A few days ago, the consulting firm Enodo Rights released its assessment of the Porgera Remedy Framework, the grievance mechanism set up by Barrick Gold to address claims of rape and other sexual violence by security personnel at its gold mine in Porgera, Papua New Guinea (PNG). The Enodo report reflects a great deal of good work, and its author should be credited for his comprehensiveness, diligence, and transparency. For example, one useful aspect is the survey data that the report includes, which shows what questions were asked of 62 women who participated in the Remedy Framework and how they answered.

There are lots of valuable lessons from the report, and anyone involved in any similar mechanisms should take the time to read it in detail. But I do have a few observations about the report that I think are deeply troubling and worth pointing out.

This critique won’t be nearly as comprehensive as the Enodo report itself. We've said our piece on the Remedy Framework, and we're not in a position to add to that; furthermore, the human rights law clinics at Harvard and Columbia, with whom we've worked (and which both feature former ERI staff!), released their own well-researched, detailed report two months ago. And for its part, Barrick has also issued a statement on the Enodo report.

ERI did participate in the assessment process; we sent information to Enodo, and talked with the report's author, Yousuf Aftab, at some length. Some of our observations are reflected in the report. I think Yousuf is to be credited for the work that went into the assessment. His parting comments, on the last page of the report, also bear contemplating. He acknowledges that, knowing what he does now, he doesn't know whether he would've recommended that Barrick create the Remedy Framework. And he states:

 

Critiquing and commenting on corporate efforts is infinitely easier than designing and practically implementing a complement to deficient public institutions of justice. Ultimately, credible human rights groups will need to help bridge that divide.

 

Speaking as one such critic, I have no doubt that this is true (although opinions may differ on whether the Remedy Framework was in fact intended to "complement" other institutions of justice). Of course that's one reason that ERI typically looks to the courts for adequate remedies; duplicating a credible court-like process is difficult, even with the best of intentions. It takes experience, expertise, and resources to do it right. As both the Enodo report and the clinics' report recognized, the Remedy Framework did some things well and struggled in other areas.

On to the first critique, starting with process. Everybody loves process, right?

 

1. If the corporations do the hiring, there will always be pro-corporate bias

The history of this assessment begins with the UN's Office for the High Commissioner for Human Rights (OHCHR), which recommended that "efforts should be made to establish a process to identify an individual, group of individuals or organization, considered credible by Barrick, the claimants and other key stakeholders, to conduct an independent review of the Porgera remediation programme." As far as I know, the Enodo review was "independent" in the sense that it was operationally separate from Barrick.

But the review was funded by Barrick, of course. And, while OHCHR suggested that the reviewer should be considered credible by all stakeholders, Enodo was chosen by Barrick alone to do the assessment.

Why does that matter? Corporate funding is probably unavoidable because, as Willie Sutton supposedly explained as his reason for robbing banks, "that's where the money is." But corporate selection of the reviewer is altogether different. If a firm like Enodo depends on corporations to hire it, it will always have an interest in keeping that clientele satisfied.

Even if the corporate selection doesn't affect Enodo's work product at all, this model will inevitably lead to a marketplace where the consultants who survive are those that the corporations want to keep hiring - most likely, the ones already predisposed to be nice to their funders.

While the process is important, it is not nearly as troubling to me as the next point.

 

2. Should it really be cheaper to rape poor women?

Enodo's report does something that Barrick never did, which is to try to benchmark the Remedy Framework awards against international standards. Its conclusion: "the Framework’s remedies were more generous, on a purchasing power parity basis, than those awarded by the Inter-American Court of Human Rights."

This is not true. In fact, it’s so deeply erroneous that I want to dig somewhat deeply into it. Please bear with me.

“Purchasing power parity” (PPP) is a conversion used to compare how much a theoretical “basket of goods” costs in different economies. It accounts for the phenomenon that a dollar goes farther in some places than in others; the World Bank describes it as "how many dollars are needed to buy a dollar's worth of goods in the country as compared to the United States.”  So, according to the World Bank's PPP figures, having $8 in PNG is equivalent to having $10 in the US; having $6 in Mexico is equivalent to having $10 in the US.

Having comparable remedies on a PPP basis would mean that an award in different countries could buy a similar basket of goods. Thus, a $100,000 award in US would be equivalent, on a PPP basis, to $80,000 in PNG, or $60,000 in Mexico.

That’s not the comparison Enodo did. Instead, they compared the awards to average annual incomes – per capita GDP – in each country.

Comparing awards to average incomes doesn’t tell you whether they are more or less generous in different countries. It only tells you how they compare to average incomes. And that only matters if you think poor women deserve less money for being raped than rich women do.

The difference between what Enodo did and a real PPP comparison is stark. Enodo refers to Rosendo Cantu v. Mexico, a 2010 case in which the Inter-American Court awarded $60,000 in "non-pecuniary damage" - that is, to cover injuries that are not economic in nature, such as lost wages - to a victim of a brutal rape by the Mexican military.

