnote ⁵⁰ On the contrary, there is no international instrument that outlines the human rights responsibilities of NGOs.Footnote ⁵¹

It is for the above reasons that issues of NGO accountability have been addressed predominantly through self-regulation: voluntary standards defined by NGOs, for NGOs (e.g., codes of conduct, accreditations schemes, peer assessment tools etc.). Over the past 20 years, there has been a proliferation of self-regulatory initiatives worldwide.Footnote ⁵² Prominent attempts to regulate the sector include the Sphere Standards (Humanitarian Charter and Minimum Standards), Accountable Now, and the Red Cross Code of Conduct. However, self-regulation has been criticized because it is often ineffective in promoting compliance with industry standards due to their voluntary nature, sometimes lack of adequate monitoring and enforcement mechanisms, and does not encourage beneficiary participation and stimulate peer-to-peer learning adequately.Footnote ⁵³ In the wake of the 2018 sexual abuse and exploitation scandals, the UK House of Commons International Development Committee concluded that the NGO sector should move beyond self-regulation, because it failed to ensure that safeguarding and accountability standards are being upheld by NGOs.Footnote ⁵⁴ The Committee labelled self-regulation as fallible because Oxfam was deemed to have one of the best accountability policies as certified by the Humanitarian Quality Assurance Initiative, which is commonly regarded as a credible certification body in the NGO sector.Footnote ⁵⁵ Accordingly, the Committee called for the establishment of an ombudsman asking the UK Government, together with Dutch Government counterparts, to display international leadership in making the ombudsman, namely the 2018 IOHDA, a reality.Footnote ⁵⁶

Before exploring the 2018 IOHDA proposal and seeing what this ombudsman should look like, the next section examines the first ombudsman proposal made in the field. From a historical perspective, the idea of an international ombudsman for the NGO sector is not unprecedented, a similar proposal having been made in 1997.

3. The 1997 British proposal: The Ombudsman for Humanitarian Assistance

The first calls for an international ombudsman date back to the 1990s.Footnote ⁵⁷ After the failure to protect civilians during the Rwandan Genocide, the 1994 Joint Evaluation of Emergency Assistance proposed the creation of an ombudsman as a solution to the poor performance of aid agencies and the lack of external oversight in the humanitarian sector. ^{Footnote 58} This proposal was then discussed on the occasion of the 1997 World Disasters Forum, which launched a feasibility study led by the British Red Cross and supported by several British-based NGOs: the Ombudsman for Humanitarian Assistance (OHA). ^{Footnote 59} The UK Department for International Development funded the project. It contemplated the creation of an independent and impartial body capable of overseeing and handling complaints against NGOs operating in humanitarian contexts, including failure to comply with the Red Cross Code of Conduct and the Sphere Humanitarian Charter and Minimum Standards. ^{Footnote 60}

The findings of the feasibility study releveled that the OHA would face significant challenges in delivering accountability, leaving many questions unanswered: unclear jurisdictional boundaries (should the ombudsman operate solely within the jurisdiction of UK organizations?), lack of legitimacy and authority (who is the ombudsman and who is the office accountable to?), and financing (who will pay for it?). ^{Footnote 61} The final report gave two options to NGOs: option one (Pilot Test) called for a pilot to test the OHA on the field involving NGOs outside the UK.Footnote ⁶² Option two (Do Nothing) offered NGOs the possibility of considering the study as a stand-alone project without taking further actions.Footnote ⁶³

In March 2000, the OHA proposal was aborted, and the project took a different direction following a meeting of NGOs at the International Federation of Red Cross in Geneva. ^{Footnote 64} Besides the challenges highlighted in the feasibility study, NGOs were not particularly enthusiastic about the OHA. Some argued that the OHA was promoting a model of accountability based on control and policing, which could be excessively intrusive for NGOs’ independence. ^{Footnote 65} The lack of clarity about the OHA enforcement powers, as well as the uncertainties regarding the jurisdiction of the OHA over those NGOs that did not support the feasibility study, were two reasons to terminate the project. ^{Footnote 66} According to Stockton, some NGOs were hostile to the OHA because they did not want to subject the ‘humanitarian act of compassion to technical, legal or contractual norms’. ^{Footnote 67} Hilhorst noted that the main reason for ending the OHA experiment was the reluctance of NGOs to yield power and autonomy to an external body. ^{Footnote 68}

