February, 2015
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This piece was written while the author was completing a Master of Arts degree in Peace Studies at the Joan B. Kroc Institute for International Peace Studies at the University of Notre Dame |
Executive Summary
With the increase of peacekeeping operations particularly after the end of the Cold War, growing numbers of peacekeeping officers have been accused of engaging in serious criminal offenses such as sexual abuse, sex-trafficking, soliciting prostitutes, sexually abusing minors and forcing children into prostitution. As the international community gradually grew aware of the magnitude of the problem, sexual violence and exploitation committed by peacekeeping forces on local populations, together with the U.N. response to them, became central topics for discussion and analysis for many. As a result, it has been widely acknowledged that such allegations have proven extremely damaging to the image of the United Nations and have also threatened to seriously undermine the mandate of on-going and future U.N. peacekeeping missions.
This paper will examine the problem of sexual exploitation in U.N. peacekeeping with three specific intents. First, it will provide an up-to-date review of the current status of U.N. accountability mechanisms within the legal and regulatory frameworks for conduct and accountability of peacekeeping forces. Second, it will look at recent remedial approaches and recommendations and assess the level of their successful implementation. Third, the paper will outline remaining key issues and challenges based on the aforementioned evaluation.
Background Information
The phenomenon of peacekeeping personnel sexually exploiting women and girls during U.N. operations is not new. Since the early 1990s, allegations of sexual exploitation by U.N. peacekeepers emerged in Bosnia and Herzegovina, Mozambique, Cambodia, East Timor, Liberia, Sierra Leone and Guinea, and continued to be documented well into the 21st century (Murphy, 2006). Sexual abuse by U.N. peacekeepers in the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC) caused a major public outcry in 2004, which led to an investigation by the United Nations Office of Oversight Services (OIOS). The investigation eventually found “serious problems of sexual exploitation and abuse in the mission” (Ndulo, 2009, p. 142). As a result, the then Secretary-General, Kofi Annan, asked Prince Zeid Ra'ad Zeid Al-Hussein, the Permanent Representative of the Hashemite Kingdom of Jordan to the United Nations, to investigate the allegations and come up with a proposal to address the problem. Prince Zeid’s recommendations were subsequently adopted in the 2003 Bulletin by the Secretary-General, Special Measures for Protection from Sexual Exploitation and Sexual Abuse, “as the uniform standard on sexual exploitation and abuse for every category of U.N. peacekeeping personnel” (Miller, 2006, p. 74).
Even though there has been considerable progress in establishing a number of policies and codes of conduct within a legal framework for U.N. personnel in recent years, problems regarding compliance with those and the criminal accountability of peacekeeping personnel for such misconduct remain. Despite the U.N.’s efforts, “little appears to have changed: accountability remains the exception to the rule, new abuses continue to be reported, and the business of sexual exploitation and abuse in peacekeeping continues. The inevitable result of complacency and unimplemented strategies is impunity among peacekeepers” (Ferstman, 2013, p. 2). Carefully examining the nature of the problem and the various mechanisms which exist to address it can help us reach a better understanding as to why such abuses continue to take place. Consequently, a thorough analysis of the above-mentioned domains leads us to believe that a major problem in dealing with sexual offenses committed by U.N. personnel is that responsibility for prosecuting peacekeeping military personnel lies almost exclusively in the hands of the troop-contributing states.
Jurisdictional Immunities and Legal Framework
The communities in which U.N. peacekeeping missions are established are particularly vulnerable to different kinds of abuse and human rights violations. Typically, the environment in which the U.N. personnel operate is one where there are weak and ineffective judicial and law enforcement structures, a collapsed economy and corrupt institutions. All of these factors create chaos and disorder that consequently facilitate misconduct. However, “while these conditions certainly foster situations in which sexual abuse occurs or in which the likelihood of sexual abuse may increase, a contributing factor is that peacekeepers commit these violations because they believe they can get away with it” (Ndulo, 2009, p. 144). The criminal liability of peacekeeping personnel, therefore, lies at the very core of successfully addressing the problem. Examining the legal framework for accountability of U.N. personnel can shed light on the constraints that the U.N. faces in bringing perpetrators to justice.
