Redefining Impartiality: Advocating for a Community-Centered Approach to Accountability Mechanisms

Our work with communities, human rights defenders and local organizations often revolves around supporting them to access independent accountability mechanisms (IAMs) tied to international finance institutions, to access remedy, often hailed as impartial channels for justice, play a vital role in addressing grievances and violations within communities. Yet the world is not a level playing field.

Picture this: on one side, you have formidable state institutions with vast resources at their disposal, including the ability to arrest, detain, and even subject individuals to torture. Or a multinational corporation armed with financial might, capable of buying influence, hiring security to instigate unrest, and stifling dissent within communities. On the other hand, you have a community facing disruption by way of a development project that they may or may not be supportive of. The community’s greatest strength is in its numbers, but that also means that they rise or fall in the unity of those numbers. Which rarely stands a chance against the powerful forces of the State or corporations. The imbalance of power is stark, and it takes immense courage for communities to, despite the odds against them, come forward and seek remedy.

These communities turn to accountability mechanisms, often their only hope to even the odds. However, as we delve into their journey, we uncover a paradox within these mechanisms. While they are meant to provide impartiality and justice, strict adherence to impartiality can sometimes render them ineffective in addressing the unique needs and vulnerabilities of the very communities they were established to assist.

This blog seeks to shed light on the limitations of strict impartiality within accountability mechanisms and calls for a shift towards a more community-centred approach. By examining historical examples and the original intentions behind the creation of these mechanisms, we can better appreciate the need to prioritize the well-being and protection of affected communities above the superficial notion of impartiality.

The Impartiality Paradox: A Context Analysis

At its core, impartiality implies an equal treatment of all parties involved. This might be an effective approach in situations where both parties have equality in power and might. Take an example of a classical commercial mediation between two companies where each party needs the other for the business to succeed. An impartial mediator is called for to ensure that both parties are active in the negotiation of what corrective action is needed to keep the businesses going.

While most companies would rather stay out of the formal judicial process because of its long delays and reputational risks, most “common folk” would rather seek alternative methods of seeking remedy because they view the judicial system as being biased in favour of the “rich and powerful”. Yet judicial systems are built to be impartial. An impartial system- the law is blind, they say- but there is nothing impartial or blind about the way vulnerable community members feel interacting with the system. Its strict adherence to impartiality often renders formal courts ineffective in addressing the unique needs and vulnerabilities of the community members. Why would IAMs practice the same strict impartiality but imagine the community experience and impact to be any different?

Apart from formal courts, other accountability mechanisms have been established to respond to human rights violations and global conflicts, including International human rights bodies, truth commissions, and similar entities. While their establishment was pivotal in holding states accountable, they occasionally failed to address the significant power imbalances between states and affected communities. This shortfall led to limited or ineffective outcomes, leaving communities without the redress they sought and further perpetuating the cycle of harm.

For example, The Truth and Reconciliation Commission (TRC) in South Africa was established to address the injustices of apartheid by providing a platform for victims and perpetrators to tell their stories. However, its strict focus on reconciliation and impartiality sometimes prevented it from addressing broader structural issues. Many argue that the TRC’s pursuit of impartiality allowed some perpetrators to avoid full accountability, leaving victims feeling unheard and justice only partially achieved.

Another example is The United Nations Peacekeeping Mission in Haiti (MINUSTAH) which was deployed to maintain peace and stability in Haiti. However, allegations of sexual exploitation and abuse by peacekeepers emerged. The impartiality of the accountability process was criticized for not adequately prioritizing the rights and protection of the victims. The emphasis on diplomatic immunity and the complexities of handling cases involving peacekeepers hindered justice and reparations for the affected individuals.

How communities are affected by strict impartiality of accountability mechanisms

• Reprisals and Threats to Community Members: Strict impartiality might not take into account the real-world risks that community members face when they engage with accountability mechanisms. When individuals within a community are targeted with threats, violence, or other forms of reprisals for speaking out against violations, mechanisms that focus solely on impartiality might inadvertently exacerbate these dangers.
• Dissuasion of Community Participation: Impartiality, if not balanced with a community-centered approach, can deter community members from engaging with mechanisms altogether. Communities that have faced historical injustices or ongoing vulnerabilities might feel that their grievances are not truly understood or valued, discouraging them from participating in the process due to a lack of trust.
• Neglecting Power Imbalances: Impartiality might overlook the power imbalances present between affected communities and powerful stakeholders, such as corporations or governments. This can result in mechanisms not adequately addressing the systemic causes of violations, thereby perpetuating the cycle of harm without addressing root issues.
• Failure to Address Structural Injustices: A strict impartiality approach can sometimes limit the scope of accountability mechanisms to individual cases, ignoring the broader systemic and structural injustices that contribute to violations. This failure to address underlying issues might result in temporary fixes without addressing the root causes of community harm.
• Undermining Community Agency: When accountability mechanisms prioritize impartiality at the expense of community involvement and agency, it can inadvertently undermine the sense of ownership that communities should have over the processes meant to address their concerns. Mechanisms should empower communities to actively participate, make decisions, and shape outcomes.
• Ignoring Cultural Contexts: Impartiality might lead to a standardized approach that disregards the cultural, social, and historical contexts in which violations occur. This can result in solutions that do not resonate with the affected community’s needs and values, causing further alienation and harm.
• Lack of Timely Redress: Strict impartiality within accountability mechanisms can sometimes lead to lengthy and bureaucratic processes that do not provide timely redress to affected communities. Delays in addressing grievances can worsen the impact of violations and further erode trust in the mechanisms. However, the harm caused by this lack of timeliness extends beyond just delays.