Even if the OHA was never brought to life, the discussion about its establishment led eventually to the development of the first self-regulatory initiative in the humanitarian sector: the 2001 Humanitarian Accountability Project. ^{Footnote 69} Since then, the ombudsman proposal has been lost in favour of self-regulation. The rapid growth of self-regulation initiatives in the following years suggested that NGOs were confident in considering self-regulation as the main route to deal with their accountability issues. ^{Footnote 70} As documented in the introduction and in the previous section of this article, the idea of the international ombudsmen has recently re-emerged with confidence as an alternative to self-regulation’s failure in promoting accountability. The 2018 IOHDA proposal tabled by the Dutch gave to the NGO accountability community a new opportunity to discuss the feasibility of the establishment of an ombudsman, illustrating what this international body should look like.

4. The 2018 Dutch proposal: The International Ombuds for Humanitarian and Development Aid

Sponsored by the Dutch Government, the 2018 IOHDA scoping study was conducted by the International Institute of Social Studies, Rotterdam University.Footnote ⁷¹ The study involved contributions from 76 participants including donors, governments, UN representatives, national and international NGOs, the Red Cross, and experts in the field. ^{Footnote 72} The aim of the study was twofold: first, it aimed to assess whether there is a need for an international ombuds; second, it aimed to show how this brand new body might function and fit with existing NGO governance and accountability mechanisms. ^{Footnote 73}

The findings were promising in relation to the first aim of the study.Footnote ⁷⁴ The IOHDA was perceived positively by the vast majority of research participants with some considering self-policing as ineffective, and others that it had never worked in practice. ^{Footnote 75} There was also an overlapping consensus among participants that donor governments could do more in taking the lead in establishing this new external oversight. ^{Footnote 76} Participants also agreed that the IOHDA should play a complementary function in preventing and addressing abuses and that the primary responsibility for dealing with complaints rests on NGOs and existing mechanisms. ^{Footnote 77}

The IOHDA’s authority could come from a number of sources ranging from a voluntary agreement or moral pressure to national or international laws. ^{Footnote 78} In particular, the study provides six alternative options to clarify how the IOHDA could be established and where its authority would be derived from. Option one is that the IOHDA could be constituted through sectoral self-regulation initiatives and/or internal organizational regulation and its authority would be rooted in voluntary commitments.Footnote ⁷⁹ Option two proposes setting up the IOHDA in the form of a single private entity, such as an NGO/organization, under national law.Footnote ⁸⁰ Option three consists of framing the IOHDA as an individual donor mechanism that draws its authority from funding agreements.Footnote ⁸¹ Option four is a joint sectoral ombuds model, supported by donor funding requirements.Footnote ⁸² Option five contemplates the establishment of the IOHDA as an inter-governmental body set up through an international treaty.Footnote ⁸³ Finally, under option six, IOHDA would be a UN inter-governmental body/mechanism established through a resolution adopted by a UN body.Footnote ⁸⁴

There are, of course, pros and cons to each of these options. For instance, the study acknowledges that constituting the IOHDA within the framework of international law – as per options five and six – would give it strong authority and international reach, but this option would require significant inter-governmental agreements. ^{Footnote 85} Likewise, the study acknowledges that authority derived from a mixture of donor conditionalities, voluntary agreements, and moral pressure is more readily achievable. ^{Footnote 86} In terms of preference among the six options, research participants converged towards option four:

The IOHDA would be owned and governed based on a multi-stakeholder approach which involves both host countries and agencies (international and local NGOs, multilaterals, and private organizations). Donors are likely to get involved too in managing and setting up the organizational machinery, considering that IOHDA’s authority and existence will depend on donor’s funding.