As noted above, $60,000 in Mexico, using a PPP comparison, is equivalent to $100,000 in the US – which is equivalent to $80,000 in PNG. Because a dollar goes farther in Mexico, using the PPP conversion means that the dollar value of an award in PNG needs to be higher to be equivalent to an award in Mexico.

Enodo reports that the US dollar value of the typical Remedial Framework awards was $7,998. In PPP terms, this amounts to $9,997.50. That’s a tenth of the value of the international standard awards that they cite.

The comparison that Enodo actually did was to compare the size of the award to average incomes in Mexico and PNG. In a footnote, they note that Mexico’s GDP per capita was $16,200.60, while PNG’s was $2,647.30. They then compared this to the size of the award, finding that the Inter-American Court award was about the same as the Remedy Framework’s benefits in comparison to average income.

I really hope this is simply an error that will be corrected, and not an indication of what Enodo really believes. Because this is what Enodo is saying: If a PNG woman is awarded one-sixth of what a Mexican woman is awarded for rape, but people in PNG are six times poorer than people in Mexico, those awards are comparable.

That only makes sense if you think it should be cheaper to rape poor women.

I absolutely reject this kind of reasoning. Any "purchasing power parity" adjustment to an international standard damage award should only reflect how much that amount of compensation can purchase in the relevant country, not the relative poverty of the victims. The U.S. legal system doesn't take this approach - while economic losses may depend on a victim's income, so that a rich person's losses might be greater than a poor person's, damages for non-economic injuries - such as pain and suffering or emotional trauma - don't depend on victim's economic status. And they shouldn't.

The message that this approach sends to people like the women of Porgera is this: if a Barrick employee raped a woman in Canada, that's going to be expensive - after all, Canada's per capita GDP is $43,033.10. So Barrick should be really careful to avoid that sort of thing. But in PNG, the per capita GDP is only $2,647.30. So it's about 16 times cheaper to rape women in Porgera.

If that sounds both crude and abhorrent, that's because it is. And it's exactly the same kind of calculation as in Enodo's report. If you don't believe me, it's at pages 105-106 and the accompanying footnotes.

As I said, I sincerely hope that this was just a mistake. The fact that the report says that, using World Bank PPP data, “US$60,000 in Mexico is the equivalent of approximately US$9,804 in Papua New Guinea,” suggests that they simply don’t know what they’re talking about. (But it does beg the question of how they could have thought this was correct, since they went to PNG and it’s pretty obvious that goods there don’t cost six times less than in Mexico.) Using PPP adjustments doesn't mean that giving someone $60,000 in Mexico is the same as giving them $9,804 in PNG, or giving them $159,376 in Canada (the “equivalent” using Enodo’s methodology).

I'll gladly update this post if Enodo acknowledges and fixes the error. I hope it’s not what they intended.

But we've seen this kind of reasoning before, from corporations themselves. Barrick’s own statement adopts the same comparison, noting that “claimants ultimately received benefit packages valued at more than 50,000 kina – 8 times the national per capita income in Papua New Guinea.” They really believe that a rich woman's body and dignity is worth more than a poor woman's. Either that, or - and this seems rather inconceivable for multinational corporations - they really don't understand what global economic data means.

[A couple of wonky notes to this discussion. First, while the Inter-American Court award was in 2010 and the Remedy Framework’s awards were in 2015, I didn’t adjust for inflation; again that would’ve made the international standard a bit more generous. Second, Enodo used 2013 figures for GDP per capita on a PPP basis; I used the same figures, though 2014 figures are available. Third, if you’re wondering where PPP comes into Enodo’s analysis at all, it’s only because they used the PPP conversion to calculate per capita GDP. That actually pushes the calculation in the wrong direction. A dollar goes farther in Mexico than in PNG. Thus, a PPP comparison should lead to higher awards in PNG. But if you’re comparing average incomes, using a PPP adjustment will inflate Mexico’s GDP more than PNG’s. The unadjusted figures for per capita GDP are $10,172.70 for Mexico, and $2,108.80 for PNG.]

So let's hope that's simply a mistake. It's hard to say the same about the next error.

 

3. Blame it on the NGOs

Enodo recognized that the Remedy Framework had a difficult challenge when it came to publicity vs. secrecy. On the one hand, full utilization of the process would be impossible if people didn't know about it. On the other hand, greater publicity might lead to negative consequences for the participants - women who lodged claims might be stigmatized as rape victims, and the knowledge that they received remedies might lead to those remedies being stolen. So they decided against widespread publicity:

The decision not to publicize the Framework widely was based on the advice of the PDWA [Porgera District Women's Association], experts in women’s issues in Porgera. The concern they raised was that publicity would expose potential claimants to significant risk of revictimization at the hands of their families and others in the community. In light of the well-recognized prevalence of domestic violence in Porgera, this was a reasonable and justifiable concern.