Impartiality, in its most rigid form, can also be seen as a form of inaction. When accountability mechanisms prioritize impartiality to the point of paralysis, they risk becoming passive observers of injustice. This passivity can inadvertently reinforce existing power imbalances by failing to challenge or rectify them. By doing nothing, or too little, in the face of injustice, accountability mechanisms can, at the very least, be perceived as tolerating these imbalances.

In essence, the pursuit of strict impartiality may inadvertently promote and perpetuate power imbalances by not taking decisive action to address violations promptly. This raises a critical question: should impartiality extend to tolerating, or at least not actively challenging, the very power imbalances that lead to harm within communities? It’s a question that underscores the need for a nuanced and community-centered approach to ensure that justice is not delayed or denied, especially in cases where time is of the essence for those seeking redress.

Empowering Communities Through a New Approach

To truly serve affected communities, accountability mechanisms must evolve from a strict impartial stance to one that acknowledges and addresses the unequal power dynamics and vulnerabilities present. This means providing targeted support, resources, and guidance to communities seeking justice. Rather than sacrificing the needs of the aggrieved for the sake of an impartial facade, mechanisms can aim to create a safe space where communities feel heard, seen, and respected.

Affirmative action on the part of Accountability Mechanisms is required in order to provide a safe environment for communities to engage with the mechanisms and the other party to a successful conclusion. This is not a new phenomenon. Affirmative action has been advocated and practised by judicial and non-judicial mechanisms when dealing with cases involving women, children, persons with disability and other vulnerable groups. It is used in policy and legislative drafting to bring about equity. Affirmative action on the part of the Accountability Mechanisms could include; meeting communities where they are so that they are not disrupted, providing transport to and from venues and making necessary adjustments for persons living with disabilities, providing financial and other resources for research and expert findings to be done in the course of mediation, especially where communities request for the same and have no resources to mobilize such research or expertise.

A more aggressive approach could include reprimanding a government or company where there is clear interference of community members through intimidation, threats, arrests, etc. to subvert the process. Where such subversive measures can be proven, affirmative impartiality could include submitting findings to the Bank and making recommendations for discontinued financial or other support until reparative action has been taken.

Conclusion & Call to Action

The pursuit of impartiality within accountability mechanisms, while rooted in good intentions, can sometimes undermine the very purpose for which these mechanisms were created: protecting and supporting communities facing violations. Strict impartiality, when taken to extremes, not only fails to lead to equality or equity but can harbour and perpetuate inequality.

In the face of power imbalances, communities courageously turn to accountability mechanisms as a beacon of hope to level the playing field. Yet, as we’ve seen through some contextual examples, these mechanisms can sometimes fall short of their intended goals, leaving communities without timely redress, justice, or equitable outcomes.

It is time to reevaluate the definition and intention of impartiality within IAMs. Impartiality should not be a shield behind which inequality persists; instead, it should be a force that actively challenges and corrects power imbalances. IAMs must embrace the responsibility to create a safe space for communities to express their concerns, actively participate in decisions, and shape the outcomes that impact their lives. This requires understanding power dynamics, acknowledging historical injustices, and addressing systemic issues that perpetuate harm.

A good example is the Inter-American Development Bank’s Independent Consultation and Investigation Mechanism (MICI) which has “Attention to Asymmetries” as one of its principles in the Consultation Phase Guidelines. This principle requires that processes be, “…..sensitive to the existence of considerable asymmetries between the Parties so as not to undermine the possibility of reaching satisfactory results. Particular attention is to be paid to asymmetries in the availability of the information needed, and in the capacity and ability to participate effectively in these processes. MICI officials may propose capacity-building activities and exercises to facilitate the Parties’ effective and fruitful participation.”

True impartiality should go hand in hand with prioritizing the rights, well-being, and protection of affected communities. As we move forward, let us work collectively to redefine and reconstruct impartiality, ensuring that accountability mechanisms are not just impartial, but actively strive for justice, equity, and lasting solutions. It is through this commitment that we can transform these mechanisms into beacons of hope, guiding communities towards a future free from harm and inequality.