In terms of organizations covered, the IOHDA will exercise different degrees of authority over a wide range of humanitarian and development entities including NGOs, the UN, and other multilaterals, the Red Cross, private organizations, and donors. ^{Footnote 88} So, the IOHDA is not proposed solely for the NGO sector. The authority of the IOHDA over these organizations may vary depending on the type of voluntary commitments and/or agreements between donors and funding recipients. ^{Footnote 89} Interestingly, it is suggested that the IOHDA could have the authority to assess complaints against those organizations not covered by voluntary commitments and/or donor requirements from which the ombuds will derive is authority from. ^{Footnote 90} Governments and peace-keeping operations are excluded from the IOHDA oversight.

The complaint mechanism should be available for aid recipients and affected populations, rather than for organizational personnel (like staff or volunteers) raising concerns on their behalf. ^{Footnote 91} In terms of jurisdiction and scope, the IOHDA should be there for all kinds of complaints made by the affected populations. ^{Footnote 92} These may include sexual abuse and exploitation, but also complaints about the quality of aid, or even cases regarding fraud and corruption. ^{Footnote 93} Therefore, the IOHDA’s scope is broad and covers a variety of issues. However, there was enough consensus among participants that the top priority should be given to sexual exploitation and abuse by aid workers.Footnote ⁹⁴ On this matter, research participants also raised a legitimate concern of how affected populations would access – and make a complaint to – the IOHDA due to issues related to geographical proximity, language and cultural barriers, and difficulties in capturing complaints on sensitive matters like sexual misconduct. ^{Footnote 95} To overcome these issues, and also be more accessible, it is suggested that the IOHDA will need to have an international presence through global and national-level networks of supporters and the capacity to undertake field missions. ^{Footnote 96} To make the ombuds as accessible as possible, it is also suggested that it could receive complaints from others speaking on behalf of complainants (e.g., staff, visitors or community members). ^{Footnote 97}

The complaint mechanism would be hierarchically organized into a two-tier system. ^{Footnote 98} As noted above, the IOHDA should play a complementary role in handling and addressing complaints against NGOs and thus the primary responsibility to deal with complaints rests on the organizations. ^{Footnote 99} Consequently, the IOHDA would operate as a second-tier appeal body and can be reached after internal and or sectoral organizational mechanisms have been exhausted by the complainant. Put simply, the IOHDA would be a last resort complaints mechanism. If the IOHDA is the appeal body, it is important that the first-tier system functions appropriately with NGOs being capable of handling complaints in the first place. In light of this, the IOHDA should also play a role in advising and helping NGOs to strengthen and develop robust first-tier complaint mechanisms. ^{Footnote 100} This advisory role should be accompanied by a proactive role that allows the IOHDA to conduct audits of the complaints mechanisms within the first-tier system to inspect whether they are functioning and to adequately respond to the needs of communities. ^{Footnote 101}

The primary role of the IOHDA would be to respond to complaints when they are not adequately handled in the first-tier system. In that case, there are three options available: (i) referral with or without accompaniment; (ii) enquiry, investigation, and recommendations; and (iii) liaising with the NGO, with a follow-up and escalation if necessary. ^{Footnote 102} On a technical level, the IOHDA would have no authority to impose legal sanctions, and it would rely on non-legally binding recommendations to address organizational misconduct.Footnote ¹⁰³ In the case of persistent non-compliance and/or failure to implement the recommendations by the NGO, the IOHDA may have the ability to publish the outcome of the investigation with the consequent threat to funding and reputation. ^{Footnote 104}

The next step that should be undertaken is the testing of the proposed model. ^{Footnote 105} The testing aims to shed light on the mandate, structure, and modalities of the IOHDA and to assess the support of stakeholders. More detail and further work about the development of the proposed model in terms of legal basis, organizational structure, costs, and nesting, is needed too. This step should be accompanied by an assessment of the status of existing complaints mechanisms coupled with a further test about the feasibility of the IOHDA in humanitarian and development sites. ^{Footnote 106}

5. Challenges

The scoping study is a good starting point to develop a comprehensive debate concerning the establishment of an international ombudsman. The study has the merit of unpacking the essential elements of the IOHDA in terms of scope, jurisdiction, role, and structure. Nevertheless, the scoping study is far from being exhaustive, and there are a number of challenges of a logistical or legal nature.