No doubt this is true. Nonetheless, Enodo found that the discreet approach didn't work. Because Barrick had already publicized the Framework, because news travels fast (if unevenly) in Porgera, and because the Framework was run out of an office that employed many locals, no one should have expected "that the existence of the Framework would remain confidential beyond claimants." Thus, the discreet approach served only to limit the availability of the Remedy Framework: " Indeed, in just one Porgera community, Enodo itself found 13 women who believed they had valid claims who did not learn about the Remedy Framework in time. In the end, the discreet approach to publicizing the Framework offered only a cost in accessibility without any benefit in terms of claimant safety."

Given this, why does Enodo target its vitriol at the efforts of NGOs - notably the advocacy group MiningWatch Canada, though ERI itself also played a role - to spread the word about the availability of the Remedy Framework? The Executive Summary states that "responsibility" for the "horrific results" of the Remedy Framework must be "shared with certain international stakeholders," notably MiningWatch:

Despite the advice of women’s leaders in Porgera that secrecy was essential to protect claimant security, MiningWatch publicized the Framework widely, facilitating community stigma for all claimants and exposing them to the risk of physical abuse for surviving sexual violence.

This makes no sense. Enodo itself concludes that the only result of not publicizing the Framework was to exclude participation by women with legitimate claims. How many fewer women would have participated if not for the efforts of MiningWatch and others? We know from our own experience that our visit to Porgera, alongside MiningWatch and the clinics, led to about 30 additional women lodging claims with the Remedy Framework. This seems like a deeply inappropriate swipe at a group that has been advocating on human rights issues in Porgera since the days when Barrick was denying that there were any problems. Surely the success of the Remedy Framework could not have depended on the idea that it would be available to all eligible women in the community without the men - especially the clan leaders and other powerful men who are most likely to know about any current developments - learning about it.

MiningWatch is a strange target to pick. But not as strange as the next one.

4. Blame it on the rape survivors

One of the positive aspects of ERI's engagement with the Remedy Framework was that, in response to our critiques from our clients as well as other participants in the Framework, they shifted off their initial inclination to present awards in the form of small business assistance and instead offer cash grants to women who wanted it. Apparently, according to the Enodo report, this is how most of the women received their awards.

Although the clinics' report faults Barrick for its failure to engage with rape survivors - the intended users of the Framework - in the design of the mechanism, this was a rare instance when the Framework was actually responsive to the desires of the claimants. But while Enodo recognizes this, its analysis turns this around:

Concerted pressure on the Framework to issue cash compensation was even more pernicious for claimant security. Claimants themselves first applied the pressure. International stakeholders magnified it. . . . The cash-oriented position of this alliance contravened the advice of every single expert in sexual violence in Papua New Guinea Barrick consulted . . . . In this oppressive social context, they argued, cash compensation would largely benefit claimants’ male relatives at the expense of claimants themselves. . . . The pressure from international stakeholders and claimants led the PRFA to make cash the lion’s share of all remedy packages.

Essentially, what Enodo seems to be saying is that Barrick designed a good process based on the best expert advice, and then mucked up the implementation by actually listening to the women who were using the process, and doing what they wanted. And, worse, those womens' voices were actually amplified by international NGOs. This led to terrible results:

Claimants were immediately, often forcefully, dispossessed of their remedy; every award was virtually identical; and, what cash remained in claimants’ possession was quickly spent, with no durable benefit.

I have no doubt that this did occur. And I think it's entirely possible that the process left some women worse off than before. But this leads me to two important points about such remedy processes.

The first relates to the role of advocates - especially lawyers - in such a process. At ERI, our job as lawyers representing clients is to represent those clients, even if they might be wrong. Part of reclaiming dignity and respect is having the freedom to make your own decisions - including bad decisions. I don't mean to suggest that it was a bad decision for most women to seek cash compensation as their remedy; it may well have been a bad decision for some women, and I know for a fact that it was a good decision for others. But it was their decision. My role is to advise my clients - including advising them on risks and benefits of particular courses of action - but not to substitute my judgment for theirs.

The second point is that you cannot combat a patriarchial society through a paternalistic mechanism. It cannot be the case that the only way to give adequate benefits to the women involved in the Framework was to remove their ability to control their remedies, by (for example) doling out benefits in small increments over a long period of time, or providing only remedies in the form of in-kind assistance like household goods or school fees. While I emphasize that I think it was a good decision for the Remedy Framework to provide benefits in the form that the women wanted, I think there are more courses of action that could have been taken to enhance the women's security without depriving them of autonomy. Benefits could have been increased to account for the likelihood that some amount would be stolen or shared with male relatives. Relocation could have been offered to women to enable them to escape abusive situations. An aggressive followup program could have been employed to check in with claimants and see if they needed additional assistance.

Surely it's not true that the best way to provide remedies to rape survivors is to ignore their wishes.

***

What I think everyone agrees on is that there are many valuable lessons to be learned from Barrick's Remedy Framework. I just hope at some point we can agree on what those lessons are.

 

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