Rethinking Immunity: Holding Foreign Aid Workers Accountable for Sexual Abuse after Jam v. IFC
The Supreme Court’s landmark decision in Jam v. International Finance Corp. reconceptualized immunity for international organizations sued over tortious acts. What might this mean for the United Nations and its subsidiaries?
World Health Organization headquarters, Geneva, Switzerland. © Yann Forget / Wikimedia Commons / CC-BY-SA.
BY: Daimiris Garcia, STAFF MEMBER
In September 2020, more than 50 women in Beni, Democratic Republic of Congo (DRC), spoke out about sexual exploitation and abuse at the hands of aid workers. They accused several male workers from the World Health Organization (WHO), International Organization for Migration, Doctors Without Borders, and other U.N. agencies of exploiting them during the 2018-2020 Ebola crisis. Aid workers allegedly drugged women’s drinks, forced them to have sex in exchange for jobs, and threatened their jobs if they refused to have sex. Since the news broke, these organizations launched several investigations into the allegations. The exploitation of women in Central Africa at the hands of aid workers is, unfortunately, not novel.
In the past, alleged rapists and sexual abusers of women in Central Africa have not faced consequences for their actions. United Nations (U.N.) employees and contractors are typically immune from lawsuits under the Convention on the Privileges and Immunities of the United Nations. Foreign aid workers are thus not held accountable for their crimes and victimized communities often have little recourse. Legal scholars who support immunity for international organizations argue that imposing liability for wrongful misconduct would lead to a fragmented legal order, interfere with the functional duties and core operations of international organizations, and defy public policy by allowing individual nations to interfere with the independence of international organizations. However, a recent Supreme Court decision rocked the foundation of immunity for most international organizations in the United States.
In February 2019, the Supreme Court decided Jam v. International Finance Corp., holding that international organizations that have a jurisdictional nexus to the U.S. may not be immune from suit in U.S. district courts if they fall under certain exceptions to the Foreign Sovereign Immunities Act (FSIA). Under customary international law, nation states are immune from suit in other nations’ courts. The FSIA provides limited exceptions to this rule, allowing foreign states to be sued in U.S. courts under certain circumstances. One such exception is for claims arising out of commercial activity in the foreign state.
In Jam, a group of Indian nationals brought suit in Washington, D.C. under the “commercial activities” exception of the FSIA. The plaintiffs, who were harmed by a coal plant funded by the International Finance Corporation (IFC), argued that the IFC’s private, market-rate lending in the U.S. constituted “commercial activity.” In defense, the IFC argued for absolute immunity under customary international law and according to the International Organizations Immunities Act (IOIA). In a surprising decision, the Supreme Court agreed with the plaintiffs and held that the IFC did not enjoy absolute immunity because the IOIA “grants international organizations the ‘same immunity’ from suit ‘as is enjoyed by foreign governments’ at any given time.” In other words, international organizations are subject to the same exceptions to immunity as foreign governments. If a foreign government can be hailed into court for claims arising from its commercial activity, then an international organization can, too.
On remand, the district court dismissed the plaintiffs’ complaint because the plaintiffs failed to establish that the tortious conduct occurred in the United States. But the Supreme Court’s decision did not clarify how the commercial activity exception applies to international organizations or whether any other FSIA exception applies to international organizations. The district court acknowledged that international organizations are not immune from suit over “commercial activity carried on in the U.S.” or “an act performed in the U.S. in connection with a commercial activity.” But whether an act is “carried on” in the U.S. is subject to interpretation. The district court held that an activity is “carried on” in the United States. if the activity has “substantial contact with the United States.,” is “performed” in the United States, and is commercial in nature. The court found that IFC’s failure to supervise the Indian coal plant was the cause of the tort and was not “carried on” in the United States within the meaning of the statute. Because the plaintiff failed to establish the exception to immunity, the district court dismissed the case for lack of subject matter jurisdiction.