The study itself identifies several challenges which are, to some extent, similar to those faced by the aborted OHA.Footnote ¹⁰⁷ First, there are practical challenges revolving around the authority, logistics, and administration of the proposed body.Footnote ¹⁰⁸ The logistical and administrative complexities primarily concern the nesting and location of the IOHDA, considering that it requires a global presence and an international reach. ^{Footnote 109} The question of authority will need to be addressed more in-depth: from where does the authority of the ombuds come? ^{Footnote 110} This is a vital question because it is proposed that the IOHDA could have authority over a wide range of organizations, including those NGOs choosing not to support it actively. Second, there is an issue with the costing arising from the establishment and maintenance of the IOHDA. ^{Footnote 111} Apart from finding enough financial resources to support the proposed administrative machinery, the key question is whether donors or organizations should bear the costs of the IOHDA because the choice between these two options will inevitably influence the independence of the complaint mechanism. ^{Footnote 112} Third, there are legal and jurisdictional issues as well as the unanswered question of how the IOHDA would link with domestic laws and national authorities. ^{Footnote 113} Fourth, there are concerns about accessibility and the potential risks arising for the complainants given their vulnerability and the sensitive nature of the issues concerned. ^{Footnote 114} As already documented above, complainants might face language and cultural barriers in accessing the mechanism. Even worse, victims might decide not to report an incident due to a variety of reasons: fear that they could lose assistance from the NGO as a result of the complaint being filed, lack of trust towards the entity, lack of impartiality, gender inequalities, and power imbalance. ^{Footnote 115}

Beyond the logistic and legal issues identified by the scoping study, there are three other challenges that should be examined in greater detail.

The first challenge has to do with IOHDA’s jurisdictional scope and its misinterpretation of the ombudsman’s traditional role. As it stands from the scoping study, the proposed ombuds should have the authority to respond to ‘all kinds of complaints’ raised by the affected populations.Footnote ¹¹⁶ This is a broad scope which could cause ambiguity in terms of determining the ombudsman’s jurisdiction and competence. Pragmatically speaking, it would be unfeasible, not to say idealistic, to believe that a single scheme can be equipped with powers, resources, and authority to deal with an undefined number of issues and complaints. What is even more controversial is the strong emphasis on handling complaints regarding a series of misbehaviours that amount to offences under criminal law, including sexual exploitation and abuse by aid workers. While the proposed model has the noble ambition to tackle the impunity of sexual crimes in the aid sector, it should be noted that none of the existing ombuds schemes have been designed to deal with criminal issues. Their competence is traditionally limited to investigating issues of injustice arising from maladministration, such as the lack of transparency, administrative irregularities, or failure to uphold ethical principles.Footnote ¹¹⁷ In that regard, the IOHDA seems to misinterpret the traditional role assigned to ombudsmen as they do not deal with crime-related matters, nor do they exist to replace criminal courts. Furthermore, criminal liability is, by definition, personal and rests on individuals and it cannot be ascribed to the organization the individual – who allegedly perpetrated the abuse – works for. Put simply, the IOHDA is not a criminal judge. By the same token, Penny Mordaunt (UK Secretary of State for International Development, 2017–2019) highlighted that there is a risk that an international ombudsman might replicate certain regulatory institutions that are already in place at the national level, like the Charity Commission for England and Wales. ^{Footnote 118} For this reason, the ombudsman should not be framed as a global charity commission operating as a sort of supra-national NGO regulator. While ombudsman institutions do not and should not investigate the commission of a crime, they should and do have jurisdiction over a wide range of administrative authorities involved in the criminal justice area (e.g., ministries with responsibilities over criminal justice or the police force) and investigate whether there is illegal or improper administration in these areas. For example, the Spanish Ombudsman operates as National Preventive Mechanisms against torture and other cruel, inhuman or degrading treatment or punishment following the ratification by Spain of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.Footnote ¹¹⁹ More specifically, the Spanish ombudsman undertakes preventive work in the form of monitoring and visits to places of detention, institutions, and any other facilities where individuals are deprived of their liberty.Footnote ¹²⁰ Likewise, there are a number of ombudsman schemes dealing with allegations of corruption in the public sector operating in different jurisdictions, including the Republic of Korea, Jordan, and Ghana.Footnote ¹²¹ The World Bank acknowledges the key role that ombudsman schemes play in tackling corruption by ‘overseeing the conduct of senior public officials, collecting and reviewing assets and income declarations, investigating instances of alleged or suspected corruption, and educating and informing the public regarding issues related to corruption’.Footnote ¹²² In light of this, the IOHDA’s mandate should be to investigate whether the NGO leadership and management have engaged in conduct, or failed to act in ways, that did not prevent an employee from committing a crime or took follow-up actions to stop illicit conduct from happening again.

