Guest Post: UN Peacekeepers and Sexual Exploitation and Abuse

by Melanie O'Brien

[Dr Melanie O’Brien, TC Beirne School of Law & Asia-Pacific Centre for the Responsibility to Protect, University of Queensland.]
Since December, there have been multiple announcements of new allegations of sexual exploitation and abuse (SEA) by peacekeepers, and criticism of the UN for the handling of these allegations. These allegations all relate to SEA committed by peacekeepers in the Central African Republic, usually by soldiers who are part of the UN’s Multidimensional Integrated
Stabilization Mission in the Central African Republic (MINUSCA). Allegations of peacekeeper SEA are not new. In fact, I have been researching on this topic for almost 13 years. Thirteen years of begging for accountability, and still the SEA continues. I have even written on how the ICC should not shy away from holding peacekeepers accountable for SEA when it occurs in the context of armed conflict and/or crimes against humanity, based on the seriousness of the offence. That is, the role of peacekeepers as protectors of civilians means that they are a special category of offender that should be held accountable. My call for the ICC to step up stems from the fact that sending states, which hold exclusive jurisdiction over their military and police personnel serving in peace operations, are not investigating or prosecuting SEA offences.
The UN’s Conduct and Discipline Unit (CDU), developed a decade ago in response to allegations of sexual abuse by peacekeepers, is not fully transparent. UN annual reporting of statistics on SEA does not ‘name and shame’ states involved, which means that the UN’s follow-ups to states involved go unheeded. Why should states bother if nobody knows it’s them? Last year Ban Ki-Moon finally announced that he would ’name and shame.” Months have dragged by, but it seems that perhaps this is actually happening, with the most recent allegations naming the Republic of Congo and the Democratic Republic of Congo as sending states, and the UN announcing that Burundi peacekeepers have been repatriated from MINUSCA. ”Naming and shaming” means greater transparency. It also enables the international community and a sending state’s nationals to pressure that sending state to take action with investigation and prosecution. Since reporting began, from a high of almost 400 allegations, we have dropped to under 100 allegations per year. Yet this is still far too many. The UN has been unwilling to rock the boat of sending states’ generosity, in case the UN is no longer able to procure enough personnel for missions. Missions are already understaffed (and under resourced). However, without proper vetting from sending states, the UN tendency to take whoever they can get it is jeopardising mission success. SEA breaches the trust between host communities and peacekeepers, which creates insecurity and uncertainty in which a peace operation cannot successfully operate. The conduct also damages the reputation of the UN.

There are also entrenched problems within the UN.l. The recent scandal has revealed a disregard for human rights, evidence by inaction to sexual abuse allegations.It also exemplified the ongoing targeting and condemnation of whistleblowers. The most recent whistleblower has been vindicated, but his time in the spotlight has brought many people forward who have likewise been attacked for reporting in-house human rights violations. In this way, the UN needs to clean house and maintain only employees of integrity. This is not to say that there are not people in the UN working hard and ethically: I met a Samoan police officer working with the UN Mission in the Republic of South Sudan (UNMISS) CDU who took great pride in her work and championed the importance of the standards set by her team. Clearly, we need more people like her in the UN (not to mention a greater gender balance in missions). What we should be doing is empowering UN Civilian Police (CivPol) to act like police in relation to criminal allegations against mission personnel. CivPol are trained police officers who have the ability to conduct proper investigations, including taking on-site witness statements and safeguarding secure chains of evidence.

However it is not the UN who has sole responsibility here; it is time sending states step up to the plate. There is an inherent human rights component to the SEA. Peacekeeper SEA is derived from entrenched gender inequality and patriarchal attitudes where women are perceived as unimportant and as chattel of men to be used when and how men see fit. There is also an element of bigotry and discrimination involved in the SEA, where peacekeepers are committing crimes they may not necessarily commit at home, both out of opportunity (a common reason for the commission of crime and enhanced by conflict/post-conflict circumstances and the powerful position of peacekeepers), but also out of a perception that the local community are lower in social standing than they are. In addition, the number of allegations relating to SEA of children is substantial. Does this indicate an issue of paedophilia that states need to be specifically dealing with? There is definitely a need for criminological, especially psychology, studies of this ‘phenomenon’. Sending states need to be addressing these social issues as a root cause, targeting education and social structures.

SEA by peacekeepers is a human rights violation (or rather, it violates many human rights). It is termed ‘misconduct’, but let’s stop calling it that and minimising the behaviour. It is criminal conduct, and states must take action to eliminate these crimes. Punishment of criminal conduct is a crucial component of preventive justice. Firstly, States must ensure they have the legislative means to prosecute their personnel. This means having the substantive law that covers this particular conduct; many states lack the specific provisions to prosecute sexual exploitation of adults. States must enact such legislative provisions, which reflect the imbalance in power dynamic between the peacekeeper and victims, and the exchange in goods/services/money that takes place. These provisions must include appropriate and proportionate punishment. In memoranda of understanding to contribute personnel, states must guarantee they will carry out investigation and prosecution using the proper provisions (as opposed to minor offences). States also need to establish extra-territorial application of the substantive law. Once these capabilities are in place, the sending state must make very clear to its personnel that commission of crimes will not be allowed to take place with impunity. A demonstration of action by states will contribute to prevention of peacekeeper SEA.