A typical U.N. peacekeeping operation consists of several different types of personnel: U.N. staff, experts, U.N. civilian police, U.N. military observers, members of national military contingents and U.N. volunteers. The mission has to be established by a resolution of the Security Council or the General Assembly, and is viewed as a subsidiary organ of the U.N. Murphy (2006) points out that:
[a]s such, it enjoys the status, privileges and immunities of the Organization provided for in Article 105 of the UN Charter, and the UN Convention on the Privileges and Immunities of the UN of 13 February 1946. UN staff members are appointed by the Secretary-General and they have the status of officials under the Convention, section 18 of which provides that officials are immune in respect of acts committed by them in their official capacity (p.533).
In addition, the Status of Forces Agreement (SOFA) between the U.N. and the host state, negotiated in accordance with Article 43 of the United Nations Charter, defines the status, codes of conduct, privileges and jurisdictional immunities of military and civilian personnel and grants exclusive jurisdiction to the troop-contributing country over military personnel (Ndulo, 2009, p. 154). The U.N. also signs a binding bilateral agreement regarding financial, administrative, and logistic issues with the troop-contributing state as well, known as a Memorandum of Understanding Agreement (MOU). The MOU contains guidelines and codes of conduct for members of both military and civilian national personnel, “who remain in national service during their assignment of a UN peacekeeping operation” (Deen-Racsmany, 2011, p. 355).
As previously mentioned, the sets of rules governing disciplinary measures with respect to sexual abuse and exploitation are formally expressed in the 2003 Secretary General’s Bulletin on Special Measures for Protection from Sexual Exploitation and Sexual Abuse and the MONUC Code of Conduct. The two documents prohibit U.N. forces from engaging in acts of sexual exploitation and abuse. However, even though the relevant policies and standards of behavior have been successfully established, the same does not apply to their enforcement. Ndulo asserts that “[a] major drawback of the Bulletin is the fact that it is not legally binding on uniformed personnel, as they fall under the jurisdiction of their own governments. The United Nations cannot subject military personnel to United Nations disciplinary procedures” (2009, p. 149). In a similar note, Deen-Racsmany contends that “the SOFA provision on the exclusive criminal jurisdiction of the sending state over military members of national contingents (MMsNCs) constitutes a major obstacle in the way of ensuring the accountability of this category of persons for crimes and serious misconduct committed in peacekeeping operations” (2011, p. 350).
Current Challenges and Recommendations
U.N. officials who commit different kinds of criminal offenses during peacekeeping missions are rarely held accountable for their actions because of the fact that they, “are granted immunity from criminal prosecution by the host State by a plethora of legal instruments” as outlined above (Burke, 2011, p. 63). Nevertheless, the Secretary-General has the right to waive the jurisdictional immunity of U.N. civilian officials and allow for host state and third state jurisdiction (O’Brien, 2012). The same does not apply when it comes to members of national contingents, however, since the troop-contributing countries retain “exclusive authority to discipline military members of their contingents participating in U.N. peacekeeping operations” (Miller, 2006, p. 75).
A worrisome fact is that members of military contingents constitute the majority of perpetrators of sexual abuses as opposed to other officials or experts on peacekeeping missions, since the performance of their military duties requires them to work within close proximity to vulnerable local populations. Statistics from MONUC show that in 2005, from the 152 peacekeeping personnel dismissed for misconduct, 117 were members of military contingents (Murphy, 2006, p. 532). Besides deciding on administrative penalties against the 117 military officers, the United Nations has no legal authority to bring up criminal charges or initiate prosecution. All the United Nations can do is send the officer back to his troop-contributing country (TCC), “but it cannot ensure the prosecution of that person once they have returned home” (Murphy, 2006, p.532).
Defeis (2008) brings attention to the fact that TCCs have almost never prosecuted their military personnel or held them accountable for the violations they have committed during U.N. operations. Recognizing this, many analysts point out that in order for the military staff accused of misconduct to be held criminally accountable for their behavior, national governments must take the necessary measures to bring up charges against them and properly prosecute them for their wrongdoings. According to the Zeid report, however, even though the SOFA requires the Secretary-General to “obtain formal assurances from a TCC that it would exercise jurisdiction with respect to crimes [or offenses] committed (...) in the mission area, in practice these assurances have not been requested” (qtd. in Defeis, 2008, p. 207). Considering the limited success of prosecutions undertaken by national governments to date, there is a growing body of literture proposing alternative steps and recommendations that could be taken in order to successfully tackle the problem of sexual exploitation by UN personnel.