The second additional challenge is that the scoping study fails to mention that existing ombudsman schemes present limitations in holding public and private bodies accountable and have also been subject to criticism. In some countries, dissatisfied users of public service ombudsman schemes gave birth to associations – known as ‘ombuds watchers’ – to organize protests against the ombudsmen and advocate for their reform.Footnote ¹²³ In developing countries, ombudsmen emerged mainly because international donors, like the World Bank, put pressure on national institutions to deal with corruption and lack of transparency in the public sector.Footnote ¹²⁴ Yet, in some developing countries, ombudsmen remain largely ineffective or exist only on paper: ‘these countries have adopted this institution in an effort to improve their human rights image and it is more of a front or facade for human rights or democracy’.Footnote ¹²⁵ Examining the pertinent European Court of Human Rights (ECtHR) jurisprudence, Laffranque – former ECtHR judge – concluded that the ombudsman does not constitute an effective remedy within the meaning of Article 35 of the European Convention on Human Rights (ECHR).Footnote ¹²⁶ According to Laffranque, most national European ombudsmen have no power to impose legally binding decisions on administrative authorities, their investigations do not represent an effective remedy under the meaning of Article 13 ECHR, and this is so even in cases where the ombudsman has additional powers to launch court cases, or challenge the constitutionality of national laws.Footnote ¹²⁷

Looking at some of the criticisms relevant to development of the IOHDA, one issue would be that the IOHDA scoping study contemplates the possibility of receiving complaints from others speaking on behalf of complainants (e.g., staff, visitors, or community members), as a matter of enacting the accessibility of this accountability mechanism.Footnote ¹²⁸ Put simply, the complaint could be filed either by the affected person directly or by others speaking of his or her behalf. In putting emphasis on the importance of enabling and encouraging others to complain on behalf of the affected person, the scoping study adds:

In this context, an analogy with the UK Parliamentary Commissioner for Administration can be made. A common criticism of the UK Parliamentary Commissioner for Administration is that any complaints have to be filed through a Member of Parliament under section 6(3) Parliamentary Commissioner Act 1967.Footnote ¹³⁰ This requirement, known as the ‘MP filter’, implies that the complainant has no direct right of access to the ombudsman.Footnote ¹³¹ This filter has been viewed by many as an arbitrary barrier between the ombudsman and the complainant which, in turn, could be limiting to the ombudsman’s powers of investigation.Footnote ¹³² In 2014, the UK House of Commons Public Administration Select Committee was highly critical of the MP filter as it ‘disempowers citizens, obstructs access to their rights, and deters people from making complaints’.Footnote ¹³³ In light of this criticism, the UK Government published, in December 2016, a draft bill to create a Public Service Ombudsman for UK reserved matters and public services in England: one of the draft bill’s most notable innovations is the removal of the MP filter.Footnote ¹³⁴ Based on that, the idea of allowing complaints through a representative speaking on behalf of the complainant could have the paradoxical effect of rendering the IOHDA difficult to reach rather than enacting its accessibility, representing a procedural barrier similar to the MP filter.

