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RIGHTING WRONGS? BARRICK GOLD's REMEDY MECHANISM for SEXUAL VIOLENCE in PAPUA NEW GUINEA Key Concerns and Lessons Learned

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RIGHTING WRONGS? BARRICK GOLD's REMEDY MECHANISM for SEXUAL VIOLENCE in PAPUA NEW GUINEA Key Concerns and Lessons Learned RIGHTING WRONGS? BARRICK GOLD'S REMEDY MECHANISM FOR SEXUAL VIOLENCE IN PAPUA NEW GUINEA Key Concerns and Lessons Learned By Columbia Law School Human Rights Clinic & Harvard Law School International Human Rights Clinic Human Rights Clinic (Columbia Law School) & International Human Rights Clinic (Harvard Law School) Righting Wrongs? Barrick Gold’s Remedy Mechanism for Sexual Violence in Papua New Guinea: Key Concerns and Lessons Learned (November 2015) About the Authors The Human Rights Clinic at Columbia Law School & The International Human Rights Clinic at Harvard Law School each work to advance human rights around the world. The clinics carry out human rights investigations, legal and policy analysis, litigation, report-writing, and international advocacy. The clinics bring together innovative education, social justice, and scholarly research, and students are trained to be strategic human rights lawyers. The Human Rights Clinic at Columbia Law School: web.law.columbia.edu/clinics/human-rights-clinic. The International Human Rights Clinic at Harvard Law School: hrp.law.harvard.edu. Acknowledgements This report is part of an ongoing project addressing the human rights impacts of gold mining operations in Porgera, Papua New Guinea. Since 2006, the authors have investigated allegations of human rights violations at the site of the Porgera Joint Venture (PJV) mine. This report evaluates the effectiveness of a company-created remedy mechanism designed by Barrick Gold, the majority-owner of the mine from 2006-2015, to provide remedies to survivors of alleged sexual assaults by PJV employees. The clinics would like to thank the many people in Porgera who shared their experiences and opinions. The clinics would also like to thank the team of interpreters; without their dedication, this report would not have been possible. For safety reasons, all of these individuals’ names do not appear. The clinics thank also the numerous external reviewers who provided comments on drafts of this report. The report’s lead authors are Sarah Knuckey, Lieff Cabraser Associate Clinical Professor of Law and Director of the Human Rights Clinic and Co-Director of the Human Rights Institute, Columbia Law School, and Tyler Giannini, Clinical Professor and Co-Director of Harvard Law School’s Human Rights Program and its International Human Rights Clinic. More than a dozen students and clinic fellows were contributing authors and members of the research team. Some traveled to Porgera to conduct interviews over the past three years. From Columbia Law School Human Rights Clinic: Benjamin Hoffman, Clinical Teaching Fellow and Lecturer in Law; Whitney Hood, JD ’16; Elizabeth O’Shea, LLM ’16; Stephanie Persson, JD ’15; Gulika Reddy, LLM ’16; Holly Stubbs, JD ’15, were contributing authors and researchers. Candy Ofime, JD ’17; Keerthana Nimmala, JD ’16; and Ze-Emanuel Hailu, JD ’14, also provided assistance. From Harvard Law School’s International Human Rights Clinic: Clinical Advocacy Fellow, Amelia Evans, LLM ’11, supervised a research trip that contributed to this report. In addition, numerous students, including Flora Amwayi, JD ’13; Skawenniio Barnes, JD ’14; Marie Cita, JD ’14; Krizna Gomez, LLM ’13; Reeba Muthalaly, LLM ’14; Tamaryn Nelson, MPA ’14; Kiri Toki, LLM ’16; and Helen Zhang, JD ’16, contributed to the report. The clinics would also like to acknowledge the research undertaken by the Global Justice Clinic (New York University School of Law) in 2013-2014, including by students Eleanor Jenkin, LLM ’13; Mayuri Anupindi, LLM ’15; Will Henrich, JD ’14; and Tamara Morgenthau, LLM ’14. Dozens of students at the clinics also participated in research and investigations that took place starting in 2006. Their prior work addressed allegations of abuses by security forces at the mine— including arbitrary detentions, physical assaults, sexual violence, and killings. Daniel Greenfeld designed the cover and layout, and Emily Allen provided the photos. This report does not represent the institutional views of Columbia Law School, Harvard Law School, or the New York University School of Law. Table of Contents Summary ...........................................................................................................................................1 Recommendations.............................................................................................................................8 Methodology ...................................................................................................................................12 Introduction ������������������������������������������������������������������������������������������������������������������������������������18 Part I: Background: Human Rights Abuse Allegations and the Creation of the Barrick Remedy Mechanism ................................................................................................21 Part II: The International Human Rights Framework ...................................................................29 Part III: The Barrick Remedy Mechanism: A Human Rights Analysis �����������������������������������������36 1. Promptness ..........................................................................................................................37 2. Consultation and Rights-Holder Engagement ...................................................................46 3. Scope of Harms Remedied ................................................................................................55 4. Accessibility and Security....................................................................................................61 5. Reparations �������������������������������������������������������������������������������������������������������������������������71 6. Waiver of Legal Rights and Access to Counsel ������������������������������������������������������������������94 7. Additional Rule of Law Issues: Transparency, Predictability, Continuous Learning, and Independence ............................................................................103 Conclusion ....................................................................................................................................114 Annex: Barrick Remedy Agreements ............................................................................................116 I went there to look for gold. I went myself, with my first born child. I went there and I was busy washing the gold . Three security guards caught me . When they held me, I told them, ‘Don’t hit me or fight me. Just take me to the cell.’ . One hit me hard, I fell to the ground. Two [other] security guards were near. One came and raped me. Then another came and raped me. Then the third came. They said, ‘We won’t take you to the cell.’ They left me there . After the rape, I felt numb and pain, I couldn’t walk well. I walked slowly back to my village. - A woman from Porgera, Papua New Guinea Summary Brutal accounts of sexual and other assaults have been rife among the indigenous communities living near the Porgera Joint Venture (PJV) gold mine in Papua New Guinea (PNG). Security guards hired to patrol the mine’s perimeter and to secure mine property have physically abused many local residents and landowners, and targeted women for vicious sexual assaults, including gang rapes. The assaults, which spanned many years in a context of pervasive impunity, have caused long-term and continuing harm to survivors and Porgeran communities. This report analyzes the design and implementation of a company-created mechanism established to remedy sexual violence around the mine. The report provides key lessons for corporations, civil society, survivors and affected communities, and the international community about the benefits, challenges, and limitations of company-created remedy mechanisms as a means of redressing serious human rights violations. The report is grounded in the experiences of assault survivors and the findings are based on a three-year investigation, including many interviews conducted in Porgera before and during the implementation of the remedy mechanism. The PJV, which started in 1989 and was majority-owned and operated from 2006-2015 by Canadian mining company Barrick Gold Corporation, was slow to respond to abuse allegations. Local and international actors who called attention to these serious human rights violations have spent the greater part of the last decade seeking investigations, acknowledgement, and appropriate preventative measures and remedies. The fact that such assaults occurred is no longer in dispute, however. Starting in 2010, Barrick began to take long sought-after action. The company commissioned its own internal investigation, recognized publicly the serious problem of sexual violence at the mine site, introduced new systems to monitor mine personnel, and enhanced human rights trainings for security guards. In 2012, Barrick launched a company-created remedy mechanism to offer reparations to women sexually assaulted by its security guards and other company employees. During the two years of operation of Barrick’s “Olgeta Meri Igat Raits (All Women Have Rights)” remedy mechanism, approximately 120 sexual assault victims signed remedy package agreements, in exchange for waiving their right to sue Barrick. Separately, eleven women who refused to accept the packages and who secured legal representation by a U.S.-based human rights non-governmental organization were offered confidential settlement packages believed to be about ten times the
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