One such recommendation is that the host state should be given priority in exercising jurisdiction over instances of alleged sexual misconduct, considering the fact that, in most cases, witnesses and evidence necessary for the trial are more easily accessible in the country where the offense has taken place. Regardless of these benefits, however, “the U.N. is unlikely to waive immunity in order to enable the host state to exercise criminal jurisdiction if its legal system is dysfunctional or if the ability of the local justice system to guarantee fair trials is in doubt” (Ferstman, 2013, p. 7). In addition, the ability of the host state to exercise jurisdiction will also depend on whether “the state in question has adequate substantive legislation to cover the crimes committed [and on whether] the state’s law permits extra-territorial application of such legislation” (O’Brien, 2012, p. 244). As it is often the case in conflict-torn countries, judicial systems are frequently either ill-functioning or completely non-existent. Due to the abovementioned reasons, it remains highly unlikely that the U.N. will be willing to waive immunity and allow for the host state to exercise jurisdiction in most cases.
Others propose amendments and revisions to the MOU signed between the U.N. and the troop-contributing country. Deen-Racsmany explains that a 2007 amendment of the MOU “confirms the exclusive jurisdiction of the TCC” over civilian and military officers who take part in the peacekeeping mission and “continues with an assurance by the Government that it shall exercise such jurisdiction” (2011, p. 339). However, the troop-contributing country will not be able to prosecute offenders if its laws do not allow for the exercise of extraterritorial jurisdiction of crimes committed by its nationals on a foreign territory. What is more, since the responsibility to deal with military personnel that has engaged in misconduct will continue to rest in the hands of the troop-contributing country, potential failure or unwillingness on behalf of the sending government to actually prosecute perpetrators suggest that criminal accountability will again be unlikely.
Additionally, a number of experts suggest that greater accountability could be achieved by a new international convention that would govern the criminal liability of peacekeepers. Such a proposal is considered viable since countries “recognize the need to counteract impunity for peacekeeping abuses and that immunity and other procedural barriers should not impede criminal prosecutions” (Ferstman, 2013, p. 11). However, one problem associated with such a proposal is that the regulations of the convention would be binding only to the parties that join it. Finding consensus in drafting the text of the convention may also prove to be problematic (Murphy, 2006). Therefore, there is reason to believe that an international convention prohibiting sexual exploitation by peacekeeping personnel is an unlikely alternative to the current system.
Last, but not least, perhaps the most significant step in addressing the sexual abuse problem is increased recognition of the importance of women’s role in peace processes, along with the importance of incorporating female perspectives in the general U.N. peace and security framework. An effort to do just that resulted in the 2000 U.N. Security Council Resolution 1325 on women, peace and security. The resolution places the responsibility to protect women and girls from gender-based violence during situations of armed conflict on all parties to the conflict and introduces a number of important operational mandates for Member States and the different entities within the U.N. system. However, when it comes to practice, analysts are ambivalent as to how successfully the resolution has been translated into the implementation of U.N. peacekeeping mandates. The report on the ten-year impact study on the implementation of UNSC Resolution 1325 states that while there has been significant progress in supporting women’s participation in political processes, “conflict related sexual violence as a deliberate strategy in areas of conflict still occurs with impunity” (United Nations, 2010, p. 10). The report calls on “a more concerted and robust response from national and international actors” in the fight against gender-based violence as it still remains highly prevalent (United Nations, 2010, p. 10).
Nevertheless, in an effort to demonstrate its commitment to its shift in policy in terms of engaging more females in peacekeeping operations, the U.N. deployed the first ever all-female peacekeeping force in Liberia in 2007. According to the United Nations Foundation, this led to increased reporting of sexual violence which consequently resulted in a decrease in occurrences of such crimes (2012). At the present moment, almost 30 percent of the international civilians working in peacekeeping and special protection missions are women (Ivanovic, 2014). Yet, Ivanovic states that despite these statistics, gender equality in peacekeeping missions is far from being a matter of fact. Dharmapuri points out that there are three main reasons for that:
“the lack of understanding among Member States about Resolution 1325 and U.N. policy on gender equality in peace operations; a gap in data and analysis about women’s participation in national security institutions globally, and in U.N. peacekeeping in particular; and the prevalence of social norms and biases that perpetuate gender inequality within the security sector” (qtd. in Ivanovic, 2014).