Additionally, criticisms of the way in which ombudsmen operate are not limited to schemes existing in the public sector but also extend to those available in the private sector, including the 2019 Canadian Ombudsperson for Responsible Enterprise, a governmental executive ombudsman. According to Keenan, the Canadian ombudsperson has not been granted enough independence to conduct investigations about allegations of abuse by Canadian companies operating abroad because it operates under the direct control of government authority and advises the Minister of International Trade on issues concerning responsible business. ^{Footnote 135} These close ties with the Canadian government expose the ombudsperson to allegations that it lacks appropriate investigate powers to report its findings publicly and impartially and to encourage governmental pressure on companies in the event of non-compliance.Footnote ¹³⁶ This criticism is particularly pertinent for the issue of the IOHDA’s independence considering the uncertainties regarding how this ombudsperson would be sponsored and managed: as noted previously, the fundamental question is whether NGOs or institutional donors (like aid agencies and national governments) should bear the costs of creating and sustaining this new accountability mechanism.Footnote ¹³⁷ This implies that potential threats to the IOHDA’s independence could come from several sources, including institutional donors and NGOs’ self-interests. Furthermore, there are several issues related to the IOHDA’s independence which have not been addressed by the scoping study yet, namely: appointment, removal, tenure, and remuneration of the ombuds. These factors all matter in terms of ensuring and maximizing the independence of the ombuds from its sponsorship.Footnote ¹³⁸ In that respect, the 2019 Venice Principles on the Protection and the Promotion of Ombudsman Institution provide guidance regarding the procedure of appointment and dismissal of the ombudsman, as well as its term of office.Footnote ¹³⁹ These principles provide an optimal version of independence, where an ombuds is appointed by and reports to the legislative body, to investigate the administrative branch of the government.Footnote ¹⁴⁰ Albeit not written for the international or private sector ombudsmen, the Venice Principles can be relied upon to draft provisions governing the relationship between the IOHDA and its sponsor(s) – whether that be NGOs or institutional donors – ensuring that a set of adequate standards will be met when it comes to appointing, dismissing, and remunerating the pertinent ombuds.

The third and last challenge is that, so far, there has been little support for any form of mechanism or external scrutiny to hold NGOs to account, like the IOHDA, outside of donor relationships. ^{Footnote 141} This is a significant challenge because the scoping study indicates that one of the next steps is to investigate the support of the stakeholders towards this initiative.Footnote ¹⁴² While the UK House of Commons International Development Committee has been consistently sympathetic towards the establishment of the IOHDA, the UK Department for International Development labelled the same proposal as ‘impractical’ and ‘controversial’ and concluded that it should be abandoned.Footnote ¹⁴³ When questioned about the feasibility of the IOHDA, Professor Doretha Hilhorst responded that, even if the international ombudsman should play a complementary role in promoting accountability in light of the proposed two-tier system, organizations like the UN and the Red Cross are sceptical about it because they ‘do not see the need for external oversight as complementary to internal mechanisms’.Footnote ¹⁴⁴ Beyond the support that the IOHDA should gain in international diplomacy circles among governments, international organizations, and donors, there is the further challenge of getting the support of NGOs themselves. Apart from a handful of NGOs’ representatives that took part in the scoping study, there has been no real commitment by NGOs to backing the IOHDA through official campaigns and advocacy activities at the international level.Footnote ¹⁴⁵ In general, NGOs are a driving force behind the establishment of international accountability mechanisms. There are several international institutions that would never have been brought to life if NGOs did not campaign actively for their establishment and their creation was left to the mere political will of states and international organizations alone. For example, the establishment of the International Criminal Court (ICC) is the result of effective advocacy strategies performed by the Coalition for the ICC – a global network of over 2,500 NGOs – and it is for this reason that the ICC is regarded as an achievement of global civil society.Footnote ¹⁴⁶ Similarly, NGO advocacy has frequently triggered the processes of human rights standard-setting, leading to the codification of prominent international human rights norms including freedom from torture, rights of the child, and rights of indigenous peoples.Footnote ¹⁴⁷ In light of this, and given that the IOHDA is a body specifically designed for their accountability, NGOs should be the principal standard-setters for the proposed international ombuds. Unless NGOs campaign for such a normative change and take a proactive role in setting-up this new body, it is improbable that the IOHDA will ever be established. In that regard, it is worth recalling that IOHDA’s precursor (the 1997 OHA examined in Section 3) failed because of multiple reasons, including the fact that NGOs were generally reluctant to yield autonomy to an external authority empowered to scrutinize their conduct.Footnote ¹⁴⁸ For the same reason, it is more likely that NGOs will reject, instead of campaign for, an international ombudsman.