Jam’s shift towards greater accountability for international organizations does not directly affect the U.N., as the U.N. does not rely on the IOIA for immunity. Instead, the U.N. has established absolute immunity in independent agreements with the United States. The U.N. Charter affords the organization “such privileges and immunities as are necessary for the fulfillment of its purposes.” Additionally, Chapter XV of the Constitution of the WHO states that the specialized agencies of the U.N., like the WHO, have all the privileges and immunities of the U.N. and the “technical and administrative personnel of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.”
Thus, the DRC victims can only sue the WHO in a U.S. court if the U.N. waives the jurisdictional immunity of the WHO foreign aid workers. The U.N. has the right to waive immunity under Article II of the Convention on Privileges and Immunities of the U.N. Under the definition of functional immunity in Article 105 of the Charter, the U.N. Secretary General may waive the immunity of its personnel, as it has done in the past, if staff members were not acting “in their official capacity” and their acts were not “necessary for the independent exercise of their functions.”
Should the U.N. waive immunity, the plaintiffs would not need to meet any of the FSIA exceptions. While there is no basis in international law to compel the U.N. to waive immunity, Jam may influence the U.N.’s decision nonetheless as the threat of liability has prompted other international organizations to take allegations of misconduct more seriously.
Thus, Jam may prompt the U.N. to restrict the immunity of WHO workers because of the United States’ apparent embrace of restrictive immunity for misconduct in international organizations. As suits against other international organizations become normalized, the U.N. will likely face greater pressure to consent to suit in similar cases. Additionally, future U.S. administrations might be tougher on the U.N. regarding allegations of sexual abuse by U.N. employees. For example, Congressman Mike Rogers introduced the American Sovereignty Restoration Act of 2019, which would repeal diplomatic immunity for officers and employees of the U.N. This might prompt a discussion within the U.N. about amending Article 108 of the U.N. Charter to permit legal liability in cases of sexual abuse. In essence, fear of losing blanket immunity might encourage the U.N. to waive immunity in select cases.
Jam has prompted other international organizations to change their internal accountability mechanisms to avoid the risk of U.S. litigation as well. For example, the International Monetary Fund (IMF), which has absolute immunity and is not directly affected by the Jam decision, has undertaken reforms. The IMF’s Office of Internal Audit “proposed a framework to triage and follow up on open management actions.” In its annual meeting, the World Bank-IMF Development Committee referred directly to strong social protections and institutional accountability in its development-related work.
The U.N. has worked proactively against sexual abuse by its foreign aid workers in the past. It launched several initiatives to prevent and respond to sexual exploitation and abuse in March 2019, including guidelines for investigations, a centralized tool for tracking victim assistance, and a new Victims’ Rights Advocate position in the Executive Office of the Secretary-General. Additionally, in 2019 the U.N. developed a policy to conduct an administrative investigation into allegations of sexual abuse by uniformed U.N. personnel, under which it dismisses the employee if the allegations are substantiated and refers the matter to the relevant member state for prosecution. Most of the allegations remain under investigation. Thus, the U.N. Secretariat and the Office of the Victims’ Rights Advocate could do considerably more to actively prosecute perpetrators of sexual abuse.
Overall, the victims in the DRC face substantial hurdles to successfully bringing private claims against the WHO in U.S. courts. However, Jam constitutes a shift in U.S. law regarding absolute immunity of international organizations and an important first step towards justice for victimized communities. As a result, policy makers in the United States and abroad might consider amending the foundational instruments of the U.N. to permit liability in cases of sexual abuse. Plus, as Jam liability changes the way international organizations view their duties to local communities, the U.N. may choose to voluntarily waive immunity in similar cases. Until then, alternative methods of redress for wrongful and tortious conduct provide a viable remedy for sexual exploitation by foreign aid workers. One such method would be an independent claims commission that investigates claims and allocates funds to victims. According to the WHO, an independent commission on sexual misconduct will “establish the facts, identify and support survivors, ensure that any ongoing abuse has stopped, and hold perpetrators to account.” The nature of such accountability is yet to be seen.
Daimiris Garcia is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. She graduated from the University of Florida in 2018. In law school, she interned for the Department of Justice, where she worked on issues of diplomatic, sovereign, and head of state immunity.