The UN and its member states champion the rule of law and human rights in states in the midst of conflict or in post-conflict disarray. We need the UN and its member states to practice what they preach.

http://opiniojuris.org/2016/02/16/guest-post-un-peacekeepers-and-sexual-exploitation-and-abuse/

7 Responses

  1. Thanks for an important post, causing great concern, and first, we all should appreciate your dedication and fight for justice and particularly serving so , helpless and vulnerable populations like woman in Africa.

    But , It seems that you ignore some issues here :

    1) First , prosecution , has to do mainly with the forum state , and not only the – UN , or sending state . You should realize , there is no immunity for UN peacekeepers , for criminal personal acts . Here I quote from UN charter, article 104:

    ” The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes. ”

    So , you can read , only for ” its functions and the fulfillment of its purposes ” criminal acts , of sexual exploitation , is surly out of scope . That is how, in Israeli courts, has been ruled for example (magistrate court (Aco) 1623-07-08) there , a UN worker, has been indicted for death or causing death in an accident. It is only that One just could wonder , if peacekeepers are deployed , what are the capabilities of the forum state to prosecute someone ?? yet , you should know it !!

    2) It does also depend upon the level of legislation or norms , of the forum state , in Israel for example , very progressed ( protection of women ) here I quote from :

    ” Prevention of Sexual Harassment Law 5758-1998″

    ” Sexual harassment and persecution.

    3. (a) Sexual harassment is any one of the following acts:

    (6) propositions or references as referred to in paragraphs (3) or (4), addressed to one of the persons enumerated in sub-paragraphs (a) to (c) under circumstances specified in those subparagraphs, even if the harassed person has not demonstrated to the harasser that he is not interested in the said propositions or references;

    (c) toward an employee within the framework of an employment relationship, and toward a person in service within the framework of such service, by exploitation of authority and discipline in labour relations or in the service.”

    3) In terms of the ICC , well one may read article 7 ( k ) ( crimes against humanity ) :

    (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

    To be honest, I don’t see how Fatou Bensouda , would invest, the resources for such incidents ( how spread and systematic they are , one should consider it also in terms of gravity ) sad and disgusting as they appear to be. Yet , one may try the strategy of efficiency and success over heavy and complex cases (like in Mali, and destruction of holy sites there ).

    Thanks

  2. Thanks for your comment, El roam.
    UN peacekeepers are not considered UN employees. Status of Forces Agreements and Memoranda of Understanding grant exclusive jurisdiction over military peacekeeping personnel to their sending states. For different categories of personnel, it is complex, and other categories of personnel should have their immunity waived by the UN in order for prosecution to take place. Take a look at the Immunity discussion for discussion and at appendix 2 in this document for a table of jurisdictions that helps to lay out the different categories https://www.academia.edu/775724/National_and_international_criminal_jurisdiction_over_United_Nations_peacekeeping_personnel_for_gender-based_crimes_against_women.
    Sexual harassment and sexual exploitation are two completely different crimes. Generally, states do not have a legislative provision that covers sexual exploitation. They usually proscribe rape, sexual assault, and sex with minors, (which may be applied to sexual exploitation depending on circumstances), but not specifically sexual exploitation. If the victim is a child, that is clear-cut as they can be prosecuted for child rape. If the victim is a woman, it is not so clear-cut as to whether it constitutes rape, so therefore it is difficult to prosecute as rape.
    Re: the ICC, I discuss these issues in my articles, which are linked in the text above.

  3. Thanks Melanie for your comment , very interesting thesis in that link . I shall evacuate some space to read it more carefully . It is just that I was wondering , in the abstract of it , you state clearly , I quote :

    ” This thesis argues that gender-based crimes by UN peacekeepers should be criminalised, and that,while the International Criminal Court should not be discounted as a potential forum for prosecuting perpetrators, domestic prosecutions are far more likely and far more effective.”

    While , hardly if at all , mentioned in the post ( national jurisdiction and prosecution ) .

    Thanks

  4. Melanie , I mean of course , forum state jurisdiction as national …..Thanks

  5. El Roam,

    I thought Mrs O’Brien was fairly clear that regardless of the reason that sending states just do not prosecute such offenses against their peace-keepper soldiers (I would guess that this probably also applies to other soldiers when away from home but that would be even harder to track at the current time).

    One thing I would ask, are these states hesitant about pursuing such charges when the crime happens domestically (that is, by civilians against other citizens or at least legal residents)? If the answer to that question is ‘no’ then I would be very surprised to see such acts handled any differently when soldiers commit them while abroad.

  6. Soronel Heatir ,

    Thanks for your comment.I was only suggesting different models or strategies, for handling such crimes of UN peacekeepers. Of course, situation on the ground, may differ and vary from place to place, state to state.

    Yet , the honorable and admirable author of the post , try to fight and deal with it , so , I was raising very useful and efficient and customary somehow option ( see the verdict mentioned above ) which is :

    The forum state jurisdiction , so, maybe by keeping and pushing, and being creative and exhausting all options, we shall reach it finally. Here, for example, we have now the ICC, as, permanent criminal international court, never ever was such for:

    ” a journey of a thousand miles begins with a single step ”

    Thanks

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