Moreover, it is worth noticing that most of the NGOs that took part in the scoping study operate internationally and are headquartered either in Western Europe or North America. More participation from grassroot organizations, NGOs based in the Global South, and of the affected populations, would have been desirable both in the scoping study and, at a later stage, in the standard-setting process of the IOHDA. More involvement of actors from the Global South is an imperative in light of the recent calls to decolonize the aid sector, unpack locally-led development, and shift the power from Northern to Southern NGOs. As documented by Deloffre, one of the reasons why the HAO failed is because it was perceived to be dominated by a small set of Global North actors.Footnote ¹⁴⁹ Interestingly, while the process for developing NGO self-regulatory standards, such as the Sphere Project, was more inclusive than the HAO and relied on a broad-based consultation, these standards still reflect the practice of a small dominant group of western-based NGOs who decided what game was being played.Footnote ¹⁵⁰

6. Alternative routes to enact NGO accountability at the international level

While the establishment of the IOHDA is being discussed in international circles as a potential solution to make NGOs more accountable, it is important to identify new and emerging routes to enact NGO accountability at the international level.

To respond to the accusations of sexual abuse in the NGO sector, there have been a few brand new regulatory initiatives, overseen by intergovernmental agencies, launched to strength safeguarding policies and move beyond sectoral initiatives largely based on self-reporting and self-monitoring. For example, INTERPOL, in partnership with the UK Department for International Development and the UK Association of Chief Police Officers Criminal Record Office, have established Project Soteria: ‘an initiative that seeks to develop mechanisms for safer recruitment of staff in the international aid sector, and prevent sexual offenders from using positions in the sector to access and offend against children and vulnerable adults,.Footnote ¹⁵¹ The aim of the project, which is currently being trailed, is two-fold. On the one hand, it aims at creating new criminal records and background checks for aid workers and promoting information sharing between aid and law enforcement agencies.Footnote ¹⁵² On the other hand, it aims at developing a ‘humanitarian passport’ so that the identity and work history of all individuals working in the aid sector can be checked and tracked more easily.Footnote ¹⁵³ At the same time, the OECD Development Assistance Committee adopted the 2019 Recommendation on Ending Sexual Exploitation, Abuse and Harassment in Development Cooperation and Humanitarian Assistance, a non-legally binding instrument that sets standards for member governments, bilateral donors, and their implementing partners, including NGOs.Footnote ¹⁵⁴ This instrument makes a number of recommendations to the adhering parties, including developing survivor- and victim-centred response mechanisms to deal with sexual abuse at the organizational level and ensuring international co-ordination with donors and implementing partners for abuse prevention and response.Footnote ¹⁵⁵ While the Soteria Project and the OECD Recommendation represent an important step forward in establishing new external oversights for NGOs, Clark warns about the potential challenges that NGOs might face from the implementation of these initiatives, including the duplication of mechanisms and standards, new layers of bureaucracy and additional resources to ensure norm compliance, the risk of inappropriate cultural intrusion, and competition between conflicting national standards.Footnote ¹⁵⁶

