Strengthening preemployment checks to prevent perpetrators from being hired is a key part of the response to sexual exploitation, abuse, and harassment, or SEAH, in the aid sector. But the framework proposed by the U.K Department for International Development in its consultation on the Aid Worker Registration Scheme does little to tackle the core issue and risks precipitating new human rights violations with respect to workers’ rights, data protection, and privacy.
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The scheme comprises an “ecosystem” of various initiatives which interplay to enable employers to check for past misconduct by prospective employees. While it is appropriate for employers to make such checks, how this is done is key. The individual schemes may each claim to be legally compliant but, working together, as proposed by the consultation, they risk undermining the spirit of the law and basic principles of fairness and justice.
The framework consists of the following complex initiatives:
The scheme enables participating organizations to share information on misconduct going back five years. This is a useful step forward but the scheme lacks a mechanism for ensuring that the shared information is derived from a fair and objective process. Employers are not always fair — this is why laws on unfair dismissal exist with cases adjudicated by independent tribunals.
There are reports of victims, whistleblowers, and witnesses themselves who make accusations of sexual misconduct facing retaliation and being dismissed on trumped up charges. Such risks are exacerbated by low levels of unionization and weak capacity on investigations in the sector.
The M&D scheme leaves it to the employee to challenge misconduct findings in the jurisdiction of the organization making the disclosure. This may not provide redress if contracts are governed by countries with weak labor protections — some of which are the biggest recipients of aid.
Aid workers often operate on contracts that are little more than good faith agreements, concluded with foreign organizations and under the laws of another country. Even if good labor laws apply, access to justice is a problem. Disputing a claim in a foreign court can be prohibitive given the cost, language, and legal barriers — imagine a worker from South Sudan trying to challenge an organization in Norway.
The M&D scheme currently covers SEAH but the consultation says this could “broaden out in time” to other forms of misconduct, thus heightening the risk of innocent aid workers being driven out the sector. Improved reference checks are a vital tool in the fight against SEAH but the M&D scheme needs a system of independent review, greater worker representation, restriction of its mandate to SEAH and better harmonization of disciplinary procedures — particularly if it is to be made mandatory.
Secondly, the proposed Aid Worker Registration Scheme aims to collect the biometric — iris and fingerprint — or other identity data alongside the work history of all aid workers. This data can then be accessed by employers to track misconduct using the M&D process or by Interpol for tracing criminal records. The British government is seeking to bring other governments on board to make the scheme truly global.
The data that can be collected depends on local laws, and once again local workers are likely to be disadvantaged if their countries do not have strong data protection standards. European aid workers benefit from the General Data Protection Regulation which makes it unlawful for biometric data to be collected without consent or made a condition of employment. Indeed, arguments that the scheme as a whole is compliant with GDPR are open to challenge.
The consultation is dismissive of concerns about privacy: hoping that countries with stricter regimes will change their laws over time, and saying that some aid beneficiaries already register biometrically, missing the point that they have no choice — they are on the brink of survival.
Ethics aside, questions also arise about the feasibility of collecting sufficient data about enough aid workers to make the scheme worthwhile. The proposed digital register is a disproportionate and expensive overreach into the personal data of potentially millions of aid workers, especially given that, as the consultation concedes, the “huge majority” are working “conscientiously and lawfully.”
Thirdly, other schemes include Interpol’s Operation Soteria, billed as a £10 million ($12.6 million) flagship SEAH project. This may assist with other matters — for example organized crime, terrorism, or sex tourism — but is unlikely to have a widespread impact on SEAH unless it addresses the predominantly localized nature of the problem with local criminal justice responses.
The U.N.’s Misconduct Tracking Scheme and ClearCheck are used to vet applicants for misconduct and also lack national oversight due to U.N immunity provisions. Nonetheless, the U.N. has comparatively established human resources capacity and any ban on recruitment only covers the U.N. system and not the whole sector. Worryingly, some proponents of the NGO and U.N. schemes are pushing for mergers.
The consultation concludes that it would be a massive and impracticable task to have one international aid worker regulator, since it would mean “having to evaluate the fairness of the original misconduct finding.” However, what is proposed, in effect, brings about the professional regulation of aid workers via the back door and without the usual safeguards, such as independent decision-making; legal expenses insurance; right to representation; or proportionate sanctions.
As a longstanding advocate for victims and survivors of aid worker abuse — and co-author of a report on sexual exploitation of refugee children by aid workers in West Africa in 2002 which first led to global policy on this issue — the need for more direct and immediate measures to address the problem are long overdue. Overly bureaucratic technological solutions are not the answer.
More effective, and yet to happen across the sector, is for organizations to: Empower vulnerable groups to know their rights; provide safe and accessible complaints mechanisms; carry out high-quality independent investigations; take robust disciplinary action against perpetrators — including sharing misconduct information if this can be done fairly; and support reporting to the police where crimes are involved.
This, coupled with stronger donor oversight, including through human rights fact-finding missions and spot checks to test the incidence of abuse on the ground, would send a clear signal that SEAH is not acceptable.