Taking this into consideration, it seems that still much more needs to be done before the deployment of more female peacekeeping forces becomes a normative practice within the U.N. system. Once this happens, cases related to sexual abuse committed by U.N. peacekeeping personnel are likely to decrease, which will, in turn, reduce the number of military personnel engaged in such offenses. Despite these potential developments, however, the problems connected with the ineffective criminal accountability mechanisms that exist for prosecuting members of national military contingents accused of criminal misconduct will remain.
Conclusion
As Murphy points out, “[t]here seems to be little alternative to the present system whereby U.N. forces are prosecuted by their relevant national authorities” (2006, p. 542). While it is unlikely that troop-contributing countries would be willing to cede their jurisdiction over their nationals accused of criminal offenses, “the U.N.’s position that TCCs alone are responsible for discipline of military peacekeepers, and that it is powerless to intervene, is no longer acceptable” (Defeis, 2008, p. 214). Hence, as long as criminal accountability of U.N. military personnel accused of sexual exploitation and abuse depends exclusively on the cooperation with the troop-contributing country, reports and allegations of sexual offenses committed by U.N. personnel will continue to emerge. While it is true that the issue of sexual exploitation has been broadly addressed by the United Nations in the last decade, there is need for further reforms which will ensure that perpetrators are held criminally accountable for their actions and that the number of sexually exploited victims by U.N. peacekeeping personnel is significantly reduced.
Reference List
Burke, L. (2011). Status of Forces Deployed on UN Peacekeeping Operations: Jurisdictional Immunity. Journal of Conflict and Security Law 16(1) pp. 63-104. Oxford University Press, Oxford, UK.
Deen-Racsmany, Z. (2011). The Amended UN Model Memorandum of Understanding: A New Incentive for States to Discipline and Prosecute Military Members of National Peacekeeping Contingents? Journal of Conflict and Security Law 16 (2) pp. 321-355, Oxford University Press, Oxford, UK.
Defeis, E. (2008). UN Peacekeepers And Sexual Abuse And Exploitation: An End To Impunity. Washington University Law Review 7(2). Available from <http://law.wustl.edu/WUGSLR/Issues/Volume7_2/Defeis.pdf>. [4 November2014].
Ferstman, C. (2013). Criminalizing Sexual Exploitation and Abuse by Peacekeeers. United States Institute of Peace. Available from <http://www.usip.org/sites/default/files/SR335- Criminalizing%20Sexual%20Exploitation%20and%20Abuse%20by%20Peacekeepers.pdf>. [3 November 2014].
Ivanovic, A. (2014) Why the United Nations Needs More Female Peacekeepers. United Nations University, Available from < http://unu.edu/publications/articles/why-un- needs-more-female-peacekeepers.html>. [10 February 2015].
Miller, Anthony J. (2006). Legal Aspects of Stopping Sexual Exploitation and Abuse in U.N. Peacekeeping Operations. 39 Cornell International Law Journal 71.
Murphy, R. (2006). An Assessment of UN Efforts to Address Sexual Misconduct by Peacekeeping Personnel. International Peacekeeping, 13:4, 531-546.
Ndulo, M. (2009). The United Nations Responses to the Sexual Abuse and Exploitation of Women and Girls by Peacekeepers During Peacekeeping Missions. Cornell Law Faculty Publications. Available from <http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1058&context=facp up>. [3 November 2014].
O’Brien, M. (2012). Protectors on Trial? Prosecuting Peacekeepers For War Crimes And Crimes Against Humanity In The International Criminal Court. International Journal of Law, Crime and Justice, 40(3), 233. Elsevier, Amsterdam.
United Nations. (2010). UN Documents. Available from <http://www.un.org/en/peacekeeping/documents/ 10year_impact _study_1325.pdf>. [10 February 2015].
United Nations Foundation, (2012). Un Peacekeeping Is A Success In Liberia. Available from < http://www.unfoundation.org/who-we-are/impact/our-impact/a-stronger-united- nations/supporting-un-peacekeeping.html>. [10 February 2015].