Another route consists in applying business and human rights law, meant to apply only to multinational corporations, to make NGOs more accountable for their human rights performance. In the past few years, there have been important developments in that respect. There is a growing number of NGOs that signed up to the UN Global Compact,Footnote ¹⁵⁷ together with emerging case law that suggests that the OECD Guidelines for Multinational Enterprises apply to NGOs and other kinds of non-profit entities.Footnote ¹⁵⁸ In February 2016, Survival International filed a complaint against the WWF under the OECD Guidelines, alleging the WWF’s involvement in human rights abuse of indigenous people in Cameroon.Footnote ¹⁵⁹ The Swiss National Contact Point (NCP) accepted the complaint against the WWF, asserting that the OECD Guidelines apply to NGOs when they: (i) carry out business activities, (ii) operate in more than one country, and (iii) are registered or operate in adhering countries of the OECD Guidelines.Footnote ¹⁶⁰ In addition to the WWF, there have been other complaints under the OECD Guidelines against different kinds of non-profit entities, including the international governing body of football associations, the Fédération Internationale de Football Association (FIFA), and multi-stakeholder initiatives, namely MSI Bunsucro, and Roundtable on Sustainable Palm Oil.Footnote ¹⁶¹ In deciding these complaints, the pertinent NCPs ruled that the OECD Guidelines apply to these entities, although formally non-profits.Footnote ¹⁶² Following a similar line of reasoning, Schimmel proposes to use the UNGPs as a normative template to define a framework for the human rights responsibilities of NGOs.Footnote ¹⁶³ Professor John Knox (former UN Special Rapporteur on Human Rights and the Environment, and member of the independent panel of experts to review the WWF accusations of human rights abuses) observed that the WWF’s new Social Policies and Standards, modelled on the World Bank, have basic flaws and that it should start over, building on UNGPs and human rights norms.Footnote ¹⁶⁴ Because new government-led international initiatives to regulate the NGO sector could be accused of concealing sinister political agendas, or at least of being inappropriately intrusive, business and human rights instruments, although not designed with NGOs in mind, provide an attractive and moderate avenue to enhance NGO accountability.Footnote ¹⁶⁵

In addition to the application of business and human rights law to NGOs, another route to enact NGO accountability consists in extraterritorial jurisdiction, that is: holding an NGO liable for misconduct perpetrated overseas (in host countries) using the law of the country where the NGO is registered or headquartered (home country) to operate internationally. The case law on the matter is still scant but there are a couple of landmark cases that deserve consideration. In 2016, Steven Patrick Dennis, a Canadian citizen, filed a lawsuit before the Oslo District Court against his former employer – the Norwegian Refugee Council (NRC) – over an incident that happened in Kenya.Footnote ¹⁶⁶ The Oslo District Court held that the NRC owes a duty of care to their employees when they operate in hostile environments overseas.Footnote ¹⁶⁷ In the aftermath of the Oxfam GB scandal in Haiti, Andrew MacLeod (former chief of operations of the UN Emergency Coordination Centre) advanced the possibility of using extraterritorial jurisdiction noticing that ‘if they [victims] were adults, perpetrators should be charged in front of the courts in Haiti because prostitution is illegal. If they are children, they should be charged in front of UK courts for breaking international sex tourism laws’.Footnote ¹⁶⁸ The statutory inquiry launched by the Charity Commission into Oxfam GB highlighted that NGOs are expected to report suspected criminal activity to overseas law enforcement authorities.Footnote ¹⁶⁹ Nonetheless, there still could be occasions in which reporting may not be feasible, such as when the victim’s consent is legally required for reporting, or when the victim lacks trust in the local criminal justice system because there can be a real risk of harm for cultural reasons (e.g., in situations of pregnancy outside of marriage, prostitution, sex with teenagers, or people of the same sex).Footnote ¹⁷⁰ Likewise, in explaining why Dennis succeeded in holding NRC accountable, Sandvik noted that taking NGOs to court through extraterritorial jurisdiction is an ‘extraordinary complicated, expensive and time-consuming process, involving multiple jurisdictions and languages’. ^{Footnote 171}