A humanitarian ombudsman revisited?

15 March 2018

In the wake of recent scandals, there have been renewed calls for an organisation or mechanism to hold humanitarians to account. Some have suggested the creation of a humanitarian ombudsman – an ‘official who hears and investigates complaints against government agencies’ – building on ideas that were originally explored twenty years ago. As two of those involved in that earlier effort, we think that the notion of an ombudsman – then and now – constitutes an interesting set of ideas, deserving of some constructive but critical reflection. Much has changed in the sector in the past two decades, but not everything.

 

 

The idea of creating an ombudsman was floated as one of the recommendations from the Joint Evaluation of Emergency Assistance to Rwanda in the mid-1990s. The British Red Cross offered to coordinate a feasibility study, which led to pilot initiatives in Afghanistan, Sierra Leone and Kosovo. This experience was then used to inform a series of subsequent initiatives starting with the Humanitarian Accountability Project, which developed into the Humanitarian Accountability Partnership (HAP), and more recently the Core Humanitarian Standard (CHS). The fact that the ombudsman approach was not taken further then, does not mean that it is not necessarily relevant today, perhaps as a complement to other initiatives. We suggest that there are some key areas that need to be considered when taking a fresh look at the ombudsman concept.

Is it about ‘standards’ or ‘laws’?

A widespread assumption behind the original push for an ombudsman was that the humanitarian sector was not living up to reasonable standards of services and protection. The voice of affected people, if amplified by an ombudsman in some form, would then drive reform. At the start of the feasibility study mentioned above, it was recognised that a focus on quality of services was not exactly what ombudsmen in other sectors and contexts generally do. Most either respond to complaints, or proactively initiate legal investigations in relation to violations of codified laws and regulations, and then turn their findings over to the relevant authorities.

In the field trial in Sierra Leone, the difficulty of determining how to respond to legal violations came to the surface when the affected people came to the ombudsman team, not with complaints about services, but rather about corruption in the sector. This gets at the heart of the current debate, as concerns now are not primarily about service provision standards, but rather about adhering to the law. In Sierra Leone this caught the team off guard, and there were no systems in place to turn over complaints to the police (as any ‘normal reactive ombudsman’ would have done). When the option of going to the police with evidence of crimes was raised, this clearly generated discomfort as it was not what the humanitarian ombudsman was expected to do.

Over the past two decades, the humanitarian sector has made significant progress in enhancing the quality of the services and protection that it provides and it is probable that the issues that an ombudsman would have to face today would likely lean more towards addressing failures to adhere to legal or regulatory norms, rather than humanitarian standards.

Who is the ‘independent, legitimate authority’?

This relates to the other major issue that would need to be addressed and which has been called for in recent weeks: that of determining who would or should have the independence, legitimacy and legal authority to act to stop the abuses that have come to light. As mentioned above, an ombudsman informs appropriate authorities, but in a humanitarian crisis, who is that? In the recent Oxfam case, the Haitian authorities pointed out that they were the legitimate authorities. In most disasters primarily induced by natural hazards the state may be the obvious authority, but what about in conflicts, where legal entanglements could create pressure points on humanitarian agencies and reduce their room for manoeuvre? What about the increasing occurrence of disasters in weak states? What about states like The Philippines, where authorities are publicly labelling human rights defenders trying to address the factors that generate disaster risk as ‘terrorists’? Is it possible to find some form of international jurisdiction to approach with information about the violations uncovered, and what would this imply?

One thing that has not changed in the past two decades is that we are facing the same conundrum: Who is in charge if we are going to find an alternative to the ‘self -regulation ’ that the humanitarian sector has embraced? What is the alternative?

Is there space for pluralism in today’s world?

We do not have an answer to this question, but we are certain about one thing –there are no easy answers. The multiple accountabilities, ambiguous legitimacies, unreliable judicial capacities, and the need to maintain humanitarian independence all point to difficulties. But recent events suggest that we need to bite the bullet anyway. The question is how?

In the original ombudsman discussions two decades ago we brought up the need to think about pluralism. We emphasised the need to maintain a clear moral and ethical compass in some very messy situations where the independent, legitimate authority may be a very diffuse figure. A somewhat unusual form of ombudsman may perhaps be able to play such a role, but that would require a recognition that such a function would need to manoeuvre in a complex arena, making difficult judgement calls along the way. Sometimes it would be appropriate to alert the police, other times, either agency or donor oversight functions. This form of ombudsman would not face an easy task. His/her decisions would certainly be fraught with controversy regarding legitimacy and jurisdiction, but could provide at least part of the path towards solutions to the challenges we face.

In light of this rather ‘messy’ setting, we suggest that a useful starting point for deciding if and how to design an updated approach to a humanitarian ombudsman function would be to take stock of the first attempt. This could be followed by a politically aware and ethically focused mapping of the current challenges, conundrums and opportunities and their implications for how a new structure might work.